                                                                 May 15 2015, 8:28 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald J. Frew                                            Gregory F. Zoeller
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dewayne M. Townsend,                                      May 15, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1411-CR-389
        v.                                                Appeal from the Allen Superior
                                                          Court.
                                                          The Honorable Wendy W. Davis,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 02D05-1406-FD-677




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015                  Page 1 of 12
                                            Statement of the Case
[1]   Dewayne M. Townsend appeals from his conviction of one count of residential
               1
      entry as a Class D felony, challenging the admission of a witness’s prior

      consistent statements and the sufficiency of the evidence. We affirm.


                                                     Issues
[2]   Townsend presents the following restated issues for our review:


                   I.     Whether the trial court abused its discretion by admitting a
                          witness’s prior consistent statements.
                   II.    Whether there is sufficient evidence to support his
                          conviction.

                                   Facts and Procedural History
[3]   On June 13, 2014, Townsend went to Ashleigh Fryar’s apartment to spend time

      with the newborn child the two had in common. Townsend left after holding

      the baby for some time. Ashleigh then locked the front door and took the baby

      with her to her bedroom. Ashleigh did not respond when Townsend later

      returned and began knocking on the front door. Townsend requested that

      Ashleigh allow him to take the child with him and the two had argued about

      that subject earlier. After a period of time with no response, Townsend then

      walked to Ashleigh’s window and demanded that she allow him to take the




      1
          Ind. Code § 35-43-2-1.5 (1991).


      Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015         Page 2 of 12
      baby with him. Ashleigh refused his request. Townsend then returned to the

      front door of the apartment, kicked it in, and entered Ashleigh’s apartment.


[4]   At some point during this incident, Ashleigh texted 911 on her cell phone. Fort

      Wayne Police Department officers responded to the call. Upon arriving at

      Ashleigh’s residence, the officers observed that the door to Ashleigh’s

      apartment had been forced open and that the door frame had been broken.

      Pieces of wood and pieces of the door frame were lying on the ground inside

      the apartment. Townsend admitted to the officers that he had kicked in the

      door and entered Ashleigh’s apartment when she did not open the door.

      Although at trial he later claimed this justification for breaking down Ashleigh’s

      door, Townsend did not tell officers at that time that he did so out of concern

      about the welfare of his child or that he had heard the baby crying.


[5]   Additionally, after entering Ashleigh’s apartment and before the police officers

      arrived, Townsend confronted Ashleigh. He grabbed and pulled her hair

      causing her pain and grabbed her face causing an injury to her lip and making it

      difficult for her to breathe.


[6]   The State charged Townsend with residential entry and domestic battery. At

      Townsend’s jury trial, the State introduced several exhibits, including the text

      messages from Ashleigh to 911, which were admitted without objection, and a

      letter written by Ashleigh to Townsend’s counsel in which she recanted the

      battery allegations, also admitted without objection.




      Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015    Page 3 of 12
[7]    The State also introduced State’s Exhibit 25, a recording made at the police

       station of Ashleigh’s conversations with her friends, which was redacted to

       remove any reference to Townsend’s prior felony convictions. The State

       originally offered the video recording as an excited utterance exception to the

       hearsay rule, but withdrew that request and sought to have the recording

       introduced to rebut an express or implied charge of recent fabrication. The trial

       court admitted the recording over Townsend’s hearsay objection and the

       recording was published to the jury.


[8]    After the State rested its case, Townsend testified and admitted that he kicked in

       the front door of Ashleigh’s apartment when she did not open the door. He

       claimed that he did so out of concern for the welfare of his child.


[9]    At the conclusion of the trial, the jury was unable to reach a verdict on the

       domestic battery charge, but found Townsend guilty of residential entry. The

       trial court sentenced Townsend to two years for his residential entry conviction

       with one year suspended to probation. Townsend now appeals.


                                     Discussion and Decision
                                          I. State’s Exhibit 25
[10]   Townsend claims that the trial court abused its discretion by admitting State’s

       Exhibit 25 during Townsend’s jury trial. Trial courts have broad discretion to

       rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.

       2014). On appellate review, we review the trial court’s rulings “‘for abuse of

       that discretion and reverse only when admission is clearly against the logic and

       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015   Page 4 of 12
       effect of the facts and circumstances and the error affects a party’s substantial

       rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)). The

       trial court’s broad discretion extends to situations involving the admissibility of

       purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[11]   “Hearsay is an out-of-court statement offered for ‘the truth of the matter

       asserted,’ Ind. Evidence Rule 801(c)(2), and it is generally not admissible as

       evidence.” Id. at 565 (quoting Ind. Evidence Rule 802). “‘Whether a statement

       is hearsay . . . will most often hinge on the purpose for which it is offered.’” Id.

       (quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). Indiana

       Evidence Rule 801(d)(1)(B) provides that a statement is not hearsay if the

       declarant testifies and is subject to cross-examination about a prior statement,

       the statement is consistent with the declarant’s testimony, and the statement is

       offered to rebut an express or implied charge that the declarant recently

       fabricated the statement or acted from a recent improper influence or motive for

       testifying.


[12]   A prior inconsistent statement may be used to impeach a witness. Martin v.

       State, 736 N.E.2d 1213, 1217 (Ind. 2000). If used for that purpose, it is not

       hearsay because the statement is not used to prove the truth of the matter

       asserted. Id. In other words, the statement is used to establish that the witness

       previously made a statement contrary to his testimony, not necessarily that the

       prior inconsistent statement is substantively true.




       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015     Page 5 of 12
[13]   In this appeal we are asked to examine the use of a prior consistent statement.

       Our Supreme Court cited Judge Miller’s treatise on evidence when discussing

       the use of prior consistent statements:


               If an adversary has made an express or implied charge against the
               witness of recent fabrication or improper influence or motive,
               and the prior consistent statement was made before the motive to
               fabricate arose, the prior consistent statement is admissible as
               substantive evidence; if the prior consistent statement was made
               after the motive to fabricate arose, however, it is admissible to
               rehabilitate a witness.
       Bassett v. State, 895 N.E.2d 1201, 1214 (Ind. 2008) (quoting 13 Robert L. Miller,

       Jr., Indiana Evidence § 613.208 (1995)). In this case, a prior consistent

       statement would be properly admitted if Ashleigh had testified on direct

       examination that Townsend beat her, then Townsend had confronted her on

       cross-examination with the letter recanting her allegation of domestic battery

       and suggested, for example, that the State put Ashleigh up to her trial

       testimony. The State would then be allowed to introduce State’s Exhibit 25, a

       prior consistent statement, to rebut Townsend’s charge of recent fabrication.


[14]   The facts here do not present the common situation in which prior consistent

       statements are used to refute an express or implied charge of recent fabrication.

       The State apparently anticipated that Townsend would attempt to impeach

       Ashleigh with the letter and introduced it during direct examination to reduce

       its impeachment value. On cross-examination, Townsend noted the varying

       stories, thus challenging Ashleigh’s credibility, but did not expressly or



       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015       Page 6 of 12
       impliedly allege recent fabrication, viz. that her trial testimony was fabricated at

       the instance of the State.


[15]   Rather, Ashleigh testified on direct examination that she called 911 because

       Townsend was “beating down” her door. Tr. p. 85. She further testified that

       after Townsend entered her home, he then entered her bedroom, pulled her

       hair, and grabbed her face, causing her pain and busting her lip. The State

       asked her about the notarized letter she had written to Townsend’s attorney in

       which she recanted her allegation that Townsend physically harmed her. She

       identified the letter and it was admitted into evidence without objection. She

       then read the letter aloud. Ashleigh testified that the contents of the letter were

       not true, and that she wrote the letter because at that time she wrote it she “was

       conflicted between right and wrong.” Id. at 91-92. She stated that her

       testimony at trial accurately described what had happened.


[16]   On cross-examination, Ashleigh testified that her testimony in court was

       essentially the same as what she told the officers who responded to her 911 call.

       She also acknowledged the letter she had written to Townsend’s lawyer. She

       agreed with counsel’s suggestion that she had notarized the letter “to give this

       letter some validity and a little extra weight.” Id. at 98. While testifying about

       the letter, Ashleigh agreed when Townsend’s counsel asked her if by drafting

       the letter she had “presented a complete fabrication after [she] had time to

       reflect on what happened on June 13th.” Id. at 100. She also agreed with

       Townsend’s counsel’s statement that she had “presented two pretty much

       diametrically different accounts about what happened that day.” Id. at 101. He

       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015     Page 7 of 12
       finished his cross-examination of Ashleigh by getting her to agree to the context

       and sequence of those two different stories when he asked her if there was “one

       account you gave to the police that day and then one account that you gave in

       this notarized letter that you authored at some point later[.]” Id. at 102.


[17]   On redirect, Ashleigh testified that she spoke with three officers on the day of

       the incident and that she had told each of them that Townsend had broken

       down the door, grabbed and pulled her hair, and had grabbed her mouth.


[18]   During Detective Roos’s testimony, which followed Ashleigh’s testimony, the

       State attempted to introduce State’s Exhibit 25, a redacted audio and video tape

       of Ashleigh making telephone calls to her friends while she waited in an

       interview room. The proposed legal basis for the admissibility of the exhibit

       was the excited utterance exception to the hearsay rule. The exhibit was not

       admitted at that time. However, Detective Roos testified that Ashleigh’s

       testimony in court was consistent with what she had told him during her

       interview.


[19]   Later, the State called Ashleigh to the witness stand again and asked her to

       identify State’s Exhibit 25. The State then argued that the exhibit was

       admissible as a prior consistent statement offered to rebut an express or implied

       charge of recent fabrication. The trial court admitted the exhibit over

       Townsend’s objection. However, this was an abuse of discretion.


[20]   We recently summarized the parameters set for the appropriate use of prior

       consistent statements that have developed through case law and evidentiary

       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015    Page 8 of 12
       rules in Corbally v. State, 5 N.E.3d 463 (Ind. Ct. App. 2014). In Corbally, we

       cited to language from our Supreme Court’s opinion in Modesitt v. State, 578

       N.E.2d 649 (Ind. 1991), stating that adoption of what is now Indiana Evidence

       Rule 801(d)(1) “was necessary to prevent ‘abuses’ in the use of a witness’s prior

       consistent statements, such as by bolstering ‘the testimony of what might

       otherwise be regarded as a weak witness’ and prohibiting ‘[n]umerous witnesses

       [from testifying] to the same statement given by a particular witness, thereby

       creating the prohibited drumbeat of repetition.’” 5 N.E.3d at 469. In

       particular, we noted that “cases have made clear that there is a difference

       between merely challenging a witness’s credibility versus making an express or

       implied charge of fabricated testimony or improper influence or motive.” Id.

       “If there has only been general impeachment of a witness’s credibility, then

       prior consistent statements by the witness are hearsay and not admissible as

       substantive evidence.” Id. “Also, general attacks upon a witness’s memory do

       not constitute a charge that the witness fabricated testimony and do not permit

       the admission of prior consistent statements by the witness.” Id. In this case

       there was not even a suggestion made that Ashleigh’s testimony at trial was a

       recent fabrication or the product of a recent improper influence or motive.


[21]   Although the trial court abused its discretion by admitting State’s Exhibit 25,

       the error is subject to harmless error analysis. Id. at 470. In that situation, we

       must consider whether the evidence was likely to have substantially swayed the

       jury’s verdict. Id. The evidentiary error is harmless if we are satisfied that the

       conviction is supported by such substantial independent evidence of guilt that


       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015     Page 9 of 12
       there is little likelihood the challenged evidence contributed to the conviction.

       Id. Whether an error contributed to a verdict, requires the appellate court to

       determine whether the erroneously admitted evidence was unimportant in

       relation to everything else the jury considered on the issue in question. Id.


[22]   Ashleigh told the officers that Townsend came to her apartment, knocked on

       her door, broke down the door, and confronted her. She testified at trial

       consistently with that account of the incident. The officers who responded to

       Ashleigh’s 911 call observed that the front door to Ashleigh’s apartment had

       been damaged. Townsend admitted to the officers that he broke down the door

       to Ashleigh’s apartment and entered it. The letter was about the battery charge

       on which the jury was unable to reach a verdict. We are satisfied that the

       conviction is supported by substantial independent evidence of guilt. The

       erroneous admission of State’s Exhibit 25 was harmless.


                                 II. Sufficiency of the Evidence
[23]   Townsend also challenges the sufficiency of the evidence supporting his

       conviction. Although Townsend admitted that he knowingly or intentionally

       broke and entered Ashleigh’s apartment, he claims that he had her consent to

       do so. Our standard of review of this issue was stated as follows by the

       Supreme Court:


               We recite our familiar standard for reviewing the sufficiency of
               the evidence needed to support a criminal conviction. First, we
               neither reweigh the evidence nor judge the credibility of
               witnesses. Second, we only consider “the evidence supporting
               the judgment and any reasonable inferences that can be drawn
       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015     Page 10 of 12
               from such evidence.” A conviction will be affirmed if there is
               substantial evidence of probative value supporting each element
               of the offense such that a reasonable trier of fact could have
               found the defendant guilty beyond a reasonable doubt. “It is the
               job of the fact-finder to determine whether the evidence in a
               particular case sufficiently proves each element of an offense, and
               we consider conflicting evidence most favorably to the trial
               court’s ruling.”
       Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (internal citations omitted).


[24]   In order to establish that Townsend committed residential entry as a Class D

       felony, the State was required to prove beyond a reasonable doubt that

       Townsend knowingly or intentionally broke into and entered Ashleigh’s

       apartment. Ind. Code § 35-43-2-1.5. “Lack of consent is not an element of the

       offense the State is required to prove.” McKinney v. State, 653 N.E.2d 115, 118

       (Ind. Ct. App. 1995). “Rather, it is the defendant who must claim and prove

       the defense of consent.” Id. “A defendant’s belief that he has permission to

       enter must be reasonable in order for the defendant to avail himself of the

       defense of consent.” Id.


[25]   The evidence at trial established that Ashleigh allowed Townsend to enter her

       home earlier that day to spend time with their child. After Townsend left,

       however, Ashleigh locked the door to the apartment. When Townsend

       returned to the apartment, Ashleigh took the child with her to her bedroom and

       did not respond to Townsend’s requests to let him inside the apartment.

       Ashleigh texted 911 to report that Townsend was attempting to break into her

       apartment. Townsend went to the window and asked Ashleigh to allow him to


       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015   Page 11 of 12
       take their child with him. After Ashleigh refused Townsend’s request, he

       returned to the front door, kicked it in, and entered Ashleigh’s apartment where

       the two argued.


[26]   Townsend argued for the first time at trial that he broke down the door of

       Ashleigh’s apartment out of concern for the welfare of their child. Ashleigh had

       previously given Townsend a key to the apartment, but Townsend did not have

       the key with him and did not use it to gain entry to Ashleigh’s apartment.

       Ashleigh testified that Townsend had previously told her that he had lost the

       key.


[27]   Whether Townsend’s belief that he had Ashleigh’s permission to enter the

       apartment was reasonable was a matter for the jury to determine. Because the

       jury convicted Townsend of residential entry, the jurors must have rejected his

       defense. Consistent with our standard of review, we will not reweigh the

       evidence or reassess the credibility of the witnesses. Willis, 27 N.E.3d at 1066.


                                                 Conclusion
[28]   In light of the foregoing, we affirm the decision of the trial court.


[29]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015   Page 12 of 12
