MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Oct 15 2015, 9:38 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joseph McDonald,                                         October 15, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1503-CR-108
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M. Marnocha
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         71D02-1409-F6-192



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108| October 15, 2015          Page 1 of 15
                                          Case Summary
[1]   Joseph McDonald appeals from his two Level 6 convictions for residential

      entry and intimidation, raising three issues for our consideration. First, he

      contends that the trial court erred in violation of Indiana Evidence Rule 617 in

      denying his motion in limine and allowing the State to submit into evidence

      statements made by McDonald inside a police car but not recorded due to a

      malfunction of the motor vehicle recorder. Next, he argues that the trial court

      abused its discretion in failing to instruct the jury on Class A misdemeanor

      criminal trespass as a lesser-included offense of residential entry. Finally, he

      contends that the evidence is insufficient to support his intimidation conviction.

      Finding no merit to these contentions, we affirm McDonald’s convictions.



                            Facts and Procedural History
[2]   Around 1:00 a.m. on September 21, 2014, Joseph McDonald entered the South

      Bend home of Jennifer Ward by removing the air-conditioning unit from her

      bedroom window and climbing in through the window. Ward was not home at

      the time, but was at the neighbor’s house across the street taking a shower.

      Ward’s daughter, Amberlene Hutton, and Hutton’s girlfriend, Paris Wright—

      both of whom lived in Ward’s house—were home and watching a movie in an

      upstairs bedroom. First, Hutton heard a loud knocking on the locked front

      door, which eventually stopped after a few minutes; she then heard a “tugging

      noise” followed by a “big bang, like something fell.” Tr. p. 213. These sounds

      came from Ward’s bedroom, located below Hutton’s bedroom. Then, because

      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 2 of 15
      she heard footsteps inside the house, Hutton grabbed a rope wire and Wright

      grabbed a bat and they headed downstairs.


[3]   Once downstairs, Hutton and Wright found Joseph McDonald walking

      through the house, talking to himself. McDonald had come to retrieve some

      personal belongings, such as clothing and bedding, which he had been storing

      at Ward’s house for about a week. Hutton and Wright asked McDonald how

      he got into the house, and at first he did not respond. Finally he told Wright,

      “She know I’m here[,]” referring to Ward. Id. at 246. Hutton then ran across

      the street to the neighbor’s house to get Ward.


[4]   Ward heard banging on her neighbor’s door. Hutton told her McDonald had

      broken into the house. Ward walked across the street toward her house and

      saw McDonald coming out the door of her house with a bag, carrying his things

      to his truck. Ward confronted McDonald, asking him, “Did you just break into

      my house?” Id. at 156. McDonald “kept saying something about [Ward] not

      answering the phone . . . he was calling [her] names.” Id. Ward called 911,

      which “agitated him even more.” Id. at 157.


              Q: Did he say anything?


              [Ward]: That was the second time that I heard him saying that if
              we called the police, we were all going to die, he was going to kill
              us. He was going back and forth, talking to himself, talking to
              me, yelling, he kept saying, “I just want to get my stuff.” But in
              the same sentence of him wanting to take his things and leave in
              the same breath, “I’m going to pay you all for your hospitality,


      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 3 of 15
              but I’m going to kill you all.” So we were a little bit confused at
              that point as to where his state of mind was.


      Id. According to Wright, when he said he was going to kill them, he seemed

      “angry.” Id. at 250. When Hutton was asked, “And was there anything said

      before he said he was going to kill you?” Hutton replied, “No, at this point my

      mom is going back and forth telling him she’s calling the police, then this is

      what he’s saying to us.” Id. at 235.


[5]   After he finished loading his things in his truck—a red, “rusty older pickup

      truck” with the passenger-side window “busted out” and plastic covering it—

      McDonald drove away with no headlights on. Id. at 162, 185. Ward

      telephoned the police and told them what direction he was driving. South Bend

      Police Department Officer Joy Phillips “heard the truck before [she] ever saw

      it” due to the truck’s loud muffler. Id. at 185. Once she spotted the truck,

      Officer Phillips activated her overhead lights in an attempt to pull over the

      truck, but the truck didn’t stop for several blocks.


[6]   Several other police officers came to the scene, including Officer Samuel

      Chaput of the South Bend Police Department, who assisted with the stop.

      Officer Chaput’s police car was equipped with a motor vehicle recorder

      (“Recorder”), which was supposed to be activated by the car’s overhead lights.

      Officer Chaput had received training in the use of this MVR and would activate

      it every day before starting his shift to make sure it was working. After

      McDonald was stopped, Officer Chaput placed wrist restraints on McDonald

      and took him to his police car. Because Officer Chaput had activated his
      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 4 of 15
      overhead lights at the time of the stop, “to [his] knowledge [the Recorder] was

      still running, still recording” when he brought McDonald back to his police car.

      Id. at 291. Officer Chaput read McDonald his Miranda rights, which he

      waived, and then McDonald told the officer what had happened that night.


              He said that he had tried to contact Ms. Ward several times by
              calling her and texting her, to get his items back from her
              residence. He said that she never returned his calls, so he took it
              upon himself to go to the house, he took . . . the air conditioner
              out of the window, he went inside the house, grabbed his stuff
              and left.


      Id. at 283. Later, Officer Chaput learned that his car’s Recorder had in fact

      malfunctioned; therefore, McDonald’s statements were not recorded and

      preserved.


[7]   After taking McDonald to the St. Joseph County Jail, Officer Chaput went to

      Ward’s house. He entered the house through the front door and spoke with

      Ward, Hutton, and Wright, who showed him the room where the air

      conditioning unit had been removed from the window. They then took Officer

      Chaput outside, where he observed the air-conditioning unit on the ground

      outside of the house. Officer Chaput did not think it was necessary to check the

      air-conditioning unit for fingerprints “because the suspect that we had said that

      he was the one that removed it.” Id. at 294.


[8]   The State charged McDonald with Level 6 felony residential entry and Level 6

      felony intimidation. A jury trial was held in January 2015. At the beginning of

      the trial, McDonald filed a motion in limine requesting the trial court to
      Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 5 of 15
       exclude testimony regarding statements made by McDonald while in police

       custody on the grounds that the statements were inadmissible in violation of

       Indiana Evidence Rule 617. The trial court denied the motion. At the

       conclusion of the trial, McDonald tendered a proposed jury instruction for

       criminal trespass, a Class A misdemeanor, as a lesser-included offense of

       residential entry. See Tr. p. 312-13; Appellant’s App. p. 63. Finding that there

       was no serious evidentiary dispute as to the evidence of breaking as an element

       of residential entry, the trial court refused the instruction.


[9]    The jury found McDonald guilty of Level 6 felony residential entry and Level 6

       felony intimidation. McDonald now appeals his convictions.



                                  Discussion and Decision
                                       1. Evidence Rule 617
[10]   First McDonald alleges that the trial court erred in violation of Indiana

       Evidence Rule 617 in denying his motion in limine and allowing the State to

       submit into evidence statements made by McDonald inside a police car but not

       recorded due to a malfunction of the Recorder. A trial court has broad

       discretion to admit or exclude evidence. Blount v. State, 22 N.E.3d 559, 564

       (Ind. 2014). We therefore disturb its ruling only if it amounts to an abuse of

       discretion, meaning the court’s decision is clearly against the logic and effect of

       the facts and circumstances or it is a misinterpretation of the law. Id. We do

       not reweigh the evidence and consider the evidence most favorable to the trial


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 6 of 15
       court’s ruling. Robey v. State, 7 N.E.3d 371, 379 (Ind. Ct. App. 2014), trans.

       denied.


[11]   Indiana Evidence Rule 617 - Unrecorded Statements During Custodial

       Interrogation provides in relevant part as follows:

                 (a) In a felony criminal prosecution, evidence of a statement
                 made by a person during a Custodial Interrogation in a Place of
                 Detention shall not be admitted against the person unless an
                 Electronic Recording of the statement was made, preserved, and
                 is available at trial, except upon clear and convincing proof of
                 any one of the following:


                                                    *****


                        (3) The law enforcement officers conducting the Custodial
                        Interrogation in good faith failed to make an Electronic
                        Recording because the officers inadvertently failed to
                        operate the recording equipment properly, or without the
                        knowledge of any of said officers the recording equipment
                        malfunctioned or stopped operating [] . . .


                 (b) For purposes of this rule, . . . “Place of Detention” means a
                 jail, law enforcement agency station house, or any other
                 stationary or mobile building owned or operated by a law
                 enforcement agency at which persons are detained in connection
                 with criminal investigations.


[12]   Here, McDonald asserts that “A reasonable interpretation of [Evidence Rule]

       617 is that any place of detention operated by law enforcement that is equipped

       with recording equipment is covered by the rule.” Appellee’s Br. p. 17. Thus

       he contends that the trial court erred in admitting any statements he made while

       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 7 of 15
       inside the police car because – due to the malfunctioning Recorder – no

       electronic recording of his statements was made and preserved.


[13]   But McDonald’s argument is problematic for at least two reasons. First, Rule

       617 doesn’t apply in this situation because a police car is not a Place of

       Detention as defined by the rule. McDonald urges us to expand the definition,

       however, writing that a “reasonable interpretation of [Rule] 617 is that any

       place of detention operated by law enforcement that is equipped with recording

       equipment is covered by the rule.” Appellant’s Br. p. 17 (emphasis added). But

       given that police car is not included in the specific list of items in the definition

       of Place of Detention – a jail, law enforcement agency station house, or any

       other stationary or mobile building owned or operated by a law enforcement

       agency – we find that the definition does not include police car, and thus Rule

       617 does not apply.


[14]   Even if Rule 617 did apply, the situation before us falls within a clear exception

       to the rule that unrecorded statements made during a custodial interrogation in

       a Place of Detention are inadmissible. This exception states that unrecorded

       statements are not inadmissible if the law enforcement officer in good faith

       failed to make an Electronic Recording because of the officer’s inadvertent

       failure to operate the recording equipment properly, or because the equipment

       malfunctioned without the officer’s knowledge. See Evid. R. 617(a)(3). Officer

       Chaput testified at trial that he believed the MVR was activated when he turned

       on his overhead lights at the time of the stop, and he believed that it was still

       recording when he brought McDonald back to his car: “To my knowledge it

       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 8 of 15
       was still running, still recording.” Tr. p. 291. In other words, there is clear and

       convincing evidence that Officer Chaput in good faith failed to make an

       electronic recording because the recording equipment stopped working without

       his knowledge. See Evid. R. 617(a)(3).


[15]   We find that the trial court did not abuse its discretion in denying McDonald’s

       motion in limine and admitting into evidence unrecorded statements made by

       McDonald in Officer Chaput’s police car.


                      2. Jury Instruction on Criminal Trespass
[16]   Next McDonald contends that the trial court abused its discretion in refusing

       his jury instruction on Class A misdemeanor criminal trespass as a lesser-

       included offense of residential entry. When a defendant requests a lesser-

       included offense instruction, the trial court must apply the three-part analysis

       set forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995). Hamilton v. State, 783

       N.E.2d 1266, 1268 (Ind. Ct. App. 2003), trans. denied. The first two parts

       require the trial court to determine whether the offense is either inherently or

       factually included in the charged offense. Id. If so, then the trial court proceeds

       to the final part, which requires the trial court to determine whether there is a

       serious evidentiary dispute regarding any element that distinguishes the two

       offenses. Id. In deference to the trial court’s proximity to the evidence, we

       review a decision whether to instruct the jury on lesser-included offenses for an

       abuse of discretion if the court makes a finding as to the existence or lack of a

       serious evidentiary dispute. Id. Here, the trial court in denying McDonald’s


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 9 of 15
       request for a jury instruction on criminal trespass found that there was no

       evidentiary dispute as to whether McDonald entered Ward’s home through the

       window after removing the air conditioner as opposed to some other way. See

       Tr. p. 313 (“There is no . . . evidentiary dispute as to whether Mr. McDonald

       entered the home through this method or any other method.”). We therefore

       review the trial court’s refusal to give McDonald’s criminal-trespass instruction

       for an abuse of discretion. See Hamilton, 783 N.E.2d at 1268-69.


[17]   This Court has already determined that criminal trespass is not an inherently

       lesser-included offense of residential entry. Higgins v. State, 783 N.E.2d 1180,

       1187 (Ind. Ct. App. 2003) (“[C]riminal trespass contains materially different

       elements that must be proven that are not found in the residential entry statute:

       for criminal trespass, the lack of a contractual interest in the property must be

       proven, as well as the owner’s lack of consent to the entry, neither of which

       need be proven for residential entry. Additionally, the two crimes do not differ

       solely in terms of the requisite level of culpability; both require a mens rea of

       knowingly or intentionally.”), trans. denied. But criminal trespass can be a

       factually included lesser offense of residential entry if the charging instrument

       alleges that the means used to commit the crime charged include all of the

       elements of the alleged lesser-included offense. Young v. State, 846 N.E.2d 1060,

       1062 (Ind. Ct. App. 2006). To determine whether an alleged lesser-included

       offense is factually included in the crime charged, the trial court must compare

       the statute that defines the alleged lesser-included offense with the charging

       instrument in the case. Wright, 658 N.E.2d at 567. If the charging instrument


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 10 of 15
       alleges that the means used to commit the crime charged include all of the

       elements of the alleged lesser-included offense, then the alleged lesser-included

       offense is factually included in the crime charged. Id. at 566–67.


[18]   In the present case, McDonald was charged with residential entry, a Level 6

       felony, as follows:

               On or about September 21, 2014 in St. Joseph County, State of
               Indiana, Joseph Terry McDonald did knowingly or intentionally
               break and enter the dwelling of Jennifer L. Ward and/or
               Amberlene Hutton, located at [] W. Elwood Avenue, South
               Bend, Indiana.


       Appellant’s App. p. 127. The crime of Class A misdemeanor criminal trespass

       is defined by Indiana Code section 35-43-2-2(b)(5)(B) in relevant part as

       follows:


               A person who[,] . . . not having a contractual interest in the
               property, knowingly or intentionally enters the . . . dwelling of
               another person without the person’s consent . . . commits
               criminal trespass . . . .


[19]   In Higgins, this Court concluded that criminal trespass was a factually included

       lesser offense of residential entry where—as here—the State had alleged that

       Higgins did knowingly “break and enter” the victim’s dwelling. See Higgins, 783

       N.E.2d at 1189 (relying on a case by our Supreme Court, J.M. v. State, 783

       N.E.2d 703, 705 (Ind. 2000), in which that Court found that by charging that

       J.M. did knowingly or intentionally “break and enter” the residence of another

       person, the State had sufficiently alleged facts constituting criminal trespass,

       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 11 of 15
       even though the charging information did not specifically allege that J.M. had

       committed the entry “without consent.”).


[20]   Assuming, then, that criminal trespass is a factually included lesser offense of

       residential entry given the charging information in this case, we proceed to the

       third and final step of the Wright test: whether there is a “serious evidentiary

       dispute about the element or elements distinguishing the greater from the lesser

       offense” such that a jury could conclude that the lesser offense was committed

       but not the greater. Wright, 658 N.E.2d at 567. The key distinction between

       the two offenses at issue here is the element of breaking and entering required for

       residential entry but not for criminal trespass. See Ind. Code § 35-43-2-1.5 (“A

       person who knowingly or intentionally breaks and enters the dwelling of

       another person commits residential entry, a Level 6 felony.”).


[21]   In this case, there is no serious evidentiary dispute as to whether McDonald

       broke into Ward’s house.1 Indeed, “[a]ll of the evidence points to a breaking.”

       See Higgins, 783 N.E.2d at 1189. The record shows that Ward’s daughter,

       Hutton, was in an upstairs bedroom of the house watching a movie when she

       heard, first, a loud knocking on the locked front door which stopped after a few

       minutes, and then a “tugging noise” followed by a “big bang, like something

       fell.” Tr. p. 213. These sounds came from Ward’s bedroom, located below




       1
        McDonald essentially concedes the lack of an evidentiary dispute in his appellate brief, writing,
       “Admittedly, Officer Chaput’s testimony that [McDonald] made a statement to him about pulling out the air
       conditioner and entering though the window was damaging to [McDonald].” Appellant’s Br. p. 14-15.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015      Page 12 of 15
       Hutton’s bedroom. Then, because she heard footsteps inside the house, Hutton

       and her girlfriend Wright went downstairs and found McDonald walking

       through the house, talking to himself, collecting bags of things he had been

       storing in Ward’s house. After Ward called the police, McDonald was stopped

       and taken into Officer Chaput’s police car, where he told the officer that he had

       tried to contact Ward several times by calling her and texting her, because he

       wanted to get his things from her house, but when she didn’t answer or return

       his calls, “he took it upon himself to go to the house, he took . . . the air

       conditioner out of the window, he went inside the house, grabbed his stuff and

       left.” Id. at 283. After taking McDonald to jail, Officer Chaput went to Ward’s

       house and observed firsthand the air-conditioning unit that had been removed

       from the window on the ground outside of her house.


[22]   Because there was no serious evidentiary dispute as to whether McDonald

       broke into Ward’s house, we find that the trial court did not abuse its discretion

       in refusing to give McDonald’s jury instruction on the lesser-included offense of

       Class A misdemeanor criminal trespass.


                              3. Insufficiency of the Evidence
[23]   Finally, McDonald argues that the evidence is insufficient to support his

       intimidation conviction. Our standard of reviewing claims of sufficiency of the

       evidence is well settled. When reviewing the sufficiency of the evidence, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 13 of 15
       We do not reweigh the evidence or assess witness credibility. Id. We consider

       conflicting evidence most favorably to the trial court’s ruling. Id. We will

       affirm the conviction unless no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. It is not necessary that the

       evidence overcome every reasonable hypothesis of innocence. Id. The

       evidence is sufficient if an inference may be reasonably drawn from it to support

       the verdict. Id. A conviction may be based upon circumstantial evidence

       alone. Id.


[24]   In order to convict McDonald of Intimidation as a Level 6 felony, the State was

       required to prove beyond a reasonable doubt that he communicated a threat to

       Ward with the intent that Ward engage in conduct against her will and that the

       threat was to commit a forcible felony. See Ind. Code § 35-45-2-1. Whether a

       person operated with the requisite intent to force another to engage in conduct

       against his will depends on the facts and circumstances of the case. Williams v.

       State, 677 N.E.2d 1077, 1083 (Ind. Ct. App. 1997). The question is one of fact

       for the jury to decide. Id.


[25]   In the present case, the evidence at trial showed that after Hutton came to the

       neighbor’s house across the street to tell Ward that McDonald was there, Ward

       went across the street to confront him, and she asked him if he had broken into

       her house. Ward testified that when she tried to call 911 with her cell phone,

       “that agitated him even more.” Tr. p. 157. Ward went on to testify:

               That was the second time that I heard him saying that if we
               called the police, we were all going to die, he was going to kill us.
       Court of Appeals of Indiana | Memorandum Decision 71A04-1503-CR-108 | October 15, 2015   Page 14 of 15
               He was going back and forth, talking to himself, talking to me,
               yelling, he kept saying, “I just want to get my stuff.” But in the
               same sentence of him wanting to take his things and leave in the
               same breath, “I’m going to pay you all for your hospitality, but
               I’m going to kill you all.” So we were a little bit confused at that
               point as to where his state of mind was.


       Id. When he said he was going to kill them, he seemed “angry.” Id. at 250. In

       response to the question, “And was there anything said before he said he was

       going to kill you?” Hutton replied, “No, at this point my mom is going back

       and forth telling him she’s calling the police, then this is what he’s saying to

       us.” Id. at 235. This evidence shows that McDonald threatened to kill Ward

       with the intent that she refrain from calling 911. We find the evidence is

       sufficient to support McDonald’s conviction for Level 6 felony intimidation.


[26]   Affirmed.


       Robb, J., and Pyle, J., concur.




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