MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Nov 21 2018, 11:05 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sally Skodinski                                         Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marteze Armondo Butler,                                  November 21, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1399
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1710-F6-992



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018              Page 1 of 10
                                          Statement of the Case

[1]   Marteze Butler (“Butler”) appeals his conviction, following a jury trial, of Level

      6 felony auto theft.1 Butler argues that the trial court abused its discretion when

      it denied his motion to exclude the testimony of four witnesses regarding what

      they observed on an unavailable surveillance video. Finding no error, we

      affirm the trial court’s decision.


[2]   We affirm.


                                                         Issue

               Whether the trial court abused its discretion when it allowed four
               witnesses to testify about the contents of an unavailable surveillance
               video.
                                                         Facts

[3]   On October 20, 2017, David Thorpe (“Thorpe”) parked his car in a parking

      space at a Discount Liquor store in South Bend. He left his keys, cell phone,

      checkbook, and registration inside the car while he went inside the store to

      purchase liquor. Thorpe left the liquor store and realized that his car was no

      longer in the parking space. He went back inside Discount Liquor and told the

      store clerk, Inderbut Singh (“Singh”), and the store’s security guard, Javon




      1
        IND. CODE § 35-43-4-2.5(b)(1) (repealed, effective July 1, 2018). The jury also found Butler guilty of Class
      A misdemeanor conversion, but the trial court dismissed this conviction citing “double jeopardy” reasons at
      sentencing. (Tr. 181).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018                  Page 2 of 10
      Scruggs (“Scruggs”), what had happened. The three men watched the

      surveillance video recorded by a camera outside the store. The camera was

      located on the side of the building and pointed directly at the location where

      Thorpe had parked his car. In the surveillance video, Thorpe, Singh, and

      Scruggs observed an individual with a distinctive hairstyle wearing a brown

      jacket and blue jeans enter Thorpe’s car and drive off in it. Scruggs, who had

      worked for the liquor store for nine years, recognized that the brown jacket

      from the surveillance video belonged to a regular customer who lived in a

      nearby apartment complex, but he could not remember the customer’s name.


[4]   Thorpe called the police, and South Bend Police Department Officer Benjamin

      Canarecci (“Officer Canarecci”) arrived at the store. Officer Canarecci

      reviewed the surveillance video and spoke with Thorpe, Singh, and Scruggs.

      Scruggs informed Officer Canarecci that he believed the individual in the video

      lived in a nearby apartment complex. Neither Singh nor Scruggs were able to

      download the surveillance video for Officer Canarecci that night. Singh told

      Officer Canarecci that the owners of the store would download the video and

      give it to the police at a later time.


[5]   Officer Canarecci left the store and drove to the nearby apartment complex and

      patrolled the area. He located Thorpe’s car in the apartment complex parking

      lot. Thereafter, Officer Canarecci observed Butler walking in the area, wearing

      the same clothes as the individual in the surveillance video. Officer Canarecci

      ordered Butler to stop, but Butler kept walking, took off his brown jacket, and

      threw it in the grass. Officer Canarecci arrested Butler, collected the brown

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 3 of 10
      jacket as evidence and took Butler back to the liquor store. Singh and Scruggs

      identified Butler as the individual they observed in the surveillance video

      stealing Thorpe’s car.


[6]   On October 23, 2017, the State charged Butler with Level 6 felony auto theft,

      and Class A misdemeanor conversion. On two occasions, the State requested

      the liquor store’s surveillance video, but it was informed that the store’s owners

      had not given the tape to the police. Eventually, the police obtained the

      surveillance video. However, the video “ended up being messed up, or [the

      police] didn’t do something right.” (Tr. 65). The video was either lost or

      destroyed and was not entered into evidence at Butler’s trial.


[7]   On the morning of Butler’s jury trial, defense counsel filed a written motion to

      exclude the testimony of Thorpe, Singh, Scruggs, and Officer Canarecci

      (“State’s witnesses”) regarding their observations from the surveillance video.

      Counsel specifically argued that this evidence violated Indiana Evidence Rules

      1004, 1002, 403, and Butler’s federal and state constitutional rights to confront

      the witnesses against him. Citing Indiana Evidence Rule 1004, the trial court

      denied Butler’s motion to exclude the testimony. The trial court explained:


              It’s unfortunate -- this is why cases are lost because the police in
              their job of investigating offenses don’t follow through. But I
              don’t see that the police acted in bad faith. I don’t see that the
              State acted in bad faith.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 4 of 10
      (Tr. 10). Thereafter, the State’s witnesses each testified at trial and recounted

      what they had seen in the recording.2 They described seeing Butler, who was

      wearing a brown jacket, jeans, and had distinctive hair, enter Thorpe’s car and

      drive off. The jury found Butler guilty of both counts. He was sentenced to

      time served for the Level 6 felony conviction and the trial court dismissed the

      Class A misdemeanor citing “double jeopardy” reasons. (Tr. 181). Butler now

      appeals.


                                                      Decision

[8]   Butler maintains that the trial court abused its discretion when it allowed four

      witnesses to testify about the contents of an unavailable surveillance video.

      Specifically, Butler contends that the State’s witnesses’ testimony was admitted

      in violation of his due process rights because the State failed to preserve the

      surveillance video upon which their testimony is predicated.


[9]   The admission and exclusion of evidence falls within the sound discretion of

      the trial court, and we review the admission of evidence only for an abuse of

      discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

      discretion occurs when the trial court’s decision is clearly against the logic and




      2
       In open court, the trial court denied Butler’s motion to exclude. As a result, it noted his continuing
      objection to the witnesses’ testimony throughout the trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018                  Page 5 of 10
       effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,

       871 (Ind. 2012), reh’g denied.


[10]   The State argues that Butler has waived appellate review of his admission of

       evidence issue because he did not object at trial on the same grounds that he

       raises on appeal. We agree.


[11]   “A claim of evidentiary error may not be raised for the first time on appeal but

       rather must first be presented at trial[.]” Hunter v. State, 72 N.E.3d 928, 932

       (Ind. Ct. App. 2017), trans. denied. “The failure to make a contemporaneous

       objection to the admission of evidence at trial, so as to provide the trial court an

       opportunity to make a final ruling on the matter in the context in which the

       evidence is introduced, results in waiver of the error on appeal.” Brown v. State,

       783 N.E.2d 1121, 1125 (Ind. 2003). Additionally, “[a]ny grounds for objections

       not raised at trial are not available on appeal, and a party may not add to or

       change his grounds in the reviewing court.” Hunter, 72 N.E.3d at 932.


[12]   Here, Butler’s trial court objection was based on Indiana Evidence Rules 1004,

       1002, 403, and federal and state constitutional rights to confront the witnesses

       against him. On appeal, his challenge is based on a denial of due process.

       Because Butler objected based on different grounds than he now raises on

       appeal, he has waived review of his appellate argument regarding this

       testimony. See, e.g., Hunter, 72 N.E.2d at 932 (holding that grounds for

       objection not raised at trial are unavailable on appeal).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 6 of 10
[13]   Waiver notwithstanding, we disagree with Butler’s argument that the admission

       of the State’s witnesses’ testimony concerning their observations from the

       surveillance video violated his due process rights because the State failed to

       preserve the video. He contends that the surveillance video “would have been

       materially exculpatory, or at the very least, potentially useful evidence and that

       the State acted in bad faith in failing to preserve this evidence.” (Butler’s Br. 7).


[14]   Generally, “[a]n original writing, recording, or photograph is required to prove

       its content[,]” unless the Rules of Evidence or a statute provide otherwise. Ind.

       Evid. R. 1002. Indiana Evidence Rule 1004 provides as follows:


               An original is not required and other evidence of the content of a
               writing, recording, or photograph is admissible if: (a) all originals
               are lost or destroyed, and not by the proponent acting in bad faith; (b) an
               original cannot be obtained by any judicial process; (c) the party
               against whom the original would be offered had control of the
               original; was at that time put on notice, by pleadings or
               otherwise, that the original would be a subject of proof at the trial
               or hearing; and fails to produce it at the trial or hearing; or (d) the
               writing, recording, or photograph is not closely related to a
               controlling issue.

       (emphasis added) (format altered). At the outset we note that the trial court

       was correct in finding that Indiana Evidence Rule 1004 was applicable. Here,

       the surveillance video was either lost or destroyed and was not available for

       trial. It was permissible for Thorpe, Singh, Scruggs, and Officer Canarecci to

       testify about what they observed on the video because it was within their

       personal knowledge. See Pritchard v. State, 810 N.E.2d 758, 760-61 (Ind. Ct.

       App. 2004) (permitting the testimony recounting what witnesses saw on a jail



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 7 of 10
       surveillance video that was unavailable at trial because the testimony was

       within the personal knowledge of the witnesses).


[15]   It is well settled that a criminal defendant has the right to examine physical

       evidence in the hands of the State. Roberson v. State, 766 N.E.2d 1185, 1187

       (Ind. Ct. App. 2002), reh’g denied, trans. denied. The State’s failure to preserve

       such evidence may, under certain circumstances, constitute the denial of due

       process. Id. To determine whether a failure to preserve evidence deprives the

       defendant of due process, we first determine whether the evidence at issue was

       “‘potentially useful evidence’” or “‘materially exculpatory evidence.’” Id.

       (quoting Chissel v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied).


[16]   If the evidence was only potentially useful, the defendant must establish bad

       faith on the part of the State. Albrecht v. State, 737 N.E.2d 719, 724 (Ind. 2000)

       (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)), reh’g denied. “The United

       States Supreme Court has described potentially useful evidence as ‘evidentiary

       material of which no more can be said than that it could have been subjected to

       tests, the results of which might have exonerated the defendant.’” Roberson, 766

       N.E.2d at 1199 (quoting Youngblood, 488 U.S. at 57). To meet the standard of

       being “materially exculpatory,” the evidence at issue “‘must both possess an

       exculpatory value that was apparent before the evidence was destroyed, and be

       of such a nature that the defendant would be unable to obtain comparable

       evidence by other reasonably available means.’” Albrecht, 737 N.E.2d at 724

       (quoting Holder v. State, 571 N.E.2d 1250, 1255 (Ind. 1991)). “Exculpatory”

       evidence has been defined as “‘[c]learing or tending to clear from alleged fault

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 8 of 10
       of guilt; excusing.’’’ Albrecht, 737 N.E.2d at 724 (quoting Samek v. State, 688

       N.E.2d 1286, 1288 (Ind. Ct. App. 1997), reh’g denied, trans. denied). Unlike

       merely potentially useful evidence, the State’s good or bad faith in failing to

       preserve materially exculpatory evidence is immaterial. Roberson, 766 N.E.2d at

       1188.


[17]   Turning to Butler’s first argument, we disagree that the surveillance video was

       potentially useful. Three of the State’s witnesses similarly testified about the

       clothing and appearance of Butler based on their viewings of the surveillance

       video, describing him as an individual with a distinctive hairstyle wearing a

       brown jacket and blue jeans. Two of the State’s witnesses identified Butler the

       same evening of the theft. The witnesses also positively identified Butler and

       his brown jacket at trial. We cannot say that the surveillance video might have

       exonerated Butler.


[18]   Even assuming the surveillance video was potentially useful, Butler has failed to

       carry his burden of demonstrating bad faith on the part of the State. Bad faith is

       defined as being “‘not simply bad judgment or negligence, but rather implies the

       conscious doing of wrong because of dishonest purpose or moral obliquity.’”

       Samek, 688 N.E.2d at 1289 (quoting BLACK’S LAW DICTIONARY 139 (6th ed.

       1990)). Our review of the record reveals that the handling and collection of the

       evidence in this case was certainly not a perfect example of law enforcement

       procedure. Indeed, even the State acknowledges that “[a]t most, [Butler] could

       accuse the police of negligence in failing to ensure the preservation of the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018   Page 9 of 10
       surveillance video.” (State’s Br. 17). However, nothing in the record suggests

       any conscious doing of wrong by the State.


[19]   Butler next argues that the surveillance video was materially exculpatory. We

       disagree. While a defendant is not required to prove conclusively that the

       destroyed evidence was exculpatory, there must be some indication that the

       evidence was exculpatory. Chissell, 705 N.E.2d at 504. We cannot assume that

       the destroyed evidence contained exculpatory material when the record is

       devoid of such indication. Id. Here, the record is devoid of any indication that

       the surveillance video was exculpatory, and Butler provides no evidence of

       such.3 We conclude that the surveillance video does not rise to the level of

       materially exculpatory evidence. Accordingly, we find that Butler has failed to

       prove a due process violation, and we conclude that the trial court did not abuse

       its discretion by allowing the State’s witnesses to testify.


[20]   Affirmed.


       Najam, J., and Crone, J., concur.




       3
        Our appellate rules require that each contention made in the argument section of an appellant’s brief “must
       contain the contentions of the appellant on the issues presented, supported by cogent reasoning.” Ind.
       Appellate Rule 46(A)(8)(a). In his brief, Butler failed to satisfy Indiana Appellate Rule 46’s requirement of
       providing a cogent argument by failing to provide citation to relevant authority. This hindered our review
       and resulted in waiver of appellate review of his argument. See Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind.
       Ct. App. 2016) (waiving a defendant’s sentencing argument where he failed to provide a cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1399 | November 21, 2018               Page 10 of 10
