MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               May 24 2016, 9:40 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                          Gregory F. Zoeller
Bargersville, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Brett Conover,                                           May 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1506-CR-513
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara
Appellee-Plaintiff.                                      Harcourt, Senior Judge
                                                         Trial Court Cause No.
                                                         73D01-1406-FD-195



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016            Page 1 of 15
                               Case Summary and Issues
[1]   Following a bench trial, Brett Conover was convicted of perjury, a Class D

      felony. Conover appeals, raising four issues for our review, two of which we

      find dispositive: (1) whether the admission of certain hearsay testimony

      constituted fundamental error; and (2) whether the evidence is sufficient to

      support his conviction for perjury. Concluding the evidence is insufficient

      because the admission of hearsay testimony constituted fundamental error, we

      reverse and remand.



                            Facts and Procedural History
[2]   On April 26, 2012, Capital One Bank (“Capital One”) filed a small claims

      action against Conover to recover an unpaid credit card balance of $1,094.07.

      The account ending in 8928 was in Conover’s name and referenced his address,

      date of birth, and Social Security number, yet he disclaimed responsibility for

      the account. Conover defended the small claims action pro se and was the only

      witness who testified at a trial held on October 22, 2012. Although the account

      statements had been sent to Conover’s address for several years, and payments

      had been made on the account every month from November 2008 to February

      2011, Conover claimed he “never had an account with Capital One” and “never

      had any dealings with Capital One in [his] life.” State’s Ex. 1 at 5, 7.

      Conover maintained he “never used a Capital One card” and denied making

      any of the purchases charged to the account. Id. at 10. The small claims court

      admitted the billing records over Conover’s objection but noted “if we were in

      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 2 of 15
      regular court I think you would be . . . in a world of hurt as far as hearsay . . . .”

      Id. at 18; see also Ind. Small Claims Rule 8(A) (stating small claims proceedings

      shall not be bound by the rules of evidence except provisions relating to

      privileged communications and offers of compromise).

[3]   The small claims court suspected a member of Conover’s household was

      responsible for the charges:


               [Court:]        Who lives with you during this period of time?
                               Who lived with you?

              [Conover:]       My son lives with me now.

              [Court:]         No, that wasn’t my question. Not now, during this
                               period of time when this credit card was out there
                               ....

              [Conover:]       Well, probably my ex-wife and my son.

              [Court:]         What were their names?

              [Conover:]       Tracy Conover and my son’s name is Chris. . . .

              [Court:]         If it turns out that Chris was doing this, had stolen
                               your identity, did he have your authority to do that?

              [Conover:]       I, I would, Chris wouldn’t steal my identity.

              [Court:]         I understand. We would like, we certainly like to
                               think our, our children wouldn’t do that [to] us.
                               But did he have your authority to do this, yes or no?

              [Conover:]       I, I, I don’t understand what you mean. . . .


      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 3 of 15
        [Court:]         Well, here’s what I’m, this is my feeling on it.
                         Either you have absolutely no knowledge of this . . .
                         You’re completely innocent and if that is the case
                         then somebody in your household has done
                         something wrong and has stolen $1,000.00 from
                         MasterCard or from Capital One, and I’m gonna
                         turn this over to the Police Department, Sheriff’s
                         Department and ask them to investigate for a felony
                         fraud or theft . . . . Number two is that you knew
                         this was going on and . . . you just kinda played a
                         part in it and maybe you thought you’d just be able
                         to disclaim it in the end, and so you’re somewhat
                         complicit in it. Those, in my mind, are the only two
                         alternatives we have here. Number one is . . . you
                         go free, but maybe some of your family doesn’t
                         down the road. Number two is . . . you go free and
                         some of your family goes free, but you owe the debt
                         to the folks over here, Capital One Bank. Do you
                         have a preference, number one or number two?

        [Conover:]       I have no knowledge . . . .

        [Court:]         Okay. So let me ask you again. If your son had
                         taken your identity and used this was that without
                         your, your permission?

        [Conover:]       My, my son wouldn’t, wouldn’t take my identity.

        [Court:]         I’m gonna ask you again. If your son had taken this
                         and used this, your information . . . was that
                         without your permission? That’s a yes or no
                         answer, Mr. Conover.

        [Conover:]       If he would have taken it I, I would gave [sic] him
                         permission, but I, I know he didn’t.

        [Court:]         You understand you’re under oath?

Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 4 of 15
        [Conover:]       Yes, I do.

        [Court:]         Okay, and you understand by being under oath that
                         you are, if it turns out that you are basically not
                         telling the truth to the Court, that you could be
                         charged with a “C” felony? Do you understand
                         that?

        [Conover:]       Yes.

        [Court:]         And a “C” felony is ranged from two years to eight
                         years in prison. Do you understand that?

        [Conover:]       Yes.

        [Court:]         Okay. So I’m gonna ask you one more time, did
                         you give your son permission to use your
                         identifying information during this period of time,
                         yes or no?

        [Conover:]       Yes.

        [Court:]         You did. Okay. So, this is your son . . . acting as
                         you, is that what happened here?

        [Conover:]       Yeah.

        [Court:]         What purpose did you give him your identifying
                         information then to use?

        [Conover:]       I, you, you got me kinda confused. I, I never gave
                         anybody permission to, to do anything. But my
                         son would, would have never taken any of my
                         identity.

        [Court:]         Well, you don’t know that. I mean this could be

Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 5 of 15
                               pretty easy . . . all the Prosecutor has to do is
                               subpoena these records and they’re gonna figure out
                               pretty quickly who ordered these things and where
                               they came to, where they were shipped to . . . . It’s
                               gonna be pretty easy to figure that out. So, I’m just
                               trying to save some work at the front end here. . . .
                               Did [your son] have permission to apply for credit
                               in your name?

              [Conover:]       No.

              [Court:]         Did he have permission to use any of your
                               identifying information to apply for this credit card?

              [Conover:]       No.

              [Court:]         Anybody else in your household?

              [Conover:]       No.


      Id. at 20-24.


[4]   Ultimately, the small claims court found in favor of Conover but noted it would

      be referring the matter to the Shelby County Prosecutor’s Office:


              I certainly do not want to be a party to anybody having to pay
              debts that they don’t owe. . . . But I find it highly suspicious that
              not only were charges made, but payments were made. . . .
              Something is fishy here. I was a prosecutor for a long time. This
              isn’t right. This, something’s not right here and I’m gonna ask
              that they get to the bottom and find out.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 6 of 15
      Id. at 25.1 The prosecuting attorney referred the case to Detective Dan Crafton

      of the Shelby County Sheriff’s Office. Detective Crafton obtained records from

      Capital One for the account ending in 8928, which showed a mixture of online

      and local transactions. One of the local transactions was a $27.77 charge on

      January 3, 2009, which appeared to be paid to Peoples Heating and Cooling

      (“Peoples”) in Shelbyville, Indiana. Detective Crafton went to Peoples on

      November 8, 2012, to inquire about the transaction. He learned Peoples shares

      a credit card machine with Drake’s Electric (“Drake’s”) and the transaction in

      question was a payment made to Drake’s. He also learned Drake’s retains the

      receipts for its credit card transactions.


[5]   Drake’s provided Detective Crafton with the original receipt for the $27.77

      transaction, signed by “Brett Conover.” Transcript at 41-42. Thereafter,

      Detective Crafton obtained a verified motion Conover filed in the small claims

      action, as well as records from the Indiana Bureau of Motor Vehicles (“BMV”)

      containing Conover’s signature. He submitted these documents to the Indiana




      1
        Rule 1.2 of the Indiana Code of Judicial Conduct provides, “A judge shall act at all times in a manner that
      promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid
      impropriety and the appearance of impropriety.” Similarly, Rule 2.2 requires judges to “perform all duties of
      judicial office fairly and impartially.” By engaging in an extended cross-examination of Conover, presenting
      Conover with an ultimatum, threatening prosecution for perjury, referencing his own prior experience as a
      deputy prosecutor, and then stating he would be referring the matter to the prosecuting attorney, Judge David
      Riggins crossed the line between neutral magistrate and zealous advocate. See Meyers v. State, 266 Ind. 513,
      517, 364 N.E.2d 760, 763 (1977) (“It is the function of the prosecuting attorney, not the court, to investigate
      crimes and bring criminal charges. The practice of the court threatening a witness with perjury charges during
      trial poses unnecessary dangers to the integrity of the trial and to public respect for the courts even in non-
      jury trials . . . .”). Although we do not believe Judge Riggins’s remarks during the small claims proceeding
      constituted fundamental error in the criminal proceeding, we cannot ignore his highly inappropriate
      behavior.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016                 Page 7 of 15
      State Police Laboratory for comparison to the receipt. Based on Conover’s

      known signatures on the motion and BMV records, a forensic document

      examiner concluded Conover also wrote the signature on the receipt. Capital

      One did not cooperate in the investigation.


[6]   On June 11, 2014, the State charged Conover with perjury, a Class D felony. A

      bench trial was held on March 15, 2015. The State called the small claims

      judge, the owner of Drake’s, Detective Crafton, and the forensic document

      examiner. Brent Drake, the owner of Drake’s, explained the operation of the

      credit card machine, stated his company retains all the receipts for credit card

      transactions, and described the information printed on the receipt signed by

      Conover:

              [Drake:]         Says Drake’s Supply 1310 Jefferson Avenue,
                               Shelbyville Indiana 46176. 317-421-2600. The date
                               is January the 3rd of 2009 at 11:11 a.m. It was a
                               sale, transaction #4, put on a MasterCard ending in
                               8928. It was swiped, . . . which means it was r[u]n
                               through the machine for $27.77. And then there’s a
                               reference number, 000004, authorization code was
                               078212 and the response from the credit card
                               company was approved. And then we asked for his
                               signature on it.

              [State:]         All right. Is there a signature on it as well?

              [Drake:]         Yes there is.

              [State:]         Okay. And you said the account number ends in
                               8928, how much of the account number are you
                               able to read?

      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 8 of 15
              [Drake:]         That’s it, the rest of it’s all stars.


      Tr. at 41-42. On cross-examination, Drake admitted the receipt did not reveal

      which bank issued the credit card and further that he had no independent

      recollection of the transaction. The trial court admitted the receipt over

      Conover’s hearsay objection.


[7]   Detective Crafton testified he contacted Peoples due to the billing records for

      the Capital One account ending in 8928, which were admitted into evidence

      during the small claims trial without a business records affidavit or the

      testimony of a Capital One representative:


              [State:]         [W]hat documents lead you to ask for [the]
                               receipt[?]

              [Detective:] The billing records from the credit card.


              [State:]         Okay. The billing records on the account ending in
                               8928?

              [Detective:] That is correct.

              [State:]         And that’s billing records that also showed Mr.
                               Conover’s name, address and so on?

              [Detective:] Correct.

              [State:]         Okay. And, I think you said it was January 3rd,
                               2009, was that the date on the billing record . . . .

              [Detective:] Correct. A purchase was made there on that date.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 9 of 15
              [State:]         And does the receipt match up with what the billing
                               records had shown?

              [Detective:] It did.

              ***
              [State:]         And that’s on the exact account that under the
                               [small claims] transcript . . . the defendant was
                               asked about, have you ever had a card or used a
                               card?

              [Detective:] Correct.

              [State:]         And the documents that you had that led you to go
                               to People’s also [had] this same entire account
                               number, is that correct?

              [Detective:] I believe so.


      Id. at 84-85. The billing records Detective Crafton referred to in his testimony

      were not admitted into evidence during the criminal trial.

[8]   The trial court found Conover guilty of perjury and ordered Conover to serve

      365 days in the Department of Correction, all suspended to probation, with

      sixty days on home detention and twenty hours of community service. This

      appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 10 of 15
                                  Discussion and Decision
                                   I. Admission of Evidence
                                       A. Standard of Review
[9]    Conover contends Detective Crafton’s testimony describing the billing records

       constituted inadmissible hearsay because the statements were not admitted into

       evidence during the criminal trial. A trial court has broad discretion in ruling

       on the admissibility of evidence. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.

       2011). Although we generally review the trial court’s rulings for abuse of

       discretion, id., a defendant’s failure to raise a contemporaneous objection at

       trial waives the issue for appeal, Delarosa v. State, 938 N.E.2d 690, 694 (Ind.

       2010). Conover concedes he failed to object to Detective Crafton’s testimony at

       trial but argues the admission of his testimony was fundamental error.


[10]   A claim waived by a defendant’s failure to object can be reviewed on appeal if

       the reviewing court determines fundamental error occurred. Id. “The

       ‘fundamental error’ exception is extremely narrow, and applies only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The exception

       is “available only in egregious circumstances.” Brown v. State, 799 N.E.2d 1064,

       1068 (Ind. 2003).




       Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 11 of 15
                                        B. Hearsay Testimony
[11]   Hearsay is an out-of-court statement offered into evidence to prove the truth of

       the matter asserted. Evid. R. 801(c). Hearsay is inadmissible unless it falls

       under a recognized exception. Evid. R. 802. Summarizing the content of an

       out-of-court statement is “hearsay evidence in its classic form[,]” Tessely v. State,

       432 N.E.2d 1374, 1376 (Ind. 1982), and permits the admission of evidence that

       is otherwise inadmissible, Thornton v. State, 25 N.E.3d 800, 804 (Ind. Ct. App.

       2015). In this case, Detective Crafton testified to the content of credit card

       statements that were never admitted into evidence, and this testimony was the

       only evidence in the criminal proceeding linking Conover to a Capital One

       credit card account ending in 8928. The receipt admitted into evidence listed the

       last four digits of the account number and showed the credit card was a

       MasterCard, but it did not show which bank issued the credit card. Because the

       testimony was clearly hearsay and the prosecution hinged on the State proving

       Conover had an account with Capital One, or at least used the Capital One

       card in question, the admission of Detective Crafton’s hearsay testimony

       violated basic principles of due process and constituted fundamental error.


                                  II. Sufficiency of Evidence
                                       A. Standard of Review
[12]   In reviewing the sufficiency of the evidence to support a conviction, we neither

       reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

       N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the


       Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 12 of 15
       judgment and any reasonable inferences drawn therefrom. Id. We will affirm

       the conviction “if there is substantial evidence of probative value supporting

       each element of the crime from which a reasonable trier of fact could have

       found the defendant guilty beyond a reasonable doubt.” Walker v. State, 998

       N.E.2d 724, 726 (Ind. 2013) (citation omitted).


                                                  B. Perjury
[13]   A person commits perjury when he or she “makes a false, material statement

       under oath or affirmation, knowing the statement to be false or not believing it

       to be true[.]” Ind. Code § 35-44.1-2-1(a)(1) (2012). The statement must be clear

       and direct, not implied or suggested. Barker v. State, 681 N.E.2d 727, 729 (Ind.

       Ct. App. 1997). The materiality element is satisfied if the statement is

       “reasonably calculated to mislead an investigation.” Daniels v. State, 658 N.E.2d

       121, 123 (Ind. Ct. App. 1995). Mere confusion or inconsistency is

       insufficient. Id.


[14]   In the present case, the State alleged Conover made false, material statements

       during the small claims trial when he claimed he never had an account with

       Capital One, never used a Capital One card, and never had any dealings with

       Capital One. As stated above, it was fundamental error to admit Detective

       Crafton’s testimony summarizing the content of the credit card statements

       because his testimony was the only evidence in the criminal proceeding linking

       Conover to the Capital One account ending in 8928. Without evidence

       showing Capital One issued a MasterCard in Conover’s name under an account


       Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 13 of 15
       number ending in 8928, the State did not prove Conover made false statements

       with respect to Capital One. The State only proved Conover signed a receipt

       for a MasterCard transaction with Drake’s on January 3, 2009. Accordingly,

       the error was not harmless, and the evidence is insufficient to prove Conover

       made a false, material statement under oath. See Speybroeck v. State, 875 N.E.2d

       813, 822 (Ind. Ct. App. 2007) (“The improper admission of evidence is

       harmless only when the conviction is supported by substantial independent

       evidence of guilt that satisfies the reviewing court that there is no substantial

       likelihood that challenged evidence contributed to the conviction.”).


[15]   However, “[p]rinciples of double jeopardy generally do not bar a retrial on the

       same crimes when reversal is required due to trial error in the admission of

       evidence.” Id. If all the evidence, even that erroneously admitted, is sufficient

       to support the trial court’s judgment, double jeopardy does not bar retrial on the

       same charge. Id. 2 When we consider all the evidence presented at trial,

       including Detective Crafton’s improperly admitted testimony, we conclude

       there was sufficient evidence from which the trial court could have found

       Conover guilty of perjury. We therefore remand for a new trial.




       2
         On page twenty of his appellant’s brief, Conover incorrectly cites Stahl v. State, 686 N.E.2d 89 (Ind. 1997),
       for a contrary proposition. The quotation that appears in his brief is actually language from Serrano v. State,
       808 N.E.2d 724, 728 (Ind. Ct. App. 2004), an opinion our supreme court specifically disapproved in Jaramillo
       v. State, 823 N.E.2d 1187, 1190 n.5 (Ind. 2005). We remind counsel of her duty of candor toward this court
       under Indiana Professional Conduct Rule 3.3.


       Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016                 Page 14 of 15
                                               Conclusion
[16]   Because the admission of Detective Crafton’s testimony summarizing the

       content of out-of-court statements constituted fundamental error, the evidence

       is insufficient to support Conover’s conviction for perjury. We therefore reverse

       but remand for a new trial because we also conclude double jeopardy does not

       bar retrial on the perjury charge.


[17]   Reversed and remanded.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1506-CR-513 | May 24, 2016   Page 15 of 15
