MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Nov 22 2019, 7:38 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bruce E. Andis                                          Curtis T. Hill, Jr.
Lawrence County Public Defender                         Attorney General of Indiana
Agency
                                                        Samantha M. Sumcad
Bedford, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Larry Hehe,                                             November 22, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-591
        v.                                              Appeal from the Lawrence
                                                        Superior Court
State of Indiana,                                       The Honorable John M. Plummer,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        47D01-1803-F3-411



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019              Page 1 of 10
                                Case Summary and Issue
[1]   Following a bench trial, Larry Hehe was found guilty of dealing in

      methamphetamine, a Level 3 felony; possession of a narcotic drug, a Level 6

      felony; possession of marijuana, a Class A misdemeanor; and possession of

      paraphernalia, a Class C misdemeanor. For these convictions, Hehe was

      sentenced to a total of nine years in the Indiana Department of Correction.

      Hehe appeals his conviction of dealing in methamphetamine, raising one issue

      for our review: whether the trial court erred by admitting State’s Exhibit 10 into

      evidence over Hehe’s hearsay objection. Concluding the trial court abused its

      discretion in admitting inadmissible hearsay but that such error was harmless,

      we affirm.



                            Facts and Procedural History
[2]   Around 10:30 p.m. on March 10, 2018, Hehe was pulled over by Mitchell

      Police Department Officers Michael Williams and Clayton Blackburn for

      driving with a broken windshield and driving left of the center line on State

      Road 60 East in Lawrence County. Thirty seconds after the initial stop, Officer

      Shaun Cabral arrived with his K-9 partner, Edo, to assist. Edo was certified to

      detect methamphetamine, heroin, cocaine, crack cocaine, and marijuana.


[3]   After Hehe was pulled over, he exited the vehicle and began walking toward the

      officers with his hands in his pockets. The officers instructed Hehe to remove

      his hands from his pockets and conducted a pat down search for weapons.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 2 of 10
      Officers then asked Hehe to produce his driver’s license. Hehe provided the

      officers with a state identification card because his driver’s license was

      suspended. When asked if there were any illegal substances in the car, Hehe

      replied, “Not that I’m aware of.” Transcript of Evidence, Volume II at 50.


[4]   Officer Cabral walked Edo around Hehe’s car to perform a canine sniff. Edo

      alerted to the back driver’s side door and back passenger’s side door, indicating

      that he smelled an illegal substance in the vehicle. Based on Edo’s alert, the

      officers searched the car. Upon searching Hehe’s car, officers found a glass pipe

      that contained methamphetamine residue, a straw used to snort

      methamphetamine, marijuana, a single pill of prescription oxycodone, and four

      plastic baggies. Two of the plastic baggies contained approximately 3.50 grams

      of methamphetamine each, the third plastic baggie contained 0.84 grams of

      methamphetamine, and the fourth plastic baggie contained .11 grams of

      methamphetamine.


[5]   Hehe was placed under arrest and found to be carrying $1,100 in cash with bills

      ranging from $20 to $100. Hehe was also carrying a cell phone. Officers

      obtained a warrant to search the contents of Hehe’s cell phone. The cell phone

      contained a string of text messages sent and received between March 6 and

      March 10, 2018, between Hehe and a phone number with an (812) area code:


              [Received (March 6, 2:24 pm):] What’s a ball


              [Sent (March 6, 2:25 pm):] Two u one seventy five



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 3 of 10
        [Sent (March 6, 2:30 pm):] 175 to you 200 to everyone else an I

        bring it ok


        [Sent (March 6, 2:33 pm):] Doesnt say if u want that or not well

        do ya


        [Received (March 6, 2:37 pm):] Yes I just took money out yes yes

        yes


        [Sent (time unknown):] Today like before lunch i could take off

        here shortly if i can take shower when get there maybe spend

        evening n leave in morn f ok lng drive u want ball rite


        [Received (March 9, 10:02 am):] Yes ball yes shower I may have

        to go to art show for harmonies tonight and I’m leaving early in

        the morning for Louisville But I’m leaving work at 11 today


        [Sent (time unknown):] You still wanna ball or need a ball try to

        do today last night was a screwed up deal I explane later


        [Received (March 10, 8:33 am):] Bring 2 F**K it But I won’t be

        home til this evening I can text when I’m headed back from

        Louisville


        [Sent (March 10, 8:35 am):] Bring two u got the cash i got the i

        cream tell me before i head ur way




Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 4 of 10
              [Received (March 10, 8:35 am):] Its really easy to get here but do u

              want 65 or back way Go to 50 and come south on 135


              [Sent (time unknown):] What time in the evening an do you want

              two of em let me know what time u be home I try be there my

              dear


              [Received (March 10, 8:41 am):] I hate to give a time because

              aren’t on schedule so idk. .but I can let u know when I am headed

              this way should be b4 6…could be in few hours idk…]


      Exhibit Index, Volume I at 12-28, State’s Exhibit 10.1


[6]   The State charged Hehe with Count I, dealing in methamphetamine, a Level 3

      felony; Count II, possession of methamphetamine, a Level 5 felony; Count III,

      possession of a narcotic drug, a Level 6 felony; Count IV, maintaining a

      common nuisance, a Level 6 felony; Count V, possession of marijuana, a Class

      A misdemeanor; and Count VI, possession of paraphernalia, a Class C

      misdemeanor. On January 23, 2019, a bench trial was held on these charges.

      The State moved to admit into evidence an exhibit containing photographs of

      the text messages found on Hehe’s phone. Hehe objected, arguing that the

      “received” messages in the text message stream were messages from an




      1
       Hehe has reproduced these text messages in his brief using blue colored type for received messages and red
      colored type for sent messages. Appellate Rule 43(C) requires a brief to be produced using black type only.
      See Stroud v. Stone, 122 N.E.3d 825, 829 n.4 (Ind. Ct. App. 2019).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019                Page 5 of 10
      unidentified third party and therefore hearsay. The State argued in response

      that the messages were “on Mr. Hehe’s phone, which indicates that he

      exercised control over them and read them and they go to his state of mind and

      his intent[.]” Tr., Vol. II at 42. The trial court overruled Hehe’s objection and

      admitted the exhibit.


[7]   After the State had presented its case-in-chief, Hehe moved to dismiss all counts

      under Indiana Trial Rule 41(B). The trial court granted his motion as to the

      charge of maintaining a common nuisance but denied the motion as to all other

      counts. At the end of the trial, the trial court found Hehe guilty of all remaining

      counts.


[8]   On February 12, 2019, a sentencing hearing was held at which the trial court

      entered judgments of conviction on Counts I, III, V, and VI. The trial court

      vacated Count II to avoid a double jeopardy issue. Hehe was sentenced to a

      total of nine years in the Indiana Department of Correction. Hehe now appeals

      his conviction of dealing in methamphetamine.



                                Discussion and Decision
                                     I. Standard of Review
[9]   Generally, the admission of evidence is within the sound discretion of the trial

      court, and we afford that discretion great deference on appeal. Hall v. State, 36

      N.E.3d 459, 466 (Ind. 2015). We therefore review a trial court’s admission of

      evidence only for an abuse of discretion. McVey v. State, 863 N.E.2d 434, 440

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 6 of 10
       (Ind. Ct. App. 2007), trans. denied. “An abuse of discretion occurs if a trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court.” Id.


[10]   We reverse a trial court’s erroneous decision to admit evidence only when the

       decision affects a party’s substantial rights. Id. However, “[a]ny error caused by

       the admission of evidence is harmless error for which we will not reverse a

       conviction if the erroneously admitted evidence was cumulative of other

       evidence appropriately admitted.” Id. In other words, “[t]he improper

       admission of evidence is harmless error when the conviction is supported by

       such substantial independent evidence of guilt as to satisfy the reviewing court

       that there is no substantial likelihood that the questioned evidence contributed

       to the conviction.” Wickizer v. State, 626 N.E.2d 795, 800 (Ind. 1993).


                                               II. Hearsay
[11]   Hehe contends the “received” text messages from the unidentified person

       constitute hearsay. “Hearsay” is defined as an out-of-court statement offered to

       prove the truth of the matter asserted. Ind. Evidence Rule 801(C). The text

       messages in question constitute out-of-court statements offered to prove the

       truth of the matter asserted, namely that Hehe intended to deliver the

       methamphetamine found in the vehicle to the unidentified person. They are,

       therefore, hearsay.


[12]   Hearsay is not admissible unless it falls within an exception to the hearsay rule.

       Evid. R. 802. The State responded to Hehe’s objection at trial by arguing that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 7 of 10
       the text messages fell within the exception found in Indiana Evidence Rule

       803(3), which creates, regardless of whether the declarant is available as a

       witness, “a hearsay exception for statements of the declarant’s then-existing

       state of mind at the time the statement was made. State of mind, as that term is

       defined, may include emotion, sensation, physical condition, intent, plan,

       motive, design, mental feeling, pain, and bodily health.” Camm v. State, 908

       N.E.2d 215, 226 (Ind. 2009). Upon hearing this argument, the trial court

       admitted the text messages over Hehe’s objection.


[13]   The State also argues on appeal that the received text messages fit within the

       exception provided by Indiana Evidence Rule 803(3) because they

       “demonstrate the purchaser’s state of mind at the time Hehe was

       communicating with him” and therefore demonstrate Hehe’s intent to deal.

       Brief of Appellee at 8.


[14]   However, Indiana Evidence Rule 803(3) applies to the declarant’s state of mind

       and cannot be used, as it was here, to prove Hehe’s intent. See Camm, 908

       N.E.2d at 226 (holding that although state-of-mind declarations are admissible

       under Rule 803(3) to prove the conduct of the declarant, “they are not

       admissible when offered to prove a third party’s conduct”). Hehe was not the

       declarant of these messages, he merely received them, and the declarant’s state

       of mind as to his or her own course of conduct is not admissible to prove

       Hehe’s conduct. The State has offered no other exception allowing for

       admission of the exhibit. Thus, the trial court erred when it allowed the text

       messages from the purchaser to be admitted into evidence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 8 of 10
                                         III. Harmless Error
[15]   Having concluded the trial court erred in admitting inadmissible hearsay, we

       address whether such error was harmless. “An error will be found harmless if its

       probable impact on the [fact finder], in light of all evidence in the case, is

       sufficiently minor that it did not affect the substantial rights of the party.”

       Simmons v. State, 760 N.E.2d 1154, 1160 (Ind. Ct. App. 2002). The substantial

       rights of a party are not affected if the conviction is supported by independent

       evidence of guilt such that there is little likelihood the challenged evidence

       contributed to the judgment. Smith v. State, 114 N.E.3d 540, 544 (Ind. Ct. App.

       2018). Further, “we will not reverse a conviction if the erroneously admitted

       evidence was cumulative of other evidence appropriately admitted.” McVey, 863

       N.E.2d at 440.


[16]   Hehe was charged with dealing in methamphetamine, which requires proof that

       he possessed methamphetamine with the intent to deliver it. Ind. Code § 35-48-

       4-1.1(a)(2)(A). He was charged with a Level 3 felony because the total amount

       of methamphetamine was at least five grams but less than ten grams. Ind. Code

       § 35-48-4-1.1(d)(1).


[17]   Leaving aside the received text messages, the State admitted evidence that

       Hehe’s vehicle contained four baggies containing a total of nearly eight grams

       of methamphetamine, $1,100 in cash, and a cellphone on which he sent text

       messages asking, “u wnt ball rite[,]” “still wanna ball or need a ball[,]” and “u

       got the cash i got the cream[.]” The last text was sent on March 10, the day


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 9 of 10
       Hehe was pulled over. This evidence is similar to that presented in Hape v. State,

       903 N.E.2d 977, 997-98 (Ind. Ct. App. 2009), trans. denied, where the court held

       that a combination of the amount of methamphetamine, the packaging of the

       methamphetamine in multiple plastic bags, a large amount of cash, and two

       cellular telephones constituted sufficient evidence to prove the defendant’s

       intent to deliver methamphetamine.


[18]   Thus, even though the trial court abused its discretion in admitting the received

       text messages, Hehe has not demonstrated the trial court committed reversible

       error because his conviction was supported by independent evidence of guilt.



                                              Conclusion
[19]   The trial court abused its discretion in admitting inadmissible hearsay but such

       error was harmless in light of the other evidence presented. Thus, we affirm

       Hehe’s conviction for dealing in methamphetamine.


[20]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-591 | November 22, 2019   Page 10 of 10
