Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 Nov 14 2013, 5:31 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:

NICOLE A. ZELIN                                         GREGORY F. ZOELLER
Greenfield, Indiana                                     Attorney General of Indiana

                                                        RYAN D. JOHANNINGSMEIER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

DONALD WARREN,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 30A01-1301-CR-16
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HANCOCK SUPERIOR COURT
                            The Honorable Terry K. Snow, Judge
                              Cause No. 30D01-1203-FB-399


                                        November 14, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Donald Warren (“Warren”) was convicted of Burglary1 and Conspiracy to Commit

Burglary,2 each as a Class B felony. He now appeals.

          We affirm.

                                               Issues

          Warren presents two issues for our review:

            I.    Whether the trial court abused its discretion when, upon the State’s
                  objection to a line of questioning, it limited the scope of Warren’s
                  cross-examination of a law enforcement officer about Warren’s
                  statements to police; and

           II.    Whether there was sufficient evidence to sustain his convictions.

                                    Facts and Procedural History

          Sometime in November 2011, Warren met Nicholas Tate (“Tate”) and Michael

Williams (“Williams”) at Williams’s home in Indianapolis. Warren and Tate were friends

and consumed narcotics together. Tate had stolen electronics from Williams, and Williams

in turn had coerced Tate into helping him perform burglaries. Among the possible targets for

burglaries was the home of Gregory Peek (“Peek”), in New Palestine; Tate’s father was

friends with Peek, who owned a construction business and had traded guns with Tate’s

father. Tate said Peek’s home would likely have guns, money, and marijuana. Warren

expressed interest in obtaining marijuana from Peek’s home.

          During the morning of December 8, 2011, Warren and Williams travelled to Tate’s


1
    Ind. Code § 35-43-2-1(1).

2
    I.C. §§ 35-43-2-1(1) & 35-41-5-2.

                                                 2
home in Williams’s car. Williams went inside, convinced Tate to come out, and the three got

into Tate’s girlfriend’s car; Tate was in the driver’s seat, Williams was in the front passenger

seat, and Warren sat in the back seat. The three then drove to Peek’s home in New Palestine.

       During the drive, Tate and Williams discussed how they would approach the burglary.

Tate agreed to knock on the front door of Peek’s residence to see if he was home; if Peek

answered the door, Tate would claim that he was looking for a job with Peek’s company.

       The three arrived at Peek’s home; Tate approached the house and knocked on the front

door. Peek was sleeping at his home when he heard Tate’s knock. Looking down from a

second-floor window, Peek saw an individual wearing a dark sweatshirt, but did not

recognize Tate. Peek did not answer the door and went back to bed.

       Tate and Williams had planned to break into the residence if Peek did not answer.

The three men saw one of Peek’s neighbors outside, however, and so the three drove away

and attempted to find another route to Peek’s home. Failing in this, they returned about a

half-hour later. This time, Tate drove toward the side of the home, and all three men exited

the car. Williams approached a utility door and kicked it open; Williams and Tate entered

Tate’s home.

       Peek awoke to the sound of banging and chairs moving on a tile floor; he realized

there were people in his house. Peek ran downstairs. As he reached the foot of the stairs, he

saw an individual later identified as Williams holding a gun, shouted, and fled out the front

door of his house and around the side of the building. Once outside, Peek saw a gray car

with three doors open. He saw two individuals, later identified as Warren and Tate, run


                                               3
toward the car, get in, and drive away from the scene. Williams fled the property on foot and

was arrested soon after, but not before calling and sending text messages to Warren’s cellular

telephone; Warren and Tate had Williams on the line at the moment of Williams’s arrest.

       Tate and Warren returned to Indianapolis. Warren was concerned that Tate’s

girlfriend’s vehicle would be traced to the burglary, and so the pair abandoned the car at a

construction site and walked to a nearby gas station where they purchased food and drinks.

Each then eventually returned home; Tate was arrested the same day.

       On December 15, 2011, Captain Kevin Haggard (“Captain Haggard”) of the Hancock

County Sheriff’s Office contacted Warren to question him about his involvement with the

burglary of the Peek residence. Warren denied any involvement or even having left

Indianapolis on December 8, 2011, but provided Captain Haggard with his cell phone

number. The cell phone number was used to track Warren’s use of his phone on the day of

the burglary, and it was determined that Warren’s phone had been used in New Palestine near

Peek’s home at the time of the burglary.

       Based upon this information, on March 23, 2012, Warren was charged with Burglary

and Conspiracy to Commit Burglary, and was subsequently arrested. On May 16, 2012,

Captain Haggard again interviewed Warren. After Captain Haggard confronted him with the

results of the cell phone tower trace, Warren admitted to having been present during the

burglary, to having met with Tate and Williams several weeks before to discuss breaking into

Peek’s home, and to having expressed interest in obtaining marijuana during the break-in.

       Before the trial, Warren filed a motion in limine seeking to exclude from evidence


                                              4
certain statements he had made in his second interview with Captain Haggard. The trial

court preliminarily ruled that such evidence should be excluded.

       A jury trial was conducted on October 15 and 16, 2013. During the trial, Captain

Haggard testified concerning Warren’s statements during the May 16, 2012 interview.

During Warren’s cross-examination of Captain Haggard, Warren sought to elicit testimony

that he contended was exculpatory and claimed was necessary to fully convey the content of

his statements during the interview. The State objected on hearsay grounds, and, after a brief

hearing out of the jury’s presence, the trial court granted the State’s objection. In its ruling,

the court concluded that hearsay rules would be violated by admission of the additional

statement. The court also noted that the statements might venture into areas that had been

preliminarily excluded by the court’s ruling in limine, could be highly prejudicial to Warren’s

case, and could in any case not properly be admitted into evidence without Warren testifying

on his own behalf.

       At the conclusion of the trial, the jury found Warren guilty of both Conspiracy to

Commit Burglary and Burglary. On November 20, 2012, a sentencing hearing was

conducted, during which the trial court entered judgments of conviction against Warren and

sentenced him to twelve years imprisonment each for the convictions for Burglary and

Conspiracy to Commit Burglary. The two sentences were run concurrently, yielding an

aggregate term of imprisonment of twelve years.

       This appeal ensued.




                                               5
                                  Discussion and Decision

                                Scope of Cross-Examination

       Warren first contends that the trial court improperly limited the scope of his cross-

examination of Captain Haggard concerning statements Warren made during their second

interview on May 16, 2012.

       Trial courts are afforded broad discretion in ruling on evidentiary matters, and we will

reverse such a ruling only for an abuse of discretion. Paul v. State, 971 N.E.2d 172, 175 (Ind.

Ct. App. 2012). An abuse of discretion occurs when the trial court’s decision is contrary to

the logic and effect of the facts and circumstances before it. Id. We look only to the

evidence that favors the trial court’s ruling and any unrefuted evidence in the appellant’s

favor. Id. However, we will not reverse the trial court’s judgment where the court’s error

was harmless, that is, where the error did not prejudice the substantial rights of a party. Ind.

Trial Rule 61; Jones v. State, 982 N.E.2d 417, 429 (Ind. Ct. App. 2013), trans. denied.

       A party seeking to appeal an evidentiary ruling must ordinarily preserve that error for

appellate review. Watson v. State, 972 N.E.2d 378, 387 (Ind. Ct. App. 2012). Where a party

contends that evidence was wrongly excluded, the matter must be preserved for appellate

review through an offer of proof that makes known to the court the substance of the evidence

for which a party seeks admission. Ind. Evidence Rule 103(a)(2). Failure to preserve a

record for appellate review results in waiver. Watson, 972 N.E.2d at 387.

       Here, on cross-examination Warren sought to elicit testimony from Captain Haggard

concerning allegedly exculpatory statements Warren made during the May 16, 2012


                                               6
interview about not wanting to return to Peek’s house. The State objected on hearsay

grounds.   Warren argued that Captain Haggards’s testimony, as elicited upon direct

examination by the State, was selective of portions of Warren’s statements during the

interview. The trial court sustained the State’s objection, observing that the hearsay rule

required exclusion of the alleged exculpatory statement absent Warren’s testimony during the

trial. The court also observed that admitting the remainder of Warren’s statements during the

May 16, 2012 interview would result in the jury being exposed to highly prejudicial evidence

that the court had, upon a motion in limine, already ruled as inadmissible under Evidence

Rule 404(b).

       The State contends that Warren’s argument in this regard is waived on appeal for

failure to make a proper offer of proof. Our review of the record reveals that the basis for the

State’s objection and Warren’s opposition to that objection are sufficiently clear to have

preserved the matter for our review. Accordingly, we cannot conclude that Warren failed to

properly preserve this matter for appeal.

       We thus turn to the substance of the trial court’s ruling. Warren contends that the trial

court’s ruling, which precluded him from eliciting testimony on cross-examination

concerning his own exculpatory statements to police, was an abuse of discretion under the

doctrine of completeness. Our supreme court has explained that a defendant who does not

testify at trial generally cannot, to enhance his credibility at trial, introduce out-of-court

exculpatory statements. Sweeney v. State, 704 N.E.2d 86, 110 (Ind. 1998); Canaan v. State,

541 N.E.2d 894, 904 (Ind. 1989). However, the doctrine of completeness requires that


                                               7
“‘[w]hen one party introduces part of a conversation or document, [the] opposing party is

generally entitled to have the entire conversation or entire instrument placed into evidence.’”

Sweeney, 704 N.E.2d at 110 (quoting McElroy v. State, 553 N.E.2d 835, 839 (Ind. 1990)).

The remainder of the document or conversation is “‘subject to the general rules of

admissibility … and any portions found immaterial, irrelevant, or prejudicial must be

redacted.’” Id. (quoting Evans v. State, 643 N.E.2d 877, 881 (Ind. 1994)). This rule “applies

even for self-serving hearsay statements.” Id. And “‘[i]n balancing the potential harm

resulting from the introduction of self-serving hearsay against that resulting from the

exclusion of relevant portions of prior statements,’” our supreme court has found persuasive

Trial Rule 43’s policy that “‘favors the reception of evidence.’” Id. (quoting McElroy, 553

N.E.2d at 839-40, and citing T.R. 43(A)).

       Nevertheless, the court observed that while Warren sought to introduce a potentially

exculpatory statement by admitting into evidence more of the content of the interview with

Captain Haggard, substantial portions of the interview were subject to exclusion from

evidence because of their highly prejudicial nature under Evidence Rule 404(b). Specifically,

significant portions of the interview related to Warren’s involvement in at least one other

burglary committed along with Tate and Williams. And the trial court observed that “[t]here

is no one in this room that doesn’t know there’s a lot of things being left out in that

conversation and a lot of them you don’t want in.” (Tr. at 201.) The trial court thus excluded

other portions of Warren’s statement in order to prevent the admission of evidence that was

highly prejudicial to Warren. Based upon this rationale, we cannot conclude that the trial


                                              8
court’s ruling was an abuse of discretion.

       Even if the trial court’s decision had been erroneous, however, any such error was

harmless. For in addition to Captain Haggard’s testimony concerning Warren’s admission to

involvement in the planning and commission of the break-in at Peek’s residence, Tate

testified that Warren was involved in planning and committing the offense. Tate further

testified that he had offered to give false exculpatory evidence on Warren’s behalf. Based

upon the existence of independent evidence of Warren’s guilt, we find as harmless any error

that may have arisen from the trial court’s ruling.

                                Sufficiency of the Evidence

       We turn now to Warren’s other contention on appeal, that there was insufficient

evidence admitted at trial to sustain his convictions for Burglary and Conspiracy to Commit

Burglary, as charged.

       Our standard of review in such matters is well settled. We consider only the probative

evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh evidence. Id. We

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

crime proven beyond a reasonable doubt.’” Id. (quoting Jenkins v. State, 726 N.E.2d 268,

270 (Ind. 2000)). “‘The evidence is sufficient if an inference may reasonably be drawn from

it to support the verdict.’” Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App.

2001)).

       Warren was charged with Burglary, as a Class B felony, and Conspiracy to Commit


                                              9
Burglary, also as a Class B felony. To obtain a conviction for Burglary, as charged, the State

was required to prove beyond a reasonable doubt that on December 8, 2011, Warren broke

into and entered Peek’s home, with the intent to commit theft while therein. I.C. § 35-43-2-

1(1); App’x at 7. To obtain a conviction for Conspiracy to Commit Burglary, the State was

required to prove beyond a reasonable doubt that on December 8, 2011 Warren agreed with

Williams and/or Tate to commit Burglary, and that Tate and/or Williams performed an overt

act in furtherance of the agreement, specifically that Tate drove to Peek’s home and Williams

kicked in the back door of the residence. I.C. §§ 35-43-2-1(1) & 35-41-5-2; App’x at 7.

       In his brief, Warren specifically addresses the sufficiency of the evidence as to his

intent to commit theft, as required by both charged offenses, and as to his “inclusion in a

conspiracy to commit burglary.” (Appellant’s Br. at 10.)

       Turning first to the question of intent, whether a defendant had the intent to commit a

felony may be inferred from the circumstances, “but some fact in evidence must point to an

intent to commit a specific felony.” Freshwater v. State, 853 N.E.2d 941, 943 (Ind. 2006)

(citations and quotations omitted). Breaking and entering alone are not sufficient to prove

the requisite intent to commit burglary; neither is the mere fact of flight, though a

combination of factors may establish the requisite intent. Id. Breaking and entering together

with flight “are not probative unless tied to some other evidence which is strongly

corroborative of the actor’s intent.” Id. (citations and quotations omitted). Such evidence

need not be insurmountable, but must provide a solid basis to support a reasonable inference

of intent to commit the underlying felony. Id.


                                             10
       Here, Warren admits that he was present during the break-in at Peek’s home. He

admits as well that he fled from the home along with Tate. During the May 16, 2012

interview with Captain Haggard, Warren admitted that he was interested in obtaining

marijuana from Peek’s home, and knew that Tate and Williams sought guns, drugs, and

money. Tate testified that Warren was present and involved with planning the burglary of

Peek’s home, and admitted to writing a letter to Warren promising to falsely testify that

Warren was asleep in the car throughout the trip to burglarize the home in New Palestine.

This is sufficient evidence for a reasonable fact-finder to conclude beyond a reasonable doubt

that Warren had the requisite intent to commit Burglary, as charged.

       We turn now to Warren’s other contention, that there was insufficient evidence to

support his conviction for Conspiracy to Commit Burglary. Mere presence at a crime scene

or association with a co-conspirator is insufficient to support a conviction for conspiracy.

Porter v. State, 715 N.E.2d 868, 870 (Ind. 1999). Yet “‘[i]t is sufficient if the minds of the

parties meet understandingly to bring about an intelligent and deliberate agreement to commit

the offense.’” Id. (quoting Williams v. State, 274 Ind. 94, 96, 409 N.E.2d 571, 573 (1980)).

The existence of such an agreement may be proved either by direct or circumstantial

evidence. Wright v. State, 690 N.E.2d 1098, 1107 (Ind. 1997).

       Again, we note that Warren admitted to Captain Haggard that he was present at the

meeting during which Tate and Williams planned the burglary of Peek’s home, that he was

involved in the meeting, and that he was interested in obtaining marijuana from Peek’s

residence. Tate testified that Warren was present, and Tate’s offer to provide false testimony


                                             11
concerning Warren’s involvement in the burglary permits the inference that Warren and Tate

were both aware that Warren was not merely a bystander. And there was no evidence

admitted at trial that Warren had second thoughts or attempted in any other way to rescind his

assent to the plan to burglarize Peek’s home.3 We conclude that this evidence, taken together

with the inferences flowing from it that favor the verdict, was sufficient to support Warren’s

conviction for Conspiracy to Commit Burglary. We therefore find no reversible error, and

affirm Warren’s convictions.

                                                Conclusion

        The trial court did not abuse its discretion when it ruled as inadmissible Warren’s

allegedly exculpatory hearsay statement during his interview with police. There was

sufficient evidence to support Warren’s convictions for Burglary and Conspiracy to Commit

Burglary.

        Affirmed.

MAY, J., and BRADFORD, J., concur.




3
 Even if the trial court had admitted Warren’s exculpatory statement concerning his desire to abandon his
participation in the conspiracy to burglarize Peek’s home, we have already concluded that the exclusion of that
evidence was harmless error. And our standard of review in sufficiency matters would preclude us from
considering that evidence in any case, as it is does not support the jury’s verdict.

                                                     12
