      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                       FILED
      this Memorandum Decision shall not be
                                                                             Sep 25 2018, 10:40 am
      regarded as precedent or cited before any
      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
      Troy D. Warner                                           Curtis T. Hill, Jr.
      Deputy Public Defender                                   Attorney General of Indiana
      South Bend, Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Theodore Andrew Carney,                                  September 25, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-559
              v.                                               Appeal from the St. Joseph
                                                               Superior Court
      State of Indiana,                                        The Honorable Jeffrey L. Sanford,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause Nos.
                                                               71D03-1702-F6-139
                                                               71D03-1710-F4-53



      Rucker, Senior Judge.


[1]   A jury convicted Theodore Andrew Carney of arson for starting a fire in a dorm

      room at a residential corrections facility. He appeals contending the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018                Page 1 of 9
      erred in allowing certain testimony into evidence. We affirm the judgment of

      the trial court.


                               Facts and Procedural History
[2]   In May 2017, under terms of an agreement Carney pleaded guilty to theft as a

      Level 6 felony and was sentenced to twenty-four months in the St. Joseph

      County Community Corrections program. Carney was placed at the DuComb

      Center – a 108 bed residential facility housing misdemeanor and certain low-

      level felony offenders – and assigned to the facility’s D dormitory.


[3]   In the evening hours of August 17, 2017, while conducting a routine check, a

      DuComb Center detention officer noticed smoke coming from dormitory D.

      The South Bend Fire Department was called to the scene, located a fire in the

      ceiling of the bathroom, and extinguished the blaze. The fire caused extensive

      damage to the Center. Thereafter on October 5, 2017, the State charged Carney
                                               1
      with arson as a Level 4 felony.


[4]   A jury trial began December 19, 2017. The State’s theory of the case was that

      Carney aided a fellow resident – Austin Lamberson – in setting the fire by,

      among other things, providing Lamberson with a cigarette lighter. During trial

      and without objection the State introduced into evidence Exhibit 15. This




      1
          Ind. Code §35-43-1-1(a)(3) (2014).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018   Page 2 of 9
      exhibit was a fifty minutes long audio-capable video surveillance tape depicting

      the events occurring in the “D dorm” the night of August 17, 2017. Tr. p. 112.

      While the video was being displayed to the jury the director of security at the

      DuComb Center described what he saw on the video. At the conclusion of trial

      the jury returned a verdict of guilty. Thereafter the trial court sentenced Carney

      to twelve years executed in the Department of Correction and ordered him to

      pay restitution. This appeal followed. Additional facts are set forth below as

      necessary.


                                                Discussion
                                                        I.
[5]   Carney frames the issue as follows: “Whether the running commentary of

      DuComb director of security . . . usurped the jury’s ‘right to determine the law

      and the facts.’” Appellant’s Br. p. 4. There are several problems with Carney’s

      statement of the issue. First, his reference to the jury’s right to determine the

      law as well as the facts implicates article I, section 19 of the Indiana
                       2
      Constitution. However, other than quoting the provision Carney offers no

      analysis of how it applies to the facts in this case and cites no authority to

      support his contention. We decline to become a party’s advocate and also

      decline to address arguments that are too poorly developed to be understood.



      2
       The provision declares: “In all criminal cases whatever, the jury shall have the right to
      determine the law and the facts.” IND. CONST. art. I, § 19.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018      Page 3 of 9
      See Barrett v. State, 837 N.E.2d 1022, 1030 (Ind. Ct. App. 2005), trans. denied.

      To the extent Carney is attempting to raise a state constitutional claim, this

      issue is waived. See Davenport v. State, 734 N.E.2d 622, 623 (Ind. Ct. App.

      2000) (declaring that failure to put forth a cogent argument acts as a waiver of

      the issue on appeal), trans. denied.


[6]   Second, although two specific objections Carney raised at trial were overruled –

      which we discuss below – at no time did Carney make an objection based on

      the so-called “running commentary” of the State’s witness. He now complains

      “[t]he testimony of the security director falls within the purview of Rule 701 of

      the Indiana Rules of Evidence.” Appellant’s Br. p. 25. Carney’s attempt to

      change the theory of why he believes portions of the officer’s testimony may

      have been objectionable is unavailing. The law in Indiana is well-settled that

      “‘a defendant may not argue one ground for objection at trial and then raise

      new grounds on appeal.’” Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011)

      (quoting Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000)). Further, to the extent

      Carney is now attempting to advance a claim for the first time on appeal, this

      issue is waived. Failure to object at trial waives the issue for review unless

      fundamental error occurred. Treadway v. State, 924 N.E.2d 621, 633 (Ind.

      2010). Here Carney makes no claim of fundamental error, and we find none to

      have occurred.


[7]   Next, we note another deficiency in Carney’s argument. Indiana Appellate

      Rule 46(A)(6) requires the statement of the facts section in the appellant’s brief

      to describe in narrative form “‘the facts relevant to the issues presented for

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018   Page 4 of 9
      review’” supported by citations to the record. Galvan v. State, 877 N.E.2d 213,

      215 (Ind. Ct. App. 2007) (quoting App. R. 46(A)(6)). The Rule also provides

      that the statement “shall not be a witness by witness summary of the

      testimony.” App. R. 46 (A)(6)(c). Here, in his Statement of the Facts and in

      question and answer format Carney devotes fifteen pages of his twenty-seven-

      page brief to the verbatim testimony given by the DuComb Center security

      officer. See Appellant’s Br. pp. 8-23. Not only is Carney’s presentation a clear

      violation of Rule 46, but also it sheds no light on the issue properly before this

      court. Indeed even if Carney had preserved for review his so-called “running

      commentary” argument – which he did not – much of the testimony set forth in

      Carney’s statement of facts is simply not relevant to the issue presented.


                                                       II.
[8]   All of this brings us to the only issue properly before this court namely:

      whether the trial court erred in admitting certain testimony into evidence. The

      decision to admit evidence is within the trial court’s sound discretion. Dixon v.

      State, 869 N.E.2d 516, 519 (Ind. Ct. App. 2007). The appellate court will not

      disturb the trial court’s ruling unless it determines the trial court abused its

      discretion resulting in the denial of a fair trial. Id. An abuse of discretion

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

      the facts and circumstances before the court. Washington v. State, 784 N.E.2d

      584, 587 (Ind. Ct. App. 2003).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018   Page 5 of 9
[9]    As mentioned above the director of security for the DuComb Center was

       testifying while State’s Exhibit 15 was published to the jury. During the course

       of the witness’ testimony the State inquired:


               Now, on the video we just saw two people exit the restroom. Do you
               know who those two individuals are?

       Tr. p. 119. Carney objected declaring:


               I’m objecting at this point to commentary of this witness’ interpretation
               of what the exhibit shows. Because I think the tape itself is best evidence,
               and it’s up to the jury to determine what they’re viewing.

       Id. at 119-20 (emphasis added). The trial court overruled the objection and the

       witness responded: “The first person is – the first figure you see is Mr.

       Lamberson followed by Mr. Carney.” Id. at 121.


[10]   The best evidence rule refers to the principle that when trying to prove the

       content of a document, recording, or photograph, an original is the best
                                                                                  3
       evidence of that content. See Indiana Evidence Rule 1002. The rule also

       applies to video recordings. See Wise v. State, 26 N.E.3d 137, 143 (Ind. Ct. App.

       2015) (analyzing the admissibility of copies of cell phone videos under the best

       evidence rule), trans. denied. “The purpose of [the best evidence] rule is to

       assure that the trier of the facts has submitted to it the evidence upon any issue




       3
        The Rule provides in relevant part: “An original writing, recording, or photograph is
       required in order to prove its content unless these rules or a statute provides otherwise.” See
       also Lawson v. State, 803 N.E.2d 237, 240 (Ind. Ct. App. 2004) (declaring in part “[t]he best
       evidence rule is codified as Indiana Evidence Rule 1002 . . . .”), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018      Page 6 of 9
       that will best enable it to arrive at the truth. . . . [I]t excludes all testimony of the

       contents of such instruments when the instrument itself is available and could be

       examined by the jury.” Crosson v. State, 268 Ind. 511, 518, 376 N.E.2d 1136, 1141

       (1978) (emphasis added).


[11]   Here, the video tape was available to and indeed examined by the jury. Thus,

       the security officer’s testimony about the contents of the video appears at odds

       with the best evidence rule. See id. But neither before the trial court nor on

       appeal to this Court does Carney dispute the accuracy of the officer’s testimony.

       Under similar circumstances our Supreme Court concluded the trial court

       neither abused its discretion nor committed reversible error by admitting

       testimony of a witness’ account of what he saw on a video where the defendant

       did not dispute the accuracy of the witness’ testimony. See Jones v. State, 780

       N.E.2d 373, 378 (Ind. 2002) (declaring, in order to obtain a reversal “for the

       improper use of secondary evidence, an effective objection must identify an

       actual dispute over the accuracy of the secondary evidence”). We reach a

       similar conclusion here, namely, because there is no dispute about the accuracy

       of the security officer’s testimony, any error in admitting the testimony was

       harmless. Harmless error is an error that does not affect the substantial rights of

       a party. Littler v. State, 871 N.E.2d 276, 278 (Ind. 2007).


[12]   A few minutes after the above exchange, the director of security identified

       Carney’s voice on the video recording. The State then inquired:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018   Page 7 of 9
               And kind of based on what you kind of hear here but also when you
               watched it with a better audio system in your office before, what was
               said?
                                                                                       4
       Tr. p. 123. Carney objected declaring: “Same objection.” Id. The trial court

       overruled the objection but admonished the jury as follows:


               [U]ltimately – and this is at 16:53 or 16:50 on tape. So if you want to go
               back and listen to it – he has his impression as to what was said. But
               ultimately what’s important is what you hear on that tape not the witness’
               interpretation. I’ll just give you that bit of evidence. So it’s somewhere at
               16:50, somewhere in that area. So if you want to go back when you’re
               deliberating, you can watch the tape at that point.

       Id. at 124. The witness ultimately answered the question stating: “I heard Mr.

       Carney say ‘Do you think they’re going to call the police on us?’” Id.


[13]   As noted earlier the security officer’s testimony about the contents of the video

       appears at odds with the best evidence rule. See Crosson, 376 N.E.2d at 1141.

       But even assuming the testimony was erroneously admitted, “[a] proper

       admonishment to the jury is presumed to cure any alleged error, unless the

       contrary is shown.” Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018)

       (quoting Hackney v. State, 649 N.E.2d 690, 694 (Ind. Ct. App. 1995), trans.

       denied). Carney makes no claim challenging the trial court’s admonishment.

       Thus any error is presumed cured.




       4
        It appears from the record that the “same objection” referred to the “best evidence” objection
       Carney had raised only a few minutes earlier. In any event our analysis is the same regardless
       of the basis for the objection.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018    Page 8 of 9
                                                Conclusion
[14]   We affirm the judgment of the trial court.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-559 | September 25, 2018   Page 9 of 9
