                                                                                 FILED
                                                                          Aug 17 2018, 8:47 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Benjamin D. Waite                                          Curtis T. Hill, Jr.
Deppe Law Center                                           Attorney General of Indiana
Hobart, Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Denny Henderson,                                           August 17, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-574
        v.                                                 Appeal from the Porter Superior
                                                           Court
State of Indiana,                                          The Honorable David L.
Appellee-Plaintiff.                                        Chidester, Judge
                                                           Trial Court Cause Nos.
                                                           64D04-1711-F6-11030
                                                           64D04-1703-CM-2189



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018                                   Page 1 of 15
                                           Case Summary
[1]   On the morning of January 11, 2017, Denny Henderson was involved in an

      automobile accident outside the Porter police station when the truck he was

      driving collided with other vehicles parked in front of the station. He was

      subsequently charged with and found guilty of Class A misdemeanor driving

      while intoxicated, endangering a person. Henderson appeals his conviction,

      arguing that the trial court abused its discretion in admitting certain evidence,

      excluding certain evidence, and instructing the jury. Concluding otherwise, we

      affirm.



                             Facts and Procedural History
[2]   On January 10, 2017, Henderson went to a party at Mike Pouche’s home in

      Porter. Charlie Fernandez, Henderson’s step-son, was at the party with

      Henderson. At some point, Fernandez fell asleep. He was awakened during

      the early morning hours of January 11, 2017, when he heard Henderson

      “yelling for help[, y]elling for someone to call the police.” Tr. Vol. III, p. 133.

      Fernandez and Henderson left Pouche’s home and went to a nearby police

      station.


[3]   Once at the station, Fernandez locked the driver’s side door of Henderson’s

      truck, propped his coat underneath Henderson’s head, and exited the passenger

      side of the truck. Fernandez entered the station and spoke with dispatcher

      Danielle Scott. Fernandez informed Scott that he needed help because


      Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018         Page 2 of 15
      Henderson was in the truck, bleeding and hurt. Porter Police Corporal Jason

      Casbon was the first to respond. Chesterton Police Sergeant Daniel Rocha also

      responded.


[4]   Upon arriving at the station, Corporal Casbon spoke with Fernandez. After

      determining that he was ok, Corporal Casbon turned his attention toward the

      area where Henderson’s truck was parked. He noticed Scott’s Honda Civic, a

      Kia belonging to another dispatcher, and Henderson’s truck. The truck’s front

      bumper was “resting up against the back pumper of the Honda Civic.” Tr. Vol.

      III, p. 23.


[5]   As he approached the truck, Corporal Casbon observed that Henderson, the

      only person in the truck, was sitting in the driver’s seat, leaning over into the

      passenger side of the cabin. Henderson appeared to be injured. Corporal

      Casbon also discovered that the truck was still running and that the driver’s side

      door was locked. As he turned to walk back to his squad car to get a “lock-out

      tool” to unlock the driver’s side door, Corporal Casbon heard the truck’s

      “engine start to rev.” Tr. Vol. III, p. 26. The truck slowly started to push the

      Honda Civic. It accelerated, hit Corporal Casbon’s nearby squad car, and

      pushed the Honda Civic into the Kia. Corporal Casbon and Sergeant Rocha

      were eventually able to turn the truck off and remove Henderson from the

      vehicle.


[6]   Sergeant Rocha observed that Henderson appeared confused, hurt, and

      agitated. His face was covered with blood and he expressed concern for


      Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018         Page 3 of 15
      Fernandez. Corporal Casbon noticed the strong odor of alcohol on

      Henderson’s breath and clothing. His eyes were watery and his speech was

      slurred. Based on his training and experience, Corporal Casbon concluded that

      Henderson’s behavior was consistent with that of a person who was under the

      influence. Henderson was eventually transported to the hospital where he was

      treated for his injuries. Each of the medical personnel that encountered

      Henderson that night concluded that he was intoxicated.


[7]   Approximately five days later, Henderson called the police station and

      requested to speak with Corporal Casbon. During their conversation,

      Henderson “was apologetic for what happened and his behavior that night.”

      Tr. Vol. III, p. 47. He explained “why he wouldn’t let [Fernandez] drive and

      he said [it was] because [Fernandez] was slow.” Tr. Vol. III, p. 47. Henderson

      admitted to driving the truck on the night in question, offered to pay for the

      damage to the vehicles, and thanked Corporal Casbon “for saving his life.” Tr.

      Vol. III, p. 48.


[8]   On March 7, 2017, the State charged Henderson under Cause Number 64D04-

      1703-CM-2189 with Count I – Class A misdemeanor operating a vehicle while

      intoxicated, endangering a person; Count II – Class C misdemeanor operating a

      vehicle with an alcohol concentration equivalent to at least .08 but less than .15;

      Count III – Class C misdemeanor operating a vehicle while intoxicated; and

      Count IV – Class A misdemeanor resisting law enforcement. On November 28,

      2017, the State added nine additional counts, including a Level 6 felony count,

      and the matters were consolidated under Cause Number 64D04-1711-F6-11030.

      Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018       Page 4 of 15
      Henderson sought to dismiss the additional charges, and, on November 30,

      2018, the trial court dismissed each of the nine additional charges as well as the

      original Count II. Following a two-day jury trial, Henderson was found guilty

      of Counts I and III and not guilty of Count IV. The trial court merged Count

      III into Count I and sentenced Henderson to a 365-day term with all but four

      days suspended to probation.



                                  Discussion and Decision
                                        I. Evidentiary Issues
                                       A. Standard of Review
[9]   “The admission or exclusion of evidence is a matter left to the sound discretion

      of the trial court, and a reviewing court will reverse only upon an abuse of that

      discretion.” Lieberenz v. State, 717 N.E.2d 1242, 1245 (Ind. Ct. App. 1999),

      trans. denied. “An abuse of discretion occurs when a trial court’s decision is

      clearly against the logic and effect of the facts and circumstances before the

      court.” Anderson v. State, 961 N.E.2d 19, 26 (Ind. Ct. App. 2012). “In

      determining the admissibility of evidence, the reviewing court will only

      consider the evidence in favor of the trial court’s ruling and unrefuted evidence

      in the defendant’s favor.” Sallee v. State, 777 N.E.2d 1204, 1210 (Ind. Ct. App.

      2002). We will not reverse the trial court’s decision to admit or exclude

      evidence if that decision is sustainable on any ground. Crawford v. State, 770

      N.E.2d 775, 780 (Ind. 2002).



      Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018         Page 5 of 15
           B. Inclusion of Fernandez’s Statement to Corporal Casbon
[10]   During trial, Henderson objected to Corporal Casbon’s testimony that “in the

       course of [his] investigation Charlie Fernandez told me that his father would

       not allow him to drive, he drove.” Tr. Vol. III, p. 29. In making his objection,

       Henderson argued that the statement was hearsay. The trial court overruled

       Henderson’s objection and allowed the statement into evidence.


[11]   Henderson contends that the trial court abused its discretion in admitting this

       statement. “Admission of hearsay evidence is not grounds for reversal where it

       is merely cumulative of other evidence admitted.” McClain v. State, 675 N.E.2d

       329, 331–32 (Ind. 1996). Moreover, “[e]rrors in the admission of evidence are

       to be disregarded as harmless unless they affect the substantial rights of the

       party.” Leonard v. State, 86 N.E.3d 406, 413 (Ind. Ct. App. 2017) (internal

       quotation omitted).


[12]   Review of the record reveals that the challenged evidence was merely

       cumulative of other evidence in the record. First, and most importantly, the

       challenged testimony is cumulative of Henderson’s admission that he was

       driving the truck on the night in question.1 The testimony is also cumulative of

       Corporal Casbon’s and Sergeant Rocha’s testimony that Henderson was sitting

       in the driver’s seat when the truck’s engine revved and the truck struck the other




       1
         Henderson claims in his Reply Brief that his admission was struck from the record after his objection to the
       state’s method of questioning was sustained. We disagree because our reading of the record indicates that the
       objection was lodged after and related to a subsequent question posed by Henderson’s counsel.

       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018                               Page 6 of 15
       vehicles. We need not decide whether the challenged statement was hearsay or

       was improperly admitted because the testimony was merely cumulative of other

       evidence in the record. As such, any error in admitting the testimony was

       harmless. See McClain, 675 N.E.2d at 332 (providing that the evidence at issue

       was cumulative of other evidence, admission of the evidence was harmless and

       reversal was not required).


       C. Exclusion of Evidence Relating to Events that Occurred at
                            Pouche’s Home
[13]   Henderson also argues that the trial court abused its discretion by excluding

       evidence relating to how he sustained his injuries. It is undisputed that

       Henderson did not make an offer of proof in relation to the challenged

       evidence.


               The purpose of an offer of proof is to convey the point of the
               witness’s testimony and provide the trial judge the opportunity to
               reconsider the evidentiary ruling. Equally important, it preserves
               the issue for review by the appellate court. To accomplish these
               two purposes, an offer of proof must be sufficiently specific to
               allow the trial court to determine whether the evidence is
               admissible and to allow an appellate court to review the
               correctness of the trial court’s ruling and whether any error was
               prejudicial.


       State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005) (internal citations omitted).

       Henderson acknowledges that “[g]enerally speaking, an appealable error may

       not be predicated upon a ruling which excludes evidence unless the substance of

       the evidence was made known to the Court by a proper offer of proof or was

       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018          Page 7 of 15
       apparent from the context within which the questions were asked.” Appellant’s

       Br. p. 15. However, Henderson asserts that his failure to make an offer of proof

       should be excused because both the parties and the trial court were generally

       aware of Henderson’s claim that the injuries sustained during a fight that

       occurred at Pouche’s home negatively impacted his mental state and ability to

       drive. In support, Henderson cites to the Indiana Supreme Court’s decision in

       Baker v. State, 750 N.E.2d 781 (Ind. 2001).2


[14]   In Baker, the Indiana Supreme Court reiterated that after a trial court has ruled

       on the admissibility of the evidence in question, in order to preserve a claim of

       error, the proponent of the evidence must make the substance of the evidence

       known to the trial court by a proper offer of proof, unless the substance was

       apparent from the context in which the questions were asked. 750 N.E.2d at

       785. The offer of proof should “reduce uncertainty as to the nature of the

       excluded evidence to a tolerable and acceptable level” and, by doing so,

       “improve the reliability of the appellate court’s guesses and estimates

       concerning the probability that the trial court’s error was either prejudicial or

       harmless.” Id. at 786 (internal quotation omitted). The Indiana Supreme Court

       noted that failure to make an offer of proof “forfeits appellate review even when




       2
         Henderson also relies on the Indiana Supreme Court’s decision in Vehorn v. State, 717 N.E.2d 869 (Ind.
       1999). Vehorn, however, is of no help to Henderson as the Indiana Supreme Court’s decision was based
       largely upon the fact that the record contained an explicit assurance from the trial judge that it had
       considered counsel’s objection to the admission of the evidence and that counsel’s objection to the admission
       of the challenged evidence was sufficient to preserve an appellate challenge to the admission of the evidence.
       717 N.E.2d at 872–73.

       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018                                Page 8 of 15
       the trial court earlier granted a motion in limine.” Id. However, it further

       noted that “there is such a thing as being too rigid about format.” Id. The

       Indiana Supreme Court concluded that the record clearly showed that the trial

       court was aware of the evidence at issue and “at least implicitly re-affirmed [its]

       decision to exclude it. Given the clear-cut nature of the proposed testimony (he

       asserts a sexual relationship; she denies it), we find the issue sufficiently

       preserved for appeal.” Id. at 787.


[15]   The facts of this case can be distinguished from those in Baker. With regard to

       evidence relating to that fight, the trial court issued the following pre-trial

       ruling:


               The Defense witnesses will limit their testimony to the injuries
               they observed on the Defendant prior to his driving to the police
               station, and may not testify as to the specifics of the fight or
               stabbing in which he was injured, the causes for the fight or
               stabbing, the perpetrators of the battery to him, or the like. The
               Defendant or defense witnesses may testify that Defendant was
               held down or bound against his will when he was battered, as
               that matter goes to his resistance to police and his theory of
               defense.


       Appellant’s App. p. 44. The trial court’s ruling makes it clear that evidence

       generally explaining how Henderson sustained his injuries prior to arriving at

       the police station would be admitted while evidence relating to the specific

       nature and cause of the fight would be excluded. The crux of Henderson’s

       defense seems to be that he was injured to the point that he was unable to

       operate his truck. The evidence permitted by the trial court, i.e., that he was

       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018           Page 9 of 15
       allegedly held down or bound and battered prior to arriving at the station, is

       relevant to this defense. The excluded evidence, i.e., why the fight occurred or a

       detailed account of the fight itself, is not.


[16]   Further, Henderson does not indicate what evidence he sought to admit beyond

       that deemed admissible by the trial court. The lack of information relating to

       what additional evidence Henderson sought to present leaves no way for either

       the trial court or this court to determine whether the exclusion of said evidence

       was prejudicial or harmless. Given that the substance of the proposed evidence

       was not clear, we conclude that by failing to make an offer of proof, Henderson

       has forfeited appellate review of this claim. See Baker, 750 N.E.2d at 786.


[17]   Henderson alternatively claims that he is entitled to relief under the doctrine of

       fundamental error. “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.” Delarosa v. State, 938 N.E.2d 690, 694

       (Ind. 2010) (internal quotation omitted). “To qualify as fundamental error, an

       error must be so prejudicial to the rights of the defendant as to make a fair trial

       impossible.” Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002) (internal

       quotation omitted).


[18]   In claiming fundamental error, Henderson asserts that a “well-informed trial

       court prohibited the jury from learning relevant evidence about how and why

       Henderson arrived to the Porter [p]olice station or that he lacked the ability to


       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018        Page 10 of 15
       cause the secondary collision due to the extent of his injuries.” Appellant’s Br.

       pp. 23–24. We disagree. The trial court allowed Henderson to present

       testimony relating to how he sustained the injures, the extent of his injuries, and

       that he went to the police station seeking assistance and treatment for his

       injuries. The jury heard evidence that Henderson was battered and suffered

       injuries to his head. It also heard Henderson’s argument that his injuries left

       him unable to operate his truck. The fact that the jury did not hear specific

       details about how Henderson sustained the injuries beyond that he had been

       beaten in a fight did not constitute a blatant violation of due process or render a

       fair trial impossible.


                                         II. Jury Instructions
[19]   Henderson also contends that the trial court abused its discretion in instructing

       the jury.


               The purpose of a jury instruction is to inform the jury of the law
               applicable to the facts without misleading the jury and to enable
               it to comprehend the case clearly and arrive at a just, fair, and
               correct verdict. We review a trial court’s instructions to the jury
               for an abuse of discretion. An abuse of discretion arises when the
               instruction is erroneous and the instructions taken as a whole
               misstate the law or otherwise mislead the jury. When evaluating
               the jury instructions on appeal this Court looks to whether the
               tendered instructions correctly state the law, whether there is
               evidence in the record to support giving the instruction, and
               whether the substance of the proffered instruction is covered by
               other instructions.




       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018       Page 11 of 15
       Isom v. State, 31 N.E.3d 469, 484–85 (Ind. 2015) (internal citations and

       quotations omitted).


[20]   Henderson challenges one of the instructions relating to his conviction for Class

       A misdemeanor operating a vehicle while intoxicated, endangering a person.

       Indiana Code section 9-30-5-2 defines this offense as follows:


               (a) Except as provided in subsection (b), a person who operates a
               vehicle while intoxicated commits a Class C misdemeanor.

               (b) An offense described in subsection (a) is a Class A
               misdemeanor if the person operates a vehicle in a manner that
               endangers a person.


       In Johnson v. State, 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988), we noted that

       in normal usage, the term operate means “to perform a function, or operation,

       or produce an effect.” (Internal quotation omitted). Thus, “the word ‘operate’

       requires effort, the doing of something by the operator,” id., and “[t]here must

       be some direct or circumstantial evidence to show that [the] defendant operated

       the vehicle.” Hiegel v. State, 538 N.E.2d 265, 268 (Ind. Ct. App. 1989). In

       considering what one must do to “operate” a vehicle, we have found that

       merely starting the engine of the vehicle is insufficient to prove operation. Id.

       However, “the State does not have to prove movement of the car.” Johnson,

       518 N.E.2d at 1128. Operating may occur on public or private property. Id.


[21]   Henderson challenges the trial court’s jury instruction regarding operation,

       which reads as follows:


       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018       Page 12 of 15
               “Operate” means to navigate or otherwise be in actual physical
               control of a vehicle, motorboat, off-road vehicle, or snowmobile.

               Several factors may be examined to determine whether a
               Defendant has “operated” a vehicle:

                        1. the location of the vehicle when it is discovered;
                        2. whether the car was moving when discovered;
                        3. any additional evidence indicating that the
                        Defendant was observed operating the vehicle before
                        he was discovered; and
                        4. the position of the automatic transmission.

               In addition to these four factors, any evidence that leads to a
               reasonable inference should be considered.


       Appellant’s App. p. 64. While Henderson acknowledges that this instruction

       incorporates the previously-approved factors relating to operation, see Hampton

       v. State, 681 N.E.2d 250 (Ind. Ct. App. 1997), he argues that the instruction

       presents an incomplete statement of the law because it fails to inform the jury

       that he was required to expend some effort to operate his truck. Henderson,

       therefore, asserts that the trial court abused its discretion by failing to include in

       its instruction that the State was required to show that he expended effort to

       operate the truck.


[22]   While Henderson correctly argues that we have previously concluded that there

       must be some evidence that a defendant expended effort to operate a vehicle, he

       has pointed to no authority indicating that a trial court is required to instruct

       the jury to this fact. Rather, our review of the relevant caselaw suggests that a

       defendant’s effort is commonly inferred from the facts and circumstances of

       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018          Page 13 of 15
       each individual case. This seems appropriate given that effort merely amounts

       to “the doing of something” by the defendant. See Johnson, 518 N.E.2d at 1128.


[23]   Further, three of the four previously-approved factors relating to operation

       inherently include some form of effort by the defendant. For instance, if a

       vehicle is moving or if an individual is observed driving the vehicle, one may

       reasonably infer that some effort was expended by the driver. Likewise, if a

       vehicle’s transmission is found to be in gear, as opposed to in park, one may

       reasonably infer that some effort was expended by the driver.


[24]   In this case, Henderson was observed sitting in the driver’s side of the seat with

       the truck running. Although he was observed to be leaning over at one point,

       he managed to “rev” the engine and put the truck in gear. Once in gear, the

       truck moved forward and struck the other vehicles. At the time, Henderson

       was the only person in the truck. These facts suggest that Henderson expended

       some effort in operating the truck. This evidence is in addition to evidence that

       Henderson admitted that he drove the vehicle from Pouche’s home to the police

       station.3


[25]   Henderson’s defense counsel argued before the jury that the law requires some

       effort by the defendant and the State failed to prove that Henderson expended

       any such effort. Counsel highlighted testimony indicating that Henderson had

       been in and out of consciousness and was slumped over the passenger seat. He



       3
           It is undisputed that it takes effort to drive a vehicle from one point to another.


       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018                        Page 14 of 15
       argued this testimony indicated that Henderson was unable to expend the effort

       necessary to operate the vehicle. The matter was squarely placed before the

       jury’s attention, and the jury found contrary to Henderson’s argument.


[26]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-574 | August 17, 2018   Page 15 of 15
