Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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:

STEVEN E. RIPSTRA                               GREGORY F. ZOELLER
RIPSTRA LAW OFFICE                              Attorney General of Indiana
Jasper, Indiana
                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                        Aug 14 2014, 9:32 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

KYLE J. ECKSTEIN,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 19A01-1312-CR-536
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE DUBOIS CIRCUIT COURT
                       The Honorable William E. Weikert, Judge
                           Cause No. 19C01-1207-FB-597



                                      August 14, 2014


             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                Case Summary and Issues

       Following a jury trial, Kyle Eckstein was convicted of burglary and theft. He

appeals those convictions, raising the following issues for our review: (1) whether the trial

court erred by admitting a number of out-of-court statements at trial; (2) whether the State

presented sufficient evidence to support Eckstein’s convictions; (3) whether the trial court

erred by giving a final jury instruction on accomplice liability; and (4) whether the trial

court erroneously denied Eckstein’s motion for relief from judgment, which was based on

a claim of newly discovered evidence. We conclude the trial court abused its discretion by

allowing testimony regarding phone conversations between third parties and law

enforcement, but admission of a jail call made by Eckstein was not an abuse of discretion.

Further, we conclude there was sufficient evidence to support Eckstein’s convictions; the

decision to instruct the jury as to accomplice liability was not error; and the trial court’s

denial of Eckstein’s motion for relief from judgment was not an abuse of discretion.

Accordingly, we affirm.

                               Facts and Procedural History

       Shortly before 8 a.m. on March 26, 2012, Myra Schroeder left her home for an

emergency dental appointment. She returned home approximately one hour later to find it

had been burglarized. Among the items missing from the home were cash, a safe, and a

coin collection that belonged to the Schroeders’ daughter, Brittany.




                                             2
        At the time, Brittany was living with her boyfriend, Corey Rollins, who is Eckstein’s

brother.1 On the morning of the burglary, Brittany woke up sometime before 9 a.m., and

Rollins told her that he and Eckstein were leaving the house to fill out job applications.

Rollins took Brittany’s car, and her key chain included a key to the Schroeder home. They

returned approximately thirty minutes later to retrieve Rollins’s wallet, but the two left

again in Brittany’s car immediately after.

        The investigation focused on Rollins and Eckstein because certain aspects of the

burglary indicated that it was committed by someone who had access to and was familiar

with the Schroeder home. Specifically, the house was not ransacked and the coins were

taken from a can in Brittany’s closet, where few people would have known to look. The

police also determined that time lines provided by various witnesses gave Rollins and

Eckstein time to commit the crime. Rollins and Eckstein left town immediately after the

burglary was committed and left for Wyoming the next day.

        On July 17, 2012, the State charged Eckstein with burglary, a Class B felony, and

theft, a Class D felony.2 Eckstein filed a motion to exclude hearsay statements made by

his co-defendant, Rollins,3 and filed a motion in limine concerning other anticipated

hearsay evidence.




        1
            Eckstein’s brief refers to Rollins as a step-brother, while the State’s brief refers to him as a half-brother.
         2
            The State also amended the charges to include an habitual offender enhancement; however, that charge
was later dismissed and is not relevant to the issues on appeal.
        3
            Eckstein and Rollins were tried separately.


                                                             3
        Eckstein’s jury trial began on December 12, 2012. At trial, the State presented out-

of-court statements made during three phone conversations: (1) a conversation between

Aldeon Gorley, an acquaintance of Rollins and Eckstein, and Detective Kleinhelter where

Gorley informed him of evidence implicating Eckstein in the burglary; (2) a conversation

between Gorley’s wife and Detective Kleinhelter where she informed him that she received

a threatening phone call from Eckstein; and (3) a jail call made from Eckstein to Gorley in

which Eckstein recounts details of the burglary and expresses displeasure toward Gorley

for aiding the police.4 The jury found Eckstein guilty of both burglary and theft. On

February 6, 2013, Eckstein was sentenced for burglary to fourteen years imprisonment with

two years suspended, and he received a concurrent sentence of three years for his theft

conviction.

        Eckstein initiated an appeal, but his appeal was dismissed without prejudice and

remanded to the trial court for an opportunity to pursue a motion for relief from judgment

based on Eckstein’s claim of newly discovered evidence. Specifically, Rollins wrote a

letter taking sole responsibility for the crimes. The letter was mailed on August 26, 2013.

A hearing on that motion was held on October 24, 2013, and the trial court issued an order

denying Eckstein’s request for a new trial on November 13, 2013. This appeal followed.

                                          Discussion and Decision

                                                  I. Hearsay




        4
           Despite a motion from the State and an order from this court, the appellate record does not contain the
evidence of the jail call presented at trial (State’s Exhibits 9 and 10). Although the parties disagree as to the
significance of the jail call, both the State and Eckstein are substantially in agreement as to the call’s substance.

                                                         4
        Eckstein contends the trial court erred by allowing the State to present evidence of

three telephone conversations.              He asserts that the admission of these out-of-court

statements, without testimony from the declarants, constituted hearsay and violated his

constitutional right to confront and cross-examine witnesses against him.

        A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. Young v. State, 980 N.E.2d 412, 417 (Ind. Ct. App. 2012). A trial court abuses

its discretion when its decision is clearly against the logic and effect of the facts and

circumstances or when the trial court has misinterpreted the law. Id. Hearsay is a statement

that “(1) is not made by the declarant while testifying at the trial or hearing; and (2) is

offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).5

Hearsay is inadmissible unless it falls under an exception provided either by law or the

rules of evidence. Ind. Evidence Rule 802.

         A. Course of Investigation Evidence: Phone Conversations between Detective

                                       Kleinhelter and Mr. and Mrs. Gorley

        The first two sets of out-of-court statements challenged by Eckstein are similar.

Both were phone conversations between a third party and an investigating detective, in

which the detective was given information that incriminated Eckstein in this case. Eckstein

argues that testimony about these phone conversations was inadmissible hearsay. The State

counters that the testimony was admitted only to explain the course of police investigation;

therefore, the statements were not admitted for their truth and are not hearsay.


        5
           The precise language of the hearsay rule has been amended since Eckstein’s trial, but the substance of the
rule and any relevant exceptions remain the same.

                                                         5
       Indeed, “[a]n out-of-court statement introduced to explain why a particular course

of action was taken during a criminal investigation is not hearsay because it is not offered

to prove the truth of the matter asserted.” Goodson v. State, 747 N.E.2d 1181, 1185 (Ind.

Ct. App. 2001), trans. denied. Nonetheless, out-of-court statements presented under this

rationale are viewed with skepticism. See Kindred v. State, 973 N.E.2d 1245, 1252-55

(Ind. Ct. App. 2012), trans. denied. This is because evidence offered solely for this purpose

is often irrelevant and tends to create the possibility of unfair prejudice to the defendant.

Id.

       According to the State, Detective Kleinhelter testified to phone conversations he

had with Mr. and Mrs. Gorley because it explained the course of police investigation—

namely, the phone conversations explained the investigation of Eckstein as a suspect and

led to the discovery of an incriminating jail call made by Eckstein to Gorley. But at the

time Detective Kleinhelter had these telephone conversations, Eckstein was already a

suspect; thus, these conversations were not needed to explain why he was under

investigation. Further, law enforcement’s reasons for monitoring jail calls from Eckstein

were not relevant at trial: those reasons were not related to any disputed fact and did not

make it more or less probable that the defendant committed the charged crime. Id. at 1252.

Moreover, as Eckstein points out, no limiting instruction was given by the trial court, which

would serve only to increase the risk of unfair prejudice resulting from the admission of

the statements at issue. See Goodson, 747 N.E.2d at 1185. For these reasons, the trial

court abused its discretion by allowing testimony regarding out-of-court statements made

between Detective Kleinhelter and Mr. and Mrs. Gorley.

                                             6
         Despite our finding error in the trial court’s admission of these statements, we

conclude that their admission was harmless error. Errors in the admission of evidence are

generally disregarded as harmless error unless they affect the substantial rights of a party.

Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). In determining whether a party’s

substantial rights have been affected, we consider the evidence’s probable impact on the

fact finder. Id. Improper admission of evidence is harmless error “if the conviction is

supported by substantial independent evidence of guilt satisfying the reviewing court there

is no substantial likelihood the challenged evidence contributed to the conviction.” Id. As

is discussed below, substantial independent evidence of Eckstein’s guilt was presented at

trial. We do not believe that testimony regarding these phone conversations impacted the

jury in such a way as to unduly prejudice Eckstein and require a new trial. Therefore,

admission of these out-of-court statements was harmless error.

                                      B. Jail Call from Eckstein to Gorley

         Eckstein also contends the trial court erred by allowing the State to submit evidence

of a jail call between Eckstein and Gorley. Specifically, Eckstein asserts that the evidence

was inadmissible hearsay; he was denied his confrontation rights; and a proper foundation

was not laid for admission of the evidence.6

         First, the majority of Eckstein’s jail call is comprised of statements made by

Eckstein. A statement is not hearsay, by rule, if the statement “is offered by an opposing



         6
            Eckstein also argues the State failed to show compliance with federal and state wiretap laws prior to
admission of the jail call. However, as the State points out, Eckstein did not raise this issue at trial, and “a defendant
may not argue one ground for objection at trial and then raise new grounds on appeal.” Gill v. State, 730 N.E.2d 709,
711 (Ind. 2000).

                                                            7
party and . . . was made by the party in an individual or representative capacity . . . .” Ind.

Evidence Rule 801(d)(2)(A). Because the jail call was offered by the State and was a set

of statements made by Eckstein, the jail call is not hearsay. Likewise, his confrontation

argument is quickly dispatched, because a defendant is not denied his Sixth Amendment

right to confrontation when the declarant making the out-of-court statement was the

defendant himself. Hughes v. State, 546 N.E.2d 1203, 1207 (Ind. 1989).

       Second, Eckstein asserts that a proper foundation was not established to authenticate

the call and identify Eckstein as the speaker. The sufficiency of an evidentiary foundation

is a matter within the discretion of the trial court. Nasser v. State, 646 N.E.2d 673, 676

(Ind. 1995). “To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a finding that the item

is what the proponent claims it is.” Ind. Evidence Rule 901(a). The State submitted video

surveillance evidence from the jail showing Eckstein making a phone call at the

approximate time of the jail call at issue. Further, Detective Kleinhelter identified the

voices in the jail call recording as belonging to Eckstein and Gorley. See Ind. Evidence

Rule 901(b)(5) (stating identification of a person’s voice may satisfy the authentication

requirement). Based on this evidence, we cannot conclude the trial court abused its

discretion by ruling the State laid a proper foundation for admission of the jail call.

                                II. Sufficiency of Evidence

       Eckstein claims the State did not present sufficient evidence to support his

convictions for burglary and theft. When reviewing a defendant’s claim of insufficient

evidence, the reviewing court will neither reweigh the evidence nor judge the credibility of

                                              8
the witnesses, and we must respect “the jury’s exclusive province to weigh conflicting

evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005) (citation omitted). We

consider only the probative evidence and reasonable inferences supporting the verdict. Id.

And we must affirm “if the probative evidence and reasonable inferences drawn from the

evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond

a reasonable doubt.” Id. (citation omitted).

       The evidence presented at trial was sufficient to create a reasonable inference of

Eckstein’s guilt. Testimony was given that Eckstein left the house with Rollins in

Brittany’s car on the morning of the burglary, and Brittany’s key chain included a garage

door opener and key to the Schroeder home. Based on timelines given by several

witnesses, Rollins and Eckstein had the opportunity to commit the crime. There was

evidence suggesting the perpetrator(s) may have entered and exited the home through the

garage and a door between the garage and house. The house was not ransacked, and the

location of certain items taken—particularly the safe and coin collection—indicated that

the crime was committed by someone who was familiar with the house and its contents.

And Rollins and Eckstein left the state together immediately after the crime was

committed. See Seeley v. State, 547 N.E.2d 1089, 1092 (Ind. 1989) (“A jury may consider

evidence of flight of the accused immediately after the commission of a crime as evidence

of his consciousness of guilt.”). Finally, the jail call made by Eckstein in which he

expresses anger toward Gorley for speaking with police and recounts details about the

burglary could have been used by the jury to infer Eckstein’s guilt. Eckstein argues that

his “assertions [in the jail call] are accusatory, not incriminating or confessional.”

                                               9
Appellant’s Brief. at 21. This, however, is simply a request to reweigh the evidence. The

totality of evidence presented at trial is sufficient to sustain Eckstein’s convictions.

                            III. Accomplice Liability Instruction

       Next, Eckstein contends the trial court erred by giving a final jury instruction on

accomplice liability, where the State originally charged Eckstein only as a principal actor.

We disagree. There is no requirement that the charging information make reference to the

accomplice liability statute in order for a defendant to be convicted as an accomplice. Wise

v. State, 719 N.E.2d 1192, 1198-99 (Ind. 1999). “A defendant may be charged as the

principal but convicted as an accomplice.” Castillo v. State, 974 N.E.2d 458, 466 (Ind.

2012). Thus, it was not error for the State to “change its theory” from the original charging

information that charged Eckstein as a principle. Appellant’s Br. at 7.

       Eckstein also claims there was not sufficient evidence presented at trial to warrant

a jury instruction on accomplice liability. Instruction of the jury is within the discretion of

the trial court. Burton v. State, 978 N.E.2d 520, 524 (Ind. Ct. App. 2012). As explained

above, there was sufficient evidence to show Eckstein was with Rollins on the morning of

the crime and to support Eckstein’s convictions. The trial court’s decision to give an

instruction on accomplice liability was not an abuse of discretion.

                                  IV. Motion for New Trial

       Last, Eckstein argues the trial court erred by denying his motion for relief from

judgment, which was based upon a claim of newly discovered evidence. The decision to

grant or deny a motion for relief from judgment is within the discretion of the trial court.

State v. Willits, 773 N.E.2d 808, 811 (Ind. 2002). Newly discovered evidence is a proper

                                              10
grounds for requesting relief from judgment, Ind. Trial Rule 60(B)(2), and a court will

order a new trial based on newly discovered evidence if a defendant shows:

       (1) that the evidence has been discovered since the trial; (2) that it is material
       and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching;
       (5) that it is not privileged or incompetent; (6) that due diligence was used to
       discover it in time for trial; (7) that the evidence is worthy of credit; (8) that
       it can be produced upon a retrial of the case; and (9) that it will probably
       produce a different result.

Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991). When determining whether the newly

discovered evidence would produce a different result, the trial court may consider the

weight that a reasonable trier of fact would give it. Id. On appeal, denial of a motion for

new trial based on newly discovered evidence is reviewed deferentially. Id.

       The newly discovered evidence in this case is a letter from Rollins written after

Eckstein’s trial in which Rollins takes full blame for the crime and states that Eckstein was

not involved. At the hearing on Eckstein’s motion, Rollins testified that Eckstein was with

him the morning he committed the burglary but Rollins had dropped Eckstein off at

department store before driving to the Schroeder home and burglarizing it. Also at the

hearing, the State introduced a statement from Gorley in which he stated Rollins told

Gorley that he and Eckstein broke into the Schroeder home together.

       The trial court denied Eckstein’s motion primarily on the basis that it found Rollins

lacked credibility and that his testimony would not likely produce a different result if a new

trial were conducted. The trial court’s credibility determination was based upon Rollins’s

criminal history and a number of improbabilities and inconsistencies in his story. The trial

court further found that Rollins’s incredible testimony would not overcome the evidence


                                              11
presented against Eckstein. After reviewing the trial court’s order, we cannot say it

constituted an abuse of discretion.

                                        Conclusion

       We conclude the trial court abused its discretion by allowing testimony regarding

phone conversations between Detective Kleinhelter and Mr. and Mrs. Gorley, but this error

was harmless. Admission of a jail call made by Eckstein to Gorley was not an abuse of

discretion. Further, we conclude there was sufficient evidence to support Eckstein’s

convictions; the decision to instruct the jury as to accomplice liability was proper; and the

trial court’s denial of Eckstein’s motion for relief from judgment was not an abuse of

discretion.

       Affirmed.

       RILEY, J., and BRADFORD, J., concur.




                                             12
