MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
court except for the purpose of establishing                        Jan 13 2017, 9:01 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dwana Prince,                                            January 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1604-CR-837
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Certo, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G12-1506-CM-21572



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017      Page 1 of 11
                                          Case Summary
[1]   Dwana Prince appeals her conviction for false reporting, arguing that the trial

      court erred by admitting hearsay. Finding that the court erred by admitting

      hearsay but that the errors were harmless, we affirm.



                            Facts and Procedural History
[2]   On May 25, 2015, Prince called 911 and reported that she had been carjacked

      near the intersection of 10th Street and Rural Avenue in Indianapolis. Officer

      Ronald Clayton with the Indianapolis Metropolitan Police Department was

      dispatched to the scene and took Prince’s statement. Prince told him that a

      black male approached her car, opened her door, and told her to get out; she

      thought he had a weapon because his hand was in his shirt. She also told

      Officer Clayton that when she got out of the car a white male entered her car on

      the passenger side. While Prince was giving her statement, Officer Clayton

      heard on his police radio that a car traveling at a high rate of speed had crashed

      and flipped; a black male and white female were spotted fleeing the scene.

      Based on the description of the car, Officer Clayton realized it was Prince’s car

      that had crashed, and he drove her to the crash site.


[3]   At the crash site, Detective Paul Buchman took over the investigation and

      obtained a statement from Prince. She described the carjacker to Detective

      Buchman, and her description matched the driver who was seen fleeing the

      crash site. Police arrested the driver and placed him in jail for carjacking.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 2 of 11
[4]   Two days later, Officer Clayton, while on patrol, was approached by an

      unnamed individual who told the officer that Prince was lying and that she had

      not been carjacked. Officer Clayton immediately contacted Detective Buchman

      with this information. Detective Buchman then called Prince and asked to

      speak with her in person. She informed him that she was at home and that he

      was welcome to stop by. Before entering her home, Detective Buchman turned

      on an audio recorder and placed it in his pocket; Prince was unaware that their

      conversation was being recorded. During the interview, Detective Buchman

      told Prince that witnesses had told him that her husband had a drug problem

      and that her husband had given away the keys to her car because he was high.

      He told her he needed to know the truth. Prince admitted that she had lied

      about being carjacked; she said that she called 911 because her husband told her

      that someone had taken her car. She alone decided to tell police that she had

      been carjacked. Prince was charged with false informing, a Class A

      misdemeanor. The driver, who was initially arrested for the carjacking, was

      released from jail after Prince’s confession.

[5]   At her trial, Prince objected to Officer Clayton’s testimony regarding the

      statements made to him from the unnamed informant. The court overruled her

      objection and gave a limiting instruction to the jury that Officer Clayton’s

      testimony was not for “the truth of what the witness is asserting, but you are

      allowed to listen to it to hear why the officer did what he did and why the

      police conducted an investigation.” Tr. p. 70. Prince also objected to the

      admission and playing of her recorded interview with Detective Buchman. Id.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 3 of 11
      at 104. The court overruled Prince’s objection and played the recording in its

      entirety for the jury, including Prince’s confession that she had lied about being

      carjacked. The court did not give the jury any type of admonishment regarding

      the contents of the recording. The jury found Prince guilty of false reporting.

[6]   Prince now appeals.



                                 Discussion and Decision
[7]   Prince contends that the trial court erred in admitting into evidence Officer

      Clayton’s testimony about what the unnamed informant told him and several of

      the statements made by Detective Buchman on the recorded interview. She

      argues that both the testimony and the recording included inadmissible hearsay.

      “The decision to admit or exclude evidence at trial is squarely within a trial

      court’s discretion and we afford it great deference on appeal.” VanPatten v.

      State, 986 N.E.2d 255, 260 (Ind. 2013). “We review the trial court’s decision

      regarding admissibility of evidence for an abuse of discretion. King v. State, 985

      N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. An abuse of discretion

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

      the facts and circumstances before it.” Id. We do not reweigh the evidence

      upon review. Id.


[8]   Hearsay is an out-of-court statement that is “offered in evidence to prove the

      truth of the matter asserted.” Ind. Evidence Rule 801(c)(2). Hearsay is

      generally not admissible at trial. See Ind. Evidence Rule 802. “Whether a


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 4 of 11
      statement is hearsay . . . will most often hinge upon the purpose for which it is

      offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (quoting United States v.

      Linwood, 142 F.3d 418, 425 (7th Cir. 1998)).



                           I. Officer Clayton’s Testimony
[9]   Prince first argues that the trial court erred when it allowed Officer Clayton to

      testify as to the hearsay statements made to him by the unnamed informant.

      The State asserts that the trial court properly admitted the testimony under the

      course-of-investigation exception—the statements were not admitted for their

      truth but rather “to explain the course of [the] police investigation.” Blount, 22

      N.E.3d at 565. Our Supreme Court explained the purpose and dangers of

      course-of-investigation testimony in Blount:


              Although course-of-investigation testimony may help prosecutors
              give the jury some context, it is often of little consequence to the
              ultimate determination of guilt or innocence. The core issue at
              trial is, of course, what the defendant did (or did not do), not
              why the investigator did (or did not do) something. Thus,
              course-of-investigation testimony is excluded from hearsay only
              for a limited purpose: to bridge gaps in the trial testimony that
              would otherwise substantially confuse or mislead the jury. . . .
              Indeed, such testimony is of little value absent a direct challenge
              to the legitimacy of the investigation. . . . There is a risk the jury
              will rely upon the out-of-court assertion as substantive evidence
              of guilt—rather than for the limited purpose of explaining [the]
              police investigation—and the defendant will have no chance to
              challenge that evidence through cross-examination. . . . The
              ultimate inquiry is: Was the out-of-court statement used
              primarily to show the truth of its content, constituting


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 5 of 11
               inadmissible hearsay, or merely to explain subsequent police
               action, excluded from hearsay?


       Id. at 565-66 (citations and quotations omitted).


[10]   To determine if statements received by police officers engaged in an

       investigation meet the course-of-investigation exception, we conduct a three-

       part test, which was outlined in Blount. First, we determine if the testimony

       described an out-of-court statement that asserts a fact susceptible of being true

       or false. Id. at 566. Second, we determine the evidentiary purpose of the

       proffered statement. Id. at 567. Third, we determine if the fact to be proven by

       the statement is relevant to some issue in the case, and if there is any danger of

       prejudice that outweighs the probative value. Id. The parties concede parts one

       and two; therefore, our analysis addresses only part three.

[11]   At trial, after the jury was instructed to consider the unnamed informant’s

       statements only for why the police conducted its investigation (and not for the

       truth), Officer Clayton testified as follows:

               [Officer Clayton]: [The informant] said that [the driver] did not
               take the car as a carjacking, that the car was given to him by Ms.
               Prince’s husband for a cocaine deal, sale, that he does it all of the
               time. He comes down here on 10th Street. He buys cocaine. He
               will then also have a female go back to their house and they will
               smoke the cocaine inside the house while he has intercourse with
               the female–
               [Defense Attorney]: Objection.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 6 of 11
                [Court]: All right. We’re done. Yes. We’re done. Sustained.
                Next question.[1]

       Tr. p. 71. While this testimony explained why the police spoke with Prince

       again, it also accused Prince of being married to a habitual drug user who

       engages in extramarital affairs. This type of testimony is “of little value absent

       a direct challenge to the legitimacy of the investigation.” Blount, 22 N.E.3d at

       565. That is not the case here; Prince does not allege that the police acted

       improperly when they continued to investigate her carjacking story after

       making the initial arrest. Rather, she challenges the admission of Officer

       Clayton’s testimony as irrelevant and unfairly prejudicial. We agree.

[12]   Officer Clayton’s testimony about what the informant told him had little

       probative value when considered for the proffered reason of explaining why the

       police continued their investigation. All Officer Clayton needed to say to

       explain why the police continued its investigation was that an informant’s tip

       led them to further investigate the truth of Prince’s carjacking report. The rest

       of Officer Clayton’s testimony offered no probative value to the State’s case

       against Prince and was prejudicial to her. Accordingly, the admission of

       Officer Clayton’s testimony under the course-of-investigation exception was

       error.




       1
         The State does not argue that Prince waived this argument by failing to make a timely objection or by
       failing to request an admonishment once the objection was sustained. Therefore, we reach the merits of this
       issue.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017          Page 7 of 11
                                    II. Recorded Interview
[13]   Prince next argues that some of Detective Buchman’s statements on the

       recorded interview are inadmissible hearsay. The State claims that the

       statements are not hearsay because they were used to elicit a response from

       Prince. In Strong v. State, 538 N.E.2d 924 (Ind. 1989), our Supreme Court held

       that the admission of a tape recording did not violate the hearsay rule because

       the hearsay statements were not offered for their truth but rather to elicit a

       response from the defendant. The Court also upheld the trial court’s admission

       because the trial court gave the jury an admonishment that the statements on

       the tape were “to be considered only as questioning and questions in order to

       elicit information to draw out information from Mrs. Strong.” Id. at 928.


[14]   Our Supreme Court encountered a similar situation, but reached a different

       result, in Smith v. State, 721 N.E.2d 213 (Ind. 1999). There, the trial court

       admitted a videotape of a detective’s interview with the defendant into

       evidence. During the interview, the detective told the defendant, “half of the

       people at the jail’s [sic] called me wanting to tell me that you did it,” and

       “[Lampley] said you did it because it was over him [Riggs] ripping you off your

       dope, your stash.” Id. at 216. The defendant argued on appeal that the

       detective’s statements were inadmissible hearsay. The State, relying on Strong,

       argued that police questions and comments in an interview may be designed to

       elicit responses from the defendant and, if so, are not hearsay because they are

       not used to prove the truth of the matter asserted. Our Supreme Court

       acknowledged that neither party had asked for an admonishment and that the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 8 of 11
       trial court does not have an affirmative duty to issue one absent a request to do

       so. Id. Nevertheless, the Court concluded, “[T]he lack of admonishment in this

       case combined with the fact that the statements appear to be assertions of fact

       by the detective, not mere questions, renders their admission error.” Id.


[15]   Here, the recording of Detective Buchman’s interview with Prince was played

       in its entirety for the jury over Prince’s hearsay objection. Based on the

       information he received from Officer Clayton, Detective Buchman told Prince:

               “I know your husband has a drug problem.”


                                                      *****


               “Your husband has a bit of a drug problem—he likes the cocaine.
               Let me—let me finish. He does a lot of this stuff while you’re not
               here. He gave his car keys up to a guy because he was too high
               to drive.”


                                                      *****


               “[T]hey come up here to party with your husband when you’re at
               work.”


                                                      *****


               “[Y]our husband has a dope problem.”


       Ex. 4 at 1:13, 1:58, 2:40, 10:50. These statements by Detective Buchman were

       presented as facts that Prince’s husband had a drug problem and hosted parties

       at the house when Prince was not home. They were not questions for Prince to
       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 9 of 11
       answer; Prince even tried to interject at one point but was cut off by Detective

       Buchman, telling her “let me—let me finish.” At no point did the trial court

       issue an admonishment to the jury that they were to consider the recording not

       for the truth of the statements but as questions used to elicit information from

       Prince. Furthermore, the statements were prejudicial and easily redactable.

       Their admission was error.



                                       III. Harmless Error
[16]   Nevertheless, the State contends that even if the admission of Officer Clayton’s

       trial testimony and Detective Buchman’s statements during the recorded

       interview were error, the errors were harmless because Prince gave a recorded

       confession to making a false report:

               [Detective Buchman:] “Did you guys hatch this plan that you
               guys were going to lie to me?”
               [Prince:] “No.”
               [Detective Buchman:] “How did it come out that you decided
               well this is—it was at your doing?”
               [Prince:] “It was at my doing.”
               [Detective Buchman:] “That was your doing?”
               [Prince:] “My doing.”
               [Detective Buchman:] “Why did you do that?”
               [Prince:] “‘Cuz my car.”
               [Detective Buchman:] “But you knew what you told me was a
               lie, right?”
               [Prince:] “Yeah.”

       Id. at 4:45.


[17]   Harmless error occurs when, in light of all of the evidence in the case, any error

       or defect by the trial court is sufficiently minor so as not to affect the substantial

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 10 of 11
       rights of a party. Ind. Appellate Rule 66(A); see Lewis v. State, 34 N.E.3d 240,

       248 (Ind. 2015). Here, Prince gave a recorded confession that she lied about

       being carjacked, and her confession was played for the jury. Thus, the

       admission of Officer Clayton’s testimony regarding what the informant told

       him and Detective Buchman’s hearsay statements on the recorded interview are

       not reversible errors.

[18]   Affirmed.


       Bradford, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-837 | January 13, 2017   Page 11 of 11
