                                                                             FILED
                                                                      Oct 09 2018, 10:43 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                            Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                       Attorney General of Indiana
Greenfield, Indiana
                                                           Caroline G. Templeton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

James Wade Baker, Jr.,                                    October 9, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          30A01-1710-CR-2511
        v.                                                Appeal from the Hancock Superior
                                                          Court

State of Indiana,                                         The Honorable Dan E. Marshall,
Appellee-Plaintiff.                                       Judge

                                                          Trial Court Cause No.
                                                          30D02-1705-F6-1078



Darden, Senior Judge.




Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018                      Page 1 of 12
                                       Statement of the Case
[1]   James Wade Baker, Jr., appeals his convictions by jury of resisting law
                                                                        1
      enforcement by use of a vehicle, a Level 6 felony, and driving while suspended
                                                                                              2
      with a prior similar offense within the past ten years, a Class A misdemeanor.

      We affirm.


                                                      Issues
[2]   Baker raises three issues, which we consolidate and restate as:


                I.      Whether under the circumstances, the trial court erred in
                        admitting into evidence a witness’s statement by an
                        unnamed, absent person; and
                II.     Whether under the circumstances, the trial court erred in
                        admitting into evidence a witness’s description of Baker’s
                        statement while in custody.

                                Facts and Procedural History
[3]   On the evening of May 23, 2017, Deputy Donald Stegman of the Hancock

      County Sheriff’s Department was on patrol in a fully marked police car. He

      encountered a black Honda sedan and checked the vehicles license plate

      number in the Bureau of Motor Vehicle’s online records. Stegman discovered

      the license plate number was assigned to a tan Chevy SUV.




      1
          Ind. Code § 35-44.1-3-1 (2016).
      2
          Ind. Code § 9-24-19-2 (2016).

      Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018     Page 2 of 12
[4]   At that point, Deputy Stegman activated his red and blue flashing lights to

      signal the driver of the Honda to stop. Instead of stopping, the Honda

      accelerated and fled from Stegman. Stegman pursued the Honda from

      Hancock County into Marion County on Washington Street. The Honda

      traveled at a very high rate of speed in a high-traffic area, driving through

      several red lights. Stegman notified dispatch he was going to end his

      emergency pursuit due to the Honda’s unsafe speed and the driver’s erratic

      behavior in a busy area.


[5]   Meanwhile, Mindy Castaneda was a passenger in a car at the intersection of

      Washington Street and Mitthoefer Road in Marion County, waiting for the

      light to change. She saw a car drive into the intersection at a high rate of speed,

      crash into a median, and come to a stop. Two people exited the car: a male

      from the driver’s seat and a female from the front passenger’s seat. Castaneda

      later testified that she observed both the driver and the passenger run away from

      the scene of the incident. Castaneda testified in court that she identified Baker

      as being the driver of the car. There were other witnesses who observed two

      people run away from the scene as well. The female passenger ran toward a

      dumpster. The male ran in another direction.


[6]   Shortly thereafter, Deputy Stegman arrived at the intersection and saw the

      wrecked, empty Honda. Castaneda and other eyewitnesses described Baker

      and the female passenger to Stegman and the directions in which they fled from

      the scene. Other officers arrived at the scene and set up a perimeter around the

      area.

      Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 3 of 12
[7]   Officers quickly apprehended the female suspect behind a dumpster.

      Meanwhile, Officer Kevin Stickford responded to the scene with his K-9 unit,

      Pepo. Testimony was presented as to how Pepo was trained to track suspects

      and to perform area searches. Officer Stickford and Pepo searched in the

      direction where the male suspect had fled and found a long-sleeved shirt on the

      ground. Next, Pepo led Stickford to a fenced area, where Stickford saw an

      individual, later identified as Baker, lying on the ground. Stickford ordered

      Baker to surrender, but he got up and jumped over the fence. Another officer

      was waiting on the other side of the fence and captured him. No one else was

      found in the area where Baker was apprehended except Baker and the officers.


[8]   The officers placed Baker in handcuffs and moved him to a location where he

      was ordered to sit on a curb surrounded by several officers. Stickford, over

      objection, later testified that he saw and heard another officer ask Baker “why

      he ran.” Tr. Vol. 2, p. 131. Stickford further testified that Baker responded,

      “because he was scared.” Id. at 132. Upon arriving at Baker’s location, Deputy

      Stegman saw that Baker had a cut on the bridge of his nose. Stegman testified

      that in his experience, the type and location of the injury to Baker was

      consistent with a person being in an automobile accident while driving a car.


[9]   Baker and the female suspect were taken to the Hancock Country Jail. The two

      were placed together on a bench during processing, and Deputy Stegman

      observed them whispering to one another as if they previously knew each other.




      Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 4 of 12
[10]   On May 24, 2017, the State charged Baker with resisting law enforcement by

       use of a vehicle, a Level 6 felony; auto theft, a Level 6 felony; and driving while

       suspended with a prior similar offense within the past ten years, a Class A

       misdemeanor. The State further charged Baker with being an habitual offender.


[11]   The case was tried by jury on August 22, 2017. Prior to trial, the State

       dismissed the count of auto theft. The jury found Baker guilty of resisting law

       enforcement and driving while suspended. Next, Baker waived his right to a

       jury trial on the habitual offender enhancement. The trial court heard evidence

       and determined Baker was an habitual offender. The court subsequently

       imposed a sentence, and this appeal followed.


                                     Discussion and Decision
        I. Admission of Officer’s Testimony About Another Officer’s
                                  Question
[12]   Baker argues the trial court erred in allowing Officer Stickford to testify that

       another officer asked Baker “why he ran.” Tr. Vol. 2, p. 131. Specifically, he

       argues that under the circumstances, Officer Stickford’s description of the

       unidentified and absent officer’s question was inadmissible hearsay.


[13]   A trial court has broad discretion to admit or exclude evidence, including

       purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). We

       therefore disturb its ruling only if it amounts to an abuse of discretion, meaning

       the court’s decision is clearly against the logic and effect of the facts and

       circumstances or it is a misinterpretation of the law. Id.

       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 5 of 12
[14]   Hearsay is a statement that “is not made by the declarant while testifying at the

       trial or hearing; and . . . is offered in evidence to prove the truth of the matter

       asserted.” Ind. Evid. Rule 801(c). Hearsay is not admissible in court. Ind.

       Evid. Rule 802. On the other hand, an utterance that does not assert a fact

       susceptible of being true or false cannot be hearsay. Powell v. State, 714 N.E.2d

       624, 627 (Ind. 1999).


[15]   In Powell, an eyewitness testified that prior to being shot at by a group of men,

       one of the men asked, “you think we ain’t got guns, too, or whatever.” Id. at

       626. The eyewitness testified about the matter at trial. On appeal, Powell

       claimed the question was inadmissible hearsay. The State responded that a

       question cannot be considered hearsay because there is no assertion of fact.

       The Indiana Supreme Court determined that “an utterance that is in the form of

       a question can in substance contain an assertion of fact.” Id. at 628. The Court

       further stated, “The classic example is ‘Joe, why did you stab Bill?” Id. “[S]uch

       an utterance clearly carries a factual allegation within it, and [the original

       declarant] should be subject to cross-examination unless exempt for some other

       reason.” Id. The Court concluded the question about gun possession was

       offered for the truth of the matter asserted and was hearsay. Id.


[16]   In this case, Officer Stickford testified that he observed and heard an

       unidentified officer ask Baker, “why he ran.” That question, like the “classic

       example” discussed in the Powell case, 714 N.E.2d at 628, contains a factual

       utterance that is capable of being proven true or false, specifically that Baker ran



       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 6 of 12
       away. We conclude the question was offered for the truth of the matter asserted

       and should not have been admitted into evidence. See id.


[17]   The State notes that a statement that otherwise meets the definition of hearsay

       is not considered hearsay if the statement is “offered against an opposing party”

       and that party “manifested that it adopted” it or “believed [it] to be true.” Ind.

       Evid. Rule 801(d)(2). The State further claims Baker effectively adopted the

       officer’s question as his own statement by answering it. We disagree. The

       Indiana Supreme Court has stated with respect to adoption of another person’s

       statement: “Silence or an equivocal response to an assertion of fact, which, if

       true, a reasonable man would be expected to deny, is admissible as evidence

       tending to show the truth of the assertion, if the person is not in custody when

       the assertion is made, and the person has an opportunity to speak.” Robinson v.

       State, 266 Ind. 604, 611-12, 365 N.E.2d 1218, 1223 (1977) (citations omitted).

       Herein it is undisputed that Baker had been apprehended, handcuffed, and

       ordered to sit on a curb, and was surrounded by several police officers when the

       unnamed officer asked Baker the question at issue. Baker was obviously in

       custody, and so Rule 801(d)(2) does not apply.


[18]   However, our analysis does not end with our determination that the admission

       of the question and response was an abuse of discretion by the trial court. The

       erroneous admission of hearsay testimony does not necessarily require reversal

       unless it prejudices the defendant’s substantial rights. Blount, 22 N.E.3d at 564.

       To determine whether an evidentiary error was so prejudicial, we assess the

       probable impact the evidence had upon the jury’s verdict in light of all the other

       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 7 of 12
       evidence that was properly presented. Id. If we are satisfied the conviction is

       supported by independent evidence of guilt such that there is little likelihood the

       challenged evidence contributed to the verdict, the error is harmless. Id.


[19]   In this case, witness Mindy Castaneda testified that she saw Baker exit the

       wrecked automobile from the driver’s seat and run away. She further identified

       Baker in court as the person she saw at the scene. She also observed a female

       suspect exit the car and run toward a dumpster. Deputy Stegman arrived at the

       scene soon thereafter and recognized the wrecked car as the Honda he had been

       pursuing.


[20]   Other officers established a perimeter around the area of the wreck and quickly

       arrested the female suspect behind the dumpster. Meanwhile, Officer Stickford

       and his K-9 performed an area search within the perimeter, moving north in the

       same direction Baker had been seen running. The K-9 located a long-sleeved

       shirt. Next, Stickford saw Baker lying on the ground near a fence and ordered

       him to surrender. Baker instead jumped over the fence, where he was

       apprehended by another officer. When Deputy Stegman arrived where Baker

       was being kept in custody, the deputy noticed that Baker had an injury to the

       bridge of his nose. The location of the injury was consistent with the type of

       injury Stegman had seen other motorists sustain in car accidents.


[21]   Later, at the Hancock County Police station, Baker was seated on a bench with

       the female suspect. Deputy Stegman observing them conversing in whispers in

       a manner that indicated that they knew one another. This independent


       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 8 of 12
       evidence of guilt is sufficient to establish that there is little likelihood the

       officer’s question contributed to the jury’s verdict. We conclude admission of

       the officer’s question and response into evidence was harmless error.


[22]   Baker further argues that admission of Officer Stickford’s testimony about the

       unnamed officer’s question also violated his Sixth Amendment right to confront

       witnesses because the officer should have been brought to court to testify.

       Baker acknowledges he did not cite the Sixth Amendment when he objected to

       Stickford’s testimony. Appellant’s Br. p. 17. As a result, the claim is waived.

       See Torres v. State, 12 N.E.3d 272, 274 (Ind. Ct. App. 2014) (Sixth Amendment

       claim waived due to failure to raise it during trial), trans. denied.


[23]   We have already determined that admission of the question into evidence was

       an abuse of discretion because it was hearsay. Even if Baker had not waived his

       Sixth Amendment claim, and even if admission of the question violated Baker’s

       right to confront witnesses, such violations “do not require reversal if the State

       can show beyond a reasonable doubt that the error did not contribute to the

       verdict.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010). That is to say, “an

       otherwise valid conviction should not be set aside if the reviewing court may

       confidently say, on the whole record, that the constitutional error was harmless

       beyond a reasonable doubt.” Id.


[24]   In light of the considerable evidence we have set forth above, we conclude

       beyond a reasonable doubt that Officer Stickford’s description of the unnamed




       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018     Page 9 of 12
       officer’s question did not contribute to the jury’s verdict. As a result, any Sixth

       Amendment violation was harmless.


       II. Admission of Officer’s Testimony About Baker’s Response
                      to Another Officer’s Question
[25]   Baker next argues the trial court erred in allowing Officer Stickford to testify

       about Baker’s response to the unidentified and unnamed officer’s question of

       why he ran. Baker specifically claims that when the officer questioned him, he

       was in custody, had not been read his Miranda rights, and as a result his

       statement was inadmissible. As noted above, we generally review the

       admission of evidence for an abuse of discretion. However, Baker concedes

       that he did not contemporaneously object to Stickford’s description of his

       response. Appellant’s Br. p. 20. As a result, Baker further concedes he must

       demonstrate that the admission of testimony describing his answer was

       fundamental error.


[26]   A contemporaneous objection at the time the evidence is introduced at trial is

       required to preserve the issue for appeal, whether or not the appellant has filed a

       pretrial motion to suppress. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

       The purpose of this rule is to allow the trial judge to consider the issue in light

       of any fresh developments and also to correct any errors. Id.


[27]   Fundamental error is an “extremely narrow exception” to the contemporaneous

       objection requirement. Gavin v. State, 41 N.E.3d 1038, 1042 (Ind. Ct. App.

       2015). In evaluating the issue of fundamental error, our task is to look at the


       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 10 of 12
       alleged misconduct in the context of all that happened and all relevant

       information given to the jury - including evidence admitted at trial, closing

       argument, and jury instructions - to determine whether the misconduct had

       such an undeniable and substantial effect on the jury’s decision that a fair trial

       was impossible. Id. Fundamental error is meant to permit appellate courts a

       means to correct the most egregious and blatant trial errors that otherwise

       would have been procedurally barred. Id.


[28]   The Fifth Amendment provides, in relevant part, that no person “shall be

       compelled in any criminal case to be a witness against himself . . . without due

       process of law.” As a result, the State may not use statements, whether

       exculpatory or inculpatory, stemming from custodial interrogation of the

       defendant unless it demonstrates the use of procedural safeguards effective to

       secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436,

       444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). “By custodial interrogation,

       we mean questioning initiated by law enforcement officers after a person has

       been taken into custody or otherwise deprived of his freedom of action in any

       significant way.” Id. at 444, 86 S. Ct. at 1612.


[29]   In this case, Baker was undoubtedly in custody when he responded to the

       officer’s question by stating that he was scared. Baker was in handcuffs and

       had been moved from the site of his apprehension to an area where he was

       surrounded by police officers, and he was ordered to sit on a curb. Further, the

       State does not point to any evidence that any of the officers had informed Baker

       of his Miranda rights before the officer asked Baker why he ran.

       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 11 of 12
[30]   Nevertheless, considering the extensive evidence presented at trial, we cannot

       conclude any error in the admission of Baker’s response amounted to

       fundamental error. Eyewitness testimony established that Baker drove the car

       that Deputy Stegman followed from Hancock County into Marion County.

       Further, officers found Baker by searching in the direction where the eyewitness

       stated he had run. No other persons were found in the area of Baker’s

       apprehension. Stegman noted that Baker had a nose injury that commonly

       occurs to drivers involved in auto accidents. We cannot conclude herein that

       admission of Baker’s answer to the officer’s question, although in error, was so

       egregious as to render a fair trial impossible. Baker has failed to demonstrate

       fundamental error.


                                                 Conclusion
[31]   For the reasons stated above, we affirm the judgment of the trial court.


[32]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Opinion 30A01-1710-CR-2511 | October 9, 2018   Page 12 of 12
