MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Jan 29 2016, 9:01 am

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
Patricia Caress McMath                                   Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General


                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lyle D. Tucker,                                          January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         60A01-1506-CR-532
        v.                                               Appeal from the Owen Circuit
                                                         Court
State of Indiana,                                        The Honorable Erik C. Allen
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         60C01-1406-FA-286



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 1 of 10
                                          Case Summary
[1]   Lyle Tucker sold methamphetamine on three separate occasions to informants

      who were recording the transaction for the Bloomington Police Department.

      Tucker appeals the trial court’s decision to admit these recordings at his trial for

      dealing in methamphetamine. He argues that the State failed to establish an

      adequate foundation for the recordings under the silent witness theory and that

      his rights under the Confrontation Clause were violated. Underlying both

      arguments is the fact that none of the three informants who recorded Tucker

      selling them the methamphetamine appeared at trial. However, there is no

      requirement that the informants testify to adequately establish a foundation

      under the silent witness theory. Here, the trial court reasonably relied on the

      testimony of the detectives to establish a foundation for admitting the video

      recordings. Moreover, the Confrontation Clause applies to testimonial hearsay.

      The videos at issue in this case are not hearsay. Therefore, we affirm the trial

      court’s admission of the videos into evidence.



                            Facts and Procedural History
[2]   Between April 24 and June 10, 2014, Bloomington Police Department

      Detective Erick Teuton used three different informants to conduct three

      controlled buys of methamphetamine from Lyle D. Tucker. The first buy was

      executed on April 24 by informant A.B. working in conjunction with

      Bloomington Police Department Detective Christopher Scott. The second



      Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 2 of 10
      controlled buy was carried out by informant J.S. on May 27. The final buy, on

      June 10, was made by informant J.N.

[3]   The procedure followed by Detective Teuton for each of the controlled buys

      was substantially similar. He met the informant at a pre-arranged location.

      Detective Teuton searched the informant for money or drugs—checking the

      informant’s clothing, hair, and mouth. Because informants J.S. and J.N. drove

      themselves to Tucker’s home, Detective Teuton also searched their cars. No

      contraband was found in the searches for any of the three informants. After the

      search, Detective Teuton showed each informant how to hold the recording

      device that would be used to capture video evidence of the controlled buy. A.B.

      was given a recording device disguised as a cell phone cover. J.S. and J.N.

      were each given a recording device disguised as a key fob. All three informants

      were instructed not to turn the device off and not to touch any buttons on the

      recording device. Once the training was complete, the informants were given

      the controlled funds to make the purchase and the recording device. Detective

      Teuton turned on the recording devices for informants J.S. and J.N. Detective

      Scott turned on the recording device for A.B. while he was driving her to

      Tucker’s house.

[4]   After each of the controlled buys, the informant met Detective Teuton at a pre-

      arranged location. In A.B.’s case, because Detective Scott drove her to

      Tucker’s home, the methamphetamine and the recording device were already

      turned over to Detective Scott. Detective Scott turned off A.B.’s recording

      device and gave both the methamphetamine and the device to Detective Teuton

      Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 3 of 10
      when he and A.B. arrived at the location. J.S. and J.N. returned the

      methamphetamine and the still-running recording devices directly to Detective

      Teuton. Detective Teuton turned off J.S.’s and J.N.’s recording devices. He

      took the drugs and devices back to the Bloomington Police Department where

      he logged the methamphetamine into evidence. Detective Teuton downloaded

      the video from each recording device and transferred it to a DVD, which he

      reviewed to be sure that it was continuous, and that there were no indications

      the device had either malfunctioned or been turned off and on again while in

      the informant’s possession. Detective Teuton logged the DVD into evidence by

      placing his case number, name, and item number on the back of it. An

      evidence technician placed the evidence sticker on the DVD as well. Before

      trial, Detective Teuton verified that the video on the DVD was the same video

      he reviewed when it was initially downloaded.

[5]   On June 11, after the last controlled buy, Detective Teuton obtained a search

      warrant for Tucker’s home and for the vehicles on his property. A group of

      officers went to Tucker’s home, but he was not there. Detective Teuton saw

      Tucker arrive in a small, red pickup truck, and then immediately leave in a

      silver minivan. Tucker returned between twenty and thirty minutes later in a

      large, blue pickup truck. He was arrested when he got out of the blue truck and

      officers began searching his house. The officers recovered two glass smoking

      pipes, plastic baggies, and a scale from the house.

[6]   Officers found the silver minivan a few hundred yards east of Tucker’s property,

      unoccupied and pulled halfway off the road. Detective Teuton obtained a

      Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 4 of 10
      search warrant for the minivan and he took the keys to the minivan from

      Tucker. Inside the van, under the driver’s seat, officers found a black pouch

      containing smaller bags that held methamphetamine. They also found a black

      pouch with Tucker’s name on it, papers that belonged to Tucker, and a

      checkbook with Tucker’s name on it.

[7]   The State initially charged Tucker with five counts: (I) Class B felony dealing in

      methamphetamine for the April 24, 2014 sale to A.B.; (II) Class A felony

      dealing in methamphetamine for the May 27 sale to J.S.; (III) Class B felony

      dealing in methamphetamine for the June 10 sale to J.N.; (IV) Class A

      misdemeanor possession of paraphernalia; and (V) Class D felony maintaining

      a common nuisance. The State later added two counts: (VI) Class A felony

      dealing in methamphetamine based on the methamphetamine found in the

      minivan; and (VII) Class D felony possession of marijuana.

[8]   Detectives Teuton and Scott testified at trial, describing the procedure used to

      obtain video of the controlled buys. However, none of the three informants

      testified as none of them could be located and all three were wanted on

      unrelated warrants. The three videos were admitted into evidence and shown

      to the jury over Tucker’s objection. The jury returned a verdict of guilty on

      Counts I through VI. Count VII was dismissed with prejudice on the motion of

      the State. Tucker now appeals.




      Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 5 of 10
                                  Discussion and Decision
[9]    Tucker argues that the trial court abused its discretion when it admitted the

       recordings of the three controlled buys. He claims that the foundation for the

       recordings was inadequate under the silent witness theory and that admitting

       the recordings without the opportunity to cross-examine the three informants

       violated his rights under the Sixth Amendment Confrontation Clause.

[10]   We review the trial court’s ruling on the admission of evidence for an abuse of

       discretion. Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014), trans.

       denied. We reverse only where the decision is clearly against the logic and effect

       of the facts and circumstances. Id. Even if the trial court’s decision was an

       abuse of discretion, we will not reverse if the admission constituted harmless

       error. Id.


                                 I. Silent Witness Foundation
[11]   The silent witness theory permits the admission of photographs as substantive

       evidence. Bergner v. State, 397 N.E.2d 1012, 1017 (Ind. Ct. App. 1979). The

       theory includes the admission of video recordings, provided there is a strong

       showing of authenticity and competency. McHenry v. State, 820 N.E.2d 124,

       128 (Ind. 2005). The sufficiency of the foundation is left to the discretion of the

       trial court. Bergner, 397 N.E.2d at 1017. In general, there must be a showing

       that the videotape has not been altered. Mays v. State, 907 N.E.2d 128, 132

       (Ind. Ct. App. 2009), trans. denied. In cases involving automatic cameras, “there

       should be evidence as to how and when the camera was loaded, how frequently

       Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 6 of 10
       the camera was activated, when the photographs were taken, and the processing

       and chain of custody of the film after its removal from the camera.” Id.

       (quoting Kindred v. State, 524 N.E.2d 279, 298 (Ind. 1988)). There is not,

       however, a requirement that the informant in the video testify that the video

       accurately represents what occurred. Id. at 131.


[12]   Here, Detective Teuton testified regarding the nature of the recording devices

       used and how the devices were prepared for recording. The informants were

       not told how to turn the recording devices on or off; rather, a detective turned

       on the device before handing it to the informant and turned off the device when

       the informant returned with it. Moreover, Detective Teuton testified that “you

       can always tell if the recording has been turned off or if it’s been turned off and

       turned back on.” Tr. p. 197. The recordings were continuous; there were no

       “black screens” indicating tampering or malfunction of the recording device.

       Detective Teuton explained the chain of custody after the videos were recorded.

       He took the recording devices to his office, downloaded the videos, transferred

       them onto DVDs, and logged the DVDs into evidence. He viewed the video at

       the time he made the DVD and reviewed it shortly before trial to verify that it

       had not been altered in any way. Detective Teuton’s testimony supports the

       trial court’s inference that the video was not altered either while it was recorded

       or in the subsequent handling.

[13]   Tucker contends that the failure of the three informants to testify precludes

       sufficient authentication under the silent witness theory because there was no

       one to testify as to how they actually operated the recording devices and

       Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 7 of 10
       “whether they turned them off at any point during the transactions they

       recorded.” Appellant’s Br. p. 7. He further argues that the informants did not

       testify that Tucker is the man selling them methamphetamine in the videos,

       which Tucker claims is an important factor in authenticating the recording. We

       find these arguments unpersuasive. The burden of proof for authenticity and

       competency is relative certainty. See Kindred, 524 N.E.2d at 298-99 (quoting

       Bergner, 397 N.E.2d at 1017). The trial court could reasonably conclude from

       Detective Teuton’s testimony that any break in recording would have been

       apparent in the video. As to the identity of the person selling the drugs to the

       informants in the recordings, Detective Teuton testified that he watched the

       three recordings and that they were the recordings of the informants purchasing

       methamphetamine from Tucker. In this case, Detective Teuton’s testimony

       was sufficient to meet the authentication requirements.1

[14]   In summary, the trial court’s determination that the State laid a proper

       foundation for the admission of the video evidence was not clearly against the

       logic and effect of the facts and circumstances. See Vaughn, 13 N.E.3d at 879.

       We conclude that the trial court did not abuse its discretion in admitting the

       video evidence of the three controlled buys.




       1
        Tucker cites Bergner, Mays, and Wise v. State, 26 N.E.3d 137 (Ind. Ct. App. 2015), trans. denied, in support of
       his argument that identification is an important factor in authentication. We agree. While identity of the
       parties in the video is a factor, we do not see a requirement that identity be established by a particular witness
       or class of witnesses.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016               Page 8 of 10
                                      II. Confrontation Clause
[15]   Tucker’s second argument is that showing the recordings of the three controlled

       buys, in the absence of the informants who carried the recording devices,

       violated his Sixth Amendment right to confront the witnesses against him.

       Tucker contends that because “he could not cross-examine the videos, they

       were not admissible.” Appellant’s Br. p. 9.

[16]   The Sixth Amendment provides that “the accused shall enjoy the right . . . to be

       confronted with the witnesses against him[.]” The Confrontation Clause

       prohibits the admission of “testimonial hearsay” where the defendant will not

       have the opportunity to cross-examine the declarant. Crawford v. Washington,

       541 U.S. 36, 68 (2004). However, it “does not bar the use of testimonial

       statements for purposes other than establishing the truth of the matter asserted.”

       Id. at 59 n.9.2 “Thus, if a statement is either nontestimonial or non-hearsay, the

       federal Confrontation Clause will not bar its admissibility at trial.” Williams v.

       State, 930 N.E.2d 602, 607-08 (Ind. Ct. App. 2010), trans. denied.


[17]   Here, the statements in the videos are not hearsay. First, Tucker’s statements,

       as the defendant, are not hearsay because they are statements of a party

       opponent. See Ind. Evidence Rule 801(d)(2)(A). The informants’ statements




       2
         The videos in this case are distinguishable on this point from Melendez-Diaz v. Massachusetts, 557 U.S. 305
       (2009), where the evidence at issue was three sworn statements by lab technicians which delivered the results
       of laboratory testing and which were offered to prove that the substance taken from the defendant was
       cocaine. Because the lab reports were admitted to prove the truth of the statements in the lab reports, they
       were hearsay.

       Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016           Page 9 of 10
       are, also, not hearsay as their contributions to the video conversation were not

       admitted for the truth of the matters asserted. See Evid. R. 801(c). Rather, they

       were properly admitted to place Tucker’s statements in context. “Statements

       providing context for other admissible statements are not hearsay because they

       are not offered for their truth.” Williams, 930 N.E.2d at 609 (quoting United

       States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)). Because the statements

       contained in the videos are not hearsay, the Confrontation Clause does not bar

       their admission. See Williams, 930 N.E.2d at 607-08.


[18]   Finding the foundation for the videos adequate under the silent witness theory

       and that the videos did not violate Tucker’s rights under the Confrontation

       Clause, we affirm.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A01-1506-CR-532 | January 29, 2016   Page 10 of 10
