                                                                                   FILED
                                                                               Feb 12 2018, 9:19 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bruce W. Graham                                            Curtis T. Hill, Jr.
Graham Law Firm P.C.                                       Attorney General of Indiana
Lafayette, Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Joseph Ira Burns,                                          February 12, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           79A04-1705-CR-1005
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven P. Meyer,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           79D02-1608-F2-22



May, Judge.




Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018                           Page 1 of 14
[1]   Joseph Ira Burns appeals his convictions of Level 2 felony conspiracy to

      commit burglary; 1 Level 2 felony burglary while armed with a deadly weapon; 2

      two counts of Level 6 felony criminal confinement while armed with a deadly

      weapon; 3 and Level 3 felony robbery resulting in bodily injury. 4 He presents

      two issues for review, which we restate as:


                 1) Whether the trial court erred when it admitted a recorded
                    deposition from a witness; and


                 2) Whether sufficient evidence was presented to support his
                    conviction of Level 2 felony burglary while armed with a
                    deadly weapon.


[2]   We affirm.



                                Facts and Procedural History
[3]   On August 19, 2016, Burns, his brother Steven, and Adam Smith met at

      Smith’s house and decided to steal money from Jerry and Linda Mathews

      (collectively, “the Mathews”). Steven had seen Jerry carrying large amounts of




      1
          Ind. Code §§ 35-43-2-1 (2014) & 35-41-5-2 (2014).
      2
          Ind. Code § 35-43-2-1(3)(A) (2014).
      3
          Ind. Code § 35-42-3-3(2)(A) (2014).
      4
          Ind. Code § 35-42-5-1(2014).


      Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 2 of 14
      cash to pay for automobile repairs. The Mathews’ house was only a few blocks

      from Smith’s.


[4]   On the way to the Matthews’ house, Steven stopped to retrieve two guns and

      gave one to Burns. Each man wore a bandana mask of a different color. Burns

      wore a green mask, Steven a red one, and Adam a black one. They broke into

      the Mathews’ home via an unlocked window. They entered the Mathews’

      bedroom, turned on the light, and began yelling at Jerry to give them his

      money.


[5]   Jerry got out of bed denying the presence of money in the house but Steven hit

      him in the head with his gun and knocked him to the floor. Jerry’s head was

      bleeding. Linda remained in bed with Smith near her. Burns remained in the

      doorway with his pistol pointed in Jerry’s direction. Steven threatened to kill

      Jerry and have Smith rape Linda.


[6]   Steven and Burns dragged Jerry to another room and retrieved his wallet.

      Smith stayed with Linda. Steven took all the money from Jerry’s wallet,

      including some two-dollar bills. He also stole Jerry’s rings and a watch. Steven

      and Burns returned Jerry to his bedroom. Steven informed the couple he would

      kill them if they left the bed. All three men then exited the home.




      Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 3 of 14
[7]    Unbeknownst to the burglars, the Mathews rented their basement to Avonne

       Smith. 5 Avonne “heard Jerry state to somebody that was in the house, [‘]I

       already told you, you have all the money I have in my wallet.[’]” (Tr. Vol. II at

       88.) Avonne called 911 and reported the burglary. Within ten minutes, the

       police arrived at the Mathews’ home.


[8]    Lafayette Police Department Officer Cassandra Leuck responded to the

       dispatch. En route to the Mathews’ home, she saw three men running from the

       area. The men matched the description of the suspects. Officer Leuck

       apprehended Smith but Burns and Steven eluded her.


[9]    Around 2:30 or 3:00 a.m., Burns arrived at John Smalley’s home and requested

       a shower. Shortly thereafter, Steven also arrived at Smalley’s home. Steven

       had some watches and rings in his pockets. Steven told Smalley he had stolen

       the items from Jerry Mathews. Referring to the gun as “a stinger,” Steven

       asked Burns “what he had done with the gun that he had.” (Tr. Vol. III at 9.)

       Burns was not sure but he thought he had left it along the street.


[10]   Lafayette SWAT team arrived at the Smalley home later that morning and

       arrested Steven and Burns. They retrieved the rings, the watches and over

       $3000 in cash. No one in the home claimed the cash belonged to them. The




       5
           Ms. Smith is no relation to Adam Smith. (See Tr. Vol. II at 90.)


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 4 of 14
       police also retrieved a sweatshirt with blood on it. The DNA from the blood

       matched Jerry’s DNA.


[11]   The State charged Burns with Level 2 felony conspiracy to commit burglary;

       Level 2 felony burglary while armed with a deadly weapon; two counts of Level

       3 felony criminal confinement while armed with a deadly weapon; Level 3

       felony robbery while armed with a deadly weapon; 6 Level 3 felony robbery

       resulting in bodily injury; two counts of Level 5 felony intimidation while

       drawing or using a deadly weapon; 7 Level 5 felony battery with a deadly

       weapon; 8 Class A misdemeanor theft; 9 Level 6 felony pointing a firearm at

       another person; 10 Class A misdemeanor carrying a handgun without a license; 11

       Level 5 felony carrying handgun while having a prior felony conviction; 12 and

       an enhancement for using a firearm during the commission of criminal

       confinement. 13


[12]   Prior to trial, the Mathews moved to Florida. Linda was diagnosed with a

       malignant brain tumor. On February 17, 2017, the State filed a notice of



       6
           Ind. Code § 35-42-5-1 (2014).
       7
           Ind. Code § 35-45-2-1(b)(2)(A) (2014).
       8
           Ind. Code § 35-42-2-1(g)(2) (2016).
       9
           Ind. Code § 35-43-4-2 (2014).
       10
            Ind. Code § 35-47-4-3 (2014).
       11
            Ind. Code § 35-47-2-1 (2014).
       12
            Ind. Code § 35-47-2-1(e)(2)(B) (2014).
       13
            Ind. Code § 35-50-2-11 (2016).


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 5 of 14
       testimonial video deposition because Linda was unable to travel back to

       Indiana. Linda’s physician attested to her illness, the requirement for her to

       stay close to her treatment facility, and the danger to her health if she traveled

       or was in large groups of people. Burns objected to the notice as unreasonable

       and violative of his Sixth Amendment right to confrontation. Burns requested

       he be transported to attend the deposition in Florida.


[13]   The arrangements for the deposition included two-way video-conferencing so

       Burns, from the jail, could see Linda and be seen by Linda. Burns’ counsel was

       invited to attend in person. The trial court denied Burns’ objection and denied

       his request to attend. On February 27, 2017, the parties conducted a deposition

       in Florida. The State was present in person. Burns, his attorney, and the trial

       court judge were present via videoconferencing call. Prior to the deposition, the

       trial court conducted a competency hearing for Linda. It found “the witness is

       competent to provide testimony for the purposes of this deposition.” (App. Vol.

       II at 118.)


[14]   On March 10, 2017, at trial, the court deemed Linda unavailable and allowed

       her deposition to be entered into evidence. Burns again objected on the same

       grounds, but his objection was denied. A redacted version of the deposition

       video was played for the jury.


[15]   The jury found Burns not guilty of Level 6 felony pointing a firearm at another

       and Class A misdemeanor carrying a handgun without a license but returned a

       guilty verdict on all other charges. The State dismissed the Level 5 felony


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 6 of 14
       carrying a handgun while having a prior felony conviction and the

       enhancement. 14 Due to double jeopardy concerns, the trial court reduced both

       Level 3 felony criminal confinement charges to Level 6 felonies; merged the

       Level 3 felony robbery while armed with a deadly weapon, the Level 5 battery

       with a deadly weapon and the Class A misdemeanor theft charges with the

       Level 3 felony robbery resulting in bodily injury; and merged the intimidation

       charges into the criminal confinement charges.



                                     Discussion and Decision                                 15




                                            Admission of Evidence
                                                       Rules of Evidence

[16]   Burns contends Linda’s deposition should not have been admitted into evidence

       during trial because the trial court erred in deeming her “unavailable” for trial

       such that her deposition was admissible under an exception to the hearsay rule.

       See Ind. Evidence Rule 804. He argues that because Linda testified she was




       14
            These charges were not sent to the jury.
       15
         We note that, in closing arguments, defense counsel conceded Burns was guilty of conspiracy to commit
       burglary, robbery resulting in bodily injury, and theft. (See Tr. Vol. III at 98-99 (theft), 100 (robbery), 102
       (conspiracy).) Neither his appellate brief nor the State’s brief acknowledges this concession; thus, we
       consider his appeal as including all convictions as they may be affected by the trial court’s rulings. See, e.g.,
       Ward v. State, 810 N.E.2d 1042 (Ind. 2004) (although Ward conceded responsibility for the victim’s death,
       ancillary decisions still reviewed overall as they pertain to all convictions), reh’g denied, cert. denied 546 U.S.
       926 (2005).

       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018                            Page 7 of 14
       able to do housework, she was able to travel from Florida to Indiana to testify

       at trial.


[17]   The decision to admit former testimony of an unavailable witness is within the

       sound discretion of the trial court. Rhea v. State, 814 N.E.2d 1031, 1033 (Ind.

       Ct. App. 2004), trans. denied. We will not reverse “absent a showing of manifest

       abuse of the trial court’s discretion resulting in the denial of a fair trial.” Guy v.

       State, 755 N.E.2d 248, 252 (Ind. Ct. App. 2001), reh’g denied, trans. denied. We

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

       evidence in the defendant’s favor.” Id.


[18]   While prior testimony is hearsay, Indiana Rule of Evidence 804 provides an

       exception to its exclusion if the declarant is unavailable. To be considered

       unavailable, the declarant must be unable to testify “because of death or a then-

       existing infirmity, physical illness, or mental illness[.]” Evid. R. 804(a)(4)

       (2014). If a witness is determined unavailable, former testimony given “at a

       trial, hearing, or lawful deposition” is not excluded by the hearsay rule. Evid.

       R. 804(b)(1)(A) (2014). When admitting such testimony, the opponent must

       have had an opportunity to cross-examine the deponent. Thomas v. State, 966

       N.E.2d 1267, 1270 (Ind. Ct. App. 2012), trans. denied.


[19]   Herein, Linda was diagnosed with a malignant brain tumor. Her doctor

       submitted documentation regarding her diagnosis and treatment. She was

       involved in clinical trials requiring her to have therapy six days per week

       without interruptions to avoid any detrimental response. Additionally, her


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 8 of 14
       doctor stated “[s]he needs to stay close to the Cancer Center so that she can be

       closely followed and observed for any adverse events.” (App. Vol. II at 86.)

       The doctor also advised Linda’s immune system was compromised and she

       would “be at an increased risk for infection” if she did not avoid public places.

       (Id. at 149.)


[20]   Due to these circumstances, we cannot say the trial court abused its discretion

       in finding Linda unavailable. The record demonstrates Linda lived out of state,

       was diagnosed with a malignant brain tumor, was participating in a clinical

       trial, was unable to be in public places, and required close observation by her

       doctors. Prior to the deposition, the trial court conducted a competency

       hearing and was able to observe Linda firsthand. Burns’ allegations that

       Linda’s ability to do some housework equates to her availability to testify in

       person in Indiana does not convince us the trial court erred when it determined

       she was unable to travel for several days to another state to testify.


                                             Confrontation Clause

[21]   The Sixth Amendment to the United States Constitution provides, in relevant

       part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

       be confronted with the witnesses against him[.]” Article I, Section 13 of the

       Indiana Constitution provides, in relevant part, that “[i]n all criminal

       prosecutions, the accused shall have the right . . . to meet the witnesses face to

       face[.]” Burns argues he was denied the right to face-to-face confrontation

       when the trial court allowed Linda’s deposition to be admitted as evidence.


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 9 of 14
[22]   The State and the trial court endeavored to take all necessary care to preserve

       Burns’ right to confront his accuser face-to-face. Regardless, Linda’s testimony

       was cumulative of other evidence. Linda testified as to the attack, the attackers’

       clothing, what was said and done while the attackers were in the bedroom, and

       how she felt during the incident. Except the information as to how she felt

       during the attack, Jerry and Smith testified similarly. As most of Linda’s

       testimony was cumulative of other evidence, any error was harmless. See Berry

       v. State, 725 N.E.2d 939, 943 (Ind. Ct. App. 2000).


[23]   Notwithstanding the fact any error would be harmless, we find no violation of

       Burns’ right to confront his accuser. “The Sixth Amendment right of

       confrontation requires that a defendant be afforded an opportunity to conduct a

       full, adequate, and effective cross-examination.” Belser v. State, 727 N.E.2d 457,

       463 (Ind. Ct. App. 2000), trans. denied. “[T]he Indiana Constitution guarantees

       a defendant the right to face-to-face confrontation with witnesses against him.”

       Id. Here, Linda’s deposition was arranged so that Burns’ attorney could attend

       in Florida (although it appears from the record he appeared via teleconference),

       Burns attended via two-way video that allowed him to see Linda and Linda to

       see him, and Burns was able to communicate with his attorney. Burns’

       attorney was able to fully cross-examine Linda, and the two-way video

       arrangement allowed Burns to participate face-to-face. See Brady v. State, 575

       N.E.2d 981, 989 (Ind. 1991).


[24]   Prior to taking the deposition, the State filed a “Notice of Testimonial Video

       Deposition” indicating Linda’s deposition may be used for testimony. (App.

       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 10 of 14
       Vol. II at 70.) In his objection to the taking of the deposition, Burns

       acknowledged Linda’s deposition might be used at trial when he stated he

       “believes the State’s purpose for taking the testimonial video deposition of

       Linda Mathews is for use at the trial of Joseph Ira Burns[.]” (Id. at 74.) Thus,

       Burns was on notice to conduct the cross-examination with a similar motive as

       he would use at trial and he appears to have done so. See Morgan v. State, 903

       N.E.2d 1010, 1016 (Ind. Ct. App. 2009) (if defendant had similar motive to

       develop testimony during deposition as for trial, the deposition is admissible at

       trial), trans. denied. The trial court did not err when it allowed Linda’s

       deposition to be entered into evidence at trial.


                                        Sufficiency of Evidence
[25]   Burns contends the State did not provide sufficient evidence to prove he

       committed burglary while armed with a deadly weapon. Specifically, he takes

       issue with the fact the charging information says Burns and his cohorts had

       entered the Matthews’ home with the intent to commit a felony “while armed

       with a deadly weapon, to wit: a handgun(s)[.]” (App. Vol. II at 17) (emphasis

       added). He asserts the State did not prove the weapons were handguns.


[26]   When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 11 of 14
       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference may reasonably be drawn from it to support the verdict. Id. at

       147.


[27]   The definition of burglary while armed with a deadly weapon is:


               A person who breaks and enters the building or structure of
               another person, with intent to commit a felony or theft in it,
               commits burglary, a Level 5 felony. However, the offense is:


                                                      *****


               (3) a Level 2 felony if it:


                        (A) is committed while armed with a deadly weapon . . . .


       Ind. Code § 35-43-2-1 (2014). The State charged Burns with being armed with a

       handgun specifically. A handgun, as defined in the jury instructions given, is

       “any weapon that is capable of or designed to or that may readily be converted

       to expel a projectile by means of an explosion.” (App. Vol. II at 209.) Burns

       asserts the State did not present sufficient evidence to prove he used a real

       handgun rather than a “airsoft gun, or for that matter, a black squirt gun[.]”

       (Appellant’s Br. at 24.) He claims that such a lack of proof creates a fatal


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 12 of 14
       variance between the charging information and the proof presented at trial. He

       cites Miller v. State, 616 N.E.2d 750, 754 (Ind. Ct. App. 1993), to support this

       claim.


[28]   Miller is distinguishable. The pellet gun in Miller was seized by the police and it

       was known to be a pellet gun; however, the State specifically charged Miller as

       being armed with a handgun. Because the weapon was known, and thus

       proven, to not be a handgun, we held there was a fatal variance between the

       charging information and the evidence presented at trial. That is not the case

       here. The weapons brandished by Burns and Steven were not recovered by the

       police, and no one with firsthand knowledge testified as to their authenticity or

       lack thereof.


[29]   Jerry testified the men wearing the red and the green masks had guns. The man

       in the red mask was “[p]ointing it at [him.]” (Tr. Vol. II at 94.) The “man with

       the green mask . . . was pointing it at, pointing at us.” (Id.) Linda testified that

       the “ones with the guns wore the red and the green [masks].” (App. Vol. II at

       123.) She said the ones with the guns “were closer to [Jerry’s] side of the bed.”

       (Id. at 124.) Smith testified Steven got “black handguns” when they stopped on

       the way to the Mathews’ house. (Tr. Vol. II at 212.) He stated Steven gave one

       to Burns. Although he admitted he did not handle the guns, Smith thought

       “[t]hey looked real.” (Id. at 225.)


[30]   All three witnesses who saw the guns testified they were real and were

       controlled by Steven and Burns. All three acknowledged they had not


       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 13 of 14
       inspected the weapons. Although the handguns were not found by the police,

       and none of the witnesses could testify regarding their examination of the guns

       and their authenticity, the jury could reasonably infer Burns possessed a gun.

       See D.B. v. State, 658 N.E.2d 595, 595 (Ind. 1995) (evidence was sufficient for

       the jury to infer the gun was loaded even though the gun was not recovered and

       no evidence was presented that it was loaded). Burns’ arguments to the

       contrary are a request that we reweigh the evidence, which we cannot do. See

       Drane, 867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the

       credibility of witnesses).



                                                Conclusion
[31]   As the trial court did not err when it determined Linda was “unavailable” and

       entered her deposition testimony as evidence, and as the State provided

       sufficient evidence to allow the jury to infer Burns used a handgun during the

       burglary, we affirm Burns’ convictions.


[32]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 79A04-1705-CR-1005 | February 12, 2018   Page 14 of 14
