                                                                               FILED
OPINION ON REHEARING
                                                                          Sep 12 2019, 9:33 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                            Curtis T. Hill, Jr.
Bargersville, Indiana                                      Attorney General of Indiana
                                                           Samuel J. Dayton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William Hedrick,                                           September 12, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1945
        v.                                                 Appeal from the Delaware Circuit
                                                           Court
State of Indiana,                                          The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           18C03-1501-F6-1



Riley, Judge.




Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019                Page 1 of 9
[1]   This case is before us on a petition for rehearing filed by Appellant-Defendant,

      William Hedrick, M.D., (Hedrick). The Appellee-Plaintiff, the State, has not

      filed a responsive brief. Hedrick appealed his convictions for three Counts of

      Level 6 felony forgery and three Counts of Level 6 felony registration offenses.

      Hedrick v State, 124 N.E. 3d 1273 (Ind. Ct. App. 2019). For the forgery offenses,

      the State alleged that Hedrick had used the name and suspended DEA

      registration number of nurse practitioner Gay Watson to fill three separate

      prescriptions. For the registration offenses, the State alleged that Hedrick had

      knowingly or intentionally distributed controlled substances with a federal or

      state registration number “that is fictitious, revoked, suspended or issued to

      another person.” Id. The issues we addressed on appeal were: (1) Whether the

      trial court erred by admitting certain evidence; (2) Whether the State presented

      sufficient evidence beyond a reasonable doubt to support Hedrick’s convictions;

      and (3) Whether the three forgery convictions violated the continuous crime

      doctrine. We affirmed.


[2]   In our original opinion we stated that Hedrick had failed to object to the DEA

      Agent’s deposition testimony; thus, he had waived his claim for appellate

      review. We stated:


              At Hedrick’s trial, a DEA agent testified that after Hedrick’s
              license had been placed on probation, the DEA began receiving
              complaints pertaining to Hedrick’s practice. When asked to
      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 2 of 9
              describe the complaints, Hedrick’s counsel interjected and stated,
              “Objection for hearsay purposes. Go ahead.” (Tr. Vol. II, p.
              128). The trial court did not issue a ruling on Hedrick’s
              objection, and the DEA agent proceeded to testify as follows:


                       The complaints focused primarily on the concerns that the
                       local pharmacies had regarding the total number of
                       prescriptions being, controlled substance prescriptions
                       being prescribed out of his business entity, his medical
                       practice, by him and his employees and the dangerous
                       combinations of controlled substances being prescribed.


              (Tr. Vol. II, p. 128). While it appears from the above excerpt that
              Hedrick objected to the evidence, he did not give the trial court
              the opportunity to evaluate the purpose of the statements which
              he now alleges to be inadmissible hearsay or to consider the
              applicability of exceptions to the hearsay rule. The failure to
              object at trial waives any claim of error and allows otherwise
              inadmissible hearsay evidence to be considered for substantive
              purposes. Scott v. State, 803 N.E.2d 1231, 1238 (Ind. Ct. App.
              2004). Accordingly, Hedrick waives this issue for appellate
              review.


      Id. at 1279.


[3]   In his petition for rehearing, Hedrick claims that we erroneously stated that he

      failed to object to the DEA Agent’s hearsay testimony offered at his trial.

      Hedrick argues that the DEA Agent’s testimony was offered through a video

      deposition and we erroneously stated that the testimony was offered in open

      court. Hedrick also correctly argues that he did not waive his hearsay claim on

      appeal since he issued a continuing objection to the DEA Agent’s deposition



      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 3 of 9
      testimony at his pretrial hearing and prior to its publication at his trial. The

      trial court overruled all of Hedrick’s objections.


[4]   Because Hedrick objected to the admission of the DEA Agent’s deposition

      testimony on hearsay grounds, he therefore did not waive his hearsay claim for

      appellate review. Therefore, we grant his petition for rehearing to correct those

      errors in our original opinion. However, we find that in applying the harmless

      error analysis to the DEA Agent’s deposition testimony and paired with the fact

      that there was enough evidence presented by the State to sustain Hedrick’s

      convictions, we reaffirm our original opinion in all other respects.


                                       I. The DEA Agent’s Deposition


[5]   The admission or exclusion of evidence falls within the sound discretion of the

      trial court, and its determination regarding the admissibility of evidence is

      reviewed on appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d

      1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial court’s

      decision is clearly against the logic and effect of the facts and circumstances

      before the court. Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012).

      Hearsay is an out-of-court statement offered for “the truth of the matter

      asserted,” and it is generally not admissible as evidence. Ind. Evidence Rules

      801(c)(2), 802. “Whether a statement is hearsay will most often hinge on 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)).


[6]   In our original opinion, we stated:

      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 4 of 9
              In the Fall of 2014, Hedrick was the target of a criminal
              investigation by the DEA after local pharmacies in Muncie
              reported Hedrick’s practice. Specifically, the pharmacies
              informed the DEA that the total volume of “controlled substance
              prescriptions being prescribed out of [Hedrick’s] . . . medical
              practice” was alarming. The pharmacies indicated that Hedrick’s
              clinic was prescribing “dangerous combinations of controlled
              substances,” i.e., “narcotics . . . with anti-depressant.” Some
              other pharmacies had altogether stopped filling prescriptions
              from Hedrick and his practice. Following those complaints, the
              DEA conducted surveillance of Hedrick’s practice in Muncie in
              August and October of 2014.


      Hedrick, 124 N.E.3d at 1278 (internal citations omitted).


[7]   At Hedrick’s trial, the State explained that the DEA agent’s deposition

      testimony related to “why the DEA was investigating [] Hedrick’s practice.”

      (Tr. Vol. II, p. 15). Out-of-court statements made to law enforcement officers

      are not hearsay if introduced primarily to explain why the investigation

      proceeded as it did. Blount, 22 N.E.3d at 565. Course-of-investigation

      testimony is excluded from hearsay only for the limited purpose of bridging

      gaps in the trial testimony that would otherwise substantially confuse or

      mislead the jury. Id.


              For this reason, we must pay careful attention to the purpose for
              which an out-of-court statement is offered. The ultimate inquiry
              is: Was the out-of-court statement used primarily to show the
              truth of its content, constituting inadmissible hearsay, or merely
              to explain subsequent police action, excluded from hearsay?




      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 5 of 9
      Id. at 566. To answer this question, we turn to the following three-part test

      articulated in Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994): (1) does the

      testimony describe an out-of-court statement asserting a fact susceptible of being

      true or false; (2) what is the evidentiary purpose of the proffered statement; and

      (3) is the fact to be proved relevant to some issue in the case, and does any

      danger of prejudice outweigh its probative value. Id.


[8]   During his deposition, the DEA Agent was questioned on the steps the DEA

      took to investigate Hedrick and his practice concerning complaints they had

      received from local pharmacies in Muncie, Indiana. The DEA Agent testified

      as follows:


                       The complaints focused primarily on the concerns that the
                       local pharmacies had regarding the total number of
                       prescriptions being, controlled substance prescriptions
                       being prescribed out of his business entity, his medical
                       practice, by him and his employees and the dangerous
                       combinations of controlled substances being prescribed.


      (Tr. Vol. II, p. 128). Turning to the first factor articulated in Craig, we find that

      the challenged complaints by the pharmacies were out-of-court statements

      susceptible of being true or false. The second part of the Craig test requires

      consideration of the evidentiary purpose of the statement. As noted, the State

      explained that the evidentiary purpose of the statement was not to prove that

      Hedrick had committed the forgery and registration offenses; rather, it was to

      explain the subsequent investigation by the DEA. Thus, we consider the last

      criteria in Craig: “Is the fact to be proved under the suggested purpose for the

      Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 6 of 9
       statement relevant to some issue in the case, and does any danger of prejudice

       outweigh its probative value?” Id.


[9]    In Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans. denied, we

       determined the relevance of evidence of “course of police work” testimony was

       slight when the genesis of the investigation was not relevant to any contested

       issue in the case. We held, however, that the prejudicial impact was great

       where the defendant was charged with promoting prostitution and the

       challenged testimony indicated the police began their investigation because they

       had received complaints about prostitution connected with the business. Id.


[10]   The legitimacy of the DEA Agent’s investigation was not a contested issue,

       therefore it had, at most, little probative value. On the other hand, the DEA

       Agent’s testimony was relevant as circumstantial evidence of Hedrick’s guilt.

       Thus, the prejudicial effect of the testimony was great, as it suggested that

       Hedrick actively participated in the forgery and registration offenses.


[11]   We require a reasonable level of assurance that out-of-court statements are not

       presented by the proponent or considered by the factfinder as evidence of truth.

       Williams v. State, 544 N.E.2d 161, 162-63 (Ind. 1989). An immediate limiting

       instruction from the court may provide that assurance. Id. at 163. Having no

       such assurance here, the trial court abused its discretion in admitting the DEA

       Agent’s deposition testimony concerning the pharmacies’ complaints.


[12]   Although the admission of the DEA Agent’s deposition testimony was error, it

       was harmless. Reversal for the erroneous admission of hearsay evidence is

       Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 7 of 9
       appropriate where the evidence caused prejudice to the defendant’s substantial

       rights. Craig, 630 N.E.2d at 211. In determining whether error in the

       introduction of evidence affected the defendant’s substantial rights, we must

       assess the probable impact of that evidence upon the jury. Id. The improper

       admission of evidence is harmless error when the conviction is supported by

       substantial independent evidence of guilt sufficient to satisfy the reviewing court

       that there is no substantial likelihood that the questioned evidence contributed

       to the conviction. Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000).


[13]   After reviewing the record before us, we conclude that the error in the

       admission of the DEA Agent’s deposition testimony was harmless. For the

       forgery offenses, Hedrick assigned that error to the medical assistants at his

       practice, claiming that the medical assistants must have generated the wrong

       prescription, which he mistakenly signed. Notwithstanding his assertion, the

       State presented evidence that Hedrick’s pattern of conduct at his practice

       supported the conclusion that Hedrick did not make a mistake when he signed

       the three prescriptions bearing Gay Watson’s name and suspended DEA

       registration number; rather, it was part of his business practice. In support, the

       State presented other instances where Hedrick or other members of his staff had

       signed prescriptions using someone else’s name and DEA registration number.

       In addition, the State presented evidence that after the Board placed Hedrick’s

       medical license on indefinite probation in 2013, several restrictions were put in

       place, and that following those restrictions, Hedrick’s practice began facing

       severe cash-flow problems. As noted in our original opinion, the jury could


       Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 8 of 9
       have reasonably concluded that amid the financial struggles of his practice,

       Hedrick took risks that he otherwise would not, i.e., including applying a

       signature to prescriptions purporting to be written by Watson.


[14]   For the registration offenses, Hedrick’s claim at trial was that it was illogical for

       him to sign his own name to a prescription bearing Watson’s name, and that

       the State’s own evidence proved that it was easy to make such a mistake.

       Notwithstanding his claim, we found that the State presented uncontroverted

       evidence that prescription forms for controlled substances must bear the

       prescriber’s name, DEA registration number, and must also be signed by the

       prescriber. As the prescribing doctor, Hedrick should have checked the

       prescription forms and ensured that all details were accurate.


[15]   In light of all the evidence presented by the State regarding the forgery and

       registration offenses, we hold the erroneous admission of the DEA Agent’s

       deposition testimony was harmless. Thus, our original opinion is hereby

       affirmed in all other aspects.


[16]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion on Rehearing 18A-CR-1945 | September 12, 2019   Page 9 of 9
