APPEAL FROM THE NEWTON SUPERIOR COURT. The Honorable Daniel J. Molter, Judge. Cause No. 56D01-1205-FB-3.
ATTORNEY FOR APPELLANT: JOSEPH E. MORRISON, Roselawn, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; CYNTHIA L. PLOUGHE, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. MAY, J., concurs. RILEY, J., dissents with separate opinion.
VAIDIK, Chief Judge
Trials should primarily proceed on the basis of in-court testimony, not statements or affidavits obtained before trial. Yet at
Jacob Herron's trial for burglary and receiving stolen property, the State called a witness solely to impeach her with a pretrial statement, and did so bye reciting segments of that statement. Because this statement was admitted solely for impeachment, the jury could not use it as substantive evidence. But given the lack of evidence against Herron, we conclude that the jury did rely on this evidence to convict him. For this reason, we reverse Herron's convictions.
Facts and Procedural History
One evening in March 2012, Teresa Beever went to Earl's restaurant in Brook, Indiana, for dinner. When Beever returned home, she noticed that a window had been broken and pushed in, so she called police. After authorities allowed Beever to inspect her home, she reported jewelry and other valuables missing.
During their investigation, authorities spoke to Herron's girlfriend, Kelly Tebo, who gave a statement implicating Herron. Tebo said that she was waitressing at Earl's on the night of the break-in. While at work, Tebo said she sent Herron a text message implying that the Beever home was unoccupied because Teresa Beever was eating at Earl's and her husband Reid was out of town. Tebo also said that when she saw Herron after her shift, he was carrying two bags, one of which he said contained things stolen from the Beever home. Herron was arrested and charged with Class B felony burglary and Class D felony receiving stolen property.
At Herron's jury trial, the State offered three glove prints found at the Beever home into evidence. Sergeant Duane Datzman, the crime-scene technician who processed the prints, testified that the prints appeared to have a " series of letters," an " 'M' and possibly 'e,' 'c.'" Tr. p. 168. From this, Sergeant Datzman concluded that the gloves that left the prints were " the brand Mechanic or Mechanix." Id. When asked how widely Mechanix-brand gloves are sold, Sergeant Datzman said he did not know. Id. at 202. The State then admitted four pairs and one single black Mechanix-brand glove recovered from Herron's house. Id. at 211-12. The town marshal, Charles Flahive, testified that the single glove taken from Herron's house was " capable" of leaving the crime-scene prints. Id. at 214. When asked how widely Mechanix-brand gloves are sold, Marshal Flahive also said he did not know. Id. at 215-16.
The State then called Tebo as a witness. When Tebo took the stand, she confirmed that she was waitressing at Earl's on the night of the break-in. She also confirmed that she texted Herron to make " small talk" during her shift, but she said that she did not say anything about the Beevers. Id. at 227-28. She explained that after her shift ended, she and Herron traveled out of town for a bridal shower, and Herron brought luggage that she recognized as his. Id. at 228-29. Tebo said that Herron said nothing about stolen items from the Beever's. Id. at 229.
The State sought to impeach Tebo with her pretrial statement over Herron's objection. Although counsel for the State admitted that he could not " sit here and read line[-]for[-]line what her [pretrial] statement says," id. at 239, he proceeded to do just that:
THE STATE: Ms. Tebo, before we took a break I was asking you a question regarding . . . your written statement . . . . [I] believe I asked you at that point [if] the [written] statement actually said that  Herron had texted me asking if the Beevers were eating dinner. Do you remember me asking that question?
TEBO: I do remember.
THE STATE: And your written statement in fact does say that, does it not?
TEBO: It does say that.
THE STATE: And that's not the way you testified today, is it?
TEBO: That is not. That isn't accurate.
THE STATE: The same written statement goes on to say that " I let [Herron] know though a text message that Teresa Beever was at [the restaurant] with her friend and that Reid Beever was out of town." There's no disagreement that your ...