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Mack v. State

Court of Appeals of Indiana

December 18, 2014

THOMAS MACK, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff

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APPEAL FROM THE JEFFERSON SUPERIOR COURT. Cause No. 39D01-1303-FB-236. The Honorable Alison T. Frazier, Judge.

ATTORNEY FOR APPELLANT: JAMES C. SPENCER, Dattilo Law Office, Madison, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ELLEN H. MEILAENDER, Deputy Attorney General, Indianapolis, Indiana.

NAJAM, Judge. MATHIAS, J., and BRADFORD, J., concur.

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NAJAM, Judge


Thomas Mack appeals his convictions for possession of a firearm by a serious violent felon, as a Class B felony; forgery, as a Class C felony; maintaining a common nuisance, as a Class D felony; and possession of marijuana, as a Class A misdemeanor; following a jury trial. Mack raises numerous issues for our review, which we consolidate and restate as the following two issues:

1. Whether the trial court abused its discretion when it admitted certain evidence; and
2. Whether the State presented sufficient evidence to support his convictions.

Among other things, we hold that, in light of the facts and circumstances of this case, a lapse of at least " a few minutes" between a declarant's perception of an event and his statement describing that event was too long to qualify the statement as a present sense impression under Indiana Evidence Rule 803(1). We also hold that the admission of this hearsay violated Mack's right to confront the declarant. Nonetheless, these errors were harmless beyond a reasonable doubt. As such, on these and all other issues, we affirm Mack's convictions.


On February 18, 2013, Madison Police Department Officer Kurtis Wallace responded to a report of a counterfeit $100 bill having been used at a Murphy's USA

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gas station. Upon arriving at the gas station, the clerk handed the counterfeit bill to Officer Wallace and informed Officer Wallace that he had received the bill from the occupant of a vehicle in the parking lot. Officer Wallace approached the occupant of that vehicle, Darren Stewart. Stewart admitted that the bill was counterfeit and stated that it had originated with Mack.

Later that evening, Stewart agreed to approach Mack while wearing a recording device and transmitter. Stewart then led Officer Wallace and Officer Jonathan Simpson to 3587 Woodside Drive, a home owned by Audriana Ashby. Stewart then entered the residence while wearing his recording device and transmitter. Among other voices they could hear, the officers recognized Mack's voice inside the residence. After about ten minutes, Stewart exited the residence. The officers then drove Stewart around the block and returned him to the residence, and he again went inside. After another ten minutes, Stewart again exited the residence.

According to the statements heard by the officers while Stewart was inside the residence, Mack discussed " cutting open a light bulb," which the officers recognized as a means of ingesting methamphetamine. Tr. at 212. And " a few minutes" after Stewart had returned to the officers the second time, he informed Officer Simpson that in another conversation inside the residence Mack had discussed buying degreaser, which can be used by a counterfeiter to " bleach" a low-denomination bill such that the counterfeiter is left with genuine currency paper, including the watermark and security thread. Id. at 210, 213, 324-25. The counterfeiter can then use " any standard 3-in-1 printer" to print a larger-denomination bill on the currency paper. Id. at 325. The counterfeit $100 bill discovered at the gas station had been created from a $5 bill using this method. Stewart also informed the officers that he had observed a glass pipe inside the residence, which the officers recognized as a device used for smoking methamphetamine.

At the time of the officers' investigation, Mack was on parole. Officer Wallace thus contacted Erika Smith, Mack's parole officer, and informed her of the investigation. Pursuant to the terms of his parole, Mack was obligated to keep Officer Smith informed of his residence. But Mack had informed Officer Smith that he was living at 623 Aulenbach Avenue. And, in recent meetings with Mack, Officer Smith learned that Ashby was his girlfriend, and that Ashby had a young son. After receiving Officer Wallace's report, Officer Smith twice went to Mack's supposed residence on Aulenbach Avenue but did not find him there. Noel Mack, Mack's brother who also lived at that address, informed Officer Smith that Mack only " crashes here sometimes," and Noel then directed her to an address on Woodside Drive that was not Ashby's address. Id. at 234, 501.

Officer Smith went to the address Noel had provided but did not observe Mack or Mack's vehicle. The next day, on March 1, Officer Smith returned to the address provided by Noel with her supervisor, Officer Ryan Harrison, but she again did not observe Mack or his vehicle. Upon leaving that address, however, Officer Smith did observe Mack's vehicle and Ashby's vehicle at a nearby residence, 3587 Woodside Drive.

The officers approached the front door of that residence, and Officer Smith heard a " loud voice," which she recognized as Mack's, and " quick steps like running." Id. at 241. The officers knocked on the door and announced their presence, but they did not get an immediate response. Eventually, Mack opened the front door " maybe a foot" but would not allow the

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officers in because " it wasn't his house." Id. at 243. Ashby arrived at the front door some time thereafter and permitted the officers to enter the residence.

Once inside, Officer Smith backed up towards the front door and bumped into a rifle, which had been propped up near the door jamb. Mack stated that the firearm was " a toy." Id. at 601. The officers asked if there were any other weapons in the residence, and Ashby pulled a .22 caliber long rifle out of the entertainment center. Ashby claimed the firearms were hers, and she placed the firearms and some ammunition in an outdoor shed. Afterwards, Officer Smith informed Officer Wallace of the encounter.

On March 4 and March 6, Officer Wallace drove past 3587 Woodside Drive and observed Mack's vehicle at that address. On March 7, Officer Wallace executed an affidavit in support of a no-knock search warrant at that address. Officer Wallace explained that Mack was not at his parole-approved residence, that Mack had a prior conviction for a serious violent felony,[1] and that, at the Woodside Drive residence, Officer Smith and Officer Harrison had observed firearms. Thus, Officer Wallace requested a search warrant to search for any firearms at that residence along with any evidence that would establish ownership over such firearms. And because the facts recited in the affidavit suggested a serious violent felon in possession of firearms, contrary to Indiana law, Officer Wallace requested that the search warrant be a no-knock warrant. The trial court authorized a no-knock search warrant later that day.

During the ensuing search of the residence, officers seized several firearms and ammunition, various drug paraphernalia used to ingest methamphetamine and marijuana, a cutting agent used with methamphetamine, and marijuana. The officers further seized male clothing from the adult bedroom and the front porch, along with Mack's deodorant, shower gel, and beard trimmer from the bathroom.

In a closet in the adult bedroom, the officers found a .22 caliber rifle. Under that rifle, the officers discovered a trap door. Under the trap door, officers found a 3-in-1 printer and a photocopy of a $100 bill on a sheet of paper, both of which were inside a red bag. Also in the red bag were various letters addressed to Mack and a photograph of Mack's adult daughter and her family. Following his arrest, Mack referred to Ashby's residence as " my house" in a phone call with Ashby from jail. State's Ex. 39 at 5.

The State charged Mack with possession of a firearm by a serious violent felon, as a Class B felony; forgery, as a Class C felony; possession of methamphetamine, as a Class D felony; maintaining a common nuisance, as a Class D felony; and possession of marijuana, as a Class A misdemeanor. Prior to trial, the trial court excluded Stewart as a witness,[2] but, at trial and over Mack's objection, the court permitted the State to present the audio recordings obtained with Stewart's assistance on February 18 as well as Officer Simpson's recollection of Stewart's statements during that investigation. The court also permitted the State to introduce, over Mack's objection, the evidence seized pursuant to the search warrant.

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And the court permitted, again, over Mack's objection, Officer Smith to testify that she had met with Mack prior to February 18, but the court did not permit her to identify herself as a parole officer or to identify Mack as a parolee.

After a bifurcated trial, the jury found Mack not guilty of possession of methamphetamine but guilty on the other counts. The court entered its judgment of conviction accordingly and sentenced Mack to an ...

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