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Smith v. State

Court of Appeals of Indiana

November 26, 2018

Trey A. Smith, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Bartholomew Superior Court The Honorable James D. Worton, Judge Trial Court Cause No. 03D01-1712-F6-6683

          Attorney for Appellant Michael P. DeArmitt Columbus, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Laura R. Anderson Deputy Attorneys General Indianapolis, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] Trey Smith appeals his convictions for theft, as a Level 6 felony, and criminal mischief, as a Class B misdemeanor, following a jury trial. Smith presents a single issue for our review, namely, whether the trial court abused its discretion when it admitted certain testimony over his objections. We also address a second issue sua sponte, namely, whether Smith's convictions violate his right to be free from double jeopardy. We affirm in part, reverse in part, and remand with instructions.[1]

         Facts and Procedural History

         [¶2] On December 6, 2017, at approximately 8:20 p.m., Melissa Shafer left her office and walked out to the parking lot, where she found a man lying on the ground next to her car. Shafer asked the man what he was doing, but he did not reply. She asked him a second time, and he responded, "Let me get out of your way." Tr. at 25. Shafer then saw the man pull up a tarp and gather some tools, and he ran past her toward the office building and out of sight. Shafer got in her car and started the engine. She immediately noticed that the engine was "very loud" and she "knew the mechanics had been messed with." Id. at 27. Accordingly, she promptly called 9-1-1 and gave a description of the man she had seen next to her car. She saw that the man was wearing "dark colored or black pants and a black zip up hoodie with white lettering on the back of it." Id. at 34. A police officer arrived at the scene within three to five minutes and found that the catalytic converter on Shafer's car had been cut and was "hanging down and touching the ground." Id. at 51.

         [¶3] Within three minutes of hearing the suspect's description over his radio, Officer Ron May of the Columbus Police Department, who was patrolling in the area, saw a man fitting the suspect's description "jogging across the road in a southeasterly direction" near the intersection of U.S. 31 and Washington Street. Id. at 39. Officer May saw the man near a Village Pantry, but he lost sight of him. Officer May soon saw the man again walking to the south of a nearby building. Officer May then stopped and talked to the man, who identified himself as Smith.

         [¶4] Officer May asked Smith "where he was coming from," and Smith replied that he had just been at Chris Chaplin's residence at 3220 Washington Street. Id. at 43. While Officer May was talking to Smith, Officer Tony Kummer, who had responded to the scene at Shafer's office parking lot, drove Shafer to the location where Officer May and another officer were talking to Smith. Shafer identified Smith as the man she had seen next to her car. Officers arrested Smith. At some point, Officer May went to the residence at 3220 Washington Street and talked to the owner, who stated that he did not know Smith.

         [¶5] The State charged Smith with attempted theft, as a Level 6 felony, and criminal mischief, as a Class B misdemeanor. At Smith's ensuing jury trial, Officer May testified in relevant part that he had found no one at the residence at 3220 Washington Street who knew Smith, and Smith timely objected to that testimony on hearsay grounds. The trial court permitted the testimony over Smith's objections. The jury found him guilty as charged, and the trial court entered judgment of conviction and sentenced him accordingly. This appeal ensued.

         Discussion and Decision

         Issue One: Hearsay

         [¶6] Smith contends that the trial court abused its discretion when it admitted Officer's May's testimony as evidence over Smith's hearsay objections. We review a trial court's evidentiary rulings "for an abuse of discretion." Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). "An abuse of discretion occurs when the ...


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