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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jan 19 2010, 10:03 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: KIMBERLY A. KLEE Greenwood, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana HENRY A. FLORES, JR. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JUANITA HART, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0906-CR-578

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt Eisgruber, Judge The Honorable Steven Rubick, Magistrate Cause No. 49G01-0809-FC-208306

January 19, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Juanita Hart appeals her convictions for criminal recklessness as a Class D felony, criminal recklessness as a Class A misdemeanor, and criminal mischief as a Class A misdemeanor. We affirm. Issues Hart raises two issues, which we restate as: I. whether the trial court abused its discretion when it denied Harts request to make an offer of proof regarding an excluded defense witness; and whether the trial court abused its discretion by excluding a defense witness who was disclosed two days prior to the trial. Facts At approximately 9:00 p.m. on September 7, 2008, Officer Jason Ross of the Indianapolis Metropolitan Police Department received a dispatch to the 1200 block of Lemans Court in Indianapolis. Marquitta Hogan reported to Officer Ross that she had arrived at the apartment complex with her son and her mother, Lisa Roscoe, in Roscoe s GMC vehicle. Hogan was going to her cousins apartment. Hogan walked onto the sidewalk, heard screeching tires, and saw Harts Oldsmobile Intrigue driving toward her. Harts vehicle struck Hogan, knocking her to the ground, and then Harts vehicle ran over Hogans legs. Hart then repeatedly drove her vehicle into Roscoes GMC. Roscoes GMC had damage on the drivers side of the vehicle, Harts Oldsmobile had damage on both the front and rear of the vehicle, and Hogan had injuries to her leg and arm. 2

II.

The State charged Hart with criminal recklessness as a Class D felony, criminal recklessness as a Class A misdemeanor, and criminal mischief as a Class A misdemeanor.1 At the bench trial, Hart attempted to call Kenneth McGee as a witness. The trial court refused to allow McGee to testify because the case had been pending since September 2008, it had been set for trial on at least two prior occasions, and McGee was not added as a defense witness until two days before the bench trial. The trial court also refused to allow an offer of proof regarding McGees testimony. Hart testified that she was in the parking lot to use McGee and Tina Caldwells telephone. According to Hart, Hogan then began hitting Harts vehicle with a baseball bat. Hart admitted in her

testimony that she backed into Roscoes vehicle with her car, but denied hitting Hogan. The trial court did not find Harts explanation credible and stated that Harts "story does not make sense." Tr. p. 76. The trial court found that the "location of the vehicles, the damage to the vehicles, and the injuries to Ms. Hogan" convinced it beyond a reasonable doubt that the State had met its burden. Id. The trial court found Hart guilty as charged and sentenced Hart to an aggregate sentence of two years with 694 days suspended to probation. Analysis I. Offer of Proof The first issue is whether the trial court abused its discretion when it refused to allow Hart to make an offer of proof regarding McGees testimony. The purpose of an
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The State also charged Hart with battery as a Class C felony and domestic battery as a Class A misdemeanor, but those charges were dismissed prior to the trial.

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offer of proof is to preserve for appeal the trial courts allegedly erroneous exclusion of evidence. Nelson v. State, 792 N.E.2d 588, 595 (Ind. Ct. App. 2003), trans. denied. The offer of proof can also aid the trial court in ruling on the objection. Id. As we noted in Nelson, "[w]e cannot very well require trial counsel to make an offer of proof to preserve error on appeal, while at the same time we allow the trial court to deny counsel the opportunity to make such a record." Nelson, 792 N.E.2d at 594-595. In general, "a party has a right to make an offer of proof," and "it is reversible error for a trial court to deny a party the opportunity to explain the substance, relevance, and admissibility of excluded evidence with an offer of proof." Id. at 595. The State concedes and we agree that the trial courts denial of Harts right to make an offer of proof was error. However, such an error may be harmless. See id. Hart argues that McGees testimony was "vital" to her defense because he was "the only witness who could corroborate Harts testimony." Appellants Br. p. 11. Hart contends that "[t]rial testimony was conflicting as to who initiated the confrontation between the parties, and McGhee [sic] may well have been the only unrelated witness to testify as to the events that occurred prior to the arrival of police." Id. Thus, Hart appears to argue that McGees testimony would have corroborated her account that Hogan initiated the incident by hitting Harts vehicle with a baseball bat. We conclude that the trial courts error was harmless. McGees testimony

regarding the baseball bat merely would have been cumulative of Harts own testimony. Hart admitted to backing into Roscoes GMC with her vehicle, but she denied hitting Hogan with her vehicle. The trial court found that Harts explanation of the events was 4

inconsistent with the physical evidence, which included damage to Roscoes vehicle, damage to the front and back of Harts vehicle, and injuries to Hogan. McGees

testimony regarding the baseball bat would not have explained the other inconsistencies in Harts testimony. See Nelson, 792 N.E.2d at 596 (holding that, "even though the trial court abused its discretion when it limited Nelsons cross-examination and denied his request to make an offer of proof, the error was harmless because Fullers testimony was mere surplusage"). II. Exclusion of Defense Witness The next issue is whether the trial court abused its discretion when it excluded McGees testimony. "The trial court has inherent discretionary power on the admission of evidence, and its decisions are reviewed only for an abuse of that discretion." Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007). "Likewise, we leave to the trial court

decisions regarding the orderly procedure of a trial." Id. "[W]here a trial court has made a decision regarding a violation or sanction, we will reverse only if there is clear error and resulting prejudice." Id. "While wide discretion is given to the trial court in such matters as the course of proceedings, exclusion of evidence, and violations, in making its decisions, the trial court must give substantial weight to a defendants constitutional rights, here the right to compulsory process under the Sixth Amendment to the U.S. Constitution and Art. 1,

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