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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.

ATTORNEY FOR APPELLANT: P. STEPHEN MILLER Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

May 08 2008, 11:16 am

IN THE COURT OF APPEALS OF INDIANA
MARLON J. DAVIS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 02A04-0801-CR-25

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Frances C. Gull, Judge Cause No. 02D04-0701-FB-10

May 8, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Marlon J. Davis appeals his convictions for class B felony unlawful possession of a firearm by a serious violent felon, class D felony criminal recklessness, and class D felony pointing a firearm. We affirm. Issue Did the trial court commit reversible error in admitting prior inconsistent statements from two witnesses? Facts and Procedural History The facts most favorable to the jury's verdict indicate that LaToya Trigg lived in a Fort Wayne apartment with her young son, who was fathered by Davis, and with her mother, Denise Trigg. Davis occasionally lived there as well. On the night of January 13, 2007, Denise and LaToya were in the apartment with her son and some friends. Davis visited briefly with LaToya and left the apartment. Davis returned and argued with LaToya, who told him to leave. LaToya dialed 911 and told the operator that Davis had started an argument with her. Davis asked for half his rent money back, and Denise gave him a $100 bill. The argument escalated, and Denise stepped between LaToya and Davis. Denise pushed Davis and felt an object at his waist that she assumed was a weapon. LaToya, who was still on the phone with the 911 operator, stated, "If it's my time to die, it's my time to

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die," and told the operator that "he" had a gun.1 Davis left the apartment and fired several shots through the front door, which was at least slightly ajar. Fort Wayne Police Officer Peter Mooney was dispatched to LaToya's apartment at 10:52 p.m. and arrived two to three minutes later. He saw two bullet holes in the front door, a bullet hole in the wall, and nine-millimeter shell casings both inside and outside the threshold. LaToya and Denise were the only adults in the apartment. Both women were crying; LaToya was "extremely upset[,]" and Denise was "rather hysterical[.]" Tr. at 202. According to Officer Mooney, Denise told him that as she pushed Davis, "she felt a hard object and she pushed so the butt of a gun was displayed and at that point then, [Davis] raised his shirt and displayed the gun and then pulled it out and then her words, aimed ... aimed it recklessly at everybody in the apartment." Id. at 210. Officer Juancarios Gutierrez, who had also heard the dispatch, apprehended Davis approximately fifteen minutes later. In Davis's left front pants pocket, Officer Gutierrez found a $100 bill and a nine-millimeter Luger Winchester bullet with a casing that matched those found in LaToya's apartment. Davis did not have a firearm in his possession. Sometime after Officer Mooney's arrival, Detective Michael Epps entered the apartment. LaToya told Detective Epps that Davis had pulled a firearm from his waistband. Denise told Detective Epps that she pushed Davis "and felt what she believed was a handgun in his waist." Id. at 248. She further stated that Davis removed the gun from his waistband, pointed it at everyone in the apartment, and cocked it. Finally, Denise told Detective Epps
Over Davis's objection, the State played a portion of the tape recording of LaToya's 911 call to the jury. Because there is no transcript of the recording, we simply quote from the recording verbatim. Davis
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that "she heard a gunshot and she saw the weapon firing as [Davis] was exiting the apartment" and that "four to five shots" were fired. Id. at 249. After his arrest, Davis asked to speak with a detective. At 1:29 a.m. on January 14, 2007, Davis signed an advice of rights form and spoke with Detective Epps. Davis told Detective Epps that he left LaToya's apartment at 7:00 the previous evening and did not return. Detective Epps asked Davis to tell him about the bullet that had been found on his person. Davis asked, "[T]he one that was in [my] jacket?" Id. at 257. According to Detective Epps, Davis "advised that he didn't believe that he had a bullet on him and he stated one of the officers told him he did have a bullet on him and the jacket was not his. It was cold out and he borrowed it from a friend." Id. The State charged Davis with class B felony unlawful possession of a firearm by a serious violent felon (count I), class A misdemeanor carrying a handgun without a license (count II, part I), class C felony carrying a handgun without a license having a prior felony conviction (count II, part II), class D felony criminal recklessness (count III), and class D felony pointing a firearm (count IV). Several days after Davis's arrest, Denise asked Detective Epps if the charges against him could be dropped. Detective Epps replied that he was "not at liberty to do that" and told her to contact the prosecutor's office. Id. at 250. A two-day jury trial began on July 31, 2007. Notwithstanding their statements to investigators after the shooting, LaToya and Denise testified that Davis did not possess or shoot a firearm that night. Over Davis's objection, the State introduced their prior inconsistent statements via Officer Mooney and Detective Epps. At the close of evidence,
does not challenge the admissibility of the recording on appeal.

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the trial court dismissed part II of count II. On August 1, 2007, the jury found Davis not guilty on part I of count II and guilty on counts I, III, and IV. Davis now appeals. Discussion and Decision Davis contends that the trial court committed reversible error in admitting LaToya's and Denise's prior inconsistent statements. The decision to admit evidence is within the trial court's discretion and is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). [W]e will not reverse the trial court's decision unless it represents a manifest abuse of discretion that results in the denial of a fair trial. An abuse of discretion in this context occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law. Id. at 702-03 (citation omitted). An error in the admission of evidence is harmless "if its probable impact on the jury, in light of all the evidence in the case, is sufficiently minor so as not to affect a party's substantial rights." Brown v. State, 770 N.E.2d 275, 280 (Ind. 2002). Indiana Evidence Rule 613(b) provides in pertinent part that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." Our supreme court has stated that "[o]rdinarily, prior inconsistent statements are used to impeach, not as substantive evidence of the matter reported." Young v. State, 746 N.E.2d 920, 926 (Ind. 2001). In other words, a prior inconsistent statement used to impeach a witness's credibility is not hearsay. See Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000) ("[W]hen a prior inconsistent statement is used to impeach a witness, it is not hearsay because the statement is
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not used to prove the truth of the matter asserted."); see also Ind. Evidence Rule 801(c) (defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); Ind. Evidence Rule 802 ("Hearsay is not admissible except as provided by law or by these rules."). Our supreme court has also stated that "[u]nder our [evidence] rules, `once a witness has admitted an inconsistent prior statement she has impeached herself and further evidence is unnecessary for impeachment purposes.'" Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001) (quoting Pruitt v. State, 622 N.E.2d 469, 473 (Ind. 1993), and citing Ind. Evidence Rule 613(b)).2 If a prior inconsistent statement is used to impeach a witness, and a party believes that there is a danger that the jury would use the statement as substantive evidence, it is incumbent upon that party to request that the jury be admonished pursuant to Indiana Evidence Rule 105 that the statement is "only to be used to judge the witness's credibility."3 Martin, 736 N.E.2d at 1218 (footnote omitted); see also Humphrey v. State, 680 N.E.2d 836, 839 (Ind. 1997) ("Rule 105 does not preclude trial courts from giving a limiting admonition

Our supreme court decided Pruitt prior to adopting the Indiana Evidence Rules in January 1994. Judge Robert Miller has observed that [b]efore Rule 613, Indiana law provided that extrinsic evidence of the prior statement was not admissible unless the witness denied making or memory of the prior statement; if the witness admitted making the prior inconsistent statement, the impeachment was complete. Rule 613 neither requires nor forbids such an approach. 13 Robert Lowell Miller, Jr., Indiana Practice

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