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ATTORNEYS FOR APPELLANT Steve Carter Attorney General of Indiana Joby Jerrells Deputy Attorney General Indianapolis, Indiana

ATTORNEY FOR APPELLEE Ellen M. O'Connor Marion County Public Defender Agency Indianapolis, Indiana

_____________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S05-0501-CR-6 STATE OF INDIANA, Appellant (Plaintiff below), v. DOW WILSON, Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49G06-0302-FC-032946 The Honorable John Downer, Senior Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0310-CR-526 _________________________________ November 2, 2005 Boehm, Justice. We hold that one spouse is not precluded from testifying in a criminal prosecution of the other. Factual and Procedural Background In January 1999, Dow and Heidi Wilson, husband and wife, were approved for subsidized Section 8 housing. After the Indianapolis Housing Authority received a tip alleging that

some of the information in the Wilsons' Section 8 housing applications was fraudulent, an investigation revealed questionable items in the application, and both Dow and Heidi were charged with welfare fraud and theft. The State granted Heidi use immunity in exchange for her agreement to testify against Dow. When the State called Heidi at Dow's trial, Dow objected to her testimony on two grounds. First, he argued that the marital privilege, Indiana Code section 3446-3-1(4), barred Heidi's testimony as to communications between them. He also contended that because he was the accused in a criminal prosecution he was not required to testify, and therefore Heidi, as his spouse, was barred from testifying by Indiana Code section 34-46-3-2. The trial court agreed with the second contention and certified the ruling for interlocutory appeal. On appeal, the Court of Appeals did not address the claim on its merits, but held that the State had waived its challenge to the exclusion of Heidi's testimony by failing to submit a proper offer of proof. State v. Wilson, 816 N.E.2d 61, 63 (Ind. Ct. App. 2004). This Court granted transfer. State v. Wilson, 831 N.E.2d 733 (Ind. 2005). I. Offer of Proof Dow initially argues that the State waived its objection to the exclusion of Heidi's testimony by failing to make an adequate offer of proof as required by Indiana Evidence Rule 103(a)(2). The Court of Appeals agreed. Dow objected to Heidi's testimony at trial on the ground of marital privilege and also on the ground that she was barred from testifying altogether. The State responded: I think for one this is a little premature, because they don't know if our questions are even going to ask about spousal communication, which I'm not sure that they will. I think our questions are going to be more directed as to, "Ms. Wilson, on January 19th of 1999, did you go to the office of Housing Authority and put in an application for Section 8 rent? Who accompanied you there?" That is not spousal communication. So, I think this is premature in that they haven't heard the questions, yet. We haven't asked a question that's relating to marital privilege. We're going to ask Ms. Heidi Davie Wilson what she did on a certain date and who was with her. Dow claimed that Heidi, as Dow's spouse, was precluded from testifying against him irrespective of the subject matter of her testimony. As to that claim, the only requirement of an offer of proof is that it indicate the relevance of the offered testimony and that it would not vio-

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late some rule of evidence such as hearsay. An offer ordinarily should explain the witness's expected testimony, not the questions to be asked. However, in the case at hand, the only issues were relevance and whether Heidi's testimony would invade a privilege. It was clear from the context that the State intended to show that Dow and Heidi applied for Section 8 housing together and that Heidi's testimony was to establish that fact. The State's explanation was sufficient to show its relevance and that Heidi's account of who was with her was admissible under the Rules of Evidence. Dow also raised an objection based on marital privilege, which protects only confidential communications. As to that claim, in addition to relevance and competence of the witness, the offer of proof should show that no privilege would be invaded. Whether Heidi accompanied Dow at the time of the application and who else was present do not call for communications at all, so the State's explanation was enough to show that it did not seek to elicit any confidential communications. The offer was therefore sufficient as to both objections. The purpose of an offer of proof is to convey the point of the witness's testimony and provide the trial judge the opportunity to reconsider the evidentiary ruling. Baker v. State, 750 N.E.2d 781, 785-86 (Ind. 2001) (quoting 1 McCormick on Evidence

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