Attorneys for Appellant

Belle T. Choate				

Indianapolis, IN				

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Priscilla J. Fossum

Deputy Attorney General

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

CHARLES BRADLEY VEHORN,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

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)	Supreme Court No.

)	49S00-9709-CR-491

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	APPEAL FROM THE MARION SUPERIOR COURT, CRIM. DIV.

	The Honorable Cale J. Bradford, Judge

	Cause No. 49G03-9604-CF-049069

ON DIRECT APPEAL	

August 276, 1999

SULLIVAN,  Justice.

	Defendant Charles Vehorn was convicted of Murder and Auto Theft for shooting his girlfriend to death and stealing her car.  He appeals, arguing that evidence of his stormy

relationship with the victim was improperly admitted, that the vehicle was illegally

searched, and that there was insufficient evidence to support his conviction.  Finding to the

contrary, we affirm Defendant’s convictions.

	We have jurisdiction over this direct appeal because the longest single sentence

exceeds fifty years.  Ind. Const. art. VII, § 4;  Ind. Appellate Rule 4(A)(7).

Background

	The facts most favorable to the verdict show that during the evening of April 2, 1996,

Defendant shot his girlfriend, Brenda DeMoss, inside the house where they lived.  One

neighbor confirmed that both Defendant and DeMoss were home that evening, and another

neighbor testified that around 7:00 p.m., three “bangs” that sounded like “fireworks” came

from the direction of Defendant’s residence.     

	At around 10:00 p.m. that same night, Defendant arrived at his father’s house driving

DeMoss’s car.  He appeared “nervous” and remarked to his father that he “messed up real

bad.”  At one point during the conversation, he told his father that he had a .22 gun and

ammunition.  Defendant also told his father that DeMoss was visiting relatives.  Two days

later, Defendant departed his father’s residence driving DeMoss’s car.    

	After two days in which she did not show up for work, DeMoss’s sisters went to her

home on Friday, April 5th, 1996, to find the house locked and the shades pulled.  They

contacted a locksmith to open the door, and found DeMoss’s body on the living room floor. 

She had been shot ten times with Defendant’s .22 caliber rifle resulting in her death.    

	On May 13, 1996, Defendant was found sleeping in DeMoss’s car in a public park

in Riverdale, Georgia in violation of a city ordinance.  After a patdown search, the police

found a large kitchen knife under his coat.  He was arrested for carrying a concealed

weapon.  Soon thereafter, the police discovered that the vehicle was reported stolen. 

Pursuant to departmental policy, the police impounded the vehicle and performed an

inventory search at the scene.  Both the .22 caliber rifle and DeMoss’s checkbook were

found in the car.  Defendant was charged with Murder1 and Auto Theft.2  The jury found Defendant guilty as to both counts, and the trial court imposed a sentence of 65 years for the

Murder conviction and three years for the Auto Theft conviction.  

Discussion

I

	Defendant contends that the trial court committed reversible error by admitting the

testimony of DeMoss’s sister, Lisa Meece, that (1) Defendant and DeMoss had a stormy

relationship and that (2) DeMoss had tried to end the relationship.  Defendant argues that

this testimony was inadmissible hearsay and was only offered as circumstantial proof that

he murdered DeMoss.

	Defendant challenged the admissibility of Meece’s testimony during a pretrial

evidentiary hearing.  Before trial began, the State informed the court and Defendant of its

intent to elicit certain testimony through DeMoss’s sister about the nature of Defendant’s

relationship with DeMoss. Defendant objected to this testimony on the basis that it was

inadmissible hearsay.3  The trial court heard argument and denied the motion.  It held that it would allow testimony as to statements made by the victim concerning her intentions to

ask Defendant to leave because these were “statements of her mind and relevant to the

nature of the relationship.”  Id.  Later during trial, Defendant did not object to Meece’s testimony describing the relationship as “rocky” and that DeMoss had tried to “kick

[Defendant] out a couple of times.”  The State contends that Defendant waived any error in

the admission of this evidence by failing to object when Meece’s testimony was offered at

trial.    

	As a general rule, motions in limine4 will not alone preserve errors for appeal; a party must contemporaneously reassert the party’s objection at trial so as to allow the trial court

an opportunity to make a final ruling on the matter in the proper context.  White v. State, 687 N.E.2d 178, 179 (Ind. 1997).  While the prudent lawyer will always provide a

contemporaneous objection at trial so as to preserve an issue for appeal, there are occasional

exceptions to this general rule.  This case provides one of them.  During the pretrial hearing,

the judge provided explicit assurance that an objection as to Meece’s hearsay testimony was

preserved for appeal when it told defense counsel that “even if you don’t object, the Court

will find . . . that your objections to this type of evidence have been timely made.”5  (R. at 157.)  Finding that the issue of the admissibility of Meece’s testimony has been properly

preserved for appeal, we proceed to the merits of Defendant’s argument. 

	Defendant contends that Meece’s testimony is inadmissible hearsay and does not fall

within the present state of mind exception.  Rather, he maintains, it was offered to prove the

truth of the matter asserted—that is, that the two had a stormy relationship and that DeMoss

had asked Defendant to leave—“so that the Jury could then infer circumstantially that there

would be a basis for [Defendant] to murder DeMoss.”  Furthermore, Defendant argues that DeMoss’s state of mind at the time of her murder was not an issue at trial.    

	We accord the trial court substantial discretion in ruling on the relevancy of evidence. 

Hunter v. State, 578 N.E.2d 353 (Ind. 1991); Thompson v. State, 613 N.E.2d 461, 466 (Ind. Ct. App. 1993).  Furthermore, we will reverse a trial court’s hearsay ruling “only if the court

has abused its discretion. We will sustain the trial court if it can be done on any legal ground

apparent in the record.”  Light v. State, 547 N.E.2d 1073, 1081 (Ind. 1989) (citation omitted).

	Only relevant evidence is admissible, Ind. Evidence Rule 402, and relevant evidence

means “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence,” Evid. R. 401.  A victim’s state of mind is relevant where it has

been put at issue by the defendant.  Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995).  In this case, Defendant put DeMoss’s state of mind at issue by trying to downplay difficulties

in their relationship as merely the inevitable consequence of two individuals who lived a

“hard life”; that they were not “uncommon” given their “on-again, off-again relationship.”6  Also in evidence was Defendant’s statement given during an extradition interview in

Georgia to the effect that the status of Defendant’s relationship with DeMoss was amicable and that DeMoss gave Defendant “permission to use the car.”7   

	Having determined that the victim’s state of mind was an issue at trial, we consider

the question of hearsay.  Hearsay is a statement, other than one made by the declarant while

testifying at a trial or hearing, offered to prove the truth of the matter asserted.  Ind.

Evidence Rule 801(c).  Hearsay is generally inadmissible.  Evid. R. 802.  However, a

statement of the declarant’'s then existing state of mind is not excluded by the hearsay rule. 

Evid. R. 803(3); Ross v. State, 676 N.E.2d 339, 345 (Ind. 1996). 

	If statements are admitted to show the declarant’s state of mind, and not to prove the

substantive content of those statements, they do not run afoul of the hearsay rule because,

by definition, those statements are not “hearsay” pursuant to Evidence Rule 802.  Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997); see Lock v. State, 567 N.E.2d 1155, 1159-60 (Ind. 1991) (“We find that the statements made by the victim [that they were ‘having

trouble’] were properly admitted to prove that the relationship between the [Defendant] and

the victim was not completely benign, contrary to [Defendant’s] assertions at trial.”), cert. denied, 503 U.S. 991 (1992).  

	We recently approved of instances where statements are admissible to controvert a defendant'’s evidence when the defendant puts the victim’s state of mind at issue.  Ford v. State, 704 N.E.2d 457 (Ind. 1998) (Victim’s statement to witness “‘that she was unhappy and that she wanted to leave but she was afraid that if she left [the defendant] again he

would kill her,’” was admissible as indicative of her state of mind.);  Taylor v. State, 659 N.E.2d 535 (Ind. 1995) (Victim’s statement to police officer that she was scared to come

forward with sexual abuse allegations was admissible under state of mind exception.). 

Meece’s testimony concerning (1) DeMoss’s stormy relationship with Defendant and (2)

DeMoss trying to end the relationship both fall into this category of statements offered for

the non-hearsay purpose of showing the victim’s state of mind.  This testimony tends to

contradict Defendant’s argument that DeMoss allowed him to take her car and checkbook

out of state, given that she had asked Defendant to leave their troubled relationship. 

Furthermore, we believe the probative value of this evidence is greater than any possible

prejudicial effect, see Ford, 704 N.E.2d at 460; Lock, 567 N.E.2d at 1159-60, considering there was other evidence8 establishing their troubled relationship.  See Cooley v. State, 682 N.E.2d 1277, 1282 (Ind. 1997) (Any error in admitting testimony was harmless as the

“hearsay evidence [was] merely cumulative of other evidence properly admitted.”).  The

trial court did not abuse its discretion in admitting Meece’s testimony over Defendant’s

objection.      

II

	Defendant contends that evidence obtained from his vehicle was the fruit of an illegal

search because the officer did not have a warrant and the search was not a valid “consent

search.”  Defendant claims that because he was not offered the opportunity to consult

counsel, the trial court was obligated to grant his motion to suppress evidence obtained

during the search of his car.  Defendant cites Jones v. State, 655 N.E.2d 49 (Ind. 1995), as support for his claim.  At issue in Jones was the validity of the defendant’s consent to search his car after being stopped by police for a minor traffic offense. But Defendant’s consent is

not at issue here.  The incriminating evidence was not discovered pursuant to a “consensual”

search but during an inventory search immediately following Defendant’s arrest.

	The pertinent time line was that after he woke Defendant, the officer asked for

permission to search the vehicle.  Defendant consented to the search and then exited the car. 

Defendant was not in custody at this time.   Before a search was conducted, the officer patted down Defendant which led to the discovery of a large kitchen knife and Defendant’s

initial arrest for carrying a concealed weapon.  Soon thereafter, another officer arrived on

the scene and it was discovered that the car was reported stolen.  Only after Defendant was

arrested and placed in the officer’s car was the car inventoried and the incriminating

evidence found. 

	 The Fourth Amendment protects persons from unreasonable searches and seizures

and this protection is applicable to the states through the Fourteenth Amendment.  Mapp v. Ohio, 367 U.S. 643 (1961).  As a general rule, the Fourth Amendment prohibits warrantless searches.  Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998)).  When a search is conducted without a warrant, the State has

the burden of proving that an exception to the warrant requirement existed at the time of the

search.  Id. (citing Brown, 691 N.E.2d at 443).  One well-recognized exception to the warrant requirement is an inventory search of a vehicle.  South Dakota v. Opperman, 428 U.S. 364, 372 (1976); Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993).  

	In determining the propriety of an inventory search, “the threshold question . . .  is

whether the impoundment itself was proper.” Fair, 627 N.E.2d at 431(citing United States v. Young, 825 F.2d 60, 61 (5th Cir. 1987), cert. denied, 485 U.S. 1012 (1988)).  Here, Defendant driver was arrested in a vehicle that was reported stolen from another state.  We

find that the arresting officer was justified in impounding the vehicle. Cf. Johnson v. State, 553 N.E.2d 477 (Ind. 1990) (holding that the police were justified in impounding a vehicle

when the driver has been arrested).

	The second step of the test for the validity of inventory searches of automobiles looks

to the reasonableness of the search itself.  “Even the lawful custody of an impounded

vehicle does not of itself dispense with the constitutional requirement of reasonableness in regard to the searches conducted thereafter.  Instead, to pass constitutional muster, the

search itself must be conducted pursuant to standard police procedures,” Fair, 627 N.E.2d at 435 (citing Colorado v. Bertine, 479 U.S. 367, 375 (1987)), and “searches in conformity with such regulations are reasonable under the Fourth Amendment,” id. (citing South Dakota v. Opperman, 428 U.S. 364, 376 (1976)).  In this case, while the inventory search was conducted at the crime scene and not at the impoundment lot, however, the arresting officer testified

that this was in accordance with “standard Riverdale Police Department policies.”

Furthermore, formal inventory sheets were completed and pictures taken to make an

accurate record of all of the vehicle’s contents and not just the incriminating evidence.     

	The trial court did not abuse its discretion in determining that Georgia police properly

impounded the vehicle and followed standard operating procedure, thus the inventory search

of the car was reasonable.  The trial judge correctly denied Defendant’s motion to suppress.

III

	Defendant contends that there was insufficient evidence to sustain his convictions

because the State failed to present any direct evidence and that all of the evidence is

circumstantial.  Our standard of review for claims challenging the sufficiency of the

evidence is well settled.  “Whether the evidence is direct or circumstantial, we will not

reweigh it or assess the credibility of witnesses.”  Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995) (citing Green v. State, 587 N.E.2d 1314 (Ind. 1992); Litel v. State, 527 N.E.2d 1114, 1115 (1988)).  We review only the evidence presented at trial and the reasonable inferences

drawn therefrom that support the verdict in deciding “whether there is substantial evidence

of probative value from which a reasonable jury could find the defendant guilty beyond a

reasonable doubt”  Id.  (citing Litel, 527 N.E.2d at 1115; Case v. State, 458 N.E.2d 223, 226 (Ind. 1984)).    

	This Court has held previously that a conviction for Murder may be based solely on

circumstantial evidence.  Moore, 652 N.E.2d at 55 (citing Green, 587 N.E.2d at 1315); Utley v. State, 589 N.E.2d 232, 241 (Ind.), cert. denied, 506 U.S. 1058 (1992).  And such a verdict will stand if the jury could reasonably infer that the defendant is guilty beyond a

reasonable doubt from the circumstantial evidence presented.  Biggerstaff v. State, 432 N.E.2d 34, 36 (Ind. 1982).  On appeal, the circumstantial evidence need not overcome every

reasonable hypothesis of innocence.  Swafford v. State, 498 N.E.2d 1188, 1192 (Ind. 1986).  It is enough if an inference reasonably tending to support the verdict can be drawn from the

circumstantial evidence.  Id.

	The evidence supports an inference that Defendant killed DeMoss and stole her car. 

Defendant and DeMoss were both seen at home on the same evening that a neighbor heard

three “bangs” coming from the direction of Defendant’s residence.  On that same night,

Defendant arrived alone at his father’s house driving DeMoss’s car, appearing “nervous” and remarked to his father that he “messed up real bad.”  Defendant acknowledged to his

father that he had a .22 gun in his possession.  At trial, the State established through a

ballistics expert that this was the murder weapon.  Defendant explained DeMoss’s absence

to his father by telling him that she was visiting relatives.  Two days later, Defendant

departed his father’s residence driving DeMoss’s car.  DeMoss’s dead body was eventually

found on the living room floor, having been shot ten10 times with  Defendant’s .22 caliber rifle. 

A few days later, Defendant was found sleeping in DeMoss’s car in a public park in

Riverdale, Georgia, and both the .22 caliber rifle and DeMoss’s checkbook were found in

the car. 

	While the evidence presented by the State is circumstantial, after considering all the

evidence most favorable to the verdict as well as drawing all reasonable inferences

therefrom, we find the jury could have reasonably concluded that Defendant killed DeMoss

and then stole her car in an effort to flee the state.

Conclusion

	We affirm the judgment of the trial court as to both counts.  

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.