Court of Appeals of Indiana | Memorandum Decision 73A01

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### MEMORANDUM DECISION

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.

A TTORNEY FOR A PPELLANT

Stacy R. Uliana

Bargersville, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Brett Conover,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. May 24, 2016

Court of Appeals Case No.

73A01

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- 513

Appeal from the Shelby Superior

Court

The Honorable Barbara

Harco u rt

, Senior Judge

Trial Court Cause No.

73D01

- 1406

- FD

- 195

Robb, Judge.Court of Appeals of Indiana | Memorandum Decision 73A01

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# Case Summary and Issues

[1] Following a bench trial, Brett Conover was convicted of perjury, a Class D

felony. Conover appeals, raising four issues for our review, two of which we

find dispositive: (1) whether the admission of certain hearsay testimony

constituted fundamental error; and (2) whether the evidence is sufficient to

support his conviction for perjury. Concluding the evidence is insufficient

because the admission of hearsay testimony constituted fundamental error, we

reverse and remand.



# Facts and Procedural History

[2] On April 26, 2012, Capital One Bank (“Capital One”) filed a small claims

action against Conover to recover an unpaid credit card balance of $1,094.07.

The account ending in 8928 was in Conover’s name and referenced his address,

date of birth, and Social Security number, yet he disclaimed responsibility for

the account. Conover defended the small claims action pro se and was the only

witness who testified at a trial held on October 22, 2012. Although the account

statements had been sent to Conover’s address for several years, and payments

had been made on the account every month from November 2008 to February

2011, Conover claimed he “never had an account with Capital One” and “never

had any dealings with Capital One in [his] life.” State’s Ex. 1 at 5

, 7.

Conover maintained he “ never used a Capital One card ” and denied making

any of the purchases charged to the account. Id. at 10. The small claims court

admitted the billing records over Conover’s objection but noted “if we were inCourt of Appeals of Indiana | Memorandum Decision 73A01

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. . . in a world of hurt as far as hearsay

. . . .”

Id. at 18; see also Ind. Small Claims Rule 8(A) (stating small claims proceedings

shall not be bound by the rules of evidence except provisions relating to

privileged communications and offers of compromise).

[3] The small claims court suspected a member of Conover’s household was

responsible for the charges:

[Court:] Who lives with you during this period of time?

Who lived with you?

[Conover:] My son lives with me now.

[Court:] No, that wasn’t my question. Not now, during this

period of time when this credit card was out there

. . . .

[Conover:] Well, probably my ex

- wife and my son.

[Court:] What were their names?

[Conover:] Tracy Conover and my son’s name is Chris.

. . .

[Court:] If it turns out that Chris was doing this, had stolen

your identity, did he have your authority to do that?

[Conover:] I, I would, Chris wouldn’t steal my identity.

[Court:] I understand. We would like, we certainly like to

think our, our children wouldn’t do that [to] us.

But did he have your authority to do this, yes or no?

[Conover:] I, I, I don’t understand what you mean

. . . .Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 4 of 15 [Court:] Well, here’s what I’ m, this is my feeling on it.

Either you have absolutely no knowledge of this

. . .

You’re completely innocent and if that is the case

then somebody in your household has done

something wrong and has stolen $1,000.00 from

MasterCard or from Capital One, and I’m gonna

turn this over to the Police Department, Sheriff’s

Department and ask them to investigate for a felony

fraud or theft

. . . . Number two is that you knew

this was going on and

. . . you just kinda played a

part in it and maybe you thought you’d just be able

to disclaim it in the end, and so you’re somewhat

complicit in it. Those, in my mind, are the only two

alternatives we have here. Number one is

. . . you

go free, but maybe some of your family doesn ’t

down the road. Number two is

. . . you go free and

some of your family goes free, but you owe the debt

to the folks over here, Capital One Bank. Do you

have a preference, number one or number two?

[Conover:] I have no knowledge

. . . .

[Court:] Okay. So let me ask you again. If your son had

taken your identity and used this was that without

your, your permission?

[Conover:] My, my son wouldn’t, wouldn’t take my identity.

[Court:] I’m gonna ask you again. If your son had taken this

and used this, your information

. . . was that

without your permission? That’s a yes or no

answer, Mr. Conover.

[Conover:] If he would have taken it I, I would gave [sic] him

permission, but I, I know he didn’t.

[Court:] You understan d you’re under oath?Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 5 of 15 [Conover:] Yes, I do.

[Court:] Okay, and you understand by being under oath that

you are, if it turns out that you are basically not

telling the truth to the Court, that you could be

charged with a “C” felony? Do you unders tand

that?

[Conover:] Yes.

[Court:] And a “C” felony is ranged from two years to eight

years in prison. Do you understand that?

[Conover:] Yes.

[Court:] Okay. So I’m gonna ask you one more time, did

you give your son permission to use your

identifying information during this period of time,

yes or no?

[Conover:] Yes.

[Court:] You did. Okay. So, this is your son

. . . acting as

you, is that what happened here?

[Conover:] Yeah.

[Court:] What purpose did you give him your identifying

information then to use?

[Conover:] I, you, you got me kinda confused. I, I never gave

anybody permission to, to do anything. But my

son would, would have never taken any of my

identity.

[Court:] Well, you don’t know that. I mean this could beCourt of Appeals of Indiana | Memorandum Decision 73A01

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. . . all the Prosecutor has to do is

subpoena these records and they’re gonna figure out

pretty quickly who ordered these things and where

they came to, where they were shipped to

. . . . It’s

gonna be pretty easy to figure that out. So, I’m just

trying to save some work at the front end here.

. . . Did [your son] have permission to apply for credit

in your name?

[Conover:] No.

[Court:] Did he have permission to use any of your

identifying information to apply for this credit card?

[Conover:] No.

[Court:] Anybody else in your household?

[Conover:] No.

Id. at 20

- 24.

[4] Ultimately, the small claims court found in favor of Conover but noted it would

be referring the matter to the Shelby County Prosecutor’s Office:

I certainly do not want to be a party to anybody having to pay

debts that they don’t owe.

. . . But I find it highly suspicious that

not only were charges made, but payments were made.

. . . Something is fishy here. I was a prosecutor for a long time. This

isn’t right. This, something’s not right here and I’m gonna ask

that they get to the bottom and find out.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 7 of 15 Id. at 25. 1 The prosecuting attorney referred the case to Detective Dan Crafton

of the Shelby County Sheriff’s Office. Detective Crafton obtained records from

Capital One for the account ending in 8928, which showed a mixture of online

and local transactions. One of the local transactions was a $27.77 charge on

January 3, 2009, which appeared to be paid to Peoples Heating and Cooling

( “Peoples”) in Shelbyville, Indiana. Detective Crafton went to Peoples on

November 8, 2012, to inquire about the transaction. He learned Peoples shares

a credit card machine with Drake’s Electric (“Drake’s”) and the transaction in

question was a payment m ade to Drake’ s. He also learned Drake’s retains the

receipts for its credit card transactions.

[5] Drake’s provided Detective Crafton with the original receipt for the $27.77

transaction, signed by “Brett Conover.” Transcript at 41

- 42. Thereafter,

Detective Crafton obtained a verified motion Conover filed in the small claims

action, as well as records from the Indiana Bureau of Motor Vehicles (“BMV”)

containing Conover’s signature. He submitted these documents to the Indiana

1 Rule 1.2 of the Indiana Code of Judicial Conduct provides, “A judge shall act at all times in a manner that

promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid

impropriety and the appearance of impropriety.” Similarly, Rule 2.2 requires judges to “perform all duties of

judicial office fairly and impartially.” By engaging in an extended cross

- examination of Conover, presenting

Conover with an ultimatum, threatening prosecution for perjury, referencing his own prior experience as a

deputy prosecutor, and then stating he would be referring the matter to the prosecuting attorney, Judge David

Riggins crossed the line between neutral magistrate and zealous advocate. See Meyers v. State

, 266 Ind. 513,

517, 364 N.E.2d 760, 763 (1977) (“It is the function of the prosecuting attorney, not the court, to investigate

crimes and bring criminal charges. The practice of the court threatening a witness with perjury charges during

trial poses unnecessary dangers to the integrity of the trial and to public respect for the courts even in non

jury trials

. . . .”). Although we do not believe Judge Riggins’s remarks during the small claims proceeding

constituted fundamental error in the criminal proceeding, we cannot ignore his highly inappropriate

behavior.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 8 of 15 State Police Laboratory for comparison to the receipt. Based on Conover’s

known signatures on the motion and BMV records, a forensic document

examiner concluded Conover also wrote the signature on the receipt. Capital

One did not cooperate in the investigation.

[6] On June 11, 2014, the State charged Conover with perjury, a Class D felony. A

bench trial was held on March 15, 2015. The State called the small claims

judge, the owner of Drake’s

, Detective Crafton, and the forensic document

examiner. Brent Drake, t he owner of Drake’s

, explained the operation of the

credit card machine, stated his company retains all the receipts for credit card

transactions, and described the information printed on the receipt signed by

Conover:

[Drake:] Says Drake’s Supply 1 310 Jefferson Avenue,

Shelbyville Indiana 46176. 317

- 421

- 2600. The date

is January the 3rd of 2009 at 11:11 a.m. It was a

sale, transaction #4, put on a MasterCard ending in

8928. It was swiped,

. . . which means it was r[u]n

through the machine for $27.77. And then there’s a

reference number, 000004, authorization code was

078212 and the response from the credit card

company was approved. And then we asked for his

signature on it.

[State:] All right. Is there a signature on it as well?

[Drake:] Yes there is.

[State:] Okay. And you said the account number ends in

8928, how much of the account number are you

able to read?Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 9 of 15 [Drake:] That’s it, the rest of it’s all stars.

Tr. at 41

- 42. On cross

- examination, Drake admitted the receipt did not reveal

which bank issued the credit card and further that he had no independent

recollection of the transaction. The trial court admitted the receipt over

Conover’s hearsay objection.

[7] Detective Crafton testified he contacted Peoples due to the billing records for

the Capital One account ending in 8928, which were admitted into evidence

during the small claims trial without a business records affidavit or the

testimony of a Capital One representative:

[State:] [W]hat documents lead you to ask for [the]

receipt[?]

[Detective:] The billing records from the credit card.

[State:] Okay. The billing records on the account ending in

8928?

[Detective:] That is correct.

[State:] And that’s billing records that also showed Mr.

Conover’s name, address and so on?

[Detective:] Correct.

[State:] Okay. And, I think you said it was January 3rd,

2009, was that the date on the billing record

. . . .

[Detective:] Correct. A purchase was made there on that date.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 10 of 15 [State:] And does the receipt match up with what the billing

records had shown?

[Detective:] It did.

* * *

[State:] And that’s on the exact account that under the

[small claims] transcript

. . . the defendant was

asked about, have you ever had a card or used a

card?

[Detective:] Correct.

[State:] And the documents that you had that led you to go

to People’s also [had] this same entire account

number, is that correct?

[Detective:] I believe so.

Id. at 84

- 85. The billing records Detective Crafton referred to in his testimony

were not admitted into evidence during the criminal trial.

[8] The trial court found Conover guilty of perjury and ordered Conover to serve

365 days in the Department of Correction, all suspended to probation, with

sixty days on home detention and twenty hours of community service. This

appeal followed.Court of Appeals of Indiana | Memorandum Decision 73A01

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# Discussion and Decision

I. Admission of Evidence

A. Standard of Review

[9] Conover contends Detective Crafton’s testimony describing the billing records

constituted inadmissible hearsay because the statements were not admitted into

evidence during the criminal trial. A trial court has broad discretion in ruling

on the admissibility of evidence. Turner v. State

, 953 N.E.2d 1039, 1045 (Ind.

2011). Although we generally review the trial court’s rulings for abuse of

discretion, id.

, a defendant’s failure to raise a contemporaneous objection at

trial waives the issue for appeal, Delarosa v. State

, 938 N.E.2d 690, 694 (Ind.

2010). Conover concedes he failed to object to Detective Crafton’s testimony at

trial but argues the admission of his testimony was fundamental error.

[10] A claim waived by a defendant’s failure to object can be reviewed on appeal if

the reviewing court determines fundamental error occurred. Id. “The

‘fundamental error’ exception is extremely narrow, and applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental

due process. ” Mathews v. State

, 849 N.E.2d 578, 587 (Ind. 2006). The exception

is “available only in egregious circumstances.” Brown v. State

, 799 N.E.2d 1064,

1068 (Ind. 2003).Court of Appeals of Indiana | Memorandum Decision 73A01

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### B. Hearsay Testimony

[11] Hearsay is an out

- of

- court statement offered into evidence to prove the truth of

the matter asserted. Evid. R. 801(c). Hearsay is inadmissible unless it falls

under a recognized exception. Evid. R. 802. Summarizing the content of an

out

- of

- court statement is “ hearsay evidence in its classic form [,]” Tessely v. State

,

432 N.E.2d 1374, 1376 (Ind. 1982), and permits the admission of evidence that

is otherwise inadmissible, Thornton v. State

, 25 N.E.3d 800, 804 (Ind. Ct. App.

2015). In this case, Detective Crafton testified to the content of credit card

statements that were never admitted into evidence, and this testimony was the

only evidence in the criminal proceeding linking Conover to a Capital One

credit card account ending in 8928. The receipt admitted into evidence listed the

last four digits of the account number and showed the credit card was a

MasterCard, but it did not show which bank issued the credit card. Because the

testimony was clearly hearsay and the prosecution hinged on the State proving

Conover had an account with Capital One, or at least used the Capital One

card in question, the admission of Detective Crafton’s hearsay testimony

violated basic principles of due process and constituted fundamental error.



## II. Sufficiency of Evidence

A. Standard of Review

[12] In reviewing the sufficiency of the evidence to support a conviction, we neither

reweigh the evidence nor judge the credibility of witnesses. Willis v. State

, 27

N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting theCourt of Appeals of Indiana | Memorandum Decision 73A01

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the conviction “ if there is substantial evidence of probative value supporting

each element of the crime from which a reasonable trier of fact could have

found the defendant guilty beyond a reasonable doubt.” Walker v. State

, 998

N.E.2d 724, 726 (Ind. 2013) (citation omitted).



### B. Perjury

[13] A person commits perjury when he or she “ makes a false, material statement

under oath or affirmation, knowing the statement to be false or not believing it

to be true [.]” Ind. Code § 35

- 44.1

- 2

- 1(a)(1) (2012). The statement must be clear

and direct, not implied or suggested. Barker v. State

, 681 N.E.2d 727, 729 (Ind.

Ct. App. 1997). The materiality element is satisfied if the statement is

“ reasonably calculated to mislead an investigation. ” Daniels v. State

, 658 N.E.2d

121, 123 (Ind. Ct. App. 1995). Mere confusion or inconsistency is

insufficient. Id.

[14] In the present case, the State alleged Conover made false, material statements

during the small claims trial when he claimed he never had an account with

Capital One, never used a Capital One card, and never had any dealings with

Capital One. As stated above, it was fundamental error to admit Detective

Crafton’s testimony summarizing the content of the credit card statements

because his testimony was the only evidence in the criminal proceeding linking

Conover to the Capital One account ending in 8928. Without evidence

showing Capital One issued a MasterCard in Conover’s name under an accountCourt of Appeals of Indiana | Memorandum Decision 73A01

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- 513 | May 24, 2016 Page 14 of 15 number ending in 8928, the State did not prove Conover made false statements

with respect to Capital One. The State only proved Conover signed a receipt

for a MasterCard transaction with Drake’s on January 3, 2009. Accordingly,

the error was not harmless, and the evidence is insufficient to prove Conover

made a false, material statement under oath. See Speybroeck v. State

, 875 N.E.2d

813, 822 (Ind. Ct. App. 2007) (“ The improper admission of evidence is

harmless only when the conviction is supported by substantial independent

evidence of guilt that satisfies the reviewing court that there is no substantial

likelihood that challenged evidence contributed to the conviction. ”).

[15] However, “[p] rinciples of double jeopardy generally do not bar a retrial on the

same crimes when reversal is required due to trial error in the admission of

evidence. ” Id. If all the evidence, even that erroneously admitted, is sufficient

to support the trial court’s judgment, double jeopardy does not bar retrial on the

same charge. Id. 2 When we consider all the evidence presented at trial,

including Detective Crafton’s improperly admitted testimony, we conclude

there was sufficient evidence from which the trial court could have found

Conover guilty of perjury. We therefore remand for a new trial.

2 On page twenty of his appellant’s brief, Conover incorrectly cites Stahl v. State

, 686 N.E.2d 89 (Ind. 1997),

for a contrary proposition. The quotation that appears in his brief is actually language from Serrano v. State

,

808 N.E.2d 724, 728 (Ind. Ct. App. 2004), an opinion our supreme court specifically disapproved in Jaramillo

v. State

, 823 N.E.2d 1187, 1190 n.5 (Ind. 2005). We remind counsel of her duty of candor toward this court

under Indiana Professional Conduct Rule 3.3.Court of Appeals of Indiana | Memorandum Decision 73A01

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# Conclusion

[16] Because the ad mission of Detective Crafton’s testimony summarizing the

content of out

- of

- court statements constituted fundamental error, the evidence

is insufficient to support Conover’s conviction for perjury. We therefore reverse

but remand for a new trial because we also conclude double jeopardy does not

bar retrial on the perjury charge.

[17] Reversed and remanded.

Barnes, J., and Altice, J., concur.