Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015 Page 1 of 12

ATTORNEY FOR APPELLANT

Donald J. Frew

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dewayne M. Townsend,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 15, 2015

Court of Appeals Case No.

02A03-1411-CR-389

Appeal from the Allen Superior 

Court.

The Honorable Wendy W. Davis, 

Judge.

Cause No. 02D05-1406-FD-677

Sharpnack, Senior Judge
Court of Appeals of Indiana | Opinion 02A03-1411-CR-389 | May 15, 2015 Page 2 of 12

Statement of the Case

[1] Dewayne M. Townsend appeals from his conviction of one count of residential 

entry

1

as a Class D felony, challenging the admission of a witness’s prior 

consistent statements and the sufficiency of the evidence. We affirm.

Issues

[2] Townsend presents the following restated issues for our review:

I. Whether the trial court abused its discretion by admitting a 

witness’s prior consistent statements.

II. Whether there is sufficient evidence to support his 

conviction.

Facts and Procedural History

[3] On June 13, 2014, Townsend went to Ashleigh Fryar’s apartment to spend time 

with the newborn child the two had in common. Townsend left after holding 

the baby for some time. Ashleigh then locked the front door and took the baby 

with her to her bedroom. Ashleigh did not respond when Townsend later 

returned and began knocking on the front door. Townsend requested that 

Ashleigh allow him to take the child with him and the two had argued about 

that subject earlier. After a period of time with no response, Townsend then 

walked to Ashleigh’s window and demanded that she allow him to take the 

 

1

Ind. Code § 35-43-2-1.5 (1991).
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baby with him. Ashleigh refused his request. Townsend then returned to the 

front door of the apartment, kicked it in, and entered Ashleigh’s apartment. 

[4] At some point during this incident, Ashleigh texted 911 on her cell phone. Fort 

Wayne Police Department officers responded to the call. Upon arriving at 

Ashleigh’s residence, the officers observed that the door to Ashleigh’s 

apartment had been forced open and that the door frame had been broken. 

Pieces of wood and pieces of the door frame were lying on the ground inside 

the apartment. Townsend admitted to the officers that he had kicked in the 

door and entered Ashleigh’s apartment when she did not open the door. 

Although at trial he later claimed this justification for breaking down Ashleigh’s 

door, Townsend did not tell officers at that time that he did so out of concern 

about the welfare of his child or that he had heard the baby crying.

[5] Additionally, after entering Ashleigh’s apartment and before the police officers 

arrived, Townsend confronted Ashleigh. He grabbed and pulled her hair 

causing her pain and grabbed her face causing an injury to her lip and making it 

difficult for her to breathe. 

[6] The State charged Townsend with residential entry and domestic battery. At

Townsend’s jury trial, the State introduced several exhibits, including the text 

messages from Ashleigh to 911, which were admitted without objection, and a 

letter written by Ashleigh to Townsend’s counsel in which she recanted the 

battery allegations, also admitted without objection. 
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[7] The State also introduced State’s Exhibit 25, a recording made at the police 

station of Ashleigh’s conversations with her friends, which was redacted to 

remove any reference to Townsend’s prior felony convictions. The State 

originally offered the video recording as an excited utterance exception to the 

hearsay rule, but withdrew that request and sought to have the recording 

introduced to rebut an express or implied charge of recent fabrication. The trial 

court admitted the recording over Townsend’s hearsay objection and the 

recording was published to the jury.

[8] After the State rested its case, Townsend testified and admitted that he kicked in 

the front door of Ashleigh’s apartment when she did not open the door. He 

claimed that he did so out of concern for the welfare of his child.

[9] At the conclusion of the trial, the jury was unable to reach a verdict on the 

domestic battery charge, but found Townsend guilty of residential entry. The 

trial court sentenced Townsend to two years for his residential entry conviction 

with one year suspended to probation. Townsend now appeals.

Discussion and Decision

I. State’s Exhibit 25

[10] Townsend claims that the trial court abused its discretion by admitting State’s 

Exhibit 25 during Townsend’s jury trial. Trial courts have broad discretion to 

rule on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 

2014). On appellate review, we review the trial court’s rulings “‘for abuse of 

that discretion and reverse only when admission is clearly against the logic and 
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effect of the facts and circumstances and the error affects a party’s substantial 

rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013)). The 

trial court’s broad discretion extends to situations involving the admissibility of 

purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014). 

[11] “Hearsay is an out-of-court statement offered for ‘the truth of the matter 

asserted,’ Ind. Evidence Rule 801(c)(2), and it is generally not admissible as 

evidence.” Id. at 565 (quoting Ind. Evidence Rule 802). “‘Whether a statement 

is hearsay . . . will most often hinge on the purpose for which it is offered.’” Id. 

(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). Indiana 

Evidence Rule 801(d)(1)(B) provides that a statement is not hearsay if the 

declarant testifies and is subject to cross-examination about a prior statement, 

the statement is consistent with the declarant’s testimony, and the statement is 

offered to rebut an express or implied charge that the declarant recently 

fabricated the statement or acted from a recent improper influence or motive for 

testifying. 

[12] A prior inconsistent statement may be used to impeach a witness. Martin v. 

State, 736 N.E.2d 1213, 1217 (Ind. 2000). If used for that purpose, it is not 

hearsay because the statement is not used to prove the truth of the matter 

asserted. Id. In other words, the statement is used to establish that the witness 

previously made a statement contrary to his testimony, not necessarily that the 

prior inconsistent statement is substantively true.
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[13] In this appeal we are asked to examine the use of a prior consistent statement. 

Our Supreme Court cited Judge Miller’s treatise on evidence when discussing 

the use of prior consistent statements:

If an adversary has made an express or implied charge against the 

witness of recent fabrication or improper influence or motive, 

and the prior consistent statement was made before the motive to 

fabricate arose, the prior consistent statement is admissible as 

substantive evidence; if the prior consistent statement was made 

after the motive to fabricate arose, however, it is admissible to 

rehabilitate a witness. 

Bassett v. State, 895 N.E.2d 1201, 1214 (Ind. 2008) (quoting 13 Robert L. Miller, 

Jr., Indiana Evidence § 613.208 (1995)). In this case, a prior consistent 

statement would be properly admitted if Ashleigh had testified on direct 

examination that Townsend beat her, then Townsend had confronted her on 

cross-examination with the letter recanting her allegation of domestic battery 

and suggested, for example, that the State put Ashleigh up to her trial 

testimony. The State would then be allowed to introduce State’s Exhibit 25, a 

prior consistent statement, to rebut Townsend’s charge of recent fabrication. 

[14] The facts here do not present the common situation in which prior consistent

statements are used to refute an express or implied charge of recent fabrication. 

The State apparently anticipated that Townsend would attempt to impeach 

Ashleigh with the letter and introduced it during direct examination to reduce 

its impeachment value. On cross-examination, Townsend noted the varying 

stories, thus challenging Ashleigh’s credibility, but did not expressly or 
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impliedly allege recent fabrication, viz. that her trial testimony was fabricated at 

the instance of the State.

[15] Rather, Ashleigh testified on direct examination that she called 911 because 

Townsend was “beating down” her door. Tr. p. 85. She further testified that 

after Townsend entered her home, he then entered her bedroom, pulled her 

hair, and grabbed her face, causing her pain and busting her lip. The State 

asked her about the notarized letter she had written to Townsend’s attorney in 

which she recanted her allegation that Townsend physically harmed her. She 

identified the letter and it was admitted into evidence without objection. She 

then read the letter aloud. Ashleigh testified that the contents of the letter were 

not true, and that she wrote the letter because at that time she wrote it she “was 

conflicted between right and wrong.” Id. at 91-92. She stated that her 

testimony at trial accurately described what had happened.

[16] On cross-examination, Ashleigh testified that her testimony in court was 

essentially the same as what she told the officers who responded to her 911 call. 

She also acknowledged the letter she had written to Townsend’s lawyer. She 

agreed with counsel’s suggestion that she had notarized the letter “to give this 

letter some validity and a little extra weight.” Id. at 98. While testifying about 

the letter, Ashleigh agreed when Townsend’s counsel asked her if by drafting 

the letter she had “presented a complete fabrication after [she] had time to 

reflect on what happened on June 13th.” Id. at 100. She also agreed with 

Townsend’s counsel’s statement that she had “presented two pretty much 

diametrically different accounts about what happened that day.” Id. at 101. He 
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finished his cross-examination of Ashleigh by getting her to agree to the context 

and sequence of those two different stories when he asked her if there was “one 

account you gave to the police that day and then one account that you gave in 

this notarized letter that you authored at some point later[.]” Id. at 102. 

[17] On redirect, Ashleigh testified that she spoke with three officers on the day of 

the incident and that she had told each of them that Townsend had broken 

down the door, grabbed and pulled her hair, and had grabbed her mouth.

[18] During Detective Roos’s testimony, which followed Ashleigh’s testimony, the 

State attempted to introduce State’s Exhibit 25, a redacted audio and video tape 

of Ashleigh making telephone calls to her friends while she waited in an 

interview room. The proposed legal basis for the admissibility of the exhibit 

was the excited utterance exception to the hearsay rule. The exhibit was not 

admitted at that time. However, Detective Roos testified that Ashleigh’s 

testimony in court was consistent with what she had told him during her 

interview. 

[19] Later, the State called Ashleigh to the witness stand again and asked her to 

identify State’s Exhibit 25. The State then argued that the exhibit was 

admissible as a prior consistent statement offered to rebut an express or implied 

charge of recent fabrication. The trial court admitted the exhibit over 

Townsend’s objection. However, this was an abuse of discretion. 

[20] We recently summarized the parameters set for the appropriate use of prior 

consistent statements that have developed through case law and evidentiary 
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rules in Corbally v. State, 5 N.E.3d 463 (Ind. Ct. App. 2014). In Corbally, we 

cited to language from our Supreme Court’s opinion in Modesitt v. State, 578 

N.E.2d 649 (Ind. 1991), stating that adoption of what is now Indiana Evidence 

Rule 801(d)(1) “was necessary to prevent ‘abuses’ in the use of a witness’s prior 

consistent statements, such as by bolstering ‘the testimony of what might 

otherwise be regarded as a weak witness’ and prohibiting ‘[n]umerous witnesses 

[from testifying] to the same statement given by a particular witness, thereby 

creating the prohibited drumbeat of repetition.’” 5 N.E.3d at 469. In 

particular, we noted that “cases have made clear that there is a difference 

between merely challenging a witness’s credibility versus making an express or 

implied charge of fabricated testimony or improper influence or motive.” Id. 

“If there has only been general impeachment of a witness’s credibility, then 

prior consistent statements by the witness are hearsay and not admissible as 

substantive evidence.” Id. “Also, general attacks upon a witness’s memory do 

not constitute a charge that the witness fabricated testimony and do not permit 

the admission of prior consistent statements by the witness.” Id. In this case 

there was not even a suggestion made that Ashleigh’s testimony at trial was a 

recent fabrication or the product of a recent improper influence or motive.

[21] Although the trial court abused its discretion by admitting State’s Exhibit 25, 

the error is subject to harmless error analysis. Id. at 470. In that situation, we 

must consider whether the evidence was likely to have substantially swayed the 

jury’s verdict. Id. The evidentiary error is harmless if we are satisfied that the 

conviction is supported by such substantial independent evidence of guilt that 
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there is little likelihood the challenged evidence contributed to the conviction. 

Id. Whether an error contributed to a verdict, requires the appellate court to 

determine whether the erroneously admitted evidence was unimportant in 

relation to everything else the jury considered on the issue in question. Id.

[22] Ashleigh told the officers that Townsend came to her apartment, knocked on 

her door, broke down the door, and confronted her. She testified at trial 

consistently with that account of the incident. The officers who responded to 

Ashleigh’s 911 call observed that the front door to Ashleigh’s apartment had 

been damaged. Townsend admitted to the officers that he broke down the door 

to Ashleigh’s apartment and entered it. The letter was about the battery charge 

on which the jury was unable to reach a verdict. We are satisfied that the 

conviction is supported by substantial independent evidence of guilt. The 

erroneous admission of State’s Exhibit 25 was harmless. 

II. Sufficiency of the Evidence

[23] Townsend also challenges the sufficiency of the evidence supporting his 

conviction. Although Townsend admitted that he knowingly or intentionally 

broke and entered Ashleigh’s apartment, he claims that he had her consent to 

do so. Our standard of review of this issue was stated as follows by the 

Supreme Court:

We recite our familiar standard for reviewing the sufficiency of 

the evidence needed to support a criminal conviction. First, we 

neither reweigh the evidence nor judge the credibility of 

witnesses. Second, we only consider “the evidence supporting 

the judgment and any reasonable inferences that can be drawn 
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from such evidence.” A conviction will be affirmed if there is 

substantial evidence of probative value supporting each element 

of the offense such that a reasonable trier of fact could have 

found the defendant guilty beyond a reasonable doubt. “It is the 

job of the fact-finder to determine whether the evidence in a 

particular case sufficiently proves each element of an offense, and 

we consider conflicting evidence most favorably to the trial 

court’s ruling.”

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (internal citations omitted).

[24] In order to establish that Townsend committed residential entry as a Class D 

felony, the State was required to prove beyond a reasonable doubt that 

Townsend knowingly or intentionally broke into and entered Ashleigh’s 

apartment. Ind. Code § 35-43-2-1.5. “Lack of consent is not an element of the 

offense the State is required to prove.” McKinney v. State, 653 N.E.2d 115, 118 

(Ind. Ct. App. 1995). “Rather, it is the defendant who must claim and prove 

the defense of consent.” Id. “A defendant’s belief that he has permission to 

enter must be reasonable in order for the defendant to avail himself of the 

defense of consent.” Id. 

[25] The evidence at trial established that Ashleigh allowed Townsend to enter her 

home earlier that day to spend time with their child. After Townsend left,

however, Ashleigh locked the door to the apartment. When Townsend 

returned to the apartment, Ashleigh took the child with her to her bedroom and 

did not respond to Townsend’s requests to let him inside the apartment. 

Ashleigh texted 911 to report that Townsend was attempting to break into her 

apartment. Townsend went to the window and asked Ashleigh to allow him to 
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take their child with him. After Ashleigh refused Townsend’s request, he 

returned to the front door, kicked it in, and entered Ashleigh’s apartment where 

the two argued. 

[26] Townsend argued for the first time at trial that he broke down the door of 

Ashleigh’s apartment out of concern for the welfare of their child. Ashleigh had 

previously given Townsend a key to the apartment, but Townsend did not have 

the key with him and did not use it to gain entry to Ashleigh’s apartment. 

Ashleigh testified that Townsend had previously told her that he had lost the 

key.

[27] Whether Townsend’s belief that he had Ashleigh’s permission to enter the 

apartment was reasonable was a matter for the jury to determine. Because the 

jury convicted Townsend of residential entry, the jurors must have rejected his 

defense. Consistent with our standard of review, we will not reweigh the 

evidence or reassess the credibility of the witnesses. Willis, 27 N.E.3d at 1066. 

Conclusion

[28] In light of the foregoing, we affirm the decision of the trial court.

[29] Affirmed.

Kirsch, J., and Bradford, J., concur.