George A. Small, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, George A. Small appeals from his conviction of Class A misdemeanor theft, asserting that the trial court abused its discretion when it admitted a statement made by Small to the store clerk that was not disclosed prior to trial.

[2] We affirm.

Facts & Procedural History

[3] On the morning of February 14, 2024, Nicholas Watts was working as a cashier at a Speedway gas station in Indianapolis. He observed Small enter the store, remove a box of Krispy Kreme doughnuts from the case, and exit the store with the doughnuts without paying for them, despite Watts's verbal attempts to stop him. Watts followed him outside, and the two exchanged words. Watts then walked back into the store and called police as Small rode away on a bicycle.

[4] IMPD Officer Robert McClary responded to the dispatch and spoke to Watts, who the officer knew from prior interactions at that location. Based on what he learned from Watts, Officer McClary drove to a nearby bus stop, a block away from and within sight of the Speedway store. Officer McClary, whose police body camera was activated, spoke to a man, later identified as Small, who matched the description given by Watts. Small was next to a bicycle upon which was sitting a box of Krispy Kreme doughnuts. Watts came to the scene and identified Small as the person who had taken the doughnuts. Small was arrested and, while being transported, acknowledged that the bicycle belonged to him. At some point, the store provided its security video footage of the incident to police.

[5] On February 14, 2024, the State charged Small with Class A misdemeanor theft (Count 1) and sought a Level 6 felony enhancement based on prior convictions. On April 24, the State moved to add a charge of Class C misdemeanor refusal to identify self (Count 2), which the court granted.

[6] Relevant here, during Watts's testimony at the June 2024 jury trial, the State questioned him about his exchange of words with Small outside the store. When the State asked Watts what Small had said to him after being confronted, Small objected and a sidebar was held. Small argued that “[i]f this is a prior statement from Mr. Small, that was never discovered to us. It's not in the probable cause affidavit that Mr. Small said anything to [Watts].” Transcript Vol. 3 at 69. The trial court then asked Small whether he had deposed Watts, to which Small responded in the negative. Id. The State maintained that Small's responsive words to Watts were admissible, asserting: “[T]his is what [Small] said. This is a party opponent. They had the opportunity. [Watts]’s been discovered.” Id. The trial court overruled the objection and permitted the evidence, although offering Small a recess to consider Watts's testimony and any response. No recess was taken, and the State's questioning of Watts continued:

Q: ․ You tried to stop him from taking the doughnuts before he left the store. Ultimately, he left and then you said words to him. And then what were his words to you?

A: His words to me was are these doughnuts worth your life.

Id. at 70. After Watts finished testifying, the trial court asked Small's counsel whether she “need[ed] a moment” but counsel indicated she did not and proceeded to cross-examine Watts. Id. at 72.

[7] Following the State's evidence, the trial court granted Small's motion for judgment on the evidence as to Count 2. The jury found Small guilty of Count 1 but not guilty of the elevated offense. Following a sentencing hearing, the trial court imposed a sentence of 180 days in the Marion County Adult Detention Center. Small now appeals. Additional facts will be provided as needed.

Discussion & Decision

[8] Small asserts that the trial court abused its discretion when it allowed Watts to testify, over Small's objection, that Small “had threatened [Watts]’s life during the alleged theft.” Appellant's Brief at 7. More specifically, Small contends that the State failed to tender his “are these doughnuts worth your life” statement to the defense as required by a Marion County local rule LR49-CR00-107(2)(a)(2), which required the State to disclose to the defense “any written, oral or recorded statements made by the accused.” Transcript Vol. 3 at 70. Small asks us to reverse his theft conviction and remand for a new trial.

[9] The admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Luckett v. State, 223 N.E.3d 1170, 1175 (Ind. Ct. App. 2023). Ind. Trial Rule 37 authorizes courts to impose sanctions for discovery violations, including prohibiting a party “from introducing designated matters in evidence.” T.R. 37(B)(2)(b); State v. Lyons, 211 N.E.3d 500, 505 (Ind. 2023). A trial court has broad discretion to manage discovery, and we presume the court acted fairly and equitably. Luckett, 223 N.E.3d at 1176. We have recognized that “not ․ all failures to comply with court orders, trial rules, and local rules relating to discovery should automatically result in reversal.” Dillard v. State, 102 N.E.3d 310, 312 (Ind. Ct. App. 2018). Rather, reversal is only warranted where a failure to comply with discovery rules results in prejudice. Id.

[10] The two typical remedies for a party's late disclosure of evidence are to continue the trial or to exclude the evidence. Lyons, 211 N.E.3d at 505. As Small acknowledges, a continuance is usually the proper remedy for discovery violations. Lindsey v. State, 877 N.E.2d 190, 196 (Ind. Ct. App. 2007), trans. denied. Exclusion of the evidence, on the other hand, “is an extreme remedy and is to be used only if the State's actions were deliberate and the conduct prevented a fair trial.” Luckett, 223 N.E.3d at 1176. We exclude evidence only if (a) that is the sole remedy available to avoid substantial unfair prejudice, or (b) the discovery violation was intentional, flagrant, in bad faith, or otherwise reprehensible. Lyons, 211 N.E.3d at 505-06.

[11] Initially, we observe that Small neither requested a continuance after his objection to the evidence was overruled nor accepted the trial court's offer for a recess. On this record, Small has waived any alleged error pertaining to admission of the evidence based on non-compliance with discovery. See Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000) (finding that defendant waived any error in admission of exhibits that were not disclosed by State under local automatic discovery rule where defendant failed to request a continuance after unsuccessfully seeking to exclude evidence); Smith v. State, 210 N.E.3d 312, 320 (Ind. Ct. App. 2023) (“If a continuance would have cured the harm that arose by the discovery violation, failure to request one results in waiver.”).

[12] Waiver notwithstanding, we find no error. When reviewing a trial court's ruling on late disclosed evidence, we consider: when the parties first knew of the evidence; the importance of the evidence; the prejudice resulting to the opposing party; the appropriateness of a less severe remedy such as a continuance; and whether the opposing party would be unduly surprised and prejudiced by admission. Smith v. State, 247 N.E.3d 1285, 1288 (Ind. Ct. App. 2025). In this case, the record is silent as to when, or if, the State knew about Small's statement prior to trial. As to the importance of the admitted evidence, this was, as the State notes, “a trial for theft, not intimidation,” and the challenged statement by Small to Watts was not necessary to prove any of the elements of theft. Appellee's Brief at 12.

[13] Further, Small's conviction for theft was supported by substantial, independent evidence of guilt: Watts observed Small take from a display case a box of Krispy Kreme doughnuts and walk out of the store without paying for them; Officer McClary encountered Small a block away with a box of Krispy Kreme doughnuts sitting on his bicycle; and Watts identified Small as the man who stole the doughnuts. A portion of Officer McClary's body camera footage of the interaction with Small was admitted into evidence without objection and played for the jury, as was Speedway's security camera footage of the incident. On this record, we find no substantial likelihood that the admission of Small's statement to Watts while outside of the store unduly prejudiced him.

[14] Small nevertheless argues that the statement should have been excluded because the State's conduct, in failing to disclose it in advance of the trial, “was prejudicial and reprehensible” Appellant's Brief at 7, 11. He does not direct us to any express act or statement demonstrating bad faith or deliberate conduct by the State. Rather, he argues that such can be inferred from the circumstances, where the State “sandbagged” him by not tendering the statement during discovery. Id. at 10. Small also points to the State's response to his objection – that Small was a party opponent and that Watts had been identified as a witness and could have been deposed – and argues that such “shows the attitude” with which the State approached discovery, namely, “point[ing] the finger at the defense and assert[ing] that the decision not to depose the witness should excuse the State's failure to provide discovery which is supposed to be automatic.” Transcript Vol. 3 at 69; Appellant's Brief at 9. While we certainly discourage any deliberate withholding of discovery, it is unclear whether that occurred here, and, on the record before us, we cannot say that the State engaged in the intentional, flagrant, bad faith, or reprehensible type of conduct to warrant exclusion of Small's statement to Watts. Nor has Small persuaded us that he was prejudiced by the admission of the statement into evidence. Accordingly, we find no reversible error.

[15] Judgment affirmed.

Altice, Chief Judge.

Judges Brown and Tavitas concur. Brown, J. and Tavitas, J., concur.