D.S., Appellant-Defendant, v. STATE OF INDIANA (1999)

MEMORANDUM DECISION - NOT FOR PUBLICATION

STATEMENT OF THE CASE

D.S. appeals his conviction by jury of residential entry as a class D felony. We affirm.

ISSUE

Whether the trial court abused its discretion by preventing D.S. from cross-examining the victim regarding her arrest for possession of marijuana.

FACTS

In April 1996, Deborah Cress and D.S. became romantically involved, and shortly thereafter, Cress gave D.S. a set of keys to her home so that D.S. could perform chores and maintenance work while she was at work. In June 1996 and again in July 1996, Cress attempted to end her relationship with D.S. In response, D.S. stated to Cress that he would “break up with [her] like no man had ever broke up with [her] before.” (R. 502). Cress subsequently obtained her keys from D.S.

On August 12, the relationship ended, and D.S. picked up his personal items from Cress's residence. On August 26, D.S. approached Cress, told her that he wanted to remain friends, and invited her to lunch on August 28. Cress initially declined; however, D.S. was persistent, and Cress agreed that D.S. could telephone her to make lunch arrangements.

Before leaving for work on the morning of August 28, Cress locked the doors to her home. However, she left the windows slightly open with the screens down because her air conditioner was broken. Cress took an early lunch break to avoid D.S.'s expected telephone call. She drove home and observed D.S.'s truck parked in her driveway. When Cress entered her home, she asked D.S. what he was doing, and he responded that he had heard Cress mention that her air conditioner was broken, and that “he thought that since [they] were going to be friends that he would surprise [Cress] and come over and work on [her] air conditioner.” (R. 519). Cress, who had not given D.S. permission to be in her house, informed D.S. that the air conditioner was located outside and that a service person had already looked at it. After D.S. attempted to repair the unit located outside the home, Cress said, “Thanks, but the air conditioner really can't be fixed ․ we will try it like you've just done, you know, thank you very much and I'm going back to work now.” (R. 521). The two then left the house. Suspecting that D.S. had not disclosed the true reason he was in the house, Cress immediately telephoned her daughter and requested that she return to the house for the rest of the day.

Later that day, Cress's neighbor observed D.S. approach the home with a drill and a small toolbox. The neighbor watched D.S. drill a hole through the house into Cress's daughter's bedroom and pull a wire through the hole. In the meantime, Cress's daughter drove by the house and observed D.S.'s truck parked in the driveway. The daughter then went to a nearby pay phone and called Cress.

When Cress returned home from work, she changed the locks on the doors to her home and began to secure the windows with pipes. While securing her daughter's bedroom window, Cress noticed that the window was closed and the screen was open. She further noticed that there was a black cable on the ground outside the window. The cable entered the bedroom next to the telephone line and ended at a newly drilled hole in the back of a television set in Cress's bedroom. After opening the television, Cress discovered that the on/off indicator light on the front of Cress' television had been removed and replaced with the lens of a small camera. Cress telephoned the police. Officer Estrada and another officer arrived at Cress's residence and observed the cable and the camera inside the television. Officer Estrada informed Cress that she could complete an incident report, obtain a restraining order, or confront D.S. personally. The following day, Cress attempted to contact Officer Estrada to make an incident report, but Officer Estrada was off duty.

On August 31, 1996, three days after Cress first contacted police regarding D.S.'s conduct at her residence, Cress was arrested and charged with possession of marijuana. On September 3, 1996, Cress contacted Officer Estrada and completed a report so that she could obtain a restraining order against D.S. D.S. was subsequently arrested and charged with residential entry.

At the trial of this matter, the trial court granted the State's motion in limine seeking to exclude evidence of Cress's arrest. At defense counsel's request, the trial court conducted a hearing outside the presence of the jury regarding the order in limine. The trial court stood by its original decision and excluded evidence of Cress's arrest under Ind. Evidence Rule 403. Thereafter, defense counsel made an offer of proof via Officer Hendershot, the officer who arrested Cress. Officer Hendershot testified that D.S. contacted an officer of the Capitol Police Department and reported that a woman in a white Cavalier with a black stripe might be driving intoxicated and traveling northbound on U.S. 31. This information was relayed to Officer Hendershot. Officer Hendershot later observed a Cavalier traveling on U.S. 31 and began to follow it. Officer Hendershot stopped the driver of the vehicle, Cress, after noticing that a taillight was out on the vehicle. During the stop, Officer Hendershot noticed Cress reach over to the passenger side of the vehicle and hold a red container. When asked about the container, Cress indicated that she had been caught and that marijuana she received from a friend at work was in the container. She was arrested and charged with possession of marijuana. On September 19, 1996, Cress advised Officer Hendershot that she believed D.S. had planted the marijuana in her vehicle.

Defense counsel also made an offer to prove through the testimony of Officer Estrada, who testified that on September 3, 1996, Cress contacted him about filing a report regarding D.S.'s conduct on August 28. During their conversation, Cress indicated that she had decided to make a report to obtain a restraining order against D.S. because “[D.S.] was allegedly following her and then caused her to be pulled over ․ and supposedly was tampering with her vehicle and stuff.” (R. 769).

D.S. testified in his defense that on August 28, he had entered Cress's residence to fix her air conditioner because he had heard Cress mention at a dinner that her air conditioner was broken. D.S. admitted that Cress did not invite him to her home that day to fix her air conditioner. When asked why he thought “it was okay to go over on the 28th and help fix the air conditioner,” D.S. responded, “Because we had, we rekindled our friendship together, not really our love life together, but we rekindled the friendship and we also had agreed that we would help each other.” (R. 764).

The jury found D.S. guilty as charged.

DECISION

On appeal, D.S. contends that the trial court abused its discretion in excluding evidence of Cress's arrest for marijuana possession because such evidence shows her bias and motive to fabricate her testimony. Specifically, he argues that after her August 31, 1996 arrest, Cress had a motive to lie about whether D.S. entered her home without her permission. He claims that he was entitled to cross-examine Cress regarding this arrest under the Sixth Amendment of the United States Constitution, Ind. Evidence Rule 616, and existing case law. He then provides this Court with a final argument which his counsel could have made had Cress's arrest been made the subject of cross-examination.

A defendant's Sixth Amendment right of confrontation requires that he be afforded an opportunity to conduct effective cross-examination of state witnesses in order to test their believability. McQuay v. State, 566 N.E.2d 542, 543 (Ind. 1991) (citing Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347, 353-55 (1974)). However, this right is subject to reasonable limitations placed at the discretion of the trial judge, id., and only a total denial will result in an error of constitutional proportion. Stonebraker v. State, 505 N.E.2d 55, 58 (Ind. 1987).

Evid. R. 616 provides: “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.” Even if the evidence is relevant for impeachment purposes under this rule, the evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Evid. R. 403; Stevens v. State, 691 N.E.2d 412, 423 n. 8 (Ind. 1997), reh'g denied, cert. denied, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998).

In the present case, Cress's arrest was, at best, only marginally relevant. Our supreme court has stated that it is not reversible error to disallow cross-examination for bias and prejudice if the questioning would not give rise to a reasonable degree of probability of bias and prejudice. Hatchett v. State, 503 N.E.2d 398, 404 (Ind. 1987). We agree with the State that D.S. has failed to demonstrate that a reasonable probability existed that Cress's August 31, 1996, arrest for possession of marijuana caused her to lie about whether she had given D.S. permission to be inside her residence and to pursue an unfounded residential entry charge against him. Cress reported to police D.S.'s charged conduct well before her arrest. On August 28, 1996, the day of the incident, Cress informed the police of D.S.'s conduct and showed them the electrical wiring leading to the camera in her television. Moreover, Cress unsuccessfully attempted to file a police report with Officer Estrada the following day. This evidence shows that any motive Cress had to fabricate about whether she had given D.S. consent to be in her residence existed prior to her arrest. Finally, there is no evidence that the State dismissed the marijuana charge against Cress in exchange for her testimony against D.S., or that Cress believed that such was the case.

We further find that the trial court did not abuse its discretion when it concluded that the probative value, if any, of Cress's arrest was substantially outweighed by the danger of unfair prejudice. The admission of Cress's arrest would have likely resulted in a trial of a charge against Cress that the State had already dismissed. If admitted, Cress's arrest would have forced the State to present evidence implicating D.S. in the marijuana possession charge. Such collateral evidence would have been extremely prejudicial to both the State and D.S. The trial court did not error in excluding evidence of Cress's arrest.

Even if we had concluded the trial court erred in limiting D.S.'s cross-examination of Cress, reversal would still not be warranted. We disregard as harmless an error in the admission or exclusion of evidence where its admission or exclusion does not affect the substantial rights of the party. Bacher v. State, 686 N.E.2d 791 (1997). As set forth in FACTS, the State presented overwhelming evidence of D.S.'s guilt. Cress's testimony as to whether she had given D.S. permission to be in the residence was corroborated by D.S. himself, who testified that Cress did not invite him to her home on August 28. Further, D.S. was able to fully explore Cress's delay in filing a report against D.S. Any error in excluding evidence of Cress's arrest was harmless and did not prejudice D.S. See Nasser v. State, 646 N.E.2d 673, 682 (Ind. Ct. App. 1995).

We affirm.

DARDEN, Judge

SHARPNACK, C.J., and ROBB, J., concur.