Hurd v. State
| Decision Date | 24 May 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-1671 |
| Citation | 171 N.E.3d 659 (Table) |
| Court | Indiana Appellate Court |
| Parties | Jeromy D. HURD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
Attorney for Appellant: John M. Haecker, Auburn, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, George P. Sherman, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Jeromy D. Hurd appeals his convictions for dealing in methamphetamine, dealing in marijuana, and theft, arguing the trial court erred in admitting evidence and the evidence is insufficient to support his convictions. We agree and reverse as to the theft conviction but affirm in all other respects.
[2] On January 9, 2020, Officer Justin James of the Auburn Police Department received information that Hurd, who had a warrant out for his arrest, was at 318 South Walsh Street in Garrett, DeKalb County, Indiana. The residence includes four apartments. Jodi Parrish resided in a ground-floor apartment, and her apartment was the only unit with access to the building's basement. Parrish's stepdaughter, Kassandra Dailey, regularly stayed at the apartment. Hurd had visited Dailey there a "couple" times. Tr. Vol. III p. 148.
[3] Officer James knocked on Parrish's door and, when she answered, asked for Hurd. Parrish went to Dailey's bedroom, where Dailey and Hurd were sleeping, and told them police were there. Hurd was "frantic" and "tr[ied] to hide" by "go[ing] out the window" and up "into the ceiling rafters." Id. at 152, 153. Parrish went back and forth between Dailey's bedroom and the front door several times to communicate with the officers outside. Hurd initially refused to leave the apartment, but after officers threatened to send in a canine unit, he came out. Officers searched him and found a cell phone and $1,360 cash "in mostly small bills." Id. at 88. Officer James applied for a search warrant for the cell phone, which was granted. Officers also searched two vehicles parked at the apartment they were "told [Hurd] was driving" and found inside the cars "several chemical precursors to manufacture" methamphetamine. Id. at 99, 134. Parrish and Dailey consented to a search of the apartment. In Dailey's bedroom, officers found a firearm underneath a pillow, as well as a marijuana pipe, a small amount of marijuana, a meth pipe, and "a couple of residue baggies of methamphetamine." Id. at 89. In the basement, officers found a backpack containing 76.16 grams of methamphetamine, 587 grams of marijuana, a bag of pills, digital scales, a brass grinder, drug paraphernalia, a magazine loader for a handgun, and plastic baggies. The State charged Hurd with Level 2 felony dealing in methamphetamine, Level 6 felony dealing in marijuana, Level 6 felony possession of precursors, and Level 6 felony theft of a firearm.1
[4] The trial was held over three days in July 2020. During Officer James's direct testimony, the State asked him about text messages he found on Hurd's cell phone. The following exchange occurred:
Id. at 100-01. The court overruled the objection, and Officer James testified the phone contained messages "related to drug activity." Id. at 102.
[5] The State then introduced Exhibit 13, a photograph of text messages from Hurd's phone on the morning of his arrest. The court admitted the photograph over Hurd's "continuing objection." Id. at 104. The text messages contained the following exchange:
Ex. 13. Officer James testified "green" and "tree" are both slang terms for marijuana. The State later introduced photographs of Facebook messages received by Hurd's phone on the day of his arrest. The messages contained the following, all from unidentified persons:
[6] Again, the court admitted the exhibits over Hurd's objection. Officer James testified these messages indicate "money transaction[s]" and reference needing "drugs." Tr. Vol. III pp. 110, 111. Specifically, he testified "bong rips" refers to "smoking" marijuana or methamphetamine out of a bong and "zip" is slang for "an ounce of drugs." Id. at 108, 111. Unlike Exhibit 13, these photographs contain only messages sent to Hurd from unidentified persons; no responses from Hurd are included. Additionally, the State introduced a "photograph of a photograph on [Hurd's] phone" Id. at 112. The photograph showed a brass grinder, which Officer James testified "appears to be the same type of grinder" found in the backpack and that he believed the two grinders to be the "same." Id. at 205. He also stated he doesn't "commonly find brass grinders." Id. at 206.
[7] Later Officer James testified he ran the serial number on the gun found in Dailey's bedroom and it came back as stolen from Travis Bunn in Noble County. During Hurd's cross-examination of Officer James, the following exchange occurred:
Id. at 123. On Officer James's redirect, the State asked, Id. at 124. Hurd objected that the answer called for hearsay, but the court allowed Officer James to respond because "[Dailey] will be testifying" so the defense will "have a chance to ask [her] about this." Id. at 124. Officer James then testified Dailey was not charged with theft of the gun because when he was interviewing her she was "very open" and said the gun was not hers. Id.
[8] Parrish testified that, when speaking with Officer James at the front door, she told him "[Hurd] was in the basement." Id. at 155. However, she clarified she was told this information by Dailey, and never actually saw Hurd go into the basement. Later, defense counsel asked Parrish about Hurd's actions right before he left the apartment, and she stated, "When he came upstairs he said, he, yeah, when he was right next to me there at the door he said that he wanted to smoke, he's turning himself in he wanted to smoke a cigarette." Id. at 161. Finally, Detective Cory Heffelfinger of the Auburn Police Department testified the value of the methamphetamine found in the backpack was approximately $7,600, while the value of the marijuana was around $6,000.
[9] The State anticipated Dailey would testify, but during a break in the trial on the second day she left and did not return. Hurd then moved Id. at 194. The court agreed to "strike from the record ... anything that Jodi Parrish said Kassandra Dailey told her." Id. at 195. Most notably, this included Dailey telling Parrish that Hurd was in the basement.
[10] The jury found Hurd guilty of Level 2 felony dealing in methamphetamine, Level 6 felony dealing in marijuana, and Level 6 felony theft. The jury found Hurd not guilty of Level 6 felony possession of precursors. The court sentenced Hurd to twenty years for the Level 2 felony and two years each for the Level 6 felonies, all to be served concurrently, for an aggregate sentence of twenty years.
[11] Hurd now appeals.
[12] Hurd challenges the trial court's admission of the messages from his phone and Officer James's testimony regarding the messages. Generally, the admission of evidence is within the sound discretion of the trial court, and we afford that discretion great deference on appeal. Hall v. State , 36 N.E.3d 459, 466 (Ind. 2015). We therefore review a trial court's admission of evidence only for an abuse of discretion. McVey v. State , 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. "An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Id.
[13] Hurd argues the contents of the phone messages were inadmissible hearsay. "Hearsay" is defined as an out-of-court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is not admissible unless it falls within an exception to the hearsay rule. Ind. Evidence Rule 802.
[14] The first challenged exhibit, Exhibit 13, shows an exchange of text messages...
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