Kirby v. State

• Docket Number: Court of Appeals Case No. 22A-CR-2917
• Decision Date: 17 August 2023
• Citation: 217 N.E.3d 575
• Parties: Kenneth R. KIRBY, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

217 N.E.3d 575

Kenneth R. KIRBY, III, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A-CR-2917

Court of Appeals of Indiana.

Filed August 17, 2023

Attorney for Appellant: Matthew J. McGovern, Fishers, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Megan M. Smith, Kyle M. Hunter, Deputy Attorneys General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1]Kenneth Kirby, III, appeals his conviction for arson, a Level 4 felony.Kirby argues that: (1)the trial court abused its discretion by denying his motion to dismiss; (2)the trial court abused its discretion by admitting testimony regarding the substance of a surveillance camera video recording that was not offered into evidence; and (3)the State presented insufficient evidence to support Kirby's conviction.We find Kirby's arguments without merit and, accordingly, affirm.

Issues

[2] Kirby raises three issues on appeal, which we restate as:

I.Whether the trial court abused its discretion by denying Kirby's motion to dismiss.

II.Whether the trial court abused its discretion by admitting testimony regarding the substance of a surveillance camera video recording that was not offered into evidence.

III.Whether the State presented sufficient evidence to support Kirby's conviction.

Facts

[3] Kirby has a younger sister, Lindsey Kirby, and a younger brother, Brandon Kirby.In 2022, Lindsey lived in a house in Evansville, and Brandon lived in a house nearby.

[4] On June 19, 2022, at approximately 2:00 p.m., Lindsey contacted 911 and reported that Kirby was breaking into her house and threatening to burn it down.Lindsay stated, "[I] know that it is [Kirby], [ ]he's on the other line with me and now he's at my house."Tr. Vol. IIp. 112.She further stated that "[w]e drove past[,] and I [saw] him out there"; that Kirby "had no shirt on and [was] wearing shorts"; and that Brandon was trying to stop Kirby from burning the house down.Id. at 112-13.Shortly thereafter, Lindsey contacted 911 again and reported that her neighbors informed her that her house was "smoking."Id. at 113.

[5] The Evansville Fire Department quickly responded to the fire.District ChiefEric Eifert arrived at the scene and observed a "well-developed" fire in the house's backyard.Id. at 119.A small garage in the yard was consumed in flames and causing fire damage to the house, a neighboring business, and the power lines.Chief Eifert believed that the fire was "accelerated in some way ...."Id. at 120.

[6] Meanwhile, Evansville Police Department OfficerAllison Farmer was dispatched to the scene to investigate a report of disorderly conduct alleged against Kirby.Evansville Police Department Detectives Christopher Jones and Joseph Mayer arrived as well.Detective Mayer determined that the fire was "a result of human action," specifically "open flame to ignitable fluid" in the garage.Id. at 193.Detective Mayer further determined that the "ignition fuel was ... gasoline."Id. at 190.Kirby was arrested at Brandon's house later that afternoon.

[7] After the fire was extinguished and power was restored, Lindsey invited the detectives inside the house to show them a video recorded by her backyard surveillance cameras ("the video").The video depicted two white men in the backyard, one of whom was shirtless, wearing blue jean shorts and white shoes, and carrying a "red container in his hand."Id. at 181.The shirtless man entered the garage with the red container and then exited without the container.As he exited the garage, smoke and flames began to emanate therefrom.

[8] The detectives requested a copy of the video; however, Lindsey informed them that she had a previous engagement and needed to leave.The detectives arranged for Lindsey to call them later that evening.Lindsey neither called the detectives nor answered their subsequent phone calls.The detectives later obtained a search warrant to seize the DVR; however, the DVR was gone when they arrived, and it was never found.

[9] On the evening of the fire, Brandon's wife, Amber, consented to a search of her and Brandon's home.Law enforcement located a pair of blue jean shorts that matched those worn by the shirtless individual in the video.Additionally, next to the shorts, law enforcement located a pair of white shoes that had "an odor of gasoline coming from them."Id. at 161.Laboratory testing identified gasoline on the shoes.

[10] On June 22, 2022, the State charged Kirby with Count I: arson, a Level 4 felony; and Count II: criminal mischief, a Class B misdemeanor; and alleged that Kirby was an habitual offender.¹

[11]The trial court held a jury trial on October 5, 2022.The State called Officer Farmer, and the following exchange took place:

Prosecutor: Ma'am, what is RMS?

Witness: RMS is a system that we use through our computers that stores people's data.If you've ever had any sort of citation, involvement in an incident, anything like that, whatever information that was implemented into that report is added to that system and any officer can pull it up by just your first and last name.

Prosecutor: Are you sometimes able to find a photo of an individual?

Witness.Yes.If somebody has been booked into Vanderburgh County Jail or has a CCW or anything [w]here they're imaged in, you can pull up their picture by running their name....

Prosecutor: Okay.What does CCW stand for?

Witness: Conceal carry weapon license.

Prosecutor: [W]ere you able to see a name for a Kenneth Kirby?

Witness: Yes, sir.

Ex. Vol. IVpp. 9-10.

[12] Defense counsel moved for a mistrial on the grounds that the State implied that Kirby had a criminal record "by saying that [Officer Farmer] was able to look up [Kirby's] photograph through the RMS system."Id. at 10.The prosecutor responded:

It's clear from [Officer Farmer's] testimony that you can be on RMS for issues that do not involve a criminal history.She said infractions, such as tickets or a concealed carry.Where we are going with this line of questioning, is that when she arrives to the scene, she sees an individual matching the photo that she saw, that she looked up for this disorderly conduct run.She looks in RMS, because this disorderly conduct run is alleged to involve Kenneth Kirby.

Id. at 11.The prosecutor added that any improper inference regarding Kirby's criminal history could be cured by: (1) asking Officer Farmer to clarify via testimony as to whether an individual might be included in the RMS "without any kind of criminal history,"id. at 12; and (2) an instruction from the trial court to disregard any prejudicial inference regarding Kirby's criminal history.

[13]The trial court found that Officer Farmer's testimony implied that Kirby had a criminal history and granted the motion for mistrial.The trial court reset the jury trial for October 10, 2022.

[14] On October 6, 2022, Kirby filed a motion to dismiss the arson charge.The motion alleged that the prosecutor's questions regarding the RMS were "intended to elicit responses which would goad the defendant's counsel into moving for a mistrial, with the intent to cause termination of the trial" and that, as a result, retrial was barred.Appellant's App. Vol. IIp. 65.On October 7, 2022, Kirby filed a motion to suppress evidence regarding the shoes on which gasoline was identified.²

[15]The trial court held hearings on the motion to dismiss and motion to suppress evidence on October 10, 2022, before the jury trial commenced.At the dismissal hearing, the prosecutor denied intending to cause a mistrial and explained that he was "human,""make[s] mistakes," and "could have asked a better question ...."Tr. Vol. IIp. 77.The trial court found the prosecutor's explanation credible and denied the motion to dismiss.

[16] At the suppression hearing, Amber testified that Kirby came to Brandon's house "often" and that it would not be "unexpected" to find Kirby's clothing in her house.Id. at 97.Detective Jones testified that Amber informed him that the shorts were Brandon's but that Kirby and Brandon "share[d] clothes from time to time" and that "the shoes were [Kirby's]."Id. at 85.The trial court denied the motion to suppress.

[17]The trial court then commenced the second jury trial.Neither Lindsey, Brandon, Amber, nor Officer Farmer testified.The trial court admitted Lindsay's 911 calls over Kirby's hearsay objection.Additionally, because the State never located the DVR, the State did not offer the video into evidence.Instead, the State sought to introduce the testimony of Detectives Jones and Mayer regarding their observations from the video.Kirby objected to the detectives’ testimony pursuant to the "silent witness theory" on the grounds that the detectives did not lay a proper foundation for the authenticity of the video.Id. at 153.The trial court overruled the objection and admitted the detectives’ testimony.

[18] The jury found Kirby guilty of arson, a Level 4 felony.Kirby subsequently admitted to being an habitual offender.The trial court entered judgment of conviction and sentenced Kirby to ten years, enhanced by seven years for the habitual offender finding, for a total sentence of seventeen years in the Department of Correction.Kirby now appeals.

Discussion and Decision

I.The trial court did not abuse its discretion by denying Kirby's motion to dismiss

[19] Kirby first argues that, after the first trial resulted in a mistrial, the trial court abused its discretion by denying Kirby's motion to dismiss the arson charge.We are unpersuaded.

[20] The "double jeopardy" clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."U.S. Const. amend 5.This clause restricts the government's ability to try a criminal defendant twice for the same offense.Farris v. State , 753 N.E.2d 641, 645-46(Ind.2001).Our Indiana Supreme Court has explained, however, that a defendant's motion for mistrial constitute...