holding that the defendant’s failure to make an offer of proof waived any error
How later courts described this case
- holding that the defendant’s failure to make an offer of proof waived any error
Written by the judges who cited it.
The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 10 2018, 5:39 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sherry Vernell Webb, August 10, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-507
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D02-1708-F5-106
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 1 of 9
[1] Sherry Vernell Webb appeals her convictions for intimidation as a level 5 felony
and criminal recklessness and possession of marijuana as class B
misdemeanors. Webb raises one issue which we revise and restate as whether
the trial court abused its discretion in not admitting certain evidence. We
affirm.
Facts and Procedural History
[2] On March 31, 2017, Malinda Solomon drove her vehicle to pick up Robert
Crisler at an apartment building, parked her vehicle in the parking lot, entered
the building, knocked on the door to Robert and his wife Ethel’s apartment, and
was let inside. Webb, who lived in a neighboring apartment, was in the
apartment with Robert and Ethel. At some point, Webb stood up and said
“that’s the b---- that doesn’t like me.” Transcript Volume II at 34. Solomon
attempted to avoid Webb, and Webb exited the apartment and, in doing so,
brushed Solomon’s shoulder and nearly knocked her off of her feet. Solomon
told Robert that she would be outside, exited the building, and pulled her
vehicle into a parking space near the building exit.
[3] Robert and Ethel exited the apartment building, Webb was behind Robert and
Ethel, and Solomon heard Webb “saying something to the effect of you not
going no mother f---ing where.” Id. at 38. Solomon observed that Webb was
holding a black gun and that she struck the passenger side of Solomon’s vehicle
with the gun. Webb moved toward the rear of Solomon’s vehicle, Ethel heard a
“popping sound,” and Solomon heard Ethel say “she shot.” Id. at 55, 40.
Ethel heard Webb say “this bitch isn’t going anywhere and that will not either.”
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 2 of 9
Id. at 55. Webb then reentered the apartment building. Solomon exited her
vehicle, discovered that her tire had been shot, and called the police.
[4] Lafayette Police Officer Ian O’Shields responded to the scene, observed that
Solomon’s vehicle had a flat tire and a hole in it, and “located a 380 shell casing
two or three feet from the tire.” Id. at 64. Officer Cassandra Leuck, who was a
firearms instructor, entered Webb’s apartment, located Webb in a back
bedroom with the door closed, and made several commands for her to exit, and
she eventually did. Webb immediately began yelling at Officer Leuck and was
sweating profusely. Officer Leuck obtained a warrant to search Webb’s
residence, and police discovered marijuana, a small manila envelope containing
a label indicating the envelope was associated with a Ruger with a caliber of
“380 AUTO,”1 a box for a Ruger handgun, and a box of ammunition for a nine
millimeter. State’s Exhibit 8.
[5] The State charged Webb with: Count I, intimidation as a level 5 felony2; Count
II, criminal recklessness as a level 6 felony; Count III, criminal mischief as a
class B misdemeanor; and Count IV, possession of marijuana as a class B
misdemeanor. At Webb’s trial, a jury heard testimony from Solomon, Ethel,
Officer O’Shields, Officer Leuck, and Webb, among others. Ethel testified that
1
Officer Leuck testified “when you purchase a handgun, inside of the box typically, is a small manila
envelope that is located a spent shell casing from that gun specifically” and “[o]n that it shows what gun it
goes to, what caliber and I believe also what . . . serial number of the gun that it was shot out of.” Transcript
Volume II at 103.
2
The State alleged that, while committing the offense of intimidation, Webb did draw or use a handgun.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 3 of 9
she observed Webb walk from the front to the rear of Solomon’s vehicle, heard
a noise like a popping sound, saw Webb walk back to the apartment building,
and when asked if Webb had anything with her at that time, that she had “seen
what [she] thought was a toy gun.” Transcript Volume II at 55. Ethel testified
the object was black and the “size of a 32 or 38 or something.” Id. at 56.
During the cross-examination of Officer Leuck, Defense counsel asked if
firearms leave behind residue when they discharge, and Officer Leuck
responded affirmatively. The State objected to the line of questioning about
gunshot residue, and the court sustained the objection. The jury found Webb
guilty as charged.
[6] The court sentenced Webb to three years for her conviction for intimidation as
a level 5 felony under Count I; sentenced her to 180 days for her conviction for
criminal recklessness and reduced the charge to a class B misdemeanor under
Count II; found that Count III merged with Count II and declined to enter
conviction on Count III; and sentenced her to 180 days for her conviction for
possession of marijuana as a class B misdemeanor under Count IV. The court
ordered that Counts I and II be served concurrently and that Count IV be
served consecutive to Count I for an aggregate sentence of three and one-half
years. The court also ordered that Webb execute 180 days as a direct placement
with Tippecanoe County Community Corrections and that three years be
suspended to probation.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 4 of 9
Discussion
[7] Webb claims the trial court abused its discretion in excluding evidence
regarding gunshot residue testing. The trial court has broad discretion to rule
on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind.
2016). We review its rulings for abuse of that discretion and reverse only when
admission is clearly against the logic and effect of the facts and circumstances.
Id. Even when a trial court errs in excluding evidence, we will not find
reversible error where that error is harmless; that is, where the error did not
affect the substantial rights of a party. See Ind. Trial Rule 61.
[8] The record reveals that, during defense counsel’s cross-examination of Officer
Leuck, the following colloquy occurred:
Q [Defense Counsel] Okay. And you said earlier that you were
a firearms instructor?
A [Officer Leuck] Correct.
*****
A I’m a firearms instructor for Lafayette Police Department yes.
Q Okay and when firearms discharge they leave behind residue?
A Yes.
Q Depends on the type of powder, depends on type of powder -
[Prosecutor]: Objection can we approach?
The Court: Yes.
(Sidebar begins at 4:01 p.m.)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 5 of 9
[Prosecutor]: (Inaudible).
[Defense Counsel]: They’re the ones who put it at issue. That
was the first question.
The Court: Let’s take a sidebar. We’re going to take a quick
sidebar. Okay we’re on the record, there was a question about
gunshot residue that was discharged when a firearm is discharged
and you asked the witness do guns - the residue (inaudible) and I
think the witness said yes and then the state objected.
[Prosecutor]: And I would just do to [sic] a continuing objection
to the whole line of questioning about gunshot residue. It’s [sic]
presence or absence. First off because this witness is not
necessarily qualified to testify about it, it’s not good science.
The Court: What do you mean by that?
[Prosecutor]: That the Indiana state police laboratory does not
do any gunshot residue testing. The police don’t do instant tests
for presence of absence of gunshot residue testing. The police
don’t do instant tests for presence or absent [sic] the gunshot
residue because it has been shown to not be reliable science.
The Court: [Defense counsel].
[Defense Counsel]: They’re the ones that put her expertise and
firearms at issue. In fact, it was one of the first questions to this
witness I think as a firearms instructor.
The Court: I don’t know that they qualified her in terms of the
scientific test regarding residue.
[Defense Counsel]: Okay so I can ask her about she answered
affirmatively about the residue.
[Prosecutor]: She did.
The Court: And so, you’re objecting to any further questions?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 6 of 9
[Prosecutor]: Any further questions on this issue.
The Court: I’ll sustain that objection.
[Defense Counsel]: Very well.
(Sidebar ends at 4:04 p.m.)
The Court: The objection is sustained you can continue your
questions.
Transcript Volume II at 118-120.
[9] Webb argues that several tests related to residue identification have achieved
recognition in the scientific community, that Indiana courts have implicitly
recognized the capability of testing to determine the presence or absence of
gunshot residue, and that the State’s assertion that neither the Indiana State
Police laboratory nor local police agencies perform gunshot residue testing does
not equate with it having been shown to be unreliable science. The State
responds that Webb did not make an offer to prove what the excluded
testimony would have been or shown and that therefore her argument is
waived. It further argues that Officer Leuck’s testimony did not establish that
she knew anything about gunshot residue or residue testing, that there was no
evidence that a residue test was performed on Webb to see if she bore evidence
of residue, and that any error in the court’s ruling is harmless.
[10] Ind. Evidence Rule 103(a) provides that “[a] party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial right of the
party” and that, “[i]f the ruling excludes evidence, a party informs the court of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 7 of 9
its substance by an offer of proof, unless the substance was apparent from the
context.” It is well settled that an offer of proof is required to preserve an error
in the exclusion of a witness’s testimony. Barnett v. State, 916 N.E.2d 280, 287
(Ind. Ct. App. 2009) (citing Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind.
1999)), trans. denied. An offer of proof allows the trial and appellate courts to
determine the admissibility of the testimony and the potential for prejudice if it
is excluded. Id.
[11] Webb did not request or present an offer of proof in order to establish that
Officer Leuck possessed specific expertise with respect to gunshot residue, that
any gunshot residue assessment may have been completed, or that any gunshot
residue was or was not found on Webb. Based upon the record, we cannot find
the court abused its discretion in not permitting Webb to elicit additional
testimony from Officer Leuck regarding gunshot residue before the jury. See
Dowdell, 720 N.E.2d at 1150 (holding that the defendant’s failure to make an
offer of proof waived any error).
[12] In addition, even if an error occurred, the error is harmless. An error will be
found harmless if its probable impact on the jury, in light of all of the evidence
in the case, is sufficiently minor so as not to affect the substantial rights of a
party. Gault v. State, 878 N.E.2d 1260, 1267-1268 (Ind. 2008). The State
presented testimony that Solomon observed Webb strike the passenger side of
her vehicle with a gun, that Solomon and Ethel observed Webb move to the
rear of Solomon’s vehicle, that Ethel heard a popping sound, and that Solomon
exited her vehicle and discovered a hole in the rear passenger-side tire of her
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 8 of 9
vehicle. Police subsequently discovered a spent 380-caliber shell casing near the
flat tire of Solomon’s vehicle and located a box for a gun and an envelope
associated with a 380-caliber gun in Webb’s apartment. We conclude that any
error in refusing Webb’s attempt to continue questioning Officer Leuck
regarding gunshot residue did not affect Webb’s substantial rights and is
harmless.
Conclusion
[13] For the foregoing reasons, we affirm Webb’s convictions.
[14] Affirmed.
Vaidik, C.J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-507 | August 10, 2018 Page 9 of 9