Ryan v. State

987 N.E.2d 547

Bradley RYAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 34A02–1211–CR–921.

Court of Appeals of Indiana.

May 9, 2013.

Appeal from the Howard Superior Court; The Honorable George A. Hopkins, Judge; Cause No. 34D04–1108–MR–141.

Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

FRIEDLANDER, Judge.

Bradley Ryan appeals his conviction for Murder ¹ and Robbery, ² a class A felony because it resulted in serious bodily injury. Ryan presents the following restated issues for review:

1. Did the trial court admit improper hearsay evidence?

2. Was Ryan's right to due process violated when the State lost an item of evidence?

3. Was the evidence sufficient to support the convictions?

We affirm.

The facts favorable to the convictions are that Ryan and Lonnie Lewis, the 85–year–old victim, were neighbors who lived directly across the street from one another. Several days before August 13, 2011, Ryan was talking to his friend, Brandon Graham. Both Ryan and Graham needed money at the time. Ryan told Graham that Lewis had given him a check for $1500 and that he had a plan to get another check from Lewis. Ryan proposed to “hit him over the side of the head with something, put him in the bathtub, make it seem like he slipped.” Transcript at 834. They would then get one of Lewis's checks, make it payable to Graham for $9000, and write “Texas Hold ‘em debt” on the notation line. Id. at 835. Graham told Ryan he did not want to participate.

On Friday, April 12, 2011, Ryan told his girlfriend, Tiffany Kubica, that he had helped Lewis and that Lewis was giving him a check as a loan “to help [Ryan] get on top of the bills” and agreed to let Ryan repay the loan with monthly payments. Id. at 627. The next day, Saturday, April 13, Ryan and Kubica, along with Ryan's 9– or 10–year–old son, spent the day together at Kubica's. That evening, Ryan told Kubica he needed to go home because he was going to play poker with Graham. She dropped him off at his house and left. Later that evening, Ryan contacted Kubica and told her that he was ready for her to pick him up. She picked him up between 9:30 p.m. and 9:40 p.m.. The two stayed at Kubica's house on Saturday night and Kubica drove Ryan home the next morning. Kubica did not hear from Ryan all day Sunday, which was unusual, so she called him Sunday evening and asked why he had not called or texted her. Ryan explained he had a lot of things on his mind, that “a lot of stuff has happened today” and that she should “just come over.” Id. at 628.

After she arrived, the two were sitting on Ryan's front porch. Ryan told Kubica that he was “concerned” about Lewis because Lewis's blinds were closed and he customarily kept them open. Id. at 629. He noted that Lewis's house was dark, “and it's never dark.” Id. He told Kubica he thought Lewis was losing his mind because he had been leaving keys in doors, leaving doors open, “and just acting out of character.” Id. Ryan also expressed concern because no one had seen Lewis that day. Kubica suggested that Ryan walk over and check on Lewis. Ryan declined, explaining that he did not “want to get accused of anything.” Id. at 630. At 1 a.m., by now Monday, April 15, Kubica went home and went to bed. She was awakened at 3:30 a.m. when Ryan knocked on her window. She got up and let him in the house. When he entered the house, “he was freaking out.” Id. at 631. She asked what was wrong and he replied, “[O]h my god, Lonnie's dead, Lonnie's dead, Lonnie's dead.” Id. Ryan told Kubica that he put on a pair of gloves and entered into Lewis's house to check on him and found him lying in a pool of blood. Ryan claimed that he checked and found no pulse, and that Lewis's body was stiff and “it stunk.” Id. at 632. Kubica asked Ryan why he wore gloves and he responded that “he didn't want to be accused of anything.” Id. Kubica's father and brother-in-law walked in at that point and asked what Ryan and Kubica were talking about. Ryan repeated his story to them and Kubica's father told him he should call 911. Ryan responded that Lewis was already dead, but Kubica's father told him he should still call 911. Ryan did not do so.

Ryan rode with Kubica when she took a friend to work in Lafayette. Along the way, Ryan threw items from the glove box out of the car's window. Kubica could tell that Ryan was under the influence of something, because he “appeared to be messed up.” Id. at 633. Eventually, Kubica dropped off her friend and she and Ryan returned to her house, where he slept until 2:30 p.m. When he was awakened by the alarm, Ryan became anxious that it was so late and told Kubica he needed to go to the bank, where he was going to cash Lewis's check. Kubica stayed in the car while Ryan went inside. He returned to the car a few moments later, irritated that the bank had informed him that it had to hold the check for three days because it was a third-party check and that he could withdraw only $100.

Meanwhile, Paul and Mary Epperson, who lived across the street from Lewis and next-door to Ryan, noticed on Saturday evening that Lewis's outdoor lights were uncharacteristically off. They became more concerned the next day when Lewis's car remained in the driveway and he did not go to church. Finally, the next morning, Monday, April 15, Paul called Lewis's daughter, Louise Langely, and relayed his concern. She sent her husband, Dan, to check on Lewis. It was Dan who discovered Lewis's body inside his house. Ryan's father soon learned of Lewis's death.

After Ryan arrived back at Kubica's car following his unsuccessful attempt to cash the check, his father called and told him that he needed to come home immediately because something bad had happened to Lewis. According to Kubica, at that point Ryan “suddenly flipped out and it was like it was all a daze. He had no idea what happened to Lonnie because he said I can't believe something's happened to Lonnie.” Id. at 638. According to Kubica, when they arrived at Ryan's house, there were numerous emergency and law enforcement officials on the scene. Kubica was confused by Ryan's behavior upon arrival. He “was just acting like everything was a big surprise. He had no idea anything had happened, it was all just a big surprise.” Id. at 638–39.

When Deputy Gary Cook of the Howard County Sheriff's Department arrived on the scene, he was met almost immediately by Ryan. Ryan informed him that “Lonnie was dead.” Id. at 418. While on the scene during the course of his initial investigation, Deputy Howard frequently returned to his car. According to Deputy Howard, “[e]very time I went back to my vehicle, I was confronted by [Ryan] with different questions” about the investigation. Id. Ryan also related to Deputy Howard stories about several of the neighbors. The deputy believed those stories were intended to lead him to conclude that the subject of those stories had something to do with Lewis's death. Deputy Howard also noted that Ryan became “more and more nervous” as time passed. Id. at 419. While at the scene, Ryan told several neighbors that Lewis had written him a check for $1500.

On August 25, 2011, Ryan was charged with robbing and murdering Lewis. He was found guilty as charged following a jury trial. He was sentenced to sixty years for the murder conviction and thirty years for the robbery conviction. Those two sentences were ordered to be served consecutively for a total executed sentence of ninety years. Further facts will be provided where relevant.

1.

Ryan contends the trial court erred in admitting into evidence portions of statements made to police by Kubica. He contends those statements, which were offered for impeachment purposes, constituted inadmissible hearsay.

Indiana Appellate Rule 46(8) provides that an appellate argument must meet the following requirements:

(a) The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.

(b) The argument must include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issues. In addition, the argument must include a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any Administrative Agency or trial court.

So far as we are able to discern, Ryan's entire “argument” on this point is as follows: “Further, the State's offers of her statements were improperly admitted over objections to hearsay, properly made (Trans. Vol. III, pp. 605–06, 699–700, 705, 708, 710–11; Trans. Vol. V. p. 1059–60). Indiana Rules of Evidence 801(d); K.F. v. State, 961 N.E.2d 501 (Ind.Ct.App.2012)[, trans. denied ].” Appellant's Brief at 8, footnote. This amounts to little more than bare assertion, with no supporting argument at all. The issue is waived. Galvan v. State, 877 N.E .2d 213 (Ind.Ct.App.2007).

2.

At some point prior to trial, the State confiscated Ryan's cell phone. Ryan contends his right to due process was violated when the State later lost his phone.

The defendant in a criminal case has the right to examine physical evidence in the hands of the State. Terry v. State, 857 N.E.2d 396 (Ind.Ct.App.2006), trans. denied. The failure of the State to preserve such evidence may present grounds for reversal based on denial of due process of law. Id. To determine whether a defendant's due process rights were violated, we first decide whether the evidence in question was “ ...