Resisting convictions overturned for evidentiary errors

A man convicted of two counts of resisting law enforcement has won a reversal after the Indiana Court of Appeals found that certain evidence admitted at trial constituted reversible error.

In 2018, Marion County law enforcement officers were surveying an area located on the northeast side of Indianapolis due to a “recent uptick in violence” when they saw an exchange of a handgun between two drivers at a local gas station. Officers followed the vehicles as they left.

Officers continued to follow the men to an apartment and then to a McDonald’s, where the officers stopped to watch them. Eventually they conducted a traffic stop when one of the vehicles turned left with its right turn signal on.

The car stopped but sped off and later crashed into a tree, with two men running out of the vehicle, including Antwon Stott.

An officer viewed the McDonald’s surveillance footage, taking several pictures of the video on a cellphone. He “believed” that a man depicted in the footage, who appeared to be wearing an all-denim outfit like the driver, was Stott. That belief was based on a picture of Stott the officer had previously received via “an e-mail communication.”

Stott was later apprehended on an arrest warrant and ultimately convicted of two counts of resisting law enforcement, one as a Level 6 felony and one as a Class A misdemeanor, as well as being a habitual offender. He was handed an aggregate six-year sentence.

Stott had unsuccessfully objected to two pieces of evidence that the state introduced at trial, including an audio recording of police radio traffic from the time after the truck fled the traffic stop in which anonymous witnesses spoke with law enforcement, and the cellphone photographs of the McDonald’s surveillance footage.

But the Indiana Court of Appeals agreed with Stott that the Marion Superior Court committed reversible error by admitting that evidence at trial, ruling that the radio traffic recording constituted inadmissible hearsay to which no exception applied and that the photographs lacked sufficient authentication.

The court further found the admission of the evidence was not harmless, and therefore reversed and remanded in Antwon A. Stott v. State of Indiana, 20A-CR-1924.

First, the COA found that the trial court erred when it admitted the audio recording because the state failed to demonstrate that the second or third requirements were satisfied for the “present sense impression exception” to the rule against hearsay.

“It is unclear whether the witnesses made the statements to police during or immediately after the events described or whether the witnesses personally perceived those events. And at least one anonymous declarant had time to deliberate. These circumstances distinguish the police-radio evidence here from the properly admitted hearsay evidence in the cases relied on by the State,” Judge Paul Mathias wrote for the COA.

The court further found that the state did not satisfy the silent-witness theory’s requirement on the issue of the admitted cellphone photographs. It noted that it is “increasingly easier in today’s digital age to manipulate or distort images.”

“Without suggesting any malfeasance in this case, we reiterate that it is the proponent’s burden to establish the strong showing of authenticity and competency for the admissibility of photographs used as substantive evidence under the silent-witness theory. The State did not do so here. And thus, the trial court abused its discretion in admitting the cell-phone photographs of the surveillance-footage,” Mathias concluded.

Finding that error was not harmless either, the appellate court therefore reversed and remanded for further proceedings consistent with its opinion.

In a footnote, the court wrote that “Stott and the State agree that the two resisting-law-enforcement convictions violate the prohibition against double jeopardy. … While we too agree with both parties — though the State’s analysis is more accurate — we need not remand for the trial court to vacate the misdemeanor conviction because we reverse and remand on all counts.”

Judge Patricia Riley concurred in result without a separate opinion.