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Admission of recording is harmless error

May 15, 2015

A recording of a victim’s conversation with friends should not have been admitted into evidence at trial, but the Indiana Court of Appeals ruled it was a harmless error.

The recording was made at the police station after the victim had been attacked by her boyfriend, Dewayne Townsend. He was charged with residential entry and domestic battery for kicking in the door to his girlfriend’s apartment, grabbing her and busting her lip.  

At trial the state initially offered the record as an excited utterance exception to the hearsay rule. However, the state then withdrew that request and sought to have the recording introduced to rebut any charge of recent fabrication. Townsend objected, but the trial court admitted the evidence.

At the Court of Appeals, the unanimous panel ruled the recording had not been used to rebut any fabrication. The appellate court speculated the state may have thought Townsend would attempt to impeach his girlfriend’s testimony, but on cross-examination he did not allege her testimony was fabricated.

Since there was not even a suggestion that the victim’s testimony at trial was a recent fabrication, the Court of Appeals ruled the trial court abused its discretion by allowing the recording into evidence.

However, the panel found the error was harmless because the recording was used to support the domestic battery charge and the jury was unable to reach a verdict on that charge.

In Dewayne M. Townsend v. State of Indiana, 02A03-1411-CR-389, the Court of Appeals was satisfied that Townsend’s conviction for residential entry as a Class D felony was supported by substantial independent evidence of guilt.

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