DARDEN, Senior Judge.
After a jury trial, Shawn Blount was convicted of Class B felony possession of a firearm by a serious violent felon. We reverse and remand.
Blount presents two issues, but we find one dispositive: whether the trial court abused its discretion by admitting hearsay evidence.
In November 2012, Detective Terry Smith of the Indianapolis Metropolitan Police Department was in an unmarked vehicle conducting surveillance at the Best Inn at 4505 South Harding Street due to several complaints of prostitution and open air narcotics activity in the area. Shortly before 11:00 a.m., Detective Smith saw two black males exit the motel. One man was wearing a grey sweatshirt, and the other man was wearing a black hoodie. The man in the black hoodie continued down a sidewalk while the man in the grey sweatshirt waved to someone behind Detective Smith's vehicle and walked in that direction. A woman walked along the side of Detective Smith's vehicle and met up with the man in the grey sweatshirt, and the two then went down the same path as the man in the black hoodie.
Five to ten seconds later, Detective Smith heard yelling. He saw the woman and the man in the grey sweatshirt quickly walking away from a corner of the building and looking back a couple of times. He then saw the man in the black hoodie step
Detective Nicholas Andrews, who was conducting surveillance just south of the parking lot at a different motel, called Detective Smith and confirmed there was a gunshot. They met up, put on their tactical vests, and ran into the motel. By that time, 911 calls had come in saying that the suspect had run into Room 150. As they approached that room, a woman Detective Smith knew as Ricky Brock exited it and ran up the stairs. The detectives found no one in Room 150.
They then followed Brock's path up the stairs, and someone directed them to Room 240. They knocked and announced themselves, and although they heard a lot of commotion in the room, no one answered the door. The detectives forced entry and found Brock, her five-year-old son, and two other females. Brock provided them with the nickname of the person she believed fired the weapon, "Big D." Her son named the same person.
The search for the suspect was unsuccessful. Detective Smith went to the location where he saw the gun being fired and recovered a spent round from a hole in the ground.
During the investigation that day, Detective Andrews was able to obtain an actual name, Shawn Blount, from the nickname Brock and her son had provided. He created a photo array and showed it to Detective Smith, who identified Blount's picture as the person who fired the gun. A warrant was issued, and Blount was arrested about a month later. A firearm was never recovered.
The State charged Blount with Class B felony possession of a firearm by a serious violent felon. At a jury trial, Detectives Smith and Andrews testified on behalf of the State. Over defense objection, Detective Smith testified that Brock and her son provided him with the nickname of the person they believed fired the gun. Blount testified in his own defense that a man named "Bigs," who was shorter than him but stocky, was also at the scene, was angry over a debt, and fired at Blount's feet from half an arm's length away. On cross examination, he acknowledged that Brock was his girlfriend.
The jury found Blount guilty as charged, and the trial court later sentenced him to twelve years. Blount now appeals his conviction.
Blount contends the trial court abused its discretion by admitting hearsay evidence when it allowed Detective Smith's testimony concerning what Brock and her son told him as to their belief about who fired the gun. A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its rulings only where it is shown that the court abused that discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.2011). "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Subject to certain limited and specific exceptions, hearsay is generally not admissible at trial. See Ind. Evidence Rule 802.
Here, it is undisputed that neither Brock nor her son testified at trial. Over Blount's objection, Detective Smith testified as to the following:
Tr. pp. 74-77. Blount claims this evidence was hearsay because Detective Smith testified that Brock and her son told him the name of the shooter.
The State makes two counterarguments. First, it argues the testimony was not hearsay because Detective Smith did not relate any actual statement from Brock or her son. Instead, the State argues, Detective Smith merely stated that Brock and her son provided a nickname, without even specifying what that nickname was.
However, the fact that Detective Smith did not testify to Brock and her son's exact words does not save the testimony from a hearsay challenge. Because his testimony described out-of-court assertions susceptible of being true or false, namely, that the person Brock and her son identified was the shooter, they constitute statements within the meaning of the hearsay rule.
Second, the State argues the testimony was not hearsay because it was not offered to prove the truth of the matter asserted but was instead offered merely to show the course of the investigation. The hearsay rule does not require exclusion of police testimony regarding out-of-court statements by third parties when it is introduced primarily to explain why a particular course of action was taken during a criminal investigation. Williams v. State, 544 N.E.2d 161, 162 (Ind.1989). Nonetheless, "[w]hen approving the admission of such testimony, this Court requires a reasonable level of assurance that such testimony was not offered by the proponent nor received by the trier of fact as evidence of the truth of the third party's statement." Id. at 162-63. We have recently observed that course-of-investigation evidence is generally irrelevant in that it does not make it more or less probable that the defendant committed the act alleged. See Kindred v. State, 973 N.E.2d 1245, 1252-1255 (Ind.Ct.App.2012) (collecting cases), trans. denied.
Here, as at trial, the State claims any statements made by Brock and her son were only offered to show how Detective Smith was eventually able to identify Blount as the shooter. Specifically, Brock and her son provided the nickname of the person they believed to be the shooter, Detective Andrews connected that nickname to Blount, he created a photo array with Blount's picture, and Detective Smith identified that picture as the person he saw shooting the gun.
The State argues that Blount's case is "significantly different" from Williams. Appellee's Br. p. 11. Unlike Williams, the State claims, Detective Smith did not testify to any statement but merely said that Brock and her son provided a nickname. As we determined above, however, Detective Smith clearly testified to a statement when he said that Brock and her son told him the nickname of the shooter.
The State also claims Williams is distinguishable because the informant there told the detective that Williams was involved in the robbery, while Brock and her son told Detective Smith the nickname of the person they only believed to be the shooter. See id. ("[T]he detective merely testified that the nickname given was that of someone who Ricky believed had fired the weapon, not anyone she knew had fired the weapon."). This is a distinction without a difference. In Williams, the detective testified that the informant identified the robber. Likewise, here, Detective Smith testified that both Brock and her son identified the shooter.
How the police narrowed the investigation to Blount was irrelevant to any contested issue in the case. Moreover, the prejudicial impact of the testimony was great: in a jury trial to determine whether Blount unlawfully possessed a firearm, Detective Smith related out-of-court statements asserting that Blount possessed a firearm. Any probative value to the statements were thus substantially outweighed by the danger of unfair prejudice. We therefore conclude that Detective Smith's testimony was inadmissible hearsay and that the trial court abused its discretion by admitting it.
When a trial court errs in the admission of evidence, we will not reverse the conviction if that error was harmless. Turner, 953 N.E.2d at 1058. Errors in the admission of evidence are to be disregarded unless they affect the defendant's substantial rights. Id. at 1059. In determining the effect of the evidentiary ruling on a defendant's substantial rights, we look to the probable effect on the fact-finder. Id. The improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court there is no substantial likelihood the challenged evidence contributed to the conviction. Id.
The State argues the error was harmless because Detective Andrews later testified without objection to "essentially"
The State also argues the error was harmless because Detective Smith had already identified Blount as the shooter to the jury. See Appellee's Br. p. 13 (noting Detective Smith's testimony that Blount was the man he saw when he observed the muzzle flash and heard the gunshot and that he picked Blount's picture from the photo array, further noting Detective Smith's positive in-trial identification of Blount). We disagree. As in Williams, 544 N.E.2d at 163, the erroneously admitted hearsay evidence of Brock and her son buttressed Detective Smith's credibility when he identified Blount as the shooter. We thus cannot say there is no substantial likelihood the challenged evidence contributed to the conviction.
The State points to no other evidence supporting its claim that the admission of Detective Smith's hearsay testimony was harmless. We therefore conclude its admission was not harmless and reverse Blount's conviction. The State is not precluded from retrying Blount for this offense. See Stahl v. State, 686 N.E.2d 89, 94 (Ind.1997) ("[I]f all the evidence, even that erroneously admitted, is sufficient to support the jury verdict, double jeopardy does not bar a retrial on the same charge.").
We reverse Blount's conviction and remand for further proceedings consistent with this opinion.
ROBB, J., concurs.
KIRSCH, J., dissents without opinion.