BAKER, J.
Gilbert sets forth two interrelated arguments. Gilbert contends that the trial court abused its discretion when it admitted Officer Decker’s hearsay testimony regarding Detective Wilkerson’s statements and that its admission violated her right to confrontation under the Sixth Amendment to the United States Constitution. [Footnote omitted.]
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Here, the State concedes that Officer Decker’s testimony regarding Detective Wilkerson’s statements to Gilbert that he wanted to receive oral sex from her were hearsay and should not have been admitted. Appellee’s Br. p. 6. Nevertheless, the State points out that by declining to call Detective Wilkerson as a witness, Gilbert “presumably accept[ed] Officer Decker’s account of the detective’s statement.” Id.
To begin, we emphasize that it is a basic tenet of fundamental due process that a criminal defendant does not have to prove or disprove anything. Put another way, the burden is entirely on the State to prove all of the elements of the charged offense beyond a reasonable doubt. Bell v. State, 881 N.E.2d 1080, 1086 (Ind. Ct. App. 2008). Accordingly, the State’s argument that Gilbert should have called Detective Wilkerson as a witness is tenuous at best.
Furthermore, notwithstanding the State’s concession, Officer Decker’s testimony regarding Detective Wilkerson’s statements was not hearsay, inasmuch as it was not offered for its substantive truth. More particularly, Officer Decker’s testimony that Detective Wilkerson stated to Gilbert that “he wanted some h**d” was not offered to prove that Detective Wilkerson, in fact, wanted to receive oral sex. Tr. p. 13. Rather, the statement was introduced to show that it was made, and, more importantly, provided context for Gilbert’s response, which was to ask how much money they had. Id.
In short, Detective Wilkerson’s statements are not hearsay because their purpose was to prompt Gilbert to speak, and, therefore, it was Gilbert’s statements that constituted the evidentiary weight of the conversation. See Williams v. State, 930 N.E.2d 602, 608-09 (Ind. Ct. App. 2010) (holding that the recorded statements of a confidential informant were not hearsay, inasmuch as they were designed to prompt the defendant to speak and as such, the defendant’s statements constituted the evidentiary weight of the conversation).
Moving forward to Gilbert’s contention that the admission of Detective Wilkerson’s out-of-court statements violated her right to confrontation under the Sixth Amendment, we note that “the Confrontation Clause does not apply to nonhearsay statements, even if those statements are testimonial.” Id. at 609 (citing to Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). Moreover, in Pendergrass v. State, our Supreme Court, engaging in a lengthy analysis of Crawford and its progeny, noted that “[i]f the chief mechanism for ensuring reliability of evidence is to be cross-examination, Pendergrass had the benefit here.” 913 N.E.2d 703, 708 (2008). Specifically, Pendergrass had been provided the opportunity to cross-examine the laboratory supervisor and the expert who interpreted the test results for the jury. Id. at 707-08. Our Supreme Court determined that this was sufficient even though the State did not offer the testimony of the laboratory processor, and Pendergrass was not provided the opportunity to cross-examine her. Id. at 708.
Likewise, in the instant case, Gilbert was given the opportunity to cross-examine Officer Decker, who was present during the entire time that Gilbert was with the officers. Consequently, Gilbert was not denied her right of confrontation.
That being said, we do not mean for our conclusion to be interpreted as approval for the manner in which the State presented its case. To be sure, the State had the opportunity to procure the testimony of Detective Wilkerson but declined to do so. While we affirm the trial court, we strongly caution the State against such haphazard work in the future.
KIRSCH, J., and BROWN, J., concur.