Charles Frederick Miller v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 17, 2012
• Docket: 41A01-1106-CR-250
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited

FILED before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the Apr 17 2012, 9:20 am law of the case.

CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL J. KYLE GREGORY F. ZOELLER Baldwin Adams Knierim & Kamish, P.C. Attorney General of Indiana Franklin, Indiana MARJORIE LAWYER-SMITH Special Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CHARLES FREDERICK MILLER, ) ) Appellant, ) ) vs. ) No. 41A01-1106-CR-250 ) STATE OF INDIANA, ) ) Appellee. )

APPEAL FROM THE JOHNSON CIRCUIT COURT The Honorable K. Mark Loyd, Judge Cause No. 41C01-0910-FD-265

April 17, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Charles Frederick Miller (“Miller”) was convicted in Johnson Circuit Court of

Class D felony auto theft. Miller appeals and raises the following restated arguments:

I. Whether the trial court abused its discretion by requiring Miller to remove his shirt in court in order to allow the jury to see his tattoos; and

II. Whether the State presented insufficient evidence to support Miller’s conviction.

We affirm.

Facts and Procedural History

On August 30, 2009, Jeremy King (“King”) was watching television alone in his

home in Franklin, Indiana. Earlier that morning, King’s girlfriend, Susan Chapman

(“Chapman”), had borrowed one of King’s vehicles for a trip out of town and left her

truck in King’s driveway for King to use. At around noon, King saw Chapman’s truck

moving down his driveway. King then jumped into another vehicle to chase after

Chapman’s truck, but by the time he began to proceed in that vehicle, he had lost sight of

the truck. At the end of his driveway, King turned north onto U.S. 31 on “a hunch.” Tr.

p. 220. King then spotted the truck in the parking lot of the Hilltop Inn, which is located

on U.S. 31 approximately one hundred yards north of King’s residence. King pulled into

the lot, where he saw a white man with a short, buzz-style haircut sitting inside the truck

while one or two other people were loading items into the bed of the truck. King did not

approach the driver, but he shouted for someone to call the police. At that time, the man

in the truck pulled out of the parking lot and drove north on U.S. 31. King gave chase,

but he lost sight of the truck when it turned west onto State Road 252. King followed the

2 truck onto State Road 252, and approximately one mile down the road, King saw that the

truck was parked in a private driveway and that the driver had exited the vehicle and was

attempting to open a gate to the property. When the driver saw King go by, he got back

into the truck and headed east on State Road 252. By the time King was able to turn his

vehicle around and catch up to the truck, the driver had abandoned it on the side of the

road near a cornfield. The truck was still running, and the driver’s side door was open.

Additionally, there were boxes and totes in the bed of the truck that did not belong to

King or Chapman. Some of the boxes were labeled “Chuck” and “Chuck’s Cars.” Tr. p.

376. King stayed near the truck while he waited for the police to arrive.

Meanwhile, Patty Meade (“Meade”) and her sister were driving east on State Road

252, and passed Chapman’s truck abandoned on the side of the road. They stopped in a

parking area near the intersection of U.S. 31 and State Road 252, where Meade had

arranged for her husband to pick her up. While they were waiting, Meade saw a man

emerge from a nearby cornfield. At the same time, Meade saw her husband’s car

approaching, so she got out of the vehicle to remove her bag from the back of her sister’s

vehicle. At that time, the man from the cornfield approached her and stood “really, really

close” to her and started “begging” for a ride to the Hilltop Inn. Tr. p. 239. The man was

not wearing a shirt, and Meade noticed that he had a lot of tattoos on his neck, chest, and

shoulders. Meade’s husband then pulled up next to them and jumped out of his car. The

man asked Meade’s husband for a ride to the Hilltop Inn as well. When Meade and her

husband refused the man’s repeated requests for a ride, the man left.

3 When Meade and her husband drove away, they saw police near the truck on the

side of the road and stopped to tell them about their encounter with the man. After

Meade and her husband left, they spotted the man walking eastbound near U.S. 31 and

called the police to report his location. Meade later identified Miller as the man who had

approached her.

At around the same time, Summer Isley (“Isley”) was alone at her parents’ house,

which is located nearby on U.S. 31. Isley heard movement outside, and when she went

outside to investigate, she saw a shirtless, white male with a buzz-style haircut looking

into her father’s truck. The man had several tattoos on his neck, arms, and chest. Isley

asked the man if she could help him, and he asked for a ride to the Hilltop Inn. Isley

called her father, who told her not to give the man a ride. Isley told the man that he

would have to wait for her parents to return home, and he then borrowed her cell phone to

make a phone call before leaving the property. Isley later identified Miller as the man

who came onto her parents’ property.

Shortly thereafter, Clint Frost (“Frost”) was in his home located on U.S. 31 in

Franklin when he saw a shirtless man walking toward his house from a nearby creek.

The man was white and had a lot of tattoos, and Frost saw that he was wet. The man

introduced himself as “Chuck” and told Frost that he had lost his canoe in the creek.

“Chuck” asked Frost for a ride to his grandfather’s house in Taylorsville. Frost then

drove the man to a home in Taylorsville and dropped him off. Frost later identified

Miller as the man he had given a ride to Taylorsville.

4 Meanwhile, police used a canine officer to track the man from Isley’s parents’

property to Frost’s property. When Frost returned to his home after dropping “Chuck”

off in Taylorsville, several police officers were waiting for him. Frost described the man

to the police and showed them where he had dropped him off. After discovering that

Miller’s last known address was a block away from where Frost had dropped the man off,

police went to that address, but they did not find anyone there.

As a result of these events, the State charged Miller with Class D felony auto theft

on October 19, 2009. A two-day jury trial commenced on April 25, 2011, at which King,

Meade, and Frost testified for the State. Because Isley was experiencing complications

with a pregnancy, the State presented her testimony through a video deposition without

objection from Miller. The State also presented DNA evidence derived from swabs taken

from the interior of Chapman’s truck and a stick of deodorant found in one of the boxes

left in the bed of the truck. Although Miller could not be conclusively identified as the

source of the DNA, he could not be excluded either. Specifically, with respect to the

sample taken from the interior of the truck, the combined probability of inclusion for the

Caucasian population was one in 11,000, meaning that if 11,000 other Caucasians were

randomly selected, one other person would be expected to be included in the mixture. Tr.

p. 437. With respect to the sample taken from the stick of deodorant, the combined

probability of inclusion for the Caucasian population was one in 110. At the conclusion

of the trial, Miller was found guilty as charged. Miller now appeals.

5 I. Admission of Evidence

On appeal, Miller argues that the trial court abused its discretion by requiring

Miller to remove his shirt in court in order to allow the jury to see his tattoos.

Specifically, he argues that requiring him to partially disrobe and expose his upper body

to the jury was a violation of Indiana Evidence Rule 403, which provides that a trial court

may exclude relevant evidence “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”

However, Miller did not object at trial on Evidence Rule 403 grounds. Instead, he based

his objection on assertions that being required to remove his shirt was “an unreasonable

invasion of privacy” and an unlawful search. Tr. p. 245. It is well settled that a party

may not object on one ground at trial and seek reversal on appeal using a different

ground. Casady v. State, 934 N.E.2d 1181, 1191 (Ind. Ct. App. 2010), trans. denied.

Miller’s argument under Evidence Rule 403 is therefore waived.

Waiver notwithstanding, Miller would not prevail. The admission of evidence

falls within the trial court’s discretion, and its decisions are reviewed only for an abuse of

discretion. State v. Seabrooks, 803 N.E.2d 1190, 1193 (Ind. Ct. App. 2004). An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before the court, or if the court has misinterpreted the law.

Id.

6 On appeal, Miller argues that the probative value of requiring him to remove his

shirt and expose his upper body and tattoos to the jury was outweighed by the danger of

unfair prejudice arising therefrom. As we explained above, Evidence Rule 403 provides

that a trial court may exclude relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice[.]” (emphases added). In a criminal

prosecution, all relevant evidence is necessarily prejudicial. Seabrooks, 803 N.E.2d at

1193. Thus, the inquiry under Rule 403 boils down to a balance of the probative value of

the proffered evidence against the danger of unfair prejudice resulting from its admission.

Id. at 1193-94. The danger of unfair prejudice arises from the potential for a jury to

substantially overestimate the value of the evidence, or its potential to arouse or inflame

the passions or sympathies of the jury. Id.; Wages v. State, 863 N.E.2d 408, 412 (Ind. Ct.

App. 2007), trans. denied. A trial court’s decision regarding whether evidence violates

Rule 403 is accorded a great deal of deference on appeal, and we review it only for an

abuse of discretion. Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996).

Here, the trial court required Miller to remove his shirt and expose his tattoos to

the jury during Meade’s testimony, after she had identified Miller and stated that he was

shirtless during her encounter with him, and that she remembered his tattoos. Thus, the

probative value of allowing the jury to see Miller’s tattoos was considerable because it

corroborated Meade’s identification. And the probative value increased with Isley’s and

Frost’s testimony, because both of their identifications of Miller were based partly on the

presence of his tattoos.

7 We also conclude that the relative risk of unfair prejudice was low. Miller argues

that the evidence created a risk of unfair prejudice because some individuals may

associate tattoos with the rougher elements of society or disapprove of tattoos based on

their social or religious views. However, the witnesses who identified Miller had already

testified concerning his tattoos, and Miller did not object to removing his scarf to display

at least some of his tattoos. Although some jurors may have had negative feelings about

tattoos, in this case, reference to Miller’s tattoos was simply unavoidable because they

are by nature a major, identifying feature. And in any event, we believe that the risk that

the simple fact that Miller had tattoos would so inflame the jurors’ passions that they

would be motivated to convict on that basis is remote.

Miller also argues that requiring him to remove his shirt in the presence of the jury

created a risk of unfair prejudice because doing so was “disrespectful” toward Miller and

disrupted the “normal and reasonable decorum of the courtroom[.]” Appellant’s Br. at 9.

According to Miller, unfair prejudice resulted because the jurors would not expect an

innocent person to be forced to remove his shirt in a courtroom. We cannot agree. The

jurors were already well aware that the State suspected Miller of committing a crime, and

Miller was required to remove his shirt to allow a witness to identify him. Although it

was arguably unusual for the trial court to require Miller to remove his shirt in front of

the jury and doing so may have been awkward for him, we simply cannot conclude that it

created such a danger of unfair prejudice as to substantially outweigh the probative value

of the identification evidence. This is particularly true in light of the substantial

8 deference we afford the trial court with respect to conducting the balancing test of

Evidence Rule 403. Accordingly, the trial court did not abuse its discretion by requiring

Miller to remove his shirt in the presence of the jury.1

II. Sufficiency of the Evidence

Next, Miller argues that the State presented insufficient evidence to support his

conviction. In reviewing a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911

N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence supporting

the conviction and the reasonable inferences to be drawn therefrom. Id. If there is

substantial evidence of probative value from which a reasonable trier of fact could have

drawn the conclusion that the defendant was guilty of the crime charged beyond a

reasonable doubt, then the verdict will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131, 1137 (Ind. Ct. App. 2008). Circumstantial evidence alone is sufficient to

sustain a conviction, provided that inferences supporting the verdict may reasonably be

drawn therefrom. Green v. State, 808 N.E.2d 137, 138 (Ind. Ct. App. 2004).

In order to convict Miller of Class D felony auto theft, the State was required to

prove that Miller knowingly or intentionally exerted unauthorized control over

Chapman’s truck with the intent to deprive Chapman of the truck’s value or use. See Ind.

Code § 35-43-4-2.5 (2004); Appellant’s App. p. 11. Miller argues that the State

1 Miller notes that the State had a less intrusive means of introducing evidence of Miller’s tattoos—taking photographs of them and admitting those photos into evidence. We agree that this would have been a better practice, but the fact that another method may have been less intrusive does not increase the danger of unfair prejudice resulting from the method used by the State.

9 presented insufficient evidence to prove that he ever had possession of Chapman’s truck.

We disagree.

The evidence favorable to verdict establishes that when King gave chase after

seeing Chapman’s truck leaving his driveway, he discovered the truck at the Hilltop Inn,

which is approximately one hundred yards down the street from his home. One person, a

white man with a short, buzz-style haircut, was inside the truck, and other people were

loading items into the back of the truck. When King shouted for someone to call the

police, the driver sped away with King in pursuit. After a short chase, the driver

abandoned the truck on the side of the road. Very shortly after the truck was abandoned,

Miller, a white man with a short, buzz-style haircut, approached three separate people in

the area on foot. Miller asked each of these witnesses for a ride—and he specifically

asked Meade and Isley for a ride to the Hilltop Inn. Miller identified himself to Frost as

“Chuck,” and boxes left in the back of the truck were labeled “Chuck” and “Chuck’s

Cars.” Additionally, Miller could not be excluded as a contributor of the DNA evidence

collected from the interior of the truck and from a stick of deodorant in one of the boxes.

With respect to the sample taken from the interior of the truck, the combined probability

of inclusion for the Caucasian population was one in 11,000, meaning that if 11,000 other

Caucasians were randomly selected, one other person would be expected to be included

in the mixture. Tr. p. 437. With respect to the sample taken from the stick of deodorant,

the combined probability of inclusion for the Caucasian population was one in 110.

10 As our supreme court has noted, “[c]ircumstantial evidence by its nature is a web

of facts in which no single strand may be dispositive. In a prosecution based on

circumstantial proof, the evidence in the aggregate may point to guilt where individual

elements of the State’s case might not.” Kriner v. State, 699 N.E.2d 659, 664 (Ind.

1998). That is certainly true of this case. Based on the foregoing evidence, we conclude

that the State presented sufficient circumstantial evidence to establish that Miller had

possession of Chapman’s truck.

Miller also appears to argue that even if the State presented sufficient evidence to

establish that he had possession of the truck at some time, it presented insufficient

evidence that he is the individual who stole it. Miller correctly notes that mere

unexplained possession of recently stolen property does not automatically support a

conviction for theft. See Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010). Rather,

the possession of recently stolen property should be “considered along with the other

evidence in a case, such as how recent or distant in time was the possession from the

moment the item was stolen, and what are the circumstances of the possession (say,

possessing right next door as opposed to many miles away).” Id. The fact of possession

and all the surrounding evidence must be assessed to determine whether any rational

juror could find the defendant guilty beyond a reasonable doubt. Id.

In this case, the circumstances of Miller’s possession of the truck clearly support a

conclusion that Miller is the party who stole it. Although King was not able to identify

Miller as the person he saw inside the truck at the Hilltop Inn, he testified that the driver

11 was a white man with a short, buzz-style haircut. And immediately after the vehicle was

abandoned, Miller, who is white and has a short, buzz-style haircut, approached people in

the area on foot and asked them for a ride to the Hilltop Inn. This evidence supports an

inference that Miller was the driver King saw inside the truck, which in turn supports an

inference that Miller had possession of the truck at the Hilltop Inn immediately after, and

in the immediate vicinity of the theft. Miller’s flight after King shouted for someone to

call the police also points to a conclusion that Miller stole the truck. And Miller’s

repeated attempts to get out of the area as quickly as possible after the truck was

abandoned by asking three strangers for a ride provides further support for the conclusion

that Miller stole the truck. For all of these reasons, we conclude that the evidence, when

viewed as a whole and most favorably to the verdict, supports Miller’s conviction for

Class D felony auto theft.

Conclusion

Miller has waived his appellate argument that requiring him to remove his shirt in

the presence of the jury violated Evidence Rule 403 and, waiver notwithstanding, his

claim must fail. The State presented sufficient evidence to support Miller’s conviction.

Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.