David A. Vincent v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 17, 2019
• Docket: 19A-CR-422
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 17 2019, 9:14 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David A. Vincent, September 17, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-422 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Plaintiff. Judge Trial Court Cause No. 22D01-1809-F5-1814

Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 1 of 14 Case Summary

[1] David A. Vincent appeals his conviction for possession of methamphetamine, a

Level 5 felony. We affirm.

Issue

[2] Vincent raises one issue on appeal, which we restate as whether the trial court

erred in admitting evidence of Vincent’s prior bad acts during his jury trial.

Facts

[3] On September 7, 2018, Officer Ryan Peake with the New Albany Police

Department responded to a call at 10:38 p.m., indicating that a male was

“passed out” in the driver’s seat of a vehicle at a restaurant and, when the male

woke, he drove, striking a pole and a parked vehicle in the parking lot. Tr. Vol.

I p. 70. When Officer Peake arrived at the restaurant, he met Vincent standing

outside a vehicle. Vincent reported to Officer Peake that Vincent had fallen

asleep while in the drive-thru of the restaurant. There were no other passengers

in the vehicle.

[4] When Officer Peake ran the license plate of Vincent’s vehicle, Officer Peake

noticed the license plate was reported stolen. Officer Peake then arrested

Vincent and read him his Miranda rights. Vincent agreed to speak with Officer

Peake and informed Officer Peake that the vehicle belonged to Vincent’s

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 2 of 14 brother, but that Vincent drove the vehicle a few times a week. 1 Vincent told

Officer Peake he did not know anything about the stolen license plate.

Subsequently, Officer Peake called a tow truck to impound the vehicle and

conducted an inventory search of the vehicle. While doing so, Officer Peake

discovered, under the driver’s seat, a clear plastic bag of crystal-like substance.

Vincent denied knowing anything about the bag; however, Officer Peake

testified that the bag was within arm’s reach of the driver’s seat. Lab results

confirmed that the substance was 6.59 grams of methamphetamine.

[5] Officer Peake took Vincent to the Floyd County Jail; however, the jail

personnel requested that Vincent be medically cleared first because he was

involved in a motor vehicle accident. Officer Peake and Vincent went to the

hospital and waited in the emergency room for approximately five and one-half

hours before hospital staff could evaluate and clear Vincent. While waiting at

the hospital, Vincent told police that Vincent used methamphetamine three

days prior to the incident. Vincent was medically cleared, and Officer Peake

returned Vincent to the Floyd County Jail.

[6] On September 10, 2018, the State charged Vincent with Count I, possession of

methamphetamine, a Level 5 felony; and Count II, theft, a Class A

misdemeanor. Before trial began, Vincent filed a motion to suppress the

statements Vincent made to police regarding his prior methamphetamine use.

1 Officer Peake was able to determine that the vehicle was registered to Justin Barger, whom Vincent indicated was his brother, and the vehicle was not reported stolen.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 3 of 14 The trial court denied Vincent’s motion to suppress concluding that Vincent’s

statements demonstrated “something other than his propensity to commit the

crime at hand,” and specifically that the evidence could be used to demonstrate

“lack of accident, for intent, for knowledge.” Id. at 23. The trial court also

concluded that the probative value outweighed the prejudicial effect.

[7] The trial court told Vincent that the trial court would consider an objection if

Vincent raised it during trial, to which Vincent’s counsel informed the trial

court that counsel “anticipate[d] objecting” to the evidence during trial. Id. at

24. During Vincent’s jury trial, Officer Peake testified as to Vincent’s

statements, however, Vincent did not object to the testimony. Vincent did not

call any witnesses in his defense. The jury found Vincent guilty of Count I and

not guilty of Count II. Vincent now appeals.

Analysis

[8] Vincent argues that the trial court improperly admitted evidence regarding

Vincent’s prior conduct during his jury trial. Vincent initially filed a motion to

suppress the statements regarding his prior methamphetamine use, and the

motion to suppress was denied. During the jury trial, however, Vincent did not

object to the testimony regarding Vincent’s prior methamphetamine use.

Accordingly, Vincent has waived this issue for appeal. See Stafford v. State, 890

N.E.2d 744, 749 (Ind. Ct. App. 2008) (quoting Wright v. State, 593 N.E.2d 1192,

1194 (Ind. 1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201-

1206-1207 (Ind. 2007)) (holding that once a trial court denies a motion to

suppress, “the moving party must renew his objection to admission of the Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 4 of 14 evidence at trial. If the moving party does not object to the evidence at trial,

then any error is waived.”). Waiver notwithstanding, we will review the

alleged error under the fundamental error analysis. 2

[9] “An error is fundamental. . . if it ‘made a fair trial impossible or constituted a

clearly blatant violation of basic and elementary principles of due process

presenting an undeniable and substantial potential for harm.’” Durden v. State,

99 N.E.3d 645, 652 (Ind. 2018) (quoting Knapp v. State, 9 N.E.3d 1274, 1281

(Ind. 2014)). “These errors create an exception to the general rule that a party’s

failure to object at trial results in a waiver of the issue on appeal.” Durden, 99

N.E.3d at 645 (citing Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). The

exception is very narrow and “encompasses only errors so blatant that the trial

judge should have acted independently to correct the situation.” Id. Vincent

argues the trial court committed fundamental error in allowing the testimony

regarding Vincent’s prior statements for four reasons. We will address each of

Vincent’s arguments below.

A. Evidence Rule 401

[10] Vincent first argues the evidence of Vincent’s prior methamphetamine use was

not relevant under Indiana Evidence Rule 401 because it did not make more or

less probable the crime of possession. Indiana Evidence Rule 401 states that

2 We do not address Vincent’s arguments in his brief regarding harmless error because Vincent failed to object, and therefore, we review under the standard of fundamental error. See Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (“failure to object at trial waives the issue for review unless fundamental error occurred”) (quotations omitted).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 5 of 14 evidence is relevant if it either: (a) “has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” “Evidence is relevant when it has any

tendency to prove or disprove a consequential fact.” Snow v. State, 77 N.E.3d

173, 177 (Ind. 2017) (quotations omitted). “This liberal standard for relevancy

sets a low bar, . . . and the trial court enjoys wide discretion in deciding whether

that bar is cleared.” Id.

[11] To convict Vincent of possession of methamphetamine, pursuant to Indiana

Code Section 35-48-4-6.1(a), the State had to prove that Vincent: “knowingly or

intentionally possesse[d] methamphetamine (pure or adulterated),” “without a

valid prescription or order of a practitioner.” Vincent’s offense was a Level 5

felony because the amount of the drug involved was “at least five (5) but less

than ten (10) grams.” Ind. Code § 35-48-4-6.1(b)(1).

[12] The State argues that Vincent’s prior statements were relevant to show

Vincent’s knowledge regarding the methamphetamine in the vehicle, as

knowledge is an element of the possession offense. Vincent put his knowledge

at issue in many ways. First, Officer Peake’s police report indicates that

Vincent’s initial reaction to the discovery of the methamphetamine was that

Vincent “did not know it was there” and that “it was not [Vincent’s].”

Appellant’s App. Vol. II p. 11. Moreover, Vincent’s counsel’s line of

questioning on cross-examination and his arguments in closing arguments

demonstrated that Vincent was putting his knowledge of the methamphetamine

in issue.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 6 of 14 [13] Accordingly, the trial court was within its discretion to conclude that Vincent’s

prior statement regarding his methamphetamine use demonstrated his

knowledge regarding the same substance in the vehicle. Admission of the

evidence under Rule 401 was not fundamental error.

B. Evidence Rule 403

[14] Next, Vincent argued that the prejudicial effect of the evidence regarding

Vincent’s prior methamphetamine use far outweighed the probative value

because it was not relevant to any material fact or issue “other than to establish

that Vincent was acting in conformity with a character trait and consistent with

prior criminal offenses when he committed the charged offenses.” Appellant’s

Br. p. 20. Under Indiana Evidence Rule 403, the trial court “may exclude

relevant evidence if its probative value is substantially outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative

evidence.”

[15] When weighing the probative value and the prejudicial effect, “‘unfair prejudice

addresses the way in which the jury is expected to respond to the evidence; it

looks to the capacity of the evidence to persuade by illegitimate means, or the

tendency of the evidence ‘to suggest decision on an improper basis.’” Bowman

v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017) (quoting Ingram v. State, 715

N.E.2d 405, 407 (Ind. 1999)), trans. denied. “However, we recognize all relevant

evidence is necessarily prejudicial in a criminal prosecution.” Bowman, 73

N.E.3d at 734 (citations omitted). “Therefore, the danger of unfair prejudicial Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 7 of 14 impact 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. at 734-35. “Evaluation of whether the probative

value of an evidentiary matter is substantially outweighed by the danger of

unfair prejudice is a discretionary task best performed by the trial court.” Bryant

v. State, 984 N.E.2d 240, 249 (Ind. Ct. App. 2013) (citing Baer v. State, 866

N.E.2d 752, 763 (Ind. 2007)), trans. denied.

[16] The trial court engaged in a relatively lengthy statement demonstrating that it

weighed the probative value against the danger of unfair prejudice. The trial

court specifically noted that: “Mr. Vincent’s position is that he didn’t know it

was there,” and accordingly, “then that does make the statement relevant, it

does have probative value. . . .” Tr. Vol. I p. 23. The trial court went on to

state that the evidence showed “something other than his propensity to commit

the crime at hand.” Id. The trial court concluded that “I think the probative

value outweighs, and I am going to allow it to be admitted. I’m gonna [sic] ask

the State, uh, not to use it in opening, as you’ve already agreed not to do.” Id.

at 23-24. 3

3 In fact, the trial court seemingly left the door open for Vincent to not contest the knowledge issue at trial, and renew an objection to the evidence, implying that the objection may be sustained depending on the evidence presented to the jury. The trial court stated: “because I think the Defense has to put [Vincent’s knowledge in issue] first. And so while I’m ruling on it today, I guess I can certainly take up your objection at [sic] time -- . . . and consider that again.” Tr. Vol. I p. 24.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 8 of 14 [17] Vincent put his knowledge of the methamphetamine into issue; therefore, we

cannot say the trial court abused its discretion in determining that the probative

value outweighed any prejudicial effect. We find that the trial court did not

commit fundamental error in admitting the evidence after the balancing test in

Rule 403.

C. Evidence Rule 404

[18] Vincent next argues that the evidence was improperly admitted under Indiana

Evidence Rule 404(a), which provides, in relevant part:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

*****

[19] Vincent also argues the evidence was improperly admitted under Indiana

Evidence Rule 404(b), which provides:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 9 of 14 (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.[ 4]

[20] In determining whether to admit evidence of specific acts under Rule 404(b), the trial court is required to: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act; (2) determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act; and (3) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. In short, if the evidence bears on some issue other than criminal propensity and clears the balancing hurdle of Rule 403, it is admissible.

Guffey v. State, 42 N.E.3d 152, 159-60 (Ind. Ct. App. 2015), trans. denied

(quotations omitted). See also Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009)

(“The law governing the admissibility of specific acts evidence for other

4 There does not appear to be a pretrial notice issue here.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 10 of 14 purposes requires a trial court to make three findings.”) (internal citations

omitted).

[21] In Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans. denied, a panel

of this Court reversed the trial court’s admission of certain business cards and

photographs under Rule 404, 5 specifically noting that the State “tried to use the

business cards and the novelty photograph to paint Oldham as a dangerous

criminal.” Id. at 1173. Specifically, our Court noted:

Pursuant to Evidence Rule 404(a), evidence of a defendant’s character or character trait is not admissible to prove that the defendant acted in conformity with that character. In addition, Evidence Rule 404(b) specifically bars the admission of evidence of crimes, wrongs or other bad acts allegedly committed by the defendant to prove the defendant’s character, and forbids the use of this kind of evidence to show that the defendant acted in a manner consistent with that character. Oldham argues that the business cards and the novelty card gave rise to the impermissible inference that he was a person with a dangerous and criminal character, that he had committed crimes and bad acts in the past, and that the murder [ ] was entirely consistent with his character and prior bad acts.

[22] Here, Vincent argues that the evidence was impermissible under Rule 404(a)

because “the State was clearly establishing that Vincent had a negative

character trait, i.e. that he was a drug addict acting in conformity with this trait

5 In Oldham, our Court found the business cards were inadmissible pursuant to both Evidence Rule 404(a) and Evidence Rule 404(b).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 11 of 14 when he committed the charged offense.” Appellant’s Br. p. 13. The State

responds that Rule 404(a) does not apply because there was no evidence of

Vincent’s criminal history or prior drug use, other than a single statement from

Officer Peake. Accordingly, the State argues a Rule 404(a) argument is

inapplicable here. We agree with the State’s characterization of the purpose of

the evidence; it does not appear the evidence was introduced to demonstrate

Vincent was a drug addict and acting in conformity with that trait. We,

therefore, move to the Rule 404(b) analysis.

[23] Vincent also argues the evidence was impermissible under Rule 404(b) because

introduction of evidence of Vincent’s prior use of methamphetamine likely

created the inference “that the defendant was a habitual drug user and that he

acted in conformance with this character trait when he committed the charged

offense.” Appellant’s Br. p. 18. The State responds that Vincent’s statements

regarding prior use “would be used solely to show [Vincent’s] knowledge of the

bag of methamphetamine positioned directly underneath his seat.” Appellee’s

Br. p. 10. The State argues that, because Vincent allegedly was unaware of the

bag, the evidence was permissible to demonstrate Vincent’s knowledge of the

bag as an element of the offense.

[24] In Samaniego-Hernandez v. State, 839 N.E.2d 798, 803 (Ind. Ct. App. 2005),

abrogated on other grounds by Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007),

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 12 of 14 clarified on reh’g, 875 N.E.2d 218 (Ind. 2007), 6 we dealt with a similar situation

in which the defendant argued that the trial court improperly admitted evidence

of a controlled buy the defendant was involved with days before his possession

of cocaine arrest. Our Court determined that admission of evidence regarding

the controlled buy was proper because the defendant put his knowledge at issue.

Specifically, Samaniego “fostered the impression that he knew nothing about

the cocaine found in his home and therefore could not have possessed the

requisite elements of knowledge and intent to deliver it.” Id. Our Court,

therefore, concluded that the “evidence was admissible to challenge the

impression that Samaniego could not have had knowledge of the cocaine found

in his home.” Id. The same result is required here.

[25] As discussed above, Vincent repeatedly referred to the fact that the vehicle

belonged to Vincent’s brother throughout the trial. Vincent also referred to the

same fact in closing argument. Vincent’s statements to police similarly put his

knowledge at issue in the case. As the trial court noted in its ruling on

admissibility of the evidence after weighing the evidence, there was a purpose

outside of criminal propensity that made the admission of the evidence

permissible. 7

6 The Anglemyer court abrogated Samaniego-Hernandez on the issue of sentencing; the Anglemyer court did not address a Rule 404(b) argument. 7 As we have already discussed above, the evidence met the requirements for admission under Rule 403.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 13 of 14 [26] Moreover, aside from Vincent’s prior statements, there was sufficient evidence

of his guilt. Specifically, the State presented evidence that Vincent was driving

a vehicle—which he drove somewhat regularly—that belonged to his brother.

The State also presented evidence that a bag of methamphetamine was found

propped upright under the driver’s seat, inches away from Vincent’s reach,

while he was driving and in control of the vehicle. This evidence could

reasonably lead the jury to conclude that Vincent possessed methamphetamine

beyond a reasonable doubt. We cannot say that a fair trial would have been

impossible as is required by the fundamental error standard. Vincent has not

proved that the admission of this evidence constituted fundamental error.

Conclusion

[27] The trial court did not commit fundamental error in admitting Vincent’s prior

statements. We, accordingly, affirm.

[28] Affirmed.

Brown, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019 Page 14 of 14