Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. GREGORY F. ZOELLER Dyer, Indiana Attorney General of Indiana
IAN MCLEAN Deputy Attorney General
FILED Indianapolis, Indiana
Apr 12 2012, 9:35 am
IN THE CLERK of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and tax court
DAVID PAUL BURNS, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1108-CR-364 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Clarence D. Murray, Judge Cause No. 45G02-1005-FC-57
April 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
David Paul Burns appeals his conviction for theft, as a Class D felony, and his
adjudication as an habitual offender following a jury trial. He presents two issues for our
review:
1. Whether he was placed in a position of grave peril after a witness testified about having been threatened by Burns.
2. Whether his sentence is inappropriate in light of the nature of the offense or his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
During the late night of May 13 or early morning of May 14, 2010, Burns and two
friends, Larry Potts and Chris Jordan, went to the business premises of Derek Bremer, cut
down a security fence, and stole a wood-splitter. The trio intended to sell the wood-
splitter to a third party. Bremer reported the theft, and police, assisted by a canine unit,
tracked the thieves and found the wood-splitter at Jordan’s residence, only a short
distance from Bremer’s property. Jordan initially told police that Burns and Potts had
stolen the wood-splitter, but he eventually admitted that he had also been involved in the
theft.
The State charged Burns, Jordan, and Potts with burglary and theft. And the State
alleged that Burns was an habitual offender. As part of their plea agreements, Jordan and
Potts agreed to testify against Burns at his trial. A jury found Burns guilty of theft, as a
Class D felony, and acquitted him on the burglary charge. The jury also adjudicated
Burns an habitual offender. The trial court entered judgment accordingly and sentenced
2 Burns to three years, enhanced by four years, for a total sentence of seven years. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Fundamental Error
Burns first contends that “the State intentionally plunged an evidentiary harpoon
into Burns consisting of hearsay and an uncharged bad act.” Brief of Appellant at 5. In
particular, Burns claims that the prosecutor deliberately questioned Jordan about Burns’
alleged threat to harm Jordan and that that testimony placed him in a position of grave
peril. We cannot agree.
The following colloquy on direct examination of Jordan includes the alleged
misconduct:
Q: All right. So, you give a statement in the morning, a statement in the afternoon where you give them more information. At some point are you released from the jail?
A: Yeah.
Q: Do you ever go back in to give another statement?
A: Yeah, after they let me out and the detective says, well, I’m going to let your papers run out and you will be out in forty-eight hours, but then you’re going to have a warrant in a week or two. And then I got out and then I heard from friends of mine that, saying that they spoke to [Burns] saying that [Burns] said that. . . .
DEFENSE COUNSEL: Objection, Your Honor. He’s testifying as to hearsay.
PROSECUTOR: That’s fine.
COURT: Sustained.
A: . . . that a . . .
3 Q: No, you can’t answer that. I’m going to ask you another question. Did you go back after you were released and talked to Detective Bridgeman?
A: Yes.
Q: Why did you go back to talk to him?
A: Because [Burns] threatened to hurt me, I heard, so I went back and made a statement.
Q: So, you make a statement about that, you eventually get picked up on that warrant that was put out for you?
Transcript at 281-82.
An evidentiary harpoon involves the deliberate use of improper evidence to
prejudice the defendant in the eyes of the jury. Lucio v. State, 907 N.E.2d 1008, 1010 n.2
(Ind. 2009). To prevail on such a claim of error, the defendant must show that: (1) the
prosecution acted deliberately to prejudice the jury; and (2) the evidence was
inadmissible. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002). Here, while
Burns maintains that the prosecutor intentionally provoked Jordan to testify about the
threat allegedly made by Burns, he has not shown any such intent. Nothing in the record
supports Burns’ contention on this issue. Indeed, after Jordan initially began to give the
hearsay testimony and defense counsel objected, the prosecutor agreed, and the trial court
sustained the objection. And when Jordan appeared to continue to testify to the hearsay,
the prosecutor stated, “No, you can’t answer that.” Transcript at 282. Burns has not
sustained his burden to show that this testimony was an evidentiary harpoon wielded by
the State.
4 Still, Burns contends that the testimony violated Evidence Rule 404(b), which
prohibits evidence of prior, uncharged bad acts. Because Burns did not object to the
testimony, he avers on appeal that the testimony constituted fundamental error. To
constitute fundamental error, the error must constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process. Brown v. State, 799 N.E.2d 1064, 1067
(Ind. 2003) (quotation omitted). It must be so prejudicial to the rights of a defendant as
to make a fair trial impossible. Id. (quotation omitted).
Indiana Evidence Rule 404(b) limits the admission of prior bad acts into evidence
and reads in relevant part: “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Evidence is excluded
under Rule 404(b) only when it is introduced to prove the “forbidden inference” of
demonstrating the defendant’s propensity to commit the charged crime. Pavey v. State,
764 N.E.2d 692, 704 (Ind. Ct. App. 2002) (citing Sanders v. State, 724 N.E.2d 1127,
1130-31 (Ind. Ct. App. 2000)), trans. denied. However, “[a]s a general rule, the
erroneous admission of evidence of extrinsic acts is not fundamental error.” Williams v.
State, 634 N.E.2d 849, 854 (Ind. Ct. App. 1994). “In determining whether error in the
introduction of evidence affected an appellant’s substantial rights, we assess the probable
impact of the evidence on the jury.” Oldham v.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. GREGORY F. ZOELLER Dyer, Indiana Attorney General of Indiana
IAN MCLEAN Deputy Attorney General
FILED Indianapolis, Indiana
Apr 12 2012, 9:35 am
IN THE CLERK of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and tax court
DAVID PAUL BURNS, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-1108-CR-364 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Clarence D. Murray, Judge Cause No. 45G02-1005-FC-57
April 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
David Paul Burns appeals his conviction for theft, as a Class D felony, and his
adjudication as an habitual offender following a jury trial. He presents two issues for our
review:
1. Whether he was placed in a position of grave peril after a witness testified about having been threatened by Burns.
2. Whether his sentence is inappropriate in light of the nature of the offense or his character.
We affirm.
FACTS AND PROCEDURAL HISTORY
During the late night of May 13 or early morning of May 14, 2010, Burns and two
friends, Larry Potts and Chris Jordan, went to the business premises of Derek Bremer, cut
down a security fence, and stole a wood-splitter. The trio intended to sell the wood-
splitter to a third party. Bremer reported the theft, and police, assisted by a canine unit,
tracked the thieves and found the wood-splitter at Jordan’s residence, only a short
distance from Bremer’s property. Jordan initially told police that Burns and Potts had
stolen the wood-splitter, but he eventually admitted that he had also been involved in the
theft.
The State charged Burns, Jordan, and Potts with burglary and theft. And the State
alleged that Burns was an habitual offender. As part of their plea agreements, Jordan and
Potts agreed to testify against Burns at his trial. A jury found Burns guilty of theft, as a
Class D felony, and acquitted him on the burglary charge. The jury also adjudicated
Burns an habitual offender. The trial court entered judgment accordingly and sentenced
2 Burns to three years, enhanced by four years, for a total sentence of seven years. This
appeal ensued.
DISCUSSION AND DECISION
Issue One: Fundamental Error
Burns first contends that “the State intentionally plunged an evidentiary harpoon
into Burns consisting of hearsay and an uncharged bad act.” Brief of Appellant at 5. In
particular, Burns claims that the prosecutor deliberately questioned Jordan about Burns’
alleged threat to harm Jordan and that that testimony placed him in a position of grave
peril. We cannot agree.
The following colloquy on direct examination of Jordan includes the alleged
misconduct:
Q: All right. So, you give a statement in the morning, a statement in the afternoon where you give them more information. At some point are you released from the jail?
A: Yeah.
Q: Do you ever go back in to give another statement?
A: Yeah, after they let me out and the detective says, well, I’m going to let your papers run out and you will be out in forty-eight hours, but then you’re going to have a warrant in a week or two. And then I got out and then I heard from friends of mine that, saying that they spoke to [Burns] saying that [Burns] said that. . . .
DEFENSE COUNSEL: Objection, Your Honor. He’s testifying as to hearsay.
PROSECUTOR: That’s fine.
COURT: Sustained.
A: . . . that a . . .
3 Q: No, you can’t answer that. I’m going to ask you another question. Did you go back after you were released and talked to Detective Bridgeman?
A: Yes.
Q: Why did you go back to talk to him?
A: Because [Burns] threatened to hurt me, I heard, so I went back and made a statement.
Q: So, you make a statement about that, you eventually get picked up on that warrant that was put out for you?
Transcript at 281-82.
An evidentiary harpoon involves the deliberate use of improper evidence to
prejudice the defendant in the eyes of the jury. Lucio v. State, 907 N.E.2d 1008, 1010 n.2
(Ind. 2009). To prevail on such a claim of error, the defendant must show that: (1) the
prosecution acted deliberately to prejudice the jury; and (2) the evidence was
inadmissible. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002). Here, while
Burns maintains that the prosecutor intentionally provoked Jordan to testify about the
threat allegedly made by Burns, he has not shown any such intent. Nothing in the record
supports Burns’ contention on this issue. Indeed, after Jordan initially began to give the
hearsay testimony and defense counsel objected, the prosecutor agreed, and the trial court
sustained the objection. And when Jordan appeared to continue to testify to the hearsay,
the prosecutor stated, “No, you can’t answer that.” Transcript at 282. Burns has not
sustained his burden to show that this testimony was an evidentiary harpoon wielded by
the State.
4 Still, Burns contends that the testimony violated Evidence Rule 404(b), which
prohibits evidence of prior, uncharged bad acts. Because Burns did not object to the
testimony, he avers on appeal that the testimony constituted fundamental error. To
constitute fundamental error, the error must constitute a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting error must
deny the defendant fundamental due process. Brown v. State, 799 N.E.2d 1064, 1067
(Ind. 2003) (quotation omitted). It must be so prejudicial to the rights of a defendant as
to make a fair trial impossible. Id. (quotation omitted).
Indiana Evidence Rule 404(b) limits the admission of prior bad acts into evidence
and reads in relevant part: “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” Evidence is excluded
under Rule 404(b) only when it is introduced to prove the “forbidden inference” of
demonstrating the defendant’s propensity to commit the charged crime. Pavey v. State,
764 N.E.2d 692, 704 (Ind. Ct. App. 2002) (citing Sanders v. State, 724 N.E.2d 1127,
1130-31 (Ind. Ct. App. 2000)), trans. denied. However, “[a]s a general rule, the
erroneous admission of evidence of extrinsic acts is not fundamental error.” Williams v.
State, 634 N.E.2d 849, 854 (Ind. Ct. App. 1994). “In determining whether error in the
introduction of evidence affected an appellant’s substantial rights, we assess the probable
impact of the evidence on the jury.” Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
App. 2002), trans. denied.
5 Here, assuming arguendo that the testimony regarding Burns’ threat against Jordan
impermissibly demonstrated Burns’ propensity to commit the crimes for which he was
charged, that alone does not constitute fundamental error. Rather, for the error to be
fundamental, it must be “blatant.” Brown, 799 N.E.2d at 1067. But the single reference
to the threat was, at most, harmless to Burns. There was no additional reference to the
threat during the remainder of the trial, either by the witnesses or the State. We assess
the probable impact of a claimed error in light of all the evidence. See Ind. Appellate
Rule 66(A). And Jordan’s remark is fairly innocuous when compared to the weight of
the evidence against Burns. Thus, we must conclude that the admission of the testimony
regarding Burns’ alleged bad act had a minimal impact on the jury, did not deny Burns
fundamental due process, and, therefore, was not fundamental error. See Manuel v.
State, 793 N.E.2d 1215, 1219 (Ind. Ct. App. 2003), trans. denied.
Issue Two: Sentence
Burns argues that his seven-year sentence is inappropriate. Although a trial court
may have acted within its lawful discretion in determining a sentence, Article VII,
Sections 4 and 6 of the Indiana Constitution “authorize[] independent appellate review
and revision of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801,
812 (Ind. Ct. App. 2007) (alteration original). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Appellate Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in light of the
nature of his offense and her character. See Ind. Appellate Rule 7(B); Rutherford v.
State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition
or non-recognition of aggravators and mitigators as an initial guide to determining 6 whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147
(Ind. Ct. App. 2006). However, “a defendant must persuade the appellate court that his
or her sentence has met th[e] inappropriateness standard of review.” Roush, 875 N.E.2d
at 812 (alteration original).
Moreover, “sentencing is principally a discretionary function in which the trial
court’s judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts to tailor
an appropriate sentence to the circumstances presented. See id. at 1224. The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of the
culpability of the defendant, the severity of the crime, the damage done to others, and
myriad other facts that come to light in a given case.” Id. at 1224.
The trial court identified two aggravators1 and no mitigators and sentenced Burns
to three years, the maximum sentence for a Class D felony, enhanced by four years for
being an habitual offender. Burns first contends that his sentence is inappropriate in light
of the nature of the offense. In particular, Burns maintains that because no one was hurt
or threatened with harm during the commission of the theft, and because the stolen
property was quickly recovered, an enhanced sentence is inappropriate. But, as the State
points out, Burns coordinated with his friends and planned to commit the offense for the
purpose of selling the wood-splitter to a third party. In the process, Burns and his cohorts
1 The trial court identified Burns’ criminal history and the fact that he was on parole at the time of the instant offense as aggravators. 7 dismantled a security fence surrounding Bremer’s property. We cannot say that Burns’
sentence is inappropriate in light of the nature of the offense.
Moreover, Burns cannot show that his sentence is inappropriate in light of his
character. While Burns tries to minimize the severity of his criminal history, by the age
of twenty-six, Burns had already accumulated four felony convictions, including a B
felony dealing in cocaine conviction and a D felony pointing a firearm conviction; four
misdemeanor convictions; and three juvenile adjudications, including criminal mischief
and auto theft. Burns violated his probation in 2004; he was expelled from a work-
release program in 2006; and, most notably, he was on parole when he committed the
instant offense in 2010.
Still, Burns contends that he is not the “worst offender.” Brief of Appellant at 10.
But, while “the maximum possible sentences are generally most appropriate for the worst
offenders,” our supreme court has clarified:
This is not, however, a guideline to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.
Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007) (emphasis original, citations omitted).
We cannot say on this record that Burns’ three-year sentence, enhanced by four years for
being an habitual offender, is inappropriate in light of the nature of the offense or his
character.
Affirmed.
RILEY, J., and DARDEN, J., concur. 8