Dwight Caprice Cross v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 29, 2020
• Docket: 20A-CR-23
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 29 2020, 11:30 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kristin A. Mulholland Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dwight Caprice Cross, July 29, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-23 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Samuel L. Cappas, Appellee-Plaintiff. Judge Trial Court Cause No. 45G04-1603-F2-3

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 1 of 11 [1] Dwight Caprice Cross appeals his convictions for robbery resulting in bodily

injury and burglary and raises one issue: whether the trial court abused its

discretion in admitting certain evidence. We affirm.

Facts and Procedural History

[2] On March 17, 2016, at about 8:15 a.m., Carole Bloom dropped off groceries at

the house of her daughter and granddaughter, Jennifer and Jasmine Bloom. As

she left to start work at 8:30 a.m., she saw a gray vehicle with two black men

she did not recognize as being from the neighborhood driving very slowly in

front of the house.

[3] That morning, as she was on a couch in her basement room watching

television, Jasmine heard a “really loud banging on the door,” the back door

was broken open, “someone ripped [her] bedroom door off” its hinge, and a

“dark-skinned black guy,” a bit taller than her, with short buzzed hair and dark

grey clothes, stood in the doorway. Transcript Volume II at 201-203. He

shouted something that she did not understand, left, and returned with a

second, short, lighter-skinned man with blond twists at the end of his hair. The

two men began “going through [her] room” and screamed, “Don’t look at me”

and “Get down on the ground.” Id. at 203-204. Jasmine “kept looking at

them,” and the men hit her on the top of her head, causing a “small contusion,

bumps and bruises.” Id. at 204. She observed the men “kind of have a knife

between them,” which was “big – like a combat knife” and which the men held

and pointed at her while instructing her not to move or look at them. Id. at 206-

207. They looked through her drawers, closet, clothes, cabinets and dressers, Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 2 of 11 and they stole her television, Xbox, computer, and iPhone, which they had

Jasmine unlock and “turn off . . . all the tracking stuff . . . so that it couldn’t be

traced.” Id. at 205.

[4] The lighter-skinned man went upstairs, Jennifer opened her bedroom door and

screamed, and he stood “right in front of [her] face” and screamed at her to get

down on the floor, which she did, and about “a safe, saying that [she] was on a

list of people that had safes.” Id. at 149-150. He asked her the location of the

safe and money, and Jennifer replied they did not have a safe and she did not

have money. During this exchange, the man “kind of t[ore] up the room,” went

through several “purses, looking for money,” took her MacBook Pro and her

iPhone, and had Jennifer “turn off ‘Find my iPhone’” on the phone. Id. at 151.

At some point, she rose from the ground, he punched her head with his fist, and

she fell back down. The darker-skinned man entered the room, the two men

spoke in the hallway briefly about cutting the women’s throats before returning to

Jennifer’s bedroom, and one of the men held out the knife and threatened her.

The men then left the house, taking a television from the living room.

[5] The following day, Jennifer and Jasmine examined a photo array of suspects at

the police station, and Jennifer “wrote, ‘Due to my limited vision – I’m blind in

my right eye and have limited vision in my left – I cannot identify anyone at

this time’” on the photo array and noted that the individual in Photograph No.

5 “looked like [the individual in her bedroom] because he had the same skin

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 3 of 11 coloring.” 1 Id. at 173-174. Jasmine identified Cross as the “lighter-skinned,

shorter male” 2 and, when shown a second, different photo array, identified the

other assailant. Id. at 217.

[6] The State charged Cross as amended with three counts of burglary as level 2, 3,

and 4 felonies, robbery resulting in bodily injury as a level 3 felony, two counts

of criminal confinement as level 3 felonies, two counts of armed robbery as

level 3 felonies, and residential entry as a level 6 felony. The State indicated in

a response to a discovery order that it had provided Cross with a vehicle search

warrant and, in a supplemental discovery response, that it had provided a

“Search Warrant Affidavit, Return for Infiniti Vehicle.” Appellant’s Appendix

Volume II at 103.

[7] At Cross’s jury trial, the State presented the testimony of Carole, Jennifer, and

Jasmine, as well as the testimony of an Indiana State Police forensic analyst

who investigated the area around Jennifer and Jasmine’s house for security

video and who indicated that Cross and the other assailant were involved in a

traffic stop together on the same day as the incident. The State also presented a

surveillance photograph taken six or seven blocks away bearing a date and time

stamp of “3-17-2016 . . . 08:41:47” of a vehicle that matched the description of

1 State’s Exhibit 17 is a photo array signed by Jennifer and contains a separate sheet that states, “Position . . . 5. . . . Cross, Dwight Caprice.” Exhibits Volume II at 25. 2 State’s Exhibit 25 is a photo array with a circle around a photograph in the third position, which depicts the same individual that appeared in the fifth position of the array signed by Jennifer. On a separate sheet, the exhibit also states, “Position . . . 3 . . . Cross, Dwight Caprice.” Exhibits Volume II at 34.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 4 of 11 Cross’s vehicle. State’s Exhibit 116. See also State’s Exhibit 117 (second

photograph). The State also presented photographs of latent fingerprints

discovered on the bottom of the interior-side of the door to the house, which

appeared “as if somebody had tried to pry the door open or got their hands

underneath it to break the door open”; the ten-print card documenting Cross’s

fingerprints; and the testimony of a law enforcement fingerprint examiner who

compared them and testified that he was able to identify Cross as a match.

Transcript Volume III at 30.

[8] Hammond Police Detective Daniel Young testified without objection that he

was working the day shift at the office on March 17, 2016, when he learned

from another detective about a home invasion that happened earlier in the

morning, he started to “ask around to see if there’s anything [he] [could] do to

assist,” and that, while he assisted, Cross developed as a person of interest. Id.

at 67. He testified he learned Cross drove a “silver passenger car,” “an

Infiniti,” and that he spotted a silver Infiniti sometime later in the Merrillville

area and discovered during a subsequent traffic stop that Cross’s mother was

driving the vehicle. Id. He indicated he detained and transported the vehicle in

preparation for a search warrant and Cross’s mother took another officer “to a

residence where there was an individual of interest in another case.” Id. at 70.

[9] During cross-examination, the following exchange occurred between Cross’s

counsel and Detective Young:

Q. . . . . What about that that [sic] caught your attention, the home invasion or the silver vehicle? Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 5 of 11 A. Both.

Q. Okay. Tell us why.

A. I currently had been investigating a burglary where the person of interest was driving a silver vehicle.

Q. How many burglaries?

A. For the silver vehicle, at that time just one.

Q. And you thought that []Cross was involved in that other burglary?

A. Yes. I’d actually developed a probable cause and had filed charged [sic].

Q. You had filed charges?

A. Correct.

Q. For burglary?

A. I believe it was for theft.

Q. That’s not a burglary.

A. No. I was investigating a burglary. I presented the case to the prosecutor’s office, and they signed off. I believe it was theft. I don’t know if it was burglary.

Q. The police reports in this matter indicate that there were multiple home invasions and multiple burglaries –

A. That could be.

Q. – that []Cross could have been involved in.

A. I was investigating one.

Q. Do you know of any others?

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 6 of 11 A. I do not.

Q. Do you know of any other criminal charges dealing with home invasions where Mr. Cross was charged –

A. There was –

Q. – other than this one?

A. Charged?

Q. Charged.

A. No.

Q. As of March 17, 2016, had []Cross been charged in that theft case?

A. I would have to check the date. If that was the same date where I was trailing that vehicle, then the probable cause affidavit had been signed by the prosecutor’s office.

Q. Well, when you say on the date that you were following the vehicle, is that when you had seen that silver vehicle in Merrillville?

Q. And that was the – later in the day is when []Cross was taken into custody?

Q. That’s when the theft charge was filed?

A. Prior to that.

*****

Q. Okay. Do you know whether or not the date of that theft was before or after March 17, 2016?

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 7 of 11 A. It was before.

Id. at 72-75. The prosecutor approached the bench and argued Cross’s counsel

opened the door to ask about how the witness knew Cross and recognized the

vehicle, the court asked Cross’s counsel to respond, and Cross’s counsel

answered: “I asked if he was charged in any other cases, and I said that the police

report involving this matter indicated as such. I mean, if the State wants to go

through the door – .” Id. at 76. The prosecutor indicated: the purpose of the

putative inquiry was to show the witness “knows him,” “[t]here’s no lack of

mistaken identity,” Cross “was familiar with the burglaries he did,” and that they

“were similar in nature”; the State was going to ask how Cross became a person

of interest and if the witness was aware that this is the vehicle he used; and that

the State “wasn’t going to go into any facts about [Cross’s] uncharged

burglaries.” Id. at 78, 80. On redirect-examination, Detective Young was asked

how he was familiar with Cross, he responded “[t]hrough an investigation on an

unrelated offense” and indicated he was the lead investigator on that unrelated

offense and thus familiar with Cross, and the following exchange occurred:

Q. What type of unrelated offense were you investigating him for?

A. Burglary.

Q. And were you aware that []Cross drove a silver Infiniti from that unrelated burglary that you were investigating?

A. Yes.

Q. And that was prior to this one?

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 8 of 11 A. Correct.

Id. at 81.

[10] The jury found Cross guilty of two counts of burglary as level 3 and 4 felonies,

robbery resulting in bodily injury as a level 3 felony, and residential entry as a

level 6 felony. The court merged the convictions for burglary as a level 3 felony

and residential entry into the conviction for burglary as a level 4 felony,

sentenced Cross to fifteen years for the robbery resulting in bodily injury and

eleven years for burglary as a level 4 felony, and ordered the sentences to be

served consecutively with the final two years served on community corrections.

Discussion

[11] The issue is whether the trial court abused its discretion in admitting certain

evidence. The trial court has broad discretion to rule on the admissibility of

evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling

on the admission of evidence is generally accorded a great deal of deference on

appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We will not

reverse an error in the admission of evidence if the error was harmless. Turner

v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). 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.

[12] Cross argues that the State introduced impermissible evidence of his prior bad

acts, and that the jury made the forbidden inference that he probably committed Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 9 of 11 the charged crimes due to a criminal propensity. He contends the State did not

prove the admissibility of the testimony under an express exception to Ind.

Evidence Rule 404(b), that he was prejudiced by its admission as it likely led the

jury to assume he was a serial burglar, and that it was of minimal probative

value. The State maintains that Cross first elicited the evidence regarding the

prior investigation on cross-examination and that the minimal testimony could

not have prejudiced the jury.

[13] We observe that Cross’s defense counsel elicited testimony from Detective

Young that he “had been investigating a burglary” in which the person of interest

was driving a silver vehicle, asked for additional explanation after Detective

Young indicated that “[b]oth” the home invasion and the silver vehicle caught

his attention, and elicited Detective Young’s statement that he “was investigating

one” of multiple home invasions and burglaries in which Cross could have been

involved. Transcript Volume III at 72-73. The invited error doctrine forbids a

party to take advantage of an error that the party “commits, invites, or which is

the natural consequence of [the party’s] own neglect or misconduct,” Durden v.

State, 99 N.E.3d 645, 651 (Ind. 2018) (quoting Wright v. State, 828 N.E.2d 904,

907 (Ind. 2005)), given some evidence that the error resulted from an “appellant’s

affirmative actions as part of a deliberate, ‘well-informed’ trial strategy.”

Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019) (quoting Brewington v. State, 7

N.E.3d 946, 954 (Ind. 2014), reh’g denied, cert. denied, 574 U.S. 1077, 135 S. Ct.

970 (2015)). In light of the record, we conclude that Cross invited any error with

respect to the challenged testimony.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 10 of 11 [14] Further, we find that any error with respect to allowing the State to ask

questions on redirect and Detective Young’s responses was harmless. Upon

being questioned by Cross’s defense counsel, Detective Young testified he was

investigating a burglary. The implication of Detective Young’s statement is that

he had believed Cross to be involved in an unrelated burglary he was

investigating, and we conclude that his subsequent statements on redirect

examination did not impact Cross’s substantial rights. See Pritchard v. State, 810

N.E.2d 758, 761 (Ind. Ct. App. 2004) (holding that, even if it could be

concluded that it was error for the trial court to admit certain testimony, the

error would have been harmless and the defendant was not prejudiced by the

admission of the testimony). Any error is also harmless given the substantial

independent evidence set forth above and in the record. See Turner, 953 N.E.2d

at 1059 (“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.”) (citing Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)); Cole

v. State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (holding that an error in the

admission of evidence does not justify reversal if the evidence is cumulative of

other evidence presented at trial).

[15] For the foregoing reasons, we affirm Cross’s convictions.

[16] Affirmed.

Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-23 | July 29, 2020 Page 11 of 11