James Holder v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 30, 2018
• Docket: 18A-CR-863
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2018, 11:02 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Holder, November 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-863 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff Rothenberg, Judge Trial Court Cause No. 49G02-1708-F3-32259

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 1 of 9 [1] James Holder appeals his conviction for Level 5 Felony Carrying a Handgun

Without a License,1 arguing that (1) the trial court erred when it admitted

evidence of Holder’s prior criminal conviction; and (2) the trial court erred

when it merged, rather than vacated, a lesser included offense for which it

entered a judgment of conviction. Finding no error in the admission of evidence

but error in the merger of convictions, we affirm in part and remand in part

with instructions.

Facts [2] In August 2017, Holder and Katherine Waltz were living together. On August

29, 2017, Holder picked up Waltz at her workplace and moved to the passenger

seat so that Waltz could drive. Soon after, Waltz noticed that Holder had a gun

on his lap. He alternated between pointing the gun at her head and her

stomach. The couple’s three-year-old daughter sat in the backseat and played

on Holder’s cell phone this entire time.

[3] Holder ordered Waltz to drive to Holder’s sister’s home. Once they arrived,

Holder retrieved the cell phone from their daughter and let her play with

Holder’s nieces and nephews. Holder, still carrying the gun, then went to the

backyard. Waltz recognized someone she knew driving by and asked him to

call 911.

1 Ind. Code § 35-47-2-1(e)(2)(A).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 2 of 9 [4] Indianapolis Metropolitan Police Department (IMPD) Officer Danielle Lewis

was dispatched to the residence, where Waltz informed her that Holder was

armed. Soon after, Officer Ha’le Rapier arrived to help Officer Lewis. Both

officers went to the backyard with their guns drawn. They found Holder and

ordered him to get to the ground with his hands up. The officers handcuffed

Holder and patted him down but did not find a firearm. Officer Kolin Kinder

arrived at the scene and began to search for the missing firearm. He noticed a

trash can close by with its lid slightly ajar. He also noticed that Holder watched

him “intently” as he approached the trash can. Tr. Vol. III p. 108. Inside,

Officer Kinder found the firearm.

[5] Officer Matthew Minnis arrived at the scene and read Holder his Miranda2

rights. Holder informed police that he recognized the firearm because a child

had previously handed it to him, and after holding it, he had passed the gun to

someone else. Later DNA testing revealed that two individuals had touched the

gun, but the police could not determine their identities.

[6] On August 31, 2017, the State charged Holder with Count I, Level 3 felony

criminal confinement; Count II, Level 5 felony intimidation; Count III (in two

parts), Class A misdemeanor carrying a handgun without a license and Level 5

2 Miranda v. Arizona, 384 U.S. 436 (1966).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 3 of 9 felony carrying a handgun without a license;3 Count IV, Level 6 felony pointing

a firearm; and Count V, Class A misdemeanor unlawful possession of a firearm

by a person previously convicted of domestic battery.

[7] A bifurcated jury trial began on February 22, 2018. During the first stage of the

trial, the State sought to introduce evidence of Holder’s 2008 conviction for

carrying a handgun without a license as well as evidence of his prior domestic

battery conviction. Holder objected, claiming that the prejudicial effect of this

evidence outweighed its probative value and that it violated Indiana Rule of

Evidence 404(b). After hearing arguments from both sides, the trial court

allowed the State to introduce evidence only of the 2008 carrying a handgun

without a license conviction because Holder had “opened the door” when he

testified that he was “scared” of guns. Id at 227.

[8] At the close of the first stage of trial, the jury found Holder guilty of part one of

Count III, and not guilty of Counts I, II, and IV. At the second stage of the

trial, the State presented evidence on part two of Count III and Count V. The

jury found Holder guilty on both counts.

[9] At the sentencing hearing on March 21, 2018, the trial court merged Holder’s

convictions for part one of Count III and Count V into part two of Count III.

The trial court sentenced Holder to four years’ incarceration with two years to

3 The State charged Holder under two parts of the same criminal statute for carrying a firearm without a license because part two, the Level 5 felony, increases the penalty for someone who “has a prior conviction of any offense under this section.” Holder was previously convicted under this statute in 2008.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 4 of 9 be served at the Department of Correction, one year to be served on in-home

detention, and one year suspended to probation. Holder now appeals.

Discussion and Decision [10] Holder makes two arguments on appeal: (1) the trial court erred when it

admitted evidence of Holder’s prior criminal conviction; and (2) the trial court

erred when it merged, rather than vacated, two lesser included offenses for

which it entered a judgment of conviction.

[11] First, Holder argues that the trial court improperly admitted, over Holder’s

objection, evidence of his 2008 conviction for carrying a handgun without a

license in the first stage of his trial. We will reverse a trial court’s ruling on the

admission of evidence only if the decision is clearly against the logic and effect

of the facts and circumstances before it. Smith v. State, 754 N.E.2d 502, 504

(Ind. 2001).

[12] Specifically, Holder claims that the trial court’s admission of this evidence was

erroneous for two reasons. First, he argues that the introduction of a prior crime

or bad act violates Indiana Rule of Evidence 404(b). And second, pursuant to

Indiana Rule of Evidence 403, the prejudicial effect of evidence of a prior

criminal conviction, the same crime for which Holder was on trial, outweighs

its probative value.

[13] First, Indiana Rule 404(b) prohibits the introduction of evidence of a prior

crime or bad act out of fear that the evidence will be used “to prove a person’s

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 5 of 9 character in order to show on a particular occasion the person acted in

accordance with that character.” The State argues that while evidence of

Holder’s prior criminal conviction would ordinarily be inadmissible, Holder

opened the door to this type of evidence by testifying that he was “scared of

guns.” Tr. Vol. III p. 240. A party “opens the door” to otherwise inadmissible

evidence when that party leaves the trier of fact with a false or misleading

impression of the facts stated. Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001).

In this case, Holder claims that he did not create a false or misleading

impression in the minds of the jurors because his comment about being scared

of guns was only in reference to him being scared of Officers Lewis and Rapier

directly pointing their guns at him. Appellant’s Br. p. 11. We find Holder’s

argument unavailing.

[14] The trial court specifically addressed this issue, stating that “[the jury] will be

left with your unquestioned testimony that you’re scared of guns . . . . And

when you decided to add that statement . . . ‘I’m scared of guns,’ you opened

the door to that.” Tr. Vol. III p. 226. We find no fault with the trial court’s

conclusion. While Holder did say that he was scared at the specific moment he

saw the officers pointing their guns at him, he also independently affirmed that

he was scared of guns in response to the question, “So, you’re scared of guns?”

Id. at 240. This admission could have misled the jury into thinking that, due to

this fear, Holder could not have possibly possessed a gun at any point during

the day of the incident. Moreover, the introduction of his prior criminal

conviction of possessing a gun without a license directly contradicts any of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 6 of 9 Holder’s misleading testimony that as a general rule, he is scared of guns.

Therefore, the admission of this evidence did not violate Indiana Rule of

Evidence 404(b).

[15] Second, Indiana Rule of Evidence 403 states that a trial court may exclude

otherwise relevant evidence if its probative value is “substantially outweighed

by the danger of unfair prejudice.” It is apparent that the trial court was

concerned about the danger of unfair prejudice by admitting evidence of the

prior criminal conviction. Id. at 226-27. However, the trial court took this

concern into consideration by requiring the State to offer its reasons for why the

evidence should be admitted; the trial court then reached a sound decision

under the circumstances. The trial court denied the admission of evidence of

Holder’s prior criminal conviction for domestic battery, demonstrating that it

was cognizant of the potential for prejudice. In this instance, we cannot say that

the trial court’s decision was clearly against the facts and the circumstances

before it.

[16] Moreover, if the trial court’s ruling on admission was erroneous, at most, it was

harmless error. The improper admission of evidence is harmless error if the

conviction is supported by substantial independent evidence of guilt satisfying

us that there is no substantial likelihood the challenged evidence contributed to

the conviction. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011).

[17] Here, there is substantial, independent evidence showing that Holder was guilty

of carrying a handgun without a license. Waltz’s testimony—corroborated in

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 7 of 9 matching detail by Officer Kinder’s testimony—shows that throughout the

evening of the incident, Holder had a gun. Further, Holder flatly admitted that

he did not have a license to possess a gun, and Officer Kinder testified that

Holder was “staring intently” at her when she went to inspect the trash can

where the gun was found. Tr. Vol. III p. 108. Moreover, Holder provided two

inconsistent versions of what happened with him and the gun, both of which

still affirm that he possessed the gun, used it against Waltz while they were

driving in the car, and somehow disposed of it shortly thereafter. It is more than

reasonable to conclude that the jury’s conviction was supported by substantial

independent evidence of guilt and that evidence of his conviction did not

directly contribute to the jury’s decision. Therefore, the trial court’s decision to

admit evidence of Holder’s past criminal conviction was harmless error at most.

[18] Finally, Holder also argues that the trial court erred when it merged, rather than

vacated, two lesser included offenses. We review questions of double jeopardy

and merger de novo, giving no consideration to the trial court’s decision below.

Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).

[19] The trial court merged Count V and part one of Count III into part two of

Count III. The State concedes that this was improper. See Mason v. State, 532

N.E.2d 1169, 1172 (Ind. 1989) (holding that the correct procedure for a trial

court that violates double jeopardy is to “vacate the conviction for the lesser

included offense and enter a judgment of conviction and sentence only upon the

greater offense”). We agree. The trial court should have simply vacated those

convictions and entered a judgment of conviction only for part two of Count

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 8 of 9 III, the Level 5 felony. Therefore, we remand to the trial court with instructions

to vacate the convictions on Count V and part one of Count III.

[20] The judgment of the trial court is affirmed in part and remanded in part with

instructions.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 9 of 9