MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 09 2016, 8:41 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
John Kidwell, December 9, 2016 Appellant-Defendant, Court of Appeals Case No. 15A04-1511-CR-1972 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff. McLaughlin, Judge Trial Court Cause No. 15D02-1212-FB-76
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 1 of 24 [1] John Kidwell appeals his convictions for burglary and conspiracy to commit
burglary as class B felonies. Kidwell raises two issues which we revise and
restate as:
I. Whether the court committed fundamental error in permitting the State to amend the charging information to include an habitual offender allegation; and
II. Whether the court erred by denying Kidwell’s motion for a mistrial.
We affirm.
Facts and Procedural History
[2] On December 3, 2012, around noon, James Fishburn was taking a nap in the
walk-out basement of his Lawrenceburg home. A loud banging sound from his
back door woke him up, and he walked to his garage to investigate. When he
opened the garage door, he saw a gold-colored pickup truck parked nearby.
The truck immediately began honking and backing away from the house. As
the truck started to drive off, Fishburn saw a man run out from behind his
house and jump in the truck, and the truck left the scene. As Fishburn dialed
911, he saw another man run from his house into the woods. Fishburn relayed
the description of the men and the truck to the police.
[3] The police saw the gold-colored pickup truck, but it initially evaded capture.
When the police found it, it had left the road, crashed into a tree, and been
abandoned.
[4] Meanwhile, the police maintained a lookout near the woods behind Fishburn’s
house. After an hour, a man emerged from the woods, covered in briars and
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 2 of 24 sweat and matching the description given by Fishburn. When asked, the man
identified himself as Eric Taulbee and said he was looking for a place to hunt.
He told the police that he was trying to meet up with some friends in a gold-
colored pickup truck near US 50, and the officer noted that Taulbee was
walking in the opposite direction. The officer took Taulbee back to the
Fishburn residence. While en route, the officer received a photograph of the
registered owner of the pickup truck, Shawn Kidwell, which he showed to
Taulbee. The officer told Taulbee that Shawn had been arrested. They arrived
at the Fishburn house, where Fishburn confirmed that he had seen Taulbee.
The officer also found boot prints outside the residence matching Taulbee’s
boots. Taulbee confirmed that he had been near the residence, but maintained
that he was looking for a place to hunt, confirmed that Shawn had been with
him, and named the third man as “Chris Stevens.” Transcript at 508. Taulbee
was then arrested.
[5] The police searched Taulbee’s phone and social media accounts but could not
find anyone named Chris Stevens. About a week after his arrest, Taulbee told
the police that he had committed the burglary with Shawn and Shawn’s
brother, John Kidwell. He admitted that he had made up the name Chris
Stevens.
[6] In December 2012, the State charged Kidwell, Shawn, and Taulbee with Count
I, burglary as a class B felony; and Count II, conspiracy to commit burglary as a
class B felony. In 2013, Shawn and Taulbee each pled guilty to the burglary
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 3 of 24 charge and agreed to provide testimony against Kidwell, who remained at large
until November 2014.
[7] Kidwell was brought to trial on June 15 and 16, 2015, but the jury deadlocked
and was unable to reach a verdict and the court declared a mistrial. The
following month, before Kidwell’s second trial, the State moved to amend the
charging information to include an allegation that Kidwell was an habitual
offender based on two prior felony burglary convictions in Ohio. Kidwell did
not object. The trial court granted the motion, and his second trial took place
on August 18 and 21, 2015.
[8] At trial, Shawn testified that he, Taulbee, and Chris Stevens, who was
Taulbee’s “buddy or whatever,” came to Indiana from Ohio for the purpose of
knocking on people’s doors and then leaving. Id. at 325. When confronted
with his testimony from his 2013 guilty plea—in which he admitted that he,
Taulbee, and his brother committed the burglary—he claimed that Chris
Stevens was his “patch brother.” Id. at 337. Shawn testified that this referred to
a gang affiliation and that he had since left the gang.
[9] Taulbee testified that he and the two Kidwell brothers came to Indiana to
burglarize houses in order to fund their heroin addiction. He admitted that he
initially hid the Kidwells’ role in the crime until it became clear that the police
had evidence of their involvement, at which point he decided to tell the truth.
On cross-examination Taulbee, Kidwell’s counsel focused on the
inconsistencies in Taulbee’s story and attempted to portray him as someone
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 4 of 24 who would say anything to shorten his incarceration. Specifically, defense
counsel asked, “So now you change your story again, eight days later after
being locked up and without your heroin, you change it because of no evidence
presented to you, correct?” Id. at 425. Taulbee responded: “No, I changed it
because my mom’s house was broken into.” Id. Defense counsel objected.
During the parties’ discussion outside the presence of the jury, the trial court
noted that in prior depositions, Taulbee had testified that he decided to give
information on the Kidwell brothers because he believed that they had
burglarized his mother’s house. The trial court ruled that, because defense
counsel should have known, due to prior hearings and depositions on the
matter, that his question would elicit Taulbee’s response, it would overrule the
objection. Kidwell’s request for a mistrial was also denied.
[10] The parties then discussed that the State would ask Taulbee on redirect why the
break-in of his mom’s house changed his mind and that Taulbee would respond
that he was concerned that Shawn and Kidwell were involved. Kidwell’s
counsel objected to this line of questioning on hearsay grounds, was granted a
continuing objection, and requested a mistrial due to “the presentation of
evidence that there’s implications that he already previously had committed a
burglary at . . . his aunt’s house.” Id. at 455. The parties and the court also
discussed a limiting instruction. The court overruled his objection and denied
his motion for mistrial. The jury was subsequently brought back into the
courtroom, the State asked Taulbee its question and Taulbee responded as
discussed, and the court gave its limiting instruction as follows:
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 5 of 24 The question asked and answered is not evidence of the truth of the matter as stated in the answer and is not to be considered as such and is not to be considered as any evidence that the defendant acted in conformity with the statement provided by the witness but is merely for purpose of the witness’ motivation.
Id. at 463.
[11] After this testimony, and the introduction of evidence that Kidwell’s fingerprint
was found on a bottle inside his brother’s car, the jury found Kidwell guilty as
charged. It also found that he was an habitual offender. The trial court
sentenced him to twenty years for each conviction, to be served concurrently,
with an additional twenty years for his habitual offender status.
Discussion
I.
[12] The first issue is whether the court committed fundamental error in permitting
the State to amend the charging information to include a habitual offender
allegation because the amendment amounted to vindictiveness by the
prosecutor. Kidwell argues that when the State amended its charging
information to include a habitual offender allegation, the surrounding
circumstances strongly indicate a vindictive motive. Generally, we review a
trial court’s decision to allow amendment of a charging information in the face
of a claim of prosecutorial vindictiveness for an abuse of discretion. Johnson v.
State, 959 N.E.2d 334, 342 (Ind. Ct. App. 2011), trans. denied. Kidwell concedes
that he did not object to the State’s motion to add a habitual offender allegation
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 6 of 24 and that accordingly he must show fundamental error. Fundamental error is an
extremely narrow exception that allows a defendant to avoid waiver of an issue.
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes “a fair
trial impossible or constitute[s] clearly blatant violations of basic and
elementary principles of due process . . . present[ing] an undeniable and
substantial potential for harm.” Id. “This exception is available only in
‘egregious circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
(quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied.
“Fundamental error is meant to permit appellate courts a means to correct the
most egregious and blatant trial errors that otherwise would have been
procedurally barred, not to provide a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve an error.”
Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.
[13] The Due Process clauses of Article 1, section 12, of the Indiana Constitution
and the Fourteenth Amendment to the United States Constitution prohibit
prosecutorial vindictiveness. 1 Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098
(1974); Warner v. State, 773 N.E.2d 239 (Ind. 2002). A defendant has a due
process right “to be free of apprehension that he will be subjected to an
increased punishment if he exercises his right to attack his conviction . . . .”
1 Although Kidwell mentions the Indiana Constitution, he does not provide a separate analysis for that provision, nor does he argue that it provides protection different from the federal constitution. Therefore, any separate analysis under the Indiana Constitution is waived. See Valentin v. State, 688 N.E.2d 412, 413 (Ind. 1997).
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 7 of 24 Cherry v. State, 275 Ind. 14, 20, 414 N.E.2d 301, 305 (1981). Prosecutorial
vindictiveness can occur if “more numerous or more severe charges” are filed
against an accused “after the accused has successfully exercised his statutory or
constitutional rights to an appeal,” unless the prosecution meets the “heavy
burden of proving that any increase in the number or severity of the charges was
not motivated by a vindictive purpose.” Id. As with a successful appeal, the
same applies to a successful motion for a mistrial: “unless there is new evidence
or information discovered to warrant additional charges, the potential for
prosecutorial vindictiveness is too great for courts to allow the State to bring
additional charges against a defendant who successfully moves for a mistrial.”
Warner, 773 N.E.2d at 243. On the other hand, the United States Supreme
Court has noted that “[a] prosecutor should remain free before trial to exercise
the broad discretion entrusted to him to determine the extent of the societal
interest in prosecution. An initial decision should not freeze future conduct.”
United States v. Goodwin, 457 U.S. 368, 382, 102 S. Ct. 2485, 2493 (1982).
[14] We find our decision in Sisson v. State, 985 N.E.2d 1 (Ind. Ct. App. 2012), trans.
denied, instructive. In that case, the State refiled a firearm charge and a habitual
offender allegation, which had been dismissed prior to the defendant’s first trial,
after that trial ended in a deadlocked jury and a mistrial. Id. at 7-8. We
distinguished this scenario from the cases in which we found prosecutorial
vindictiveness: “the State did not file more numerous or severe charges
following a successful appeal; rather, the State refiled previously dismissed
counts after Sisson’s first trial ended in a mistrial due to jury deadlock.” Id. at
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 8 of 24 11. After noting that Warner applied this rationale to a successful motion for
mistrial, we pointed out that “Sisson did not move for a mistrial in an effort to
preserve his right to a fair trial as the result of some error. Rather, the trial court
sua sponte declared a mistrial, without objection from Sisson or the State, after
the jury indicated that it was unable to reach a verdict.” Id. What we said of
Sisson applies equally to Kidwell: “Sisson has not directed our attention to any
Indiana cases addressing the application of the presumption of vindictiveness
where additional charges are filed after the declaration of a mistrial due to jury
deadlock.” Id.
[15] In this case, there is nothing in the record to suggest that Kidwell was being
subjected to a greater sentence as punishment for the exercise of any of his
constitutional rights. The doctrine of prosecutorial vindictiveness exists “[i]n
order to avoid chilling the exercise of the right to an appeal” or the right to seek
a mistrial. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005); Warner,
773 N.E.2d at 242. Without the doctrine, defendants would be discouraged
from challenging misdeeds of the State, which in turn might encourage the
State to commit misdeeds. The doctrine and its rationale have little application
to a case in which a mistrial resulted not from any improper conduct of the
State but rather a deadlocked jury.
[16] Kidwell also argues that the State added the habitual offender charge after the
first trial in order to pressure him into a plea agreement. He contends that he is
effectively being punished for seeking his right to a fair trial. We disagree.
Courts have consistently refused to apply the presumption of vindictiveness to
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 9 of 24 the “give-and-take” of plea negotiation, an “outcome . . . mandated by [the]
acceptance of plea negotiation as a legitimate process.” Goodwin, 457 U.S. at
378 (finding no prosecutorial vindictiveness where prosecutor filed a felony
charge after defendant refused to plead guilty to several misdemeanor charges
and requested a trial by jury). Even if we accept as true Kidwell’s allegation
that the habitual offender charge was intended to pressure him into accepting a
plea agreement, the prosecutor’s conduct would not be unconstitutional: “by
tolerating and encouraging the negotiation of pleas, this Court has necessarily
accepted as constitutionally legitimate the simple reality that the prosecutor’s
interest at the bargaining table is to persuade the defendant to forgo his right to
plead not guilty.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668
(1978).
[17] We find that there is nothing in the record to raise the presumption of
prosecutorial vindictiveness in the habitual offender allegation and that the
court’s decision to permit the State to amend the charging information and add
the habitual offender charge did not amount to fundamental error.
II.
[18] The next issue is whether the court erred by denying Kidwell’s motion for a
mistrial. “The granting of a mistrial lies within the sound discretion of the trial
court, and we reverse only when an abuse of discretion is clearly shown.” Davis
v. State, 770 N.E.2d 319, 325 (Ind. 2002), reh’g denied. “The remedy of mistrial
is ‘extreme,’ Warren v. State, 757 N.E.2d 995, 998-999 (Ind. 2001), strong
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 10 of 24 medicine that should be prescribed only when ‘no other action can be expected
to remedy the situation’ at the trial level, Gambill v. State, 436 N.E.2d 301, 304
(Ind. 1982).” Lucio v. State, 907 N.E.2d 1008, 1010-1011 (Ind. 2009). We
afford the trial court such deference on appeal because the trial court is in the
best position to evaluate the relevant circumstances of an event and its impact
on the jury. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans.
denied. To prevail on appeal from the denial of a motion for a mistrial, the
appellant must demonstrate the statement or conduct in question was so
prejudicial and inflammatory that he was placed in a position of grave peril to
which he should not have been subjected. Id. We determine the gravity of the
peril based upon the probable persuasive effect of the misconduct on the jury’s
decision rather than upon the degree of impropriety of the conduct. Id.
[19] At trial, the following exchange occurred during the re-cross-examination of
Taulbee:
[Defense Counsel]: Okay and so just recently here in your testimony you said well I just changed my story because then they provided evidence, right?
Mr. Taulbee: Yes.
[Defense Counsel]: So now you change your story again, eight (8) days later after being locked up and without your heroin, you change it because of no evidence presented to you, correct?
Mr. Taulbee: No I changed it because my mom’s house was broken into.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 11 of 24 Transcript at 425. Kidwell’s counsel objected and, outside the jury’s presence,
argued that Taulbee’s answer was non-responsive to his question. The State
asserted that Kidwell’s counsel, based on previous proceedings including the
first trial, knew that this question would prompt Taulbee’s response, and the
court took judicial notice “that it was presented at the first trial and [Defense
Counsel] did know that if it got into [Taulbee’s] motive for why he changed his
story is because his mother’s own residence was broken into and it did not
come out in evidence at the first trial.” Id. at 427. The court ruled that
Taulbee’s statement was responsive to the question asked by Kidwell’s counsel
and allowed the answer, also noting that Kidwell’s counsel opened the door to
questioning on the subject, and denied the request for a mistrial.
[20] The parties discussed that the State would ask him in response to the above
exchange “why did the burglary of your mom’s home change your mind about
protecting John Kidwell,” and that Taulbee would respond that his mother told
him that Shawn and Kidwell perpetrated the burglary. Id. at 443. Kidwell’s
counsel objected to this line of questioning on hearsay grounds, was granted a
continuing objection, and requested a mistrial due to “the presentation of
evidence that there’s implications that he already previously had committed a
burglary at . . . his aunt’s house.” Id. at 455. The parties and the court also
discussed a limiting instruction. The court overruled his objection and denied
his motion for mistrial.
[21] After this discussion, the jury was brought back into the courtroom and the
following exchange occurred:
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 12 of 24 [Prosecutor]: In your previous testimony today, you’ve indicated to the jury that you didn’t bring up John Kidwell because you were trying to protect your cousin. Is that correct?
Mr. Taulbee: Yes, that’s correct.
[Prosecutor]: I would just like you to tell us why did the break-in of your mom’s home change your mind about protecting John Kidwell?
Mr. Taulbee: Because I was concerned that my two (2) co- defendants, John and Shawn Kidwell were involved.
Id. at 462. Then, the court issued the limiting instruction stating:
The question asked and answered is not evidence of the truth of the matter as stated in the answer and is not to be considered as such and is not to be considered as any evidence that [Kidwell] acted in conformity with the statement provided by the witness but is merely for purpose of the witness’ motivation.
[22] Kidwell acknowledges that, although the objection at trial regarded potential
hearsay testimony provided by Taulbee that was extremely prejudicial, “[t]he
issue was more properly addressed under Indiana Evidence Rule 404(B),” and
that to the extent his objection is inadequate he again relies upon the
fundamental error exception. Appellant’s Brief at 24. He asserts that evidence
of Kidwell’s guilt is scant, noting that the fingerprint found on a bottle in his
brother’s pickup truck is of questionable probative value, and that Shawn
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 13 of 24 testified at trial that Chris Stevens and not Kidwell was the third participant in
the failed robbery despite the risk of adding thirteen years to his prison term for
doing so. He argues that the jury “had to have relied” upon Taulbee’s
testimony to convict him, that Taulbee had serious believability issues, that at
his first trial “the jury did not know why Taulbee changed his story,” and that
the fact the second jury learned of Taulbee’s reason for identifying Kidwell and
convicted Kidwell is therefore problematic. Id. at 25. Specifically, Kidwell
suggests that the exchange “might have bolstered Taulbee’s shaky credibility,”
or alternatively the jury may have convicted Kidwell “only because they were
convinced he’d acted in conformity with his character,” which runs afoul of
Ind. Evidence Rule 404(B). Id. at 26. He also contends that prejudice is
apparent because he was convicted by the second jury, which heard Taulbee’s
problematic testimony, whereas the first jury did not.
[23] The State argues that otherwise inadmissible evidence may become admissible
when the defendant “opens the door” to questioning on that evidence.
Appellee’s Brief at 28. The State contends that its redirect was brief and
actually lessened the risk of prejudice because, while the first statement objected
to inferred direct knowledge of Kidwell’s participation in burglarizing Taulbee’s
mother, the redirect exchange showed that in fact Taulbee’s “concern” was
vague and unsupported. Id. at 29. It also asserts that the court’s admonishment
cured any risk of prejudice. The State further argues that Kidwell’s assertions
regarding prejudice are unavailing because Shawn’s “testimony was a
transparent tissue of fabrications and evasions” and that Taulbee’s statement to
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 14 of 24 a detective that he made up the name Chris Stevens was corroborated by the
detective’s investigation. Id. at 31. The State maintains that Shawn’s “attempt
to contradict his own testimony was inherently implausible and obviously
manufactured.” Id. at 33. The State finally argues that the record does not
contain the transcript from the first trial and does not show what evidence the
juries heard at the respective trials, that the trial court at the first trial did not
make any findings regarding why the jury was unable to come to a consensus
verdict, and any attempt to glean a prejudicial effect from the exchanges at issue
is mere speculation.
[24] We observe that it was Kidwell’s counsel who prompted Taulbee’s response
that he changed his story “because my mom’s house was broken into.”
Transcript at 425. The record reveals that Kidwell’s counsel should have
known, based upon deposition testimony and discussions during Kidwell’s first
trial, that his question and its phrasing would prompt Taulbee to answer in this
manner. The invited error doctrine forbids a party to take advantage of an error
that he “commits, invites, or which is the natural consequence of [his] own
neglect or misconduct.” Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App.
2016) (quoting Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting
Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert. denied, 135 S.
Ct. 970, 190 L.Ed.2d 834, reh’g denied), trans. denied. We conclude that Kidwell
invited any error with respect to this portion of Taulbee’s testimony.
[25] Having invited such error, we find that any error made in allowing the State to
ask its question on redirect and Taulbee’s response to be harmless at most and
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 15 of 24 certainly not falling within the fundamental error exception. 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. The jury
heard Taulbee’s reason for changing his testimony as a result of Kidwell’s
invited error, namely, that his mother’s house had been broken into. The
implication of Taulbee’s statement is that he believed Kidwell was involved in
the break-in, and his subsequent statement on redirect did not impact Kidwell’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); see also 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).
[26] Further, as acknowledged by Kidwell, his objection to the State’s question was
based upon hearsay and not Ind. Evidence Rule 404(B). As we have stated, “a
party may not present an argument or issue to an appellate court unless the
party raised the same argument or issue before the trial court.” Washington v.
State, 840 N.E.2d 873, 880 (Ind. Ct. App. 2006) (quoting Crafton v. State, 821
N.E.2d 907, 912 (Ind. Ct. App. 2005)), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 16 of 24 [27] Waiver notwithstanding, to the extent that Taulbee’s statement on redirect
might have violated Ind. Evidence Rule 404(B) 2 we note that, immediately
following the challenged testimony the court gave its limiting instruction:
The question asked and answered is not evidence of the truth of the matter as stated in the answer and is not to be considered as such and is not to be considered as any evidence that the defendant acted in conformity with the statement provided by the witness but is merely for purpose of the witness’ motivation.
Transcript at 463.
[28] We are obliged to presume “that the jury are [people] of sense, and that they
will obey the admonition of the court.” Valdez v. State, 56 N.E.3d 1244, 1253
(Ind. Ct. App. 2016), trans. denied. A timely and accurate admonishment is
typically presumed to cure any error in the admission of evidence. Kirby v.
State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002), reh’g denied, trans. denied. Here,
the court’s admonishment instructed the jury not only to not consider Taulbee’s
2 Ind. Evidence Rule 404(B) states as follows:
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. (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.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 17 of 24 statement for truth of the matter asserted, but also not to make the “forbidden
inference” that Kidwell has engaged in other, uncharged misconduct and the
charged conduct was in conformity with the uncharged misconduct. Hicks v.
State, 690 N.E.2d 215, 221 (Ind. 1997). We find that the court’s admonishment
cured any potential impropriety contained in Taulbee’s statement.
Conclusion
[29] For the foregoing reasons, we affirm Kidwell’s convictions for burglary and
conspiracy to commit burglary.
[30] Affirmed.
May, J., concurs.
Baker, J., dissents in part, concurs in part, with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 18 of 24 IN THE COURT OF APPEALS OF INDIANA
John Kidwell, Court of Appeals Case No. 15A04-1511-CR-1972 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Baker, Judge, dissenting in part, concurring in part.
[31] I concur in the majority’s analysis and conclusion regarding prosecutorial
vindictiveness. But I must part ways with its analysis of Taulbee’s testimony
that Kidwell burglarized Taulbee’s mother’s house. In my view, this testimony
is a textbook example of testimony prohibited by Evidence Rule 404(b) and was
neither invited nor harmless. Accordingly, I would reverse on this issue and
remand for a new trial.
[32] First, Indiana Evidence Rule 404(b)(1) prohibits the admission of “[e]vidence of
a crime, wrong, or other act . . . to prove a person’s character in order to show
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 19 of 24 that on a particular occasion the person acted in accordance with the
character.” However, such “evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Ind. Evidence Rule
404(b)(2). The rule is designed to prevent the jury from assessing a defendant’s
present guilt on the basis of his propensities—the so called “forbidden
inference.” Hicks v. State, 690 N.E.2d 215, 218-19 (Ind. 1997). The paradigm of
inadmissible evidence under Rule 404(b) is a crime committed on another day
in another place, evidence whose only apparent purpose is to prove the
defendant is a person who commits crimes. Swanson v. State, 666 N.E.2d 397,
398 (Ind. 1996). Our Supreme Court has detailed the findings a trial court is
required to make before admitting evidence of other acts:
First, the court must determine that 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. Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. And third, the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.
Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009) (internal quotes and citations
omitted).
[33] The evidence regarding the alleged break-in of Taulbee’s mother’s house is
precisely the type of evidence that Rule 404(b) was designed to keep out of trial,
as it fails at least two of the three requirements listed in Camm. As for the
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 20 of 24 second requirement, there was absolutely no proof that the statement was true
other than the bald assertion of one of the State’s witnesses. This assertion
could not have been made with personal knowledge of the facts related, since
Taulbee was in prison during the relevant time period, but was instead based
entirely on hearsay. And as for the third requirement, the prejudicial effect of
the testimony was extremely high, its probative value vanishingly small. The
jury was told that Kidwell, on trial for burglary and conspiracy to commit
burglary, also burglarized the mother of the State’s main witness. This is the
epitome of “a crime committed on another day in another place,” and had
special weight coming from the sole witness testifying against Kidwell. As our
Supreme Court has explained, a long line of prior misconduct cases have
“cautioned that evidence of prior misconduct offered to bolster a key witness’s
testimony as to the current charge, although often probative on that point, is
also quite prejudicial.” Thompson v. State, 690 N.E.2d 224, 235 (Ind. 1997).
And as Taulbee’s testimony was the only evidence linking Kidwell to the crime
other than a fingerprint inside his brother’s car, the accusation that Kidwell
burglarized Taulbee’s mother’s house was not harmless.
[34] Second, the majority analyzes the issue solely under the fundamental error
doctrine, accepting the State’s argument that Kidwell did not properly object on
Rule 404(b) grounds. While it is certainly true that a claim of trial court error in
admitting evidence may not be presented on appeal unless there is a timely
objection “stating the specific ground of objection, if the specific ground was
not apparent from the context,” Gyamfi v. State, 15 N.E.3d 1131, 1135 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 21 of 24 App. 2014) (citing Ind. Evidence Rule 103(a)(1)), Kidwell did alert the trial
court to his concern that Taulbee’s statement involved impermissible character
evidence. Although Kidwell frequently mentioned the doctrine of hearsay, he
also argued to the trial court that “the presentation of evidence that there’s
implications that he already previously had committed a burglary at [Taulbee’s]
mother’s . . . house. That’s providing information to the jury. That’s extremely
high [sic] prejudicial.” Tr. p. 455-56. Our Supreme Court has cautioned us not
to unrealistically “insist on detailed doctrinal arguments during the exigencies
of trial—and indeed, long-winded objections are a poor use of court and jury
time. The aim is simply to let the trial judge make an informed decision and
prevent the objecting party from switching theories on appeal.” Ward v. State,
50 N.E.3d 752, 756 (Ind. 2016). That the trial court was adequately informed
of the issue is evidenced by its limiting instruction that the statement “is not to
be considered as any evidence that [Kidwell] acted in conformity with the
statement provided by the witness . . . .” Tr. p. 463.
[35] Third, while I agree that the doctrine of invited error readily applies to
Taulbee’s first comment, “I changed [my story] because my mom’s house was
broken into,” tr. p. 425, I cannot agree that it applies to the State’s follow-up
question, “I would just like you to tell us why did the break-in of your mom’s
house change your mind about protecting John Kidwell?” Id. at 462. Defense
counsel spent the intervening forty pages in the transcript objecting to Taulbee’s
first statement and to the State’s proposed follow up. While Kidwell invited
Taulbee’s first comment, he certainly did not invite the second.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 22 of 24 [36] Nor can I agree with the State’s argument that Kidwell opened the door to the
State’s follow-up question. That doctrine exists to prevent a party from
misrepresenting facts and thereby gaining an advantage. E.g., Jackson v. State,
728 N.E.2d 147, 151-52 (Ind. 2000) (defendant accused of shooting wife opened
the door to evidence of prior battery because he testified that he loved his wife
throughout their marriage and left the jury with the impression that he would
not intentionally harm someone he loved); Roberts v. State, 894 N.E.2d 1018,
1027 (Ind. Ct. App. 2008) (defendant accused of choking victim opened the
door to evidence that he had previously choked several other women because
he testified that he had only performed chokeholds on men during martial arts
training). Such a situation does not exist in this case. Kidwell did not gain an
advantage from Taulbee’s first comment; indeed, that comment created a
substantial risk that the jury would believe that he regularly perpetrates
burglaries. And far from lessening the risk of prejudice or averting the
forbidden inference, the State’s follow-up question greatly increased the
prejudice and made it more likely that the jury would infer that Kidwell has a
propensity towards burglary. In short, the State did not rebut Taulbee’s first
comment; it compounded it.
[37] Finally, I do not find the trial court’s limiting instruction dispositive. We have
previously found limiting instructions insufficient where improperly admitted
evidence held great potential to prejudice a jury. E.g., Greenboam v. State, 766
N.E.2d 1247, 1255-57 (Ind. Ct. App. 2002) (where defendant was charged with
child molestation, and State presented testimony that he had committed other
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 23 of 24 molestations, we held that “[a]lthough the trial court instructed the jury as to
the limited purpose for which the evidence could be considered, we cannot say
that the impact of the improperly admitted evidence upon the jurors was
significantly lessened. A substantial likelihood exists that the erroneously
admitted evidence contributed to the verdict and had an impact upon
Greenboam’s substantial rights.”) (internal citation omitted). In this case, the
sole witness testifying against Kidwell, Taulbee, was permitted to accuse
Kidwell of burglarizing Taulbee’s mother’s house. In a trial for burglary,
testimony that the defendant burglarizes the mothers of witnesses is extremely
inflammatory, and I cannot say that the trial court’s limiting instruction
sufficiently blunted the impact upon the jurors.
[38] For the foregoing reasons, I respectfully dissent from the majority’s analysis of
and holding on Taulbee’s testimony. In all other aspects, I fully concur with
the majority.
Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016 Page 24 of 24