Kevin L. Nicholson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2016
• Docket: 88A05-1601-CR-116
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 28 2016, 8:20 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian R. Chastain Gregory F. Zoeller Dillman Chastain & Byrd, LLC Attorney General of Indiana Corydon, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin L. Nicholson, September 28, 2016 Appellant-Defendant, Court of Appeals Case No. 88A05-1601-CR-116 v. Appeal from the Washington Superior Court State of Indiana, The Honorable Frank Newkirk, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 88D01-1507-F4-373

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 1 of 11 STATEMENT OF THE CASE

[1] Appellant-Defendant, Kevin L. Nicholson (Nicholson), appeals his conviction

for burglary, a Level 4 felony, Ind. Code § 35-43-2-1, and his adjudication as an

habitual offender.

[2] We affirm.

ISSUE

[3] Nicholson raises one issue on appeal, which we restate as: Whether the trial

court abused its discretion by admitting evidence of prior bad acts.

FACTS AND PROCEDURAL HISTORY

[4] On July 6, 2015, sisters Sandra Clark (Clark) and Marilyn Brown (Brown)

visited their parents’ home on State Road, in Salem, Indiana. The parents,

Floyd (Floyd) and Francis Fletcher, reside in a nearby assisted living home and

no longer live in the residence. Clark and Brown continue to maintain the

house. When they arrived at the residence at approximately 3:30 p.m., they

noticed a blue Ford Taurus in the driveway. After walking around the back of

the house, they saw that the door to the kitchen was open with a man standing

inside. Clark asked him what he was doing inside and he gave them his name

as Nicholson. Nicholson explained that he used to work for Floyd and “that he

had come into the house because he thought he heard something in the house

and Floyd might be down on the floor and he just needed to check on him.”

(Transcript p. 114). Nicholson told the sisters that he had a key to the house,

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 2 of 11 but when Clark demanded the key, Nicholson changed his response and

assured her that he did not have a key. Clark told Nicholson to leave the house.

[5] Brown and Nicholson walked to the porch, while Clark “headed for the front

bedroom.” (Tr. p. 114). Checking the nightstands in the bedroom, Clark

noticed that several containers with coins were not in the nightstand where she

and her sister had left them previously. Outside, Nicholson told Brown that

“he needed copies of appraisals from Floyd that he had helped work on or he’d

be in trouble.” (Tr. p. 181). When Clark joined them again, she informed

Brown that “things had either been moved or were missing.” (Tr. p. 181).

While Brown went inside to check, Nicholson invited Clark to look in his car.

Checking Nicholson’s car, Clark and Brown did not see the missing containers.

They did find tools in the trunk of the car and Nicholson explained that “he

was in construction.” (Tr. p. 119). Clark informed Nicholson that she was

going to call the police. However, Nicholson “couldn’t wait for the police”

because “he would lose his job at White Castle in Orleans and he had to go.”

(Tr. p. 119). He wrote down his phone number and gave it to Brown.

[6] An officer arrived and searched the house. When Clark and Brown returned to

the bedroom, they found the missing coin jars inside a pillow case in the

bedroom’s closet. Another officer located Nicholson’s car in Orange County.

After initiating a traffic stop, Nicholson first told the officer that “he went inside

the residence because he was afraid [Floyd] was down,” but “[a] few minutes

later he said he went inside the residence to look for some drawings or plans or

something where he used to work for [Floyd].” (Tr. p. 296). Nicholson

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 3 of 11 informed the officer that he was on his way “to Orleans to talk to a guy about a

concrete job and [that] he was unemployed at the time.” (Tr. p. 196). The

officer arrested Nicholson. An inventory search of Nicholson’s car revealed old

coins, old football cards, a silver spoon, an old children’s book, rings, an old

mug, a cell phone, binoculars, channel locks, a file tool, and a pry bar.

[7] On July 9, 2015, Nicholson called his mother, Jesse Spradlin (Spradlin), from

jail. When Spradlin asked Nicholson “what did you break in that house for?”,

Nicholson responded, “I was just hungry and needed a place to stay.” (Tr. p.

318). In another phone call made on July 9, 2015, Nicholson spoke with

Anthony Bane (Bane), whom Nicholson referred to as his “partner in fuckin’

crime.” (Tr p. 347). When Bane asked him “[w]here did they get you,”

Nicholson replied, “[] 135 North where I used to work for [Floyd] [] [t]he door

was unlocked and I walked in.” (Tr. pp. 332-33). During the call, they mostly

spoke about their friends who had recently been “hemmed up.” (Tr. p. 346).

[8] On July 6, 2015, the State filed an Information, charging Nicholson with Count

I, burglary, a Level 4 felony; Count II, residential entry, a Level 6 felony; Count

III, theft, a Level 6 felony; Count IV, attempted theft, a Level 6 felony; and

with being an habitual offender. On four separate occasions prior to trial, the

State filed notices of intent to admit prior bad acts pursuant to Indiana

Evidence Rule 404(b) for purposes of showing proof of motive, intent,

preparation, plan, knowledge, identity and/or absence of mistake or accident.

On October 29, 2015, Nicholson filed a motion in limine, objecting to the

introduction of the items discovered during the inventory search of Nicholson’s

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 4 of 11 vehicle based on relevancy grounds, to Nicholson’s jail calls based on hearsay

and relevancy grounds, and to the State’s intent to use prior bad act evidence.

After a hearing, the trial court granted Nicholson’s motion in part and denied it

in part. Specifically, the trial court concluded that the State could not refer to

the tools located in Nicholson’s vehicle as burglary tools and the trial court

limited certain content in the jail phone calls to Spradlin and Bane.

[9] On November 17 through 19, 2015, the trial court conducted a jury trial. At the

close of the evidence, the jury found Nicholson guilty as charged. During the

sentencing hearing on December 21, 2015, the trial court merged Counts II-IV

into Count I and sentenced Nicholson to eight years for burglary, enhanced by

twelve years for the habitual offender adjudication.

[10] Nicholson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[11] Nicholson contends that the trial court abused its discretion in admitting certain

evidence at trial. Specifically, Nicholson argues that the trial court abused its

discretion in admitting evidence of his prior bad acts. We review a trial court’s

decision to admit or exclude evidence for an abuse of discretion. Baker v. State,

997 N.E.2d 67, 70 (Ind. Ct. App. 2013).

[12] Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs,

or acts of a defendant is not admissible to prove the character of the defendant

in order to show action in conformity therewith. “It may, however, be

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 5 of 11 admissible for other purposes, such as proof of motive, intent, preparation,

plan, knowledge, identity or absence of mistake or accident.” Evid. R. 404(b).

In assessing the admissibility of Evidence Rule 404(b) evidence, the trial court

must (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; and (2) balance the probative value of the evidence against its

prejudicial effect. Goldsberry v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005).

The well-established rationale behind Evidence Rule 404(b) is that the jury is

precluded from making the forbidden inference that the defendant had a

criminal propensity and therefore engaged in the charged conduct. Id.

I. Contents of Nicholson’s Car

[13] At trial, the State sought to introduce the items discovered in Nicholson’s car

during an inventory search, i.e., old coins, a cell phone, binoculars, a pry tool,

channel locks, old football cards, a silver spoon, an old children’s book, a ring,

and an old mug. Nicholson objected because “although [the State] refer[s] to it

as an inventory search, it wasn’t an inventory search, it was an investigative

search . . . and therefore, it requires probable cause.” (Tr. p. 207). As a

separate ground, Nicholson disputed the relevancy of the items to the burglary

cause and raised an objection—albeit very briefly—based on “bad acts

committed by” Nicholson. (Tr. p. 224).

[14] Nicholson does not dispute that he affirmatively presented a claim of contrary

intent. In fact, Nicholson alleged that he was not inside the residence to

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 6 of 11 commit a theft, rather, he was in the residence because he had heard a noise

and thought Floyd needed help. In Wickizer v. State, 626 N.E. 795, 799 (Ind.

1993), the Indiana Supreme Court held that the intent exception in Evidence

Rule 404(b) will be available when a defendant goes beyond merely denying the

charged culpability and affirmatively presents a claim of particular contrary

intent. Stated another way, “the defendant must first place intent ‘at issue’

before prior bad act evidence relevant to intent is admissible.” Johnson v. State,

722 N.E.2d 382, 384 (Ind. Ct. App. 2000).

[15] To refute Nicholson’s intent, the trial court admitted the items located during

the inventory search of his vehicle at the State’s request and over Nicholson’s

objection. The State presented a police officer’s testimony, stating that the

items discovered in Nicholson’s car are items that are “commonly stolen[.]”

(Tr. p. 214). Thus, these items are relevant to establish Nicholson’s intent at the

time of the charged offense. See Hicks, 690 N.E.2d at 221.

[16] Turning to the second prong, we have to balance the probative value of the car’s

contents against its prejudicial effect. See Goldsberry, 821 N.E.2d at 455. We

note that any potential prejudice to Nicholson was minimized by the trial

court’s jury instruction. See Johnson v. State, 722 N.E.2d 382, 385 (Ind. Ct. App.

2000). Prior to handing the cause to the jury, the trial court tendered a limiting

instruction:

Evidence has been introduced that [Nicholson] was involved in crimes other than those charged in the [I]nformation. This evidence has been received solely on the issue of [Nicholson’s]

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 7 of 11 motive, intent, preparation, plan, knowledge, and absence of mistake. This evidence should be considered by you only for that limited purpose.

(Tr. pp. 625-26). Accordingly, the trial court properly admitted the contents of

Nicholson’s vehicle.

II. Cell Phone Records

[17] Next, Nicholson disputes the trial court’s admission of his cell phone records.

At trial, Nicholson objected to their admission based on “a constitutional

protected thing.” (Tr. p. 268). In so far he now objects to their admission based

on prior bad act evidence, Nicholson’s claim is waived for our review. A

defendant may not present one ground for an objection at trial and assert a

different one on appeal. Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002).

III. Recorded Telephone Conversations

[18] During the trial, the trial court admitted recordings of Nicholson’s phone

conversations with Spradlin and Bane. With respect to the Spradlin

conversation, Nicholson incorporated the objections made in his motion in

limine, which were based on hearsay and relevancy grounds. The trial court

overruled Nicholson’s objection and played the phone conversation to the jury.

On appeal, Nicholson, in a two-sentence argument, claims that he “objects to

the relevancy of the call and maintains it is hearsay. Even if not, the prejudicial

impact by introducing the recordings outweighs the probative value.”

(Appellant’s Br. p. 21). Pursuant to Indiana Appellate Rule 46(A)(8)(a), issues

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 8 of 11 must be accompanied by cogent reasoning and “[e]ach contention must be

supported by citations to the authorities, statutes and the Appendix or parts of

the Record on appeal.” As Nicholson failed to follow Ind. Appellate R.

46(A)(8)’s guidelines in presenting his appellate argument with respect to his jail

conversation with Spradlin, his claim is waived for our review.

[19] Turning to his phone conversation with Bane, Nicholson again incorporated

the arguments raised in his motion in limine when objecting to its admission at

trial. In his motion in limine, Nicholson objected based on hearsay and

relevancy grounds. On appeal, Nicholson repeats these grounds. However,

besides treating this court to a lengthy verbatim expose of his telephone

conversation with Bane, Nicholson fails to include an argument, let alone a

cogent one. See Ind. Appellate R. 46(A)(8)(a). As such, the issue is waived.

[20] In so far as Nicholson now also argues that “the call references prior acts of the

defendant and others that go well beyond the purpose of showing motive or

intent,” the issue was not presented to the trial court and therefore cannot be

raised for the first time on appeal. (Appellant’s Br. p. 22); see Lashbrook, 762

N.E.2d at 759.

IV. Introduction of Pawn Shop Records

[21] Nicholson claims that the trial court abused its discretion by admitting pawn

shop records from January 2015 and June 2015 establishing that he pawned

certain items. Specifically, Nicholson states that he “is challenging the

relevance of the evidence, the prejudicial impact it has upon the defendant and

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 9 of 11 the application of [E]vidence [R]ule 404(b). These were acts prior to the

burglary allegation in this case.” (Appellant’s Br. p. 25). Besides including an

excerpt from the record, Nicholson does not develop an argument for his

objection.

[22] “We will not become an advocate for a party, nor will we address arguments

which are either inappropriate, too poorly developed or improperly expressed to

be understood.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003).

We find Nicholson’s claim waived for our review. See Ind. Appellate R.

46(A)(8)(a).

V. Introduction of Prior Theft Convictions

[23] Lastly, Nicholson contends that the trial court abused its discretion in admitting

two prior theft convictions in violation of Evid. R. 404(b).

[24] In the case at bar, Nicholson explicitly advised the jury of a particular contrary

intent, i.e., he entered the residence because he thought Floyd had fallen and

needed help. As such, the State “may respond by offering evidence of prior

crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s

intent at the time of the charged offense.” Wickizer, 626 N.E.2d at 799. In

response to Nicholson’s contrary intent, the State presented evidence that he

had been convicted of theft in 2010 and 2012. Because Nicholson’s prior theft

convictions were relevant to establish his intent, the trial court admitted the

convictions over Nicholson’s objection.

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 10 of 11 [25] Furthermore, turning to the second prong of Evid. R. 404(b), we note that,

similar to Nicholson’s car contents, the trial court tendered a limiting

instruction to the jury minimizing any possible prejudicial effect of Nicholson’s

prior theft convictions. See Johnson, 722 N.E.2d at 385. Therefore, we conclude

that the trial court did not abuse its discretion in admitting Nicholson’s prior

convictions.

CONCLUSION

[26] Based on the foregoing, we hold that the trial court did not abuse its discretion

in admitting certain evidence pursuant to Indiana Evidence Rule 404(b).

[27] Affirmed.

[28] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 11 of 11