MEMORANDUM DECISION Jun 03 2015, 11:03 am 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 Nancy A. McCaslin Gregory F. Zoeller McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Lavell Curry, June 3, 2015
Appellant-Defendant, Court of Appeals Case No. 20A03-1405-CR-172 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Bowers, Appellee-Plaintiff. Judge
Cause No. 20D02-0907-FC-96
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 1 of 21 [1] Kevin Lavell Curry appeals the habitual criminal offender enhancement to his
sentence. He raises four issues which we revise and restate as:
I. Whether the trial court abused its discretion when it admitted certain evidence of Curry’s prior convictions for purposes of the habitual offender enhancement;
II. Whether the State presented sufficient evidence that Curry is an habitual offender; and
III. Whether the trial court committed fundamental error when it allowed the State to add the habitual offender enhancement after the omnibus date.
[2] We affirm.
Facts and Procedural History
[3] On July 1, 2009, the State charged Curry with one count of corrupt business
influence as a class C felony and fifteen counts of forgery as class C felonies.
Curry v. State (Curry I), No. 20A03-1008-CR-454, slip op. at 4 (Ind. Ct. App.
May 31, 2011), trans. denied. The omnibus date was September 21, 2009. Id.
On January 27, 2010, the State filed an amended information, alleging that
Curry was an habitual offender. Id. at 4-5. Specifically, the State alleged that
Curry had prior felony convictions for forgery in 2007 in Indiana and for
aggravated kidnapping in 1990 in Texas. On June 24, 2010, a jury found Curry
guilty as charged and found him to be an habitual offender. Id. at 5, 9-11.
[4] In his direct appeal, Curry raised several issues including: (1) the denial of his
motion for a directed verdict; (2) the sufficiency of the evidence; (3) the belated
amendment of the charging information to include an habitual offender
enhancement; and (4) the appropriateness of his sentence. Id. at 5, 9-12. We
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 2 of 21 remanded for clarification of his sentence but affirmed in all other respects. Id.
at 2, 15-16. With respect to the amendment of the charging information, we
held that Curry “failed to establish that the amendment prejudiced him in the
preparation and presentation of his defense.” Id. at 12.
[5] In April 2012, Curry filed a petition for post-conviction relief and raised three
issues: (1) ineffective assistance of trial counsel; (2) ineffective assistance of
appellate counsel; and (3) prosecutorial misconduct. On December 19, 2013,
the post-conviction court denied Curry’s petition except with respect to his
ineffective assistance of appellate counsel argument regarding his habitual
offender enhancement and ordered a new trial regarding the habitual offender
enhancement.
[6] Curry appealed the post-conviction court’s order with regard to whether his trial
counsel was ineffective. Curry v. State (Curry II), No. 20A03-1312-PC-513, slip
op. at 2 (Ind. Ct. App. August 11, 2014), reh’g denied, trans. denied. We affirmed
the denial of his petition for post-conviction relief and noted that Curry was not
prejudiced by the belated filing of the habitual offender allegation, which
prevented him from succeeding on his claim of ineffective assistance of trial
counsel for failure to challenge the belated amendment. Id. at 10.
[7] On March 21, 2014, Curry filed a motion to exclude evidence, in which he
argued that a certified booking photograph the State sought to use to prove the
September 13, 1990 conviction for aggravated kidnapping in Texas was actually
a booking photograph from a November 19, 2001 arrest. Curry argued that this
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 3 of 21 evidence was inadmissible because it had been provided to him after the
discovery deadline had passed and that it would unfairly prejudice his ability to
present a defense, that it was not relevant under Ind. Evidence Rule 401, and
that the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice because the photograph did not pertain to the alleged
conviction the State was required to prove. The court entered an order, and as
to the certified booking photograph, stated that it would “exclude any reference
to anything other than the certified copy and the Court will not allow the
certified copy to come in unless some other independent means of connecting
the identifiers in the booking photo to the Kevin L. Curry on trial is made.”
Appellant’s Appendix at 496.
[8] On March 25, 2014, Curry’s trial on the habitual offender enhancement began.
At the trial, the court heard testimony from former Elkhart County Deputy
Prosecuting Attorney Kristine Osterday (“DPA Osterday”), who was involved
in the initial prosecution of Curry on the corrupt business influence charge
underlying the retrial on the habitual offender enhancement.
[9] The court heard argument as to State’s Exhibit 1, a certified copy of the 2007
Indiana conviction from Curry’s guilty plea to counterfeiting as a Class D
felony in the Elkhart Superior Court in cause number 22D02-0606-FC-221,
which included an entry in the chronological case summary (“CCS”) indicating
that the instant case was a probation violation under Curry’s 2007 Indiana
conviction. State’s Exhibit 1 contained an “Affidavit to Show Probable Cause”
in the 2007 Indiana conviction for “Kevin L. Curry DOB: 03-10-64,” an
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 4 of 21 “Information Charging Forgery A Class C Felony, I.C. 35-43-5-2(a)(1)(A)”
including a copy of a check with Curry’s signature, a copy of a “Motion to
Withdraw Plea of Not Guilty and Enter Pleas of Guilty, Plea Agreement, and
Disclosure” including Curry’s initials, “KC,” next to each line of the plea
agreement, an order noting that Curry “entere[ed] a plea of guilty to:
COUNTERFEITING D FELONY,” a sentencing order, and a twelve-page
CCS for the 2007 Indiana conviction that included an entry stating that Curry
had violated his probation in the 2007 Indiana conviction by committing the
instant offense. State’s Exhibit 1.
[10] Defense counsel objected to the admission of State’s Exhibit 1, arguing that
evidence of a probation violation was not relevant under Ind. Evidence Rule
401 and that “it would not withstand a balancing test under Indiana Rule[] of
Evidence 403” because State’s Exhibit 1 contained references to Curry’s
criminal history that were “unduly prejudicial and not probative, could mislead
the jury and cause confusion of the issues.” Transcript at 16. The court
overruled the objection, stating that caselaw supported the proposition that it is
“not prejudicial to include evidence of a probation violation directly related to
the habitual proceedings” and that the information in the exhibit was “relevant
and it does not appear to the court to be counterbalanced by any significant
prejudice.” Id. at 17. Defense counsel also objected to sentencing information
being included in State’s Exhibit 1. The court struck the inclusion of the exact
sentence length from the 2007 Indiana conviction. The court removed eleven
pages of the CCS from the 2007 Indiana conviction but allowed the CCS entry
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 5 of 21 showing the probation violation to remain in the exhibit, and published the
exhibit to the jury as State’s Exhibit 1A.
[11] The court heard argument as to State’s Exhibit 3,1 which contained a certified
copy of a plea agreement from an August 29, 1990 offense in Texas for
aggravated kidnapping, stamped “FELONY INFORMATION” at the top of
the page, and dated September 13, 1990, the date of conviction for the offense,
and included the length of Curry’s sentence for that offense, which was seven
years of probation, the conditions of probation for “Kevin Lavell Curry,” and a
reference that Curry violated his probation and was sentenced to five years in
the Texas Department of Criminal Justice, institutional division, on July 14,
1993, as a result of the probation violation. State’s Exhibit 3. The exhibit also
contained prints of Curry’s right thumb and right index finger, a signature for
Kevin Curry, as well as his date of birth of 3-10-64, race, and sex. The portion
of State’s Exhibit 3 containing Curry’s guilty plea agreement and conditions of
probation was stamped with a Recorder’s Memorandum, which states: “At the
time of recordation this instrument was found to be inadequate for the best
photographic recordation because of illegibility, carbon or photo copy,
discolored paper, etc. All blockouts, additions, and changes were present at the
time the instrument was filed and recorded.”2 State’s Exhibit 3. On the portion
1 Curry does not challenge the admission of State’s Exhibit 2, which is a certified booking photograph from the instant case. 2 The Recorder’s Memorandum, stamped on the second page of Curry’s plea agreement for aggravated kidnapping, contains substantially similar language.
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 6 of 21 of the exhibit dealing with the July 14, 1993 probation violation, the Recorder’s
Memorandum states: “This instrument is of poor quality and not satisfactory
for photographic recordation; and/or alterations were present at the time of
filming.” Id.
[12] Defense counsel objected to the admission of State’s Exhibit 3 on grounds that
the exhibit was “not relevant . . . prejudicial, [and] would not withstand [an]
Indiana Rules of Evidence 403 balancing test . . . .” Transcript at 17. Defense
counsel also objected to the inclusion of the sentencing information in the
exhibit. Defense counsel additionally objected that State’s Exhibit 3 was of
“poor quality” and that a recorder’s stamp on various pages of the document
indicated that the documents were “not as they were originally created” and
that the exhibit “draw[s] into questions of authenticity about a witness.” Id. at
51-52.
[13] The court overruled the objection to including the reference to a probation
violation but, although it redacted a specific reference to “the South Carolina
charges which were quite serious in nature and which could be quite highly
prejudicial” to Curry, it did not redact the general reference to the probation
violation from State’s Exhibit 3. Id. at 18. It also allowed the inclusion of the
sentencing information because the charge in the Texas case was “already fully
resolved.” Id. at 20. The court also added that the exhibit did not appear to
contain “any obvious alteration of the document and given the certification
which is also provided . . . the quality problems go to the [exhibit’s] weight
rather than admissibility.” Id. at 53. The court redacted the specific reference
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 7 of 21 to the reason Curry’s probation was revoked in the Texas case and published
the exhibit as State’s Exhibit 3A to the jury.
[14] The court next heard argument as to State’s Exhibit 4, which contained an
affidavit of the Chairman of Classification and Records for the Texas
Department of Criminal Justice – Correctional Institutions Division, stating
that the “attached information provided on inmate CURRY, KEVIN,
TDCJ/BPP# 653544, cause# 573683, are true and correct copies of the original
records now on file in my office maintained in the regular course of business
within the Classification and Records Office of the Texas Department of
Criminal Justice – Correctional Institutions Division.” State’s Exhibit 4. The
exhibit also contained a certified booking photograph of Curry, a copy of the
July 14, 1993 probation violation, and a fingerprint sheet with a signature of
Kevin Lavell Curry. Defense counsel repeated the objections it raised as to
State’s Exhibit 3 and further asserted that the State’s witness had no personal
knowledge of the content of the documents, the State lacked a foundation for
the exhibit’s admissibility, and the exhibit had the same reference to a probation
violation as in State’s Exhibit 3. As to the objection that DPA Osterday lacked
personal knowledge of the contents of State’s Exhibit 4, the court noted that
State’s Exhibit 4 was a certified copy and that it “comes in independent” of
DPA Osterday and that defense counsel “might keep in mind that you may
have an objection as to whether she has personal knowledge.” Id. at 54. The
court redacted the specific reference to the reason Curry’s probation was
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 8 of 21 revoked in the Texas case and published the exhibit as State’s Exhibit 4A to the
jury.
[15] DPA Osterday testified that she was familiar with Curry from her work as a
prosecutor and was able to provide the court with his birthdate, which is March
10, 1964. She identified Curry in the courtroom and testified that, as to the
2007 Indiana conviction and the instant case, Curry was “one in the same.” Id.
at 46. On cross-examination, DPA Osterday testified that she was not licensed
to practice law in Texas, did not request DNA comparisons between the
Indiana defendant and the Texas defendant, did not request fingerprint
comparisons, “could not recall” whether she had requested a certified booking
photograph from Texas, and was not an expert regarding handwriting samples.
Id. at 69. On redirect, DPA Osterday testified that she believed she had
obtained sufficient documentation “based upon the name matching Kevin
Lavell Curry, the date of birth, March 10th 1964, as well as the signature” to
prove Curry’s identity. Id. at 70.
[16] Defense counsel moved for a directed verdict, arguing that a name and date of
birth is not enough to adjudicate an individual as an habitual offender. Defense
counsel contended that, as to identity, the State introduced “a photograph with
regard to the Texas conviction that depicts a black male with no physical
characteristics identified” and “a fingerprint card without analysis,” which
taken together, “is insufficient as a matter of law to substantiate or support two
prior unrelated felony convictions.” Id. at 78. The court denied Curry’s
motion, finding “the State has at least met its minimum burden to get this case
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 9 of 21 to the jury,” reasoning that “we do have a name, we have the date of birth, we
have the race and gender related to the Texas conviction” as well as a signature
and photographs of Curry. Id. at 80.
[17] On March 26, 2014, the jury found that Curry was an habitual offender. On
May 12, 2014, the trial court enhanced the underlying charge of corrupt
business influence by twelve years due to Curry’s status as an habitual offender.
Discussion
I.
[18] The first issue is whether the trial court abused its discretion when it admitted
certain evidence of Curry’s prior convictions for purposes of the habitual
offender enhancement. Admission of evidence is within the sound discretion of
the trial court. Davis v. State, 907 N.E.2d 1043, 1053 (Ind. Ct. App. 2009). We
will reverse a trial court’s decision to admit evidence only if there is an abuse of
discretion. Id. An abuse of discretion occurs if the trial court’s decision is
against the logic and effect of the facts and circumstances before the court. Id.
[19] Curry contends that admitting evidence of probation violations, which were
present in State’s Exhibits 1A, 3A, and 4A, were not relevant because they did
not tend to show that he had been convicted of two prior unrelated felonies. He
argues that evidence of probation revocations in State’s Exhibits 1A and 3A
was prejudicial to him because such evidence could have misled the jury, was
not probative, and that there was no statement or instruction to downplay the
significance or disregard the information. He also contends that including the
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 10 of 21 seven-year sentence he received in the Texas case was prejudicial because
State’s Exhibit 3A clearly designated that the offense was a felony. Curry
asserts that State’s Exhibit 3A was not a properly authenticated document and
argues that the State’s witness, DPA Osterday, lacked personal knowledge of
the extent to which alterations may have been made to the information in
State’s Exhibit 3A and whether the information in the exhibit related to the
Curry named in the instant case. Finally, Curry argues that DPA Osterday did
not provide testimony that could link the Kevin Lavell Curry standing trial for
the habitual criminal offender enhancement with the photograph or fingerprints
in State’s Exhibit 4A.
[20] The State asserts that the Indiana Supreme Court has allowed the admission of
prior convictions that contain revocations of probation. The State also notes
that the court removed eleven pages of the CCS in State’s Exhibit 1A but
allowed the entry noting Curry violated his probation in that case by
committing the instant offense, and notes that the trial court also redacted the
revocations of probation in State’s Exhibits 3A and 4A, to limit any prejudice
Curry might face by admitting those documents into evidence. As to the
authenticity of State’s Exhibit 3A, the State maintains that the documents
contained in the exhibit are copies of properly certified records that are
admissible as such and that no evidence was presented that the documents were
anything other than accurate and certified copies of official records. The State
also contends that State’s Exhibit 4A, which was properly certified, contained a
booking photograph and signed fingerprint card which supported the jury’s
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 11 of 21 determination that Curry was the same person convicted in Texas and in
Indiana.
[21] Ind. Evidence Rule 401 provides that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be without the
evidence; and the fact is of consequence in determining the action.” “Relevant
evidence is admissible unless any of the following provides otherwise: the
United States Constitution; the Indiana constitution; a statute not in conflict
with these rules; these rules; or other rules applicable in the courts of this state.
Irrelevant evidence is not admissible.” Ind. Evidence Rule 402. “The court
may exclude relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative
evidence.” Ind. Evidence Rule 403. Ind. Evidence Rule 901(a) provides that
“[t]o satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Where the document at issue
is a certified copy of a public record, the document is self-authenticating and no
extrinsic evidence is necessary for its admission. Ind. Evidence Rule 902.
[22] In Maisonet v. State, defendant Parnel Maisonet was convicted by a jury of theft,
a class D felony, and of being an habitual offender. 448 N.E.2d 1052, 1053
(Ind. 1983). Maisonet argued that the trial court erred by admitting into
evidence certain exhibits offered by the State during the habitual offender
portion of his trial. Id. He alleged that three exhibits contained unnecessary
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 12 of 21 information which prejudiced the jury. Id. at 1055. One of the exhibits was the
charging information and guilty plea to a charge of assault and battery with
intent to kill, another exhibit contained admission documents from the Indiana
Department of Correction for the assault and battery charge, and a third exhibit
was the guilty plea to a second offense of entering with intent to commit a
felony. Id. The Indiana Supreme court noted that the “documents were all
sufficiently connected to defendant to establish their relevancy” and that
“relevant information connected with [two prior unrelated felony convictions]
is not generally considered to be prejudicial to defendant.” Id. at 1055-1056.
See also Allen v. State, 439 N.E.2d 615, 619 (Ind. 1982) (finding that documents
relating to the defendant’s prior Ohio convictions that referenced two separate
aggravated assault charges and a probation violation were probative and
relevant to the State’s proof of the habitual offender charges, and noting that the
inclusion of “a probation violation on a document was not prejudicial to a
defendant during the habitual offender phase of his trial”) (citing Taylor v. State,
420 N.E.2d 1231, 1234 (Ind. 1981)); Short v. State, 443 N.E.2d 298, 305 (Ind.
1982) (observing that “evidence of the revocation of probation imposed after
conviction for a felony, that felony being one of those supporting the habitual
offender allegation, is admissible”).
[23] We note that State’s Exhibits 1A, 3A, and 4A were relevant because they
revealed that Curry had been convicted of two prior felonies, which the State
was required to show in order to establish that Curry was an habitual offender,
and they identified him as the defendant in each of the two prior convictions.
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 13 of 21 As to the prejudicial effect of the reference to a probation violation in State’s
Exhibits 1A, 3A, and 4A, the trial court limited the reference to Curry’s
probation violation to a one-line entry in the CCS of the 2007 Indiana
conviction before it was published to the jury as State’s Exhibit 1A, and
redacted the specific reason Curry violated his probation in the Texas case to a
one-line entry in each exhibit before those exhibits were published to the jury as
State’s Exhibits 3A and 4A. As to Curry’s arguments regarding the authenticity
of State’s Exhibit 3A and the lack of foundation for State’s Exhibit 4A, we note
that State’s Exhibits 3A and 4A were properly certified records from Curry’s
1990 felony conviction for aggravated kidnapping. We do not find that the
prejudicial effect of the references to probation violations outweighed the
probative value of State’s Exhibits 1A, 3A, and 4A, all of which were certified,
and referenced Curry’s two prior unrelated felony convictions as well as
provided a basis for the jury to establish Curry’s identity. We cannot say that
the trial court abused its discretion when it admitted State’s Exhibit 1A, 3A,
and 4A into evidence.
II.
[24] The next issue is whether the evidence is sufficient to sustain the court’s finding
that Curry is an habitual offender. Upon a challenge to an habitual offender
finding this court does not reweigh the evidence but rather looks at the evidence
in the light most favorable to the verdict. White v. State, 963 N.E.2d 511, 518
(Ind. 2012) (citing Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999)). If an
appellate court deems the evidence insufficient, then an habitual offender
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 14 of 21 classification must be vacated. Id. In proving an habitual offender
classification, “the State must introduce into evidence proper certified and
authenticated records of the defendant’s prior felony convictions in order to
prove beyond a reasonable doubt the existence of those prior
convictions.” Dexter v. State, 959 N.E.2d 235, 238 (Ind. 2012). “A person is a
habitual offender if the jury . . . finds that the state has proved beyond a
reasonable doubt that the person had accumulated two (2) prior unrelated
felony convictions.” Ind. Code § 35-50-2-8(g) (Supp. 2009).3
[25] Curry argues that the State did not present sufficient evidence to link the
information from the Texas documents, State’s Exhibits 3A and 4A, to the
individual, who was charged as a habitual criminal offender in Indiana. He
further contends that the State’s witness, DPA Osterday, was not involved in
the Texas case, not licensed to practice law in Texas, and was unfamiliar with
the Texas case and records submitted by the State of Texas to link him to that
case. Finally, Curry asserts that the State failed to present evidence of
identifying physical characteristics and that the record does not show that the
State requested DNA, fingerprint comparisons, or handwriting analysis to link
him with the individual involved in the Texas offense.
[26] The State asserts that it provided sufficient circumstantial evidence of Curry’s
identity through the exhibits that it presented as evidence demonstrating that
3 Subsequently amended by Pub. L. No. 158-2013, § 661 (eff. July 1, 2014); Pub. L. No. 168-2014, § 118 (eff. July 1, 2014).
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 15 of 21 Curry had two prior felony convictions, and that DPA Osterday identified
Curry in court as the defendant in the 2007 Indiana conviction. Further, the
State maintains that booking photographs from both the Indiana case and the
Texas case permitted the jury to compare Curry’s appearance in the courtroom
with the individual found in the photographs and that, although no expert
handwriting analysis was presented, the State presented evidence, including his
signature and initials from the Texas and Indiana convictions, that allowed the
jury to conclude the same person signed the Texas and Indiana documents.
The State contends that evidence, including his name, birth date, physical
identifiers, signatures, and photographs on the exhibits provided sufficient
evidence for the jury’s determination that Curry is the same person identified in
the Texas and Indiana documents.
[27] “If the evidence yields logical and reasonable inferences from which the finder
of fact may determine beyond a reasonable doubt that it was a defendant who
was convicted of the prior felony, then a sufficient connection has been
shown.” Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002) (citing Pointer v.
State, 499 N.E.2d 1087, 1089 (Ind. 1986)). “Certified copies of judgments or
commitments containing a defendant’s name or a similar name may be
introduced to prove the commission of prior felonies.” Hernandez v. State, 716
N.E.2d 948, 953 (Ind. 1999), reh’g denied. However, there must be other
supporting evidence to identify the defendant as being the same person named
in the documents. Coker v. State, 455 N.E.2d 319, 322 (Ind. 1983). Identity may
be proven by circumstantial evidence. Id.
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 16 of 21 [28] As previously noted in Part I, the State admitted certified copies of Curry’s two
prior felony convictions, the 2007 Indiana conviction and the 1990 Texas
conviction for aggravated kidnapping. As to identity, the State presented
evidence that contained Curry’s name, date of birth, fingerprints, and certified
booking photographs, which enabled the jury to determine Curry’s identity as
the same person involved in the instant case, the 2007 Indiana case, and the
Texas case. DPA Osterday also identified Curry in court, testified to his
conviction in the 2007 Indiana case, and had requested certain records
stemming from his 1990 Texas conviction in his first trial on the habitual
offender charge. The photographs also provided the jury with a basis to
compare the more recent photograph of Curry in State’s Exhibit 2, which
related to his conviction in the instant case, and notes his sex, race, hair color,
eye color, height, weight, date of birth, and age with the booking photograph in
State’s Exhibit 4A from Kevin Lavell Curry’s 1990 Texas conviction, and the
jury could observe Curry as he appeared in the courtroom. Moreover, the
records from the 2007 Indiana conviction and the 1990 Texas conviction
include both Curry’s full name, Kevin Lavell Curry, a date of birth of 3-10-64,
as well as Curry’s race, sex, and signature, which provided the jury with
circumstantial evidence of Curry’s identity. We conclude the State presented
evidence of probative value from which the jury could have found Curry to be
an habitual offender beyond a reasonable doubt. See Heyen v. State, 936 N.E.2d
294, 302-303 (Ind. Ct. App. 2010) (finding that if the evidence yields logical and
reasonable inferences from which the finder of fact may determine beyond a
reasonable doubt that it was the defendant who was convicted of the prior Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 17 of 21 felony, then a sufficient connection has been shown, and affirming the
defendant’s status as an habitual offender), trans. denied.4
III.
[29] The next issue is whether the trial court committed fundamental error when it
allowed the State to add the habitual offender enhancement after the omnibus
date. Curry asserts that the State did not timely file the habitual criminal
offender enhancement, and contends that the record does not reveal that the
prosecutor argued there was good cause for filing the enhancement after the
statutory deadline, which, he argues, was fundamental error.
[30] The State observes that Curry has previously unsuccessfully litigated this claim
and asserts that it is barred by the law of the case doctrine. In support, the State
notes that Curry first raised this claim in his direct appeal, where this court held
that Curry was unable show he was prejudiced by the amendment to add the
habitual offender allegation. The State further notes that Curry advanced a
similar claim in his post-conviction appeal, and was again unable to show
prejudice from the failure to object to the late filed amendment. Finally, the
State contends that the relevant facts have not changed since the issue was
4 Curry also argues that the trial court abused its discretion in denying his motion for directed verdict. Because we find that the evidence is sufficient to sustain Curry’s status as an habitual offender, we do not address his argument on this issue. See Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App. 2004) (explaining that “if the evidence is sufficient to support a conviction on appeal, then the trial court’s denial of a Motion for a Directed Verdict cannot be in error”).
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 18 of 21 resolved on direct appeal and that Curry cannot show that he was prejudiced by
the late filing of the habitual offender allegation.
[31] The fundamental error exception is “extremely narrow, and applies only when
the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant
fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).
The error claimed must either “make a fair trial impossible” or constitute
“clearly blatant violations of basic and elementary principles of due
process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied. This
exception is available only in “egregious circumstances.” Brown v. State, 799
N.E.2d 1064, 1068 (Ind. 2003).
[32] “The law of the case doctrine mandates that an appellate court’s determination
of a legal issue binds the trial court and ordinarily restricts the court on appeal
in any subsequent appeal involving the same case and relevantly similar facts.”
Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003). The law of the case doctrine
is “a discretionary tool by which appellate courts decline to revisit legal issues
already determined on appeal in the same case and on substantially the same
facts.” Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000), reh’g denied.
[33] Curry argued in his first direct appeal that the trial court erred when it allowed
the State to amend the charging information to include the habitual criminal
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 19 of 21 offender enhancement after the period provided by statute.5 This court held
that “Curry failed to establish that the amendment prejudiced him in the
preparation and presentation of his defense.” Curry I, slip op. at 12. He also
raised a similar claim regarding the effectiveness of his trial counsel’s failure to
object to the late filing of the habitual offender enhancement in his post-
conviction appeal, and this court observed that “[g]iven the holding on direct
appeal of no prejudice from the belated amendment, Curry cannot show that he
was prejudiced by his trial counsel’s failure to challenge the belated
amendment.” Curry II, slip. op. at 10. The Indiana Supreme Court has
observed that “fundamental error requires a showing of at least as much
prejudice to the defendant as a claim of ineffective assistance of counsel,” and
so “finding that [a d]efendant was not denied the effective assistance of counsel
also establishes that the alleged error was not so prejudicial as to constitute
fundamental error.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), reh’g
denied, cert. denied, 135 S. Ct. 970 (2015). In his direct appeal and in his post-
conviction appeal, Curry had not demonstrated that he was prejudiced by the
decision to allow the State to amend the charging information after the
statutory period, and even assuming the law of the case does not bar Curry
5 At the time of Curry’s first trial, Ind. Code § 35-34-1-5(e) provided:
“[a]n amendment of an indictment or information to include a habitual offender charge . . . must be made not later than ten (10) days after the omnibus date. However, upon a showing of good cause, the court may permit the filing of a habitual offender charge at any time before the commencement of the trial.” (Subsequently amended by Pub L. No. 24-2013, § 1 (eff. July 1, 2013); Pub. L. No. 158-2013, § 389 (eff. July 1, 2014)).
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 20 of 21 from litigating this claim, we cannot say that he has demonstrated fundamental
error.
Conclusion
[34] For the foregoing reasons, we affirm Curry’s adjudication and sentence as an
habitual offender.
[35] Affirmed.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1405-CR-172 | June 3, 2015 Page 21 of 21