Michael J. Bates v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 4, 2017
• Docket: 79A02-1701-CR-100
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 04 2017, 9:29 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Curtis T. Hill, Jr. Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael J. Bates, August 4, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1701-CR-100 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff Judge Trial Court Cause No. 79D01-1604-F4-16

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017 Page 1 of 5 [1] Michael J. Bates appeals his conviction for Level 4 Felony Unlawful Possession

of a Firearm by a Serious Violent Felon,1 arguing that the trial court erred by

excluding video that was recorded by a police officer’s body camera. Finding

no reversible error, we affirm.

Facts [2] Lafayette Police Detective Mark Pinkard was on duty around 6:30 a.m. on

April 20, 2016, when he stopped at a Village Pantry. While Detective Pinkard

was in line inside the store, Brianna Cannon entered the store, asked the cashier

to call 911, and reported a situation in the parking lot involving a firearm. The

detective identified himself to Cannon and asked her what was happening.

Cannon said that an individual in the parking lot had threatened her with a

firearm. Detective Pinkard instructed the store employee to call 911 and then

exited the store.

[3] The detective walked to his vehicle; on the way, he could hear yelling and

arguing near a black SUV. Detective Pinkard believed he was outnumbered.

As he had no vest and back-up had not yet arrived, he sat in his vehicle to listen

and evaluate the situation. As he listened, he confirmed Cannon’s report of the

situation and became concerned that some kind of incident was imminent.

1 Ind. Code § 35-47-4-5.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017 Page 2 of 5 Detective Pinkard exited his vehicle, showed his badge and gun, and ordered

everyone out of the black SUV.

[4] Bates, Laura Dewitt, Jordan Richards, and Kelly Matthews all exited the

vehicle. As the detective had ordered them out of the car, Richards saw Bates

slide a gun onto the vehicle’s center console. Matthews also saw Bates with the

gun; Matthews threw it into the back seat of the vehicle after Bates placed it on

the console. Eventually, other officers arrived at the scene and arrested Bates.

[5] One of the responding officers was Officer Ryan Black. As part of the

investigation, Officer Black spoke with Rhonda Smith, the manager of the

Village Pantry; that interview was recorded on Officer Black’s body camera.

Smith told Officer Black that she had seen a female repeatedly striking a person

(later identified as Bates) outside the store. When Smith observed the

altercation, she was inside looking out. Smith did not mention seeing a firearm

in Bates’s possession.

[6] On April 22, 2016, the State charged Bates with Level 4 felony serious violent

felon in possession of a firearm.2 At trial, Bates sought to introduce the video

recording of Smith’s interview. The State objected and the trial court excluded

the evidence. A jury trial took place on September 20, 2016, and that trial

ended in a mistrial. A new trial took place on November 15, 2016, at which

time Bates again sought to introduce the body camera footage and the trial

2 The State also charged Bates with two other offenses but later dismissed those charges.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017 Page 3 of 5 court again excluded it. On November 16, 2016, the jury found Bates guilty as

charged. The trial court sentenced Bates to eight years, with one year

suspended to probation. Bates now appeals.

Discussion and Decision [7] Bates’s sole argument on appeal is that the trial court erred by excluding the

video recording of Officer Black’s interview of Smith. We will reverse a trial

court’s ruling on the admissibility of evidence only if the decision is clearly

against the logic and effect of the facts and circumstances and the error affects a

party’s substantial rights. E.g., Shelton v. State, 26 N.E.3d 1038, 1042 (Ind. Ct.

App. 2015).

[8] The trial court excluded the video recording because it was hearsay evidence

that did not fall into one of the exceptions to the rule prohibiting its admission.

Ind. Evidence Rules 801-03. Bates contends that the video recording falls under

the exceptions for excited utterances, records of regularly conducted business

activity, and/or public records and reports. Evid. R. 803(2), 803(6), 803(8).

[9] Assuming solely for argument’s sake that the exclusion of this evidence was

erroneous, that error would be harmless unless it affected Bates’s substantial

rights. E.g., Wilson v. State, 770 N.E.2d 799, 802 (Ind. 2002). Here, the record

reveals that both Richards and Matthews saw Bates with the firearm inside the

SUV. Tr. Vol. II p. 73-74, 104. The fact that Smith, who was observing events

from inside the store, did not mention seeing Bates with a firearm inside the

vehicle is unsurprising and would have had no impact on the verdict. Under

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017 Page 4 of 5 these circumstances, even if the exclusion of the video recording was erroneous,

the error was harmless. We decline to reverse.

[10] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017 Page 5 of 5