MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 30 2016, 9:11 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 Ana M. Quirk Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
W.B., III, September 30, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1602-JV-478 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Kimberly S. Appellee-Plaintiff. Dowling, Judge The Honorable Brian Pierce, Magistrate The Honorable Amanda Yonally, Magistrate
Trial Court Cause No. 18C02-1507-JD-136
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 1 of 8 Barnes, Judge.
Case Summary [1] W.B. appeals the trial court’s adjudication that he is a delinquent child for
having committed Level 4 felony burglary and Level 5 felony dangerous
possession of a firearm. We affirm in part, reverse in part, and remand.
Issues [2] The issues before us are:
I. whether the trial court properly admitted evidence regarding recovery of the firearm W.B. allegedly stole and possessed; and
II. whether there is sufficient evidence to support the trial court’s delinquency adjudication for Level 5 felony dangerous possession of a firearm.
Facts [3] On June 19, 2015, the Anderson family was on vacation in Florida when their
Muncie home was broken into and an AR-15 assault rifle belonging to Chad
Anderson was stolen from underneath his bed. Two weeks before the burglary,
Chad’s daughter, Lindsey, had shown the rifle to Nehemiah Nash, her
boyfriend. Nash was aware that the Andersons were on vacation and
developed a plan with his cousin, Jon Kerr, to break into their home and steal
the AR-15. Nash invited sixteen-year-old W.B. to participate in the crime, and
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 2 of 8 he agreed to do so. After stealing the AR-15, Nash, Kerr, and W.B. sold it to
Christian Orebaugh for $1000. The parties evenly split the proceeds of the sale.
[4] Nash was unaware that there was a security camera at the back of the home
where they broke into it. Lindsey viewed the footage and identified Nash, Kerr,
and W.B. as the burglars, and specifically noted that W.B. was carrying the rifle
at one point. W.B. also showed the AR-15 to another friend after the burglary
and before it was sold. Police later discovered the rifle in Orebaugh’s home
while executing a search warrant related to Orebaugh’s murder.
[5] The State filed a petition alleging that W.B. was a delinquent child for having
committed acts that would be Level 4 felony burglary, Level 5 dangerous
possession of a firearm, and Class A misdemeanor theft. At the fact-finding
hearing, W.B. objected to a police officer’s testimony regarding how the AR-15
was recovered, which the trial court overruled. After taking the matter under
advisement, the trial court found that W.B. had committed what would be
Level 4 felony burglary and Level 5 felony dangerous possession of a firearm
and adjudicated him to be a delinquent child on those counts. W.B. now
appeals.
Analysis I. Admission of Evidence
[6] We first address W.B.’s claim that the trial court should have sustained his
objection to testimony regarding how and where police recovered the AR-15.
We review a trial court’s ruling on the admissibility and relevancy of evidence
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 3 of 8 for an abuse of discretion. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016).
An abuse of discretion occurs if a decision is “‘clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
[7] W.B. asserts that testimony describing recovery of the rifle was inadmissible
under Indiana Evidence Rule 403, which provides that trial courts “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.” Because all relevant evidence tends to be inherently prejudicial, the
proper inquiry under Evidence Rule 403 requires balancing the probative value
of proffered evidence against the likely unfair prejudicial impact of that
evidence. Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2015), trans. denied.
“When determining the likely unfair prejudicial impact, courts will look for the
dangers that the jury will substantially overestimate the value of the evidence or
that the evidence will arouse or inflame the passions or sympathies of the jury.”
Id.
[8] Here, there was no jury. “‘We generally presume that in a proceeding tried to
the bench a court renders its decisions solely on the basis of relevant and
probative evidence.’” Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011) (quoting
Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990)). This is known as the
“judicial-temperance presumption.” Id. If a defendant on appeal from a bench
trial challenges the admissibility of evidence and it is determined that the
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 4 of 8 evidence in fact was inadmissible, the defendant must overcome this
presumption before we will reverse a judgment. Id. at 29. One way in which
the presumption may be overcome is if the trial court erroneously admitted the
evidence over a “specific” objection. Id. If the defendant does not overcome
the presumption, we presume the trial court disregarded the evidence and will
find the error harmless. Id. If the defendant does overcome the presumption,
then we must engage in ordinary harmless-error analysis to determine whether
reversal is warranted. Id.
[9] On appeal, W.B. takes particular issue with any reference to the fact that
Orebaugh had been murdered sometime after he purchased the AR-15 and
claims this evidence was introduced solely to suggest that W.B. was somehow
involved in Orebaugh’s death. However, W.B.’s objection to the trial court was
not that specific. In fact, W.B. did not immediately object when a police officer
testified that he went to Orebaugh’s house as part of an investigation into
Orebaugh’s homicide. W.B. only objected when the officer was asked to
describe the search; the full objection was, “That too [sic] (unintelligible), with
respect to why this is relevant to the burglary, possession of a handgun, theft
charges on June 19th of 2015.” Tr. p. 101. There was no suggestion in this
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 30 2016, 9:11 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 Ana M. Quirk Gregory F. Zoeller Muncie, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
W.B., III, September 30, 2016 Appellant-Defendant, Court of Appeals Case No. 18A05-1602-JV-478 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Kimberly S. Appellee-Plaintiff. Dowling, Judge The Honorable Brian Pierce, Magistrate The Honorable Amanda Yonally, Magistrate
Trial Court Cause No. 18C02-1507-JD-136
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 1 of 8 Barnes, Judge.
Case Summary [1] W.B. appeals the trial court’s adjudication that he is a delinquent child for
having committed Level 4 felony burglary and Level 5 felony dangerous
possession of a firearm. We affirm in part, reverse in part, and remand.
Issues [2] The issues before us are:
I. whether the trial court properly admitted evidence regarding recovery of the firearm W.B. allegedly stole and possessed; and
II. whether there is sufficient evidence to support the trial court’s delinquency adjudication for Level 5 felony dangerous possession of a firearm.
Facts [3] On June 19, 2015, the Anderson family was on vacation in Florida when their
Muncie home was broken into and an AR-15 assault rifle belonging to Chad
Anderson was stolen from underneath his bed. Two weeks before the burglary,
Chad’s daughter, Lindsey, had shown the rifle to Nehemiah Nash, her
boyfriend. Nash was aware that the Andersons were on vacation and
developed a plan with his cousin, Jon Kerr, to break into their home and steal
the AR-15. Nash invited sixteen-year-old W.B. to participate in the crime, and
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 2 of 8 he agreed to do so. After stealing the AR-15, Nash, Kerr, and W.B. sold it to
Christian Orebaugh for $1000. The parties evenly split the proceeds of the sale.
[4] Nash was unaware that there was a security camera at the back of the home
where they broke into it. Lindsey viewed the footage and identified Nash, Kerr,
and W.B. as the burglars, and specifically noted that W.B. was carrying the rifle
at one point. W.B. also showed the AR-15 to another friend after the burglary
and before it was sold. Police later discovered the rifle in Orebaugh’s home
while executing a search warrant related to Orebaugh’s murder.
[5] The State filed a petition alleging that W.B. was a delinquent child for having
committed acts that would be Level 4 felony burglary, Level 5 dangerous
possession of a firearm, and Class A misdemeanor theft. At the fact-finding
hearing, W.B. objected to a police officer’s testimony regarding how the AR-15
was recovered, which the trial court overruled. After taking the matter under
advisement, the trial court found that W.B. had committed what would be
Level 4 felony burglary and Level 5 felony dangerous possession of a firearm
and adjudicated him to be a delinquent child on those counts. W.B. now
appeals.
Analysis I. Admission of Evidence
[6] We first address W.B.’s claim that the trial court should have sustained his
objection to testimony regarding how and where police recovered the AR-15.
We review a trial court’s ruling on the admissibility and relevancy of evidence
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 3 of 8 for an abuse of discretion. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016).
An abuse of discretion occurs if a decision is “‘clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).
[7] W.B. asserts that testimony describing recovery of the rifle was inadmissible
under Indiana Evidence Rule 403, which provides that trial courts “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.” Because all relevant evidence tends to be inherently prejudicial, the
proper inquiry under Evidence Rule 403 requires balancing the probative value
of proffered evidence against the likely unfair prejudicial impact of that
evidence. Fuentes v. State, 10 N.E.3d 68, 73 (Ind. Ct. App. 2015), trans. denied.
“When determining the likely unfair prejudicial impact, courts will look for the
dangers that the jury will substantially overestimate the value of the evidence or
that the evidence will arouse or inflame the passions or sympathies of the jury.”
Id.
[8] Here, there was no jury. “‘We generally presume that in a proceeding tried to
the bench a court renders its decisions solely on the basis of relevant and
probative evidence.’” Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011) (quoting
Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990)). This is known as the
“judicial-temperance presumption.” Id. If a defendant on appeal from a bench
trial challenges the admissibility of evidence and it is determined that the
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 4 of 8 evidence in fact was inadmissible, the defendant must overcome this
presumption before we will reverse a judgment. Id. at 29. One way in which
the presumption may be overcome is if the trial court erroneously admitted the
evidence over a “specific” objection. Id. If the defendant does not overcome
the presumption, we presume the trial court disregarded the evidence and will
find the error harmless. Id. If the defendant does overcome the presumption,
then we must engage in ordinary harmless-error analysis to determine whether
reversal is warranted. Id.
[9] On appeal, W.B. takes particular issue with any reference to the fact that
Orebaugh had been murdered sometime after he purchased the AR-15 and
claims this evidence was introduced solely to suggest that W.B. was somehow
involved in Orebaugh’s death. However, W.B.’s objection to the trial court was
not that specific. In fact, W.B. did not immediately object when a police officer
testified that he went to Orebaugh’s house as part of an investigation into
Orebaugh’s homicide. W.B. only objected when the officer was asked to
describe the search; the full objection was, “That too [sic] (unintelligible), with
respect to why this is relevant to the burglary, possession of a handgun, theft
charges on June 19th of 2015.” Tr. p. 101. There was no suggestion in this
objection that Orebaugh’s murder was too inflammatory to mention. “[A]n
objection to one question does not serve as an objection to another distinct
question.” Konopasek, 946 N.E.2d at 27.
[10] Clearly, the State was entitled to present evidence that officers found the AR-15
at Orebaugh’s house, which corroborated Nash’s testimony that he, W.B., and
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 5 of 8 Kerr sold the gun to Orebaugh. On appeal, W.B. makes no argument that this
evidence was irrelevant. Even if we were to assume without deciding that the
State could have introduced this evidence regarding recovery of the AR-15 at
Orebaugh’s house without mentioning the fact of his murder, W.B. did not
make a specific objection to that effect to the trial court. 1 As such, we presume
the trial court ignored that evidence, and any error in its admission is harmless.
See id. at 29.
II. Sufficiency of the Evidence
[11] W.B. also contends there is insufficient evidence to support the finding that he
committed Level 5 felony dangerous possession of a firearm. Intentional,
knowing, or reckless possession of a firearm by a child for any purpose, subject
to a few exceptions, constitutes Class A misdemeanor dangerous possession of
a firearm. Ind. Code § 35-47-10-5(a). However, the offense is a Level 5 felony
if the child has a prior conviction or delinquency adjudication for dangerous
possession of a firearm. Id.
[12] The State concedes no evidence was presented at the fact-finding hearing that
W.B. has a prior conviction or delinquency adjudication for dangerous
possession of a firearm.2 Thus, the finding that W.B. committed Level 5 felony
1 We also note that there was no evidence or testimony suggesting that W.B. was in any way responsible for Orebaugh’s death. 2 At W.B.’s subsequent dispositional hearing, the trial court stated that it had listened to a recording of a 2014 hearing involving W.B. held by another judge in which he was found to have committed dangerous possession of a firearm. The State makes no argument that it was proper for the trial court to effectively take judicial notice of a prior delinquency adjudication in this fashion. Cf. Horton v. State, 51 N.E.3d 1154, 1160-
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 6 of 8 dangerous possession of a firearm is erroneous, and it must be reduced to a
Class A misdemeanor. As the State notes, unlike with general insufficiency of
the evidence claims, double jeopardy protections do not preclude the State from
re-prosecuting a habitual offender enhancement or elevation of a crime from
one class to another based on a prior conviction when there is an appellate
holding of insufficient evidence to support the enhancement or elevation. See
Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind. 2005) (holding State could retry
defendant for elevated Class B felony operating while intoxicated charge based
on prior conviction), cert. denied.
Conclusion [13] The trial court did not commit reversible error in allowing testimony that the
AR-15 stolen from the Anderson residence was found in Orebaugh’s residence
during an investigation into his murder. We affirm the finding that W.B.
committed Level 4 felony burglary. However, there is insufficient evidence to
sustain the finding that W.B. committed Level 5 felony dangerous possession of
a firearm. We reverse that finding and direct that it be reduced to a Class A
misdemeanor and remand for further proceedings consistent with this opinion.
[14] Affirmed in part, reversed in part, and remanded.
61 (Ind. 2016) (holding trial court properly took judicial notice of defendant’s prior conviction for domestic battery in order to elevate current domestic battery charge, which was based on documentary evidence of prior conviction).
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 7 of 8 Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A05-1602-JV-478| September 30, 2016 Page 8 of 8