Michael J. Bates v. State of Indiana (mem. dec.) ( 2017 )


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  • 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
    

Document Info

Docket Number: 79A02-1701-CR-100

Filed Date: 8/4/2017

Precedential Status: Precedential

Modified Date: 8/4/2017