James Holder v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 30 2018, 11:02 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Holder, November 30, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-863
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff Rothenberg, Judge
Trial Court Cause No.
49G02-1708-F3-32259
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018 Page 1 of 9
[1] James Holder appeals his conviction for Level 5 Felony Carrying a Handgun
Without a License,1 arguing that (1) the trial court erred when it admitted
evidence of Holder’s prior criminal conviction; and (2) the trial court erred
when it merged, rather than vacated, a lesser included offense for which it
entered a judgment of conviction. Finding no error in the admission of evidence
but error in the merger of convictions, we affirm in part and remand in part
with instructions.
Facts
[2] In August 2017, Holder and Katherine Waltz were living together. On August
29, 2017, Holder picked up Waltz at her workplace and moved to the passenger
seat so that Waltz could drive. Soon after, Waltz noticed that Holder had a gun
on his lap. He alternated between pointing the gun at her head and her
stomach. The couple’s three-year-old daughter sat in the backseat and played
on Holder’s cell phone this entire time.
[3] Holder ordered Waltz to drive to Holder’s sister’s home. Once they arrived,
Holder retrieved the cell phone from their daughter and let her play with
Holder’s nieces and nephews. Holder, still carrying the gun, then went to the
backyard. Waltz recognized someone she knew driving by and asked him to
call 911.
1
Ind. Code § 35-47-2-1(e)(2)(A).
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[4] Indianapolis Metropolitan Police Department (IMPD) Officer Danielle Lewis
was dispatched to the residence, where Waltz informed her that Holder was
armed. Soon after, Officer Ha’le Rapier arrived to help Officer Lewis. Both
officers went to the backyard with their guns drawn. They found Holder and
ordered him to get to the ground with his hands up. The officers handcuffed
Holder and patted him down but did not find a firearm. Officer Kolin Kinder
arrived at the scene and began to search for the missing firearm. He noticed a
trash can close by with its lid slightly ajar. He also noticed that Holder watched
him “intently” as he approached the trash can. Tr. Vol. III p. 108. Inside,
Officer Kinder found the firearm.
[5] Officer Matthew Minnis arrived at the scene and read Holder his Miranda2
rights. Holder informed police that he recognized the firearm because a child
had previously handed it to him, and after holding it, he had passed the gun to
someone else. Later DNA testing revealed that two individuals had touched the
gun, but the police could not determine their identities.
[6] On August 31, 2017, the State charged Holder with Count I, Level 3 felony
criminal confinement; Count II, Level 5 felony intimidation; Count III (in two
parts), Class A misdemeanor carrying a handgun without a license and Level 5
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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felony carrying a handgun without a license;3 Count IV, Level 6 felony pointing
a firearm; and Count V, Class A misdemeanor unlawful possession of a firearm
by a person previously convicted of domestic battery.
[7] A bifurcated jury trial began on February 22, 2018. During the first stage of the
trial, the State sought to introduce evidence of Holder’s 2008 conviction for
carrying a handgun without a license as well as evidence of his prior domestic
battery conviction. Holder objected, claiming that the prejudicial effect of this
evidence outweighed its probative value and that it violated Indiana Rule of
Evidence 404(b). After hearing arguments from both sides, the trial court
allowed the State to introduce evidence only of the 2008 carrying a handgun
without a license conviction because Holder had “opened the door” when he
testified that he was “scared” of guns. Id at 227.
[8] At the close of the first stage of trial, the jury found Holder guilty of part one of
Count III, and not guilty of Counts I, II, and IV. At the second stage of the
trial, the State presented evidence on part two of Count III and Count V. The
jury found Holder guilty on both counts.
[9] At the sentencing hearing on March 21, 2018, the trial court merged Holder’s
convictions for part one of Count III and Count V into part two of Count III.
The trial court sentenced Holder to four years’ incarceration with two years to
3
The State charged Holder under two parts of the same criminal statute for carrying a firearm without a
license because part two, the Level 5 felony, increases the penalty for someone who “has a prior conviction of
any offense under this section.” Holder was previously convicted under this statute in 2008.
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be served at the Department of Correction, one year to be served on in-home
detention, and one year suspended to probation. Holder now appeals.
Discussion and Decision
[10] Holder makes two arguments on appeal: (1) the trial court erred when it
admitted evidence of Holder’s prior criminal conviction; and (2) the trial court
erred when it merged, rather than vacated, two lesser included offenses for
which it entered a judgment of conviction.
[11] First, Holder argues that the trial court improperly admitted, over Holder’s
objection, evidence of his 2008 conviction for carrying a handgun without a
license in the first stage of his trial. We will reverse a trial court’s ruling on the
admission of evidence only if the decision is clearly against the logic and effect
of the facts and circumstances before it. Smith v. State, 754 N.E.2d 502, 504
(Ind. 2001).
[12] Specifically, Holder claims that the trial court’s admission of this evidence was
erroneous for two reasons. First, he argues that the introduction of a prior crime
or bad act violates Indiana Rule of Evidence 404(b). And second, pursuant to
Indiana Rule of Evidence 403, the prejudicial effect of evidence of a prior
criminal conviction, the same crime for which Holder was on trial, outweighs
its probative value.
[13] First, Indiana Rule 404(b) prohibits the introduction of evidence of a prior
crime or bad act out of fear that the evidence will be used “to prove a person’s
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character in order to show on a particular occasion the person acted in
accordance with that character.” The State argues that while evidence of
Holder’s prior criminal conviction would ordinarily be inadmissible, Holder
opened the door to this type of evidence by testifying that he was “scared of
guns.” Tr. Vol. III p. 240. A party “opens the door” to otherwise inadmissible
evidence when that party leaves the trier of fact with a false or misleading
impression of the facts stated. Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001).
In this case, Holder claims that he did not create a false or misleading
impression in the minds of the jurors because his comment about being scared
of guns was only in reference to him being scared of Officers Lewis and Rapier
directly pointing their guns at him. Appellant’s Br. p. 11. We find Holder’s
argument unavailing.
[14] The trial court specifically addressed this issue, stating that “[the jury] will be
left with your unquestioned testimony that you’re scared of guns . . . . And
when you decided to add that statement . . . ‘I’m scared of guns,’ you opened
the door to that.” Tr. Vol. III p. 226. We find no fault with the trial court’s
conclusion. While Holder did say that he was scared at the specific moment he
saw the officers pointing their guns at him, he also independently affirmed that
he was scared of guns in response to the question, “So, you’re scared of guns?”
Id. at 240. This admission could have misled the jury into thinking that, due to
this fear, Holder could not have possibly possessed a gun at any point during
the day of the incident. Moreover, the introduction of his prior criminal
conviction of possessing a gun without a license directly contradicts any of
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Holder’s misleading testimony that as a general rule, he is scared of guns.
Therefore, the admission of this evidence did not violate Indiana Rule of
Evidence 404(b).
[15] Second, Indiana Rule of Evidence 403 states that a trial court may exclude
otherwise relevant evidence if its probative value is “substantially outweighed
by the danger of unfair prejudice.” It is apparent that the trial court was
concerned about the danger of unfair prejudice by admitting evidence of the
prior criminal conviction. Id. at 226-27. However, the trial court took this
concern into consideration by requiring the State to offer its reasons for why the
evidence should be admitted; the trial court then reached a sound decision
under the circumstances. The trial court denied the admission of evidence of
Holder’s prior criminal conviction for domestic battery, demonstrating that it
was cognizant of the potential for prejudice. In this instance, we cannot say that
the trial court’s decision was clearly against the facts and the circumstances
before it.
[16] Moreover, if the trial court’s ruling on admission was erroneous, at most, it was
harmless error. The improper admission of evidence is harmless error if the
conviction is supported by substantial independent evidence of guilt satisfying
us that there is no substantial likelihood the challenged evidence contributed to
the conviction. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011).
[17] Here, there is substantial, independent evidence showing that Holder was guilty
of carrying a handgun without a license. Waltz’s testimony—corroborated in
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matching detail by Officer Kinder’s testimony—shows that throughout the
evening of the incident, Holder had a gun. Further, Holder flatly admitted that
he did not have a license to possess a gun, and Officer Kinder testified that
Holder was “staring intently” at her when she went to inspect the trash can
where the gun was found. Tr. Vol. III p. 108. Moreover, Holder provided two
inconsistent versions of what happened with him and the gun, both of which
still affirm that he possessed the gun, used it against Waltz while they were
driving in the car, and somehow disposed of it shortly thereafter. It is more than
reasonable to conclude that the jury’s conviction was supported by substantial
independent evidence of guilt and that evidence of his conviction did not
directly contribute to the jury’s decision. Therefore, the trial court’s decision to
admit evidence of Holder’s past criminal conviction was harmless error at most.
[18] Finally, Holder also argues that the trial court erred when it merged, rather than
vacated, two lesser included offenses. We review questions of double jeopardy
and merger de novo, giving no consideration to the trial court’s decision below.
Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).
[19] The trial court merged Count V and part one of Count III into part two of
Count III. The State concedes that this was improper. See Mason v. State, 532
N.E.2d 1169, 1172 (Ind. 1989) (holding that the correct procedure for a trial
court that violates double jeopardy is to “vacate the conviction for the lesser
included offense and enter a judgment of conviction and sentence only upon the
greater offense”). We agree. The trial court should have simply vacated those
convictions and entered a judgment of conviction only for part two of Count
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III, the Level 5 felony. Therefore, we remand to the trial court with instructions
to vacate the convictions on Count V and part one of Count III.
[20] The judgment of the trial court is affirmed in part and remanded in part with
instructions.
May, J., and Robb, J., concur.
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