Kevin L. Nicholson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 28 2016, 8:20 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian R. Chastain Gregory F. Zoeller
Dillman Chastain & Byrd, LLC Attorney General of Indiana
Corydon, Indiana Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin L. Nicholson, September 28, 2016
Appellant-Defendant, Court of Appeals Case No.
88A05-1601-CR-116
v. Appeal from the Washington
Superior Court
State of Indiana, The Honorable Frank Newkirk,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
88D01-1507-F4-373
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 1 of 11
STATEMENT OF THE CASE
[1] Appellant-Defendant, Kevin L. Nicholson (Nicholson), appeals his conviction
for burglary, a Level 4 felony, Ind. Code § 35-43-2-1, and his adjudication as an
habitual offender.
[2] We affirm.
ISSUE
[3] Nicholson raises one issue on appeal, which we restate as: Whether the trial
court abused its discretion by admitting evidence of prior bad acts.
FACTS AND PROCEDURAL HISTORY
[4] On July 6, 2015, sisters Sandra Clark (Clark) and Marilyn Brown (Brown)
visited their parents’ home on State Road, in Salem, Indiana. The parents,
Floyd (Floyd) and Francis Fletcher, reside in a nearby assisted living home and
no longer live in the residence. Clark and Brown continue to maintain the
house. When they arrived at the residence at approximately 3:30 p.m., they
noticed a blue Ford Taurus in the driveway. After walking around the back of
the house, they saw that the door to the kitchen was open with a man standing
inside. Clark asked him what he was doing inside and he gave them his name
as Nicholson. Nicholson explained that he used to work for Floyd and “that he
had come into the house because he thought he heard something in the house
and Floyd might be down on the floor and he just needed to check on him.”
(Transcript p. 114). Nicholson told the sisters that he had a key to the house,
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 2 of 11
but when Clark demanded the key, Nicholson changed his response and
assured her that he did not have a key. Clark told Nicholson to leave the house.
[5] Brown and Nicholson walked to the porch, while Clark “headed for the front
bedroom.” (Tr. p. 114). Checking the nightstands in the bedroom, Clark
noticed that several containers with coins were not in the nightstand where she
and her sister had left them previously. Outside, Nicholson told Brown that
“he needed copies of appraisals from Floyd that he had helped work on or he’d
be in trouble.” (Tr. p. 181). When Clark joined them again, she informed
Brown that “things had either been moved or were missing.” (Tr. p. 181).
While Brown went inside to check, Nicholson invited Clark to look in his car.
Checking Nicholson’s car, Clark and Brown did not see the missing containers.
They did find tools in the trunk of the car and Nicholson explained that “he
was in construction.” (Tr. p. 119). Clark informed Nicholson that she was
going to call the police. However, Nicholson “couldn’t wait for the police”
because “he would lose his job at White Castle in Orleans and he had to go.”
(Tr. p. 119). He wrote down his phone number and gave it to Brown.
[6] An officer arrived and searched the house. When Clark and Brown returned to
the bedroom, they found the missing coin jars inside a pillow case in the
bedroom’s closet. Another officer located Nicholson’s car in Orange County.
After initiating a traffic stop, Nicholson first told the officer that “he went inside
the residence because he was afraid [Floyd] was down,” but “[a] few minutes
later he said he went inside the residence to look for some drawings or plans or
something where he used to work for [Floyd].” (Tr. p. 296). Nicholson
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 3 of 11
informed the officer that he was on his way “to Orleans to talk to a guy about a
concrete job and [that] he was unemployed at the time.” (Tr. p. 196). The
officer arrested Nicholson. An inventory search of Nicholson’s car revealed old
coins, old football cards, a silver spoon, an old children’s book, rings, an old
mug, a cell phone, binoculars, channel locks, a file tool, and a pry bar.
[7] On July 9, 2015, Nicholson called his mother, Jesse Spradlin (Spradlin), from
jail. When Spradlin asked Nicholson “what did you break in that house for?”,
Nicholson responded, “I was just hungry and needed a place to stay.” (Tr. p.
318). In another phone call made on July 9, 2015, Nicholson spoke with
Anthony Bane (Bane), whom Nicholson referred to as his “partner in fuckin’
crime.” (Tr p. 347). When Bane asked him “[w]here did they get you,”
Nicholson replied, “[] 135 North where I used to work for [Floyd] [] [t]he door
was unlocked and I walked in.” (Tr. pp. 332-33). During the call, they mostly
spoke about their friends who had recently been “hemmed up.” (Tr. p. 346).
[8] On July 6, 2015, the State filed an Information, charging Nicholson with Count
I, burglary, a Level 4 felony; Count II, residential entry, a Level 6 felony; Count
III, theft, a Level 6 felony; Count IV, attempted theft, a Level 6 felony; and
with being an habitual offender. On four separate occasions prior to trial, the
State filed notices of intent to admit prior bad acts pursuant to Indiana
Evidence Rule 404(b) for purposes of showing proof of motive, intent,
preparation, plan, knowledge, identity and/or absence of mistake or accident.
On October 29, 2015, Nicholson filed a motion in limine, objecting to the
introduction of the items discovered during the inventory search of Nicholson’s
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 4 of 11
vehicle based on relevancy grounds, to Nicholson’s jail calls based on hearsay
and relevancy grounds, and to the State’s intent to use prior bad act evidence.
After a hearing, the trial court granted Nicholson’s motion in part and denied it
in part. Specifically, the trial court concluded that the State could not refer to
the tools located in Nicholson’s vehicle as burglary tools and the trial court
limited certain content in the jail phone calls to Spradlin and Bane.
[9] On November 17 through 19, 2015, the trial court conducted a jury trial. At the
close of the evidence, the jury found Nicholson guilty as charged. During the
sentencing hearing on December 21, 2015, the trial court merged Counts II-IV
into Count I and sentenced Nicholson to eight years for burglary, enhanced by
twelve years for the habitual offender adjudication.
[10] Nicholson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Nicholson contends that the trial court abused its discretion in admitting certain
evidence at trial. Specifically, Nicholson argues that the trial court abused its
discretion in admitting evidence of his prior bad acts. We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion. Baker v. State,
997 N.E.2d 67, 70 (Ind. Ct. App. 2013).
[12] Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs,
or acts of a defendant is not admissible to prove the character of the defendant
in order to show action in conformity therewith. “It may, however, be
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 5 of 11
admissible for other purposes, such as proof of motive, intent, preparation,
plan, knowledge, identity or absence of mistake or accident.” Evid. R. 404(b).
In assessing the admissibility of Evidence Rule 404(b) evidence, the trial court
must (1) determine whether the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity to commit the
charged act; and (2) balance the probative value of the evidence against its
prejudicial effect. Goldsberry v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005).
The well-established rationale behind Evidence Rule 404(b) is that the jury is
precluded from making the forbidden inference that the defendant had a
criminal propensity and therefore engaged in the charged conduct. Id.
I. Contents of Nicholson’s Car
[13] At trial, the State sought to introduce the items discovered in Nicholson’s car
during an inventory search, i.e., old coins, a cell phone, binoculars, a pry tool,
channel locks, old football cards, a silver spoon, an old children’s book, a ring,
and an old mug. Nicholson objected because “although [the State] refer[s] to it
as an inventory search, it wasn’t an inventory search, it was an investigative
search . . . and therefore, it requires probable cause.” (Tr. p. 207). As a
separate ground, Nicholson disputed the relevancy of the items to the burglary
cause and raised an objection—albeit very briefly—based on “bad acts
committed by” Nicholson. (Tr. p. 224).
[14] Nicholson does not dispute that he affirmatively presented a claim of contrary
intent. In fact, Nicholson alleged that he was not inside the residence to
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 6 of 11
commit a theft, rather, he was in the residence because he had heard a noise
and thought Floyd needed help. In Wickizer v. State, 626 N.E. 795, 799 (Ind.
1993), the Indiana Supreme Court held that the intent exception in Evidence
Rule 404(b) will be available when a defendant goes beyond merely denying the
charged culpability and affirmatively presents a claim of particular contrary
intent. Stated another way, “the defendant must first place intent ‘at issue’
before prior bad act evidence relevant to intent is admissible.” Johnson v. State,
722 N.E.2d 382, 384 (Ind. Ct. App. 2000).
[15] To refute Nicholson’s intent, the trial court admitted the items located during
the inventory search of his vehicle at the State’s request and over Nicholson’s
objection. The State presented a police officer’s testimony, stating that the
items discovered in Nicholson’s car are items that are “commonly stolen[.]”
(Tr. p. 214). Thus, these items are relevant to establish Nicholson’s intent at the
time of the charged offense. See Hicks, 690 N.E.2d at 221.
[16] Turning to the second prong, we have to balance the probative value of the car’s
contents against its prejudicial effect. See Goldsberry, 821 N.E.2d at 455. We
note that any potential prejudice to Nicholson was minimized by the trial
court’s jury instruction. See Johnson v. State, 722 N.E.2d 382, 385 (Ind. Ct. App.
2000). Prior to handing the cause to the jury, the trial court tendered a limiting
instruction:
Evidence has been introduced that [Nicholson] was involved in
crimes other than those charged in the [I]nformation. This
evidence has been received solely on the issue of [Nicholson’s]
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 7 of 11
motive, intent, preparation, plan, knowledge, and absence of
mistake. This evidence should be considered by you only for that
limited purpose.
(Tr. pp. 625-26). Accordingly, the trial court properly admitted the contents of
Nicholson’s vehicle.
II. Cell Phone Records
[17] Next, Nicholson disputes the trial court’s admission of his cell phone records.
At trial, Nicholson objected to their admission based on “a constitutional
protected thing.” (Tr. p. 268). In so far he now objects to their admission based
on prior bad act evidence, Nicholson’s claim is waived for our review. A
defendant may not present one ground for an objection at trial and assert a
different one on appeal. Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002).
III. Recorded Telephone Conversations
[18] During the trial, the trial court admitted recordings of Nicholson’s phone
conversations with Spradlin and Bane. With respect to the Spradlin
conversation, Nicholson incorporated the objections made in his motion in
limine, which were based on hearsay and relevancy grounds. The trial court
overruled Nicholson’s objection and played the phone conversation to the jury.
On appeal, Nicholson, in a two-sentence argument, claims that he “objects to
the relevancy of the call and maintains it is hearsay. Even if not, the prejudicial
impact by introducing the recordings outweighs the probative value.”
(Appellant’s Br. p. 21). Pursuant to Indiana Appellate Rule 46(A)(8)(a), issues
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 8 of 11
must be accompanied by cogent reasoning and “[e]ach contention must be
supported by citations to the authorities, statutes and the Appendix or parts of
the Record on appeal.” As Nicholson failed to follow Ind. Appellate R.
46(A)(8)’s guidelines in presenting his appellate argument with respect to his jail
conversation with Spradlin, his claim is waived for our review.
[19] Turning to his phone conversation with Bane, Nicholson again incorporated
the arguments raised in his motion in limine when objecting to its admission at
trial. In his motion in limine, Nicholson objected based on hearsay and
relevancy grounds. On appeal, Nicholson repeats these grounds. However,
besides treating this court to a lengthy verbatim expose of his telephone
conversation with Bane, Nicholson fails to include an argument, let alone a
cogent one. See Ind. Appellate R. 46(A)(8)(a). As such, the issue is waived.
[20] In so far as Nicholson now also argues that “the call references prior acts of the
defendant and others that go well beyond the purpose of showing motive or
intent,” the issue was not presented to the trial court and therefore cannot be
raised for the first time on appeal. (Appellant’s Br. p. 22); see Lashbrook, 762
N.E.2d at 759.
IV. Introduction of Pawn Shop Records
[21] Nicholson claims that the trial court abused its discretion by admitting pawn
shop records from January 2015 and June 2015 establishing that he pawned
certain items. Specifically, Nicholson states that he “is challenging the
relevance of the evidence, the prejudicial impact it has upon the defendant and
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 9 of 11
the application of [E]vidence [R]ule 404(b). These were acts prior to the
burglary allegation in this case.” (Appellant’s Br. p. 25). Besides including an
excerpt from the record, Nicholson does not develop an argument for his
objection.
[22] “We will not become an advocate for a party, nor will we address arguments
which are either inappropriate, too poorly developed or improperly expressed to
be understood.” Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003).
We find Nicholson’s claim waived for our review. See Ind. Appellate R.
46(A)(8)(a).
V. Introduction of Prior Theft Convictions
[23] Lastly, Nicholson contends that the trial court abused its discretion in admitting
two prior theft convictions in violation of Evid. R. 404(b).
[24] In the case at bar, Nicholson explicitly advised the jury of a particular contrary
intent, i.e., he entered the residence because he thought Floyd had fallen and
needed help. As such, the State “may respond by offering evidence of prior
crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s
intent at the time of the charged offense.” Wickizer, 626 N.E.2d at 799. In
response to Nicholson’s contrary intent, the State presented evidence that he
had been convicted of theft in 2010 and 2012. Because Nicholson’s prior theft
convictions were relevant to establish his intent, the trial court admitted the
convictions over Nicholson’s objection.
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 10 of 11
[25] Furthermore, turning to the second prong of Evid. R. 404(b), we note that,
similar to Nicholson’s car contents, the trial court tendered a limiting
instruction to the jury minimizing any possible prejudicial effect of Nicholson’s
prior theft convictions. See Johnson, 722 N.E.2d at 385. Therefore, we conclude
that the trial court did not abuse its discretion in admitting Nicholson’s prior
convictions.
CONCLUSION
[26] Based on the foregoing, we hold that the trial court did not abuse its discretion
in admitting certain evidence pursuant to Indiana Evidence Rule 404(b).
[27] Affirmed.
[28] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CR-116 | September 28, 2016 Page 11 of 11