Ryan Keith Winchester v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
FILED
Jun 25 2012, 9:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of CLERK
of the supreme court,
court of appeals and
establishing the defense of res judicata, tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RICHARD L. LANGSTON GREGORY F. ZOELLER
Frankfort, Indiana Attorney General of Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RYAN KEITH WINCHESTER, )
)
Appellant-Defendant, )
)
vs. ) No. 12A02-1109-CR-882
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLINTON CIRCUIT COURT
The Honorable Linley E. Pearson, Judge
Cause No. 12C01-1003-FB-83
June 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Ryan Keith Winchester appeals his conviction of Burglary,1 a class B felony. He
presents the following consolidated and restated issue for review: Did the trial court abuse
its discretion when it excluded certain evidence from trial?
We affirm.2
On Thursday, March 11, 2010, Michelle Harris was home from college for spring
break and living at Jaime Martin and Jackie Howe’s residence in Frankfort, Indiana. Howe
left for his construction job early that morning, and Martin went to work at a nearby
convenience store by 9:00 a.m. Harris stayed in her bedroom and slept all morning.
At some point after noon, Harris awoke to a noise “like rattling of metal” that
continued to get louder. Transcript at 30. She opened her bedroom door and proceeded to
the living room where she observed a man “hunched over” Martin’s filing cabinet and prying
it open with a screwdriver. Id. The man straightened up and indicated that he did not know
anyone was home. Harris asked what he was doing, and the man responded that he was
getting money that Martin owed him. Harris responded, “I don’t know you.” Id. at 31. The
man pulled money from his pocket and after handing it to Harris, asked for a glass of water.
He then took the money from Harris’s hand said “he was gonna be back in ten to fifteen
minutes and that his name was Jay Stevens and that he drove a Black Caddy.” Id. The man
left.
1
Ind. Code Ann. § 35-43-2-1 (West, Westlaw current through legislation effective May 31, 2012).
2
We remind appellate counsel that Indiana Appellate Rule 46(A)(6) requires the statement of facts section in
the appellant’s brief to describe in narrative form “the facts relevant to the issues presented for review”.
Winchester’s “facts” simply restate the charges, conviction, and sentence and offer no assistance to us in
considering the issues presented on appeal. An appellant’s brief must be prepared so that this court,
considering the brief alone and independently from the record, can intelligently consider each question
presented. Galvan v. State, 877 N.E.2d 213 (Ind. Ct. App. 2007).
2
After unsuccessfully trying to call Martin, Harris went to find her at work. They came
home together and eventually called the police, reporting that hundreds of dollars had been
stolen from the filing cabinet. Harris provided a general description to the responding officer
but could not otherwise identify the intruder. The front door showed evidence of a forced
entry, and Martin indicated that she had locked it when she left for work that morning.
The following day, Winchester’s best friend, Kevin Ryan Harshbarger, was arrested
on an unrelated charge of burglary. In hopes of favorable treatment, Harshbarger offered
investigators information regarding the March 11 burglary. He knew specific details of the
crime and identified Winchester as the perpetrator. Harshbarger later admitted driving
Winchester to the residence and waiting outside while Winchester committed the burglary.
On March 13, police presented two photo arrays to Harris. Harshbarger and
Winchester were included among the twelve photographs. Harris immediately identified the
photograph of Winchester. Though she had never met him before, Harris unequivocally
testified at trial that Winchester, and not Harshbarger,3 was the intruder.
The State charged Winchester with class B felony burglary, class D felony theft, and
class C felony robbery. The jury found Winchester guilty of burglary and not guilty of theft
or robbery. Winchester now appeals.
Winchester’s appellate argument is difficult to decipher, but boiled down, he
complains that he was not allowed to introduce evidence that on the day before the alleged
burglary, he went to Martin’s residence and purchased marijuana from her (because Howe,
3
With respect to Harshbarger, Harris explained, “I’m definite. He’s much taller, much more gangly, he is.”
Id. at 44.
3
her boyfriend, was not present) and that she fronted him the money. The trial court indicated
that it would not allow any references to marijuana but that Winchester could otherwise
testify to knowing Martin and being at her residence to purchase something.
Accordingly, Winchester testified4 that he knew Martin and had been inside her
residence on three occasions in the month leading up to the burglary. In particular, he
testified that he had been inside the residence on March 10 and had purchased “something”
on account for $50 from Martin. Id. at 241. He also testified that Harris, whom he did not
know, was present and saw him that day.
Jamie Martin testified at trial that she did not know Winchester, though she had been
informed that they went to school together in the past. On cross-examination, defense
counsel inquired as to whether Winchester had been in her house the day before the burglary
or had ever bought anything from her before. Martin indicated negatively with regard to both
inquiries. When the defense then made reference to marijuana, the State interrupted and the
court ruled that such evidence was inadmissible and not proper impeachment evidence.
As a general matter, the decision to admit or exclude evidence is within
a trial court’s sound discretion and is afforded great deference on appeal….
[W]e will not reverse the trial court’s decision unless it represents a manifest
abuse of discretion that results in the denial of a fair trial. An abuse of
discretion in this context occurs where the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court or it
misinterprets the law.
Carpenter v. State, 786 N.E.2d 696, 702-03 (Ind. 2003) (citations omitted).
“Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be
4
without the evidence.” Forgey v. State, 886 N.E.2d 16, 22 (Ind. Ct. App. 2008) (citing Ind.
Evidence Rule 401). Here, Winchester baldly asserts that evidence relating to the sale of
marijuana is relevant to his defense, but he wholly fails to establish that this evidence would
tend to make the existence of any fact of consequence more or less probable. See Forgey v.
State, 886 N.E.2d 16. He provides no analysis for his assertion of relevance and essentially
argues that a defendant has a constitutional right to “choose the issues he wants to bring to
the jury’s attention” and that a court’s exclusion of evidence that “the Defendant feels is
relevant” should automatically result in reversal. Appellant’s Brief at 11 (emphasis
supplied). There is no merit to this contention.5 See, e.g., Sanchez v. State, 749 N.E.2d 509(Ind. 2001) (a defendant’s right to present a defense is not without limitation, as the
defendant must comply with established rules of procedure and evidence).
Judgment affirmed.
MAY, J., and BARNES, J., concur.
4
On appeal, Winchester inexplicably states that he did not testify at trial. On the contrary, we direct
appellate counsel to pages 237 through 266 of the trial transcript.
5
Winchester’s undeveloped assertion that “even if evidence that the Defendant is trying to introduce is not
relevant to a material issue in the case, evidence can still be relevant to the jury nullification argument” is
baseless and merits no discussion. Appellant’s Brief at 12.
5