Damon L. Maffett v. State of Indiana

FILED
Oct 23 2018, 8:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen M. Heard Curtis T. Hill, Jr.
Vanderburgh County Public Defender’s Attorney General of Indiana
Office
Evansville, Indiana Michael G. Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Damon L. Maffett, October 23, 2018
Appellant-Defendant, Court of Appeals Case No.
82A04-1711-CR-2679
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Kelli E. Fink,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
82C01-1702-F4-867
May, Judge.
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[1] Damon L. Maffett appeals his conviction of and sentence for Level 4 felony
unlawful possession of a firearm by a serious violent felon. 1 He presents two
issues for review, which we restate as:
1) Whether the trial court abused its discretion when it admitted
three minutes of a videotaped police interview of Maffett and
police testimony about the presence of handgun ammunition
in the apartment; and
2) Whether Maffett’s ten-year sentence is inappropriate.
We affirm.
Facts and Procedural History 2
[2] On February 8, 2017, Evansville Police Detective Peter DeYoung went to an
apartment to contact Maffett for legitimate law enforcement purposes.
Detective DeYoung requested assistance from patrolmen in this endeavor.
When asked to come out of the apartment, Maffett would not comply.
Maffett’s significant other, Danielle Burke, who was the registered lessee of the
apartment, exited the apartment and confirmed Maffett was inside. Burke told
Detective DeYoung no guns were present inside the apartment.
1
Ind. Code § 35-47-4-5 (2016).
2
We held oral argument on this matter on September 11, 2018, at Castle High School in Newburgh, Indiana.
We thank Castle High School staff and students for their hospitality and counsel for their able presentations.
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[3] When police notified Maffett that a K-9 unit was present and was going to
enter, Maffett warned the officers that, if the K-9 unit was sent in, he would
“blast it.” (Tr. Vol. II at 80.) After approximately an hour, Maffett surrendered
himself. With a search warrant, the police searched the apartment and found a
loaded Mossberg shotgun under the mattress and two types of handgun
ammunition elsewhere in the apartment. They also found male clothing in one
of the closets of the apartment. Burke confirmed the clothing belonged to
Maffett.
[4] After the State charged Maffett, Burke told Detective DeYoung she had lied
about the absence of guns in the apartment. Burke maintained her father had
given her the shotgun three years earlier. She also stated Maffett did not
“actually live” at the apartment. (Ex. Vol. IV at 93.) At trial, Burke testified
Maffett had helped her clean the shotgun.
[5] After the crime scene investigators examined the shotgun, they determined the
registered owner was Wesley Morgan. Morgan confirmed the shotgun
belonged to him and gave a detailed description of the shotgun. Morgan
testified he was unaware it was missing from his collection and he had last used
it “probably a few months before” the police contacted him about it. (Tr. Vol.
II at 73.)
[6] The State charged Maffett with Level 4 felony unlawful possession of a firearm
by a serious violent felon. Maffett filed a motion to bifurcate the enhancement
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based on his status as a serious violent felon from the underlying charge of
unlawful possession of a firearm. The trial court granted the motion.
[7] Prior to trial, Maffett filed a motion in limine objecting to the use of the video
from an interview Detective DeYoung conducted with Maffett because it
included references to both drug-dealing activity and possession of handgun
ammunition. Maffett argued the references were prejudicial because they
implicated him for prior bad acts. The State agreed that most of the interview
was prejudicial, so it redacted all but approximately three minutes, with part of
that segment muted.
[8] Maffett still objected to the introduction of the three minutes of videotaped
interview, arguing a reference to obtaining the bullets when “a MF’r come
wanting 3,” (id. at 176), was an admission of selling “.3 grams of drugs in
exchange for the box of 9-millimeter bullets[.]” (Id. at 41-42.) The State argued
it had not made that connection. The trial court decided it “didn’t hear that or
make that connection either,” (id. at 42), and it overruled Maffett’s objection to
admission of that portion of the interview.
[9] As the video was played, the court reporter transcribed what she heard. During
the interview, Maffett stated he “didn’t have no gun.” (Id. at 130) (errors in
original). When asked why he told the police he did, Maffett said, “[i]t was
kind of one of them moments like you stay up all night (inaudible) like this, I
was just, you know what I’m saying, I was just like popping Adderall, feel me?”
(Id.) (errors in original). Detective DeYoung asked Maffett about the shotgun
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police found during the search. Detective DeYoung asked, “Is that yours?”
(Id. at 131.) Without being made aware of the make of the shotgun, Maffett
replied, “A Mossberg?” and then stated it was a “possibility[.]” (Id.) Detective
DeYoung asked Maffett whether “if [he] had a gun like a shotgun, that’s just for
protection right, you’re not, you’re not trying to shoot the police or nothing like
that?” (Id.) To which Maffett replied, “No.” (Id.) The interview also touched
on the presence of the handgun ammunition.
[10] As part of its closing argument and without objection from Maffett, the State
read from a previously undisclosed transcript of the interview, which was not
entered into evidence. The State argued Maffett had said he obtained the
ammunition when “a MF’r come wanting 3[.]” (Id. at 176.) The State did not,
however, provide any explanation for what that statement meant.
[11] The jury found Maffett guilty of possession of a firearm. Maffett then admitted
the serious violent felon enhancement in the charging information, and the
court entered his conviction. After hearing evidence, the court found mitigators
in Maffett’s admission to being a serious violent felon and the fact Maffett has
five children, but it found Maffett’s criminal history to be an aggravator. The
trial court sentenced Maffett to ten years and recommended Maffett be
provided drug counseling.
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Discussion and Decision
Admission of Evidence
[12] Maffett argues the trial court erred when it admitted three minutes of a tape-
recorded interview and police testimony about the presence of handgun
ammunition in the apartment. We review evidentiary rulings for an abuse of
discretion. Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans.
denied. An abuse of discretion occurs if the trial court misinterpreted the law or
if its decision was clearly against the logic and effect of the facts and
circumstances before it. Id.Videotaped Interview
[13] Maffett argues the admission of the three minutes of videotaped interview
violated Evidence Rule 404. Evidence Rule 404(a) prohibits using evidence of a
defendant’s “character or character trait . . . to prove that on a particular
occasion the person acted in accordance with that character or trait.” This rule
is meant to deter a jury from pursuing a path of reasoning that leads to “the
forbidden inference,” which is that a defendant is guilty of the alleged crime
because the defendant possesses a bad character trait. Herrera v. State, 710
N.E.2d 931, 935 (Ind. Ct. App. 1999). Evidence Rule 404(b) prohibits the use
of a defendant’s “crime, wrong, or other act . . . to prove a person’s character in
order to show that on a particular occasion the defendant acted in accordance
with that character.” An analysis under Evidence Rule 404(b) “necessarily
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incorporates the relevancy test of Rule 401 and the balancing test of Rule 403.”
Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999).
[14] Maffett argues the trial court erred when it permitted admission of the video
recording because it impugned his character with an inference of prior bad acts.
In particular, Maffett points to two statements:
1. Detective DeYoung’s statement to Maffett that, “so if you
got a gun, like a shotgun, it’s for protection, you’re not
trying to shoot the police or nothing like that, if it’s like
you said, someone rolls up three deep because of what you
do, that you own a shotgun to protect yourself.” (Tr. Vol.
II p. 176 line 2-6).
2. Maffett’s statement to Detective DeYoung that “I got a
whole box of 9’s because a MF’r come wanting a 3, I said
cool give me the shells.” (Tr. Vol. II p. 176 line 12-13).
(Appellant’s Br. at 12-13.)
[15] The State admits the video may create an inference Maffett was engaged in
activities for which a gun was required for protection, but it argues a “mere
inference” of bad acts does not implicate Evidence Rule 404(b). See Dixson v.
State, 865 N.E.2d 704, 712 (Ind. Ct. App. 2007) (holding a “mere inference of
prior bad conduct” does not implicate Evidence Rule 404(b)), trans. denied. We
agree with the State and the trial court. The language about which Maffett
complains is so vague that we cannot say it demonstrates a bad act that could
be prejudicial.
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[16] Nevertheless, the State argues, if error was present, it was harmless as other
evidence supported Maffett’s conviction. “[E]rrors in the admission of evidence
are to be disregarded unless they affect the substantial rights of a party.”
Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh’g denied. Accordingly,
error is harmless “if the conviction is supported by substantial independent
evidence of guilt satisfying the reviewing court there is no substantial likelihood
the challenged evidence contributed to the conviction.” Id.[17] To convict Maffett, the State needed to prove he possessed the shotgun found in
the apartment. As Maffett was not seen in possession of the shotgun, the State
needed to prove constructive possession. Constructive possession occurs when
someone has “the intent and capability to maintain dominion and control over
the item.” Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999).
[18] The State produced substantial independent evidence Maffett constructively
possessed the shotgun. Maffett was inside the apartment where the shotgun
was found. Burke initially admitted that Maffett lived with her at the apartment
and that Maffett had helped her clean the shotgun. Maffett threatened to
“blast” the K-9 unit. (Tr. Vol. II at 80.) During his interview, when Detective
DeYoung asked Maffett about a shotgun in the apartment, Maffett asked if it
was a Mossberg and said it was possibly his. This evidence was sufficient to
infer Maffett was aware the shotgun was in the apartment and he had the
capability to use the weapon. See, e.g., Massey v. State, 816 N.E.2d 979, 989-90
(Ind. Ct. App. 2004) (evidence of defendant living in the house and admitting
knowledge of the gun was sufficient to prove constructive possession). In light
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of the evidence in the record, the admission of a nearly incomprehensible video
interview was harmless. 3 See McCorker v. State, 797 N.E.2d 257, 267 (Ind. 2003)
(substantial cumulative evidence independent of the evidence at issue renders
the court’s admission of such evidence harmless).
Testimony about Ammunition
[19] Maffett next argues the trial court abused its discretion by admitting testimony
about ammunition found in the apartment because the testimony was not
relevant and was more prejudicial than probative. Evidence Rule 401 states
evidence is relevant if “(a) it has a tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Evidence Rule 403 provides a court
“may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
3
Additionally, Maffett argues that, even if admission of the tape recording itself was not prejudicial, the trial
court had allowed it in partially based on the fact that much of it was inaudible or unclear. However, during
closing, the State produced a transcript of the interview and read it to the jury. Maffett did not object to the
reading of the transcript during closing argument; thus, any issue this could raise is waived for our review.
See Tesfamariam v. Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011) (when complaining party does
not object, the issue is waived for appellate consideration). An exception to the doctrine of waiver arises
when errors are so blatant and serious that to ignore them would constitute a denial of fundamental due
process, i.e., when fundamental error has occurred. Madden v. State, 656 N.E.2d 524, 526 (Ind. Ct. App.
1995), trans. denied.
We assume a jury follows the instructions it is given. See Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015)
(appellate court assumes a properly instructed jury follows the instructions given), reh’g denied, cert. denied 136
S. Ct. 901 (2016). The jury here was instructed to rely only on the evidence presented, “which may be either
witness testimony or exhibits.” (App. Vol. II at 59.) The jury also was instructed the attorneys would make
opening and closing arguments but those arguments were not to be considered evidence. (Id. at 44, 45.)
Even though the closing arguments may have clarified for some jurors what was said on the tape, the
admission remains harmless because the statements were vague and substantial independent evidence was
presented to prove Maffett constructively possessed the shotgun.
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confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.”
[20] Maffett alleges the evidence regarding handgun ammunition admitted during
Detective DeYoung’s testimony was irrelevant and prejudicial because “nobody
possesse[s] bullets without a gun.” (Tr. Vol. II at 37.) The trial court
distinguished the testimony and video statements about ammunition from
photographs of the ammunition, which the court excluded because the firearm
for which the ammunition would be used was “not the subject of this case” and
would be prejudicial. (Id. at 114.) The trial court found the testimony and
videos showed “whether or not [Maffett] knew items in the location where the
shotgun was found . . . [we]re relevant to show whether [Maffett] maintained
dominion and control over that area and maintained dominion and control
over the shotgun[.]” (Id. at 113.) Maffett argues the trial court’s statement
differentiating the testimony and video from photos was in error as nothing in
the testimony or video indicated the location of the ammunition in relation to
the shotgun.
[21] The State counters Maffett’s “possession of the ammunition tended to show
that he had knowledge of weapons that were inside the apartment, and that he
had the capability to maintain dominion and control over such weapons.” (Br.
of Appellee at 15.) Therefore, the State argues, the ammunition evidence was
relevant to the charged offense. However, the State maintains if there was any
error, that error was harmless due to the substantial independent evidence the
State presented.
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[22] We need not determine whether the evidence of the ammunition should have
been admitted. “The improper admission of evidence is harmless error when
the reviewing court is satisfied that the conviction is supported by substantial
independent evidence of guilt so that there is no substantial likelihood that the
challenged evidence contributed to the conviction.” Meadows v. State, 785
N.E.2d 1112, 1121 (Ind. Ct. App. 2003), trans. denied. As noted above, the State
presented evidence Maffett was in the apartment with the shotgun, lived in the
apartment, cleaned the shotgun, and threatened to shoot the K-9 unit. The
State presented substantial independent evidence sufficient to infer Maffett was
aware of the shotgun in the apartment and was able to use it. Any prejudice
inferred from the presence of ammunition for which there was not a gun was
slight as neither the video nor Detective DeYoung’s statements lingered on that
point. See Hinesley v. State, 999 N.E.2d 975, 986 (Ind. Ct. App. 2013) (if the
evidence as a whole supports the conviction, an inconsequential reference to
other evidence does not show prejudice), reh’g denied, trans. denied. Therefore,
the admission of the video and testimony briefly mentioning handgun
ammunition was harmless. See McCorker, 797 N.E.2d at 267 (substantial
cumulative evidence independent of the evidence at issue renders the court’s
admission of such evidence harmless).
Inappropriate Sentence
[23] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
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State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).
We consider not only the aggravators and mitigators found by the trial court,
but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d
852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our
goal is to determine whether the appellant’s sentence is inappropriate, not
whether some other sentence would be more appropriate. Conley v. State, 972
N.E.2d 864, 876 (Ind. 2012), reh’g denied. Maffett, as the appellant, bears the
burden of demonstrating his sentence is inappropriate. See Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[24] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The sentencing range for a Level 4 felony is “a fixed term of between
two (2) and twelve (12) years, with the advisory sentence being six (6) years.”
Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Maffett to ten years;
thus, Maffett received a sentence above the advisory but below the maximum.
[25] Maffett argues his offense was not egregious because he “did not threaten or
resist law enforcement with the firearm.” (Br. of Appellant at 21.) However,
evidence was presented Maffett threatened to “blast” the K-9 unit. (Tr. Vol. II
at 80.) Moreover, the evidence suggested the shotgun had been stolen and
Maffett knew that. We conclude Maffett’s sentence is not inappropriate based
on the nature of his offense. See McBride v. State, 992 N.E.2d 912, 921 (Ind. Ct.
App. 2013) (although defendant used unloaded guns, the fact he used them “in
a threatening manner” supported the sentence given), reh’g denied, trans. denied.
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[26] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Maffett acknowledged he has
“several felonies[,]” (Br. of Appellant at 21), but he claims many of the
convictions were non-violent.
[27] Contrary to Maffett’s assertions, not only did he have six felony convictions
and several misdemeanor convictions, but several of the convictions are for
violent crimes. 4 Continuing to commit crimes after frequent contacts with the
judicial system is a poor reflection on one’s character. Rutherford v. State, 866
N.E.2d 867, 874 (Ind. Ct. App. 2007); see also Connor v. State, 58 N.E.3d 215,
221 (Ind. Ct. App. 2016) (continued crimes indicate a failure to take full
responsibility for one’s actions). As such, we cannot agree with Maffett that his
sentence is inappropriate based on his character.
4
Maffett’s felony convictions include: Class D felony dealing in a substance represented to be a controlled
substance, Class C felony battery committed by means of a deadly weapon or resulting in serious bodily
injury, Class D felony battery resulting in bodily injury with a victim of less than fourteen years old, Class D
felony domestic battery, three counts of Class D felony intimidation, and Class C felony escape.
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Conclusion
[28] Any possible error in the admission of evidence was, at most, harmless. Maffett
has not demonstrated his sentence is inappropriate in light of his character and
his offense. Accordingly, we affirm.
[29] Affirmed.
Najam, J., and Bailey, J., concur.
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