                                                                            FILED
                                                                     Dec 28 2016, 8:54 am

                                                                            CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karen S. Celestino-Horseman                               Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Gilman,                                            December 28, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1601-CR-95
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Stanley E. Kroh,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Cause No. 49G03-1505-F5-017073




Darden, Senior Judge




Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016                     Page 1 of 9
                                          Statement of the Case
[1]   A jury found James Gilman guilty of leaving the scene of an accident resulting
                                            1
      in death, a Level 5 felony. He appeals the trial court’s decision to allow the

      State to reopen its case after closing argument.


                                                     Issue
[2]   Specifically, the sole issue Gilman presents is whether the trial court erred in

      allowing the State to reopen its case after closing argument to present evidence

      in rebuttal of Gilman’s prior knowledge of an existing warrant for his arrest as

      being unduly prejudicial and an abuse of discretion.


                                   Facts and Procedural History
[3]   Gilman and Melissa were married, but were separated. Despite the separation,

      Gilman continued to visit Melissa where she resided. Robin Kemp was the

      mother of Gilman’s children.


[4]   On April 21, 2015, at around 10:15 p.m., Robin drove to the house where

      Melissa resided and Gilman was visiting. Melissa approached Robin’s

      Chevrolet Equinox. Robin, who remained in the car, was yelling and claimed

      that she was on her cell phone with the police. She was angry about a dispute

      that had arisen between her and Gilman about who owned a Chevrolet Impala




      1
          Ind. Code § 9-26-1-1.1(a)(1)(A) (2015).


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016   Page 2 of 9
      that was registered in Robin’s name but was in Gilman’s possession. Melissa

      went back inside the house and spoke to Gilman.


[5]   Shortly thereafter, Gilman left the house, entered the Impala, and attempted to

      drive away. Robin then drove her vehicle into the Impala, knocking it into the

      neighbor’s yard. After the collision, the two vehicles then “took off” down the

      street. Tr. p. 153.


[6]   Both Gilman and Robin were driving at unsafe, high speeds, and their cars

      bumped several times. While driving side by side, at approximately 87 miles

      per hour, the cars collided. The collision was so forceful that it lifted the

      Equinox’s tires off the pavement and caused it to run off the road, slide onto

      soft ground, and strike a tree. As a result of the impact, Robin sustained

      multiple blunt force traumatic injuries, including one to her head which killed

      her instantly. The accident occurred around 10:30 p.m.


[7]   The impact caused Gilman’s vehicle to spin out of control. His Impala came to

      rest approximately 129 feet from Robin’s. The Impala was facing the Equinox

      and had one functioning headlight, which made Robin’s vehicle visible to

      Gilman. Neighbors tried to assist Robin before emergency response arrived.

      However, Gilman exited the Impala and fled the scene of the accident without

      rendering assistance to Robin and before the police or emergency services

      arrived. Gilman did not report the accident to the police. He did not return to

      his home, or contact his wife, until three days later. Gilman learned, shortly

      after the accident, that Robin had died.


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016   Page 3 of 9
[8]    The police interviewed Gilman about the accident on May 15, 2015. During

       the interview, Gilman admitted that at the time of the accident he knew of an

       outstanding active warrant for his arrest in an unrelated case. On May 18,

       2015, Gilman was charged with Level 5 felony leaving the scene of an accident

       resulting in death.


[9]    Pre-trial the State filed a notice of intent to offer Trial Rule 404(b) evidence
                                                       2
       depending on defendant’s defense. At a hearing held on the matter, the State

       informed the trial court that it would introduce evidence of Gilman’s prior

       knowledge of the outstanding arrest warrant if Gilman argued at trial that he

       had a defense for leaving the scene of the accident. After the hearing, the trial

       court issued an order, finding that the arrest warrant evidence was relevant to

       Gilman’s motive and intent for leaving the scene of the accident, but that “the

       probative value of the . . . evidence is substantially outweighed by the danger of

       unfair prejudice . . . .” Appellant’s App. p. 38. Nevertheless, the court

       determined that “should Defendant place intent at issue by presenting a claim

       of particular contrary intent, the evidence then is admissible.” Id.


[10]   At trial, the State presented its evidence, including autopsy evidence that at the

       time of the accident Robin tested positive for high levels of methamphetamine

       and amphetamine. The State rested. Gilman rested without presenting any

       evidence or testimony. However, in closing, defense counsel argued that



       2
        Neither the notice of intent to offer evidence nor the brief in support were included in Appellant’s
       Appendix.

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016                           Page 4 of 9
       Gilman fled the scene of the accident “out of necessity” because Robin was

       exhibiting aggressive behavior and he feared Robin would hurt him. Tr. p. 177.

       The State objected immediately and the trial court sustained the objection.


[11]   Immediately following the conclusion of defense counsel’s closing argument,

       the State requested permission of the court to reopen its case and present

       additional evidence because the State believed counsel had made a necessity
                             3
       defense claim. Gilman objected. The court granted the State’s request but it

       also allowed Gilman to supplement his argument if he chose to do so.


[12]   The State reopened its case and Sergeant Doug Heustis, with the Indianapolis

       Metropolitan Police Department, testified that Gilman was aware of an active
                                                                          4
       warrant for his arrest at the time of the accident. Gilman did not cross-

       examine Heustis or reopen his case, but did supplement his closing argument.

       Gilman now appeals.


                                        Discussion and Decision
[13]   Gilman maintains that the trial court erred when it allowed the State to reopen

       its case to present evidence of his arrest warrant because the evidence was more




       3
        The prerequisites in establishing a necessity defense are: (1) the act charged as criminal must have been
       done to prevent a significant evil; (2) there must have been no adequate alternative to the commission of the
       act; (3) the harm caused by the act must not be disproportionate to the harm avoided; (4) the accused must
       entertain a good-faith belief that his act was necessary to prevent greater harm; (5) such belief must be
       objectively reasonable under all the circumstances; and (6) the accused must not have substantially
       contributed to the creation of the emergency. Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct. App. 1994).
       Neither Gilman nor the State requested a necessity defense instruction.
       4
           No evidence was presented during trial on the nature of Gilman’s arrest warrant or the crime charged.


       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016                           Page 5 of 9
       prejudicial than probative. Gilman also argues it was the State that opened the

       door to his intent to leave the scene of the accident.


[14]   Whether the trial court allows the State to reopen its case after the State has

       rested is a matter of judicial discretion, and for reversible error the defendant

       must establish that the trial judge clearly abused that discretion. Maxwell v.

       State, 408 N.E.2d 158, 163 (Ind. Ct. App. 1980). Among the factors which

       weigh in the exercise of discretion are whether there is any prejudice to the

       opposing party, whether the party seeking to reopen appears to have rested

       inadvertently or purposely, the stage of the proceedings at which the request is

       made, and whether any real confusion or inconvenience would result from

       granting the request. Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988). Two

       conditions must be shown to exist to justify a court of appellate jurisdiction in

       setting aside a ruling made by a trial court in the exercise of judicial discretion:

       1) the action complained of must have been unreasonable in light of all

       attendant circumstances or it must have been clearly untenable or unreasonable;

       and 2) the action was prejudicial to the rights of the complaining party. Id. at

       746.


[15]   During closing argument, over the State’s objection, Gilman’s counsel argued

       that Gilman had six seconds to decide what to do at the scene of the accident,

       stating: “And what was that decision? Do I stick around and risk getting killed

       or do I run? Split-second decision, life at issue[.]” Tr. p. 173. Counsel later

       stated: “State argues that he knew that [Robin] hit the tree because they were

       right by each other. But let’s look at the conditions. It’s dark. He’s scared.”

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016   Page 6 of 9
       Id. at 176. Counsel closed by stating: “. . . I would ask you today to find that

       there was a reason he ran. He ran out of necessity. Had he known that she had

       crashed, it might have been a different story. . . And so he ran because he

       thought his life was in danger.” Id. at 177-78.


[16]   The State made its request to reopen its case immediately after defense counsel

       concluded his closing argument. The court granted the request, stating:

               At this point, the Court believes the relevance of the reasons Mr.
               Gilman left [the scene of the accident], the existence that he was
               aware of a warrant, that relevance becomes much more greater,
               and, in the Court’s view, outweighs the possibility of unfair
               prejudice.
               So the Court is going to allow the State to reopen its case.
               However, the Court is also going to give the defense a chance to
               argue again after you – I think what we will do is – I guess the
               fair way to do it would be after you close your case to allow the
               defense to respond by giving their closing argument. It’s more
               time on closing. And then give you your chance to rebut.


       Id. at 192. The court then allowed Sergeant Heustis to testify regarding

       Gilman’s prior knowledge of the arrest warrant before the incident, and gave

       Gilman the opportunity to cross-examine Heustis and present additional closing

       argument. Based upon the trial court’s pre-trial ruling on the outstanding arrest

       warrant evidence, the evidence presented during trial, the events that transpired

       during trial, and the trial court’s careful consideration in attempting to balance

       and address the equities in this matter, we decline to find an abuse of discretion.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016    Page 7 of 9
[17]   Gilman was forewarned in advance by the court, pre-trial, that opening the

       door to Gilman’s motive for leaving the scene of the accident could result in the

       admission of the arrest warrant evidence. Gilman did not heed the court’s

       warning. Subsequently, counsel argued at closing that Gilman fled the scene of

       the accident because he feared Robin would hurt him. Even though the State

       objected to counsel’s closing argument and the trial court sustained the

       objections, counsel continued to press the “fear of injury” motive for leaving the

       scene of the accident. As a result, the State requested permission to reopen its

       case immediately after defense counsel concluded his closing argument. Based

       on defense counsel’s closing argument, the trial court exercised is discretion and

       determined that the probative value of the arrest warrant evidence outweighed

       any unfair prejudice, and allowed the State to reopen its case and call Sergeant

       Heustis to the witness stand to testify. Likewise, the trial court granted Gilman

       permission to reopen and/or supplement his argument.


[18]   Heustis was not a surprise witness. He had testified in the State’s case-in-chief.

       Heustis’s interview with Gilman regarding Gilman’s knowledge of the arrest

       warrant was recorded, and defense counsel had a copy of the recording, pre-

       trial. Before Heustis testified before the jury about the arrest warrant evidence,

       Gilman was again provided a preview of Heustis’s testimony. Outside of the

       jury’s presence, the trial court asked the State to proffer Heustis’s testimony to

       the court and defense counsel only. No evidence was presented to the jury

       regarding the specific details of Gilman’s arrest warrant or the crime charged.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016   Page 8 of 9
[19]   Gilman was given the opportunity to cross-examine Sergeant Heustis, but

       declined. See Gorman v. State, 463 N.E.2d 254, 257 (Ind. 1984) (no prejudice

       found in reopening case where witness was known to defense and defense given

       opportunity to cross-examine witness and call additional witnesses in his

       behalf). The State then re-rested, and the trial court allowed defense counsel

       the opportunity to supplement his closing argument.


[20]   We conclude that under these circumstances, allowing the State to reopen its

       case was not unreasonable. Also, Gilman has failed to show how he was

       unduly prejudiced by the reopening. Defense counsel had been forewarned and

       was well aware of the consequences of arguing Gilman’s motive for fleeing the

       scene of the accident, and, upon reopening the case, the trial court gave Gilman

       an opportunity to cross-examine the sole witness (Heustis) on the matter and to

       supplement his closing argument. The trial court did not abuse its discretion on

       this issue.


                                                 Conclusion
[21]   For the reasons stated, we find that the trial court did not abuse its discretion in

       in allowing the State to reopen its case and present evidence of Gilman’s

       knowledge of his arrest warrant.


[22]   Affirmed.

       Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-95| December 28, 2016   Page 9 of 9
