                                                                                 FILED
                                                                            Apr 11 2018, 10:05 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Derick W. Steele                                      Curtis T. Hill, Jr.
Deputy Public Defender                                Attorney General of Indiana
Kokomo, Indiana
                                                      Chandra K. Hein
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dion Cannon,                                               April 11, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           34A05-1707-CR-1544

        v.                                                 Appeal from the Howard Superior
                                                           Court

State of Indiana,                                          The Hon. William C. Menges, Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff.
                                                           34D01-1511-F2-1036




Bradford, Judge.




Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                            Page 1 of 45
                                            Case Summary
[1]   In November of 2015, police visited the Kokomo home that Appellant-

      Defendant Dion Cannon shared with Alexandra Linville to execute an arrest

      warrant on Cannon. While one officer knocked on the door, another watching

      through a window observed Cannon place something on a shelf before

      answering the door. After arresting Cannon and obtaining a search warrant,

      police searching the shelves found marijuana, a loaded handgun, and

      approximately eighty-eight grams of heroin inside a vase. During Cannon’s

      trial on several charges, Linville testified over objection that she had assisted

      Cannon in dealing drugs prior to November of 2015 and that he sold heroin to

      support himself. The jury found Cannon guilty of Level 3 felony possession of

      a narcotic drug, Class A misdemeanor possession of marijuana, and Level 6

      felony maintaining a common nuisance. The trial court sentenced Cannon to

      an aggregate sentence of fifteen years of incarceration. Cannon argues that the

      trial court abused its discretion in admitting Linville’s testimony regarding prior

      drug-dealing activity, the trial court’s final instruction regarding the evidence of

      other bad acts was ineffective, and his sentence is inappropriately harsh.

      Because we conclude that any error in the admission of evidence was harmless

      and that Cannon has not established that his sentence is inappropriate, we

      affirm.




      Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 2 of 45
                             Facts and Procedural History
[2]   On November 18, 2015, Cannon had been in a relationship with Linville for

      eight or nine years; shared a child born on December 4, 2013, with her; and

      lived with her in her Kokomo home. On November 18, 2015, Cannon went to

      Linville’s place of business and borrowed $1800 from her (in addition to the

      $2200 he already had), money he told Linville he intended to spend on drugs.

      Later that evening, Kokomo Police Department officers went to Cannon and

      Linville’s home to serve an outstanding arrest warrant on Cannon.


[3]   When Kokomo Police Officer Jayson Maynard knocked on the door, Cannon,

      who was alone in the house at the time, yelled, “Oh s***, just a minute.” Tr.

      Vol. I 56. From a window, Sergeant Gary Taylor observed Cannon take

      something from a counter, conceal it in his hand, and place it somewhere in a

      shelving unit near the door. When Cannon opened the door, officers detected

      the odor of burnt marijuana coming from within the residence. After Cannon

      was handcuffed and read his rights, Sergeant Taylor asked Cannon what he had

      put on the shelf. Cannon replied that “it was marijuana, and that’s all the

      illegal drugs that [I have] in the house.” Tr. Vol. I p. 57. Officers obtained a

      search warrant for the house.


[4]   Inside a child’s bedroom, officers found an AK-47 on a shelf in a closet.

      Officers found a handgun on a high shelf in a bathroom. On the shelving unit

      where Sergeant Taylor had observed Cannon place something, the police

      discovered a handgun with a long “banana clip” with extra rounds. Tr. Vol. I


      Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 3 of 45
      p. 61. Police also found 16.23 grams of marijuana and a red vase that

      contained approximately 88 grams of heroin on the shelving unit. Another

      white substance, which appeared to be a possible cutting agent, was found in

      the house. A digital scale was found in a kitchen cabinet.


[5]   On November 20, 2015, the State charged Cannon with Level 2 felony dealing

      in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 5 felony

      neglect of a dependent, Level 6 felony theft of a firearm, Level 6 felony

      possession of marijuana, and Level 6 felony maintaining a common nuisance.

      On April 21, 2017, the State amended the charging information to reduce

      Cannon’s possession of marijuana charge to a Class A misdemeanor. Jury trial

      was conducted on April 28, May 1, and May 2, 2017.


[6]   Linville testified for the State at Cannon’s trial. Over objection, Linville

      testified that she would assist Cannon in drug-dealing by “taking him

      places[,]”she had driven him someplace in August of 2015 to sell heroin, and he

      sold heroin and cocaine to support himself. Tr. Vol. I p. 136. The trial court

      allowed the testimony as relevant to the questions of Cannon’s intent and

      knowledge. Linville also testified that she had never stored illegal drugs in the

      red vase and had never seen the heroin found inside the red vase before it was

      shown to her at trial. Among its other final instructions, the trial court

      instructed the jury that


              Evidence has been introduced that the defendant was involved in
              crimes, wrongful conduct or bad acts other than those charged in
              the Informations. This evidence has been received solely on the

      Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018    Page 4 of 45
              issue of defendant’s intent or knowledge. This evidence should
              be considered by you only for the limited purpose for which it
              was received.


      Tr. Vol. II 32–33.


[7]   The jury found Cannon guilty of Level 3 felony possession of a narcotic drug,

      Class A misdemeanor possession of marijuana, and Level 6 felony maintaining

      a common nuisance. On June 13, 2017, the trial court sentenced Cannon to

      fifteen years of incarceration for possession of a narcotic drug, one year for

      possession of marijuana, and two-and-a-half years for maintaining a common

      nuisance, all three sentences to be served concurrently.


                                  Discussion and Decision
                      I. Evidence Concerning Other Bad Acts
[8]   Cannon contends that the trial court abused its discretion in admitting

      testimony from Linville regarding other bad acts by him, specifically drug-

      dealing activity not charged in this case. We will only reverse a trial court’s

      decision on the admissibility of evidence upon a showing of an abuse of that

      discretion. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). An abuse of

      discretion may occur if the trial court’s decision is clearly against the logic and

      effect of the facts and circumstances before the court, or if the court has

      misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s

      ruling if it is sustainable on any legal basis in the record, even though it was not

      the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182

      Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018     Page 5 of 45
       (Ind. Ct. App. 2005). We do not reweigh the evidence and consider the

       evidence most favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d

       1008, 1012 (Ind. Ct. App. 2006).


[9]    Indiana Evidence Rule 404(b) provides that, in general, “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

       show that on a particular occasion the person acted in accordance with the

       character.” We need not address the merits of Cannon’s evidentiary challenge

       if we conclude that “[e]rrors in the admission of evidence are to be disregarded

       as harmless unless they affect the substantial rights of the defendant.” Goudy v.

       State, 689 N.E.2d 686, 694 (Ind. 1997). “The erroneous admission of evidence

       is harmless error where a guilty finding is supported by substantial independent

       evidence of guilt.” Bates v. State, 495 N.E.2d 176, 178 (Ind. 1986). “However,

       reversal is warranted if the record as a whole reveals that the improper evidence

       was likely to have had a prejudicial impact on the average juror such that it

       contributed to the verdict.” Sundling v. State, 679 N.E.2d 988, 994 (Ind. Ct.

       App. 1997).


[10]   We conclude that the admission of evidence of other bad acts, even if the result

       of an abuse of discretion,1 can only be considered harmless. Although the

       heroin was not found on Cannon’s person,




       1
         While we conclude that we do not need to reach the question of whether the trial court abused its discretion
       in admitting evidence of other bad acts by Cannon, we acknowledge the dissent’s extremely thorough and
       scholarly discussion of the issue.

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                        Page 6 of 45
               [t]here is … no requirement that the accused’s actual possession
               of the contraband must be shown to have existed at precisely the
               same time as the law enforcement agency’s discovery of the
               contraband. Put another way, conviction for possessory offenses
               does not depend on the accused being “caught red-handed” in
               the act by the police.


       Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982).


[11]   Cases, like this one, where the State seeks to prove that the defendant’s

       possession of the contraband occurred at a time other than its discovery are

       referred to as “constructive possession” cases.


               A defendant is in the constructive possession of drugs when the
               State shows that the defendant has both (i) the intent to maintain
               dominion and control over the drugs and (ii) the capability to
               maintain dominion and control over the drugs. Lampkins v. State,
               682 N.E.2d 1268, 1275 (Ind. 1997), on reh’g, 685 N.E.2d 698
               (Ind. 1997). The proof of a possessory interest in the premises on
               which illegal drugs are found is adequate to show the capability
               to maintain dominion and control over the items in question.
               Davenport v. State, 464 N.E.2d 1302, 1307 (Ind. 1984). In essence
               the law infers that the party in possession of the premises is
               capable of exercising dominion and control over all items on the
               premises. See id.; Martin v. State, 175 Ind. App. 503, 372 N.E.2d
               1194, 1197 (1978) (“[A] house or apartment used as a residence
               is controlled by the person who lives in it and that person may be
               found in control of any drugs discovered therein, whether he is
               the owner, tenant, or merely an invitee.”). And this is so
               whether possession of the premises is exclusive or not.
               However, the law takes a different view when applying the intent
               prong of constructive possession. When a defendant’s possession
               of the premises on which drugs are found is not exclusive, then
               the inference of intent to maintain dominion and control over the

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 7 of 45
                drugs “must be supported by additional circumstances pointing
                to the defendant’s knowledge of the nature of the controlled
                substances and their presence.” Lampkins, 682 N.E.2d at 1275.


       Gee v. State, 810 N.E.2d 338, 340–41 (Ind. 2004). A non-exhaustive list of what

       such additional circumstances may be includes “(1) incriminating statements

       made by the defendant, (2) attempted flight or furtive gestures, (3) location of

       substances like drugs in settings that suggest manufacturing, (4) proximity of the

       contraband to the defendant, (5) location of the contraband within the

       defendant’s plain view, and (6) the mingling of the contraband with other items

       owned by the defendant.” Gee, 810 N.E.2d at 341 (citing Henderson v. State, 715

       N.E.2d 833, 836 (Ind. 1999)).2 As we have noted, “[i]n each of these instances

       of ‘additional circumstances’ exists the probability that the presence and

       character of the contraband was noticed by the defendant. Accordingly, the

       listed circumstances are not exhaustive. Other circumstances could just as

       reasonably demonstrate the requisite knowledge.” Carnes v. State, 480 N.E.2d

       581, 586 (Ind. Ct. App. 1985) (collecting cases that contain the “additional

       circumstances” comprising the list in Gee).


[12]   Cannon does not dispute that he had a possessory interest in the house he

       shared with Linville, a fact sufficient to show his capability to maintain

       dominion and control over the heroin. Additional circumstances also point to




       2
         We wish to emphasize that this list is nothing more than a collection of circumstances that have been found
       sufficient to prove constructive possession in particular cases, not a test with elements to be satisfied or factors
       to be weighed. In many cases, some or all of the listed circumstances will simply not be relevant.

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                              Page 8 of 45
       Cannon’s knowledge of the presence and nature of—and his intent to maintain

       dominion and control of—the heroin. First and foremost is Linville’s

       incriminating testimony. Linville testified that Cannon received $1800 from her

       on November 18, 2015, and told her that he was planning on buying drugs with

       the money. Later that day, police executed a search warrant on the house that

       the couple shared and discovered a substantial amount of heroin, which

       Linville testified she had never seen before. It is reasonable to infer that the

       heroin was Cannon’s and that he put it in the vase. Moreover, the heroin was

       found on a shelving unit very near other items that were Cannon’s, including a

       handgun that Linville testified was his and marijuana that he admitted was his.

       While this evidence of Cannon’s guilt would be enough by itself to render any

       error harmless, there is more.


[13]   The jury was specifically instructed to use evidence of Cannon’s other bad acts

       only for the purposes of evaluating his intent or knowledge, which is presumed

       to cure any error that might have occurred, unless Cannon can show otherwise,

       which he did not do. See Hyppolite v. State, 774 N.E.2d 584, 598 (Ind. Ct. App.

       2002) (“The trial court gave the jury an admonishment concerning the

       situation, and that is presumed to cure any error.”), trans. denied; see also Hackney

       v. State, 649 N.E.2d 690, 694 (Ind. Ct. App. 1995) (“A proper admonishment to

       the jury is presumed to cure any alleged error, unless the contrary is shown.”),

       trans. denied. Cannon limits his challenge to the timing of the admonition,

       claiming that it was error to deliver it during final instructions. Cannon,

       however, offers no supporting authority for this challenge, and our research has


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 9 of 45
       uncovered none. As for rebutting the presumption that the trial court’s

       instruction cured any error, Cannon points to no indication in the record to

       suggest that the jury did not follow the trial court’s instruction on this point,

       and our own review has uncovered none. Cannon has failed to establish that

       the trial court’s admonition failed to cure any error that might have occurred.

       Given the substantial independent evidence establishing Cannon’s guilt and the

       trial court’s admonition to the jury, we conclude that any error the trial court

       may have made in admitting evidence of other bad acts can only be considered

       harmless.


                              II. Appropriateness of Sentence
[14]   This Court will revise a sentence authorized by statute only “if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Ind. Appellate Rule 7(B). The question is not whether another

       sentence is more appropriate, but whether Cannon’s sentence is inappropriate.

       King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The “nature of the

       offense” refers to a defendant’s actions in comparison with the elements of the

       offense. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The “character of

       the offender” refers to “general sentencing considerations and the relevant

       aggravating and mitigating circumstances.” Douglas v. State, 878 N.E.2d 873,

       881 (Ind. Ct. App. 2007).




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 10 of 45
[15]   Cannon has the burden of proving that his sentence is inappropriate in light of

       the nature of the offense and his character. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006). “[Deference to trial courts] should prevail unless overcome

       by compelling evidence portraying in a positive light the nature of the offense

       (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The

       trial court imposed an aggregate sentence of fifteen years of incarceration, with

       the sentencing range for a Level 3 felony (his most serious conviction) being

       three to sixteen years with nine as the advisory. See Ind. Code § 35-50-2-5(b).


[16]   The nature of Cannon’s offenses justifies his fifteen-year sentence. Cannon was

       convicted of heroin and marijuana possession and maintaining a common

       nuisance. Cannon possessed approximately eighty-eight grams of heroin, over

       three times the amount necessary to prove a Level 3 felony possession charge.

       See Ind. Code § 35-48-4-6(d)(1) (providing that, to be a Level 3 felony, the

       defendant must possess “at least twenty-eight (28) grams” of the narcotic drug).

       Cannon also possessed over sixteen grams of marijuana. Perhaps most

       disturbing, considering that Cannon shared his house with his not-yet-two-year-

       old child, was the presence of no fewer than three loaded firearms, including

       one that was found in the child’s bedroom. The nature of Cannon’s offenses

       justifies his enhanced sentence.


[17]   Cannon’s character, especially as revealed by his lengthy criminal history, also

       justifies his enhanced sentence. Cannon, born in September of 1988,

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 11 of 45
       accumulated juvenile delinquency adjudications for habitual disobedience of a

       parent, guardian, or custodian; theft; and battery resulting in bodily injury and

       was taken into custody a total of eight times. (Appellant’s App. Vol. II 124–

       26). As an adult, Cannon has prior convictions for two felonies and ten

       misdemeanors, including Class D felony marijuana possession, Class D felony

       operating a vehicle as a habitual traffic violator, Class A misdemeanor criminal

       trespass, Class A misdemeanor possession of marijuana/hash oil/hashish,

       Class A misdemeanor battery resulting in bodily injury, Class A misdemeanor

       driving never having received a license, Class B misdemeanor visiting a

       common nuisance, two counts of Class B misdemeanor public intoxication, two

       counts of Class C misdemeanor driving never having received a license, and

       Class C misdemeanor operating with blood alcohol concentration of 0.08 but

       less than 0.15. Cannon has been found to be non-compliant with provisions of

       community supervision on four occasions. As of sentencing in this case,

       Cannon has charges pending for four more felony drug-dealing charges, set to

       go to trial in June of 2017. Cannon admitted that he used marijuana and

       heroin daily before his arrest on November 18, 2015. In summary, Cannon’s

       history, at the very least, indicates that he has serious issues with substance

       abuse that he has chosen not to address, despite his frequent contacts with the

       criminal justice system and recently becoming a father. In light of the nature of

       his offenses and his character, Cannon has failed to establish that his fifteen-

       year sentence is inappropriately harsh.


[18]   We affirm the judgment of the trial court.


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 12 of 45
Crone, J., concurs.


Robb, J., dissents with opinion.




Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 13 of 45
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Dion Cannon,                                                Court of Appeals Case No.
                                                                   34A05-1707-CR-1544
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Robb, Judge, dissenting

[19]   I respectfully dissent from the majority’s conclusion that the admission of

       evidence of other bad acts “can only be considered harmless.” Slip op. at ¶ 3.

       Because of the majority’s disposition of case, they did not tread into the often-

       turbulent waters of Rule 404(b). However, because I conclude the evidence’s

       admission was not harmless—I must.


                         I. Admission of Rule 404(b) Evidence
[20]   At trial, Linville was asked how she helped aid, induce, or caused Cannon to

       deal drugs, and she replied “[b]y taking him places.” Tr., Amended Vol. I at

       136. Cannon objected to Linville’s statements, arguing that they violated

       Indiana Evidence Rule 404(b). The trial court overruled Cannon’s objections

       and allowed the State to present the evidence in order to prove Cannon’s intent

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018               Page 14 of 45
and knowledge under Rule 404(b)(2). Over Cannon’s continuous objection,

Linville testified to the following:


        [State]:          And what was the purpose in taking him?


        [Linville]:       For a drug sale.


        [State]:          And did he conduct a drug sale at that time?


        [Linville]:       Correct.


        [State]:          Do you know what type of drug it was?


        [Linville]:       At what point and what time?


        [State]:          When you drove him to the place where the drug
                          sale took place, did you know what kind of drug it
                          was?


        [Linville]:       I don’t understand the question, I—


        [State]:          Well, what was he selling?


        [Linville]:       When though? I don’t understand. I don’t know
                          when I was charged for aiding, inducing, what sale
                          or when it was.


        [State]:          The aiding, inducing, causing charge was the one
                          you were arrested for at the salon?


        [Linville]:       Correct.


Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018      Page 15 of 45
        [State]:          And you’re telling me you don’t recall the date of
                          that event?


        [Linville]:       When I got arrested, yes.


        [State]:          No, no, no. When the actual sale took place?


        [Linville]:       I thought there was a few of them.


        [State]:          We’re talking about things that took place in 2015,
                          correct?


        [Linville]:       Right.


        [State]:          And did Mr. Cannon sell things, different kind [sic]
                          of drugs?


        [Linville]:       The—


        [Defense Counsel]: Your Honor, I’m going to object, not only
                           my continuous previous objection but also
                           from preponderance standard which is
                           definitely not met at this point.


        [The Court]: Overruled.


        [State]:          What type of drugs did he sell?


        [Linville]:       Heroin and cocaine.


        [State]:          Did you drive him to an event in August of 2015
                          when he sold heroin?

Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018      Page 16 of 45
               [Linville]:       Correct.


               [State]:          Did Mr. Cannon have a job?


               [Linville]:       No.


               [State]:          How did he support himself?


               [Linville]:       By selling drugs.


               [State]:          Did you go with him on drug sales?


               [Linville]:       Yes.


       Id. at 147-48. Linville also confirmed that Cannon used the red vase on the

       shelving unit, stating “[s]ometimes money or sometimes drugs were in there.”

       Id. 153.


[21]   Evidence Rule 404(b) states:


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
                   admissible to prove a person’s character in order to show that
                   on a particular occasion the person acted in accordance with
                   the character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
                   admissible for another purpose, such as proving motive,
                   opportunity, intent, preparation, plan, knowledge, identity,
                   absence of mistake, or lack of accident. . . .




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 17 of 45
       “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.” Thompson

       v. State, 690 N.E.2d 224, 233 (Ind. 1997). When a defendant objects to the

       admission of evidence on the ground that the evidence would violate Rule

       404(b), we apply the following test:


               (1) The court must determine that 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) The court must balance the probative value of the evidence
                   against its prejudicial effect pursuant to Rule 403.


       Id.


[22]   Evidence Rule 403 provides:


               The court may exclude relevant evidence if its probative value is
               substantially outweighed by a danger of one or more of the
               following: unfair prejudice, confusing the issues, misleading the
               jury, undue delay, or needlessly presenting cumulative evidence.


[23]   Thus, if the “sole apparent purpose” of the evidence is to suggest the forbidden

       inference—that the defendant acted in conformity with that criminal

       character—the evidence is inadmissible. Pierce v. State, 29 N.E.3d 1258, 1269

       (Ind. 2015). However, such evidence may be admissible for another purpose

       such as proof of motive, opportunity, intent, preparation, plan, knowledge,



       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018     Page 18 of 45
       identity, absence of mistake, or lack of intent if the evidence survives Rule 403

       balancing. Id.


[24]   Cannon argues neither intent nor knowledge were at issue for the admission of

       Linville’s testimony and that the State’s evidence created “exactly the type of

       inferences 404(b) is designed to prevent.” Appellant’s Brief at 10. In response,

       the State argues Linville’s testimony was admissible to prove Cannon’s intent

       and knowledge because Cannon placed those subjects at issue with questions

       during voir dire.


                                                      A. Intent
[25]   On appeal, the State comingles its arguments regarding intent and knowledge.

       However, they are two different permissible uses of Rule 404(b) evidence and

       must be considered separately. I begin with intent.


[26]   In Wickizer v. State, 626 N.E.2d 795 (Ind. 1993), our supreme court elaborated

       on the intent exception of 404(b). There, the defendant was charged with child

       molestation and, over objection, the State presented evidence of the defendant’s

       prior sexual conduct with other children. Thereafter, the defendant testified

       and admitted that while he did touch the victim’s penis, he did so for a non-

       sexual purpose.3 During final jury instructions, the trial court admonished the




       3
        The charged offense included the element “with intent to arouse or to satisfy the sexual desires of either the
       child or the older person.” Id. at 797 (citing Ind. Code § 35-42-4-3(d) (1981)).

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                         Page 19 of 45
       jury that evidence of the defendant’s prior sexual misconduct was “received

       solely on the issue of the defendant’s depraved sexual instinct.” Id. at 800.


[27]   The defendant appealed and our supreme court accepted transfer “to address

       questions regarding the admissibility of prior conduct evidence under the

       ‘intent’ exception . . . .” Id. at 796. The court explained:


               Admission of prior uncharged misconduct infers that the
               defendant is of bad character and poses the danger that the jury
               will convict solely upon this inference. . . . However, because the
               mental state or culpability of a defendant is an element to be
               proven by the prosecution in virtually every criminal case,
               properly introduced evidence of intent typically is found to be
               relevant and of probative value and thus admissible at trial.


       Id. at 797 (citation omitted). After reviewing various judicial perspectives on

       the admission of intent evidence, our supreme court concluded:


               Indiana is best served by a narrow construction of the intent
               exception in Evid. R. 404(b). It does not authorize the general
               use of prior conduct evidence as proof of the general or specific
               intent element in criminal offenses. To allow the introduction of
               prior conduct evidence upon this basis would be to permit the
               intent exception to routinely overcome the rule’s otherwise
               emphatic prohibition against the admissibility of other crimes,
               wrongs, or acts to prove the character of a person in order to
               show action in conformity therewith. In this context, admission
               of prior bad acts would frequently produce the “forbidden
               inference” cautioned against in [Hardin v. State, 611 N.E.2d 123,
               129 (Ind. 1993)].


               The intent exception in Evid. R. 404(b) will be available when a
               defendant goes beyond merely denying the charged culpability

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 20 of 45
                and affirmatively presents a claim of particular contrary intent.
                When a defendant alleges in trial a particular contrary intent,
                whether in opening statement, by cross-examination of the
                State’s witnesses, or by presentation of his own case-in-chief, 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.


       Id. at 799.


[28]   Here, the State appears4 to argue that Cannon went beyond merely denying the

       charged culpability and affirmatively presented a claim of particular contrary

       intent because Cannon’s defense was “that he did not know about the drugs in

       his house.” State’s Br. of Appellee at 15. I disagree.


[29]   In support of its argument, the State claims, “This Court has allowed evidence

       of prior dealing to show knowledge and intent where a defendant challenges his

       knowledge of the drug,” and relies—to its own detriment—on Samaniego-

       Hernandez v. State, 839 N.E.2d 798 (Ind. Ct. App. 2005), abrogated on other

       grounds by Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (clarified on reh’g, 875

       N.E.2d 218 (2007)). State’s Br. of Appellee at 14. There, although we held that

       it was not an abuse of discretion for the trial court to admit evidence of a

       controlled buy to show the defendant’s knowledge, as discussed at greater

       length below, we cautioned:




       4
         Because the State comingles its arguments regarding intent and knowledge, at times it is difficult to discern
       to which exception an argument applies. See State’s Br. of Appellee at 14-16.

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                         Page 21 of 45
               although Samaniego put both his knowledge and intent at issue,
               the evidence was admissible only as a challenge to his lack of
               knowledge. He did not affirmatively offer some contrary intent
               with regard to the cocaine but rather merely denied any intent at
               all due to his lack of knowledge in the first place. See Wickizer v.
               State, 626 N.E.2d 795 (Ind. 1993) (the intent exception of Ind. R.
               Evid. 404(b) is available where a defendant goes beyond merely
               denying the charged culpability and affirmatively presents a
               claim of particular contrary intent).


       Id. at 803 n.5.


[30]   Similarly, here, the State argues Cannon’s defense was simply that he did not

       know about the drugs. I believe this is a mischaracterization of Cannon’s

       defense but, nevertheless, even assuming that were true, claiming a lack of

       knowledge is insufficient to affirmatively offer contrary intent. Therefore, I

       believe Linville’s testimony was inadmissible under the intent exception of

       Evidence Rule 404(b). See, e.g., Udarbe v. State, 749 N.E.2d 562, 566 (Ind. Ct.

       App. 2001) (holding where defendant merely maintained his innocence and did

       not present a claim of particular contrary intent, admission of prior uncharged

       acts under the intent exception to Rule 404(b) was an abuse of discretion).


                                                B. Knowledge
[31]   The trial court also admitted Linville’s testimony under the knowledge

       exception to Evidence Rule 404(b). Knowledge, like intent, is one of the

       purposes for which evidence of other crimes, wrongs, or acts may be admitted.

       Such evidence is most commonly used to rebut the possibility that the



       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 22 of 45
       defendant was unaware that a criminal act was being committed. 12 Robert L.

       Miller, Jr., Indiana Practice: Indiana Evidence, § 404.203 (3d ed. 2007).


                                                     1. At Issue

[32]   Cannon argues—as he did with intent—that he never placed his knowledge at

       issue for admission of Rule 404(b) evidence. In response, the State maintains

       that Cannon placed his knowledge at issue with questions during voir dire.


[33]   A threshold question is whether Indiana law requires knowledge to be placed at

       issue at all. Our supreme court explained that when a defendant objects to the

       admission of evidence on the ground that the evidence would violate Rule

       404(b), the first step of our two-step inquiry is to “determine that 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. . . .” Thompson, 690 N.E.2d

       at 233 (emphasis added).


[34]   A matter is “at issue” if it is relevant to the resolution of a case. Our system of

       criminal jurisprudence was built on a premise that “actus non facit reum nisi

       means sit rea, meaning an act does not make one guilty unless his mind is

       guilty.” U.S. v. Bates, 96 F.3d 964, 967 (7th Cir. 1996), affirmed by Bates v. U.S.,

       522 U.S. 23 (1997); see also Morissette v. U.S., 342 U.S. 246, 251-52 (1952) (the

       concept of crime as a “concurrence of an evil-meaning mind with an evil-doing

       hand . . . took deep and early root in American soil.”). Nearly all crimes,

       therefore, require “proof that the defendant not only committed a wrongful act,

       but that he did so with the requisite mens rea, or culpable mental state.” Bates,

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 23 of 45
       96 F.3d at 967; see also Wickizer, 626 N.E.2d at 797 (“[T]he mental state or

       culpability of a defendant is an element to be proven by the prosecution in

       virtually every criminal case . . . .”). To signify the common law requirement of

       mental culpability, legislatures have employed words such as “intentionally,”

       “willfully,” or “purposely.” Bates, 96 F.3d at 967. These elements necessarily

       require that a defendant acted at least knowingly, that is, with knowledge of his

       or her actions. Thus, with the limited exception of strict liability offenses, a

       defendant’s knowledge is always, at least nominally, “at issue.”


[35]   In this regard, the knowledge exception is similar to the intent exception

       outlined in Wickizer v. State. There, as more thoroughly discussed above, see ¶ 9,

       supra, our supreme court explained that the intent exception to Rule 404(b)

       should be given a narrow interpretation. 626 N.E.2d at 799. Therefore, in

       order for intent to be placed at issue and for relevant Rule 404(b) evidence to be

       admissible, the defendant must go “beyond merely denying the charged

       culpability and affirmatively present[] a claim of particular contrary intent.” Id.


[36]   Relying on Wickizer, we have previously held that—at least with respect to a

       defendant’s knowledge of the wrongfulness of his actions—Rule 404(b)

       evidence is only admissible when the defendant affirmatively puts his

       knowledge at issue. Whitehair v. State, 654 N.E.2d 296, 302 (Ind. Ct. App.

       1995). In Whitehair, the defendant was charged with receiving stolen property

       by purchasing a stolen ATV. The State sought to admit evidence of stolen tires

       in the defendant’s garage to show that he also knew the ATV was stolen. The

       defendant argued he had not affirmatively placed his knowledge at issue and, in

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 24 of 45
       turn, the State argued that the defendant’s statement to police that he purchased

       the ATV but lacked a receipt and defense counsel’s opening statement that the

       defendant must be “proven guilty of knowing [sic] and intentionally retaining

       the property of another person, that has been the subject of a theft[,]” was

       sufficient to put the defendant’s knowledge at issue. Id. Describing the

       evidence as “a close call,” we found the combination of the evidence placed the

       defendant’s knowledge at issue and we concluded that the State was allowed to

       use “evidence of extrinsic acts of misconduct to show that [the defendant] was

       not a naïve purchaser, but rather knew that the ATV at issue had been the

       subject of a theft.” Id.


[37]   Next, we applied the knowledge exception more broadly in Samaniego-

       Hernandez. There, as opposed to Whitehair where the issue was the defendant’s

       knowledge of wrongfulness of his actions, Samaniego’s trial strategy was to

       deny knowledge of the crime completely. Samaniego’s home was the subject of

       a search warrant after Samaniego and his wife sold cocaine to a police

       informant. During the execution of the search warrant, Samaniego was

       handcuffed on the front porch and police located drugs and numerous

       individuals inside the home. At trial, Samaniego explained in his opening

       statement that those individuals “were in proximity or the direct location of all

       of the various items that were found . . . .” 839 N.E.2d at 803. And,

       throughout the trial, Samaniego “cross-examined witnesses to show that he had

       nothing to do with the cocaine[,]” intentionally fostering “the impression that

       he knew nothing about the cocaine[,]” which was “clearly supported by


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 25 of 45
       Samaniego’s closing argument as well as his statements to the judge during

       trial.” Id.


               For these reasons, we believe that evidence of the controlled buy
               was not introduced solely to prove the forbidden inference of
               Samaniego’s propensity to commit the charged crime. Rather,
               Samaniego put his knowledge of the cocaine at issue, thereby
               “opening the door” to the admissibility of evidence from the
               controlled buy. That evidence was admissible to challenge the
               impression that Samaniego could not have had knowledge of the
               cocaine found in his home.


       Id.


[38]   In Baker v. State, 997 N.E.2d 67 (Ind. Ct. App. 2013), we again broadly applied

       the knowledge exception. Baker was charged with the theft of approximately

       forty-five gallons of gasoline and presented an alibi defense. At trial, a State’s

       witness testified that he and Baker had stolen gas “[l]ike two or three (2-3)

       times.” Id. at 71. The State argued that it was “entitled to refute [Baker’s alibi

       defense] by introducing evidence of prior offenses of the same nature to show

       [Baker’s] knowledge, identity, and intent.” Id. Concluding the evidence was

       not admissible under the knowledge exception to Rule 404(b), we explained:


               Nothing in the record indicates that Baker put his knowledge in
               issue. Baker did not claim that he believed that he was entitled to
               take the gasoline. Rather, he claimed that he was not involved in
               the alleged theft of the gasoline.


       Id.



       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 26 of 45
[39]   Federal Rule of Evidence 404(b) also requires a defendant to “meaningfully

       dispute” the non-propensity issue in order to justify the admission of Rule

       404(b) evidence—including knowledge. U.S. v. Miller, 673 F.3d 688, 697 (7th

       Cir. 2012). In Miller, similar to the facts presented here, the defendant was on

       trial for possession with intent to distribute. The police found a large quantity

       of drugs packaged into smaller bags with price tags attached and, perhaps

       unsurprisingly, the defendant did not dispute his intent. Rather, the defendant

       argued the drugs belonged to his girlfriend. The court explained:


               The government argues that [the defendant’s] prior conviction is
               relevant to prove intent here, but has not satisfactorily explained
               why this is true. Miller’s defense, that the drugs were not his, has
               nothing to do with whether he intended to distribute them. He
               did not argue that he intended to consume rather than sell the
               drugs, or that he lacked knowledge of cocaine or how to sell it.
               Either argument would have better joined a genuine issue of
               intent or knowledge. Rather, the only conceivable link between
               the defense and intent here would also be true of almost any
               defense [the defendant] might raise; by pleading not guilty, [the
               defendant] necessarily contradicted the government’s belief that
               he intended to distribute the drugs.


       Id. at 698.


[40]   This court has previously cautioned that, “We must take care to ensure that

       Rule 404(b)’s exceptions do not swallow the rule.” Remy v. State, 17 N.E.3d

       396, 400 (Ind. Ct. App. 2014), trans. denied. Mindful thereof, I am convinced

       Indiana law requires that a defendant must first place their knowledge at issue

       before relevant evidence of prior crimes or bad acts is admissible under Rule


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 27 of 45
       404(b). After all, the same concerns underlying the intent exception and the

       “forbidden inference” in our supreme court’s decision in Wickizer, also haunt

       the knowledge exception. 626 N.E.2d at 799. And, as the Seventh Circuit

       explained in Miller, “if merely denying guilt opens the door wide to prior

       convictions for the same crime, nothing is left of the Rule 404(b) prohibition.”

       673 F.3d at 698. I therefore conclude in order for knowledge to be placed at

       issue, defendants must go beyond simply pleading not guilty—even though by

       doing so they necessarily contradict the State’s allegation that they had

       knowledge of the crime—and affirmatively claim a lack of knowledge.


                                                    2. Voir dire

[41]   Having determined that a defendant must first affirmatively claim a lack of

       knowledge before Rule 404(b) evidence may be admitted, I turn to the question

       of whether Cannon placed his knowledge at issue. The trial court found—as

       the State now argues on appeal—that Cannon placed his knowledge at issue by

       posing “several questions that probed prospective jurors about lack of

       knowledge” during voir dire. State’s Br. of Appellee at 15; see Tr., Amended

       Vol. I at 142-43. In turn, Cannon contends these questions were insufficient to

       place knowledge at issue, and that he never argued a lack of knowledge during

       the trial.


[42]   With the potential exception of questions during voir dire, which I discuss

       further below, Cannon did not affirmatively argue lack of knowledge during the




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 28 of 45
trial itself.5 Defense counsel’s opening statement simply asked the jury to

provide Cannon with the presumption of innocence, consider the motivation

and purposes for witness testimony, and “at the end of the day return two (2)

guilty verdicts and (4) not-guilty verdicts.”6 Tr., Amended Vol. I at 49.

Although the State argues “Cannon asked questions on cross-examination that

were meant to show that Cannon did not have knowledge about the drugs in

the house[,]” State’s Br. of Appellee at 15, I am unable to discern the specific

questions to which the State refers and my review of defense counsel’s cross-

examination of the State’s witnesses does not create that impression. Similarly,

I disagree with the State’s assertion that Cannon continued to advance a theory

of lack of knowledge in closing argument when he stated:


         The evidence as to his possession of this [heroin] comes from Ms.
         Linville. . . . She agrees to come up here, point the finger at Mr.
         Cannon and say it’s his fault, he’s a bad person, he did it, blame
         him. I’ll get out of jail. She gets to point the finger at the
         boyfriend that cheated on her. She gets to get back at him, and
         that’s what the State wants you to believe. . . . On top of all that
         no one took the stand and said I saw Dion Cannon possess and
         touch 88 grams of heroin. . . . She was the one that had the
         drugs, that knew about them, that bought the drugs, that had




5
 Voir dire is not part of a trial. Nix v. State, 240 Ind. 392, 395-96, 166 N.E.2d 326, 327 (1960). The trial does
not begin until the jury is impaneled and the cause is submitted. Id.
6
  Cannon was also convicted of maintaining a common nuisance and possession of marijuana but the defense
admitted to these charges at trial and asked that the jury find Cannon guilty accordingly. Tr., Amended Vol.
I at 48.

Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                          Page 29 of 45
               access to the money that paid for the drugs. The reason she had
               firsthand knowledge was because they were her drugs.


       Tr., Amended Vol. II at 19-23. I view Cannon’s closing argument as doing

       nothing more than contending the drugs were Linville’s, not his, and that she

       had a motive to lie. Besides, questions during cross-examination and closing

       argument came after the State admitted Rule 404(b) evidence regarding

       Cannon’s knowledge and it must first be placed at issue. Therefore, whether

       Cannon placed knowledge at issue turns solely on the “several questions that

       probed prospective jurors about lack of knowledge” during voir dire. State’s Br.

       of Appellee at 15.


[43]   Cannon has not provided this court with the transcript of voir dire and therefore

       I will not speculate as to his exact questions to jurors. However, during the

       Rule 404(b) discussion outside the presence of the jury, the State made several

       unchallenged assertions regarding Cannon’s questions during voir dire:


               Well, Judge, I believe [Cannon] did in fact open the door to this
               whole issue when we went through the jury selection process.
               He asked all the jurors are there other people in your house, did
               your kids hide something in your house that you don’t know
               about, can your spouse hide something in your house, can they
               do things in your house that you don’t know about. So all the
               time that this jury was being selected [defense counsel is] over
               here laying the groundwork to convince them that his client
               didn’t do anything, that his client didn’t know anything, that his
               client didn’t have any intent to do anything.




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 30 of 45
       Tr., Amended Vol. I at 140-41. Similarly, the trial court explained in overruling

       Cannon’s objection:


               If the evidence comes in [under the intent exception], then the
               knowledge is irrelevant. Then we also have a very interesting
               issue that [the State] raises is that during the voir dire you in fact
               did question people about whether or not people could hide
               things in their house and them not know about it and so forth
               and basically the, [sic] and I recognize that was my impression of
               what you were attempting to do on voir dire was based on my
               trial practice and not necessarily what you intend to do, but you
               were laying the ground work to make a final argument that they
               didn’t show they knew about it and thereby trying to take
               advantage of the situation through inoculation if you will during
               the voir dire process to foreclose the State from raising that issue
               and then trying to bring it up at the end and I don’t think that is
               fair to the State. So I think knowledge is an issue at this point.


       Id. at 142-43.


[44]   On this issue, I view the facts presented as analogous to Sundling v. State, 679

       N.E.2d 988 (Ind. Ct. App. 1997). There, Sundling was charged with child

       molestation and, during voir dire, “Sundling’s attorney asked prospective jurors

       various general questions regarding whether they understood that the testimony

       of small children could be manipulated by parents, police and therapists.” Id. at

       992. The State then filed its notice to offer Rule 404(b) evidence and the trial

       court permitted the evidence for the purpose of determining whether “the

       witness’ testimony may be fantasized.” Id. Sundling was convicted and

       appealed, arguing the Rule 404(b) evidence was erroneously admitted. We

       reversed Sundling’s conviction and explained:

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 31 of 45
               [A]n examination of the record reveals that Sundling did not
               place the contention that the victims were fantasizing about their
               molestations in issue. None of the questions posed to the jury
               used the word “fantasy” or suggested that either [of the victims]
               “fantasized” the alleged molestations. Sundling’s voir dire of
               potential jurors merely pointed out that the testimony of young
               children could be manipulated by parents, police and therapists.
               Importantly, Sundling never presented any specific factual claim
               at trial that [the victims] “fantasized” their sexual encounters so
               as to allow the prosecution to rebut with evidence of prior
               misconduct. Whether the children fantasized their molestation
               was simply not put in issue; and consequently, it may not serve
               as an excuse for the admission of Sundling’s extraneous bad acts
               or uncharged crimes.


       Id. at 993.


[45]   Similarly, had Cannon’s questions during voir dire been combined with

       argument in his opening statement, closing argument, or questions during cross-

       examination, they may very well have been sufficient to place knowledge at

       issue. See, e.g., McClendon v. State, 910 N.E.2d 826, 832 n.2 (Ind. Ct. App. 2009)

       (noting “it is apparent from sidebar conversations that [the defendant] raised the

       issue of self-defense in voir dire and his opening statement”), trans. denied. But

       that is not the case before us. The questions were isolated and aimed at

       inquiring into the potential jurors’ biases or tendency to believe or disbelieve

       something. See Hopkins v. State, 429 N.E.2d 631, 635 (Ind. 1981) (noting the

       proper use of questions during voir dire).


[46]   In this respect, Cannon’s questions are even less likely to raise an issue than the

       statements disguised as questions in Sundling. There, defense counsel asked

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 32 of 45
       whether prospective jurors “understood that the testimony of small children

       could be manipulated by parents, police and therapists.” Sundling, 679 N.E.2d

       at 992. As Judge Chezem aptly noted in her Sundling dissent, “Our supreme

       court has held that ‘it is not the function of voir dire examination to ‘inform’ the

       jurors of anything.’” Id. at 994-95 (citing Blackburn v. State, 271 Ind. 139, 390

       N.E.2d 653, 656 (1979)). Because Sundling did not raise the defense of

       manipulation in his case-in-chief and his statements to the jury “were not valid

       attempt[s] to understand the potential jurors’ understanding[,]” Judge Chezem

       concluded the Rule 404(b) evidence was properly admitted so that the State

       could rebut the issue Sundling raised in voir dire. Id. at 995-96. I share no such

       dilemma here and I believe Cannon’s questions during voir dire, standing

       alone, were insufficient to place his knowledge at issue.


                                        C. Forbidden Inference
[47]   Cannon argues that the State admitted the evidence to suggest the forbidden

       inference, i.e., “for the purpose of showing bad guy [sic] sitting at defense

       counsel table is guilty of drug dealing and possession of drugs because he is a

       bad guy who has dealt drugs and been in possession of drugs in the past.”

       Appellant’s Br. at 10.


[48]   We have previously explained that the reason the forbidden inference is

       forbidden is not because the inference is unreasonable, but because it is

       reasonable and thus susceptible to misuse. Craun v. State, 762 N.E.2d 230, 240

       (Ind. Ct. App. 2002) (Kirsch, J., dissenting), trans. denied. Indeed, the State


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 33 of 45
       would need to do little more than list a defendant’s prior convictions and

       alleged bad acts to sway the minds of many jurors. That is why courts require a

       “prosecutor who wants to use prior bad acts evidence [to] come to court

       prepared with a specific reason, other than propensity, why the evidence will be

       probative of a disputed issue that is permissible under Rule 404(b). Mere

       recitation that a permissible Rule 404(b) purpose is ‘at issue’ does not suffice.”

       Miller, 673 F.3d at 700.


[49]   As I concluded above, neither knowledge nor intent were affirmatively placed

       at issue. By introducing much of Linville’s testimony, the State distracted from

       the events of November 18, 2015, and, by its own admission, attempted to

       “show the defendant was engaged in the continuous pattern of drug dealing for

       years and negate the defendant’s defense that the defendant did not commit the

       crimes.” Tr., Amended Vol. I at 144. This is the very inference that Rule

       404(b) prohibits. See U.S. v. Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (“The

       inference from ‘pattern’ by itself is exactly the forbidden inference that one who

       violated the drug laws on one occasion must have violated them on the

       occasion charged in the indictment. Unless something more than a pattern and

       temporal proximity is required, the fundamental rule is gone. This is why

       ‘pattern’ is not listed in Rule 404(b) as an exception.”). Put simply, the

       evidence was not relevant to a matter at issue other than the defendant’s

       propensity to commit the charged acts and, therefore, it was inadmissible.




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 34 of 45
                                                     II. Error
[50]   Having concluded the admission of the evidence was an abuse of the trial

       court’s discretion, I turn to its prejudicial impact. Sundling, 679 N.E.2d at 994.

       The majority concludes that its admission, even if in error, was harmless.

       However, if Rule 404(b) is to serve any purpose at all, I must disagree.


[51]   “Generally, errors 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). In determining the effect of the evidence on a defendant’s

       substantial rights, we look to the probable impact on the fact finder. Id.

       Moreover, the “improper admission [of evidence] is harmless error 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.


[52]   The only conviction which Cannon appeals is that for possession of a narcotic

       drug. A conviction for possession of a narcotic drug may be supported by either

       actual or constructive possession. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct.

       App. 2011). “Actual possession occurs when a defendant has direct physical

       control over an item, whereas constructive possession occurs when a person has

       the intent and capability to maintain dominion and control over the item.” Id.

       On appeal, the State appears to argue there was “strong” evidence of both

       constructive and actual possession and that the evidence “provides a strong

       inference that Cannon actually possessed the heroin and hid it in the shelf when


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 35 of 45
the police arrived.” State’s Br. of Appellee at 17-18. This latter contention,

however, contradicts the State’s own closing argument and the uncontested

evidence presented at trial. Sergeant Taylor, who had observed Cannon hide

something on the shelf through the window, testified:


        [Defense Counsel]: I’m going to show you what’s been marked
                           as State’s Exhibit 2. Is that the shelving unit
                           you’re talking about, sir?

        [Officer Taylor]:          Yes.

        [Defense Counsel]: I only see four shelves in that picture. One
                           very recognizable above, one very
                           recognizable below.

        [Officer Taylor]:          Uh huh.

        [Defense Counsel]: Where was the heroin located?

        [Officer Taylor]:          It was in a red vase.

        [Defense Counsel]: Is there a red vase in that picture, sir?

        [Officer Taylor]:          It might be on that bottom shelf. I know the,
                                   I don’t, I don’t I wasn’t the one, I was just
                                   walking out of the room when Officer Root
                                   was pulling the—

        [Defense Counsel]: But you don’t recall where the heroin came
                           from?

        [Officer Taylor]:          No, I know it came from that shelf because
                                   he had pulled the vase from that area and was
                                   pulling the grapes out when I had walked into
                                   the living room when he said that he had
                                   located some more narcotics.



Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018     Page 36 of 45
               [Defense Counsel]: Was this before or after the vase was
                                  removed?

               [Officer Taylor]:          I’m not sure. You would have to ask Officer
                                          Melton.

               [Defense Counsel]: Ok. Is this the shelf where the marijuana was
                                  located?

               [Officer Taylor]:          Yes.

               [Defense Counsel]: Ok. Would that be on the center shelf just
                                  behind that item laying on its side that you
                                  said appeared to be a firearm?

               [Officer Taylor]:          Yeah, there’s one, two, three, and then
                                          there’s shelving down here.

               [Defense Counsel]: Ok. That was the shelf that he went to, is
                                  that correct?

               [Officer Taylor]:          Yes.

               [Defense Counsel]: And that was where the marijuana was
                                  located?

               [Officer Taylor]:          Yes.

               [Defense Counsel]: And he admitted that he had had marijuana
                                  and placed it on that shelf, did he not?

               [Officer Taylor]:          Yes.

       Tr., Amended Vol. I. at 68-69.


[53]   The shelving unit in question contains five to six shelves. On what appears to

       be the second shelf from the top, officers located a small, bowl containing 16.23

       grams of marijuana. Sergeant Taylor testified this was the shelf on which


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018    Page 37 of 45
       Cannon appeared to hide something—not the shelf containing heroin two

       shelves below. Moreover, the bowl was open, which would have easily allowed

       Cannon to place the marijuana inside it before answering the door. The vase

       containing heroin, however, was full of “some plastic, like fake, grapes” which

       officers had to remove in order to reveal its contents. Id. at 61. These

       uncontested facts prevent a reasonable inference that Sergeant Taylor witnessed

       Cannon place heroin on the shelving unit. Therefore, the record does not

       support actual possession because there was no evidence that Cannon had

       direct physical control over the heroin. Griffin, 945 N.E.2d at 783.


[54]   Indeed, the State conceded in its closing argument that Cannon hid marijuana

       on the shelf—not heroin—proceeding on a theory of constructive possession.

       The State argued:


                Where’d that bag of marijuana come from? . . . he picks that bag
                up off the counter and he takes it into the dining room and where
                does he put it? He puts it on the third same shelf where the
                heroin is. What’s that tell you? That shelf is his hiding place.

       Tr., Amended Vol. II at 14.7 To fulfill the capability element of constructive

       possession, as the majority emphasizes, slip op. at ¶ 11, the State must

       demonstrate that the defendant was “able to reduce the controlled substance to

       his personal possession.” Grim v. State, 797 N.E.2d 825, 832 (Ind. Ct. App.



       7
         I must assume the State was referring to the same shelving unit, not the “same shelf,” when arguing
       Cannon “put[] [the marijuana] on the third same shelf where the heroin is[,]” id. (emphasis added), because, as
       discussed above, the heroin was located two shelves below where Sergeant Taylor witnessed Cannon appear
       to hide something.

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                        Page 38 of 45
       2003). To prove the second element—intent—the State must demonstrate the

       defendant’s knowledge of the presence of the contraband. Id. When the

       premises on which the contraband was found is in defendant’s exclusive

       control, an inference is permitted that he or she knew of the presence of

       contraband and was capable of controlling it. Griffin, 945 N.E.2d at 784. In

       cases like this, where the premises were not in Cannon’s exclusive control—

       because Linville owned the home and lived there as well—the inference is not

       permitted absent some additional circumstances indicating knowledge of the

       presence of the contraband and the ability to control it. Id. Among the

       recognized additional circumstances are:

                (1) incriminating statements by the defendant; (2) attempted flight or
               furtive gestures; (3) a drug manufacturing setting; (4) proximity of the
               defendant to the contraband; (5) the contraband is in plain view; and
               (6) the location of the contraband is in close proximity to items owned
               by the defendant.

       Id. (citation omitted).


[55]   In arguing these factors on appeal, the State mischaracterizes evidence

       presented at trial. The State alleges that the heroin was found “in a glass vase

       in Cannon’s residence and review of the evidence indicates it was readily

       observed in that open container.” State’s Br. of Appellee at 17. To the

       contrary, several officers testified that the heroin was not readily observable

       because decorative plastic grapes concealed the vase’s contents. Tr., Amended

       Vol. I at 61, 69, 218. The State also continues to argue the evidence supports




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018     Page 39 of 45
       an inference that Cannon put heroin on the shelf as police arrived, which, for

       the reasons discussed above, is unsupported by the record.


[56]   After disposing of such arguments, several factors remain which weigh in the

       State’s favor, including: (1) Cannon admitted to the possession of marijuana,

       which he placed on the same shelving unit as the heroin, albeit two shelves

       above; (2) Linville’s testimony that she gave Cannon $1,800 he intended to use

       to buy drugs; (3) Cannon was home alone; (4) Cannon was in close proximity

       to the heroin; and (5) a digital scale, cutting agent, and several guns were

       discovered in the house. If we were reviewing this case on a challenge to the

       sufficiency of the evidence, I would vote to affirm Cannon’s conviction. Here,

       however, is the crucial issue on which I disagree with the majority: we have

       long held that the “question is not whether there is sufficient evidence to

       support the conviction absent the erroneously admitted evidence, but whether

       the evidence was likely to have had a prejudicial impact on the jury.” Camm v.

       State, 812 N.E.2d 1127, 1137 (Ind. Ct. App. 2004), trans. denied. We adhere to

       the following definition of non-constitutional reversible error, adopted from the

       United State Supreme Court:


               If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but very slight effect, the verdict
               and judgment should stand . . . But if one cannot say, with fair
               assurance, after pondering all that happened without stripping
               the erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude
               that substantial rights were not affected. The inquiry cannot be
               merely whether there was enough to support the result, apart
               from the phase affected by the error. It is rather, even so,
       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 40 of 45
               whether the error itself had substantial influence. If so, or if one
               is left in grave doubt, the conviction cannot stand.

       Miller v. State, 575 N.E.2d 272, 275 (Ind. 1991) (quoting Kotteakos v. United

       States, 328 U.S. 750, 764-65 (1946)).


[57]   Applying this standard, our supreme court faced an analogous situation in

       Bonner v. State, 650 N.E.2d 1139 (Ind. 1995). There, police had received tips

       that Bonner was dealing drugs and began surveillance of his activities,

       ultimately culminating in his arrest and conviction for dealing in cocaine. Id. at

       1040. During Bonner’s trial, three police officers testified to the fact that they

       had been informed that Bonner was trafficking drugs. Id. On transfer, our

       supreme court concluded the officers’ statements were inadmissible hearsay and

       admitting the statements constituted reversible error. The court explained:


               We must recognize that, despite other evidence of the
               defendant’s guilt, the erroneously admitted testimony here was
               likely to have had a prejudicial impact on the jury. The jury,
               faced with the responsibility of determining whether the
               defendant was guilty of the offense of dealing in cocaine on
               February 3, 1989, was subjected to repeated evidence that police
               received information before this date indicating that the
               defendant was participating in “drug trafficking” involving
               cocaine. This assertion was emphasized through its repetition in
               the separate testimony of the three officers.
               ***
               In view of the nature, scope, and repetition of evidence at issue,
               we cannot conclude that there was no substantial likelihood that
               this evidence contributed to the conviction, and thus we decline
               to find the error harmless.


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 41 of 45
       Id. at 1141-42.


[58]   Similarly here, the jury was exposed to numerous references to Cannon’s

       alleged drug-dealing past and I believe the State invited the jury to decide guilt

       for the wrong reasons. Linville’s testimony was replete with such references,

       including allegations that Cannon made his living from “selling drugs” and that

       she often took him places to conduct drug deals. Tr., Amended Vol. I at 148,

       136. When the State sought to elicit the details of Linville’s aiding, inducing, or

       causing charge, she replied, “I thought there was [sic] a few of them.” Id. at

       148. Moreover, the State utilized the Rule 404(b) evidence during its case-in-

       chief and closing argument. On more than one occasion, our supreme court

       has held that such evidence was not harmless. See, e.g., Thompson, 690 N.E.2d

       at 237 (holding evidence was not harmless where State emphasized the

       evidence its opening statement, its case-in-chief, and again in closing

       argument); Wickizer, 626 N.E.2d at 800-01 (holding improperly admitted

       evidence was not harmless where State emphasized evidence in opening and

       closing statements).


[59]   Central to our analysis for harmless error, however, is the nature of the

       erroneously admitted evidence. Here, Linville’s testimony painted a picture of

       Cannon as a longtime drug dealer, unworthy and undeserving of the jury’s

       consideration. The evidence was highly prejudicial—few accusations do more

       to garner a jury’s condemnation than that of “drug dealer” and that, of course,

       is why prosecutors attempt to admit such evidence whenever possible. Given

       the admission of highly prejudicial evidence, it was very likely that the jury used

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 42 of 45
       the evidence precisely for the purpose for which it may not be considered:

       “Cannon is a bad guy and if he did it before he probably did it again.”


[60]   The majority makes much of the trial court’s admonishment to the jury—

       stating that it is presumed to cure any error that might have occurred. Slip op.

       at ¶ 13. I disagree. Here, the trial court informed the jury that the evidence

       “has been received solely on the issue of defendant’s intent or knowledge. This

       evidence should be considered by you only for the limited purpose for which it

       was received.” Tr., Vol. II at 32–33. As discussed above, the evidence was not

       admissible for either purpose and the admonishment specifically authorized its

       consideration. Therefore, the limiting instruction was insufficient to nullify the

       harm and our supreme court has repeatedly found reversible error despite the

       presence of such admonishments. See Thompson, 690 N.E.2d at 237 n.12;

       Wickizer, 626 N.E.2d at 799 n.3. On the facts presented here, I also agree with

       the Seventh Circuit’s conclusion in U.S. v. Miller, regarding an almost identical

       admonishment under similar circumstances. The court explained:


               Some have suggested that such instructions are incoherent even
               to bright laypeople. We leave the broader questions for another
               day. For this case, it is enough to note that when the government
               cannot explain how the prior conviction relates to the question of
               intent without resorting to a propensity inference, it would be
               unfair to expect the jury to do so based only on this instruction.

       673 F.3d at 701-02. Here, the State engaged in the “forbidden inference” in

       arguing for admission of the evidence and even the trial court came dangerously

       close in its ruling:


       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 43 of 45
               Then the next element we get into involve [sic] the crime of
               dealing controlled substances taking place. The evidence we
               have most favorable to the State is that Mr. Cannon is a drug
               dealer, has been a drug dealer for a long period of time, that Ms.
               Linville regularly took him out to drug deals. There’s been no
               testimony that he’s ever dealt drugs from the home . . . .

       Tr., Amended Vol. I at 227-28. Thus, I believe it would be disingenuous to

       conclude that the jury—unfamiliar with the intricacies of the rules of

       evidence—did otherwise.


[61]   Furthermore, the record reveals that Cannon engaged in a trial strategy aimed

       at preventing the State from admitting Rule 404(b) evidence. This strategy—

       though quite skillful under the circumstances—required Cannon to be careful

       not to place a Rule 404(b) exception “at issue,” and effectively relegated the

       defense to highlighting reasonable doubt within the State’s case-in-chief. Had

       Cannon known that Rule 404(b) evidence would be admitted, regardless of

       whether he opened the door for it to be admitted or not, he may have employed

       different strategies. See Mack v. State, 736 N.E.2d 801, 803 (Ind. Ct. App. 2000)

       (“The collateral criminal conduct of being known to deal drugs, whether

       substantiated by direct reference to a previous conviction or as an unsolicited

       basis of reference, is the type of harm that [the defendant] sought to avoid. To

       be tagged as a known drug dealer in this sparse evidentiary situation was not

       harmless.”), trans. denied. Accordingly, although not necessary to this analysis,

       I also believe that Cannon’s defense was prejudiced by the error.




       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018   Page 44 of 45
[62]   In conclusion, I believe this case presents the very reason Rule 404(b) exists:

       the “forbidden inference” is all but obvious from the record.8 Moreover, there

       was no “substantial independent evidence of guilt” required to prove that there

       was “no substantial likelihood the challenged evidence contributed to the

       conviction.” Hoglund, 962 N.E.2d at 1238. This was, after all, only a case of

       constructive possession and our role is not to search the record for any scintilla

       of evidence to support a conviction, nor is it our role to “become . . . a second

       jury to determine whether the defendant is guilty.” Neder v. U.S., 571 U.S. 1, 19

       (1999); see Hamilton, 49 N.E.3d at 556. Rather, our role is to determine

       “whether the error itself had substantial influence. If so, or if one is left in grave

       doubt, the conviction cannot stand.” Miller, 575 N.E.2d at 275.


[63]   “A fair trial is required for every defendant, regardless of his apparent guilt or

       the magnitude of the crimes he may have committed.” U.S. v. Ostrowsky, 501

       F.2d 318, 324 (7th Cir. 1974). Considering the highly prejudicial nature of the

       evidence, its pervasive presence at trial, and the error’s effect on Cannon’s trial

       strategy, I cannot conclude the error was harmless and I would reverse

       Cannon’s conviction.




       8
         See Halliburton v. State, 1 N.E.2d 670, 681 (Ind. 2013) (noting that Rule 404(b) “is designed to prevent the
       jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.”).

       Court of Appeals of Indiana | Opinion 34A05-1707-CR-1544 | April 11, 2018                          Page 45 of 45
