                                                                               Oct 25 2013, 5:49 am
FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                 GREGORY F. ZOELLER
Acklin Law Office, LLC                         Attorney General of Indiana
Westfield, Indiana                             Indianapolis, Indiana

                                               MONIKA PREKOPA TALBOT
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

NATHANIEL BAKER,                               )
                                               )
      Appellant-Defendant,                     )
                                               )
             vs.                               )       No. 35A05-1210-CR-543
                                               )
STATE OF INDIANA,                              )
                                               )
      Appellee-Plaintiff.                      )


                   APPEAL FROM THE HUNTINGTON SUPERIOR COURT
                        The Honorable Jeffrey R. Heffelfinger, Judge
                             Cause No. 35D01-1112-FD-269


                                    October 25, 2013


                             OPINION - FOR PUBLICATION


BRADFORD, Judge
                                           CASE SUMMARY

       During the early morning hours of December 5, 2011, Appellant-Defendant Nathaniel

Baker, J.L.,1 and Rodney Zellers stole approximately forty-five gallons of gasoline belonging

to David Stephan. On December 15, 2011, the State charged Baker with one count of Class

D felony theft. During trial, the State introduced evidence of prior bad acts committed by

Baker. The trial court admitted this evidence over Baker’s objection. Baker presented an

alibi defense, claiming that he was with his fiancée the entire night in question. At the

conclusion of trial, the jury found Baker guilty as charged. The trial court subsequently

imposed a sentence of one and one-half years, with one year suspended. On appeal, Baker

contends that the trial court abused its discretion in admitting the evidence of his prior bad

acts. Concluding that it was error to admit the evidence of Baker’s prior bad acts but that the

admission of the challenged evidence was harmless, we affirm.

                            FACTS AND PROCEDURAL HISTORY

       At approximately 1:00 or 2:00 a.m. on December 5, 2011, Baker and J.L. went to

Zellers’s residence. Baker and J.L. requested that Zellers come and help them steal some

gasoline. Zellers drove Baker’s vehicle to a farm located in Huntington County. Once at the

farm, Baker and J.L. got out of the vehicle and stole approximately forty-five gallons of

gasoline from gasoline tanks located on the property. The farm was owned by Stephan.

Stephan did not know Baker, J.L., or Zellers and did not give any of the men permission to

take the gasoline. It was Baker’s idea to steal the gasoline, and Baker kept all of the


       1
           We use initials when referring to J.L. because he was a minor at all times relevant to this appeal.

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gasoline.

       Later that morning, J.L. went to school. He was sent to the principal’s office because

he smelled like gasoline. While in the principal’s office, J.L. told Detective Mike Davis that

he smelled like gasoline because he, Baker, and Zellers had stolen gasoline earlier that

morning. Shortly thereafter, Detective Davis interviewed Zellers. Zellers admitted that he

had participated, with Baker and J.L., in the theft of gasoline during the early morning hours

of December 5, 2011. Zellers also agreed to take Detective Davis to the location from where

they had stolen the gasoline.

       On December 15, 2011, the State charged Baker with one count of Class D felony

theft. On April 17, 2012, Baker filed a notice of alibi. The trial court conducted a jury trial

on September 23, 2012. During trial, Baker’s fiancée, Sherry Draper, testified that Baker

could not have participated in the theft because he was with her on the night in question.

Draper testified that she picked Baker up from work at 1:30 a.m. and that they stayed up until

nearly 4:00 a.m.     On cross-examination, the State attacked Draper’s credibility by

questioning her about why she did not pick Baker up from work until 1:30 a.m. when his

employment records indicated that his shift ended and he clocked out at 12:30 a.m.

Following the conclusion of the presentation of evidence, the jury found Baker guilty as

charged. The trial court subsequently sentenced Baker to a term of one and one-half years,

with one year suspended to probation.

                             DISCUSSION AND DECISION

                                 I. Admission of Evidence


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       Baker contends that the trial court abused its discretion in admitting certain evidence

at trial. Specifically, Baker argues that the trial court abused its discretion in admitting

evidence of his prior bad acts. We review a trial court’s decision to admit or exclude

evidence for an abuse of discretion. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App.

2004) (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). An abuse of

discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts

and circumstances before the court. Id.

                             A. Indiana Evidence Rule 404(b)

       Indiana Evidence Rule 404(b) provides that evidence of other crimes, wrongs, or acts

of a defendant is not admissible to prove the character of the defendant in order to show

action in conformity therewith. “It may, however, be admissible for other purposes, such as

proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Evid. R. 404(b). In assessing the admissibility of Evidence Rule 404(b) evidence,

the trial court must (1) determine whether the evidence of other crimes, wrongs, or acts is

relevant to a matter at issue other than the defendant’s propensity to commit the charged act;

and (2) balance the probative value of the evidence against its prejudicial effect. Goldsberry

v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005). The well-established rationale behind

Evidence Rule 404(b) is that the jury is precluded from making the forbidden inference that

the defendant had a criminal propensity and therefore engaged in the charged conduct. Id.

       It is undisputed that the State sought to introduce evidence of prior bad acts committed

by Baker during trial. During the State’s direct examination of J.L., the parties approached


                                                4
the bench to address the admission of evidence of Baker’s prior bad acts outside of the

presence of the jury. We are unable to discern the arguments given by the State as to why the

evidence of Baker’s prior bad acts should be admitted because the conversation between the

parties and the trial court was not recorded and is not available to this court on review.2 After

this conversation, the State continued its direct examination of J.L. The deputy prosecutor

asked J.L. whether this was the first time that he and Baker had stolen gas. J.L. responded

negatively and, upon further questioning by the deputy prosecutor, stated that he and Baker

had stolen gas “[l]ike two or three (2-3) times.” Tr. p. 108.

        In arguing that the trial court abused its discretion in admitting this evidence, Baker

argues that the record is devoid of any indication that the evidence of Baker’s prior bad acts

was introduced for any purpose other than to show that he had a propensity to steal gasoline.

The State counters, arguing that the trial court acted within its discretion in admitting the

evidence of Baker’s prior bad acts because the deputy prosecutor “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.” Appellee’s Br. p. 8.

                                              1. Knowledge

        In Whitehair v. State, 654 N.E.2d 296, 302 (Ind. Ct. App. 1995), we concluded that,

with respect to a defendant’s knowledge of the wrongfulness of his actions, evidence of a


        2
            In an effort to provide this court with information about the unrecorded conversation between the
trial court and the parties, Baker’s counsel filed a verified statement of the evidence on appeal. The verified
statement of the evidence included a statement by the deputy prosecutor that she “asked to approach because
[she] wanted to introduce evidence of a prior bad act and [she] wanted to give to defense to object outside the
presence of a jury. The defense did object. The judge overruled the objection.” Appellant’s App. p. 68.


                                                      5
defendant’s prior bad acts is only admissible when the defendant puts his knowledge in issue.

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. The State does not point to anything in the

record that would suggest that Baker put his knowledge in issue or present any authority in

support of its claim. As such, we conclude that the evidence of Baker’s prior bad acts was

not admissible under the knowledge exception to Evidence Rule 404(b).

                                         2. Identity

       The identity exception to Evidence Rule 404(b) is “crafted primarily for ‘signature’

crimes with a common modus operandi.” Thompson v. State, 690 N.E.2d 224, 234 (Ind.

1997). “The exception’s rationale is that the crimes, or means used to commit them, were so

similar and unique that it is highly probable that the same person committed all of them.” Id.

“The test, of course, is whether the crimes are strikingly similar.” Garland v. State, 788

N.E.2d 425, 31 (Ind. 2003). In the instant matter, there were no details given about the

previous times that J.L. and Baker stole gas. As such, the State could not use this evidence to

prove that the means used to commit the instant crime were so similar and unique to those

used by Baker when committing the prior bad acts so as to make it highly probable that Baker

committed all of the acts. See Thompson, 690 N.E.2d at 234. The evidence of Baker’s prior

bad acts was not admissible under the identity exception to Evidence Rule 404(b).

                                          3. Intent

       In Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993), the Indiana Supreme Court held


                                              6
that the intent exception in Evidence Rule 404(b) will be available when a defendant goes

beyond merely denying the charged culpability and affirmatively presents a claim of

particular contrary intent. Stated another way, “the defendant must first place intent ‘at issue’

before prior bad act evidence relevant to intent is admissible.” Johnson v. State, 722 N.E.2d

382, 384 (Ind. Ct. App. 2000). In this case, Baker did not place his intent into issue. Baker

did not present a claim of a particular contrary intent but rather argued that he did not

participate in the alleged theft. As such, we conclude that evidence of Baker’s prior bad acts

was not admissible under the intent exception to Evidence Rule 404(b).

       Having concluded that the evidence of Baker’s prior bad acts was not properly

admitted under the knowledge, identity, or intent exceptions of Evidence Rule 404(b), we

find that the record is devoid of any indication that the evidence was introduced for any

purpose other than to show that Baker had the propensity to steal gasoline. As such, we

conclude that it was error to admit the evidence of Baker’s prior bad acts.

        B. Whether the Erroneous Admission of the Evidence Was Harmless

       Although we find the admission of the prior conduct evidence to have been error, not

all trial errors compel reversal.

       No error in the admission of evidence is ground for setting aside a conviction
       unless such erroneous admission appears inconsistent with substantial justice
       or affects the substantial rights of the parties. The improper admission of
       evidence is harmless error when the conviction is supported by such
       substantial independent evidence of guilt as to satisfy the reviewing court that
       there is no substantial likelihood that the questioned evidence contributed to
       the conviction. To decide if the erroneous admission of prejudicial evidence
       of extrinsic offenses is harmless, we therefore evaluate whether the jury’s
       verdict was substantially swayed.


                                               7
Wickizer, 626 N.E.2d at 800 (citations omitted). “The improper admission of evidence is

harmless error when the reviewing court is satisfied that the conviction is supported by

substantial independent evidence of guilt so that there is no substantial likelihood that the

challenged evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112,

1122 (Ind. Ct. App. 2003). “To determine that the error did not contribute to the verdict, we

determine whether the error was unimportant in relation to everything else the jury

considered on the issue in question.” Id.

       In the instant matter, we cannot say that there is a substantial likelihood that the

challenged evidence substantially swayed the jury’s verdict. Resolution of the instant matter

turned on a credibility determination by the jury. One must assume that the jury’s guilty

finding indicates that the jury found J.L. and Zellers to be more credible than Draper. We

find it unreasonable to think that the jury’s decision as to credibility of the witnesses turned

on the fact that J.L. briefly testified without detail that he and Baker had stolen gasoline on

prior occasions.

       Again, both J.L. and Zellers gave consistent accounts of the trio’s actions. Their

testimony demonstrated that J.L. and Baker went to Zellers’s home around 1:00 or 2:00 a.m.

on December 5, 2011, Zellers drove the trio in Baker’s vehicle to a farm located in

Huntington County, and J.L. and Baker stole approximately forty-five gallons of gasoline

from gasoline tanks located on the farm. Both J.L.’s and Zellers’s consistent accounts of the

trio’s actions were bolstered by their actions in the day or two following the theft. J.L.’s

account was bolstered by his testimony that he told police about the trio’s actions later that


                                               8
morning after he was sent to the principal’s office and questioned about why he smelled like

gasoline. Likewise, Zellers’s account was bolstered by his immediate willingness to admit

his participation in the theft and to take Detective Davis to the location where the theft

occurred. Their testimony was in direct contradiction to Draper’s testimony that Baker could

not have participated in the theft because he spent the entire night in question with her.

       Upon review, we are convinced that there is no substantial likelihood that the

questioned evidence contributed to Baker’s conviction in light of J.L.’s and Zellers’s

consistent testimony about the trio’s actions and the jury’s apparent determination that J.L.

and Zellers were more credible than Draper. As such, we conclude that the jury’s

determination that Baker participated in the theft was supported by substantial independent

evidence, and the erroneous admission of the evidence of Baker’s prior bad acts was

harmless.

                                      CONCLUSION

       In sum, while we conclude that it was error for the trial court to admit the evidence of

Baker’s prior bad acts, such error was harmless in light of J.L.’s and Zellers’s testimony

regarding the theft of gasoline from Stephan.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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