MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    FILED
this Memorandum Decision shall not be                          Sep 30 2016, 8:23 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Patricia Caress McMath                                   Attorney General of Indiana
Marion County Public Defender Agency
                                                         Ellen H. Meilaender
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

J.B.,                                                    September 30, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         49A04-1603-JV-416
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Petitioner.                                     Marilyn A. Moores, Judge
                                                         The Honorable
                                                         Gary Chavers, Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1510-JD-1923



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 1 of 12
[1]   J.B. appeals his adjudication as a delinquent child for committing acts, which, if

      committed by an adult, would constitute Class A misdemeanor dangerous

      possession of a firearm1 and Level 6 felony pointing a firearm.2 J.B. raises the

      following restated issue on appeal: whether the juvenile court erred when it

      admitted evidence of J.B.’s prior hostile encounters with the victim.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On October 21, 2015, Brandi Ruiz (“Ruiz”) drove her friend from Churchill

      Ranch Apartments in Indianapolis, Indiana, where Ruiz lived, to the friend’s

      car, which was parked across the street from the apartment complex.3 As Ruiz

      was driving toward the exit of the apartment complex, she saw a white car

      parked and some people standing around it, including her neighbor’s son

      named D.W. Ruiz continued out of the complex and into the parking lot where

      her friend’s vehicle was parked. Ruiz parked her vehicle in a parking spot next

      to the friend’s car, when a white Chevy Impala pulled up behind Ruiz’s van. A

      male, later determined to be J.B., was in the front passenger seat. J.B. leaned




      1
          See Ind. Code § 35-47-10-5(a).
      2
          See Ind. Code § 35-47-4-3(b).
      3
        We note some inconsistency in the record concerning the date of the incident. The Petition for
      Delinquency, the probable cause affidavit, and the testimony of two police officers indicated the date as
      October 21, 2015, but the prosecutor at trial referred to October 22 when questioning the victim, Brandi Ruiz.
      J.B. refers to both dates in his appellant’s brief. See Appellant’s Br. at 5 (stating October 21 in Statement of
      Facts section) and at 7 (referring to “October 22nd incident” in Argument section).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016           Page 2 of 12
      the upper half of his body up and out of the front passenger window, sat on the

      door, and while reaching over the car’s roof, pointed a firearm at Ruiz and said,

      “Do you want to f*ck with me now b*tch?” Tr. at 29. Ruiz recognized J.B.

      from prior encounters with him. J.B. got back into the Impala, and it drove

      away, first returning to the Churchill Ranch Apartments complex, then exiting

      the complex and heading toward Pendleton Pike.


[4]   Ruiz drove back to her apartment and called the police. Lawrence Police

      Department Officer Jeffrey Gray (“Officer Gray”) was in the area and

      responded to a radio dispatch of a male pointing a firearm. He saw a white

      Chevy Impala, matching the description given to dispatch, as it was coming out

      of the Churchill Ranch Apartments. He pulled the car over, and the driver was

      determined to be D.W. J.B. was in the front passenger seat, and another male

      was in the back seat. D.W. did not have a driver’s license and was arrested.

      Prior to towing the vehicle, officers searched it. When the back seat was flipped

      down, the trunk was accessible, and in it, the police discovered a loaded .22

      caliber revolver. Another officer brought Ruiz to the scene, and she identified

      J.B. as the person who had pointed the gun at her.


[5]   On October 22, the State filed a petition alleging that J.B. was a delinquent

      child for committing: (1) dangerous possession of a firearm, a Class A

      misdemeanor when committed by an adult; (2) pointing a firearm, a Level 6

      felony when committed by an adult; (3) carrying a handgun without a license, a

      Class A misdemeanor when committed by an adult; and (4) criminal trespass, a

      Class A misdemeanor when committed by an adult. Appellant’s App. at 21-22.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 3 of 12
[6]   Prior to the start of the January 13, 2015 denial hearing, the State filed a motion

      to introduce evidence of other crimes, wrongs, or acts under Indiana Rule of

      Evidence 404(B), specifically evidence of (1) two prior encounters between J.B.

      and Ruiz, one occurring on October 6 at the apartment complex and another

      occurring about a week later at a Walmart, and (2) evidence that during this

      same time frame Ruiz was the victim of vandalism to her vehicle. Id. at 64.

      J.B. objected to the State’s motion, asserting that, first, the State failed to

      provide required advance notice of intent to use such evidence and, second, the

      State’s attempt to introduce evidence of uncharged conduct was improper. Tr.

      at 6-7. The State responded that the October 21 incident should not be “viewed

      in a vacuum,” the juvenile court “needs to know the history between the

      parties,” and the evidence of the prior incidents was relevant to J.B.’s motive.

      Id. at 7. Following argument, the juvenile court granted the State’s motion as

      to the October 6 incident and the Walmart incident, but prohibited any

      evidence concerning the vandalism, as nothing tied J.B. to those acts. The

      juvenile court offered to grant a continuance to J.B., in order to provide him

      with additional time to prepare; J.B. declined a continuance and elected to

      proceed with the hearing, but again noted “for the record” his objection to the

      admission of the evidence. Id. at 9.


[7]   At the denial hearing, Ruiz testified that she recognized J.B. from two prior

      hostile encounters with him, one occurring on October 6 and another about a

      week later at a nearby Walmart. Ruiz testified that, on the afternoon of

      October 6, she was returning to the apartment complex in her van, with her


      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 4 of 12
      then-seventeen-year-old daughter (“Daughter”) and Daughter’s child. Ruiz saw

      J.B., D.W., and a female sitting on the sidewalk near where she parked. As

      Ruiz and Daughter got out of the van, J.B. stood up and said, “[H]ere comes

      that nasty b*tch that I can’t stand.” Id. at 19. J.B. told the female sitting with

      him to “jump” Ruiz and Daughter, urging the female to “just get them.” Id. at

      21. At some point, the female came up behind Ruiz and “slugged” her in the

      side of her head. Id. at 22. Thereafter, the female “jumped” Daughter,

      knocking her to the ground, and they “started feuding.” Id. While Daughter

      was on the ground, the female “smashed [Daughter’s] head into the ground.”

      Id. at 23. A maintenance worker at the complex intervened, but about that

      same time, J.B. “walked over and kicked [Daughter] in the face while she was

      on the ground.” Id. at 23. During the fighting, Ruiz used her cell phone to call

      the Lawrence Police Department. Officers arrived, Ruiz made a report of the

      incident, and an ambulance transported Daughter to the hospital.


[8]   According to Ruiz, about a week later, she and Daughter were in Ruiz’s van

      and were driving into a nearby Walmart parking lot, when she saw J.B. and a

      female. When J.B. and the female saw Ruiz, “they started waving their arms

      and calling names.” Id. at 24. Ruiz called the police, who instructed Ruiz to go

      home, which she did.


[9]   Ruiz described the October 21 incident, where she saw J.B. pull himself out of

      an open window of the Impala and point a gun at her. Ruiz described that she

      was still seated in her van, but that she saw J.B. through her window and that

      he “was screaming” at her and said, “[D]o you want to f*ck with me now

      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 5 of 12
       b*tch?” Id. at 29. After that, J.B. returned inside the vehicle, and it drove

       away. Ruiz immediately went back to her apartment and called the police.


[10]   Officer Gray testified that he responded to the dispatch call, located the Impala,

       and stopped the vehicle. The driver, D.W., did not possess a driver’s license.

       Officers at the scene located a loaded revolver in the trunk area, which was

       accessible from the rear seat of the car. None of the three occupants possessed a

       permit to carry a handgun.


[11]   J.B. also testified at the denial hearing, stating that, on the day of the Walmart

       encounter, Ruiz passed him in her van as he was walking with his sister, and

       she circled back and “started throwing stuff at us” and making racial slurs to

       him. Id. at 75. J.B. said that, later that day, a detective transported him and his

       sister to a police station for questioning about the matter. With regard to the

       subsequent October 21 incident, for which he was charged, J.B. testified that he

       had been playing basketball with his cousin, D.W., and that as they were

       leaving the complex, police pulled over their vehicle. J.B. denied having gone

       into the parking lot where Ruiz said that J.B. reached out of the Impala and

       pointed a gun at her, taking the position that Ruiz made up the story to get him

       in trouble. J.B. acknowledged that a history of verbal exchanges existed

       between Ruiz and him, stating “I mean, she started it. I ain’t going to lie. I

       did, I called her names back.” Id. at 80.


[12]   At the conclusion of the denial hearing, J.B. moved for a dismissal of all counts

       pursuant to Indiana Trial Rule 41(B). The juvenile court entered true findings


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 6 of 12
       for Counts 1 through 3, but dismissed Count 4 (criminal trespass) pursuant to

       J.B.’s motion, and the juvenile court adjudicated J.B. to be a delinquent child.

       At the February 2016 dispositional hearing, the juvenile court merged Count 3

       with Count 1. On the true findings for Count 1 Class A misdemeanor

       dangerous possession of a firearm and Count 2 Level 6 felony pointing a

       firearm, the juvenile court imposed a suspended commitment to the Indiana

       Department of Correction and placed J.B. on formal probation. J.B. now

       appeals.


                                      Discussion and Decision
[13]   J.B. asserts that the juvenile court erred when it admitted evidence of the two

       prior hostile encounters that Ruiz had with J.B., one on October 6 and the other

       approximately one week later at the Walmart parking lot. He argues that the

       prejudicial impact of the evidence outweighed any probative value of the

       “marginally relevant evidence.” Appellant’s Br. at 10.


[14]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the admission of evidence only for abuse of

       discretion. K.F. v. State, 961 N.E.2d 501, 510-11 (Ind. Ct. App. 2012), trans.

       denied. An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances. Id. “‘Errors in the admission or

       exclusion of evidence are to be disregarded as harmless error unless they affect

       the substantial rights of a party.’” J.L. v. State, 5 N.E.3d 431, 436 (Ind. Ct. App.

       2014) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 7 of 12
[15]   Indiana Evidence Rule 404(b) provides in pertinent part:


                Evidence of other crimes, wrongs, or acts is not admissible to
                prove the character of a person 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[.]


       (Emphasis added.)


[16]   In assessing the admissibility of Evidence Rule 404(b) evidence, a trial court

       must (1) 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) balance the probative value of the evidence against its prejudicial

       effect pursuant to Indiana Evidence Rule 403. Witham v. State, 49 N.E.3d 162,

       166 (Ind. Ct. App. 2015). “If evidence has some purpose besides behavior in

       conformity with a character trait and the balancing test is favorable, the trial

       court can elect to admit the evidence.” Boone v. State, 728 N.E.2d 135, 138 (Ind.

       2000).


[17]   Here, over J.B.’s objection, the juvenile court granted the State’s motion to

       introduce Evidence Rule 404(b) evidence, specifically the October 6 incident

       and the encounter at Walmart a week later, for the purpose of showing J.B.’s

       motive for his actions on October 21. Thereafter, during the denial hearing,

       Ruiz testified, without objection, about the October 6 incident, where, at J.B.’s

       urging, a female “jumped” Ruiz and Daughter, and police were called to the

       scene. Tr. at 23. Ruiz also described the Walmart incident occurring about a


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 8 of 12
       week later, in which she encountered J.B. and a female in a Walmart parking

       lot, and J.B. waved his arms and yelled at Ruiz, and Ruiz again called the

       police. He argues on appeal that the prejudicial impact of the Evidence Rule

       404(b) evidence outweighed its probative value, if any.


[18]   The State asserts, as an initial matter, that J.B. “has waived his [] argument,

       both because he is raising a different argument on appeal than he raised in the

       juvenile court and because he did not raise any contemporaneous objection to

       the admission of this evidence during Ruiz’s testimony.” Appellee’s Br. at 7. In

       arguing waiver, the State maintains that J.B. asserted “only two, narrow

       arguments” in objecting to the admission of the evidence, namely, that the State

       failed to provide timely notice of its intent to use the evidence and that the

       evidence would not qualify for admission because it was evidence of uncharged

       conduct. Because J.B. “did not mention Rule 403 or argue the prejudicial effect

       would outweigh the probative value,” the State urges that he has waived his

       Evidence Rule 403 argument on appeal. Id. at 8-9. J.B. maintains that,

       although J.B. did not specifically cite to Evidence Rule 403 while making his

       objection and argument to the State’s use of Evidence Rule 404(b) evidence,

       probative value versus prejudicial effect “is always a consideration when the

       admission of evidence is challenged under Rule 404(b)” and was implicitly an

       element of his argument. Reply Br. at 5. J.B. also argues that, even though he

       did not object again when Ruiz testified, he did not waive his argument

       concerning admissibility of the evidence because he had already made his

       objection known to the trial court, and “[t]here were no ‘fresh developments’


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 9 of 12
       that might have led the court to change its decision regarding admissibility.” Id.

       at 6. We cannot agree.


[19]   As J.B. acknowledges,

               A contemporaneous objection at the time the evidence is
               introduced at trial is required to preserve the issue for appeal[.] . .
               . The purpose of this rule is to allow the trial judge to consider
               the issue in light of any fresh developments and also to correct
               any errors. Another purpose of the contemporaneous objection
               rule is to promote a fair trial by preventing a party from sitting
               idly by and appearing to assent to an offer of evidence or ruling
               by the court only to cry foul when the outcome goes against him.
               The rule requires parties to voice objections in time so that
               harmful error may be avoided or corrected and a fair and proper
               verdict will be secured.


       Reply Br. at 6 (citations and quotation omitted). We recognize that, in this case,

       Ruiz took the stand and began her testimony about the two incidents right after

       the juvenile court had ruled that it would permit the State to present such

       evidence; thus, the court’s ruling and Ruiz’s testimony were close in time.

       However, the fact remains that J.B. did not comply with the contemporaneous

       objection requirement, and he thereby waived the issue for appeal. N.W.W. v.

       State, 878 N.E.2d 506, 509 (Ind. Ct. App. 2010) (respondent waived objection

       to admissibility of evidence by failing to make timely and specific objection at

       denial hearing), trans. denied.


[20]   Furthermore, even if J.B. had properly preserved the issue for review, we find

       no error in the juvenile court’s admission of the evidence. As J.B. correctly


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 10 of 12
       observes, “Evidence of motive is always relevant to proving a crime.”

       Appellant’s Br. at 9. Our Supreme Court has made clear that “‘hostility is a

       paradigmatic motive for committing a crime.’” Whitham, 49 N.E.3d at 167

       (quoting Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997)). Although J.B.

       concedes that evidence of a defendant’s prior confrontations with a victim may

       be admissible to show the parties’ relationship and existing hostility between

       them, he maintains that, in this case, the “highly” prejudicial effect of the

       admitted evidence outweighed “its limited probative value.” Appellant’s Br. at 9.

       He also argues that whether “someone else” hit Ruiz in the head and whether

       he kicked Daughter has little to no bearing “on whether he pointed a gun at

       Ruiz a couple of weeks later.” Id. at 10. We disagree.


[21]   The evidence of the October 6 incident was that J.B., D.W., and a female were

       on a sidewalk when Ruiz pulled up and parked her van. J.B. said, “[H]ere

       comes that nasty b*tch that I can’t stand.” Tr. at 19. J.B. urged the female with

       him to “jump” Ruiz and Daughter, which she did, hitting Ruiz in the head and

       knocking Daughter to the ground. Id. at 21. About the time that an apartment

       complex worker intervened and broke up the fight, J.B. “walked over and

       kicked [Daughter] in the face while she was on the ground.” Id. at 23. Police

       arrived and made a report of the incident. The Walmart encounter occurred

       about a week later, and Ruiz again contacted the police, who later in the day

       picked up J.B. and took him to the police station for questioning. Evidence of

       the October 6 incident and the Walmart encounter illustrated the antagonistic

       relationship between the parties, and it revealed that, due to Ruiz’s calls to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 11 of 12
       police, J.B. faced questioning by law enforcement. The two incidents were

       probative of J.B.’s motive to follow Ruiz, point a gun at her, and rhetorically

       ask, “Do you want to f*ck with me now b*tch?” Id. at 29. The evidence was

       properly admitted under Evidence Rule 404(b) to show motive. See Iqbal v.

       State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (“where a relationship between

       parties is characterized by frequent conflict, evidence of the defendant’s prior

       assaults and confrontations with the victim may be admitted to show the

       relationship between the parties and motive for committing the crime.”).

       Accordingly, the juvenile court did not abuse its discretion when it admitted the

       evidence.


[22]   Affirmed.


[23]   May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-JV-416 | September 30, 2016   Page 12 of 12
