Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CHARLES W. LAHEY                                   GREGORY F. ZOELLER
South Bend, Indiana                                Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                                                                           Sep 14 2012, 9:24 am

                               IN THE
                                                                                   CLERK
                     COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




CARLOS E. ODOM,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 71A05-1203-CR-121
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1009-FB-114



                                       September 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Eighty-five-year-old William Maciejewski responded to a knock at the front door,

only to be shoved to the floor by a man who forcefully entered his house, threatened to shoot

him, and stole his gun and some cash. A neighbor told police that she recognized the man as

Carlos E. Odom. Four months later, police stopped Odom for a traffic infraction, and the

ensuing search produced Maciejewski’s stolen gun from the glove compartment.

       The State charged Odom with class B felony robbery, class B felony burglary, class A

misdemeanor carrying a handgun without a permit, class A misdemeanor driving while

suspended, and class C misdemeanor altered interim license plate. He eventually was

convicted by a jury on all counts. He now appeals, claiming that the trial court erred in

instructing the jury on the “breaking” element of burglary and in admitting testimony

regarding the officer’s state of mind at the time of the traffic stop. We affirm.

                              Facts and Procedural History

       In May 2010, eighty-five-year-old William Maciejewski was talking to his sister on

the phone when he heard a knock at the front door. He looked out the window and saw a tall,

slender black man holding what appeared to be a Crime Stoppers card. When Maciejewski

opened the storm door slightly to look at the card, the man shoved his way inside, pushing the

elderly Maciejewski backwards to the floor and causing him to black out momentarily.

When Maciejewski regained consciousness, he saw the man standing over him, putting on

gloves. The man searched the house, took money from Maciejewski’s wallet, and pressed

something against Maciejewski’s leg, threatening to shoot him. He asked Maciejewski if he


                                              2
owned a gun, and Maciejewski responded affirmatively and told him where he kept it. The

man retrieved Maciejewski’s handgun, threatened him again, searched the house some more,

and left. Maciejewski suffered injuries to his groin and hamstring as a result of the incident.

         Meanwhile, Maciejewski’s sister, who was still on the phone, overheard the incident,

called 911, and sent her son to check on him. Shortly thereafter, police arrived, and a

neighbor told police that she had seen the man approach Maciejewski’s front door and

recognized him as Odom, her former high-school classmate. A few days later, the vision-

and hearing-impaired Maciejewski was unable to positively identify Odom from a photo

array.

         In September 2010, South Bend Police Officer Russell Lupica spotted Odom’s parked

vehicle and noted that the interim license plate was not properly displayed. Upon closer

examination, the interim plate appeared to have been altered. Officer Lupica called for

backup, and Officer Brad Rohrscheib arrived on the scene. At that point, Odom got into his

vehicle and drove away. Officers Lupica and Rohrscheib followed in their vehicles and

eventually stopped Odom. When they asked for his insurance card and proof of purchase

documents, Odom exited the vehicle and unsuccessfully searched through a backpack in his

trunk. He then searched his back seat, again to no avail. When he went to search his glove

compartment, he positioned his face very close to it, and Officer Rohrscheib could not see his

hands or the inside of the glove compartment. Odom eventually pulled out some papers,

placed them on the seat, and locked the glove compartment. Moments later, Officer

Rohrscheib conducted a patdown search of Odom. Meanwhile, Officer Lupica determined


                                              3
that, per department policy, Odom’s vehicle should be impounded due to the irregularities on

the interim license plate. While he waited for a tow truck, Officer Lupica conducted an

inventory of the vehicle’s contents and found a handgun in the glove compartment that was

later determined to be the handgun that had been stolen from Maciejewski.

            The State charged Odom with class B felony robbery, class B felony burglary, class A

misdemeanor carrying a handgun without a permit, class A misdemeanor driving while

suspended, and class C misdemeanor altered interim license plate. Odom was eventually

found guilty on all counts. He now appeals. Additional facts will be provided as necessary.

                                       Discussion and Decision

                                           I. Jury Instruction

        Odom was convicted of class B felony burglary, which occurs when a person breaks

and enters a dwelling with intent to commit a felony in it. Ind. Code § 35-43-2-1(1)(B)(i).

He contends that the trial court erred in instructing the jury on the “breaking” element of

burglary.1 We review a trial court’s decision to give a jury instruction using an abuse of

discretion standard. Eberle v. State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011), trans. denied.

With respect to jury instructions, an abuse of discretion occurs where the instructions, taken

as a whole, mislead the jury as to the applicable law. Fowler v. State, 900 N.E.2d 770, 773

(Ind. Ct. App. 2009). In conducting our review of a challenged instruction, we consider: (1)

whether the instruction correctly states the law; (2) whether the evidence supports giving the



        1
         At the outset, we note that Odom has failed to include the instruction with verbatim objections in the
argument section of his appellate brief as required under Indiana Appellate Rule 46(A)(8)(e).


                                                      4
instruction; and (3) whether the substance of the instruction is covered by other instructions

given by the court. Johnson v. State, 959 N.E.2d 334, 338 (Ind. Ct. App. 2011), trans. denied

(2012).

       Odom does not challenge any of the foregoing. Rather, he claims that State’s

Instruction No. 5 misled the jury by “creat[ing] an asymmetric emphasis upon the testimony

of Maciejewski.” Appellant’s Br. at 6.2 See Fowler, 900 N.E.2d at 773 (stating that our

courts have “long disapproved [of] instructions that unduly emphasize one particular

evidentiary fact, witness, or phase of the case.”) (citation and internal quotation marks

omitted). State’s Instruction No. 5 reads, “A breaking may be proven by showing that even

the slightest force was used to gain unauthorized entry, including opening an unlocked door

or pushing a door which is slightly ajar.” Appellant’s App. at 9.

       At trial, Maciejewski testified that he opened his storm door slightly to look at the

card that Odom was holding and that Odom forcibly shoved the door open, causing him to

fall backward and sustain injuries. In the context of the jury instructions as a whole, the

“breaking” instruction was given to the jury as part of a list of definition instructions

pertaining to the offenses charged, i.e., “deadly weapon,” “firearm,” “dwelling,” “property of

another person,” “exert control,” “unauthorized,” “knowingly,” and “intentionally.” Tr. at

264-66. Simply put, the instruction was given in a context that did not overemphasize certain

testimony in the case. Consequently, we conclude that the trial court acted within its



       2
           As support for his argument, Odom cites an unpublished, noncitable memorandum decision in
violation of Indiana Appellate Rule 65(D).


                                                 5
discretion in giving State’s Instruction No. 5.

                         II. Admissibility of Officer’s Testimony

       Odom also challenges the trial court’s admission of testimony from Officer

Rohrscheib concerning his state of mind during the traffic stop. Notably, Odom has failed to

comply with Indiana Appellate Rule 46(A)(8)(d), which requires that the argument section of

his appellate brief contain citation “to the pages of the Transcript where the evidence was

identified, offered, and received.” He also has failed to specifically identify the challenged

testimony, claiming only that the officer’s testimony that he “feared for his safety during his

stop of Odom was irrelevant and prejudicial.” Appellant’s Br. at 6. As such, he has waived

this issue for appeal.

       Waiver notwithstanding, the trial court has broad discretion in ruling on the admission

or exclusion of evidence. Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012).

As such, we review the trial court’s decision to admit evidence for an abuse of discretion,

which occurs only when the ruling is clearly against the logic, facts, and circumstances

presented. Id.

       During direct examination, Officer Rohrscheib described Odom’s behavior in

searching first the trunk, then the back seat, and ultimately the glove compartment for his

elusive insurance card and proof of purchase papers. When the officer described Odom’s

peculiar proximity to the glove compartment, the prosecutor asked if the behavior gave him

“any concern,” and defense counsel objected. Tr. at 137. After a sidebar conference, the

trial court overruled the objection, and the officer provided lengthy testimony regarding his


                                              6
suspicions. He explained in part,

       A.        I was concerned for my safety, because he was so close I could not see
                 his hands. I recall trying to lean one way o[r] lean the other way to try
                 and peer over either one of his shoulders, so I could see his hands. In
                 my experience as a law enforcement officer, the hands are the most
                 dangerous thing, because they can have a weapon or attack you or
                 anything. I mean that’s the danger that we look for is try to watch the
                 hands, and I could not see his hands, and I could not see what he was
                 doing inside the glove box or see into the glove box, because he was so
                 close and leaned over blocking my view into the glove box.

       ….

                 Usually, [the registration or proof of insurance is] in the glove box or in
                 the a [sic] center console, and usually once you ask for it then they’re
                 going to reach across, you know, full arm extended and into the glove
                 box. I mean, it’s not typical that someone’s going to huddle over where
                 they’re reaching to get that paper.

       Q.        Okay. So when you saw this occurring what did you do?

       A.        After he pulled some papers out, you know, I could see that he pulled
                 some papers out of there because he set them on the seat where I could
                 see the seat, and then he closed it, and then he locked the glove box.
                 And, at that point, I had him step back away from the vehicle to pat him
                 down for weapons, since I could not see what he put in or took out of
                 the glove box.

       Q.        So, at that point, you said you did do a pat down?

       A.        Correct.

Id. at 138-40.

       Odom objected to Officer Rohrscheib’s testimony on relevancy grounds. Relevant

evidence is generally admissible. Ind. Evidence Rule 402. Evidence is relevant if it “has

any tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Ind.

                                                  7
Evidence Rule 401.

          The challenged testimony was relevant to explain why Officer Rohrscheib decided to

conduct a patdown search of Odom. However, the patdown search of Odom was not relevant

to the discovery of the handgun because: (1) the handgun was found in the glove

compartment and not on Odom’s person; and (2) Officer Lupica testified that the inventory

search, which produced the handgun, was performed as a matter of policy whenever a person

has irregularities on the face of his interim license plate. Thus, Odom’s suspicious behavior

was not the catalyst for the inventory search that produced the contraband. As such,

Officer’s Rohrscheib’s testimony about his safety concerns due to Odom’s peculiar behavior

was irrelevant.

          Nevertheless, based on the overwhelming independent evidence identifying Odom as

the perpetrator of the crimes against Maciejewski, i.e., the neighbor’s eyewitness testimony

and the discovery of Maciejewski’s handgun in Odom’s glove compartment, we find the

error to be harmless. See Gaby v. State, 949 N.E.2d 870, 881 (Ind. Ct. App. 2011) (stating

that error in admission of evidence is harmless if probable impact on the jury is sufficiently

minor so as not to affect the defendant’s substantial rights); see also Burks v. State, 838

N.E.2d 510, 520 (Ind. Ct. App. 2005) (concluding that when irrelevant evidence is viewed in

light of overwhelming evidence of guilt, its admission can safely be relegated to the status of

harmless error), trans. denied (2006). Based on the foregoing, we find no reversible error in

the trial court’s admission of Officer Rohrscheib’s state-of-mind testimony. Accordingly, we

affirm.


                                               8
      Affirmed.

RILEY, J., and BAILEY, J., concur.




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