MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Nov 30 2016, 7:00 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Andrew B. Arnett                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian K. Wynne,                                         November 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        41A04-1602-CR-307
        v.                                              Appeal from the Johnson Superior
                                                        Court
State of Indiana,                                       The Honorable Cynthia S. Emkes,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        41D02-1411-F4-57



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016    Page 1 of 9
                                          Case Summary
[1]   In a bifurcated trial, a jury found Brian Wynne guilty of burglary as a Level 4

      felony and then determined that he is a habitual offender. Wynne now appeals,

      arguing that the trial court should not have allowed the State to present certain

      evidence. Finding no error, we affirm.



                            Facts and Procedural History
[2]   In August 2014, Vickie McWatters’ home in Greenwood was badly damaged

      by a lightning strike. McWatters contacted Servpro to secure the house and

      remediate the damage. In the meantime, she moved out, first into a hotel for a

      week and then into a rental property close to her house. However, she left

      some belongings in the house, including food, and she continued to use the

      fenced-in backyard to run her dogs. She “[a]bsolutely” planned to move back

      into the house after the repairs were done. Tr. p. 195.

[3]   McWatters was at the house on October 12, 2014—before her insurance

      company had approved the repair work—and locked all of the doors when she

      left. Five days later, on October 17, one of McWatters’ neighbors saw a white

      van backed into McWatters’ driveway with the back doors open. The neighbor

      contacted McWatters, who said that she was not aware of anybody being at the

      house. As McWatters made her way to the house, the neighbor entered the

      garage through a side door and discovered Wynne, who said he was working

      on the flooring.


      Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016   Page 2 of 9
[4]   When McWatters arrived, she asked Wynne what he was doing. He said that

      he was measuring floors. As McWatters started making phone calls, Wynne

      was “acting very nervous” and “shaking,” and McWatters noticed that he had

      “peed his pants.” Id. at 204-05. McWatters called Jim Brydges at Servpro, who

      told her that Servpro had not sent anybody to the house to measure floors.

      Over the phone, Brydges could hear a man saying, “I need to leave. I gotta

      go.” Id. at 171. McWatters asked Brydges to contact police, and when officers

      arrived at the house, Wynne told them that he had been sent there by a

      contractor named “Mr. Smyth” to take measurements. Id. at 255. Wynne had

      previously worked for Charles Smyth, an installation manager for a flooring

      company, but when an officer talked to Smyth using a number provided by

      Wynne, Smyth said that he had not sent Wynne to the house. A door and its

      frame on the side of the garage had sustained damage that McWatters had not

      previously seen and that was consistent with the door being pried open. Inside

      the house, McWatters found a black trash can that did not belong to her, that

      she had not previously seen, and that contained items from her pantry. An

      identical black trash can was found in the back of Wynne’s van. Officers placed

      Wynne under arrest.

[5]   The State charged Wynne with burglary of a dwelling as a Level 4 felony. It

      also sought to have him declared a habitual offender and sentenced

      accordingly, alleging that he had numerous prior felony convictions. Two

      months before trial, the State notified Wynne and the court that it intended to

      introduce—for purposes of proving the burglary charge, not just the habitual-


      Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016   Page 3 of 9
      offender charge—evidence of three burglaries Wynne committed in Johnson

      County in 2007. The State asserted that those burglaries were highly similar to

      the conduct charged in this case and that the evidence was therefore relevant

      and admissible pursuant to Indiana Rule of Evidence 404(b). Over Wynne’s

      objections both before and during trial, the court allowed the State to present

      the evidence. The jury found Wynne guilty on the burglary charge.

[6]   During the subsequent habitual-offender phase, the State sought to introduce

      documents indicating that, in addition to the convictions relating to the 2007

      Johnson County burglaries, Wynne had been convicted of felonies in Marion

      County in 1990, 2004, 2006, and 2008. The Marion County documents were

      stamped as follows:

                                Indianapolis Metropolitan Police Dept.
                                      Certified to be a true copy

      Ex. 37-40. Wynne objected to the admission of the documents on the ground

      that the State had failed to “connect” them to him, Tr. p. 549, but he did not

      challenge the adequacy of the certification of the documents. The court

      allowed the documents into evidence, and the jury found Wynne to be a

      habitual offender. The trial court sentenced Wynne to twelve years for the

      burglary and added twenty years based on the habitual-offender finding, for a

      total sentence of thirty-two years.

[7]   Wynne now appeals.




      Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016   Page 4 of 9
                                  Discussion and Decision
[8]   Wynne contends that the trial court committed evidentiary errors during both

      the guilt phase and the habitual-offender phases of trial. He first argues that the

      court should not have admitted the evidence of the 2007 Johnson County

      burglaries pursuant to Evidence Rule 404(b) and that we should therefore

      reverse his burglary conviction.1 In the alternative, he asserts that even if we

      affirm his burglary conviction, we should reverse the habitual-offender finding

      and sentence enhancement on the ground that the trial court erred by admitting

      the documents relied upon by the State to establish his prior convictions.


                     I. Admission of Prior-Bad-Acts Evidence
[9]   Evidence Rule 404(b), under which the trial court allowed the State to present

      evidence of the 2007 Johnson County burglaries, provides that evidence of prior

      bad acts “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” but

      “may be admissible for another purpose, such as proving motive, opportunity,

      intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

      accident.” Rule 403 provides, in turn, that evidence, even if relevant, should be

      excluded “if its probative value is substantially outweighed by a danger of one

      or more of the following: unfair prejudice, confusing the issues, misleading the




      1
       Wynne also challenges his burglary conviction on the ground that the State presented insufficient evidence.
      Because we conclude below that the other evidence against Wynne was strong enough to render harmless
      any 404(b) error, we need not separately address his sufficiency argument.

      Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016          Page 5 of 9
       jury, undue delay, or needlessly presenting cumulative evidence.” Therefore,

       when the State seeks to use prior-bad-act evidence, the court must (1) determine

       whether the evidence is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act and, if so, (2) balance the probative value

       of the evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221

       (Ind. 1997)

[10]   Typically, we would review a trial court’s ruling on the admissibility of

       evidence under the abuse-of-discretion standard. Spencer v. State, 703 N.E.2d

       1053, 1057 (Ind. 1999). And here, given the fact that the incident underlying

       this case occurred more than seven years after Wynne’s 2007 burglaries, we

       have doubts as to whether the trial court should have allowed the State to

       present evidence of the earlier crimes. See Hicks, 690 N.E.2d at 223 (holding

       that trial court erred by admitting evidence of incident that occurred more than

       three years earlier); see also Spencer, 703 N.E.2d at 1056 (explaining that three

       years between charged crime and prior acts “is too long, diminishing the

       probative value of the evidence”). However, we need not resolve the issue

       because, even if the trial court erred, the other evidence of Wynne’s guilt was

       particularly strong, so any error by the trial court was harmless. See Spencer, 703

       N.E.2d at 1056; Hicks, 690 N.E.2d at 223.


[11]   To obtain a conviction for burglary as a Level 4 felony, the State was required

       to prove beyond a reasonable doubt that Wynne (1) broke and entered (2) the

       dwelling of another person (3) with intent to commit a felony or theft in it. Ind.

       Code § 35-43-2-1(1). Regarding the first element, it is undisputed that a locked

       Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016   Page 6 of 9
side door had been pried open and damaged and that Wynne entered the house.

As for the second element, it is undisputed that McWatters was living in the

house until August 2014 and that she moved out only because the house was

damaged by lightning, and she testified at trial that she “absolutely” intended to

return to the house after it was repaired. Therefore, there is no question that the

house was still “the dwelling of another person.” See, e.g., Howell v. State, 53

N.E.3d 546, 549 (Ind. Ct. App. 2016) (“It is well established that if a house is

left empty temporarily by its occupant, the house does not lose its status as a

dwelling if the occupant intends to return.”), trans. denied.2 The evidence that

Wynne entered the house intending to commit a theft is also solid. There was a

trash can containing items from McWatters’ pantry sitting in the house—a trash

can McWatters had never seen before—and a matching trash can in the back of

Wynne’s van. Finally, any holes in the State’s case were sufficiently filled by

other evidence of Wynne’s guilt: he shook, acted nervous, and “peed his pants”

after being confronted, and the explanation he offered for being in the house—

that he had been sent there to do floor work—immediately cratered. In light of

all of this evidence, any error in the trial court’s 404(b) ruling would not require

reversal.




2
  McWatters also testified that she eventually decided not to move back into the house and to instead move
to Arizona to be close to her elderly parents, but she made clear that she decided this only after the break-in.
See Tr. p. 212.

Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016               Page 7 of 9
                   II. Admission of Habitual Offender Evidence
[12]   Wynne also argues that even if we affirm his burglary conviction, we should set

       aside the habitual-offender finding and sentence enhancement. In order to

       establish that Wynne is a habitual offender, the State was required to prove that

       he had been “convicted of two (2) prior unrelated felonies[.]” Ind. Code § 35-

       50-2-8(b). To do so, the State introduced five sets of documents (Exhibits 36-

       40) that it said prove five prior felony convictions, asserting that they are “true

       and accurate certified public documents.” Tr. p. 546. On appeal, Wynne

       contends that the documents were not properly certified and that the trial court

       therefore erred by admitting them into evidence. As noted above, however,

       when the State moved to admit the documents, Wynne did not object on this

       ground. To the contrary, his attorney said, “I know they’re certified

       documents.” Id. at 549. By failing to challenge the adequacy of certification at

       the trial-court level, Wynne waived the argument for purposes of appeal. See

       Treadway v. State, 924 N.E.2d 621, 631 (Ind. 2010) (“Any ground not raised at

       trial is not available on appeal.”).3

[13]   Affirmed.




       3
         Regarding the certification on one of the sets of documents—that relating to the 2007 Johnson County
       burglaries (Exhibit 36)—Wynne’s attorney objected as follows: “I would just point out that it also hasn’t
       been signed by anyone. It’s a . . . there’s a stamp on it but it hasn’t been signed by anyone on 36[.]” Tr. p.
       550. Even if we were to say that this was a sufficient certification objection as to Exhibit 36, any error by the
       trial court in overruling the objection was harmless, since Wynne did not lodge a similar objection to the
       documents pertaining to the Marion County convictions (Exhibits 37-40). The four Marion County
       convictions were double the number necessary to establish Wynne’s habitual offender status. See I.C. § 35-
       50-2-8(b).

       Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016               Page 8 of 9
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Memorandum Decision 41A04-1602-CR-307 | November 30, 2016   Page 9 of 9
