MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jun 14 2017, 9:00 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Crown Point, Indiana                                     Attorney General of Indiana

                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ice Heard,                                               June 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1611-CR-2521
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1307-FB-61



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017           Page 1 of 8
                                             Case Summary
[1]   Ice Heard appeals his conviction for Class B felony aggravated battery. We

      affirm.


                                                     Issue
[2]   The issue before us is whether the trial court properly admitted evidence in

      Heard’s jury trial.


                                                     Facts
[3]   On July 8, 2013, twenty-two-year-old Harold Nichols was hanging out with

      several friends in Munster. That afternoon, they walked from Munster to

      Hammond and then headed back to Munster. As they were returning to

      Munster, Nichols and his friends encountered a group of people that included

      Heard’s younger brother, William, and his sixteen-year-old sister, as well as

      other young women. Nichols did not know any of these people. One of

      Nichols’s friends talked to the young women. As Nichols and his friends began

      to move on, William said, “why you’re trying to talk to my little sister[?]” Tr.

      Vol. II p. 42. Nichols’s friend said he did not want any problems, and he,

      Nichols, and the others began walking away.


[4]   As the group approached a bridge that crossed over from Hammond into

      Munster, Heard approached them and said, “which one of y’all was trying to

      talk to my little sister?” Id. at 45. Heard told the group to leave his block and

      not come back. As Heard was talking, a van pulled up, and one of its

      occupants got out and handed Heard a gun. Heard then began firing the gun
      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 2 of 8
      toward Nichols and his friends; one of the shots hit Nichols in the ankle as he

      was trying to run away.


[5]   While police were investigating the crime scene, an anonymous phone call

      reported that the shooting was committed by a person with the “street name

      Ice.” Tr. Vol. III p. 209. Sergeant James Onohan of the Hammond Police

      Department knew Heard and where he lived from prior interactions with him.

      Sergeant Onohan also knew of another individual in Hammond who went by

      the nickname “Ice Man,” but that person was never investigated as a suspect in

      the shooting. Id. at 134. After receiving the call about “Ice,” Sergeant Onohan

      went to Heard’s residence, found William there, and brought him outside.

      Other officers drove Nichols’s friends by the residence, and they identified

      William as the young man they saw earlier with the group of young women.

      Police then prepared a photo array that included Heard and showed it to

      Nichols and his friends. Nichols and one of his friends identified Heard as the

      shooter in the photo array. At trial, a second friend identified Heard as the

      person who was shooting.


[6]   The State charged Heard with Class B felony aggravated battery, Class C felony

      battery with a deadly weapon, and Class C felony battery resulting in serious

      bodily injury. At Heard’s jury trial, the anonymous phone call to police was

      brought up several times. Counsel for Heard was the first to mention it, when

      he asked an investigating officer during cross-examination, “At some point,

      there is information that’s provided over the radio about an anonymous call

      that talk [sic] about somebody with the street name Ice committing this crime;

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 3 of 8
      is that correct?” Id. at 73. Counsel for Heard also wanted to explore the

      identity of “Ice Man” further during trial, but the trial court refused to allow

      him to do so.


[7]   During Sergeant Onohan’s testimony, the State stopped its direct examination,

      asked to approach the bench, and said:

              At this point, Judge, I wanted to make an offer of proof. I
              anticipate eliciting testimony that would be prejudicial to the
              defendant and getting vital and relevant in this case. That is that
              Onohan had some familiarity with Mr. Ice Heard and where he
              lived. I wanted to approach in order to phrase it in a way that is
              consistent with your Honor’s wishes and does the least damage,
              in terms of prejudice to the defendant, while still getting to the
              relevant portions that is -- that your Honor has already heard,
              that there was an anonymous tip about the street name Ice.


              Mr. Onohan, through his work as a gang officer, was familiar
              with Ice Heard and knew that he lived close by. So I don't know
              if I can ask—


      Id. at 113. There then ensued a discussion between the State, defense counsel,

      and the trial court of what Sergeant Onohan would be allowed to testify about.

      In the end, Sergeant Onohan testified:

              Q:     Okay. And are you familiar with a person known to you
              as Ice Heard?


              A:       Yes.


              Q:       From prior contacts?


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 4 of 8
              A:       Yes.


              Q:       Were you familiar with where that individual lived?


              A:       Yes.


      Id. at 118.


[8]   The jury found Heard guilty of all three counts as charged. The trial court

      entered judgment of conviction and sentenced Heard only for Class B felony

      aggravated battery. He now appeals.


                                                  Analysis
[9]   Heard contends the trial court improperly admitted evidence of the anonymous

      phone call that identified “Ice” as the shooter and evidence that Sergeant

      Onohan had “prior contacts” with Heard and knew where he lived. Id. “We

      review evidentiary rulings for abuse of discretion resulting in prejudicial error.”

      Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of discretion occurs

      if a ruling “is either clearly against the logic and effect of the facts and

      circumstances before the court, or when the court misinterprets the law.” Id.

      We may affirm a decision regarding the admission of evidence if it is

      sustainable on any basis in the record. Johnson v. State, 6 N.E.3d 491, 499 (Ind.

      Ct. App. 2014). Also, we will disregard any error in the admission of evidence

      unless it affects the substantial rights of a party. Id. In determining the

      prejudicial effect of an evidentiary ruling on a party’s substantial rights, we

      consider the probable impact of the improperly-admitted evidence on the fact

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 5 of 8
       finder. Id. “Any error caused by the admission of evidence is harmless if the

       evidence was cumulative of other, appropriately admitted, evidence.” Id.


[10]   With respect to the evidence regarding the anonymous phone call, we agree

       with the State that it constituted invited error, if error at all. Under the invited

       error doctrine, a party cannot take advantage of an error that he or she

       commits, invites, or which is the natural consequence of his or her own neglect

       or misconduct. Robey v. State, 7 N.E.3d 371, 380 (Ind. Ct. App. 2014), trans.

       denied. A defendant cannot seek reversal of a conviction based on testimony

       that defense counsel purposely elicited during cross-examination of a State’s

       witness. See Cole v. State, 970 N.E.2d 779, 783 (Ind. Ct. App. 2012). Here,

       defense counsel first brought up the anonymous phone call and its content

       during cross-examination of an investigating officer; he also cross-examined a

       different officer about the phone call. Heard cannot claim reversible error based

       on those questions and answers. See id. Moreover, to the extent the State also

       mentioned the anonymous phone call, it did so only after Heard had done so

       and in addition to Heard’s own questioning. At most, the State’s mentions of

       the phone call would only be cumulative of Heard’s own questioning and, thus,

       harmless error. See Robey, 7 N.E.3d at 381.


[11]   Next, we address Heard’s contention that the trial court violated Indiana

       Evidence Rule 404(b) in allowing Sergeant Onohan to testify that he knew

       Heard from “prior contacts” and knew where Heard lived. Tr. Vol. III p. 118.

       Evidence Rule 404(b) provides, “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

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 6 of 8
       occasion the person acted in accordance with the character.” It may be

       admissible, however, “for another purpose, such as proving motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.” Heard asserts that under this rule, evidence of a

       defendant’s prior contacts with police is irrelevant and highly prejudicial and,

       furthermore, “[e]xplaining the reasons for the officer’s conduct or his presence

       at the scene is not material to proving the elements of the crime charged.”

       Swain v. State, 647 N.E.2d 23, 25 (Ind. Ct. App. 1995), trans. denied.


[12]   Even if we were to conclude that this evidence was erroneously admitted, it was

       harmless. Sergeant Onohan testified only very briefly that he knew Heard and

       where he lived, without giving any details as to what those previous contacts

       were. The State took care to limit the extent of the testimony before it began. It

       was a brief explanation of how and why Sergeant Onohan ended up at Heard’s

       house soon after the shooting. Most importantly, there was overwhelming

       other evidence that Heard was the shooter, including three eyewitness

       identifications of Heard himself, and several others of William, Heard’s brother,

       having been the young man who was attempting to protect his and Heard’s

       younger sister before Heard arrived. We consider the impact of Sergeant

       Onahan’s testimony to be so slight in comparison to the evidence of Heard’s

       guilt that it did not impact his substantial rights.


                                                 Conclusion
[13]   The trial court did not commit reversible error in admitting evidence during

       Heard’s jury trial. We affirm his conviction.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 7 of 8
[14]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CR-2521 | June 14, 2017   Page 8 of 8
