      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                           Mar 30 2015, 9:11 am
      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
      Jeffrey D. Stonebraker                                   Gregory F. Zoeller
      Clark County Chief Public Defender                       Attorney General of Indiana
      Jeffersonville, Indiana
                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Antonio D. Walker,                                       March 30, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               10A01-1407-CR-295
              v.                                               Appeal from the Clark Circuit Court
                                                               The Honorable Vicki L. Carmichael,
                                                               Judge
      State of Indiana,                                        Cause No. 10C04-1211-MR-1
      Appellee-Plaintiff




      Bradford, Judge.



                                            Case Summary
[1]   On November 13, 2012, Appellant-Defendant Antonio D. Walker shot Paris

      Hamilton five times in the torso. Hamilton died as a result of the gunshot

      Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015         Page 1 of 9
      wounds inflicted by Walker. Appellee-Plaintiff the State of Indiana (the

      “State”) subsequently charged Walker with murder. Walker was found guilty

      of the murder of Hamilton following a jury trial. On appeal, Walker contends

      that the trial court abused its discretion in admitting certain evidence at trial.

      We affirm.



                            Facts and Procedural History
[2]   Walker went to Ashley Riley’s apartment in Jeffersonville to pick up his friend

      Amel Scott at approximately 8:00 a.m. on November 13, 2012. Scott was

      arguing with Hamilton, who had come to the apartment to pick up Michelle

      Ragland. After Hamilton removed his jacket and watch, Walker said, “I don’t

      fight with my hands, I fight with this.” Tr. p. 235. Walker then pulled a

      handgun from his jacket and pointed the handgun at Hamilton. Walker

      lowered the handgun and began to put it away before pulling it out again and

      pointing it at Hamilton for a second time.


[3]   Moments later, while Walker and Scott were standing in the doorway to Riley’s

      apartment, Walker turned, pointed the handgun at Hamilton, and shot

      Hamilton five times in the torso. Hamilton died as a result of the gunshot

      wounds inflicted upon him by Walker.


[4]   After Walker shot Hamilton, Walker and Scott fled the apartment. Walker and

      Scott then ran in two different directions. Jeffersonville Police Department

      Officer Mark Doherty subsequently located Walker, walking quickly,


      Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 2 of 9
      approximately one-half mile away from Riley’s apartment. Officer Doherty

      apprehended Walker and transported him to the Jeffersonville Police Station.


[5]   While at the Jeffersonville Police Station, Detective Isaac Parker informed

      Walker of his Miranda1 rights. Walker agreed to waive his Miranda rights and

      talk to Detective Parker. Walker initially denied ever owning or possessing a

      handgun. Walker, however, eventually confessed to possessing a handgun,

      pulling the handgun from his jacket pocket, and shooting Hamilton five times.

[6]   On November 15, 2012, the State charged Walker with murder. Walker was tried

      before a jury in a trial that commenced on April 14, 2014. On April 16, 2014, the

      jury found Walker guilty. The trial court subsequently sentenced Walker to a term

      of fifty-five years, with fifty years executed and five years suspended to probation.

      This appeal follows.



                                 Discussion and Decision
[7]   In challenging his conviction on appeal, Walker contends that the trial court

      abused its discretion in admitting certain evidence at trial. The admission or

      exclusion of evidence is entrusted to the discretion of the trial court. Collins v.

      State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (citing Farris v. State, 818 N.E.2d

      63, 67 (Ind. Ct. App. 2004).




      1
          See Miranda v. Arizona, 384 U.S. 436 (1966).

      Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 3 of 9
              We will reverse a trial court’s decision only for an abuse of discretion.
              [Farris, 818 N.E.2d at 67]. We will consider the conflicting evidence
              most favorable to the trial court’s ruling and any uncontested evidence
              favorable to the defendant. Taylor v. State, 891 N.E.2d 155, 158 (Ind.
              Ct. App. 2008). An abuse of discretion occurs when the trial court’s
              decision is clearly against the logic and effect of the facts and
              circumstances before the court or it misinterprets the law. Id. In
              determining whether an error in the introduction of evidence affected
              an appellant’s substantial rights, we assess the probable impact of the
              evidence on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
              App. 2002). Admission of evidence is harmless and is not grounds for
              reversal where the evidence is merely cumulative of other evidence
              admitted. Pavey v. State, 764 N.E.2d 692, 703 (Ind. Ct. App. 2002).


      Id.


[8]   Walker claims that the trial court abused its discretion in admitting evidence

      that Walker had possessed a handgun prior to shooting Hamilton. Specifically,

      Walker argues that the challenged evidence was not relevant as it was either (1)

      not closely related enough to the events in question or (2) overly prejudicial.

      For its part, the State claims that the trial court did not abuse its discretion in

      admitting the challenged evidence because the evidence was relevant to prove

      that Walker had access to the type of weapon used in the murder of Hamilton.

      The State also claims that because the mere possession of a weapon does not

      amount to misconduct, admission of evidence that Walker had previously

      possessed a handgun did not unfairly prejudice Walker. We agree.

[9]           Relevant evidence is “evidence having any tendency to make the
              existence of any fact that is of consequence to the determination of the
              action more or less probable than it would be without the evidence.”
              Ind. Evidence Rule 401. “Generally speaking, relevant evidence is
              admissible, and irrelevant evidence is inadmissible.” Sandifur v. State,

      Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 4 of 9
               815 N.E.2d 1042, 1048 (Ind. Ct. App. 2004), trans. denied; Ind.
               Evidence Rule 402. Relevant evidence may nevertheless be excluded
               if its probative value is substantially outweighed by the danger of
               unfair prejudice. Ind. Evidence Rule 403. These basic tenets of
               evidence are utilized in addressing the specific issue of when evidence
               of other bad acts is admissible.
               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[.]
               In determining the admissibility of evidence under Rule 404(b), 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 pursuant to
               Indiana Evidence Rule 403. Ware v. State, 816 N.E.2d 1167, 1175
               (Ind. Ct. App. 2004). We employ the same test to determine whether
               the trial court abused its discretion. Id.


       Southern v. State, 878 N.E.2d 315, 321 (Ind. Ct. App. 2007).


[10]   Evidence that Walker had access to and had previously possessed a handgun

       that was either the same as or similar to the handgun that he used to shoot

       Hamilton was relevant to the question of whether Walker had access to the

       murder weapon. “Evidence that a defendant had access to a weapon of the

       type used in a crime is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act.” Pickens v. State, 764 N.E.2d 295, 299

       (Ind. Ct. App. 2002) (citing Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000)).

       Further, although some proffered evidence may be irrelevant because it is too


       Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 5 of 9
       remote, evidence of an event occurring in the past can be critical. Id. In this

       vein, the Indiana Supreme Court has explained:

               Some proffered evidence may be irrelevant because it is too remote.
               For example, the fact that an adult defendant threatened the victim
               when both were children does not tell us much about their relationship
               today. On the other hand, an event occurring in the past can be
               critical. If the defendant stole the murder weapon twenty years ago
               and its presence is unaccounted for in the interim, the relevance of the
               gun theft to show access to the weapon is not obviated by the passing
               of time or by the dissimilarity between theft and murder. In short,
               admissibility hinges on relevance, not a litmus test based on an
               isolated factor—remoteness, similarity, or anything else—that may
               bear on relevance.


       Hicks v. State, 690 N.E.2d 215, 220 (Ind. 1997).


[11]   Walker challenges the admission of the testimony of two witnesses. One of

       these witnesses testified that she had seen Walker in possession of a handgun a

       month or two before the date in question. The other testified that she had seen

       Walker in possession of a handgun just prior to the shooting on the morning in

       question. With respect to the first witness, we do not believe that possession of

       a handgun by a defendant a month or two before that same defendant uses a

       handgun to commit murder is too remote to be relevant to a question as to

       whether the defendant had access to a handgun. With respect to the testimony

       of the witness who testified that she had seen Walker in possession of a

       handgun on the morning in question, such evidence is clearly not too remote as

       it goes to prove that Walker had access to a handgun on the date that he shot

       Hamilton.


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[12]   The probative value of this evidence also outweighs any potential prejudice.

       Walker does not assert that he suffered any specific prejudice, but rather raises

       the generalized concern that possession of a handgun may be viewed

       unfavorably. As the State argued at trial, possession of a handgun is legal if

       certain requirements are met. We do not believe that evidence of mere

       possession is overly prejudicial when balanced against the relevance of the

       evidence that Walker had access to the type of weapon used in the murder. See

       generally, Thompson, 728 N.E.2d at 160 (providing that “[Defendant] points to

       no danger of unfair prejudice, other than a generalized concern that selling a

       weapon may be viewed unfavorably. This possibility is clearly outweighed by

       the probative value of testimony that [the Defendant] had access to a weapon of

       the type used in the murder.”).


[13]   Further, in the instant case, the additional consideration that the evidence was

       offered to impeach Walker and cast doubt on his credibility leads us to the

       conclusion that such evidence was not overly prejudicial. Again, Walker

       initially told Detective Parker that, prior to the morning in question, he had

       never possessed a handgun. Although Walker eventually admitted that he had

       previously possessed a handgun, the challenged evidence was relevant to

       impeach Walker’s credibility. Walker’s credibility was at issue because

       although he admitted that he shot Hamilton five times in the torso, he claimed

       that he was justified in doing so. We do not believe that the fact that Walker

       subsequently impeached his own credibility by providing inconsistent and false

       statements to Detective Parker limits the State’s ability to also impeach


       Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 7 of 9
       Walker’s credibility by providing evidence which would tend to prove that

       Walker’s prior statements were false.


[14]   Additionally, we further conclude that to the extent that one could possibly

       conclude that it was error to admit the challenged evidence, we agree with the

       State that any potential error was harmless in light of Walker’s admission that

       he shot Hamilton five times.

               Errors in the admission of evidence are to be disregarded as harmless
               unless they affect the defendant’s substantial rights. Stewart v. State,
               754 N.E.2d 492, 496 (Ind. 2001); Ind. Trial Rule 61; Ind. Evidence
               Rule 103(a). An error will be deemed harmless if its probable impact
               on the jury, in light of all of the evidence in the case, is sufficiently
               minor so as not to affect the substantial rights of the parties. Id.


       Rogers v. State, 897 N.E.2d 955, 961 (Ind. Ct. App. 2008).


[15]   Here, in addition to Walker’s confession that he shot Hamilton five times in the

       torso, the State presented the testimony of Ragland and Austin Meltzer who

       each testified that Walker had a gun in his hand in the moments before

       Hamilton was shot. Ragland testified that she had seen Walker point the

       handgun at Hamilton twice a few moments before Walker shot Hamilton.

       Meltzer testified that he saw Walker pointing the gun into Riley’s apartment

       just before he heard five gun shots. Ragland also testified that she heard five

       gun shots. We conclude that in light of the unchallenged evidence, coupled

       with Walker’s confession, the probable impact of the challenged evidence on

       the jury is sufficiently minor so as not to affect Walker’s substantial rights. As



       Court of Appeals of Indiana | Memorandum Decision 10A01-1407-CR-295 | March 30, 2015   Page 8 of 9
       such, any potential error in the admission of the challenged evidence was

       harmless.


[16]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




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