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 2018, 11:02 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                   Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Holder,                                           November 30, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-863
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Plaintiff                                      Rothenberg, Judge
                                                        Trial Court Cause No.
                                                        49G02-1708-F3-32259



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018                 Page 1 of 9
[1]   James Holder appeals his conviction for Level 5 Felony Carrying a Handgun

      Without a License,1 arguing that (1) the trial court erred when it admitted

      evidence of Holder’s prior criminal conviction; and (2) the trial court erred

      when it merged, rather than vacated, a lesser included offense for which it

      entered a judgment of conviction. Finding no error in the admission of evidence

      but error in the merger of convictions, we affirm in part and remand in part

      with instructions.


                                                   Facts
[2]   In August 2017, Holder and Katherine Waltz were living together. On August

      29, 2017, Holder picked up Waltz at her workplace and moved to the passenger

      seat so that Waltz could drive. Soon after, Waltz noticed that Holder had a gun

      on his lap. He alternated between pointing the gun at her head and her

      stomach. The couple’s three-year-old daughter sat in the backseat and played

      on Holder’s cell phone this entire time.


[3]   Holder ordered Waltz to drive to Holder’s sister’s home. Once they arrived,

      Holder retrieved the cell phone from their daughter and let her play with

      Holder’s nieces and nephews. Holder, still carrying the gun, then went to the

      backyard. Waltz recognized someone she knew driving by and asked him to

      call 911.




      1
          Ind. Code § 35-47-2-1(e)(2)(A).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 2 of 9
[4]   Indianapolis Metropolitan Police Department (IMPD) Officer Danielle Lewis

      was dispatched to the residence, where Waltz informed her that Holder was

      armed. Soon after, Officer Ha’le Rapier arrived to help Officer Lewis. Both

      officers went to the backyard with their guns drawn. They found Holder and

      ordered him to get to the ground with his hands up. The officers handcuffed

      Holder and patted him down but did not find a firearm. Officer Kolin Kinder

      arrived at the scene and began to search for the missing firearm. He noticed a

      trash can close by with its lid slightly ajar. He also noticed that Holder watched

      him “intently” as he approached the trash can. Tr. Vol. III p. 108. Inside,

      Officer Kinder found the firearm.


[5]   Officer Matthew Minnis arrived at the scene and read Holder his Miranda2

      rights. Holder informed police that he recognized the firearm because a child

      had previously handed it to him, and after holding it, he had passed the gun to

      someone else. Later DNA testing revealed that two individuals had touched the

      gun, but the police could not determine their identities.


[6]   On August 31, 2017, the State charged Holder with Count I, Level 3 felony

      criminal confinement; Count II, Level 5 felony intimidation; Count III (in two

      parts), Class A misdemeanor carrying a handgun without a license and Level 5




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 3 of 9
      felony carrying a handgun without a license;3 Count IV, Level 6 felony pointing

      a firearm; and Count V, Class A misdemeanor unlawful possession of a firearm

      by a person previously convicted of domestic battery.


[7]   A bifurcated jury trial began on February 22, 2018. During the first stage of the

      trial, the State sought to introduce evidence of Holder’s 2008 conviction for

      carrying a handgun without a license as well as evidence of his prior domestic

      battery conviction. Holder objected, claiming that the prejudicial effect of this

      evidence outweighed its probative value and that it violated Indiana Rule of

      Evidence 404(b). After hearing arguments from both sides, the trial court

      allowed the State to introduce evidence only of the 2008 carrying a handgun

      without a license conviction because Holder had “opened the door” when he

      testified that he was “scared” of guns. Id at 227.


[8]   At the close of the first stage of trial, the jury found Holder guilty of part one of

      Count III, and not guilty of Counts I, II, and IV. At the second stage of the

      trial, the State presented evidence on part two of Count III and Count V. The

      jury found Holder guilty on both counts.


[9]   At the sentencing hearing on March 21, 2018, the trial court merged Holder’s

      convictions for part one of Count III and Count V into part two of Count III.

      The trial court sentenced Holder to four years’ incarceration with two years to




      3
        The State charged Holder under two parts of the same criminal statute for carrying a firearm without a
      license because part two, the Level 5 felony, increases the penalty for someone who “has a prior conviction of
      any offense under this section.” Holder was previously convicted under this statute in 2008.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018                  Page 4 of 9
       be served at the Department of Correction, one year to be served on in-home

       detention, and one year suspended to probation. Holder now appeals.


                               Discussion and Decision
[10]   Holder makes two arguments on appeal: (1) the trial court erred when it

       admitted evidence of Holder’s prior criminal conviction; and (2) the trial court

       erred when it merged, rather than vacated, two lesser included offenses for

       which it entered a judgment of conviction.


[11]   First, Holder argues that the trial court improperly admitted, over Holder’s

       objection, evidence of his 2008 conviction for carrying a handgun without a

       license in the first stage of his trial. We will reverse a trial court’s ruling on the

       admission of evidence only if the decision is clearly against the logic and effect

       of the facts and circumstances before it. Smith v. State, 754 N.E.2d 502, 504

       (Ind. 2001).


[12]   Specifically, Holder claims that the trial court’s admission of this evidence was

       erroneous for two reasons. First, he argues that the introduction of a prior crime

       or bad act violates Indiana Rule of Evidence 404(b). And second, pursuant to

       Indiana Rule of Evidence 403, the prejudicial effect of evidence of a prior

       criminal conviction, the same crime for which Holder was on trial, outweighs

       its probative value.


[13]   First, Indiana Rule 404(b) prohibits the introduction of evidence of a prior

       crime or bad act out of fear that the evidence will be used “to prove a person’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 5 of 9
       character in order to show on a particular occasion the person acted in

       accordance with that character.” The State argues that while evidence of

       Holder’s prior criminal conviction would ordinarily be inadmissible, Holder

       opened the door to this type of evidence by testifying that he was “scared of

       guns.” Tr. Vol. III p. 240. A party “opens the door” to otherwise inadmissible

       evidence when that party leaves the trier of fact with a false or misleading

       impression of the facts stated. Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind. 2001).

       In this case, Holder claims that he did not create a false or misleading

       impression in the minds of the jurors because his comment about being scared

       of guns was only in reference to him being scared of Officers Lewis and Rapier

       directly pointing their guns at him. Appellant’s Br. p. 11. We find Holder’s

       argument unavailing.


[14]   The trial court specifically addressed this issue, stating that “[the jury] will be

       left with your unquestioned testimony that you’re scared of guns . . . . And

       when you decided to add that statement . . . ‘I’m scared of guns,’ you opened

       the door to that.” Tr. Vol. III p. 226. We find no fault with the trial court’s

       conclusion. While Holder did say that he was scared at the specific moment he

       saw the officers pointing their guns at him, he also independently affirmed that

       he was scared of guns in response to the question, “So, you’re scared of guns?”

       Id. at 240. This admission could have misled the jury into thinking that, due to

       this fear, Holder could not have possibly possessed a gun at any point during

       the day of the incident. Moreover, the introduction of his prior criminal

       conviction of possessing a gun without a license directly contradicts any of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 6 of 9
       Holder’s misleading testimony that as a general rule, he is scared of guns.

       Therefore, the admission of this evidence did not violate Indiana Rule of

       Evidence 404(b).


[15]   Second, Indiana Rule of Evidence 403 states that a trial court may exclude

       otherwise relevant evidence if its probative value is “substantially outweighed

       by the danger of unfair prejudice.” It is apparent that the trial court was

       concerned about the danger of unfair prejudice by admitting evidence of the

       prior criminal conviction. Id. at 226-27. However, the trial court took this

       concern into consideration by requiring the State to offer its reasons for why the

       evidence should be admitted; the trial court then reached a sound decision

       under the circumstances. The trial court denied the admission of evidence of

       Holder’s prior criminal conviction for domestic battery, demonstrating that it

       was cognizant of the potential for prejudice. In this instance, we cannot say that

       the trial court’s decision was clearly against the facts and the circumstances

       before it.


[16]   Moreover, if the trial court’s ruling on admission was erroneous, at most, it was

       harmless error. The improper admission of evidence is harmless error if the

       conviction is supported by substantial independent evidence of guilt satisfying

       us that there is no substantial likelihood the challenged evidence contributed to

       the conviction. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011).


[17]   Here, there is substantial, independent evidence showing that Holder was guilty

       of carrying a handgun without a license. Waltz’s testimony—corroborated in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 7 of 9
       matching detail by Officer Kinder’s testimony—shows that throughout the

       evening of the incident, Holder had a gun. Further, Holder flatly admitted that

       he did not have a license to possess a gun, and Officer Kinder testified that

       Holder was “staring intently” at her when she went to inspect the trash can

       where the gun was found. Tr. Vol. III p. 108. Moreover, Holder provided two

       inconsistent versions of what happened with him and the gun, both of which

       still affirm that he possessed the gun, used it against Waltz while they were

       driving in the car, and somehow disposed of it shortly thereafter. It is more than

       reasonable to conclude that the jury’s conviction was supported by substantial

       independent evidence of guilt and that evidence of his conviction did not

       directly contribute to the jury’s decision. Therefore, the trial court’s decision to

       admit evidence of Holder’s past criminal conviction was harmless error at most.


[18]   Finally, Holder also argues that the trial court erred when it merged, rather than

       vacated, two lesser included offenses. We review questions of double jeopardy

       and merger de novo, giving no consideration to the trial court’s decision below.

       Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).


[19]   The trial court merged Count V and part one of Count III into part two of

       Count III. The State concedes that this was improper. See Mason v. State, 532

       N.E.2d 1169, 1172 (Ind. 1989) (holding that the correct procedure for a trial

       court that violates double jeopardy is to “vacate the conviction for the lesser

       included offense and enter a judgment of conviction and sentence only upon the

       greater offense”). We agree. The trial court should have simply vacated those

       convictions and entered a judgment of conviction only for part two of Count

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 8 of 9
       III, the Level 5 felony. Therefore, we remand to the trial court with instructions

       to vacate the convictions on Count V and part one of Count III.


[20]   The judgment of the trial court is affirmed in part and remanded in part with

       instructions.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-863 | November 30, 2018   Page 9 of 9
