MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                         Aug 04 2017, 9:29 am

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
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael J. Bates,                                        August 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1701-CR-100
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D01-1604-F4-16



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017      Page 1 of 5
[1]   Michael J. Bates appeals his conviction for Level 4 Felony Unlawful Possession

      of a Firearm by a Serious Violent Felon,1 arguing that the trial court erred by

      excluding video that was recorded by a police officer’s body camera. Finding

      no reversible error, we affirm.


                                                     Facts
[2]   Lafayette Police Detective Mark Pinkard was on duty around 6:30 a.m. on

      April 20, 2016, when he stopped at a Village Pantry. While Detective Pinkard

      was in line inside the store, Brianna Cannon entered the store, asked the cashier

      to call 911, and reported a situation in the parking lot involving a firearm. The

      detective identified himself to Cannon and asked her what was happening.

      Cannon said that an individual in the parking lot had threatened her with a

      firearm. Detective Pinkard instructed the store employee to call 911 and then

      exited the store.


[3]   The detective walked to his vehicle; on the way, he could hear yelling and

      arguing near a black SUV. Detective Pinkard believed he was outnumbered.

      As he had no vest and back-up had not yet arrived, he sat in his vehicle to listen

      and evaluate the situation. As he listened, he confirmed Cannon’s report of the

      situation and became concerned that some kind of incident was imminent.




      1
          Ind. Code § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017   Page 2 of 5
      Detective Pinkard exited his vehicle, showed his badge and gun, and ordered

      everyone out of the black SUV.


[4]   Bates, Laura Dewitt, Jordan Richards, and Kelly Matthews all exited the

      vehicle. As the detective had ordered them out of the car, Richards saw Bates

      slide a gun onto the vehicle’s center console. Matthews also saw Bates with the

      gun; Matthews threw it into the back seat of the vehicle after Bates placed it on

      the console. Eventually, other officers arrived at the scene and arrested Bates.


[5]   One of the responding officers was Officer Ryan Black. As part of the

      investigation, Officer Black spoke with Rhonda Smith, the manager of the

      Village Pantry; that interview was recorded on Officer Black’s body camera.

      Smith told Officer Black that she had seen a female repeatedly striking a person

      (later identified as Bates) outside the store. When Smith observed the

      altercation, she was inside looking out. Smith did not mention seeing a firearm

      in Bates’s possession.


[6]   On April 22, 2016, the State charged Bates with Level 4 felony serious violent

      felon in possession of a firearm.2 At trial, Bates sought to introduce the video

      recording of Smith’s interview. The State objected and the trial court excluded

      the evidence. A jury trial took place on September 20, 2016, and that trial

      ended in a mistrial. A new trial took place on November 15, 2016, at which

      time Bates again sought to introduce the body camera footage and the trial



      2
          The State also charged Bates with two other offenses but later dismissed those charges.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017          Page 3 of 5
      court again excluded it. On November 16, 2016, the jury found Bates guilty as

      charged. The trial court sentenced Bates to eight years, with one year

      suspended to probation. Bates now appeals.


                                   Discussion and Decision
[7]   Bates’s sole argument on appeal is that the trial court erred by excluding the

      video recording of Officer Black’s interview of Smith. We will reverse a trial

      court’s ruling on the admissibility of evidence only if the decision is clearly

      against the logic and effect of the facts and circumstances and the error affects a

      party’s substantial rights. E.g., Shelton v. State, 26 N.E.3d 1038, 1042 (Ind. Ct.

      App. 2015).


[8]   The trial court excluded the video recording because it was hearsay evidence

      that did not fall into one of the exceptions to the rule prohibiting its admission.

      Ind. Evidence Rules 801-03. Bates contends that the video recording falls under

      the exceptions for excited utterances, records of regularly conducted business

      activity, and/or public records and reports. Evid. R. 803(2), 803(6), 803(8).


[9]   Assuming solely for argument’s sake that the exclusion of this evidence was

      erroneous, that error would be harmless unless it affected Bates’s substantial

      rights. E.g., Wilson v. State, 770 N.E.2d 799, 802 (Ind. 2002). Here, the record

      reveals that both Richards and Matthews saw Bates with the firearm inside the

      SUV. Tr. Vol. II p. 73-74, 104. The fact that Smith, who was observing events

      from inside the store, did not mention seeing Bates with a firearm inside the

      vehicle is unsurprising and would have had no impact on the verdict. Under

      Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017   Page 4 of 5
       these circumstances, even if the exclusion of the video recording was erroneous,

       the error was harmless. We decline to reverse.


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


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1701-CR-100 | August 4, 2017   Page 5 of 5
