MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 18 2020, 9:10 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John A. Kindley                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Travis Pugh,                                             February 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-998
        v.                                               Appeal from the Clay Superior
                                                         Court
State of Indiana,                                        The Honorable J. Blaine Akers,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         11D01-1803-F4-253



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020                  Page 1 of 10
                                          Case Summary
[1]   A jury convicted Travis Pugh (“Pugh”) of Theft, as a Level 6 felony,1 and Auto

      Theft, a Level 6 felony,2 and in the second trial stage, a bench trial, Pugh was

      convicted of Unlawful Possession of a Firearm by a Serious Violent Felon, a

      Level 4 felony.3 He challenges the convictions upon the theft counts tried to the

      jury, presenting the sole issue of whether the trial court abused its discretion by

      refusing to exclude a rebuttal witness who had failed to honor a subpoena to

      testify during the State’s case-in-chief. We affirm.



                                 Facts and Procedural History
[2]   In 2018, sixty-nine-year-old Stephen Lucas (“Lucas”) was living at the Brazil,

      Indiana residence of his stepfather, Tim Dove (“Dove”). Lucas was a collector

      of guns and coins, some of which he kept in a safe and closets at the Dove

      residence. Pugh became acquainted with Lucas in the course of some

      transactions at a car dealership. Lucas frequently visited the dealership, and

      Pugh sometimes stopped by the Dove residence without a specific invitation.

      At some point, Pugh learned that Lucas had some valuable collections.




      1
          Ind. Code § 35-43-4-2(a)(1).
      2
          I.C. § 35-43-4-2.5(b)(1).
      3
          I.C. § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 2 of 10
[3]   On the morning of January 20, 2018, Lucas was home alone sleeping. Dove

      had been temporarily admitted to a nursing home but had left his truck

      available for use by some family members. When Lucas awoke, he saw Pugh

      and questioned him as to why he was there. Pugh claimed that the door had

      been unlocked and he was checking on Lucas’s well-being. Pugh left without

      incident, but Lucas called the police to report the unauthorized entry.


[4]   That evening, Pugh returned to the Dove residence, accompanied by Cortney

      Fortner (“Fortner”), Kirstie Stanley (“Stanley”), and Dylan Sinn (“Sinn”).

      Pugh had told Fortner to distract Lucas so that the men could take Lucas’s

      coins. Stanley was carrying a bottle of vodka and drinking heavily. When

      Lucas answered his doorbell to find two women whom he did not know, he

      allowed them entry because he recognized Pugh.


[5]   The women asked for a drink and a tour of the house; Lucas complied with the

      requests. Eventually, Lucas and the women entered the master bathroom and

      Stanley asked to bathe in the Jacuzzi. Lucas seated himself on a bath chair and

      Fortner stripped down to her bra and panties and sat on Lucas’s lap. Stanley

      removed all her clothes and took a bath. After about twenty minutes, Sinn

      entered the bathroom and insisted that they “had to go.” (Tr. Vol. III, pg. 35.)

      The women dressed and followed Sinn out.


[6]   Fortner drove away in her Jeep, with Stanley as a passenger. Pugh and Sinn

      took off in Dove’s vehicle. The group met up and rented a motel room




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 3 of 10
       together. Fortner observed the men carry approximately twenty guns inside the

       motel.


[7]    Lucas tried to enter his bedroom but found the door locked. Untroubled, he

       laid down on the sofa and went to sleep. The next morning, Dove’s son, Tony

       Dove (“Tony”), entered the residence and asked Lucas why Dove’s truck was

       missing. Lucas and Tony then forced open the bedroom door lock to discover

       that many of Lucas’s guns were missing. They notified police.


[8]    Fortner, Pugh, and Sinn drove to Indianapolis to dispose of the stolen guns.

       After the guns were delivered and the trio smoked methamphetamine together,

       Pugh parted ways with Fortner and Sinn. Sinn retained possession of Dove’s

       truck and one gun. Subsequently, Sinn was arrested on an outstanding warrant

       and found to be in possession of Dove’s truck. Further investigation led to

       Pugh’s arrest.


[9]    On March 28, 2018, the State charged Pugh with Unlawful Possession of a

       Firearm by a Serious Violent Felon, Theft, and Auto Theft. On February 6,

       2019, the State alleged Pugh to be an habitual offender. Pugh was brought to

       trial on March 5, 2019, in trifurcated proceedings. Fortner, who had been listed

       on the State’s witness list, testified to the above-described events. Stanley, who

       had not been listed on the State’s witness list, but had been subpoenaed by the

       State, testified in the rebuttal phase.


[10]   The jury found Pugh guilty on the charges of Theft and Auto Theft. After Pugh

       waived his right to a jury trial on the possession charge, the trial court found

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 4 of 10
       Pugh had committed Unlawful Possession of a Firearm by a Serious Violent

       Felony; finally, the trial court dismissed the habitual offender allegation upon a

       motion from the State.


[11]   On April 4, 2019, the trial court sentenced Pugh to serve twelve years

       imprisonment for the possession conviction, with two and one-half years

       suspended to probation, and two and one-half years for each of the theft

       convictions. The theft sentences were concurrent sentences, but consecutive to

       the possession sentence, providing for an aggregate sentence of fourteen and

       one-half years, with two and one-half years suspended to probation. Pugh now

       appeals.



                                  Discussion and Decision
                                         Standard of Review
[12]   Pugh contends that the trial court’s denial of his motion to exclude Stanley’s

       testimony is an abuse of discretion. The purposes of pretrial discovery include

       enhancing the accuracy and efficiency of the fact-finding process and the

       prevention of surprise by allowing the parties adequate time to prepare their

       cases. Beauchamp v. State, 788 N.E.2d 881, 892 (Ind. Ct. App. 2003). A trial

       court typically enjoys broad discretion in ruling on discovery violations and we

       will reverse only if the court has abused its discretion. Id.


[13]   With regard to rebuttal witnesses, ‘“nondisclosure [] is excused only when that

       witness was unknown and unanticipated; known and anticipated witnesses,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 5 of 10
       even if presented in rebuttal, must be identified pursuant to a court order, such

       as a pre-trial order, or to a proper discovery request.”’ Carrigg v. State, 696

       N.E.2d 392, 398 (Ind. Ct. App. 1998) (quoting McCullough v. Archbold Ladder

       Co., 605 N.E.2d 175, 179 (Ind. 1993)). A “known” witness refers to knowledge

       that the witness exists. Id. An “anticipated” witness is one which a party or

       counsel anticipates the need for at trial. Id. “Exclusion of evidence as a

       discovery abuse sanction is proper where there is a showing that the State

       engaged in deliberate or otherwise reprehensible conduct that prohibits the

       defendant from receiving a fair trial.” Beauchamp, 788 N.E.2d at 892-93.


                                                   Analysis
[14]   At the commencement of the jury trial, defense counsel advised the trial court

       that counsel had been informed, just the prior evening, that the State intended

       to call Stanley as a witness. Pugh sought exclusion of Stanley’s testimony

       because she had not been included on the State’s witness list and he had not

       deposed her. After hearing argument of counsel, the trial court declined to

       exclude Stanley as a witness but instructed the State to “have her released [from

       a treatment facility] and get her here tonight” so that defense counsel could

       question her. (Tr. Vol. II, pg. 66.)


[15]   Stanley did not honor her subpoena and a bench warrant was issued for her

       arrest. Fortner testified that Pugh had planned the robbery that she, Stanley,

       and Sinn helped execute. The State rested its case-in-chief, and Pugh testified

       in his own defense. He testified that he had not stolen anything from Lucas and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 6 of 10
       denied that he devised a plan for distraction. According to Pugh, he first met

       Stanley on January 20, 2018, and had provided Fortner with the address of the

       Dove residence only so that the women could go there and offer Lucas female

       companionship. He claimed that he did not accompany them but showed up

       later. He denied going to Indianapolis to dispose of any stolen property.


[16]   After the defense rested, defense counsel advised the trial court that Stanley had

       been located and the State intended to call her as a rebuttal witness. Pugh

       objected that his decision to testify had been “based on the State resting and

       Ms. Stanley not testifying.” Id. at Vol. III, pg. 126. The trial court refused to

       exclude Stanley as a witness but requested “assurance” from the State that the

       scope of Stanley’s testimony would be limited to “simply rebutting what the

       witness testified here to [sic].” Id. at 127. The State advised that the questions

       to be posed to Stanley would consist of exploring whether she had met Pugh

       before January 20, 2018, whether he was at the Dove residence on that date,

       whether she observed him in the stolen vehicle that evening, and whether he

       was in Indianapolis the following day.


[17]   The State elicited testimony from Stanley that she had met Pugh at Fortner’s

       home; Pugh, Fortner, Stanley, and Sinn rode together to the house of an older

       man she described as Pugh’s friend; she became very intoxicated; and she

       remembered waking up in a hotel room with a few guns there. During cross-

       examination, Stanley admitted that she had not seen Pugh take any property,

       she had heard no discussion of a plan, and she had been offered reduction of

       her felony charge to a misdemeanor in exchange for her testimony.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 7 of 10
[18]   Pugh now argues that Stanley’s testimony should have been excluded because:


               she had failed to comply with the State’s subpoena and had failed
               to appear to testify for the State during its case-in-chief. What
               she had to say on rebuttal could have been said in the State’s
               case-in-chief, and therefore should have been presented at that
               time. The reason for requiring advance disclosure of all
               witnesses, including rebuttal witnesses, is to prevent surprise.
               The State already has the considerable advantage of getting to go
               last in a criminal case. When the defense forms and presents its
               case, including the crucial decision of whether the defendant will
               testify or not, it is entitled to be informed of the evidence against
               him. When a witness is not listed on the State’s witness list, and
               when the judge nevertheless signifies that he will let that witness
               testify for the State but that witness fails to show up to testify for
               the State, the defendant in forming and presenting his own case is
               entitled to rely on the assumption that he is fully informed of the
               evidence against him.


       Appellant’s Brief at 7. At bottom, Pugh suggests that he would not have

       testified if he had known that Stanley was going to do so. Pugh is not

       contending that the State “engaged in deliberate or otherwise reprehensible

       conduct,” Beauchamp, 788 N.E.2d at 893, that denied him a fair trial.


[19]   Stanley’s testimony was delayed because she did not timely honor her

       subpoena; this evinces misconduct on her part and not the part of the State.

       That said, the State should have listed Stanley on its pretrial witness list.

       Nonetheless, Pugh learned well in advance of his testimony that the State

       hoped to elicit testimony from Stanley. And he cites no authority for the

       proposition that the severe discovery sanction of witness exclusion may be



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 8 of 10
       imposed because a witness’s recalcitrance factored into a defendant’s decision

       to testify or not to testify.


[20]   Even assuming that the trial court abused its discretion in the admission of

       evidence, “[a]n error is harmless when it results in no prejudice to the

       ‘substantial rights’ of a party.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)

       (citing Indiana Trial Rule 61).4 The basic premise of the rule is that “a

       conviction may stand when the error had no bearing on the outcome of the

       case.” Id. Here, the jury heard Lucas’s testimony that he awoke to find Pugh

       in his house; Pugh returned that evening uninvited; and Lucas discovered, as

       soon as he gained entry to his bedroom, that many of his guns were missing.

       The jury also heard Fortner’s testimony that Pugh had identified Lucas as a

       target and enlisted her help with a plan of distraction. Fortner further testified

       that she saw Pugh drive away in Dove’s truck; she saw Pugh in possession of

       numerous guns; and she, Sinn, and Pugh went to Indianapolis to dispose of the

       guns. This evidence is such that we can conclude that Stanley’s testimony of

       her drunken escapade (while denying knowledge of a criminal plan or having

       observed any taking of property) “had no bearing on the outcome of the case.”

       Durden, 99 N.E.3d at 652. Allowing Stanley’s testimony was, at worst,

       harmless error.




       4
        Indiana Trial Rule 61 provides in relevant part: “[t]he court at every stage of the proceeding must disregard
       any error or defect in the proceeding which does not affect the substantial rights of the parties.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020                  Page 9 of 10
                                               Conclusion
[21]   Pugh has failed to demonstrate an abuse of the trial court’s discretion

       warranting reversal of his convictions.


[22]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-998 | February 18, 2020   Page 10 of 10
