MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Nov 15 2018, 10:57 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
Marielena Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General

                                                        George P. Sherman
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana


                                            IN THE
       COURT OF APPEALS OF INDIANA

Marques Holmes,                                         November 15, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1137
        v.                                              Appeal from the Elkhart Circuit Court
                                                        The Honorable Michael A.
State of Indiana,                                       Christofeno, Judge
Appellee-Plaintiff                                      Trial Court Cause No.
                                                        20C01-1605-F2-12



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018            Page 1 of 5
                                             Case Summary
[1]   Marques Holmes appeals his convictions for level 2 felony dealing in

      methamphetamine and level 6 felony resisting law enforcement. He contends

      that the trial court committed fundamental error by excluding a witness who

      invoked his Fifth Amendment right against self-incrimination. Because the

      error, if any, was invited, we affirm.


                                 Facts and Procedural History
[2]   On May 17, 2016, Elkhart Police Corporal Jim Ballard was dispatched to 502

      West Marion Street in response to a report of a threat. Corporal Ballard spoke

      to the person who reported the threat and then left the area. About an hour

      later, Corporal Ballard was again dispatched to 502 West Marion Street. When

      he arrived, he observed a white minivan parked in front of the residence and

      suspected that the man sitting in the driver’s seat was the person reportedly

      making the threats. Corporal Ballard parked his clearly marked police vehicle

      behind the minivan and exited his vehicle. As he walked toward the minivan, it

      drove away. Corporal Ballard returned to his patrol car, activated the overhead

      red and blue lights, and followed the minivan. The minivan stopped, and

      Corporal Ballard parked behind it. As he was getting out of his patrol car, the

      minivan drove away again. Corporal Ballard activated his lights and siren and

      followed the minivan several city blocks.


[3]   Eventually, the minivan stopped. Corporal Ballard, assisted by other officers,

      ordered the driver to exit the minivan. Once the driver was out of the vehicle,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018   Page 2 of 5
      the officers handcuffed him and identified him as Holmes. When he

      approached the minivan, Corporal Ballard smelled the odor of burnt marijuana

      coming from inside it. Officers searched the minivan and discovered a

      marijuana roach, a digital scale with a white powder on it, a clear bag

      containing synthetic marijuana, a clear bag containing a crystal-like substance

      that appeared to be methamphetamine, and a clear bag containing capsules,

      some of which held a white powder. Testing revealed that the crystal-like

      substance was 8.55 grams methamphetamine and that the white powder in the

      capsules was methamphetamine weighing a total of 1.49 grams.


[4]   The State charged Holmes with level 2 felony dealing in methamphetamine and

      level 6 felony resisting law enforcement. A jury trial was held. After the State

      completed its case-in-chief, Holmes attempted to call Antwan Wilson to testify

      in Holmes’s defense. Outside the presence of the jury, the trial court permitted

      Holmes’s defense counsel to offer Wilson’s testimony. Wilson testified that he

      and Holmes were cousins and that the white minivan belonged to their

      grandmother. Tr. Vol. 2 at 178-79. Wilson explained that on May 17, 2016, he

      had possession of the minivan, he had visited his uncle at 502 West Marion

      Street, and they had argued. Id. at 178-80. Wilson testified that Holmes met

      him at his uncle’s residence to pick up the minivan and return it to their

      grandmother. Id. at 183. When defense counsel asked Wilson if he placed the

      drugs in the minivan, Wilson replied, “I plead the Fifth on that.” Id. at 190.


[5]   At that point, the trial court asked, “Does anyone but me think that ends the

      questioning?” Id. The prosecutor stated that he agreed with the trial court. The

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018   Page 3 of 5
      trial court asked defense counsel if he agreed that because Wilson had exercised

      his Fifth Amendment right not to incriminate himself, defense counsel was

      precluded from questioning Wilson further and Wilson was not available for

      cross-examination by the State. Id. at 190-91. Defense counsel asked for a

      moment, which the trial court granted. After an off-the-record discussion

      among defense counsel, Holmes, and Wilson, the trial court asked the parties to

      clearly state their positions on whether Wilson could testify:


              Ethically neither one of you can call Antwan Wilson now
              because he’s taken the Fifth Amendment. You can’t put him on
              in front of a jury and have him take the Fifth Amendment
              knowing that he’s going to take the Fifth Amendment; so that is
              off the table, I assume. Do you agree?


      Id. at 192-93. Defense counsel responded, “I believe that is the law of the

      land.” Id. at 193.


[6]   The jury found Holmes guilty as charged. The trial court sentenced Holmes to

      an aggregate term of thirty-two and a half years, with two and a half years

      suspended to probation. This appeal ensued.


                                     Discussion and Decision
[7]   Holmes concedes that he did not object to the trial court’s exclusion of his

      witness and therefore argues that it constitutes fundamental error. See

      Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (stating that fundamental

      error doctrine is exception to rule that failure to object constitutes procedural

      default precluding consideration of issue on appeal). However, Holmes’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018   Page 4 of 5
      counsel agreed with the trial court that exclusion of the witness was required

      under the law. Tr. Vol. 2 at 193. Therefore, to the extent any error occurred,

      the error was invited. “Under the doctrine of invited error, a party may not

      take advantage of an error that she commits, invites, or which is the natural

      consequence of her own neglect or misconduct.” Hill v. State, 51 N.E.3d 446,

      451 (Ind. Ct. App. 2016) (citing Wright v. State, 828 N.E.2d 904, 907 (Ind.

      2005)). “A party may not invite error, then later argue that the error supports

      reversal, because error invited by the complaining party is not reversible error.”

      Cole v. State, 28 N.E.3d 1126, 1136 (Ind. Ct. App. 2015) (quoting Kingery v.

      State, 659 N.E.2d 490, 494 (Ind. 1995)). Accordingly, we affirm Holmes’s

      convictions.


[8]   Affirmed.


      Najam, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1137 | November 15, 2018   Page 5 of 5
