MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 27 2017, 10:12 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
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David John Arndt,                                        July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1611-CR-2708
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                [1]     The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge

                                                         Trial Court Cause Nos.
                                                         71D01-1301-FC-11
                                                         71D03-1504-F5-60



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017              Page 1 of 11
                                 Case Summary and Issues
[2]   Following a jury trial, David Arndt was convicted of burglary as a Level 5

      felony and the trial court revoked his probation from a previous sentence after

      finding he committed the offense of burglary. Arndt appeals his conviction and

      the revocation of his probation, raising three issues for review, which we restate

      as: (1) whether the trial court committed reversible error in allowing a witness

      to testify as to his recollection of a license plate number, (2) whether the trial

      court abused its discretion in allowing a lay witness to identify Arndt as one of

      the individuals depicted in a surveillance video, and (3) whether the trial court

      abused its discretion in revoking Arndt’s probation.1 Concluding any error in

      the admission of testimony regarding the license plate was harmless, and the

      trial court neither abused its discretion in allowing the witness to identify Arndt

      nor in revoking Arndt’s probation, we affirm.



                             Facts and Procedural History
[3]   Michiana Auto Pros (“Michiana”) is an automobile repair business providing a

      full range of services, including specialty work on off-road vehicles, in Osceola,

      Indiana. Michiana’s specialty work required it to carry non-standard inventory,

      including four 40-inch Nitto Grappler tires (“Nitto tires”). The Nitto tires were

      mounted onto rims and were stored in a garage on Michiana’s property.




      1
        Arndt’s appeal from his criminal conviction for burglary and his appeal from the revocation of his probation
      in a separate case have been consolidated on appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017             Page 2 of 11
      Michiana’s shop manager, Shaun Rajski, later testified the Nitto tires had their

      own unique design and were mounted on seventeen-inch rims, thereby giving

      the wheel “its own unique mold.” Transcript, Volume I at 56.


[4]   In the early morning hours of March 26, 2016, a surveillance camera captured

      two individuals burglarizing Michiana and stealing property, including the four

      Nitto tires. The value of the items stolen was approximately $22,000.00. Over

      the course of the next week, Brad Vincent, an employee at Discount Tire in

      South Bend, learned of the burglary at Michiana and that the special tires had

      been stolen.


[5]   On April 6, 2015, Hewey Hudson went to the Discount Tire and discussed with

      Vincent how to remove a tire from a rim and then mount the tire on a separate

      rim. Hudson then left Discount Tire. Ninety minutes later, Hudson returned to

      Discount Tire accompanied by Arndt. The pair brought with them two tires

      mounted on seventeen-inch rims and requested Vincent remove the tires and

      mount them on another set of rims. Vincent immediately recognized the tires

      and sent a picture of the tires to Rajski, who confirmed the tires were the ones

      stolen from Michiana. Vincent then performed the work requested. After

      strapping the tires to their truck, Hudson and Arndt left Discount Tire. Vincent

      then contacted law enforcement and reported the truck’s license plate number.

      An investigation ensued and revealed Arndt and his associate, Dangiz Weed,

      burglarized Michiana. At the time of the burglary, Arndt was serving a two-

      year sentence fully suspended to probation.



      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 3 of 11
[6]   On April 20, 2015, the State charged Arndt with burglary as a Level 5 felony.

      In addition, the State filed a petition to revoke Arndt’s probation, alleging he

      committed the crime of burglary while on probation. At trial, Weed admitted

      he and Arndt burglarized Michiana and stole numerous items, including the

      Nitto tires.2 Arndt’s aunt, Belinda Holcomb, also testified and was shown

      Michiana’s surveillance video from the night of the burglary. Over Arndt’s

      objection, Holcomb identified Arndt as one of the two individuals captured on

      video, explaining, “I’ve known him his whole life. That’s his walk. . . . He’s

      bow legged. Just like his dad.” Tr., Vol. II at 63-64.


[7]   Vincent testified as to his encounter with Hudson and Arndt at Discount Tire.

      The State then handed Vincent a photograph of the truck, which had not yet

      been entered into evidence. Vincent recognized it as the truck in which Hudson

      and Arndt arrived at Discount Tire because he specifically remembered the

      truck had a temporary license plate just as the photograph depicted. However,

      he stated he could not remember the license plate number he had provided to

      law enforcement. The State then provided Vincent with a police report to

      refresh his recollection. After allowing Vincent to review the police report, the

      State retrieved the report from Vincent and asked whether he now remembered

      the license plate number on the truck, and if so, what the number was. Vincent




      2
        The State charged Weed and Arndt under separate causes and opted not to join the two causes for trial.
      Weed’s testimony came as he remained in custody awaiting his trial. During Arndt’s trial, Weed also
      testified he did not receive any promises of leniency in exchange for his testimony. Weed ultimately pleaded
      guilty to charges stemming from his role in the burglary.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017             Page 4 of 11
      then stated the license plate number. However, the State had left the

      photograph of the truck on the witness stand with the license plate number

      visible. The trial court overruled Arndt’s objection. On cross-examination,

      Vincent admitted he had read the numbers off the photograph of the truck when

      testifying. At this point, the trial court acknowledged it had erred in previously

      overruling Arndt’s objection and admonished the jury: “I’m admonishing you

      to disregard anything that you may have heard regarding a license plate, and I

      am admonishing you not to take anything about that into consideration in

      arriving at a decision about the outcome of this case.” Tr., Vol. I at 118.


[8]   The jury found Arndt guilty as charged. The trial court entered judgment of

      conviction for the burglary charge and revoked Arndt’s probation in his earlier

      case after finding he violated a condition of his probation by committing the

      burglary. This appeal ensued.



                                 Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[9]   The admissibility of evidence is within the sound discretion of the trial

      court. Cherry v. State, 971 N.E.2d 726, 730 (Ind. Ct. App. 2012), trans. denied. A

      trial court may abuse its discretion in admitting evidence if its decision is clearly

      against the logic and effect of the facts and circumstances before the court, or if

      the court has misinterpreted the law. Id. We will reverse a trial court’s


      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 5 of 11
       erroneous decision to admit evidence only when the decision affects a party’s

       substantial rights. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007),

       trans. denied. Improperly admitted evidence “is harmless error when the

       conviction is supported by such substantial independent evidence of guilt as to

       satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.” Wickizer v. State, 626

       N.E.2d 795, 800 (Ind. 1993).


                                      B. License Plate Number
[10]   Arndt contends the trial court erred in allowing Vincent to testify as to the

       license plate number. Assuming the trial court did err, we must determine

       whether the error was harmless. See id.; McVey, 863 N.E.2d at 440.


[11]   At the outset, the State points out that Ardnt has presented no argument

       addressing any alleged prejudice suffered as a result of the trial court’s error.

       The State is correct and Arndt’s claim is therefore waived for failure to present a

       cogent argument. Ind. Appellate Rule 46(A)(8). Notwithstanding waiver, the

       record does not demonstrate Arndt suffered any prejudice. Upon recognizing

       its error, the trial court admonished the jury to disregard all evidence pertaining

       to the license plate, and there is no indication any additional evidence regarding

       the license plate was admitted. See Street v. State, 30 N.E.3d 41, 50 (Ind. Ct.

       App. 2015) (noting there is a presumption the jury follows a trial court’s

       admonishment and that the excluded testimony played no part in the jury’s

       deliberation), trans. denied. In addition, Arndt’s conviction is supported by


       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 6 of 11
       substantial independent evidence, including Weed’s testimony affirming he and

       Arndt were the ones who burglarized Michiana, and Vincent’s testimony

       regarding his encounter with Arndt and Hudson regarding the Nitto tires. We

       conclude any error in allowing Vincent to testify as to the license plate number

       was harmless.


                           C. Holcomb’s Identification of Arndt
[12]   Arndt contends the trial court abused its discretion in allowing Holcomb to

       identify him as one of the two individuals depicted on the surveillance video.

       Specifically, he claims Holcomb’s testimony was inadmissible under Indiana

       Evidence Rules 701 and 403. We disagree.


[13]   Rule 701 provides, “If a witness is not testifying as an expert, testimony in the

       form of an opinion is limited to one that is: (a) rationally based on the witness’s

       perception; and (b) helpful to a clear understanding of the witness’s testimony

       or to a determination of a fact in issue.” Although not entirely clear from his

       brief, Arndt seems to argue Holcomb’s testimony was inadmissible under Rule

       701 because “[Holcomb’s] son was a suspect in the case, the son’s truck was

       used in the burglary, and bad blood existed between [Holcomb] and Arndt.”

       Brief of Appellant at 11. Arndt cites to no case, however, showing such

       evidence is relevant to a Rule 701 analysis, and at most, his argument is an

       invitation for this court to reassess witness credibility and reweigh the evidence,

       which we will not do. Tongate v. State, 954 N.E.2d 494, 496 (Ind. Ct. App.

       2011), trans. denied. In any event, Holcomb testified she was Arndt’s aunt, had

       known Arndt his entire life, and knew he walked in a unique fashion.
       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 7 of 11
       Therefore, her opinion identifying Arndt was rationally related to her

       perception and was helpful to the jury in determining the identity of one of the

       persons depicted on the video. See Goodson v. State, 747 N.E.2d 1181, 1184

       (Ind. Ct. App. 2001) (concluding a trial court did not abuse its discretion under

       Rule 701 in admitting police officer testimony identifying the defendant in

       photographs and videotapes because the police officers had known the

       defendant for several years and their testimony was helpful to the jury in

       determining the identity of the person depicted in the photographs and

       videotapes), trans. denied.


[14]   Rule 403 provides, “The court may exclude relevant evidence if its probative

       value is substantially outweighed by a danger of one or more of the following:

       unfair prejudice, confusing the issues, misleading the jury, undue delay, or

       needlessly presenting cumulative evidence.” Evaluation of whether the

       probative value of an evidentiary matter is substantially outweighed by the

       danger of unfair prejudice is a task left to the trial court’s discretion. Bell v.

       State, 29 N.E.3d 137, 142 (Ind. Ct. App. 2015), trans. denied. In determining

       any unfair prejudicial impact, “courts should look for the dangers that the jury

       will substantially overestimate the value of the evidence or that the evidence

       will arouse or inflame the passions or sympathies of the jury.” Id.


[15]   Arndt argues the trial court erred in not considering certain factors and not

       conducting “the balancing test required under Evidence Rule 403.” Br. of

       Appellant at 17. However, Arndt cites to no case demonstrating what factors

       the trial court was required to consider, nor does he set forth a cogent argument

       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 8 of 11
       addressing how the jury in his case may have substantially overestimated the

       value of Holcomb’s testimony, or how Holcomb’s testimony might have

       aroused or inflamed the passions of the jury. His argument is therefore waived

       for failure to present a cogent argument. See Ind. Appellate Rule 46(A)(8). In

       any event, Holcomb’s testimony was certainly prejudicial towards Arndt

       precisely because its probative value implicated him as one of the assailants.

       However, there is nothing in the record demonstrating the jury could have

       substantially overestimated the value of Holcomb’s testimony, nor is there any

       indication such testimony aroused or inflamed the passions of the jury. The

       trial court did not abuse its discretion in allowing Holcomb to identify Arndt as

       one of the individuals who burglarized Michiana.


                                 II. Revocation of Probation
[16]   Finally, Arndt contends the trial court abused its discretion in revoking his

       probation. Specifically, he claims the State did not prove by a preponderance of

       the evidence he violated a condition of probation. We disagree.


[17]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

       2013). It is within the trial court’s discretion to revoke probation if the

       conditions of probation are violated and appeals from a revocation of probation

       are reviewed for an abuse of discretion. Id. Probation revocation is a two-step

       process: first, the trial court must make a factual determination that a violation

       of a condition of probation occurred, and second, the trial court must determine


       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 9 of 11
       the appropriate sanction if a violation is found. Id. The State must prove the

       defendant violated a condition of probation by a preponderance of the evidence.

       Id. at 617.


[18]   Arndt challenges only the first step, arguing Weed’s testimony “was hardly

       compelling” and “often conflicting[,]” and Holcomb’s testimony was “similarly

       tainted.” Brief of Appellant at 18-19. Therefore, he claims the State did not

       present evidence proving he committed a criminal offense in violation of his

       probation. We interpret Arndt’s argument as an invitation for this this court to

       reassess witness credibility and reweigh the evidence, which we will not do.

       Thornton v. State, 792 N.E.2d 94, 96 (Ind. Ct. App. 2003). At trial, the State

       presented evidence through the testimony of Weed showing Weed and Arndt

       were the two individuals who burglarized Michiana. In addition, Vincent

       testified as to his encounter with Hudson and Arndt when the pair were in

       possession of the Nitto tires, and Holcomb identified Arndt as one of the two

       burglars depicted in Michiana’s surveillance video. And after the jury found

       Arndt guilty of burglary beyond a reasonable doubt, the trial court entered

       judgment of conviction accordingly. This evidence is sufficient to prove by a

       preponderance evidence that Arndt violated a condition of his probation by

       committing a new offense. The trial court did not abuse its discretion in

       revoking Arndt’s probation.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 10 of 11
[19]   We conclude any error in the admission of Vincent’s testimony regarding the

       license plate was harmless in light of the trial court’s admonishment to the jury

       and the substantial independent evidence of Arndt’s guilt. In addition, the trial

       court did not abuse its discretion in allowing Holcomb to identify Arndt as one

       of the individuals depicted on Michiana’s surveillance camera, nor did the trial

       court abuse its discretion in revoking Arndt’s probation. Accordingly, we

       affirm Arndt’s conviction and the revocation of his probation.


[20]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2708 | July 27, 2017   Page 11 of 11
