MEMORANDUM DECISION
                                                                  Mar 14 2016, 6:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michelle F. Kraus                                        Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

James J. Wyatt,                                          March 14, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1507-CR-839
        v.                                               Appeal from the Allen Superior
                                                         Court.
                                                         The Honorable Wendy Davis,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 02D06-1501-F6-2




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016      Page 1 of 9
                                            Statement of the Case
                                                                                                    1
[1]   James J. Wyatt appeals his convictions for residential entry, a Level 6 felony,
                                                                                2
      and battery with moderate bodily injury, a Level 6 felony. We affirm.


                                                     Issue
[2]   The sole issue Wyatt raises for our review is whether the trial court erred in

      admitting evidence of his prior misconduct.


                                   Facts and Procedural History
[3]   Wyatt and his then girlfriend, Keisha Coleman, lived together at Coleman’s

      residence. The living arrangement ended on December 6, 2014, when officers

      from the Fort Wayne Police Department were called to Coleman’s residence.

      After speaking to Coleman, the officers told Wyatt that he was not to return to

      the residence without permission from Coleman. One of the officers provided

      Wyatt courtesy transportation from the residence.


[4]   On the night of December 7, 2014, Coleman’s son, who was residing at

      Coleman’s residence, called police officers to the residence because he heard

      someone attempting to enter the home. Coleman was not at home at the time

      of the incident. When officers arrived, they discovered a torn screen on the

      back patio sliding glass door and that the sliding glass door was unsecured.




      1
          Ind. Code § 35-43-2-1.5 (2014).
      2
          Ind. Code § 35-42-2-1(d)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 2 of 9
      Upon entering the residence, the officers found Wyatt laying on the couch.

      Coleman’s son told police officers that Wyatt was not supposed to be in the

      home. One of the officers telephoned Coleman. After speaking with Coleman,

      the officers told Wyatt to leave the residence and not return without first

      contacting the police. On the following day, Coleman had the locks to her

      home changed.


[5]   On the evening of December 22, 2014, Coleman left her home to walk to her

      job at a nearby hospital where she worked as a nurse. She made sure that all of

      the doors to her residence were locked before she left. As she arrived at the

      employee entrance to the hospital at approximately 11:00 p.m., Wyatt and his

      brother drove up to where Coleman was standing. Coleman told Wyatt and his

      brother that she had to clock-in for work and she proceeded inside the hospital.


[6]   Coleman’s shift at the hospital ended at 7:45 a.m. on December 23, 2014. At

      the end of her shift, Coleman walked home. When she entered her home, she

      found Wyatt sitting in a chair and Wyatt’s brother laying on the couch.

      Coleman also noticed that the back patio sliding glass door was completely off

      of its track. Coleman attempted to call 911, but before the call could be

      completed, Wyatt walked toward Coleman, knocked her to the ground, and

      punched her in the face several times. Wyatt’s brother eventually rose from the

      couch, tapped Wyatt on the shoulder, and said, “Come on, man.” The two

      then fled the residence. Coleman located her phone and called 911.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 3 of 9
[7]    A paramedic from an ambulance service and two police officers from the Fort

       Wayne Police Department arrived at Coleman’s home. The paramedic

       observed Coleman bleeding from the mouth. One of the officers observed that

       Coleman was bleeding and had dried blood around her nose and mouth. The

       officer also noticed that the back patio sliding glass door appeared to be off of

       its track. Coleman was transported to the emergency room where she received

       thirteen stitches for deep cuts to her lip.


[8]    The State charged Wyatt with residential entry and battery with moderate

       bodily injury, both Level 6 felonies. Prior to the start of the trial, the trial court

       heard arguments from counsel regarding whether testimony on the events that

       took place on December 6 and 7, 2014, would be admissible during the trial.

       The trial court ruled that testimony could be introduced on the events of

       December 6 and 7, to show motive, intent, and lack of mistake. During the

       trial, and over defense objection, the State presented three witnesses (two police

       officers and Coleman’s son) who testified as to the events that took place on

       December 6 and 7.


[9]    At the conclusion of the trial, the jury found Wyatt guilty as charged. The trial

       court merged the two convictions and sentenced Wyatt to a total sentence of

       two years and 183 days executed. Wyatt now appeals.


                                    Discussion and Decision
[10]   Wyatt argues that the trial court erred in admitting testimony concerning the

       events that occurred on December 6 and 7, 2014. Wyatt contends that the

       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 4 of 9
       testimony fell under Indiana Evidence Rule 404(b); that the testimony was

       irrelevant; that the testimony was highly prejudicial; and that the prejudicial

       effect of the testimony outweighed its probative value.


[11]   A trial court has broad discretion in ruling on the admissibility of evidence.

       Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw

       v. State, 759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will

       reverse a trial court’s ruling on the admissibility of evidence only when the trial

       court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse

       of discretion involves a decision that is clearly against the logic and effect of the

       facts and circumstances before the court. Id. (citing Huffines v. State, 739

       N.E.2d 1093, 1095 (Ind. Ct. App. 2000), trans. denied).


[12]   Indiana Evidence Rule 404(b) provides:

               Evidence of a crime, wrong, or other act is not admissible to
               prove a person’s character in order to show that on a particular
               occasion the person acted in accordance with the character.
       Evid. R. 404(b)(1). This rule is designed to prevent the jury from assessing a

       defendant’s present guilt on the basis of his past propensities — the “forbidden

       inference.” Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans.

       denied. However, such evidence may be admitted to prove “motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.” Evid. R. 404(b)(2). This list of permissible purposes is

       illustrative but not exhaustive. Freed v. State, 954 N.E.2d 526, 530 (Ind. Ct.

       App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 5 of 9
[13]   The State argues that the December 6, 2014 incident did not constitute a prior

       bad act under Rule 404(b). Evidence which creates a mere inference of prior

       bad conduct does not fall within the purview of Rule 404(b). Dixson v. State,

       865 N.E.2d 704, 712 (Ind. Ct. App. 2007), trans. denied. The police officer who

       testified regarding the December 6 incident indicated that after arriving at

       Coleman’s residence and speaking to both Coleman and Wyatt, he told Wyatt

       not to return to the residence without permission from Coleman. No evidence

       was presented that Wyatt behaved in any criminal manner. This testimony, at

       most, “creates a mere inference of prior bad conduct,” Dixson, 865 N.E.2d at

       712, and, consequently, does not fall within the purview of Rule 404(b).


[14]   The incident that occurred on December 7, 2014, does constitute a prior bad

       act. In assessing the admissibility of 404(b) evidence, the court must: (1)

       determine that the evidence of other crimes, wrongs, or acts is relevant to a

       matter at issue other than the defendant’s propensity to commit the charged act;

       and (2) balance the probative value of the evidence against its prejudicial effect

       pursuant to Indiana Evidence Rule 403. Scalissi v. State, 759 N.E.2d 618, 623

       (Ind. 2001). Rule 403 provides that a trial 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.” The trial court is

       afforded wide latitude in weighing probative value against possible prejudice

       under Rule 403. Willingham v. State, 794 N.E.2d 1110, 1116 (Ind. Ct. App.

       2003). We will reverse the court’s evaluation and decision to admit or exclude


       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 6 of 9
       evidence only upon a showing of an abuse of discretion. Scalissi, 759 N.E.2d at

       622.


[15]   In Wickizer v. State, the Indiana Supreme Court held that “[t]he intent exception

       in Evid. R. 404(b) will be available when a defendant goes beyond merely

       denying the charged culpability and affirmatively presents a claim of particular

       contrary intent.” 626 N.E.2d 795, 799 (Ind. 1993). Prior to the trial, defense

       counsel indicated that he intended to introduce evidence that Wyatt had

       Coleman’s consent to be in her home. In his opening statement, defense

       counsel stated the evidence would show that Coleman gave her consent to

       allow Wyatt to be in her home and/or provided Wyatt with a key to the

       residence. Wyatt’s brother testified that Coleman gave him a key to her

       residence and that the back patio sliding glass door looked as if it had been

       pried open at the time he and Wyatt entered Coleman’s residence on December

       23, 2014. Wyatt testified that Coleman provided him with a key to her home

       when he and his brother met her at the hospital.


[16]   Here, Wyatt went beyond merely denying the charge of residential entry and

       presented evidence that Coleman provided him with a key to her home and

       permission to enter her home. Testimony concerning the December 7 incident

       was therefore admissible as an exception to Rule 404(b) because it was relevant

       to show Wyatt’s motive and intent to commit the crime of residential entry.

       See, e.g., Price v. State, 619 N.E.2d 582 (Ind. 1993) (evidence of prior attacks of

       defendant upon his wife was admissible to show relationship of parties and



       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 7 of 9
       defendant’s motive and intent in commission of crime). No error occurred

       here.


[17]   Wyatt further argues that the testimony regarding the December 7 incident

       should be excluded under Evidence Rule 403 because it resulted in unfair

       prejudice to him and because the trial court failed to complete the second part

       of the Rule 404(b) test, which is to determine whether the evidence’s danger of

       unfair prejudice so substantially outweighed its probative value as to require

       exclusion under Rule 403. We disagree.


[18]   The December 7, 2014 incident, which involved Wyatt being told by police not

       to return to Coleman’s home, occurred within approximately two weeks of the

       present charges. See Dixon v. State, 712 N.E.2d 1086, 1089-90 (Ind. Ct. App.

       1999) (evidence of prior drug transaction that occurred no more than four

       months before charged conduct occurred was admissible). The trial court heard

       arguments from counsel as to the admissibility of the testimony from the

       December 7, 2014 incident and determined that the evidence was admissible for

       limited purposes. Prior to the testimony of the first witness regarding the

       December 7 incident, the trial court instructed the jury that the testimony to

       follow was not to show Wyatt’s conformity with the past actions but would be

       elicited to show Wyatt’s intent on the night of the offense, lack of mistake,

       motive, and knowledge. For these reasons, we cannot conclude that the trial

       court failed to consider the second part of the Rule 404(b) test, and we cannot

       say that the trial court abused its discretion under Rule 403 in admitting the

       misconduct evidence at issue.

       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 8 of 9
                                                Conclusion
[19]   For the reasons stated above, we affirm the trial court.


[20]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1507-CR-839 | March 14, 2016   Page 9 of 9
