MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Jul 03 2017, 8:41 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Adam Wakefield,                                          July 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A04-1609-CR-2063
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Plaintiff                                       Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1505-F5-48



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017       Page 1 of 10
[1]   Adam Wakefield appeals his convictions for Level 5 felony corrupt business

      influence, Level 5 felony conspiracy to commit theft, and Level 6 felony theft.

      He claims that certain evidence was improperly admitted at his jury trial.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On May 9, 2015, an employee of the Walmart store in Logansport reported to

      asset protection associate Brady Herrington that she found an empty cellphone

      package that had been cut open and discarded in the sporting goods

      department. Herrington then reviewed store surveillance footage from earlier

      that day. In this footage, he followed the actions of a suspicious group of three

      men and one woman. Two of the individuals in the group were Wakefield and

      Kenny Purvis. Herrington observed a member of the group quickly grab a

      cellphone and then exit the aisle. He also saw the group in the video game aisle

      where Purvis was pointing out games while Wakefield and the other man

      grabbed them and placed them under clothing in a cart. The woman appeared

      to act as a lookout.


[4]   The group eventually separated with part of the group entering the sporting

      goods department, where the empty cellphone package was later found. At no

      point did any members of the group go through the checkout lane or pay for

      any merchandise. Purvis and Wakefield walked out of the store with a cart

      containing video games inside five or six Walmart shopping bags. Herrington

      testified that the store alarm was not working at the time.

      Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017   Page 2 of 10
[5]   Based on what he observed on the surveillance video, Herrington believed he

      had discovered an organized retail theft ring. He relayed the information to the

      Logansport Police Department, as well as to area stores and other Walmart

      employees.


[6]   On May 15, 2015, Herrington was advised that several security boxes used for

      high-end video games had been found empty in the light bulb aisle. In total,

      there were nine empty security boxes. Herrington reviewed security footage

      from earlier in the day, and once again observed Purvis and Wakefield in the

      store with two others. The group selected multiple copies of the same recently-

      released video game. Purvis then split off from the group and a took the cart

      into the light bulb aisle, where there was no surveillance camera. The group left

      the store but later returned and went back to the cart in the light bulb aisle.

      After a period of time, the group took an unusual route through the store and

      left without making a purchase. They drove away in a red pickup truck.


[7]   Wakefield and Purvis returned to the Walmart store with Charlene Renier on

      May 19, 2015. Amy Powers, another asset protection associate like Herrington,

      saw a live camera shot of them in the video game aisle. Powers contacted the

      local police for assistance with apprehending the individuals, and she continued

      to surveil them. The group eventually split and Powers followed Wakefield,

      who had the cart. Wakefield pushed the cart to the front of the store, where he

      was stopped by Powers and a police officer. The cart contained nearly $450

      worth of merchandise, including nine video games. Purvis and Renier were

      stopped by an officer in a different area of the store. All three were taken to the

      Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017   Page 3 of 10
       store’s asset protection office. Wakefield had four used Walmart bags tucked in

       his pocket.


[8]    The red pickup truck the trio had driven to Walmart was searched by police in

       the parking lot, with Purvis’s consent. A Walmart bag containing eight new

       Witcher 3 – Wild Hunt video games was found in the back seat of the truck.

       That game had just been released for sale that day, and Purvis admitted to

       police that they had been stolen.


[9]    During an interview at the jail, Wakefield acknowledged that he intended to

       steal video games inside Walmart that day. He also admitted that Purvis had

       driven him to the Logansport Walmart two other times in the previous two

       weeks, and he (Wakefield) had stolen approximately twenty video games by

       placing them in used Walmart bags and walking out of the store. Wakefield

       downplayed Purvis’s involvement in the thefts.


[10]   A subsequent investigation revealed that for several months Purvis had been

       offering for sale unopened video games at very low prices on a Facebook group

       titled Wabash County Sell Anything. Many of the new games pictured had

       visible Walmart stickers on them. Several screen shots were admitted into

       evidence of Purvis’s for-sale posts in this group from December 15, 2014 to

       May 9, 2015. Detective Eric Smith testified that Purvis even took orders for

       games and arranged for transactions to take place at the Logansport Walmart.


[11]   Wakefield’s jury trial commenced on August 8, 2016, at the conclusion of

       which he was found guilty as charged of Level 5 felony corrupt business

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017   Page 4 of 10
       influence, Level 5 felony conspiracy to commit theft, and Level 6 felony theft.

       Following the jury’s verdict, Wakefield admitted that he was a habitual

       offender. He was subsequently sentenced to an aggregate term of twelve years

       in prison. Wakefield now appeals, challenging the admission of certain items of

       evidence as either an abuse of discretion or fundamental error. Additional

       information will be provided below as needed.


                                           Discussion & Decision


                                             Standard of Review


[12]   Our standard of review for rulings on the admissibility of evidence is well-

       settled. Admission or exclusion of evidence rests within the trial court’s sound

       discretion and its decision is reviewed for an abuse of that discretion. Sciaraffa v.

       State, 28 N.E.3d 351, 356 (Ind. Ct. App. 2015), trans. denied. The trial court’s

       decision must be clearly erroneous and against the logic and effect of the facts

       and circumstances before it constitutes an abuse of discretion. Id.


[13]   Wakefield acknowledges that he failed to object to the admission of some of the

       evidence at issue, thereby failing to preserve his claim for appellate review. See

       id. To avoid waiver, he invokes the fundamental error exception which permits

       appellate review of otherwise procedurally defaulted claims under narrow

       circumstances. Id. “The ‘fundamental error’ exception is extremely narrow,

       and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017   Page 5 of 10
       578, 587 (Ind. 2006). This exception is available only in egregious

       circumstances. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


                                                    Mug Shots


[14]   Wakefield challenges the admission into evidence of mug shot photographs of

       himself and Purvis following their arrests related to the instant case. To avoid

       waiver, he asserts that the use of this evidence constituted fundamental error

       because it was irrelevant and unfairly prejudicial.


[15]   Wakefield essentially ignores the fundamental error standard and simply

       presents an argument based on Indiana Evidence Rule 403. We agree that

       under the circumstances of this case the mug shots had little probative value,

       but they also had minimal prejudicial effect. Their admission certainly did not

       constitute fundamental error.


[16]   As our Supreme Court has recognized, the typical objection to mug shots is to

       photographs taken in conjunction with a prior arrest. Wheeler v. State, 749

       N.E.2d 1111, 1114 (Ind. 2001). The objection is usually based on the danger

       that jurors may infer a criminal history. Id. The photographs of Wakefield,

       here, were taken at the time of his arrest on the current charges and were clearly

       marked with the arrest date, May 19, 2015. Although the booking photographs

       of Purvis were dated November 4, 2015, the record makes clear that his arrest




       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017   Page 6 of 10
       related to the instant case was delayed until that date.1 Purvis’s and

       Wakefield’s arrests in this case were no surprise to the jury and had little

       prejudicial effect. See Wheeler, 749 N.E.2d at 1114 (noting that a jury would

       naturally presume that the defendant was arrested on the underlying charge).


                                                 Facebook Evidence


[17]   Next, Wakefield argues that the jury was “likely influenced by the admission of

       irrelevant, confusing, and prejudicial materials about Purvis’s purported

       activities on Facebook.” Appellant’s Brief at 17. Wakefield preserved an

       objection based on relevance below.2 On appeal, he argues that the evidence

       was irrelevant because it was “completely unrelated to Wakefield and did not

       relate to any fact at issue.” Id. at 18.


[18]   “Relevant evidence” is defined as evidence that has “any tendency to make a

       fact more or less probable than it would be without the evidence” and “the fact

       is of consequence in determining the action.” Ind. Evidence Rule 401.

       Evidence that is relevant is generally admissible. Ind. Evidence Rule 402.


[19]   Here, in order to obtain a conviction for corrupt business influence as charged,

       the State was required to establish that Wakefield was associated with an



       1
         Officer Shonn Parmeter testified that Wakefield was “incarcerated from Walmart” but that Purvis was
       released because he agreed to assist “in further investigation on identifying the other suspects.” Transcript at
       104.
       2
         Wakefield did not assert an argument based on Ind. Evidence Rule 403 at trial regarding this evidence,
       except to argue that a couple of the screen shots were redundant. The jury was made aware of the slight
       redundancy in Exhibit 6, and we do not find that this caused the exhibit to be inadmissible.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017                 Page 7 of 10
       enterprise and knowingly participated in the activities of that enterprise through

       a pattern of racketeering activity. See Ind. Code § 35-45-6-2(3); Appendix Vol. II

       at 95. “Enterprise” is defined to include a group of people associated in fact.

       I.C. 35-45-6-1(c)(2). A “pattern of racketeering activity” is defined as “engaging

       in at least two (2) incidents of racketeering activity[3] that have the same or

       similar intent, result, accomplice, victim, or method of commission, or that are

       otherwise interrelated by distinguishing characteristics that are not isolated

       incidents.” I.C. § 35-45-6-1(d). Because “the statute does not apply to sporadic

       or disconnected criminal acts”, the State must “demonstrate that the criminal

       incidents were in fact a ‘pattern’ and not merely ‘isolated’ incidents. And

       evidence of the degree of continuity…is certainly helpful in establishing the

       necessary ‘pattern.’” Jackson v. State, 50 N.E.3d 767, 775-76 (Ind. 2016). See

       also Robinson v. State, 56 N.E.3d 652, 658-60 (Ind. Ct. App. 2016), trans. denied.


[20]   The evidence presented at trial indicated that Purvis was the enterprise leader

       and that Wakefield participated in the enterprise’s criminal activity on at least

       three separate occasions. Purvis’s Facebook activity involving the sale of new,

       unopened video games in the months leading up to and including May 9, 2015,

       was relevant to establishing that the thefts were not isolated incidents and were

       part of a pattern of racketeering activity and an ongoing criminal enterprise.




       3
        Racketeering activity includes committing, attempting to commit, conspiring to commit, or aiding and
       abetting in the commission of theft. I.C. § 35-45-6-1(e)(14).

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017           Page 8 of 10
       Accordingly, the trial court did not abuse its discretion by admitting this

       evidence.


                                                       Hearsay


[21]   Finally, in a brief argument, Wakefield challenges Officer Parmeter’s testimony

       that Purvis told him the eight video games in the truck were stolen.4 He claims

       that this constituted inadmissible hearsay but acknowledges that he did not

       object below. Thus, Wakefield asserts that admission of this evidence

       amounted to fundamental error.


[22]   Even assuming that this statement was inadmissible hearsay, we cannot find

       fundamental error in its admission. Wakefield himself admitted to stealing

       twenty video games from the Logansport Walmart in the two weeks prior to his

       arrest. Moreover, he acknowledged that he intended to steal the nine video

       games secreted in his cart at the time he was stopped in the store on May 19,

       2015. During a subsequent search, officers found eight new video games in a

       Walmart bag inside the truck. These games – all the same title – had just been

       released for sale that day. Under the circumstances, the jury could reasonably

       infer that these games too were stolen. In light of the overwhelming evidence of




       4
         This testimony resulted from a jury question regarding the video games found in the truck on May 19, 2015.
       The court inquired on behalf of the juror: “Do you have any idea when they were stolen or placed in the
       truck.” Transcript at 106. When Officer Parmeter responded “I was advised by Kenny Purvis when they
       were stolen”, the court stopped Parmeter and indicated that he could not testify to that. Id.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017            Page 9 of 10
       guilt, the admission of Purvis’s statement that these games were indeed stolen

       was at most harmless error and certainly not fundamental.5


[23]   Judgment affirmed.


[24]   Kirsch, J. and Mathias, J., concur.




       5
        Wakefield has also failed to establish that the cumulative effect of the mugshot and hearsay evidence
       amounted to fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 09A04-1609-CR-2063 | July 3, 2017             Page 10 of 10
