MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Sep 17 2019, 9:14 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
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David A. Vincent,                                        September 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-422
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Susan L. Orth,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         22D01-1809-F5-1814



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019                 Page 1 of 14
                                               Case Summary

[1]   David A. Vincent appeals his conviction for possession of methamphetamine, a

      Level 5 felony. We affirm.


                                                      Issue

[2]   Vincent raises one issue on appeal, which we restate as whether the trial court

      erred in admitting evidence of Vincent’s prior bad acts during his jury trial.


                                                      Facts

[3]   On September 7, 2018, Officer Ryan Peake with the New Albany Police

      Department responded to a call at 10:38 p.m., indicating that a male was

      “passed out” in the driver’s seat of a vehicle at a restaurant and, when the male

      woke, he drove, striking a pole and a parked vehicle in the parking lot. Tr. Vol.

      I p. 70. When Officer Peake arrived at the restaurant, he met Vincent standing

      outside a vehicle. Vincent reported to Officer Peake that Vincent had fallen

      asleep while in the drive-thru of the restaurant. There were no other passengers

      in the vehicle.


[4]   When Officer Peake ran the license plate of Vincent’s vehicle, Officer Peake

      noticed the license plate was reported stolen. Officer Peake then arrested

      Vincent and read him his Miranda rights. Vincent agreed to speak with Officer

      Peake and informed Officer Peake that the vehicle belonged to Vincent’s




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 2 of 14
      brother, but that Vincent drove the vehicle a few times a week. 1 Vincent told

      Officer Peake he did not know anything about the stolen license plate.

      Subsequently, Officer Peake called a tow truck to impound the vehicle and

      conducted an inventory search of the vehicle. While doing so, Officer Peake

      discovered, under the driver’s seat, a clear plastic bag of crystal-like substance.

      Vincent denied knowing anything about the bag; however, Officer Peake

      testified that the bag was within arm’s reach of the driver’s seat. Lab results

      confirmed that the substance was 6.59 grams of methamphetamine.


[5]   Officer Peake took Vincent to the Floyd County Jail; however, the jail

      personnel requested that Vincent be medically cleared first because he was

      involved in a motor vehicle accident. Officer Peake and Vincent went to the

      hospital and waited in the emergency room for approximately five and one-half

      hours before hospital staff could evaluate and clear Vincent. While waiting at

      the hospital, Vincent told police that Vincent used methamphetamine three

      days prior to the incident. Vincent was medically cleared, and Officer Peake

      returned Vincent to the Floyd County Jail.


[6]   On September 10, 2018, the State charged Vincent with Count I, possession of

      methamphetamine, a Level 5 felony; and Count II, theft, a Class A

      misdemeanor. Before trial began, Vincent filed a motion to suppress the

      statements Vincent made to police regarding his prior methamphetamine use.




      1
        Officer Peake was able to determine that the vehicle was registered to Justin Barger, whom Vincent
      indicated was his brother, and the vehicle was not reported stolen.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019               Page 3 of 14
      The trial court denied Vincent’s motion to suppress concluding that Vincent’s

      statements demonstrated “something other than his propensity to commit the

      crime at hand,” and specifically that the evidence could be used to demonstrate

      “lack of accident, for intent, for knowledge.” Id. at 23. The trial court also

      concluded that the probative value outweighed the prejudicial effect.


[7]   The trial court told Vincent that the trial court would consider an objection if

      Vincent raised it during trial, to which Vincent’s counsel informed the trial

      court that counsel “anticipate[d] objecting” to the evidence during trial. Id. at

      24. During Vincent’s jury trial, Officer Peake testified as to Vincent’s

      statements, however, Vincent did not object to the testimony. Vincent did not

      call any witnesses in his defense. The jury found Vincent guilty of Count I and

      not guilty of Count II. Vincent now appeals.


                                                   Analysis

[8]   Vincent argues that the trial court improperly admitted evidence regarding

      Vincent’s prior conduct during his jury trial. Vincent initially filed a motion to

      suppress the statements regarding his prior methamphetamine use, and the

      motion to suppress was denied. During the jury trial, however, Vincent did not

      object to the testimony regarding Vincent’s prior methamphetamine use.

      Accordingly, Vincent has waived this issue for appeal. See Stafford v. State, 890

      N.E.2d 744, 749 (Ind. Ct. App. 2008) (quoting Wright v. State, 593 N.E.2d 1192,

      1194 (Ind. 1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201-

      1206-1207 (Ind. 2007)) (holding that once a trial court denies a motion to

      suppress, “the moving party must renew his objection to admission of the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 4 of 14
       evidence at trial. If the moving party does not object to the evidence at trial,

       then any error is waived.”). Waiver notwithstanding, we will review the

       alleged error under the fundamental error analysis. 2


[9]    “An error is fundamental. . . if it ‘made a fair trial impossible or constituted a

       clearly blatant violation of basic and elementary principles of due process

       presenting an undeniable and substantial potential for harm.’” Durden v. State,

       99 N.E.3d 645, 652 (Ind. 2018) (quoting Knapp v. State, 9 N.E.3d 1274, 1281

       (Ind. 2014)). “These errors create an exception to the general rule that a party’s

       failure to object at trial results in a waiver of the issue on appeal.” Durden, 99

       N.E.3d at 645 (citing Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). The

       exception is very narrow and “encompasses only errors so blatant that the trial

       judge should have acted independently to correct the situation.” Id. Vincent

       argues the trial court committed fundamental error in allowing the testimony

       regarding Vincent’s prior statements for four reasons. We will address each of

       Vincent’s arguments below.


                                                A. Evidence Rule 401

[10]   Vincent first argues the evidence of Vincent’s prior methamphetamine use was

       not relevant under Indiana Evidence Rule 401 because it did not make more or

       less probable the crime of possession. Indiana Evidence Rule 401 states that



       2
        We do not address Vincent’s arguments in his brief regarding harmless error because Vincent failed to
       object, and therefore, we review under the standard of fundamental error. See Sampson v. State, 38 N.E.3d
       985, 992 (Ind. 2015) (“failure to object at trial waives the issue for review unless fundamental error
       occurred”) (quotations omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019               Page 5 of 14
       evidence is relevant if it either: (a) “has any tendency to make a fact more or

       less probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” “Evidence is relevant when it has any

       tendency to prove or disprove a consequential fact.” Snow v. State, 77 N.E.3d

       173, 177 (Ind. 2017) (quotations omitted). “This liberal standard for relevancy

       sets a low bar, . . . and the trial court enjoys wide discretion in deciding whether

       that bar is cleared.” Id.


[11]   To convict Vincent of possession of methamphetamine, pursuant to Indiana

       Code Section 35-48-4-6.1(a), the State had to prove that Vincent: “knowingly or

       intentionally possesse[d] methamphetamine (pure or adulterated),” “without a

       valid prescription or order of a practitioner.” Vincent’s offense was a Level 5

       felony because the amount of the drug involved was “at least five (5) but less

       than ten (10) grams.” Ind. Code § 35-48-4-6.1(b)(1).


[12]   The State argues that Vincent’s prior statements were relevant to show

       Vincent’s knowledge regarding the methamphetamine in the vehicle, as

       knowledge is an element of the possession offense. Vincent put his knowledge

       at issue in many ways. First, Officer Peake’s police report indicates that

       Vincent’s initial reaction to the discovery of the methamphetamine was that

       Vincent “did not know it was there” and that “it was not [Vincent’s].”

       Appellant’s App. Vol. II p. 11. Moreover, Vincent’s counsel’s line of

       questioning on cross-examination and his arguments in closing arguments

       demonstrated that Vincent was putting his knowledge of the methamphetamine

       in issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 6 of 14
[13]   Accordingly, the trial court was within its discretion to conclude that Vincent’s

       prior statement regarding his methamphetamine use demonstrated his

       knowledge regarding the same substance in the vehicle. Admission of the

       evidence under Rule 401 was not fundamental error.


                                              B. Evidence Rule 403

[14]   Next, Vincent argued that the prejudicial effect of the evidence regarding

       Vincent’s prior methamphetamine use far outweighed the probative value

       because it was not relevant to any material fact or issue “other than to establish

       that Vincent was acting in conformity with a character trait and consistent with

       prior criminal offenses when he committed the charged offenses.” Appellant’s

       Br. p. 20. Under Indiana Evidence Rule 403, the 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.”


[15]   When weighing the probative value and the prejudicial effect, “‘unfair prejudice

       addresses the way in which the jury is expected to respond to the evidence; it

       looks to the capacity of the evidence to persuade by illegitimate means, or the

       tendency of the evidence ‘to suggest decision on an improper basis.’” Bowman

       v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017) (quoting Ingram v. State, 715

       N.E.2d 405, 407 (Ind. 1999)), trans. denied. “However, we recognize all relevant

       evidence is necessarily prejudicial in a criminal prosecution.” Bowman, 73

       N.E.3d at 734 (citations omitted). “Therefore, the danger of unfair prejudicial
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 7 of 14
       impact arises from the potential for a jury to substantially overestimate the

       value of the evidence, or its potential to arouse or inflame the passions or

       sympathies of the jury.” Id. at 734-35. “Evaluation of whether the probative

       value of an evidentiary matter is substantially outweighed by the danger of

       unfair prejudice is a discretionary task best performed by the trial court.” Bryant

       v. State, 984 N.E.2d 240, 249 (Ind. Ct. App. 2013) (citing Baer v. State, 866

       N.E.2d 752, 763 (Ind. 2007)), trans. denied.


[16]   The trial court engaged in a relatively lengthy statement demonstrating that it

       weighed the probative value against the danger of unfair prejudice. The trial

       court specifically noted that: “Mr. Vincent’s position is that he didn’t know it

       was there,” and accordingly, “then that does make the statement relevant, it

       does have probative value. . . .” Tr. Vol. I p. 23. The trial court went on to

       state that the evidence showed “something other than his propensity to commit

       the crime at hand.” Id. The trial court concluded that “I think the probative

       value outweighs, and I am going to allow it to be admitted. I’m gonna [sic] ask

       the State, uh, not to use it in opening, as you’ve already agreed not to do.” Id.

       at 23-24. 3




       3
        In fact, the trial court seemingly left the door open for Vincent to not contest the knowledge issue at trial,
       and renew an objection to the evidence, implying that the objection may be sustained depending on the
       evidence presented to the jury. The trial court stated: “because I think the Defense has to put [Vincent’s
       knowledge in issue] first. And so while I’m ruling on it today, I guess I can certainly take up your objection
       at [sic] time -- . . . and consider that again.” Tr. Vol. I p. 24.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019                   Page 8 of 14
[17]   Vincent put his knowledge of the methamphetamine into issue; therefore, we

       cannot say the trial court abused its discretion in determining that the probative

       value outweighed any prejudicial effect. We find that the trial court did not

       commit fundamental error in admitting the evidence after the balancing test in

       Rule 403.


                                              C. Evidence Rule 404

[18]   Vincent next argues that the evidence was improperly admitted under Indiana

       Evidence Rule 404(a), which provides, in relevant part:


               (a) Character Evidence.


                        (1) Prohibited Uses. Evidence of a person’s character or
                        character trait is not admissible to prove that on a
                        particular occasion the person acted in accordance with
                        the character or trait.


                                                         *****


[19]   Vincent also argues the evidence was improperly admitted under Indiana

       Evidence Rule 404(b), which provides:


               (b) Crimes, Wrongs, or Other Acts.


                        (1) Prohibited Uses. 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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 9 of 14
                            (2) Permitted Uses; Notice in a Criminal Case. This evidence
                            may be admissible for another purpose, such as proving
                            motive, opportunity, intent, preparation, plan, knowledge,
                            identity, absence of mistake, or lack of accident. On
                            request by a defendant in a criminal case, the prosecutor
                            must:


                                     (A) provide reasonable notice of the general nature
                                     of any such evidence that the prosecutor intends to
                                     offer at trial; and


                                     (B) do so before trial--or during trial if the court, for
                                     good cause, excuses lack of pretrial notice.[ 4]


[20]              In determining whether to admit evidence of specific acts under
                  Rule 404(b), the trial court is required to: (1) determine whether
                  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; (2) determine that the proponent has sufficient
                  proof that the person who allegedly committed the act did, in
                  fact, commit the act; and (3) balance the probative value of the
                  evidence against its prejudicial effect pursuant to Indiana
                  Evidence Rule 403. In short, if the evidence bears on some issue
                  other than criminal propensity and clears the balancing hurdle of
                  Rule 403, it is admissible.


       Guffey v. State, 42 N.E.3d 152, 159-60 (Ind. Ct. App. 2015), trans. denied

       (quotations omitted). See also Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009)

       (“The law governing the admissibility of specific acts evidence for other




       4
           There does not appear to be a pretrial notice issue here.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019     Page 10 of 14
       purposes requires a trial court to make three findings.”) (internal citations

       omitted).


[21]   In Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans. denied, a panel

       of this Court reversed the trial court’s admission of certain business cards and

       photographs under Rule 404, 5 specifically noting that the State “tried to use the

       business cards and the novelty photograph to paint Oldham as a dangerous

       criminal.” Id. at 1173. Specifically, our Court noted:


               Pursuant to Evidence Rule 404(a), evidence of a defendant’s
               character or character trait is not admissible to prove that the
               defendant acted in conformity with that character. In addition,
               Evidence Rule 404(b) specifically bars the admission of evidence
               of crimes, wrongs or other bad acts allegedly committed by the
               defendant to prove the defendant’s character, and forbids the use
               of this kind of evidence to show that the defendant acted in a
               manner consistent with that character. Oldham argues that the
               business cards and the novelty card gave rise to the impermissible
               inference that he was a person with a dangerous and criminal
               character, that he had committed crimes and bad acts in the past,
               and that the murder [ ] was entirely consistent with his character
               and prior bad acts.


[22]   Here, Vincent argues that the evidence was impermissible under Rule 404(a)

       because “the State was clearly establishing that Vincent had a negative

       character trait, i.e. that he was a drug addict acting in conformity with this trait




       5
        In Oldham, our Court found the business cards were inadmissible pursuant to both Evidence Rule 404(a)
       and Evidence Rule 404(b).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019           Page 11 of 14
       when he committed the charged offense.” Appellant’s Br. p. 13. The State

       responds that Rule 404(a) does not apply because there was no evidence of

       Vincent’s criminal history or prior drug use, other than a single statement from

       Officer Peake. Accordingly, the State argues a Rule 404(a) argument is

       inapplicable here. We agree with the State’s characterization of the purpose of

       the evidence; it does not appear the evidence was introduced to demonstrate

       Vincent was a drug addict and acting in conformity with that trait. We,

       therefore, move to the Rule 404(b) analysis.


[23]   Vincent also argues the evidence was impermissible under Rule 404(b) because

       introduction of evidence of Vincent’s prior use of methamphetamine likely

       created the inference “that the defendant was a habitual drug user and that he

       acted in conformance with this character trait when he committed the charged

       offense.” Appellant’s Br. p. 18. The State responds that Vincent’s statements

       regarding prior use “would be used solely to show [Vincent’s] knowledge of the

       bag of methamphetamine positioned directly underneath his seat.” Appellee’s

       Br. p. 10. The State argues that, because Vincent allegedly was unaware of the

       bag, the evidence was permissible to demonstrate Vincent’s knowledge of the

       bag as an element of the offense.


[24]   In Samaniego-Hernandez v. State, 839 N.E.2d 798, 803 (Ind. Ct. App. 2005),

       abrogated on other grounds by Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007),




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 12 of 14
       clarified on reh’g, 875 N.E.2d 218 (Ind. 2007), 6 we dealt with a similar situation

       in which the defendant argued that the trial court improperly admitted evidence

       of a controlled buy the defendant was involved with days before his possession

       of cocaine arrest. Our Court determined that admission of evidence regarding

       the controlled buy was proper because the defendant put his knowledge at issue.

       Specifically, Samaniego “fostered the impression that he knew nothing about

       the cocaine found in his home and therefore could not have possessed the

       requisite elements of knowledge and intent to deliver it.” Id. Our Court,

       therefore, concluded that the “evidence was admissible to challenge the

       impression that Samaniego could not have had knowledge of the cocaine found

       in his home.” Id. The same result is required here.


[25]   As discussed above, Vincent repeatedly referred to the fact that the vehicle

       belonged to Vincent’s brother throughout the trial. Vincent also referred to the

       same fact in closing argument. Vincent’s statements to police similarly put his

       knowledge at issue in the case. As the trial court noted in its ruling on

       admissibility of the evidence after weighing the evidence, there was a purpose

       outside of criminal propensity that made the admission of the evidence

       permissible. 7




       6
        The Anglemyer court abrogated Samaniego-Hernandez on the issue of sentencing; the Anglemyer court did not
       address a Rule 404(b) argument.
       7
           As we have already discussed above, the evidence met the requirements for admission under Rule 403.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019              Page 13 of 14
[26]   Moreover, aside from Vincent’s prior statements, there was sufficient evidence

       of his guilt. Specifically, the State presented evidence that Vincent was driving

       a vehicle—which he drove somewhat regularly—that belonged to his brother.

       The State also presented evidence that a bag of methamphetamine was found

       propped upright under the driver’s seat, inches away from Vincent’s reach,

       while he was driving and in control of the vehicle. This evidence could

       reasonably lead the jury to conclude that Vincent possessed methamphetamine

       beyond a reasonable doubt. We cannot say that a fair trial would have been

       impossible as is required by the fundamental error standard. Vincent has not

       proved that the admission of this evidence constituted fundamental error.


                                                  Conclusion

[27]   The trial court did not commit fundamental error in admitting Vincent’s prior

       statements. We, accordingly, affirm.


[28]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-422 | September 17, 2019   Page 14 of 14
