MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Apr 19 2016, 6:47 am
this Memorandum Decision shall not be
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regarded as precedent or cited before any                                    Indiana Supreme Court
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the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Brian Reitz
Indianapolis, Indiana                                    Deputy Attorney General
Michael C. Borschel                                      Indianapolis, Indiana
Fishers, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Adrian Anthony,                                          April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-709
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Lisa F. Borges, Judge
                                                         Trial Court Cause No.
                                                         49G04-1312-MR-77010



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016                 Page 1 of 10
[1]   Adrian Anthony (“Anthony”) was convicted after a jury trial of murder,1 a

      felony, robbery2 as a Class A felony, and carrying a handgun without a license 3

      as a Class A misdemeanor and was sentenced to sixty-two years. He appeals

      his convictions and raises the following restated issue for our review: whether

      the trial court abused its discretion when it admitted evidence that Anthony had

      possessed and fired the murder weapon eight days before the present crime

      because, he asserts, the evidence was inadmissible under Indiana Evidence Rule

      404(b).


[2]   We affirm.


                                       Facts and Procedural History
[3]   On November 27, 2013, Ron Gibson (“Ron”) and his brother Robbie Gibson

      (“Robbie”) were working together on a duplex they were remodeling on Gray

      Street in Indianapolis, Marion County, Indiana. The brothers had started work

      that day at around 9:00 a.m. At some point later that day, when the brothers

      were working on the porch area of the duplex, two men, later identified as

      Anthony and Christopher Bell (“Bell”), walked into the front yard of the home.

      They were both wearing black hooded sweatshirts. Ron had previously seen




      1
        See Ind. Code § 35-42-1-1(1). We note that the statutes under which Anthony was charged were amended
      effective July 1, 2014. However, he committed his offenses in November 2013, and we apply the statutes in
      effect at that time.
      2
          See Ind. Code § 35-42-5-1.
      3
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016           Page 2 of 10
      Anthony walking around the neighborhood during the prior two weeks.

      Anthony asked for a cigarette, and Ron replied that he did not have any

      cigarettes and that he was waiting on his boss. Anthony then asked “where the

      weed was at,” and Ron stated that he did not know because he did not smoke.

      Tr. at 22.


[4]   At this point, Ron assumed that the two men would leave, but instead, they

      walked onto the porch. Once on the porch, Anthony pulled out a handgun and

      told the brothers that he “didn’t want no weed and he didn’t want a cigarette,

      that it was a robbery.” Id. at 23. Anthony pointed the gun at Robbie and took

      his wallet. Anthony handed the wallet to Bell and then told Ron to empty his

      pockets. Anthony approached Ron and held the gun to the back of Ron’s neck

      when Ron told him he had nothing in his pockets. Anthony checked Ron’s

      pockets and found Ron’s cell phone. He demanded that Ron show him how to

      unlock the phone with a special pattern. At that time, Anthony stated to Ron,

      “I’m going to give you to the count of five and I’m going to shoot you,” and he

      began counting down, “Five, four, three.” Id. at 30-31.


[5]   At the same time, a truck full of ladders and pulling a trailer turned onto Gray

      Street. Anthony asked Ron if it was Ron’s boss, and he answered that it was.

      As the truck approached, Ron began yelling at it for help, causing the truck to

      slow down, and Anthony put the gun into his hooded sweatshirt. Bell ran

      across the street, and Anthony began to pace in the middle of the porch near

      Robbie. Ron also ran from the porch and across the street. As he got to the

      middle of the street, he saw Robbie’s wallet on the ground. At that time, he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 3 of 10
      heard a gunshot and heard Robbie screaming, “Ronnie, he shot me.” Id. at 32.

      Ron saw Robbie fall to the ground and saw Anthony flee from the porch in the

      same direction Bell had run.


[6]   The police arrived at the scene, and Ron gave them a description of Bell and

      Anthony. Robbie was taken to the hospital, where he later died. Once police

      obtained a description of the men, they set up a perimeter of two to three blocks

      in every direction around the scene of the crime. Shortly thereafter, an officer

      saw two men matching the suspects’ descriptions. These two men, later

      identified as Bell and Anthony, saw the police vehicle and ran to a nearby

      church. They tried to open the doors to the church, but the church was locked.

      The officer ordered Bell and Anthony to the ground, and both turned to the

      officer with their hands up. Bell complied, and the officer was able to

      apprehend him; however, Anthony fled the scene. Ron was brought to the

      location, and a show-up identification was conducted, in which Ron was

      unable to identify Bell as one of the perpetrators. Bell was released and walked

      away from the area.


[7]   At the scene of the robbery and shooting, police found a fired nine millimeter

      cartridge casing. In their investigation, the police obtained information about

      Ron’s stolen cell phone, and were able to track the phone to Terre Haute,

      Indiana, where they discovered that Bell had traveled by Greyhound bus. The

      police were able to get a potential address for Bell in Terre Haute, and on

      November 29, 2013, they arrested him at that address. The police found Ron’s

      stolen cell phone inside of the apartment where Bell had been found. While the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 4 of 10
      police were searching for Bell in Terre Haute, they were also searching for

      Anthony in Indianapolis, and on November 30, Anthony was arrested. Ron

      was able to identify both Bell and Anthony after looking at a photographic

      array.


[8]   The State charged Anthony with two counts of murder,4 Class A felony

      robbery, and Class A misdemeanor carrying a handgun without a license. Prior

      to the trial, the State filed a notice of intent to use 404(b) evidence, stating that it

      intended to introduce evidence that, in addition to the instant crime, Anthony

      had also been charged with Class A felony attempted robbery resulting from

      events that transpired on November 19, 2013. Appellant’s App. at 62. The State

      sought to present evidence that, on that date, Anthony had fired a single shot

      during an attempted robbery and that the nine millimeter cartridge casing in

      that case matched the one from the present case. Id. The State was seeking to

      “introduce this evidence as proof of identity of the murderer and access to the

      murder weapon.” Id.


[9]   At the hearing on the motion, the State informed the trial court that it did not

      “necessarily believe that access to the murder weapon is considered 404(b)” and

      that it would “tailor the evidence . . . [it presented] to be that the witnesses

      would . . . [identify Anthony] as possessing the gun on November 19” and that

      the casing from that incident matched the casing recovered in the present case.



      4
        The State charged Anthony under two different subsections of Indiana Code section 35-42-1-1 for the same
      crime.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016           Page 5 of 10
       Tr. at 564-65. Anthony objected to this evidence being introduced, but the trial

       court overruled the objection and allowed the evidence to be introduced.

       Anthony requested that a limiting instruction be given, and the trial court

       agreed to do so. At trial, the State called two witnesses to testify about the

       November 19 incident, to which Anthony objected. During final instructions,

       the trial court gave the following limiting instruction:

               Evidence has been introduced that the Defendant was involved
               in conduct other than that charged in the information. This
               evidence has been received solely on the issue of Defendant’s
               identity. This evidence should be considered by you only for that
               limited purpose.


       Appellant’s App. at 110. At the conclusion of the trial, the jury found Anthony

       guilty as charged. Due to double jeopardy concerns, the trial court entered

       judgment of conviction on only one count of murder, one count of Class A

       felony robbery, and Class A misdemeanor carrying a handgun without a

       license. Anthony was given an aggregate sentence of sixty-two years executed,

       and he now appeals.


                                      Discussion and Decision
[10]   Generally, we review the trial court’s ruling on the admission of evidence for an

       abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013)

       (citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. We

       reverse only where the decision is clearly against the logic and effect of the facts




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 6 of 10
       and circumstances. Id. Even if the trial court’s decision was an abuse of

       discretion, we will not reverse if the admission constituted harmless error. Id.


[11]   Anthony argues that the trial court abused its discretion when it allowed the

       State to introduce prior bad act evidence in violation of Indiana Evidence Rules

       403 and 404(b). He contends that the trial court erred because it did not

       specifically find that the State sufficiently proved that he shot a handgun on

       November 19, 2013. Specifically, Anthony asserts that the “quantity and

       quality of the information from the two prior bad act witnesses [was] minimal”

       and did not establish a signature crime. Appellant’s Br. at 12. He further claims

       the slight probative value of this evidence was greatly outweighed by the unfair

       prejudice and, therefore, should have been excluded.


[12]   Indiana Evidence Rule 404(b) states that “[e]vidence of other crimes, wrongs,

       or acts is not admissible to prove the character of a person in order to show

       action in conformity therewith. It may, however, be admissible for other

       purposes, such as proof of motive, intent, preparation, plan, knowledge,

       identity, or absence of mistake or accident . . . .” The rationale behind this

       evidentiary rule is that the jury is precluded from making the “forbidden

       inference” that the defendant had a criminal propensity and therefore

       committed the charged conduct. Rhodes v. State, 771 N.E.2d 1246, 1251 (Ind.

       Ct. App. 2002) (citing Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)),

       trans. denied. To determine whether Rule 404(b) evidence is admissible, “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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 7 of 10
       charged act; and (2) balance the probative value of the evidence against its

       prejudicial effect pursuant to Rule 403.” Thompson v. State, 728 N.E.2d 155,

       160 (Ind. 2000). This court has held that “[e]vidence that a defendant had

       access to a weapon of the type used in a crime is relevant to a matter at issue

       other than the defendant’s propensity to commit the charged act.” Pickens v.

       State, 764 N.E.2d 295, 299 (Ind. Ct. App. 2002), trans. denied.


[13]   Here, the State introduced evidence that, eight days before the murder and

       robbery in this case, Anthony had possession of and fired the weapon used to

       shoot Robbie. This evidence that Anthony had access to the weapon used to

       kill Robbie was relevant as to whether Anthony murdered Robbie and was not

       merely evidence of Anthony’s propensity to commit the charges crimes. Thus,

       the evidence regarding the events of November 19 was relevant to show that

       Anthony had access to the weapon used in Robbie’s murder.


[14]   Anthony argues that the probative value of the evidence was slight, and the

       danger of unfair prejudice greatly outweighed this slight probative value. We

       disagree. Possession of the murder weapon eight days prior to the murder is

       highly probative. The trial court attempted to limit any unfair prejudice by not

       allowing any inquiry into the specific details of Anthony’s attempted robbery on

       November 19. Tr. at 350-60, 571. Additionally, the trial court gave a limiting

       instruction regarding the challenged evidence in the present case that sought to

       limit the purpose of the evidence to prove the identity of Anthony. Appellant’s

       App. at 110. We, therefore, conclude that the evidence of the events of

       November 19 were relevant to prove an issue other than his propensity to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 8 of 10
       commit the present crime and the possibility of unfair prejudice was

       outweighed by the probative value of the evidence that, a mere eight days

       before the murder of Robbie, Anthony had access to the weapon used to

       commit the murder.


[15]   Anthony, however, asserts that the trial court erred in not applying the three-

       step analysis in Camm v. State, 908 N.E.2d 215 (Ind. 2009). In that case, our

       Supreme Court stated that, “the law governing the admissibility of specific acts

       evidence for ‘other purposes’ requires a trial court to make three findings”: (1)

       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; (2) that the

       proponent has sufficiently proven by a preponderance of the evidence that the

       person who allegedly committed the act did, in fact, commit the act; and (3)

       that the probative value of the evidence outweighs its prejudicial effect pursuant

       to Rule 403. Id. at 223. We conclude that the evidence was also admissible

       under this three-step analysis.


[16]   Under the first step, Indiana courts have held that evidence of access to a

       weapon of the type used in a crime is relevant to a matter at issue other than the

       defendant’s propensity to commit the charged act. Pickens, 764 N.E.2d at 299.

       Here, the evidence of the events of November 19, 2013 was introduced to

       establish that Anthony had access to the murder weapon. As to the second

       step, sufficient evidence was presented that Anthony was the person who

       committed the acts of November 19. Two eye witnesses identified Anthony as

       possessing and firing a weapon on November 19, and a firearms expert testified

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 9 of 10
       that the casing from the attempted robbery on November 19 was fired from the

       same weapon as the casing found at the scene of Robbie’s murder. Tr. at 351-

       53, 359, 368-70. Lastly, as to the third step, evidence that Anthony had

       possession of the murder weapon just eight days prior to the murder was highly

       probative, and the trial court took measures to limit the prejudice of this

       evidence by restricting the evidence allowed regarding the November 19

       incident and giving a limiting instruction. Therefore, the possibility of any

       unfair prejudice was outweighed by the high probative value of the evidence.

       We find that the trial court did not abuse its discretion in admitting the

       evidence that Anthony possessed and fired the murder weapon eight days prior

       to the murder.


[17]   Affirmed.


[18]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016   Page 10 of 10
