MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Jun 11 2020, 8:48 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                                   ATTORNEY FOR APPELLEE
Donald E.C. Leicht                                       J.T. Whitehead
Peru, Indiana                                            Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gurth Bryan,                                             June 11, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2954
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable Hans Pate, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         34D04-1711-F1-213



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020                 Page 1 of 12
[1]   Gurth Bryan appeals his convictions for attempted voluntary manslaughter as a

      level 2 felony and aggravated battery as a level 3 felony. He asserts the trial

      court abused its discretion in admitting certain evidence. We affirm.


                                         Facts and Procedural History

[2]   In 2014 or 2015, Bryan and Celia Jackson began dating, and they had a child in

      2015 and separated that same year. 1 Bryan and Jackson had a “rocky”

      relationship, and Jackson obtained four no contact orders against Bryan in 2016

      because she was scared and did not want to be bothered. Transcript Volume II

      at 185. The last no contact order was issued on September 26, 2016, and was

      still in place in November 2017.


[3]   At some point, Jackson and David Langston began a relationship and lived in

      an apartment at Amberwood Place in Kokomo beginning in February or March

      2017. Langston met Bryan about four or five times when Bryan was picking up

      his child. Langston did not argue with or have any ill will towards Bryan prior

      to November 23, 2017.


[4]   On November 23, 2017, Langston was planning to travel to Chicago with

      Jackson who was five months pregnant. That morning, Jackson called Bryan

      twice because he was supposed to pick up their daughter for Thanksgiving.




      1
       The parties’ briefs refer to Jackson’s first name as Celia. The transcript includes spellings of her first name
      as Celia and Celie.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020                         Page 2 of 12
      Bryan did not answer, and Jackson dropped their daughter off at the house of

      Jackson’s grandmother and texted Bryan.


[5]   Bryan called Jackson’s phone, Langston answered, and Bryan said he “was

      looking for his baby.” Id. at 137. Langston told him he would have to call later

      and hung up the phone. While Langston and Jackson were outside, Bryan sped

      through the “wrong side” and immediately exited his vehicle. Id. at 169. Bryan

      asked where his daughter was, and Jackson asked Bryan: “[W]hy are you

      pulling up, your daughter’s not here, there’s no reason for you to come over

      here.” Id. at 194. Langston and Bryan started “having words,” and Langston

      told Jackson to “get in the car.” Id. at 142.


[6]   At some point, Jackson was sitting in the driver’s seat with the door closed, and

      Langston walked in front of the door so that he was between Jackson and

      Bryan. Bryan went around Langston and tried to open the door and take

      Jackson out of the car. Langston told Bryan to stop and “kind of wrestl[ed]”

      with Bryan to prevent him from pulling Jackson out of the car. Id. Bryan

      pulled a gun from the front of his pants, and Langston ran to the other side of

      the car and entered it. Langston told Jackson to pull out, and Bryan opened the

      door, pushed Jackson out of the way, and shot at Langston five or six times

      behind Jackson’s head. The window of Jackson’s car was “blown out,” and

      Langston suffered a gunshot wound to his shoulder and two to his back. Id. at

      145. After he was shot, Langston exited the car, screamed, and collapsed on

      the ground.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 3 of 12
[7]   Jackson transported Langston to a hospital in Kokomo, and he was

      subsequently airlifted to a hospital in Indianapolis. Jackson called her mother,

      Bryan’s mother, and Langston’s mother. After the incident, Bryan called

      Jackson and told her he was going to “hurt anybody that got into his way” and

      he “was going to kill [Langston’s] family and that he was not going to turn

      himself in.” Id. at 201-202.


[8]   On November 28, 2017, the State charged Bryan with attempted murder as a

      level 1 felony and aggravated battery as a level 3 felony. On June 10, 2019, the

      State filed a Notice of Intent to Use 404(b) Evidence indicating it intended to

      present evidence that:


              (1) Bryan was charged with domestic battery against Jackson
              under cause number 34D01-1606-F6-573 (“Cause No. 573”), a
              no contact order was issued on or about June 22, 2016 to protect
              Jackson, he violated the order on July 1, 2016, and was convicted
              of domestic battery on September 5, 2017.
              (2) He was charged with strangulation and domestic battery
              against Jackson under cause number 34D01-1607-F6-629
              (“Cause No. 629”), a no contact order was issued on or about
              July 1, 2016, against him to protect Jackson, he violated the
              order on or about July 14, 2016, and he was convicted of
              domestic battery on September 1, 2017.
              (3) He was charged with domestic battery, criminal recklessness,
              and criminal mischief under cause number 34D01-1607-F6-690
              (“Cause No. 690”) on July 14, 2016, the victim was Jackson, a
              no contact order was issued on or about July 15, 2016, and again
              on or about September 1, 2017, against him to protect Jackson,
              he violated the no contact order that was originally issued on
              July 15, 2016 on or about September 24, 2016, he violated the no
              contact order that was originally issued on September 1, 2017 on


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 4 of 12
              or about November 23, 2017, he was convicted of criminal
              mischief on September 1, 2017.
              (4) He was charged with burglary with a deadly weapon,
              domestic battery by means of a deadly weapon, and criminal
              recklessness with a deadly weapon under cause number 34D02-
              1609-F2-274 (“Cause No. 274”), the victim was Jackson, a no
              contact order was issued on or about October 3, 2016 against him
              to protect Jackson, and he was convicted of domestic battery
              with a deadly weapon on July 11, 2017.

      The State alleged the evidence was relevant and admissible to show motive,

      intent, identity, common scheme and plan, and/or absence of mistake or

      accident. On August 23, 2019, Bryan filed an Objection to 404(b) Evidence

      asserting the evidence was only offered for proof of his propensity to commit a

      crime and the probative value was vastly outweighed by the prejudicial effect.

      After a hearing, the trial court overruled Bryan’s objection.


[9]   During his opening statement, Bryan’s counsel stated: “I mean the motive in

      this case, as I understand it is, according to [Jackson], [Bryan] was upset that

      she had been abused by this David Langston.” Transcript Volume II at 55. At

      the jury trial, Langston and Jackson testified that Bryan shot Langston. Bryan’s

      counsel questioned Langston regarding a firearm found by paramedics and

      questioned Jackson regarding a firearm found on Langston or in her vehicle.

      When asked if he was one hundred percent sure that Bryan was the person who

      shot him, Langston answered affirmatively. During cross-examination,

      Langston answered affirmatively when asked if it would be “fair to say that [he]

      pretty much continually represented to the police officers” that he did not know

      “who did this.” Id. at 165. Langston answered affirmatively when asked: “So

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 5 of 12
       would you agree with me it wouldn’t have taken much of a marksman to put a

       couple of shots in your head if he intended to kill you.” Id. at 168.


[10]   Without objection, Jackson testified that she had a “rocky” relationship with

       Bryan and had “problems” with him. Id. at 185. When asked if there came a

       time in June 2016 that she had to ask for a no contact order, Bryan’s counsel

       objected on the basis of Evidence Rule 404, and the court overruled the

       objection. Jackson indicated she requested a no contact order in June 2016,

       Bryan violated the order, she called the police, another no contact order was

       issued on July 1, 2016, Bryan continued to show up in her presence, she

       obtained another no contact order on July 13, 2016, another incident occurred,

       and she obtained a no contact order on September 25, 2016. When asked if

       something happened in each of those situations, Jackson answered: “He would

       have, he would have come at me with violence. He’d have a gun on him every

       time he would come, threaten me with things that (inaudible).” Id. at 191. The

       court admitted the no contact orders in Cause Nos. 573, 629, 690, and 274. At

       the end of cross-examination, Bryan’s counsel moved to strike any testimony

       and evidence “in regards to the 404 issue because at this point in time there is

       just absolutely no evidence that this is necessary to prove murder to hurt this

       witness.” Id. at 216. The court stated: “The ruling wasn’t based on murder to

       her, this witness, so it’s overruled at this time.” Id.


[11]   On redirect examination and without objection, Jackson indicated Bryan’s

       behavior was “crazy” when she was dating another man. Id. Jackson indicated

       there were violent incidents with a gun which were among the reasons for the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 6 of 12
       no contact orders. Bryan’s counsel objected and asserted: “We have no date,

       no time, no relationship to any of this.” Id. at 217. The court overruled the

       objection. Jackson testified that Bryan was a jealous person, his behavior was

       predictable, and he would “just randomly show up” while she was with other

       men. Id. She indicated she reported these incidents and charges were filed.


[12]   Kokomo Police Detective Jon Webster testified that it took Langston

       approximately three months to identify Bryan. After the State rested, Bryan’s

       counsel moved for judgment on the evidence on the charge of attempted

       murder as a level 1 felony, and the court denied the motion.


[13]   The jury found Bryan guilty of attempted voluntary manslaughter as a level 2

       felony as a lesser included offense of attempted murder, and aggravated battery

       as a level 3 felony. The court sentenced Bryan to concurrent sentences of thirty

       years for attempted voluntary manslaughter as a level 2 felony and sixteen years

       for aggravated battery as a level 3 felony.


                                                   Discussion

[14]   The issue is whether the trial court abused its discretion by admitting certain

       evidence. The trial court has broad discretion to rule on the admissibility of

       evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling

       on the admission of evidence is generally accorded a great deal of deference on

       appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We do not

       reweigh the evidence; rather, we consider only evidence that is either favorable

       to the ruling or unrefuted and favorable to the defendant. Beasley v. State, 46


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 7 of 12
       N.E.3d 1232, 1235 (Ind. 2016). We will not reverse an error in the admission

       of evidence if the error was harmless. Turner v. State, 953 N.E.2d 1039, 1058

       (Ind. 2011). In determining the effect of the evidentiary ruling on a defendant’s

       substantial rights, we look to the probable effect on the fact finder. Id. at 1059.

       An improper admission is harmless if the conviction is supported by substantial

       independent evidence of guilt satisfying the reviewing court that there is no

       substantial likelihood the challenged evidence contributed to the conviction. Id.


[15]   Bryan argues that the existence of no contact orders against him with respect to

       Jackson presents no motive nexus regarding charges that he did something to

       Langston and cites Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004), trans.

       denied. The State argues that the trial court was correct to admit evidence of

       motive and that, even if the ruling was erroneous, any error was harmless. It

       asserts the conflicted nature of Bryan’s relationship motivated his arrival and

       the fact that he was armed and shooting at his former partner’s boyfriend was

       perfectly consistent with the motivation that it set out to prove. It also asserts

       the evidence helped to prove the relationship between the parties.


[16]   Ind. Evidence Rule 404(b) provides that 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. Rule

       404(b)(2) provides that “[t]his evidence may be admissible for another purpose,

       such as proving motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake, or lack of accident.”



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 8 of 12
[17]   The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

       court must 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) the court must balance the probative value of the evidence

       against its prejudicial effect pursuant to Rule 403. 2 Boone v. State, 728 N.E.2d

       135, 137-138 (Ind. 2000), reh’g denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind.

       1997). The evidence is inadmissible when the State offers it only to produce the

       “forbidden inference” that the defendant has engaged in other, uncharged

       misconduct and the charged conduct was in conformity with the uncharged

       misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial court

       has wide latitude, however, in weighing the probative value of the evidence

       against the possible prejudice of its admission. Id. If evidence has some

       purpose besides behavior in conformity with a character trait and the balancing

       test is favorable, the trial court can elect to admit the evidence. Boone, 728

       N.E.2d at 138. For instance, evidence which is necessary for the jury to

       understand the relationships between the victim, various witnesses, and the

       defendant may be admissible. See Wilson v. State, 765 N.E.2d 1265, 1270-1271

       (Ind. 2002).


[18]   In Camm v. State, the court addressed whether the trial court committed

       reversible error during the trial for the murder of Camm’s wife and children by



       2
        Ind. Evidence 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.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020                      Page 9 of 12
allowing the State to present extensive evidence of extramarital sexual activity

by Camm. 812 N.E.2d at 1129. The court held that, “to be admissible,

evidence of a defendant’s extramarital affairs should be accompanied by

evidence that such activities had precipitated violence or threats between the

defendant and victim in the past, or that the defendant was involved in an

extramarital relationship at the time of the completed or contemplated

homicide” and that “[t]he admissibility of such evidence may be further

constrained by concerns of chronological remoteness, insufficient proof of the

extrinsic act, or the general concern that the unfair prejudicial effect of certain

evidence might substantially outweigh its probative value in a particular case.”

Id. at 1133. The court observed that “there was no evidence of a violent or

hostile relationship between Camm and his wife, nor any evidence that he ever

threatened her with harm,” that “[t]here [was] no evidence that Camm ever

battered [his wife] or issued any threats, either to her directly or to others,” and

that “[t]here was no evidence that Camm was involved in an extramarital

relationship at the time of [his wife’s] murder.” Id. at 1133-1134. The court

concluded the trial court abused its discretion in allowing the State to introduce

evidence of Camm’s adulterous conduct because the tie between such evidence

and motive, or anything other than simply portraying Camm as “bad,” was too

strained and remote to be reasonable. Id. at 1134. It also concluded that, even

if this evidence had minimal probative value as proof of motive, its prejudicial

effect substantially outweighed such value under Evidence Rule 403,

particularly given the extent to which the State emphasized this evidence. Id.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 10 of 12
[19]   Unlike in Camm, the evidence admitted in the present case involved Bryan’s

       hostility toward Jackson when she was with other men. Jackson testified she

       had a “rocky” relationship with Bryan and had “problems” with him.

       Transcript Volume II at 185. She testified Bryan continued to show up in her

       presence despite no contact orders, there were violent incidents with a gun, and

       the most recent no contact order was entered in September 2016 and was in

       place during the shooting. She stated Jackson “would have come at [her] with

       violence,” would “have a gun on him every time he would come,” and would

       threaten her. Id. at 191. She also testified Bryan was jealous, his behavior was

       “crazy” when she was dating another man, and he would “just randomly show

       up” while she was with other men. Id. at 216-217. Accordingly, we find Camm

       distinguishable.


[20]   The challenged evidence was admissible to show motive. See Hatcher v. State,

       735 N.E.2d 1155, 1159 (Ind. 2000) (holding that an emergency protective order

       was relevant to motive and the history of the victim’s relationship with the

       defendant). It was necessary for the trier of fact to understand the relationship

       between Bryan and the victims. See Wilson, 765 N.E.2d at 1270-1271. When

       asked if he was one hundred percent sure that Bryan was the person who shot

       him, Langston answered affirmatively. Jackson answered affirmatively when

       asked if she was one hundred percent positive Bryan shot Langston. We cannot

       say that the evidence violated Evidence Rule 404(b) or that its probative value

       was substantially outweighed by the danger of unfair prejudice. Even assuming

       the evidence was inadmissible, in light of the overall strength of the State’s case,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 11 of 12
       the context of the challenged evidence, and the jury’s finding of guilt of the

       lesser included offense of attempted voluntary manslaughter as a level 2 felony

       as opposed to attempted murder, we conclude that the probable impact on the

       jury was minimal and that reversal is not required.


[21]   For the foregoing reasons, we affirm Bryan’s convictions.


[22]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2954| June 11, 2020   Page 12 of 12
