MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Dec 09 2016, 8:41 am

regarded as precedent or cited before any                            CLERK
                                                                 Indiana Supreme Court
court except for the purpose of establishing                        Court of Appeals
                                                                      and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissmann                                        Gregory F. Zoeller
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Kidwell,                                           December 9, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        15A04-1511-CR-1972
        v.                                              Appeal from the Dearborn
                                                        Superior Court
State of Indiana,                                       The Honorable Sally A.
Appellee-Plaintiff.                                     McLaughlin, Judge
                                                        Trial Court Cause No.
                                                        15D02-1212-FB-76



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 1 of 24
[1]   John Kidwell appeals his convictions for burglary and conspiracy to commit

      burglary as class B felonies. Kidwell raises two issues which we revise and

      restate as:


            I.    Whether the court committed fundamental error in permitting the
                  State to amend the charging information to include an habitual
                  offender allegation; and

           II.    Whether the court erred by denying Kidwell’s motion for a mistrial.

      We affirm.

                                      Facts and Procedural History

[2]   On December 3, 2012, around noon, James Fishburn was taking a nap in the

      walk-out basement of his Lawrenceburg home. A loud banging sound from his

      back door woke him up, and he walked to his garage to investigate. When he

      opened the garage door, he saw a gold-colored pickup truck parked nearby.

      The truck immediately began honking and backing away from the house. As

      the truck started to drive off, Fishburn saw a man run out from behind his

      house and jump in the truck, and the truck left the scene. As Fishburn dialed

      911, he saw another man run from his house into the woods. Fishburn relayed

      the description of the men and the truck to the police.


[3]   The police saw the gold-colored pickup truck, but it initially evaded capture.

      When the police found it, it had left the road, crashed into a tree, and been

      abandoned.


[4]   Meanwhile, the police maintained a lookout near the woods behind Fishburn’s

      house. After an hour, a man emerged from the woods, covered in briars and

      Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 2 of 24
      sweat and matching the description given by Fishburn. When asked, the man

      identified himself as Eric Taulbee and said he was looking for a place to hunt.

      He told the police that he was trying to meet up with some friends in a gold-

      colored pickup truck near US 50, and the officer noted that Taulbee was

      walking in the opposite direction. The officer took Taulbee back to the

      Fishburn residence. While en route, the officer received a photograph of the

      registered owner of the pickup truck, Shawn Kidwell, which he showed to

      Taulbee. The officer told Taulbee that Shawn had been arrested. They arrived

      at the Fishburn house, where Fishburn confirmed that he had seen Taulbee.

      The officer also found boot prints outside the residence matching Taulbee’s

      boots. Taulbee confirmed that he had been near the residence, but maintained

      that he was looking for a place to hunt, confirmed that Shawn had been with

      him, and named the third man as “Chris Stevens.” Transcript at 508. Taulbee

      was then arrested.


[5]   The police searched Taulbee’s phone and social media accounts but could not

      find anyone named Chris Stevens. About a week after his arrest, Taulbee told

      the police that he had committed the burglary with Shawn and Shawn’s

      brother, John Kidwell. He admitted that he had made up the name Chris

      Stevens.


[6]   In December 2012, the State charged Kidwell, Shawn, and Taulbee with Count

      I, burglary as a class B felony; and Count II, conspiracy to commit burglary as a

      class B felony. In 2013, Shawn and Taulbee each pled guilty to the burglary



      Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 3 of 24
      charge and agreed to provide testimony against Kidwell, who remained at large

      until November 2014.


[7]   Kidwell was brought to trial on June 15 and 16, 2015, but the jury deadlocked

      and was unable to reach a verdict and the court declared a mistrial. The

      following month, before Kidwell’s second trial, the State moved to amend the

      charging information to include an allegation that Kidwell was an habitual

      offender based on two prior felony burglary convictions in Ohio. Kidwell did

      not object. The trial court granted the motion, and his second trial took place

      on August 18 and 21, 2015.


[8]   At trial, Shawn testified that he, Taulbee, and Chris Stevens, who was

      Taulbee’s “buddy or whatever,” came to Indiana from Ohio for the purpose of

      knocking on people’s doors and then leaving. Id. at 325. When confronted

      with his testimony from his 2013 guilty plea—in which he admitted that he,

      Taulbee, and his brother committed the burglary—he claimed that Chris

      Stevens was his “patch brother.” Id. at 337. Shawn testified that this referred to

      a gang affiliation and that he had since left the gang.


[9]   Taulbee testified that he and the two Kidwell brothers came to Indiana to

      burglarize houses in order to fund their heroin addiction. He admitted that he

      initially hid the Kidwells’ role in the crime until it became clear that the police

      had evidence of their involvement, at which point he decided to tell the truth.

      On cross-examination Taulbee, Kidwell’s counsel focused on the

      inconsistencies in Taulbee’s story and attempted to portray him as someone


      Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 4 of 24
       who would say anything to shorten his incarceration. Specifically, defense

       counsel asked, “So now you change your story again, eight days later after

       being locked up and without your heroin, you change it because of no evidence

       presented to you, correct?” Id. at 425. Taulbee responded: “No, I changed it

       because my mom’s house was broken into.” Id. Defense counsel objected.

       During the parties’ discussion outside the presence of the jury, the trial court

       noted that in prior depositions, Taulbee had testified that he decided to give

       information on the Kidwell brothers because he believed that they had

       burglarized his mother’s house. The trial court ruled that, because defense

       counsel should have known, due to prior hearings and depositions on the

       matter, that his question would elicit Taulbee’s response, it would overrule the

       objection. Kidwell’s request for a mistrial was also denied.


[10]   The parties then discussed that the State would ask Taulbee on redirect why the

       break-in of his mom’s house changed his mind and that Taulbee would respond

       that he was concerned that Shawn and Kidwell were involved. Kidwell’s

       counsel objected to this line of questioning on hearsay grounds, was granted a

       continuing objection, and requested a mistrial due to “the presentation of

       evidence that there’s implications that he already previously had committed a

       burglary at . . . his aunt’s house.” Id. at 455. The parties and the court also

       discussed a limiting instruction. The court overruled his objection and denied

       his motion for mistrial. The jury was subsequently brought back into the

       courtroom, the State asked Taulbee its question and Taulbee responded as

       discussed, and the court gave its limiting instruction as follows:


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 5 of 24
               The question asked and answered is not evidence of the truth of
               the matter as stated in the answer and is not to be considered as
               such and is not to be considered as any evidence that the
               defendant acted in conformity with the statement provided by the
               witness but is merely for purpose of the witness’ motivation.


       Id. at 463.


[11]   After this testimony, and the introduction of evidence that Kidwell’s fingerprint

       was found on a bottle inside his brother’s car, the jury found Kidwell guilty as

       charged. It also found that he was an habitual offender. The trial court

       sentenced him to twenty years for each conviction, to be served concurrently,

       with an additional twenty years for his habitual offender status.


                                                   Discussion

                                                         I.


[12]   The first issue is whether the court committed fundamental error in permitting

       the State to amend the charging information to include a habitual offender

       allegation because the amendment amounted to vindictiveness by the

       prosecutor. Kidwell argues that when the State amended its charging

       information to include a habitual offender allegation, the surrounding

       circumstances strongly indicate a vindictive motive. Generally, we review a

       trial court’s decision to allow amendment of a charging information in the face

       of a claim of prosecutorial vindictiveness for an abuse of discretion. Johnson v.

       State, 959 N.E.2d 334, 342 (Ind. Ct. App. 2011), trans. denied. Kidwell concedes

       that he did not object to the State’s motion to add a habitual offender allegation

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 6 of 24
       and that accordingly he must show fundamental error. Fundamental error is an

       extremely narrow exception that allows a defendant to avoid waiver of an issue.

       Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes “a fair

       trial impossible or constitute[s] clearly blatant violations of basic and

       elementary principles of due process . . . present[ing] an undeniable and

       substantial potential for harm.” Id. “This exception is available only in

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

       (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been

       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.”

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied.


[13]   The Due Process clauses of Article 1, section 12, of the Indiana Constitution

       and the Fourteenth Amendment to the United States Constitution prohibit

       prosecutorial vindictiveness. 1 Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098

       (1974); Warner v. State, 773 N.E.2d 239 (Ind. 2002). A defendant has a due

       process right “to be free of apprehension that he will be subjected to an

       increased punishment if he exercises his right to attack his conviction . . . .”




       1
         Although Kidwell mentions the Indiana Constitution, he does not provide a separate analysis for that
       provision, nor does he argue that it provides protection different from the federal constitution. Therefore,
       any separate analysis under the Indiana Constitution is waived. See Valentin v. State, 688 N.E.2d 412, 413
       (Ind. 1997).

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016            Page 7 of 24
       Cherry v. State, 275 Ind. 14, 20, 414 N.E.2d 301, 305 (1981). Prosecutorial

       vindictiveness can occur if “more numerous or more severe charges” are filed

       against an accused “after the accused has successfully exercised his statutory or

       constitutional rights to an appeal,” unless the prosecution meets the “heavy

       burden of proving that any increase in the number or severity of the charges was

       not motivated by a vindictive purpose.” Id. As with a successful appeal, the

       same applies to a successful motion for a mistrial: “unless there is new evidence

       or information discovered to warrant additional charges, the potential for

       prosecutorial vindictiveness is too great for courts to allow the State to bring

       additional charges against a defendant who successfully moves for a mistrial.”

       Warner, 773 N.E.2d at 243. On the other hand, the United States Supreme

       Court has noted that “[a] prosecutor should remain free before trial to exercise

       the broad discretion entrusted to him to determine the extent of the societal

       interest in prosecution. An initial decision should not freeze future conduct.”

       United States v. Goodwin, 457 U.S. 368, 382, 102 S. Ct. 2485, 2493 (1982).


[14]   We find our decision in Sisson v. State, 985 N.E.2d 1 (Ind. Ct. App. 2012), trans.

       denied, instructive. In that case, the State refiled a firearm charge and a habitual

       offender allegation, which had been dismissed prior to the defendant’s first trial,

       after that trial ended in a deadlocked jury and a mistrial. Id. at 7-8. We

       distinguished this scenario from the cases in which we found prosecutorial

       vindictiveness: “the State did not file more numerous or severe charges

       following a successful appeal; rather, the State refiled previously dismissed

       counts after Sisson’s first trial ended in a mistrial due to jury deadlock.” Id. at


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 8 of 24
       11. After noting that Warner applied this rationale to a successful motion for

       mistrial, we pointed out that “Sisson did not move for a mistrial in an effort to

       preserve his right to a fair trial as the result of some error. Rather, the trial court

       sua sponte declared a mistrial, without objection from Sisson or the State, after

       the jury indicated that it was unable to reach a verdict.” Id. What we said of

       Sisson applies equally to Kidwell: “Sisson has not directed our attention to any

       Indiana cases addressing the application of the presumption of vindictiveness

       where additional charges are filed after the declaration of a mistrial due to jury

       deadlock.” Id.


[15]   In this case, there is nothing in the record to suggest that Kidwell was being

       subjected to a greater sentence as punishment for the exercise of any of his

       constitutional rights. The doctrine of prosecutorial vindictiveness exists “[i]n

       order to avoid chilling the exercise of the right to an appeal” or the right to seek

       a mistrial. Owens v. State, 822 N.E.2d 1075, 1077 (Ind. Ct. App. 2005); Warner,

       773 N.E.2d at 242. Without the doctrine, defendants would be discouraged

       from challenging misdeeds of the State, which in turn might encourage the

       State to commit misdeeds. The doctrine and its rationale have little application

       to a case in which a mistrial resulted not from any improper conduct of the

       State but rather a deadlocked jury.


[16]   Kidwell also argues that the State added the habitual offender charge after the

       first trial in order to pressure him into a plea agreement. He contends that he is

       effectively being punished for seeking his right to a fair trial. We disagree.

       Courts have consistently refused to apply the presumption of vindictiveness to

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 9 of 24
       the “give-and-take” of plea negotiation, an “outcome . . . mandated by [the]

       acceptance of plea negotiation as a legitimate process.” Goodwin, 457 U.S. at

       378 (finding no prosecutorial vindictiveness where prosecutor filed a felony

       charge after defendant refused to plead guilty to several misdemeanor charges

       and requested a trial by jury). Even if we accept as true Kidwell’s allegation

       that the habitual offender charge was intended to pressure him into accepting a

       plea agreement, the prosecutor’s conduct would not be unconstitutional: “by

       tolerating and encouraging the negotiation of pleas, this Court has necessarily

       accepted as constitutionally legitimate the simple reality that the prosecutor’s

       interest at the bargaining table is to persuade the defendant to forgo his right to

       plead not guilty.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668

       (1978).


[17]   We find that there is nothing in the record to raise the presumption of

       prosecutorial vindictiveness in the habitual offender allegation and that the

       court’s decision to permit the State to amend the charging information and add

       the habitual offender charge did not amount to fundamental error.


                                                        II.


[18]   The next issue is whether the court erred by denying Kidwell’s motion for a

       mistrial. “The granting of a mistrial lies within the sound discretion of the trial

       court, and we reverse only when an abuse of discretion is clearly shown.” Davis

       v. State, 770 N.E.2d 319, 325 (Ind. 2002), reh’g denied. “The remedy of mistrial

       is ‘extreme,’ Warren v. State, 757 N.E.2d 995, 998-999 (Ind. 2001), strong


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 10 of 24
       medicine that should be prescribed only when ‘no other action can be expected

       to remedy the situation’ at the trial level, Gambill v. State, 436 N.E.2d 301, 304

       (Ind. 1982).” Lucio v. State, 907 N.E.2d 1008, 1010-1011 (Ind. 2009). We

       afford the trial court such deference on appeal because the trial court is in the

       best position to evaluate the relevant circumstances of an event and its impact

       on the jury. Alvies v. State, 795 N.E.2d 493, 506 (Ind. Ct. App. 2003), trans.

       denied. To prevail on appeal from the denial of a motion for a mistrial, the

       appellant must demonstrate the statement or conduct in question was so

       prejudicial and inflammatory that he was placed in a position of grave peril to

       which he should not have been subjected. Id. We determine the gravity of the

       peril based upon the probable persuasive effect of the misconduct on the jury’s

       decision rather than upon the degree of impropriety of the conduct. Id.


[19]   At trial, the following exchange occurred during the re-cross-examination of

       Taulbee:


               [Defense Counsel]: Okay and so just recently here in your
               testimony you said well I just changed my story because then
               they provided evidence, right?


               Mr. Taulbee: Yes.


               [Defense Counsel]: So now you change your story again, eight
               (8) days later after being locked up and without your heroin, you
               change it because of no evidence presented to you, correct?


               Mr. Taulbee: No I changed it because my mom’s house was
               broken into.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 11 of 24
       Transcript at 425. Kidwell’s counsel objected and, outside the jury’s presence,

       argued that Taulbee’s answer was non-responsive to his question. The State

       asserted that Kidwell’s counsel, based on previous proceedings including the

       first trial, knew that this question would prompt Taulbee’s response, and the

       court took judicial notice “that it was presented at the first trial and [Defense

       Counsel] did know that if it got into [Taulbee’s] motive for why he changed his

       story is because his mother’s own residence was broken into and it did not

       come out in evidence at the first trial.” Id. at 427. The court ruled that

       Taulbee’s statement was responsive to the question asked by Kidwell’s counsel

       and allowed the answer, also noting that Kidwell’s counsel opened the door to

       questioning on the subject, and denied the request for a mistrial.


[20]   The parties discussed that the State would ask him in response to the above

       exchange “why did the burglary of your mom’s home change your mind about

       protecting John Kidwell,” and that Taulbee would respond that his mother told

       him that Shawn and Kidwell perpetrated the burglary. Id. at 443. Kidwell’s

       counsel objected to this line of questioning on hearsay grounds, was granted a

       continuing objection, and requested a mistrial due to “the presentation of

       evidence that there’s implications that he already previously had committed a

       burglary at . . . his aunt’s house.” Id. at 455. The parties and the court also

       discussed a limiting instruction. The court overruled his objection and denied

       his motion for mistrial.


[21]   After this discussion, the jury was brought back into the courtroom and the

       following exchange occurred:

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 12 of 24
               [Prosecutor]: In your previous testimony today, you’ve indicated
               to the jury that you didn’t bring up John Kidwell because you
               were trying to protect your cousin. Is that correct?


               Mr. Taulbee: Yes, that’s correct.


               [Prosecutor]: I would just like you to tell us why did the break-in
               of your mom’s home change your mind about protecting John
               Kidwell?


               Mr. Taulbee: Because I was concerned that my two (2) co-
               defendants, John and Shawn Kidwell were involved.


       Id. at 462. Then, the court issued the limiting instruction stating:


               The question asked and answered is not evidence of the truth of
               the matter as stated in the answer and is not to be considered as
               such and is not to be considered as any evidence that [Kidwell]
               acted in conformity with the statement provided by the witness
               but is merely for purpose of the witness’ motivation.


       Id. at 463.


[22]   Kidwell acknowledges that, although the objection at trial regarded potential

       hearsay testimony provided by Taulbee that was extremely prejudicial, “[t]he

       issue was more properly addressed under Indiana Evidence Rule 404(B),” and

       that to the extent his objection is inadequate he again relies upon the

       fundamental error exception. Appellant’s Brief at 24. He asserts that evidence

       of Kidwell’s guilt is scant, noting that the fingerprint found on a bottle in his

       brother’s pickup truck is of questionable probative value, and that Shawn


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 13 of 24
       testified at trial that Chris Stevens and not Kidwell was the third participant in

       the failed robbery despite the risk of adding thirteen years to his prison term for

       doing so. He argues that the jury “had to have relied” upon Taulbee’s

       testimony to convict him, that Taulbee had serious believability issues, that at

       his first trial “the jury did not know why Taulbee changed his story,” and that

       the fact the second jury learned of Taulbee’s reason for identifying Kidwell and

       convicted Kidwell is therefore problematic. Id. at 25. Specifically, Kidwell

       suggests that the exchange “might have bolstered Taulbee’s shaky credibility,”

       or alternatively the jury may have convicted Kidwell “only because they were

       convinced he’d acted in conformity with his character,” which runs afoul of

       Ind. Evidence Rule 404(B). Id. at 26. He also contends that prejudice is

       apparent because he was convicted by the second jury, which heard Taulbee’s

       problematic testimony, whereas the first jury did not.


[23]   The State argues that otherwise inadmissible evidence may become admissible

       when the defendant “opens the door” to questioning on that evidence.

       Appellee’s Brief at 28. The State contends that its redirect was brief and

       actually lessened the risk of prejudice because, while the first statement objected

       to inferred direct knowledge of Kidwell’s participation in burglarizing Taulbee’s

       mother, the redirect exchange showed that in fact Taulbee’s “concern” was

       vague and unsupported. Id. at 29. It also asserts that the court’s admonishment

       cured any risk of prejudice. The State further argues that Kidwell’s assertions

       regarding prejudice are unavailing because Shawn’s “testimony was a

       transparent tissue of fabrications and evasions” and that Taulbee’s statement to


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 14 of 24
       a detective that he made up the name Chris Stevens was corroborated by the

       detective’s investigation. Id. at 31. The State maintains that Shawn’s “attempt

       to contradict his own testimony was inherently implausible and obviously

       manufactured.” Id. at 33. The State finally argues that the record does not

       contain the transcript from the first trial and does not show what evidence the

       juries heard at the respective trials, that the trial court at the first trial did not

       make any findings regarding why the jury was unable to come to a consensus

       verdict, and any attempt to glean a prejudicial effect from the exchanges at issue

       is mere speculation.


[24]   We observe that it was Kidwell’s counsel who prompted Taulbee’s response

       that he changed his story “because my mom’s house was broken into.”

       Transcript at 425. The record reveals that Kidwell’s counsel should have

       known, based upon deposition testimony and discussions during Kidwell’s first

       trial, that his question and its phrasing would prompt Taulbee to answer in this

       manner. The invited error doctrine forbids a party to take advantage of an error

       that he “commits, invites, or which is the natural consequence of [his] own

       neglect or misconduct.” Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App.

       2016) (quoting Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting

       Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)), reh’g denied, cert. denied, 135 S.

       Ct. 970, 190 L.Ed.2d 834, reh’g denied), trans. denied. We conclude that Kidwell

       invited any error with respect to this portion of Taulbee’s testimony.


[25]   Having invited such error, we find that any error made in allowing the State to

       ask its question on redirect and Taulbee’s response to be harmless at most and

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 15 of 24
       certainly not falling within the fundamental error exception. 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). Errors in the admission of evidence

       are to be disregarded unless they affect the defendant’s substantial rights. Id. at

       1059. 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. The jury

       heard Taulbee’s reason for changing his testimony as a result of Kidwell’s

       invited error, namely, that his mother’s house had been broken into. The

       implication of Taulbee’s statement is that he believed Kidwell was involved in

       the break-in, and his subsequent statement on redirect did not impact Kidwell’s

       substantial rights. See Pritchard v. State, 810 N.E.2d 758, 761 (Ind. Ct. App.

       2004) (holding that, even if it could be concluded that it was error for the trial

       court to admit certain testimony, the error would have been harmless and the

       defendant was not prejudiced by the admission of the testimony); see also Cole v.

       State, 970 N.E.2d 779, 784 (Ind. Ct. App. 2012) (holding that an error in the

       admission of evidence does not justify reversal if the evidence is cumulative of

       other evidence presented at trial).


[26]   Further, as acknowledged by Kidwell, his objection to the State’s question was

       based upon hearsay and not Ind. Evidence Rule 404(B). As we have stated, “a

       party may not present an argument or issue to an appellate court unless the

       party raised the same argument or issue before the trial court.” Washington v.

       State, 840 N.E.2d 873, 880 (Ind. Ct. App. 2006) (quoting Crafton v. State, 821

       N.E.2d 907, 912 (Ind. Ct. App. 2005)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 16 of 24
[27]   Waiver notwithstanding, to the extent that Taulbee’s statement on redirect

       might have violated Ind. Evidence Rule 404(B) 2 we note that, immediately

       following the challenged testimony the court gave its limiting instruction:

                  The question asked and answered is not evidence of the truth of
                  the matter as stated in the answer and is not to be considered as
                  such and is not to be considered as any evidence that the
                  defendant acted in conformity with the statement provided by the
                  witness but is merely for purpose of the witness’ motivation.


       Transcript at 463.


[28]   We are obliged to presume “that the jury are [people] of sense, and that they

       will obey the admonition of the court.” Valdez v. State, 56 N.E.3d 1244, 1253

       (Ind. Ct. App. 2016), trans. denied. A timely and accurate admonishment is

       typically presumed to cure any error in the admission of evidence. Kirby v.

       State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002), reh’g denied, trans. denied. Here,

       the court’s admonishment instructed the jury not only to not consider Taulbee’s




       2
           Ind. Evidence Rule 404(B) states as follows:

                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.
                  (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.

       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016              Page 17 of 24
       statement for truth of the matter asserted, but also not to make the “forbidden

       inference” that Kidwell has engaged in other, uncharged misconduct and the

       charged conduct was in conformity with the uncharged misconduct. Hicks v.

       State, 690 N.E.2d 215, 221 (Ind. 1997). We find that the court’s admonishment

       cured any potential impropriety contained in Taulbee’s statement.


                                                   Conclusion

[29]   For the foregoing reasons, we affirm Kidwell’s convictions for burglary and

       conspiracy to commit burglary.


[30]   Affirmed.


       May, J., concurs.


       Baker, J., dissents in part, concurs in part, with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 18 of 24
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       John Kidwell,                                            Court of Appeals Case No.
                                                                15A04-1511-CR-1972
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, dissenting in part, concurring in part.


[31]   I concur in the majority’s analysis and conclusion regarding prosecutorial

       vindictiveness. But I must part ways with its analysis of Taulbee’s testimony

       that Kidwell burglarized Taulbee’s mother’s house. In my view, this testimony

       is a textbook example of testimony prohibited by Evidence Rule 404(b) and was

       neither invited nor harmless. Accordingly, I would reverse on this issue and

       remand for a new trial.


[32]   First, Indiana Evidence Rule 404(b)(1) prohibits the admission of “[e]vidence of

       a crime, wrong, or other act . . . to prove a person’s character in order to show


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 19 of 24
       that on a particular occasion the person acted in accordance with the

       character.” However, such “evidence may be admissible for another purpose,

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

       identity, absence of mistake, or lack of accident.” Ind. Evidence Rule

       404(b)(2). The rule is designed to prevent the jury from assessing a defendant’s

       present guilt on the basis of his propensities—the so called “forbidden

       inference.” Hicks v. State, 690 N.E.2d 215, 218-19 (Ind. 1997). The paradigm of

       inadmissible evidence under Rule 404(b) is a crime committed on another day

       in another place, evidence whose only apparent purpose is to prove the

       defendant is a person who commits crimes. Swanson v. State, 666 N.E.2d 397,

       398 (Ind. 1996). Our Supreme Court has detailed the findings a trial court is

       required to make before admitting evidence of other acts:

               First, 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. Second, the
               court must determine that the proponent has sufficient proof that
               the person who allegedly committed the act did, in fact, commit
               the act. And third, the court must balance the probative value of
               the evidence against its prejudicial effect pursuant to Rule 403.


       Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009) (internal quotes and citations

       omitted).


[33]   The evidence regarding the alleged break-in of Taulbee’s mother’s house is

       precisely the type of evidence that Rule 404(b) was designed to keep out of trial,

       as it fails at least two of the three requirements listed in Camm. As for the


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 20 of 24
       second requirement, there was absolutely no proof that the statement was true

       other than the bald assertion of one of the State’s witnesses. This assertion

       could not have been made with personal knowledge of the facts related, since

       Taulbee was in prison during the relevant time period, but was instead based

       entirely on hearsay. And as for the third requirement, the prejudicial effect of

       the testimony was extremely high, its probative value vanishingly small. The

       jury was told that Kidwell, on trial for burglary and conspiracy to commit

       burglary, also burglarized the mother of the State’s main witness. This is the

       epitome of “a crime committed on another day in another place,” and had

       special weight coming from the sole witness testifying against Kidwell. As our

       Supreme Court has explained, a long line of prior misconduct cases have

       “cautioned that evidence of prior misconduct offered to bolster a key witness’s

       testimony as to the current charge, although often probative on that point, is

       also quite prejudicial.” Thompson v. State, 690 N.E.2d 224, 235 (Ind. 1997).

       And as Taulbee’s testimony was the only evidence linking Kidwell to the crime

       other than a fingerprint inside his brother’s car, the accusation that Kidwell

       burglarized Taulbee’s mother’s house was not harmless.


[34]   Second, the majority analyzes the issue solely under the fundamental error

       doctrine, accepting the State’s argument that Kidwell did not properly object on

       Rule 404(b) grounds. While it is certainly true that a claim of trial court error in

       admitting evidence may not be presented on appeal unless there is a timely

       objection “stating the specific ground of objection, if the specific ground was

       not apparent from the context,” Gyamfi v. State, 15 N.E.3d 1131, 1135 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 21 of 24
       App. 2014) (citing Ind. Evidence Rule 103(a)(1)), Kidwell did alert the trial

       court to his concern that Taulbee’s statement involved impermissible character

       evidence. Although Kidwell frequently mentioned the doctrine of hearsay, he

       also argued to the trial court that “the presentation of evidence that there’s

       implications that he already previously had committed a burglary at [Taulbee’s]

       mother’s . . . house. That’s providing information to the jury. That’s extremely

       high [sic] prejudicial.” Tr. p. 455-56. Our Supreme Court has cautioned us not

       to unrealistically “insist on detailed doctrinal arguments during the exigencies

       of trial—and indeed, long-winded objections are a poor use of court and jury

       time. The aim is simply to let the trial judge make an informed decision and

       prevent the objecting party from switching theories on appeal.” Ward v. State,

       50 N.E.3d 752, 756 (Ind. 2016). That the trial court was adequately informed

       of the issue is evidenced by its limiting instruction that the statement “is not to

       be considered as any evidence that [Kidwell] acted in conformity with the

       statement provided by the witness . . . .” Tr. p. 463.


[35]   Third, while I agree that the doctrine of invited error readily applies to

       Taulbee’s first comment, “I changed [my story] because my mom’s house was

       broken into,” tr. p. 425, I cannot agree that it applies to the State’s follow-up

       question, “I would just like you to tell us why did the break-in of your mom’s

       house change your mind about protecting John Kidwell?” Id. at 462. Defense

       counsel spent the intervening forty pages in the transcript objecting to Taulbee’s

       first statement and to the State’s proposed follow up. While Kidwell invited

       Taulbee’s first comment, he certainly did not invite the second.


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 22 of 24
[36]   Nor can I agree with the State’s argument that Kidwell opened the door to the

       State’s follow-up question. That doctrine exists to prevent a party from

       misrepresenting facts and thereby gaining an advantage. E.g., Jackson v. State,

       728 N.E.2d 147, 151-52 (Ind. 2000) (defendant accused of shooting wife opened

       the door to evidence of prior battery because he testified that he loved his wife

       throughout their marriage and left the jury with the impression that he would

       not intentionally harm someone he loved); Roberts v. State, 894 N.E.2d 1018,

       1027 (Ind. Ct. App. 2008) (defendant accused of choking victim opened the

       door to evidence that he had previously choked several other women because

       he testified that he had only performed chokeholds on men during martial arts

       training). Such a situation does not exist in this case. Kidwell did not gain an

       advantage from Taulbee’s first comment; indeed, that comment created a

       substantial risk that the jury would believe that he regularly perpetrates

       burglaries. And far from lessening the risk of prejudice or averting the

       forbidden inference, the State’s follow-up question greatly increased the

       prejudice and made it more likely that the jury would infer that Kidwell has a

       propensity towards burglary. In short, the State did not rebut Taulbee’s first

       comment; it compounded it.


[37]   Finally, I do not find the trial court’s limiting instruction dispositive. We have

       previously found limiting instructions insufficient where improperly admitted

       evidence held great potential to prejudice a jury. E.g., Greenboam v. State, 766

       N.E.2d 1247, 1255-57 (Ind. Ct. App. 2002) (where defendant was charged with

       child molestation, and State presented testimony that he had committed other


       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 23 of 24
       molestations, we held that “[a]lthough the trial court instructed the jury as to

       the limited purpose for which the evidence could be considered, we cannot say

       that the impact of the improperly admitted evidence upon the jurors was

       significantly lessened. A substantial likelihood exists that the erroneously

       admitted evidence contributed to the verdict and had an impact upon

       Greenboam’s substantial rights.”) (internal citation omitted). In this case, the

       sole witness testifying against Kidwell, Taulbee, was permitted to accuse

       Kidwell of burglarizing Taulbee’s mother’s house. In a trial for burglary,

       testimony that the defendant burglarizes the mothers of witnesses is extremely

       inflammatory, and I cannot say that the trial court’s limiting instruction

       sufficiently blunted the impact upon the jurors.


[38]   For the foregoing reasons, I respectfully dissent from the majority’s analysis of

       and holding on Taulbee’s testimony. In all other aspects, I fully concur with

       the majority.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1511-CR-1972 | December 9, 2016   Page 24 of 24
