Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHARLES W. LAHEY                                 GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 CHANDRA K. HEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                                                                               Mar 28 2013, 9:18 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

TYRONE BELL,                                     )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A05-1207-CR-393
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable John M. Marnocha, Judge
                             Cause No. 71D03-1202-FD-203




                                       March 28, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                        Case Summary and Issues

        Tyrone Bell appeals his conviction of theft, a Class D felony, and his habitual

offender enhancement. Bell raises the following restated issues for our review: 1)

whether the trial court erred in allowing the admission of prior bad acts evidence, and 2)

whether the evidence was sufficient to satisfy the mens rea element of his theft

conviction.       Concluding that the admission of prior bad acts evidence was not

fundamental error, and that the evidence was sufficient, we affirm.

                                      Facts and Procedural History

        The evidence most favorable to the judgment indicates that on February 23, 2012,

a checkbook belonging to Rick Miller and Julie Miller was taken from their home,

without their permission, by Julie’s daughter, Melissa Babbitt. Later that day, Bell went

with Babbitt and another friend, Shayna Wucsina, to Meijer where Babbitt attempted to

cash a check but was unable to do so.1 Babbitt then asked Bell if he would cash a check

for her and he agreed. Bell and Wucsina watched Babbitt write out two checks in the car.

They went to the Teacher’s Credit Union but that branch was closed, so they went to

CheckSmart. Bell went inside, along with Wucsina, to cash the check made out to

Wucsina, but the teller became suspicious and called Rick Miller, who informed her that

he had not written such a check and that she should call the police. Police found a second

check made out to Bell in the car. Bell was charged with theft, a Class D felony, and was

alleged to be an habitual offender.




        1
           While at Meijer, Wucsina and Bell went to the deli to obtain something to eat. Babbitt later told them
about her failed attempt at cashing the check.
                                                       2
       After the State rested during the jury trial, Bell moved for a directed verdict,

arguing that the State did not provide evidence that he “knew” that Babbitt was not

authorized to use the checks. The trial court denied the motion, finding that there was

enough evidence to submit the issue to the jury. The jury returned a verdict of guilty on

the theft charge and Bell admitted to the habitual offender enhancement. The trial court

sentenced Bell to two years for the theft and enhanced his sentence by three years for

being an habitual offender for a total sentence of five years.          Bell now appeals.

Additional facts will be provided as necessary.

                                 Discussion and Decision

                               I. Admissibility of Evidence

                                  A. Standard of Review

       A trial court has broad discretion in ruling on the admissibility of evidence.

Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied. We will reverse

a trial court’s ruling on the admissibility of evidence only when the trial court abused its

discretion. Id. An abuse of discretion occurs where the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before the court. Id.

                               B. Prior Bad Acts Evidence

       During trial, the following colloquy took place during the direct examination of

Julie Miller by the State:

              Q: Did Melissa have permission to get into that filing cabinet?
              A: No.
              Q: Did any of her associates or friends or guests, have permission to
              get in there?
              A: No, ma’am.
              Q: Do you allow people into your home?
              A: No, ma’am.
                                             3
              Q: Why is that?
              A: For any of our children, any of our six grown children, they all
              know not to bring . . . my husband is so paranoid that someone would
              take something that belongs to him. They all know you don’t bring
              strangers into our home.
              If we’re there, that’s one thing. But if we’re not there, that’s
              completely different.
              Q: And is Melissa specifically allowed to have people over?
              A: Especially Melissa can’t have people over.
              Q: And why is that?
              A: Melissa tends to run with a . . . not a very good crowd of people.
              Most of them have a criminal history or--
              [Defense counsel]: Objection.
              The Court: That’s overruled at this point.
              The witness: --or a drug problem.

Transcript at 114-15. Bell contends that Julie Miller’s statement regarding the criminal

history or drug problem of those her daughter “tends to run with” was improper character

evidence and that its admission was an abuse of discretion.

       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 to avoid the jury making the

“forbidden inference” that the defendant had a criminal propensity and therefore

committed the charged conduct. Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).

       Here, because the evidence indicated that Bell was Melissa’s friend, Julie Miller’s

comment could lead the jury to believe that he had a criminal propensity and therefore

engaged in the charged crime of theft. However, Bell did not make a Rule 404(b)

objection during trial.     “The uttering of the single word, ‘Objection’ with no

accompanying statement of legal grounds on which the objection is based” is not
                                             4
sufficient to preserve an issue on appeal.2 Riley v. State, 427 N.E.2d 1074, 1077 (Ind.

1981). This issue has therefore been waived unless Bell can show fundamental error.

See Vermillion v. State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012). Fundamental error

occurs only when the alleged error is a blatant violation of basic principles, the harm or

potential for harm as a result of the error is substantial, and the resulting error denies the

defendant fundamental due process. Id.

         The comment made by Julie Miller was the only evidence of prior bad acts

admitted at trial, and was only a general reference to the people “Melissa tends to run

with,” not to Bell in particular. In fact, Julie Miller testified that she had never met Bell.

Thus, the prior bad acts evidence admitted here was not so prejudicial it made a fair trial

impossible. See Wilson v. State, 931 N.E.2d 914, 920 (Ind. Ct. App. 2010) (holding that

the improper admission of the defendant’s driving record was not fundamental error, in

part, because it was the only evidence relating to the defendant’s character), trans. denied;

cf. Rhodes v. State, 771 N.E.2d 1246, 1256 (Ind. Ct. App. 2002) (finding fundamental

error when the “flood” of prior misconduct evidence, ranging from defendant’s driving

convictions, alcohol problems, and history of domestic violence to the legitimacy of his

child and the circumstances surrounding his divorce, made a fair trial impossible), trans.

denied. The admission of Julie Miller’s comment was not fundamental error.


         2
           Even if Bell had properly preserved the issue for appeal, the analysis would not end there. Indiana courts
engage in a two-step process to determine whether Rule 404(b) evidence is admissible. Hicks v. State, 690 N.E.2d
215, 221 (Ind. 1997) (“(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”). Further, some errors in the
admission of evidence are harmless and do not warrant reversal. See, e.g., Edwards v. State, 862 N.E.2d 1254, 1259
(Ind. Ct. App. 2007) (improper admission of evidence is harmless error if the conviction is supported by substantial
independent evidence), trans. denied; Williams v. State, 782 N.E.2d 1039, 1047 (Ind. Ct. App. 2003) (improper
admission of evidence is harmless error if the erroneously admitted evidence is merely cumulative of other evidence
in the record), trans. denied.
                                                          5
                               II. Sufficiency of Evidence

                                  A. Standard of Review

       Our standard of review for sufficiency claims is well-settled. We do not reweigh

the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,

864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and

reasonable inferences supporting the verdict. Id. It is not necessary that the evidence

overcome every reasonable hypothesis of innocence; the evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict. Id. We will affirm the

conviction unless no reasonable finder of fact could find the elements of a crime proven

beyond a reasonable doubt. Id.

                               B. Evidence of “Knowing”

       Bell was convicted of theft in violation of Indiana Code section 35-43-4-2(a). The

State was required to prove beyond a reasonable doubt that Bell knowingly or

intentionally exerted unauthorized control over the Millers’ checks, with the intent to

deprive them of any part of their value or use. Bell argues that there was insufficient

evidence to prove that he “knowingly” exerted unauthorized control over the checks.

“Knowingly” is defined as a person engaging in conduct while “aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b).

       The jury was instructed that, to find Bell guilty, it must find beyond a reasonable

doubt that Bell knowingly or intentionally exerted unauthorized control over the checks.

The jury found that the State had met this burden, and that finding is entitled to deference

on appeal. Franklin v. State, 715 N.E.2d 1237, 1240-41 (Ind. 1999). Bell points to the

lack of testimony that he knew the checks were stolen or that Babbitt was unauthorized to
                                             6
use them. However, direct evidence is not required; knowledge may be inferred from

circumstantial evidence. Berridge v. State, 168 Ind. App. 22, 340 N.E.2d 816, 821

(1976). Circumstantial evidence is sufficient if inferences may reasonably be drawn that

enable the trier of fact to find the defendant guilty beyond a reasonable doubt. Green v.

State, 808 N.E.2d 137, 138 (Ind. Ct. App. 2004).

       The evidence here indicated that Bell saw Babbitt write out the checks and sign

her mother’s name. In addition, there was evidence that Bell knew that Babbitt was

unable to cash a check earlier that day at Meijer. The fact that Bell knew that Babbitt had

been unable to cash one of the checks supports the inference that Bell knew Babbitt was

unauthorized to use them.      Thus, there was sufficient evidence to prove that Bell

knowingly exerted unauthorized control over the Millers’ checks and committed theft.

                                       Conclusion

       The admission of prior bad acts evidence was not fundamental error and there was

sufficient evidence to prove the knowing element of Bell’s theft conviction.           We

therefore affirm.

       Affirmed.

MAY, J., and PYLE, J., concur,




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