      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                         Feb 20 2015, 8:21 am
      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
      Patricia Caress McMath                                    Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Imari Butler,                                            February 20, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A04-1406-CR-284
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Kurt M. Eisgruber,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G01-0904-PC-37693




      Sullivan, Senior Judge



[1]   Imari Butler appeals his adjudication as an habitual offender. We affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015    Page 1 of 9
[2]   In 2009, Butler was charged with rape, a Class B felony;1 criminal deviate

      conduct, a Class B felony;2 robbery, a Class B felony;3 two counts of criminal

      confinement, both Class C felonies;4 sexual battery, a Class D felony;5 and theft,

      a Class D felony.6 In addition, Butler was charged with being an habitual

      offender under Indiana Code section 35-50-2-8 (2005).7 Following a jury trial,

      he was found guilty of rape, criminal deviate conduct, criminal confinement

      and sexual battery. Butler then pleaded guilty to being an habitual offender. In

      the aggregate, Butler was sentenced to sixty years, including a thirty-year

      enhancement for his habitual offender adjudication. Butler’s convictions were

      affirmed on appeal. See Butler v. State, 951 N.E.2d 641 (Ind. Ct. App. 2011).


[3]   In July 2012, Butler filed a petition for post-conviction relief, which he later

      amended in October 2013. Following a hearing on Butler’s petition in

      December 2013, the post-conviction court found that the trial court had failed

      to advise Butler of his right to a jury trial on the habitual offender phase and




      1
          Ind. Code § 35-42-4-1 (1998).
      2
          Ind. Code § 35-42-4-2 (1998).
      3
          Ind. Code § 35-42-5-1 (1984).
      4
          Ind. Code § 35-42-3-3 (2006).
      5
          Ind. Code § 35-42-4-8 (1998).
      6
          Ind. Code § 35-43-4-2 (1985).
      7
        Indiana Code section 35-50-2-8 was amended, effective July 1, 2014, to reflect the changes made to the
      designation of felonies in the criminal code. Because Butler was charged with the present offenses in 2009,
      the prior version of the statute is applicable here.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015           Page 2 of 9
      ordered his habitual offender adjudication and corresponding sentence

      enhancement set aside.


[4]   On May 5, 2014, a jury trial was held solely on Butler’s charge of being an

      habitual offender. The jury returned a verdict of guilty. As a result of his

      habitual offender adjudication, Butler was re-sentenced to a thirty-year

      enhancement to his sentence for his conviction of rape for an aggregate

      sentence of sixty years.8 Butler now appeals his adjudication as an habitual

      offender.


[5]   Butler raises two issues, which we restate as:

               I. Whether the trial court abused its discretion by refusing to give his
               tendered jury instruction.

               II. Whether the trial court abused its discretion by admitting certain
               evidence.


                                            I. Jury Instruction
[6]   Butler contends that the trial court abused its discretion by refusing his tendered

      jury instruction. During his re-trial on the habitual offender charge, Butler

      tendered to the trial court Defendant’s Proposed Instruction No. 1, which read:

      “Even if you find the State has proven the facts of the two prerequisite felony

      convictions to be true beyond a reasonable doubt, you still have the




      8
        Butler’s fifteen-year sentence for criminal deviate conduct was consecutive to his fifteen-year sentence for
      rape.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015              Page 3 of 9
      unquestioned legal right to find the accused is not a habitual offender.”

      Appellant’s App. p. 157. The trial court refused this instruction.


[7]   Instructing the jury lies solely within the discretion of the trial court, and we

      will reverse only upon an abuse of that discretion. Elliott v. State, 786 N.E.2d

      799, 801 (Ind. Ct. App. 2003). When determining whether a trial court

      erroneously refused to give a tendered instruction, we consider the following:

      (1) whether the tendered instruction correctly states the law; (2) whether there

      was evidence presented at trial to support the giving of the instruction (this part

      of the test is not at issue in this case); and (3) whether the substance of the

      tendered instruction was covered by other instructions that were given. Mayes v.

      State, 744 N.E.2d 390, 394 (Ind. 2001).


[8]   We turn now to the question of whether Butler’s tendered instruction is a

      correct statement of the law. The substance of his tendered instruction is

      indeed found in Seay v. State, 698 N.E.2d 732 (Ind. 1998). There, our Supreme

      Court adopted the tenet that even where the jury finds the facts of the

      prerequisite prior felony convictions to be uncontroverted, the jury nevertheless

      has the unquestioned right to refuse to find the defendant to be an habitual

      offender. Id. at 734.


[9]   With regard to the third part of the analysis, we look to the instructions given

      by the trial court. Here, the trial court instructed the jury with Instruction

      Number 2, which read: “Under the Constitution of Indiana you have the right

      to determine both the law and the facts. The court’s instructions are your best


      Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 4 of 9
source in determining the law.” Appellant’s App. p. 160. The trial court also

gave the jury Instruction Number 7, as follows in pertinent part: “The State

may seek to have a person sentenced as a habitual offender for any felony by

proving that the person has accumulated two (2) prior unrelated felony

convictions. You may find the defendant to be a habitual offender only if the

State has proven each of the following facts beyond a reasonable doubt . . . If

the State fails to prove each of these facts beyond a reasonable doubt, you must

find the defendant is not a habitual offender.” Id. at 165. We note that in

Instruction Number 7, the trial court reinforced the jury’s discretion by

instructing the jury that it “may” — not must —find the defendant to be a

habitual offender “only if” the State proved two prior unrelated felony

convictions. In addition, the trial court prohibited the jury from finding Butler

to be a habitual offender, by instructing that it “must” find the defendant is not a

habitual offender, if the State failed to prove the facts beyond a reasonable

doubt. The trial court was “certainly not obligated to issue an invitation to the

jury to disregard prior convictions in addition to informing the jury of its ability

to determine the law and the facts.” See Walden v. State, 895 N.E.2d 1182, 1186

(Ind. 2008). The substance of the information contained in the trial court’s

instructions and Butler’s proposed instruction is the same. See id. at 1185-87

(holding that, in habitual offender phase of trial, trial court’s instructions to the

jury that it had right to determine law and facts of case and that it may, not

must, find defendant to be habitual offender if two prior unrelated felony

convictions are proved sufficiently covered substance of defendant’s tendered


Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 5 of 9
       instruction that the jury could refuse to find that defendant was habitual

       offender even if evidence of prior felony convictions was uncontroverted).


[10]   While we recognize that Butler’s argument is a request for us to adopt the

       reasoning of the dissent in Walden, we must decline his invitation. We are

       obliged to follow precedent established by the Indiana Supreme Court. Patton v.

       State, 507 N.E.2d 624, 626 (Ind. Ct. App. 1987), trans. denied. More

       particularly, a view expressed in a dissenting opinion in a Supreme Court case

       is not a precedent binding on this Court. New York Life Ins. Co. v. Bruner, 129

       Ind. App. 271, 275, 153 N.E.2d 616, 618 (1958). We find no abuse of

       discretion by the trial court in refusing Butler’s Defendant’s Proposed

       Instruction No. 1.


                                   II. Admission of Evidence
[11]   Next, Butler asserts that the trial court abused its discretion by admitting State’s

       Exhibits 104, 105, and 106 to prove his two prior unrelated felony convictions.

       The admissibility of evidence is within the sound discretion of the trial court,

       and we will not disturb the decision of the trial court absent a showing of abuse

       of that discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000).

       An abuse of discretion occurs when the trial court’s decision is clearly against

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

       when the error affects the substantial rights of the moving party does a claim of

       error in the exclusion or admission of evidence prevail on appeal. Nicholson v.

       State, 963 N.E.2d 1096, 1099 (Ind. 2012).


       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 6 of 9
[12]   To establish that Butler was an habitual offender, the State had to prove beyond

       a reasonable doubt that he had been convicted of two prior unrelated felonies.

       See Ind. Code § 35-50-2-8. In order to prove two prior unrelated felony

       convictions, the State must prove that “the second prior unrelated felony

       conviction was committed after sentencing for the first prior unrelated felony

       conviction” and “the offense for which the state seeks to have the person

       sentenced as a habitual offender was committed after sentencing for the second

       prior unrelated felony conviction.” Ind. Code § 35-50-2-8(c).


[13]   At trial, the State introduced Exhibits 104, 105, and 106 to prove Butler’s two

       prior unrelated felony convictions. Butler objected to these exhibits, and the

       trial court admitted them over his objection. Butler’s objection to Exhibit 104,

       the officer’s arrest report, and Exhibit 105, the charging information, was that

       the documents were prejudicial because they contained charges that did not

       result in convictions. Butler’s objection to Exhibit 106, the abstract of

       judgment, was that the document contained an additional misdemeanor

       conviction.


[14]   If, during a trial on an habitual offender charge, the State introduces evidence

       that the defendant has been convicted of more than two prior unrelated felonies

       and non-felonies, the introduction of such additional felonies and non-felonies

       is mere surplusage and therefore harmless. Kyles v. State, 888 N.E.2d 809, 814

       (Ind. Ct. App. 2008) (citing Wilson v. State, 511 N.E.2d 1014, 1017 (Ind. 1987)

       and Golden v. State, 485 N.E.2d 51, 56 (Ind. 1985)). Thus, the trial court did not

       abuse its discretion in admitting Exhibit 106 containing an additional

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 7 of 9
       misdemeanor conviction. However, with regard to Exhibits 104 and 105,

       Butler argues that additional charges not reduced to convictions are prejudicial

       in that the jury would be “much more likely to find him to be a habitual

       offender if it knew he had been charged with committing other offenses.”

       Appellant’s Br. p. 8. In light of the holding in Kyles, we fail to see how the

       inclusion of extraneous charges not resulting in convictions would prejudice the

       jury’s otherwise appropriate decision.


[15]   Further, we note that the trial court gave the jury limiting instructions. “[Y]our

       decision is to be based on what the convictions are as opposed to the charges, so

       your consideration is the convictions. This paperwork will contain other

       charges that were alleged, but that doesn’t matter. It matters what he was

       convicted of only. You’re not to consider that extraneous --- those extraneous

       charges for any purpose. It only matters what he was convicted of.” Tr. pp. 48-

       49. Upon admitting Exhibit 105, the trial court admonished the jury as follows:

       “So State’s Exhibit 105 includes numerous charges, some of which there was no

       conviction. You are not to give that any consideration, and that’s the

       instruction I gave you earlier, and that is true for any of the charging

       informations. You only take into consideration what he was convicted of.” Id.

       p. 68. Additionally, upon admitting Exhibit 106 over Butler’s objection, the

       court admonished the jury: “The same instruction applies to the jury. Take

       into account only felony convictions.” Id. at 69.


[16]   When a limiting instruction is given that certain evidence may be considered

       only for a particular purpose, the law presumes that the jury will follow the trial

       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 8 of 9
       court’s admonition. Ware v. State, 816 N.E.2d 1167, 1176 (Ind. Ct. App. 2004).

       Moreover, this Court presumes that a timely and accurate admonition cures

       any error in the admission of evidence. Whiteside v. State, 853 N.E.2d 1021,

       1030 (Ind. Ct. App. 2006). Thus, any prejudice resulting from the superfluous

       information contained in the documents was mitigated by the court’s

       immediate and repetitive admonishments.


[17]   For the reasons stated, we conclude that the trial court did not abuse its

       discretion by refusing Butler’s proposed instruction or in admitting into

       evidence Exhibits 104, 105, and 106.


[18]   Affirmed.


[19]   Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 9 of 9
