MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Nov 02 2018, 6:35 am

regarded as precedent or cited before any                                         CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                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
Thomas J. Gaunt                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Anthony Tyrell Wilburn,                                 November 2, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-894
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                     Luken, Judge
                                                        Trial Court Cause No.
                                                        32D05-1705-F3-17



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018                      Page 1 of 7
                                               Case Summary
[1]   Anthony Tyrell Wilburn (“Wilburn”) appeals his convictions for Attempted

      Armed Robbery, a Level 3 felony,1 and three counts of Theft, two as Level 6

      felonies and one as a Class A misdemeanor.2 We reverse and remand for a new

      trial.



                                                     Issues
[2]   Wilburn presents two issues for review:


                 I.           Whether the trial court admitted into evidence, in
                              contravention of Indiana Rule of Evidence 404(b): (a)
                              testimony that Wilburn allegedly committed or attempted
                              to commit a theft at a Beech Grove Walmart; (b) a
                              videotape obtained from that store; and (c) officers’
                              testimony that their personal observations occasioned by
                              Wilburn’s arrest in Beech Grove had led them to conclude
                              that Wilburn had also been the person depicted in videos
                              from other Walmart locations; and


                 II.          Whether sufficient evidence supports his convictions. 3




      1
          Ind. Code §§ 35-41-5-1, 35-42-5-1.
      2
          I.C. § 35-43-4-2.
      3
       Because we reverse Wilburn’s convictions, we address the sufficiency of the evidence argument only in the
      context of whether Wilburn may be retried. If the evidence, viewed as a whole, would have been sufficient to
      sustain the judgment, retrial does not offend double jeopardy principles. Harmon v. State, 849 N.E.2d 726,
      735 (Ind. Ct. App. 2006). Our review of the evidence in its entirety leads us to conclude that retrial is
      permissible.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018                  Page 2 of 7
                            Facts and Procedural History
[3]   In the early morning hours of April 6, 2017, Wanda Ballard (“Ballard”) was

      working as a cashier at a Walmart in Camby, Indiana. She was completing a

      single-item sale and handing the customer change when she heard him demand

      her money. Ballard saw in the customer’s hand what looked to be a gun barrel.

      Nevertheless, she slammed the cash register shut and refused to comply with

      the demand for money. The man attempted to grab his change, tearing the bill

      apart, and then fled. The store’s asset protection manager found empty

      packaging for a BB gun in one of the store aisles.


[4]   Later that same day, asset protection personnel at Danville, Avon, and

      Brownsburg Walmart stores learned that property had been taken from the

      jewelry display cases. Videotapes supplied by Walmart to local law

      enforcement suggested that one male was involved in multiple thefts. One

      camera had captured an image of the suspected thief’s vehicle, a gray or silver

      four-door passenger car. Another camera had captured an image of a male near

      the pharmacy in the Avon Walmart at around 2:45 a.m., and law enforcement

      converted that image to a still photograph. Law enforcement then turned to

      social media in the hopes of identifying the photographed individual.


[5]   On April 11, 2018, Wilburn was arrested outside a Beech Grove Walmart on

      suspicion of theft. Law enforcement officers in Hendricks County learned of

      that arrest, and they were able to conduct comparisons of a Beech Grove

      Walmart videotape with videotapes from Camby, Danville, Avon, and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018   Page 3 of 7
      Brownsburg Walmart stores. The officers became convinced that the same

      individual was depicted in each videotape, and that the individual was Wilburn.


[6]   On May 4, 2017, the State of Indiana charged Wilburn with Attempted Armed

      Robbery related to the events at the Camby Walmart, and with multiple counts

      of Theft (three felonies and one misdemeanor), related to the events at the

      Danville, Avon, and Brownsburg Walmart stores. Prior to trial, Wilburn filed a

      motion in limine seeking to exclude evidence of the arrest at the Beech Grove

      Walmart. The motion was granted.4


[7]   Wilburn’s trial commenced on February 12, 2018. After opening statements

      but prior to the presentation of evidence, the State asked the trial court “for

      relief from the defense Motion in Limine.” (Tr. Vol. II, pg. 88.) After hearing

      argument of counsel, the trial court ruled: “I’m going to allow the evidence in

      for the following reasons: … It is related in time and space and distance. Also,

      the fact that he went to jewelry spinners is unique enough. … I will allow the

      video and I will allow the fact that he was arrested.” (Id. at 91.)


[8]   Hendricks County Sheriff’s Department Detective Jesse Fulwider (“Det.

      Fulwider”) testified over Wilburn’s objections that he “came into contact with

      Mr. Wilburn in person at the Beech Grove Police Department” and, further,

      “on this DVD is the defendant in the Beech Grove Walmart.” (Id. at 139, 143.)




      4
       A ruling in limine is meant to prevent the presentation of potentially prejudicial evidence until the trial
      court can rule on the admissibility of the evidence in the context of the trial itself. Harmon, 849 N.E.2d at 728
      n.2.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018                      Page 4 of 7
       Det. Fulwider identified certain “factors” used “to identify that the individual

       that put the gun to Wanda [Ballard] is the defendant.” (Id. at 150.)


[9]    Wilburn was convicted as charged. The trial court vacated the conviction for

       the misdemeanor count and sentenced Wilburn to an aggregate sentence of

       twelve years on the remaining counts. Wilburn now appeals.



                                 Discussion and Decision
                                         Evidence Rule 404(b)
[10]   A trial court exercises broad discretion in ruling upon the admissibility of

       evidence. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009). This Court will

       disturb its ruling only where an abuse of discretion is shown. Id.


[11]   The State argued for admission of the Beech Grove evidence:


               The purpose for which the State’s going to be offering [the
               evidence] is that we anticipate one of the defenses being in this
               particular case probably the most significant defense is
               identification. This was a signature offense that the defendant
               was arrested for in Beech Grove and was identified that is
               identical to the offenses that he is charged with in this particular
               case.


       (Tr. Vol. II, pg. 89) Evidence Rule 404(b) provides, “Evidence of other crimes,

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

       show action in conformity therewith,” but “may be admissible for another

       purposes, such as proving identity.” The identity exception in Rule 404(b) was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018   Page 5 of 7
       crafted primarily for crimes so nearly identical that the modus operandi is

       virtually a “signature.” Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997).

       “The exception’s rationale is that the crimes, or means used to commit them,

       were so similar and unique that it is highly probable that the same person

       committed all of them.” Id.


[12]   The trial court is required to make three findings to admit evidence for “other

       purposes” under Rule 404(b). Camm, 908 N.E.2d at 223. Specifically:


               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.


       Id. (internal citations omitted.) Here, no evidence had been adduced to satisfy

       any of these prongs prior to the ruling on admissibility. Rather, the State

       anticipated a defense and counsel presented brief argument. In these

       circumstances, Wilburn has demonstrated an abuse of discretion.


[13]   “Errors in the admission of evidence will not result in reversal if the probable

       impact of the evidence upon the jury is sufficiently minor so as to not affect a

       party’s substantial rights.” Collins v. State, 826 N.E.2d 671, 679 (Ind. Ct. App.

       2005), trans. denied. We cannot say that the testimony about the Beech Grove

       arrest and the admission of the videotape was harmless. Indeed, the challenged


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018   Page 6 of 7
       evidence was used to address evidentiary problems inherent in trying the

       charged offenses. Ballard could not identify her would-be robber; no witness

       had observed any of the thefts, and the silent witness – store recordings –

       depicted a person in the store but presence is not necessarily suggestive of

       criminal activity. Moreover, once it became clear that the Beech Grove

       videotape would be introduced, an officer was allowed to make an in-court

       identification of Wilburn – over Wilburn’s objection that the officer had no

       independent basis for doing so. Under these circumstances, Wilburn’s

       convictions must be reversed.



                                               Conclusion
[14]   The trial court abused its discretion in the admission of evidence and the error

       was not harmless. Retrial would not offend double jeopardy principles.


[15]   Reversed and remanded for a new trial.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-894 | November 2, 2018   Page 7 of 7
