                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                              Dec 21 2012, 9:22 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

GARY GRINER                                        GREGORY F. ZOELLER
Mishawaka, Indiana                                 Attorney General of Indiana

                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL R. ANDERSON, JR.,                          )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 71A04-1204-CR-220
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1104-FD-323


                                       December 21, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

           Michael R. Anderson Jr. (“Anderson”) appeals his convictions for operating a

motor vehicle while never having received a driver’s license as a class C misdemeanor,1

possession of marijuana as a class A misdemeanor,2 and possession of marijuana as a

class D felony.3 We affirm.


                                             ISSUES


           1. Whether the trial court erroneously denied Anderson’s request to call a late
              witness.

           2. Whether the trial court erroneously instructed the jury.


                                             FACTS


            On April 2, 2011, Officer Eric Schlegelmilch (“Officer Schlegelmilch”) of the

South Bend Police Department was patrolling in his marked police car along Lincolnway

West. Around midnight, Officer Schlegelmilch saw a white Pontiac Grand Prix with

“heavy, thick window tint”, which prevented him from seeing how many occupants were

inside. (Tr. 50). Officer Schlegelmilch activated his emergency lights, and the Pontiac

pulled into the parking lot of a gas station.


           The driver, subsequently identified as Anderson, exited the Pontiac. At some

point, Anderson dropped a “clear, plastic baggie with a green, leafy substance….” (Tr.

1
    Indiana Code § 9-24-18-1
2
    I.C. § 35-48-4-11(1)
3
    I.C. § 35-48-4-11(3)

                                                 2
56). Believing that the bag contained marijuana, Officer Schlegelmilch approached

Anderson and placed him under arrest. After obtaining identifying information from

Anderson, Officer Schlegelmilch searched the Bureau of Motor Vehicles database for the

status of Anderson’s driver’s license. The search revealed that Anderson had never

received a driver’s license.


       During Anderson’s arrest, Officer Anthony Dawson (“Officer Dawson”) arrived

and searched the Pontiac. Between “the [driver’s] seat and the center console [Officer

Dawson] found another clear, cellophane bag with suspected marijuana inside.” (Tr. 83).

Officer Kyle Dombrowski (“Kyle Dombrowski”) took several photographs at the scene

and collected the bags of marijuana. Afterwards, Officer Jonathan Gray (“Officer Gray”)

used a “Narco Pouch” field test kit to determine that the substance in the bags was

marijuana. (Tr. 105). In addition, Officer Gray transported Anderson to the St. Joseph

County Jail. Upon arriving at the jail, Anderson was searched as a part of the book-in

process. During the search, a jail deputy discovered another “small baggie of a green,

leafy substance” in Anderson’s “left coat pocket.” (Tr. 109). The contents of the bag

tested positive for marijuana.


       On April 29, 2011, the State charged Anderson with Count I, operating a vehicle

while never receiving a driver’s license, a class C misdemeanor; Count II, possession of

marijuana, a class A misdemeanor; and Count III, possession of marijuana, a class D

felony. Anderson subsequently filed a motion seeking to suppress the evidence collected

by law enforcement.

                                           3
      Anderson’s bifurcated jury trial was held on December 15 and 16, 2011. Prior to

the presentation of evidence, the trial court heard evidence on Anderson’s motion to

suppress. The motion was denied. During the State’s presentation of evidence, Officers

Schlegelmilch, Dawson, Dombrowski, and Gray testified. After the officers testified, the

State concluded its presentation. The jury was then excused and the trial court met with

the attorneys to talk about what final instructions would be given to the jury. After the

parties came to an agreement as to the final instructions, Anderson informed the trial

court that he had decided not to testify. As the trial court was about to have the jury

returned to the courtroom, Anderson’s counsel informed the trial court that he had been

approached by Anderson’s girlfriend, Ashley Star (“Star”) with relevant evidence.

Anderson’s counsel stated that Star would testify about the Pontiac, and that she was in

possession of several photographs, taken in daylight, that showed the level of tint on its

windows. The State objected, arguing (1) that it had no notice of Star’s anticipated

testimony; and (2) that this “new” evidence was the result of collusion between Star and

Anderson, as she had been in the courtroom during the suppression hearing and portions

of the trial. Taking into account the State’s arguments, the trial court denied Anderson’s

request to have Star testify because (1) the pictures were irrelevant as to the issue of

possession of marijuana; (2) the request was untimely; and (3) the jury had already been

informed that the trial was concluding on that day. When the jury returned to the

courtroom, Anderson’s counsel indicated that no further evidence would be presented.




                                            4
       The jury subsequently found Anderson guilty of Counts I and II. Afterwards, the

jury was excused and the parties agreed to allow the trial court to hear evidence on Count

III, possession of marijuana as a class D felony. The parties stipulated to the accuracy of

the certified documents showing that Anderson had previously been convicted of

possession of marijuana. As a result, the trial court found Anderson guilty of Count III.


       On April 20, 2012, the trial court sentenced Anderson to concurrent terms of sixty

(60) days on Count I and eighteen (18) months on Count III, all to be served at the

Department of Correction. Anderson now appeals.


                                       DECISION


I. Exclusion of Witness:


       Trial courts are given considerable discretion in decisions regarding the orderly

procedure of a trial, and we review those decisions for an abuse of discretion. Vasquez v.

State, 868 N.E.2d 473 (Ind. 2007). However, trial courts must be mindful that the Sixth

Amendment of the Federal Constitution grants a criminal defendant the right to call

witnesses to testify on his or her behalf. “Few rights are more fundamental than that of

an accused to present witnesses in his own defense, . . . .” Taylor v. Williams, 484 U.S.

400, 408 (1988). As a result, depending on the circumstances, excluding a witness may

be appropriate or it may be unconstitutional. “Indiana jurisprudence recognizes a strong

presumption to allow defense testimony, even of late-disclosed witnesses: ‘The most

extreme sanction of witness exclusion should not be employed unless the defendant’s


                                             5
breach has been purposeful or intentional or unless substantial and irreparable prejudice

would result to the State’” Vasquez, 868 N.E.2d at 476 (quoting Wisehart v. State, 491

N.E.2d 985, 991 (Ind. 1986)). When the trial court has made a decision to exclude a

witness because of a procedural violation or as a sanction, “we will reverse only if there

is clear error and resulting prejudice.” Id.


        Here, we find that the trial court did not erroneously exclude Star’s testimony.

Anderson’s counsel was first made aware that Star wanted to testify after evidence was

closed and final jury instructions had been assembled. If normal discovery procedures

had been followed, each party would have disclosed witnesses in a timely fashion. This

would have given each side the opportunity to seek a separation of witnesses order.4

However, because no one was aware of Star’s status as a witness, she was able to remain

in the courtroom during the trial and suppression hearing. As a result, it is highly likely

that Star’s testimony would have been improperly designed to counter the testimony of

the State’s witnesses. This explanation is made more likely since Anderson’s counsel did

not even know about the photographs until evidence had closed. For this reason alone,

we find that the sudden appearance of Anderson’s girlfriend as a witness was likely

designed to purposefully or intentionally avoid the trial discovery process. Vasquez, 868

N.E.2d 473. Therefore, the trial court did not err.



4
  Indiana Rule of Evidence 615 allows either party to seek an order excluding witnesses who will testify from the
courtroom. The purpose of an order separating witnesses is to prevent later witnesses from hearing the questioning
and testimony of earlier witnesses; allowing witnesses to remain in the courtroom might enable a witness to tailor
his or her testimony to correspond more closely to the testimony of witnesses on one side or the other. Williams v.
State, 924 N.E.2d 121 (Ind. Ct. App. 2009); Smiley v. State, 649 N.E.2d 697 (Ind. Ct. App. 1995); Bell v. State, 495
N.E.2d 526 (Ind. 1986).

                                                         6
II. Jury Instructions:


              The purpose of jury instructions is to inform the jury of the law
       applicable to the facts without misleading the jury and to enable it to
       comprehend the case clearly and arrive at a just, fair, and correct verdict. In
       reviewing a trial court’s decision to give a tendered jury instruction, we
       consider (1) whether the instruction correctly states the law, (2) is
       supported by the evidence in the record, and (3) is not covered in substance
       by other instructions. The trial court has discretion in instructing the jury,
       and we will reverse only when the instructions amount to an abuse of
       discretion. To constitute an abuse of discretion, the instructions given must
       be erroneous, and the instructions taken as a whole must misstate the law or
       otherwise mislead the jury. We will consider jury instructions as a whole
       and in reference to each other, not in isolation.
O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012) (quoting Munford v. State,

923 N.E.2d 11, 14 (Ind. Ct. App. 2010)). In addition, “[e]rrors in the giving or refusing

of instructions are harmless where a conviction is clearly sustained by the evidence, and

the instruction would not likely have impacted the jury’s verdict.” Atwood v. State, 905

N.E.2d 479, 486 (Ind. Ct. App. 2009), trans. denied.


       Anderson argues that the trial court “provided confusing and inconsistent

instructions to the jury.” Appellants’s Br. at 6. Specifically, Anderson argues that certain

instructions informed the jury that the State must prove each element beyond a

reasonable doubt.        Additionally, he argues that another instruction, regarding an

affirmative defense, stated that Anderson had the burden of proving this defense by a

preponderance of the evidence. Further, Anderson asserts that the trial court did not

provide a definition of the phrase “preponderance of the evidence.”            As a result,

Anderson claims that the instructions were in conflict, leading to an unreliable verdict.



                                             7
      It is well settled that the burden of proving


      all elements of a criminal offense beyond a reasonable doubt rests with the
      State. This ultimate burden of persuasion never shifts to the defendant, and
      the raising of an affirmative defense does not relieve the State of its
      ultimate burden of proof. However, while the State is ultimately
      responsible for proving every element beyond a reasonable doubt, the State
      does not bear the burden of negating all affirmative defenses that justify or
      excuse conduct which would otherwise be criminal. Thus “there is a
      difference between affirmative defenses that establish separate and distinct
      facts in mitigation of culpability and affirmative defenses that negate an
      element of the crime.” That difference is that it is only unconstitutional to
      place the burden of persuasion for an affirmative defense on the defendant
      when proving the defense becomes tantamount to requiring the defendant to
      negate an element of the crime.
Geljack v. State, 671 N.E.2d 163, 164-165 (Ind. Ct. App. 1996) (citations omitted).


      With respect to Count I (driving while never receiving a license), the trial court

instructed the jury that the State was required to prove the following elements beyond a

reasonable doubt: (1) Anderson; (2) operated; (3) a motor vehicle; (4) upon a highway;

and (5) while never having received a driving license. (App. 24); See also Ind. Code § 9-

24-18-1. However, the trial court also instructed the jury that, “The burden is on the

defendant to prove by a preponderance of the evidence that he had been issued a driver’s

license or permit that was valid at the time of the alleged offense.” (App. 29). This

instruction informs the jury that Anderson had the burden of proving an element of the

charged crime, namely a valid license. As a result, it is erroneous. See Geljack, 671

N.E.2d at 164-165.


      However, this does not end our inquiry. While the instruction was erroneous, it

may be found to be harmless error if (1) the conviction is clearly sustained by the

                                             8
evidence, and (2) the instruction did not likely have an impact on the verdict. Atwood,

905 N.E.2d at 486. Here, the testimony of the South Bend police officers, combined with

Anderson’s Bureau of Motor Vehicles report, clearly support his conviction. (State’s Ex.

4a). Further, Anderson presented no evidence that would have allowed the jury to

consider the erroneous instruction. As a result, the instruction is not likely to have had

any impact on the verdict. Therefore, any error was harmless.


      Affirmed.


FRIEDLANDER, J., and BROWN, J., concur.




                                            9
