      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                              FILED
      court except for the purpose of establishing                      Jun 05 2020, 10:48 am
      the defense of res judicata, collateral
                                                                             CLERK
      estoppel, or the law of the case.                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Ivan A. Arnaez                                           Caroline G. Templeton
      Arnaez Law Offices                                       Deputy Attorney General
      Evansville, Indiana                                      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kurtis R. Hall,                                          June 5, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2941
              v.                                               Appeal from the Gibson Circuit
                                                               Court
      State of Indiana,                                        The Honorable Jeffrey F. Meade,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               26C01-1810-F4-1121



      Najam, Judge.


                                       Statement of the Case
[1]   Kurtis Hall appeals his convictions, following a jury trial, for unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony, and auto


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020               Page 1 of 13
      theft, as a Level 6 felony, and his adjudication as a habitual offender. Hall

      presents six issues for our review, which we consolidate and restate as the

      following four issues:


              1.       Whether the trial court erred when it admitted into
                       evidence at trial firearms that officers had found in his
                       house and in his truck.

              2.       Whether the trial court abused its discretion when it
                       admitted alleged hearsay evidence at trial.

              3.       Whether the trial court abused its discretion when it
                       denied his motion for a mistrial.

              4.       Whether the State presented sufficient evidence to prove
                       that he was a habitual offender.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On October 2, 2018, a 2002 Harley Davidson Softail motorcycle (“the

      motorcycle”) owned by Larry Jenkins was stolen from Jenkins’ residence in

      Evansville. Jenkins was not home at the time, but Jenkins’ neighbor Jada

      McKnight saw a man loading the motorcycle onto a trailer, and she

      surreptitiously photographed the scene. McKnight was able to record the

      license plate number on the man’s truck. McKnight then called law

      enforcement to report the apparent theft. When Jenkins returned home, he

      talked to McKnight and concluded that Hall, an acquaintance, was the man



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 2 of 13
      who had stolen the motorcycle. Jenkins reported his suspicion to law

      enforcement.


[4]   On October 3, officers with the Indiana State Police (“ISP”) set out to execute

      an arrest warrant for Hall on charges unrelated to the motorcycle theft. When a

      surveillance team saw Hall “drive up the road, park his truck in the driveway,

      get out of his truck, and enter the home” in Gibson County, the team notified

      ISP Trooper Ross Rafferty, who was waiting nearby. Tr. Vol. 2 at 229.

      Trooper Rafferty, along with other ISP officers, including members of the U.S.

      Marshal’s Task Force, soon arrived at Hall’s home. The officers had reason to

      believe that Hall possessed firearms. Rather than knocking on the front door to

      the house, Trooper Justin Bean called out to Hall on a PA system “to alert

      [him] to [their] presence,” and he instructed Hall to exit the house. Id. at 231.

      After several minutes, Hall came outside, and officers arrested him.


[5]   The officers then conducted a protective sweep inside Hall’s house, and they

      saw two rifles in plain view in the master bedroom. In the meantime, Trooper

      Rafferty and Trooper Bean looked inside the green pickup truck Hall was

      driving when he arrived home that day. In plain view through a truck window,

      they saw the butt of a pistol stuck between the front seats. Officers also found a

      motorcycle on the property matching the description of Jenkins’ stolen

      motorcycle.


[6]   Officers then obtained a search warrant for Hall’s home, outbuildings, and

      vehicles. When they executed that search warrant, officers found a long rifle


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 3 of 13
      and a pellet gun in the master bedroom and a loaded 9-millimeter caliber pistol

      in his pickup truck. Officers also confirmed that the motorcycle parked on the

      property was Jenkins’ stolen motorcycle.


[7]   The State charged Hall with possession of a firearm by a serious violent felon, a

      Level 4 felony, and auto theft, as a Level 6 felony. The State subsequently

      charged Hall with being a habitual offender. Prior to trial, Hall filed a motion

      to suppress all of the evidence officers collected pursuant to the search warrant,

      which they had obtained after conducting the protective sweep of his home.

      The court denied that motion following a hearing.


[8]   During his jury trial, 1 Hall testified that he had purchased the motorcycle from

      Jenkins on October 2, 2018, and he submitted into evidence a receipt for the

      motorcycle purporting to show Jenkins’ signature. However, Jenkins testified

      that he did not sell the motorcycle to Hall; Jenkins testified that Hall stole the

      motorcycle. A jury subsequently found Hall guilty as charged and adjudicated

      him to be a habitual offender. The trial court entered judgment of conviction

      accordingly and sentenced Hall to an aggregate term of eleven and one-half

      years executed. This appeal ensued.




      1
         The jury trial was trifurcated—the theft, possession of a firearm, and habitual offender charges were each
      tried separately.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020                       Page 4 of 13
                                      Discussion and Decision
                                             Issue One: Firearms

[9]    Hall first contends that the trial court erred when it admitted into evidence two

       firearms officers recovered from his property: one inside his truck, and the

       second one inside his house. He asserts that the officers violated his rights

       under the Fourth Amendment to the United States Constitution when they

       looked inside his truck and saw a firearm in plain view. And he maintains that

       the officers’ protective sweep of his residence and the subsequent search

       pursuant to a warrant violated his rights under the Fourth Amendment. We

       address each contention in turn.


[10]   Our standard of review is well settled:


               Admission of evidence is generally left to the discretion of the
               trial court, and thus we review admissibility challenges for abuse
               of that discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.
               2014). When, however, admissibility turns on questions of
               constitutionality relating to the search and seizure of that
               evidence, our review is de novo. Id. at 40-41.


       Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).


[11]   Hall first maintains that the officers violated his rights under the Fourth

       Amendment because they were “on the curtilage” of his property without a

       search warrant when they saw the gun in plain view in his truck. Appellant’s

       Br. at 37. Hall is correct that “[w]hen a law enforcement officer physically

       intrudes on the curtilage to gather evidence, a search within the meaning of the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 5 of 13
       Fourth Amendment has occurred.” Collins v. Virginia, 138 S. Ct. 1663, 1670

       (2018). “Such conduct thus is presumptively unreasonable absent a warrant.”

       Id.


[12]   However, Hall ignores the fact that the officers were legally present on his

       property, including the curtilage of his property, because they were executing an

       arrest warrant. As this Court has observed, officers executing an arrest warrant

       have “authority to actually enter the residence, [as well as] authority to walk

       around the curtilage. Once properly on the curtilage, the officers could notice

       things in plain view, such as through [a] partially uncovered window.”

       Carpenter v. State, 974 N.E.2d 569, 573 (Ind. Ct. App. 2012), trans. denied.

       Trooper Rafferty testified that he parked his vehicle “directly behind” Hall’s

       truck, and Trooper Bean parked next to Trooper Rafferty. Tr. Vol. 2 at 230. In

       plain view through a truck window, both Trooper Rafferty and Trooper Bean

       saw a gun wedged between the front two seats. Accordingly, the trial court did

       not err when it admitted that gun into evidence.


[13]   Turning now to Hall’s contention that the trial court erred when it admitted

       into evidence a second firearm officers found inside his house, we agree with

       the State that the error, if any, in the admission of that evidence was harmless.

       It is well settled that the admission of evidence obtained in violation of the

       Fourth Amendment is subject to a harmless error analysis. Zanders v. State, 118

       N.E.3d 736, 743 (Ind. 2019). As our Supreme Court has explained,


               [f]or these errors, “an otherwise valid conviction should not be
               set aside if the reviewing court may confidently say, on the whole

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 6 of 13
               record, that the constitutional error was harmless beyond a
               reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681,
               106 S. Ct. 1431 (1986). Put another way, the question is, “Is it
               clear beyond a reasonable doubt that . . . [the] jury would have
               found the defendant guilty absent the error?” Neder v. United
               States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L.Ed.2d 35 (1999).

                                                       ***

               . . . [H]armless-error analysis involves quantitatively and
               qualitatively assessing the error in the context of other evidence
               presented. See [Van Arsdall,] at 684. . . . This analysis requires us
               to first identify the allegedly improper evidence, then evaluate its
               significance in view of all the other evidence that was properly
               presented. See, e.g., United States v. Hasting, 461 U.S. 499, 510-12,
               103 S. Ct. 1974, 76 L.Ed.2d 96 (1983); United States v. Watts, 453
               F. App’x 309, 312-14 (4th Cir. 2011); United States v. Tenerelli, 614
               F.3d 764, 769-70 (8th Cir. 2010).


       Id. at 743-44.


[14]   The State charged Hall with the unlawful possession of a single firearm, but the

       information did not specify whether it was Hall’s possession of the firearm

       officers found in his truck or in his house. And at trial, the State did not specify

       which of the two firearms admitted into evidence was meant to support that

       charge. We hold that, even assuming error in the admission into evidence of

       the rifle found in Hall’s house, it is clear beyond a reasonable doubt that the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 7 of 13
       jury would have found Hall guilty absent the alleged error. 2 Zanders, 118

       N.E.3d at 741. The State presented testimony that Hall was alone in his green

       pickup truck when he drove up to his house immediately prior to the officers’

       arrival. Hall constructively possessed the gun officers saw in plain view

       between the front seats of the truck. See Grim v. State, 797 N.E.2d 825, 831 (Ind.

       Ct. App. 2003). Any error in the admission into evidence of the rifle officers

       found inside Hall’s house was harmless.


                                          Issue Two: Alleged Hearsay

[15]   Hall next contends that the trial court abused its discretion when it permitted

       Trooper Rafferty to testify that Jenkins was in the Vanderburgh County Jail at

       the time Hall alleged he had bought the motorcycle from him. During a side

       bar, the State revealed that Trooper Rafferty did not have first-hand knowledge

       that Jenkins was in jail that day but had discovered that fact after checking an

       online database. Hall objected to the evidence on hearsay grounds, but the trial

       court overruled the objection and allowed the testimony. On appeal, Hall

       maintains that, contrary to the State’s argument to the trial court, the evidence




       2
         Hall did not file a reply brief and does not, therefore, challenge the State on its harmless error argument.
       Hall has waived any contention that, absent the State’s designation of a particular gun to support the charge,
       there is no guarantee that the jury’s verdict was unanimous. See Scuro v. State, 849 N.E.2d 682, 687-88 (Ind.
       Ct. App. 2006) (holding defendant waived contention that verdict may not have been unanimous where State
       presented evidence of two drug deals in the same day but only charged him with one), trans. denied. In any
       event, officers saw Hall alone in his truck shortly before they saw a gun in plain view in the truck. The rifle
       officers found inside the house was in a bedroom Hall shared with his wife. We hold that any error in the
       admission of the rifle was harmless beyond a reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020                      Page 8 of 13
       was not admissible under the business records exception in Evidence Rule

       803(6).


[16]   We need not address Hall’s contention on the merits because the “improper

       admission of evidence is harmless error when the erroneously admitted

       evidence is merely cumulative of other evidence before the trier of fact.” Hunter

       v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied. Whether

       Jenkins was in jail on October 2, 2018, is irrelevant to the issues at trial other

       than to prove that Jenkins was not home at the time Hall stole the motorcycle.

       And Trooper Rafferty’s testimony that Jenkins was not home was merely

       cumulative of Jenkins’ own testimony that he was not home when Hall stole his

       motorcycle. Accordingly, any error in the admission of Trooper Rafferty’s

       testimony on this issue was harmless. See Zanders, 118 N.E.3d at 741.


                                            Issue Three: Mistrial

[17]   Hall next contends that the trial court abused its discretion when it denied his

       motion for a mistrial. During its cross-examination of Hall at trial, the State

       asked Hall about prior convictions in an effort to impeach him. Specifically,

       the State asked Hall whether he had “a conviction [sic] in Madison County for

       burglary and theft.” Tr. Vol. 3 at 85. Hall did not object and answered in the

       affirmative. The State then asked Hall whether he also had convictions for

       residential burglary in Illinois and for burglary and theft in Hendricks County.

       Hall did not answer but objected to both of those questions on the basis that

       evidence of those convictions was inadmissible under Evidence Rule 609. Hall

       requested an admonishment and moved for a mistrial.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 9 of 13
[18]   The trial court denied the motion for mistrial but admonished the jury as

       follows:


               You heard prior to the break, a couple of prior convictions, okay,
               allegedly of the Defendant. I’m going to admonish that you only
               give weight to one, and that was one out of Madison . . . County,
               okay? Anything else, I’m going to ask that you completely
               disregard. Regarding the one conviction out of Madison County,
               I also want to advise the jury and admonish them that you can’t
               use that as any evidence that the Defendant committed what he’s
               been charged with. This only goes to his credibility. Okay?


       Id. at 93.


[19]   “Because the trial court is best positioned to assess the circumstances of an error

       and its probable impact on the jury, ‘[t]he denial of a mistrial lies within the

       sound discretion of the trial court,’ and this Court reviews only for abuse of that

       discretion.” Lucio v. State, 907 N.E.2d 1008, 1010 (Ind. 2009) (quoting Gill v.

       State, 730 N.E.2d 709, 712 (Ind. 2000)). “The overriding concern is whether

       the defendant ‘was so prejudiced that he was placed in a position of grave

       peril.’” Id. (quoting Gill, 730 N.E.2d at 712)). The gravity of peril is measured

       by the probable persuasive effect of the misconduct on the jury’s decision, not

       on the degree of impropriety of the conduct. Coleman v. State, 750 N.E.2d 370,

       374 (Ind. 2001) (internal citations omitted).


[20]   Hall maintains that he was entitled to a mistrial “because the State’s harpoon

       deprived Mr. Hall of a fair trial.” Appellant’s Br. at 41. He points out that his

       credibility was a crucial issue at trial, and that the State’s reference to three


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 10 of 13
       convictions by its questions unfairly impeached him. However, Hall

       acknowledged, without objection, his prior convictions for burglary and theft.

       In that context, and given the other independent evidence that Hall was lying

       about having bought the motorcycle, including Jenkins’ testimony, we cannot

       say that Hall was so prejudiced by the questions that he was placed in a position

       of grave peril. Moreover, it is well settled that, “where the trial court

       adequately admonishes the jury, such admonishment is presumed to cure any

       error that may have occurred.” Johnson v. State, 901 N.E.2d 1168, 1173 (Ind.

       Ct. App. 2009). We hold that the trial court did not abuse its discretion when it

       denied Hall’s motion for a mistrial.


                             Issue Four: Habitual Offender Adjudication

[21]   Finally, Hall contends that the State presented insufficient evidence to prove

       that he was a habitual offender. Upon a challenge to the sufficiency of the

       evidence for a habitual offender determination, the appellate court neither

       reweighs the evidence nor judges the credibility of the witnesses; rather, we

       examine only the evidence most favorable to the judgment, together with all of

       the reasonable and logical inferences to be drawn therefrom. Woods v. State, 939

       N.E.2d 676, 677 (Ind. Ct. App. 2010), trans. denied. The habitual offender

       determination will be sustained on appeal so long as there is substantial

       evidence of probative value supporting the judgment. Id.


[22]   A person is a habitual offender if the State proves beyond a reasonable doubt

       that he has two prior, unrelated felony convictions. Ind. Code § 35-50-2-8(g)

       (2019). To support a habitual offender finding, (1) the second prior unrelated
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 11 of 13
       felony must be committed after sentencing for the first prior unrelated felony

       conviction; and (2) the offense for which the State seeks to have the person

       sentenced as a habitual offender must be committed after sentencing for the

       second prior unrelated felony conviction. I.C. § 35-50-2-8(c).


[23]   Hall asserts that the State presented sufficient evidence to support two prior

       unrelated felonies, but not three. In particular, he maintains that the evidence

       was insufficient to prove a third prior unrelated felony in Marion County. Hall

       points out that, while State’s Exhibit 26 shows his name, race, date of birth, and

       driver’s license number, it does not include fingerprints or a photo, and no one

       testified that he was the same Kurtis Hall who pleaded guilty to burglary, as a

       Class C felony, in Marion County in 1992. Hall avers that the State had to do

       more to establish that he was the same Kurtis Hall named in Exhibit 26. We

       cannot agree.


[24]   Again, Hall concedes that he is the same Kurtis Hall named in the documents

       in State’s Exhibits 24, 25, and 27 showing that he committed two prior felonies,

       one in Madison County and one in Hancock County. Exhibit 26 includes

       Hall’s name, race, gender, and date of birth, and that information matches the

       same identifiers listed in the documents supporting the other two felony

       convictions. This Court has held that these identifiers are sufficient to prove a

       defendant’s habitual offender status. See Parks v. State, 921 N.E.2d 826, 834

       (Ind. Ct. App. 2010) (holding documentation listing defendant’s name and

       birthdate sufficient to prove defendant was the same person who committed a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 12 of 13
       previous felony), trans. denied. The State presented sufficient evidence to

       support Hall’s adjudication as a habitual offender.


[25]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2941 | June 5, 2020   Page 13 of 13
