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                    Dec 31 2013, 8:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

ANTHONY S. CHURCHWARD                              GREGORY F. ZOELLER
Deputy Public Defender                             Attorney General of Indiana
Fort Wayne, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BILLYE D. GAULDEN,                                 )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )
                                                   )       No. 02A04-1212-CR-651
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                         APPEAL FROM ALLEN SUPERIOR COURT
                            The Honorable Frances C. Gull, Judge
                               Cause No. 02D06-1202-FB-37


                                       December 31, 2013

      MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION

MAY, Judge
       Billye Gaulden petitions for rehearing in Gaulden v. State, 02A04-1212-CR-651 (Ind.

Ct. App. September 18, 2013), wherein we affirmed his conviction of Class B felony

robbery. As part of his argument on appeal, Gaulden contended the trial court abused its

discretion when it admitted testimony regarding Gaulden’s threatening phone call to a

prosecution witness. We held the testimony regarding the threatening phone call was

admissible under Indiana Rule of Evidence 404(b) as an admission of guilt. Gaulden, slip

op. at 2.

       On rehearing, Gaulden asserts we erred by not analyzing whether the evidence was

admissible under Evid. Rule 403, which requires admissible evidence to be more probative

than prejudicial. However, “[a]n analysis of admissibility under Rule 404(b) necessarily

incorporates the relevancy test of Rule 401 and the balancing test of Rule 403.” Bennett v.

State, 883 N.E.2d 888, 893 (Ind. Ct. App. 2008), trans. denied. Further, as we explained in

Bennett, evidence admissible under Evid. Rule 404(b) “is prejudicial only in the sense that it

is highly probative of Bennett’s perpetration of the charged offenses. . . . This evidence is not

unfairly prejudicial in that it is not evidence of other wrongs, but of the charged offenses.”

Id. Therefore, our decision regarding the admissibility of Gaulden’s threatening phone call

implicitly included consideration of the balancing test required by Evid. Rule 403, and the

admission of the evidence was not unfairly prejudicial simply because it proved Gaulden’s

guilt of the charged offenses.




                                               2
      We accordingly re-affirm Gaulden’s conviction of and sentence for Class B felony

robbery.

BAILEY, J., and BRADFORD, J., concur.




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