                                                                               FILED
                                                                           Jun 19 2019, 8:37 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Scott H. Duerring                                          Curtis T. Hill, Jr.
South Bend, Indiana                                        Attorney General of Indiana
                                                           Tiffany A. McCoy
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Donald Newland, Jr.,                                       June 19, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-95
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable Jane Woodward
Appellee-Plaintiff.                                        Miller, Judge
                                                           Trial Court Cause No.
                                                           71D01-1807-F5-155



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019                                    Page 1 of 8
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Donald Newland, Jr. (Newland), appeals his conviction

      for burglary, a Level 5 felony, Ind. Code § 35-43-2-1.


[2]   We affirm.


                                                      ISSUE
[3]   Newland presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by preventing Newland from cross-

      examining a witness on the specific facts and circumstances surrounding the

      witness’ prior conviction.


                       FACTS AND PROCEDURAL HISTORY
[4]   On May 31, 2016, John Hensley (Hensley), the owner of the Blarney Stone Bar,

      in South Bend, Indiana, noted a suspicious check drawn on the business’ bank

      account and made out to Chaz Coburn (Coburn) in the amount of $300. The

      check was dated May 24, 2016, and had been deposited the following day.

      Hensley kept his business checks—including some checks that were pre-

      signed—in a safe on the second floor of the bar. As Hensley did not know

      Coburn, he had not authorized or written a check to him. Hensley contacted

      his security company to check the bar’s opening and closing logs. The log

      indicated an opening and closing on May 25, 2016, around 2:00 p.m., at a time

      when the bar is typically closed. When checking the footage of the security

      cameras for that day and time, Hensley recognized Newland entering the bar,


      Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019        Page 2 of 8
      going upstairs to the office, using the key pad to enter the office, and moments

      later leaving the office while holding a piece of paper.


[5]   Newland is married to Hensley’s sister and had worked for Hensley in the bar

      by cleaning and working security. His employment ended in April 2016. After

      Newland was terminated, he did not have permission to enter the bar when

      Hensley was not there.


[6]   On July 31, 2018, the State filed an Information, charging Newland with Count

      I, burglary, a Level 5 felony, and Count II, theft, a Class A misdemeanor. On

      November 12, 2018, the trial court conducted a jury trial. During the trial,

      Coburn testified as a State’s witness. He affirmed that Newland gave him the

      check, which he cashed, and then Coburn gave Newland some of the money.

      He also informed the jury that he voluntarily had given a false statement to an

      attorney to protect Newland. In this statement, Coburn admitted that he had

      “filled out the check and cashed it.” (Defendant’s Exh. B). On direct

      testimony, Coburn stated that he had prior convictions for theft, conversion,

      and auto theft, and was currently in jail. On cross-examination, Newland again

      asked Coburn about his prior convictions, which the State objected to as being

      “cumulative.” (Transcript p. 68). In response, Newland argued that the State

      had opened the door and he was “entitled to explore that issue.” (Tr. p. 68). In

      addressing Newland’s argument, the trial court explained


              [the State] merely impeached [Coburn] as the rules permit by
              evidence of a prior conviction. Rule 609. He absolutely followed
              the way in which it is to be done. And I don’t understand the

      Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019          Page 3 of 8
              argument that by doing exactly what the rules allow him to do
              and in the way the rules allow him to do it he has opened the
              door to allow you to explore these prior convictions. And I am
              assuming, though perhaps I am wrong, you are hoping to explore
              them in a way that would suggest that because he was the kind of
              guy that would commit a crime of theft in the past he could have
              done this, which is exactly the forbidden inference that 404(b)
              describes.


      (Tr. p. 69). Newland responded to the trial court by stating that Indiana Trial

      Rule 404(b) “protect[s] a defendant not a witness.” (Tr. p. 69). The trial court

      clarified that “Rule 609 applies to each witness as does 404(b).” (Tr. p. 69).

      After the trial court sustained the State’s objection, Newland made an offer of

      proof, in which he established that Coburn’s 2016 conviction for theft was for

      theft from his place of employment, which was a bar.


[7]   At the close of the evidence, the jury found Newland guilty of burglary. On

      December 13, 2018, the trial court sentenced Newland to four years, with the

      first two years being served at the Indiana Department of Correction, one year

      served in community corrections, and one year suspended.


[8]   Newland now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[9]   Newland contends that the trial court abused its discretion when it prohibited

      him from cross-examining Coburn about the specifics of his prior theft

      conviction. While the Sixth Amendment right of confrontation assures a

      defendant’s right to cross-examine witnesses, this right is subject to reasonable

      Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019           Page 4 of 8
       limitations by trial courts. Logan v. State, 729 N.E.2d 125, 134 (Ind. 2000). As

       such, the trial court has wide determination to determine the scope of cross-

       examination, and only an abuse of discretion warrants reversal. Seketa v. State,

       817 N.E.2d 690, 693 (Ind. Ct. App. 2004). An abuse of discretion occurs only

       where the trial court’s discretion is clearly against the logic and effect of the

       facts and circumstances before it, or if the court has misinterpreted the law.

       Wells v. State, 904 N.E.2d 365, 369 (Ind. Ct. App. 2009).


[10]   Generally, when a prior conviction is introduced for impeachment purposes,

       the details of the conviction may not be explored. Oliver v. State, 755 N.E.2d

       582, 586 (Ind. 2001); see also Ind. Evid. Rule 609(a) (allowing impeachment by

       evidence of certain “infamous crimes” and crimes involving dishonesty or false

       statement). In other words, a witness may be questioned only about whether he

       or she had been previously convicted of a particular crime, not the

       circumstances surrounding the conviction. Id. However,


               [w]hen a party touches upon a subject in direct examination,
               leaving the trier of fact with a false or misleading impression of
               the facts related, the direct examiner may be held to have opened
               the door to the cross examiner to explore the subject fully, even if
               the matter so brought out on cross examination would have been
               otherwise inadmissible.


       Id. (citing Tawdul v. State, 720 N.E.2d 1211, 1217-18 (Ind. Ct. App. 1999), trans.

       denied).


[11]   We agree with the trial court that the State did not open the door to further

       questioning about Coburn’s theft conviction. In accordance with Evid. R. 609,
       Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019                Page 5 of 8
       Coburn’s theft conviction was admissible and relevant with regard to his

       credibility as a witness. The State merely questioned him whether he had been

       convicted of theft in 2016, to which Coburn responded affirmatively. The State

       did not inquire into the particulars of the conviction. As Newland made no

       showing that the jury was misled by learning of this conviction, the trial court

       properly limited Newland’s cross-examination.


[12]   Referencing federal case law, Newland maintains that Evid. R. 609 “does not

       limit the use of evidence of prior convictions for purposes other than

       impeachment.” (Appellant’s Br. p. 8). Nevertheless, Indiana case law has

       consistently held that the applicability of Evid. R. 609 “is expressly limited to

       those circumstances where the evidence of the prior conviction is being offered

       [f]or the purpose of attacking the credibility of a witness.” See, e.g., Britt v. State,

       937 N.E.2d 914, 917 (Ind. Ct. App. 2010).


[13]   Moreover, building upon his argument before the trial court, Newland argues

       that he should have been allowed to delve into the details surrounding Coburn’s

       theft conviction because such evidence falls within the exceptions of Evid. R.

       404(b). Indiana Evidence Rule 404(b) generally prohibits the admission of

       evidence of a person’s “other crimes” to prove the person’s character in order to

       show that the person acted in conformity therewith. “It may, however, be

       admissible for other purposes, such as proof of motive, intent, preparation,

       plan, knowledge, identity, or absence of mistake or accident[.]” Evid. R.

       404(b). The traditional purpose of Evid. R. 404(b) has been to protect a

       defendant from being convicted based on unrelated prior bad acts. Garland v.

       Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019                Page 6 of 8
       State, 788 N.E.2d 425, 428 (Ind. 2003). More recently, courts have begun to

       apply Rule 404(b) to evidence about the bad acts of non-parties. Id. at 429.

       Under what has come to be called “reverse 404(b),” courts have held that “a

       defendant can introduce evidence of someone else’s conduct if it tends to negate

       the defendant’s guilt.” Id.


[14]   In a footnote, Newland claims that the particulars surrounding Coburn’s theft

       conviction “would fall into the exceptions found in Evid. R. 404(b)(2), such as

       motive, plan, or identity.” (Appellant’s Br. p. 9, n.3). We are not persuaded.

       Rather, Newland’s real motivation to introduce the circumstances surrounding

       Coburn’s prior theft conviction can be gleaned from Newland’s offer to prove in

       which he established that Coburn’s 2016 conviction for theft was for theft from

       his place of employment, which was a bar. It is apparent that his strategy was

       to place before the jury the details of Coburn’s previous conviction for the sole

       purpose of creating the forbidden inference, namely, prior wrongful conduct in

       similar circumstances suggests present guilt. See Byers v. State, 709 N.E.2d 1024,

       1026-27 (Ind. 1999) (commenting that Indiana Evidence Rule 404(b) is

       designed to prevent the jury from making the “forbidden inference”).

       Accordingly, we conclude that the trial court properly prevented Newland from

       further cross-examining Coburn on his prior conviction.


                                              CONCLUSION
[15]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       by prohibiting Newland from cross-examining Coburn on the specific facts and


       Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019           Page 7 of 8
       circumstances surrounding Coburn’s prior conviction pursuant to Indiana Rule

       of Evidence 609.


[16]   Affirmed.


[17]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-95 | June 19, 2019      Page 8 of 8
