MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                       Aug 08 2019, 7:10 am

regarded as precedent or cited before any                                           CLERK
                                                                                Indiana Supreme Court
court except for the purpose of establishing                                       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
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert D. Goodwin,                                       August 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-275
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Stephen R.
Appellee-Plaintiff                                       Bowers, Judge
                                                         Trial Court Cause No.
                                                         20D02-1805-F5-160



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019                           Page 1 of 10
[1]   Robert D. Goodwin appeals his conviction of Level 5 felony carrying a

      handgun without a license. 1 Goodwin argues the trial court abused its

      discretion when it admitted video evidence of him discussing an outstanding

      warrant in an unrelated matter, because the admission of that evidence violated

      Indiana Evidence Rule 404(b) and the trial court’s order in limine. We affirm.



                                Facts and Procedural History
[2]   On May 21, 2018, Officer Jared Davis and Officer Lauren Adams, who were in

      separate cars, were conducting surveillance on a known drug house. As they

      were conducting surveillance, they observed a maroon Chrysler driving away

      from the house. The vehicle presented two infractions that could justify a traffic

      stop: (1) portions of the license plate were unreadable from less than fifty feet

      during the day, because the plate was affixed beneath a dark-tinted plastic

      holder; and (2) the vehicle failed to signal its intention to turn left at least 200

      feet prior to turning. Officer Davis initiated a traffic stop.


[3]   As soon as Officer Davis turned on his emergency lights, the passenger door of

      the vehicle opened, and the passenger jumped out before the vehicle came to a

      complete stop and ran away extremely quickly. Officer Davis observed the

      fleeing passenger to be an African-American male, with dreadlocks, wearing a

      blue/white/black striped jacket. Officer Davis radioed that the passenger was




      1
          Ind. Code § 35-47-2-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 2 of 10
      fleeing from the stop, but he was staying with the driver of the car. Officer

      Davis also reported identifying information about the fleeing passenger.


[4]   Officer Adams was close to the area, so she began looking for the passenger

      who fled. She briefly lost sight of the passenger as he ran between an alley and

      a house, but she was flagged down by a frantic resident waving, pointing, and

      stating “he’s running that way.” (App. Vol. II at 15.) Officer Adams turned

      onto the next street and observed an African-American male, with dreadlocks,

      wearing a blue/white/black striped jacket, walking normally down the street.

      Officer Adams approached the individual in order to investigate and ordered

      the individual, later identified as Goodwin, to his knees and handcuffed him.


[5]   Seconds after detaining Goodwin, a witness called Dispatch stating she saw an

      African-American male, wearing a blue/white/black striped jacket, remove a

      silver handgun with black grips from his waist band. Officers located two

      handguns nearby, and one of them matched the caller’s description. The two

      handguns were seized as evidence, and officers arrested Goodwin for carrying a

      handgun without a license. A criminal history report on Goodwin revealed a

      prior felony conviction for carrying a handgun without a license.


[6]   On May 24, 2018, the State charged Goodwin with Class A misdemeanor

      carrying a handgun without a license. Due to his prior conviction of possession

      of a handgun without a license, the State filed an Information alleging

      Goodwin was subject to enhancement of his crime to a Level 5 felony. Prior to

      trial, Goodwin moved for the court to exclude:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 3 of 10
               1. Any character evidence regarding Defendant in the following
                  forms: (1) other wrongs; (2) prior bad acts; and (3) non-
                  charged conduct or criminal offenses not reduced to
                  convictions and admissible pursuant to Indiana Rules of
                  Evidence 404(b) or 609;


      (Id. at 30). After hearing arguments on the motion, the trial court granted

      Goodwin’s motion in limine.


[7]   On December 11, 2018, a jury was impaneled and trial began. During trial, the

      State moved to admit a video from Officer Adams’ body camera. Defense

      counsel objected to the entire video on relevance grounds and to a portion of

      the video on Evidence Rule 404(b) grounds because in a portion Goodwin

      referenced a warrant from an unrelated matter. Specifically, in those four

      seconds, Goodwin said, “I thought I had a warrant.” (Tr. Vol. III at 22.) The

      court overruled the relevance objection and admitted the video with the four

      seconds that reference the warrant redacted. Before the video was played for

      the jury, however, defense counsel notified the court that Goodwin insisted the

      entire video be published to the jury without redaction, which was contrary to

      counsel’s advice. After confirming Goodwin truly wanted the entire video to be

      published, the trial court played the entire video for the jury.


[8]   At the close of trial, the jury found Goodwin guilty of carrying a handgun

      without a license. Subsequently, Goodwin pled guilty to having a prior

      handgun conviction, which elevated his conviction to a Level 5 felony. The

      trial court sentenced Goodwin to an aggravated sentence of five-and-a-half

      years.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 4 of 10
                                  Discussion and Decision
[9]    The admission or exclusion of evidence rests within the sound discretion of the

       trial court, and we review for an abuse of discretion. Conley v. State, 972 N.E.2d

       864, 871 (Ind. 2012), reh’g denied. An abuse of discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances

       before it, id., and the decision will not be disturbed absent a requisite showing

       of abuse. Id.


[10]   Goodwin asserts the trial court violated Indiana Evidence Rule 404(b) and its

       own in limine order when it admitted video evidence in which Goodwin refers

       to the existence of a warrant for him in an unrelated matter. Rule 404(b)(1)

       provides: “Evidence of a crime, wrong, or other act is not admissible to prove a

       person’s character in order to show that on a particular occasion the person

       acted in accordance with the character.” Such evidence may, however, be

       admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake or lack of accident.” Evid. R. 404(b)(2).


[11]   In deciding whether to admit Rule 404(b) evidence, a trial court must: (1)

       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;

       and (2) balance the probative value of the evidence against its prejudicial effect

       pursuant to Indiana Evidence Rule 403. Freed v. State, 954 N.E.2d 526, 530

       (Ind. Ct. App. 2011). Rule 403 provides in part that “[a]lthough relevant,

       evidence may be excluded if its probative value is substantially outweighed by


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 5 of 10
       the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

       The trial court is afforded wide latitude in weighing probative value against

       prejudice under Rule 403. Freed, 954 N.E.2d at 531.


[12]   We will reverse the court’s evaluation and decision to admit or exclude

       evidence only on a showing of an abuse of discretion. Id. Even if the

       admission is an abuse of discretion, “we will not reverse if the admission of

       evidence constituted harmless error.” Micheau v. State, 893 N.E.2d 1053, 1059

       (Ind. Ct. App. 2008) (citing Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.

       1999), reh’g denied, trans. denied), trans. denied. Error is harmless if “the

       conviction is supported by substantial independent evidence of guilt as to satisfy

       the reviewing court that there is no substantial likelihood that the questioned

       evidence contributed to the conviction.” Cook v. State, 734 N.E.2d 563, 569

       (Ind. 2000), reh’g denied.


[13]   Here, the trial court initially admitted the video evidence with the four-second

       portion redacted. (Tr. Vol. III at 23.) However, Goodwin then insisted the

       entire video be played without redaction:


               Mr. Banik: Contrary to my good advice, my client is asking that
                          we play the entire video, start to finish, no redactions,
                          no nothing.
               The Court: I’m sorry?
               Mr. Banik: Contrary to my good advice, my client has directed
                          that he wants the entire video played and if not
                          during [Officer Adams’] case then we’re going to play
                          the whole thing during his. No redaction. No
                          portions.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 6 of 10
        The Court: I think we need to make a record on that outside of
                   the presence of the jury.

                                               *****

        Mr. Banik: Robert, I’ve indicated to you that I think parts of the
                   video, in particular, a part that says—well you tell the
                   officer you thought you had a warrant, ought to be
                   not played for the jury. Do you understand that? Do
                   you understand that’s what I told you.
        Mr. Goodwin: Yes.
        Mr. Banik: And you’re saying that you strongly disagree with
                   that and you want the whole video, no redactions,
                   100% start to finish to come in to the jury?
        Mr. Goodwin: Yes, cause my knowledge that I didn’t—this is a
                   surprise to me. It never was in my motion discovery
                   (sic). I haven’t seen-
        The Court: You need to speak up. I’m still having trouble
                   hearing you.
        Mr. Goodwin: I haven’t seen the video that they are talking
                   about.

                                               *****

        The Court: That’s not the question. At this point [what] we’re
                   trying to figure out Mr. Goodwin is whether the video
                   which has been identified by the State is going to be
                   played for the jury or not. Mr. Banik has objected
                   partially on grounds of relevancy. I’ve overruled that
                   objection because it goes to the question of your
                   identity. He has also objected because one of the
                   portions of that exhibit or one of the portions of that
                   video is a reference to a warrant, which is obviously a
                   reference to another charge, which would not
                   normally be admissible against you and which could
                   prejudice you in the eyes of the jury and so Mr. Banik
                   is making that objection. What you have indicated

Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 7 of 10
                          here is you want them to see the entire video even
                          though there might be a legal objection. That’s where
                          we were until you said you hadn’t seen any videos.
               Mr. Goodwin: I haven’t seen any video.
               The Court: So my question is, how do you know that you want
                          the jury to see the entire video if you’re saying you
                          have not seen it at all because frankly, I don’t make—
                          I don’t think that makes any sense.
               Mr. Goodwin: But if you just going to show partial of it, I
                          haven’t seen that either. I haven’t seen any videos of
                          it.
               The Court: Well Mr.—Mr. Banik says you have and you say that
                          you haven’t. I’m not going to resolve that issue today.
                          What I’m going to say is this, do you—are you
                          insisting that the jury see this entire video, which you
                          claim you haven’t seen? Are you asking me to make
                          that ruling in this case?
               Mr. Goodwin: Yes Your Honor.


       (Id. at 24, 25-29.)


[14]   Goodwin attempts to construe the issue on appeal as being about “hybrid

       representation,” 2 but the record clearly indicates that any error that occurred

       was invited by Goodwin himself. “The doctrine of invited error is grounded in

       estoppel and precludes a party from taking advantage of an error that he or she

       commits, invites, or which is the natural consequence of his or her own neglect

       or misconduct.” Balicki v. Balicki, 837 N.E.2d 532, 541 (Ind. Ct. App. 2005),




       2
        Hybrid representation occurs when “the duties of trial advocacy are shared by a defendant and his attorney,
       or when a defendant proceeds pro se with an attorney in an advisory capacity.” See Swinehart v. State, 376
       N.E.2d 486, 490 (Ind. 1978) (citing Bradberry v. State, 266 N.E.2d 538, 537 (Ind. 1977)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019                   Page 8 of 10
       trans. denied. The trial court initially admitted the video with the four seconds of

       Evidence Rule 404(b) evidence redacted. Goodwin himself, against the advice

       of counsel, insisted the trial court change that ruling and admit the entire video.

       We cannot conclude the trial court erred when it admitted the unredacted video

       at Goodwin’s insistence, and Goodwin cannot now allege that admission was

       error. See Dennerline v. Atterholt, 886 N.E.2d 582, 596 (Ind. Ct. App. 2008)

       (appellant invited the error when he consented to the striking of his setoff

       defense and to the exclusion of evidence regarding settlements with nonparties;

       thus, those issues were waived on appeal), reh’g denied, trans. dismissed.


[15]   Even if Goodwin had not invited the error, the admission was harmless because

       the evidence of Goodwin’s guilt was too strong for the verdict to be impacted

       by his four-second reference to the warrant. Goodwin was identified as the

       person who rapidly fled from the traffic stop, and police located him a block or

       so away from the traffic stop. (Tr. Vol. III at 19-20.) A witness positively

       identified Goodwin as the man she saw outside her house, and police found

       nearby the gun she described as being in Goodwin’s possession. (Tr. Vol. II at

       204-06, 207.) We are confident the jury would have found Goodwin possessed

       that gun even if those four seconds had been redacted from the video. See Fox,

       717 N.E.2d at 966 (defendant failed to establish harm because the trial court’s

       admission of the video tape was cumulative and not the only direct evidence of

       the events because two witnesses testified at trial).



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 9 of 10
[16]   Because Goodwin invited any error that occurred and any error was harmless

       in light of the evidence against Goodwin, we affirm.


[17]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-275 | August 8, 2019   Page 10 of 10
