MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Dec 20 2018, 7:35 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy Roberts,                                         December 20, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1210
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Christina R.
Appellee-Plaintiff.                                     Klineman, Judge
                                                        Trial Court Cause No.
                                                        49G17-1802-F6-4431



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018           Page 1 of 6
                                            Case Summary
[1]   Jeremy Roberts (“Roberts”) appeals his conviction for Invasion of Privacy, as a

      Level 6 felony.1 He presents a single issue for review: whether the trial court

      abused its discretion by admitting evidence in violation of Indiana Rule of

      Evidence 404(b). We affirm.



                             Facts and Procedural History
[2]   In December of 2017, Roberts was incarcerated in the Marion County Jail (“the

      Jail”) awaiting trial on a charge related to his conduct involving an ex-

      girlfriend, J.W. On December 5, 2017, a no-contact order was issued,

      prohibiting Roberts from contacting J.W. Thereafter, J.W. noticed that there

      were repetitive calls from the Jail to her cell phone and to her twelve-year-old

      son’s cell phone. On December 31, 2017, J.W. answered a call placed to her

      son’s cell phone and recognized Roberts’s voice. The caller stated that he didn’t

      know who he was calling. After J.W. ended the call, “less than one minute

      later,” another call from the Jail was made to that same number. (Tr. Vol. II,

      pg. 81.)


[3]   On February 6, 2018, the State charged Roberts with Invasion of Privacy,

      related to the events of December 31, 2017. At his jury trial conducted on April




      1
       Ind. Code § 35-46-1-15.1. The offense was elevated to a Level 6 felony because of a prior unrelated
      conviction for Invasion of Privacy.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018                Page 2 of 6
      19, 2018, the State introduced, over Roberts’s Trial Rule 404(b) objection, a call

      log from the Jail. The log indicated that thirty-five calls to J.W.’s cell phone

      and her son’s cell phone had been made from the Jail over a one-month period.

      The jury found Roberts guilty as charged and he was sentenced to 910 days

      imprisonment. He now appeals.



                                Discussion and Decision
[4]   At his trial, Roberts conceded that J.W. had received a call from the Jail but

      pursued a defense of mistake. In his opening statement, defense counsel argued

      that Roberts thought he was calling J.W.’s son, as opposed to J.W., and that

      “one phone call” had placed Roberts’s “liberty at stake.” (Tr. Vol. II, pgs. 69-

      70.) J.W.’s testimony and the Jail logs indicated that numerous calls had been

      placed. Roberts now argues that the admission of the Jail logs was both

      irrelevant and prejudicial evidence admitted in violation of Rule 404(b).


[5]   Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes,

      wrongs, or acts is not admissible to prove the character of a person in order to

      show action 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...” The list of permissible purposes

      is illustrative but not exhaustive. Hicks v. State, 690 N.E.2d 215, 219 (Ind.

      1997). “The well-established rationale behind Evidence Rule 404(b) is that the

      jury is precluded from making the ‘forbidden inference’ that the defendant had



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018   Page 3 of 6
      a criminal propensity and therefore engaged in the charged conduct.”

      Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).


[6]   In assessing the admissibility of 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. Vermillion v. State, 978 N.E.2d 459,

      463 (Ind. Ct. App. 2012). We review evidentiary decisions for an abuse of

      discretion and will reverse only when the decision is clearly against the logic

      and effect of the facts and circumstances before the trial court. Nicholson v.

      State, 963 N.E.2d 1096, 1099 (Ind. 2012).


[7]   At trial, the State argued that the call log evidenced a “continuing criminal act”

      rather than acts extrinsic to the charged offense, and that the call log was

      relevant to show the absence of mistake. (Tr. Vol. II., pg. 107.) In Wages v.

      State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007), trans. denied, we discussed the

      admissibility of evidence “intrinsic” to a charged offense:


              [Rule 404(b)] does not bar evidence of uncharged acts that are
              “intrinsic” to the charged offense. Lee v. State, 689 N.E.2d 435,
              439 (Ind. 1997). “Other acts are ‘intrinsic’ if they occur at the
              same time and under the same circumstances as the crimes
              charged.” Holden v. State, 815 N.E.2d 1049, 1054 (Ind. Ct. App.
              2004), trans. denied. By contrast, the paradigm of inadmissible
              evidence under Rule 404(b) is a crime committed on another day
              in another place, evidence whose only apparent purpose is to
              prove the defendant is a person who commits crimes. Howard v.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018   Page 4 of 6
              State, 761 N.E.2d 449, 452 (Ind. Ct. App. 2002), trans. denied
              (quoting Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996)).


[8]   The call log does not fit precisely into this framework. The listed calls were

      made on several different dates, some on December 31, 2017, some in close

      proximity to that date, and some more remotely. Some calls were initiated with

      a PIN number not issued to Roberts.2 Nevertheless, the call log was also

      proffered under the absence of mistake exception. Roberts urged the jury to

      believe that he had placed a single call and reached J.W. by mistake. The call

      log was relevant to contradict that impression. And, although Roberts insists he

      was unduly prejudiced by the call log admission, J.W. had already testified –

      without objection from Roberts – that she had noticed numerous calls from the

      Jail to hers and her son’s phones and she knew no one else at the Jail. Thus,

      the evidence was relevant to a purpose other than Roberts’s propensity to

      commit crime and the trial court could properly find that its probative value

      outweighed its prejudicial impact.



                                               Conclusion
[9]   Roberts did not demonstrate that the trial court abused its discretion in the

      admission of evidence.




      2
        The State presented testimony that one inmate could share his PIN number with another inmate and that
      inmates frequently did so.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018              Page 5 of 6
[10]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1210 | December 20, 2018   Page 6 of 6
