                                                                                  FILED
                                                                              Oct 23 2018, 8:54 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Karen M. Heard                                             Curtis T. Hill, Jr.
Vanderburgh County Public Defender’s                       Attorney General of Indiana
Office
Evansville, Indiana                                        Michael G. Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Damon L. Maffett,                                          October 23, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A04-1711-CR-2679
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff                                         Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1702-F4-867



May, Judge.




Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018                       Page 1 of 14
[1]   Damon L. Maffett appeals his conviction of and sentence for Level 4 felony

      unlawful possession of a firearm by a serious violent felon. 1 He presents two

      issues for review, which we restate as:


                 1) Whether the trial court abused its discretion when it admitted
                    three minutes of a videotaped police interview of Maffett and
                    police testimony about the presence of handgun ammunition
                    in the apartment; and


                 2) Whether Maffett’s ten-year sentence is inappropriate.


      We affirm.



                               Facts and Procedural History                                2




[2]   On February 8, 2017, Evansville Police Detective Peter DeYoung went to an

      apartment to contact Maffett for legitimate law enforcement purposes.

      Detective DeYoung requested assistance from patrolmen in this endeavor.

      When asked to come out of the apartment, Maffett would not comply.

      Maffett’s significant other, Danielle Burke, who was the registered lessee of the

      apartment, exited the apartment and confirmed Maffett was inside. Burke told

      Detective DeYoung no guns were present inside the apartment.




      1
          Ind. Code § 35-47-4-5 (2016).
      2
       We held oral argument on this matter on September 11, 2018, at Castle High School in Newburgh, Indiana.
      We thank Castle High School staff and students for their hospitality and counsel for their able presentations.

      Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018                      Page 2 of 14
[3]   When police notified Maffett that a K-9 unit was present and was going to

      enter, Maffett warned the officers that, if the K-9 unit was sent in, he would

      “blast it.” (Tr. Vol. II at 80.) After approximately an hour, Maffett surrendered

      himself. With a search warrant, the police searched the apartment and found a

      loaded Mossberg shotgun under the mattress and two types of handgun

      ammunition elsewhere in the apartment. They also found male clothing in one

      of the closets of the apartment. Burke confirmed the clothing belonged to

      Maffett.


[4]   After the State charged Maffett, Burke told Detective DeYoung she had lied

      about the absence of guns in the apartment. Burke maintained her father had

      given her the shotgun three years earlier. She also stated Maffett did not

      “actually live” at the apartment. (Ex. Vol. IV at 93.) At trial, Burke testified

      Maffett had helped her clean the shotgun.


[5]   After the crime scene investigators examined the shotgun, they determined the

      registered owner was Wesley Morgan. Morgan confirmed the shotgun

      belonged to him and gave a detailed description of the shotgun. Morgan

      testified he was unaware it was missing from his collection and he had last used

      it “probably a few months before” the police contacted him about it. (Tr. Vol.

      II at 73.)


[6]   The State charged Maffett with Level 4 felony unlawful possession of a firearm

      by a serious violent felon. Maffett filed a motion to bifurcate the enhancement




      Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 3 of 14
      based on his status as a serious violent felon from the underlying charge of

      unlawful possession of a firearm. The trial court granted the motion.


[7]   Prior to trial, Maffett filed a motion in limine objecting to the use of the video

      from an interview Detective DeYoung conducted with Maffett because it

      included references to both drug-dealing activity and possession of handgun

      ammunition. Maffett argued the references were prejudicial because they

      implicated him for prior bad acts. The State agreed that most of the interview

      was prejudicial, so it redacted all but approximately three minutes, with part of

      that segment muted.


[8]   Maffett still objected to the introduction of the three minutes of videotaped

      interview, arguing a reference to obtaining the bullets when “a MF’r come

      wanting 3,” (id. at 176), was an admission of selling “.3 grams of drugs in

      exchange for the box of 9-millimeter bullets[.]” (Id. at 41-42.) The State argued

      it had not made that connection. The trial court decided it “didn’t hear that or

      make that connection either,” (id. at 42), and it overruled Maffett’s objection to

      admission of that portion of the interview.


[9]   As the video was played, the court reporter transcribed what she heard. During

      the interview, Maffett stated he “didn’t have no gun.” (Id. at 130) (errors in

      original). When asked why he told the police he did, Maffett said, “[i]t was

      kind of one of them moments like you stay up all night (inaudible) like this, I

      was just, you know what I’m saying, I was just like popping Adderall, feel me?”

      (Id.) (errors in original). Detective DeYoung asked Maffett about the shotgun


      Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 4 of 14
       police found during the search. Detective DeYoung asked, “Is that yours?”

       (Id. at 131.) Without being made aware of the make of the shotgun, Maffett

       replied, “A Mossberg?” and then stated it was a “possibility[.]” (Id.) Detective

       DeYoung asked Maffett whether “if [he] had a gun like a shotgun, that’s just for

       protection right, you’re not, you’re not trying to shoot the police or nothing like

       that?” (Id.) To which Maffett replied, “No.” (Id.) The interview also touched

       on the presence of the handgun ammunition.


[10]   As part of its closing argument and without objection from Maffett, the State

       read from a previously undisclosed transcript of the interview, which was not

       entered into evidence. The State argued Maffett had said he obtained the

       ammunition when “a MF’r come wanting 3[.]” (Id. at 176.) The State did not,

       however, provide any explanation for what that statement meant.


[11]   The jury found Maffett guilty of possession of a firearm. Maffett then admitted

       the serious violent felon enhancement in the charging information, and the

       court entered his conviction. After hearing evidence, the court found mitigators

       in Maffett’s admission to being a serious violent felon and the fact Maffett has

       five children, but it found Maffett’s criminal history to be an aggravator. The

       trial court sentenced Maffett to ten years and recommended Maffett be

       provided drug counseling.




       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 5 of 14
                                  Discussion and Decision
                                        Admission of Evidence
[12]   Maffett argues the trial court erred when it admitted three minutes of a tape-

       recorded interview and police testimony about the presence of handgun

       ammunition in the apartment. We review evidentiary rulings for an abuse of

       discretion. Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans.

       denied. An abuse of discretion occurs if the trial court misinterpreted the law or

       if its decision was clearly against the logic and effect of the facts and

       circumstances before it. Id.


                                              Videotaped Interview

[13]   Maffett argues the admission of the three minutes of videotaped interview

       violated Evidence Rule 404. Evidence Rule 404(a) prohibits using evidence of a

       defendant’s “character or character trait . . . to prove that on a particular

       occasion the person acted in accordance with that character or trait.” This rule

       is meant to deter a jury from pursuing a path of reasoning that leads to “the

       forbidden inference,” which is that a defendant is guilty of the alleged crime

       because the defendant possesses a bad character trait. Herrera v. State, 710

       N.E.2d 931, 935 (Ind. Ct. App. 1999). Evidence Rule 404(b) prohibits the use

       of a defendant’s “crime, wrong, or other act . . . to prove a person’s character in

       order to show that on a particular occasion the defendant acted in accordance

       with that character.” An analysis under Evidence Rule 404(b) “necessarily




       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 6 of 14
       incorporates the relevancy test of Rule 401 and the balancing test of Rule 403.”

       Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999).


[14]   Maffett argues the trial court erred when it permitted admission of the video

       recording because it impugned his character with an inference of prior bad acts.

       In particular, Maffett points to two statements:


               1.       Detective DeYoung’s statement to Maffett that, “so if you
                        got a gun, like a shotgun, it’s for protection, you’re not
                        trying to shoot the police or nothing like that, if it’s like
                        you said, someone rolls up three deep because of what you
                        do, that you own a shotgun to protect yourself.” (Tr. Vol.
                        II p. 176 line 2-6).


               2.       Maffett’s statement to Detective DeYoung that “I got a
                        whole box of 9’s because a MF’r come wanting a 3, I said
                        cool give me the shells.” (Tr. Vol. II p. 176 line 12-13).


       (Appellant’s Br. at 12-13.)


[15]   The State admits the video may create an inference Maffett was engaged in

       activities for which a gun was required for protection, but it argues a “mere

       inference” of bad acts does not implicate Evidence Rule 404(b). See Dixson v.

       State, 865 N.E.2d 704, 712 (Ind. Ct. App. 2007) (holding a “mere inference of

       prior bad conduct” does not implicate Evidence Rule 404(b)), trans. denied. We

       agree with the State and the trial court. The language about which Maffett

       complains is so vague that we cannot say it demonstrates a bad act that could

       be prejudicial.



       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 7 of 14
[16]   Nevertheless, the State argues, if error was present, it was harmless as other

       evidence supported Maffett’s conviction. “[E]rrors in the admission of evidence

       are to be disregarded unless they affect the substantial rights of a party.”

       Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012), reh’g denied. Accordingly,

       error is harmless “if the conviction is supported by substantial independent

       evidence of guilt satisfying the reviewing court there is no substantial likelihood

       the challenged evidence contributed to the conviction.” Id.


[17]   To convict Maffett, the State needed to prove he possessed the shotgun found in

       the apartment. As Maffett was not seen in possession of the shotgun, the State

       needed to prove constructive possession. Constructive possession occurs when

       someone has “the intent and capability to maintain dominion and control over

       the item.” Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999).


[18]   The State produced substantial independent evidence Maffett constructively

       possessed the shotgun. Maffett was inside the apartment where the shotgun

       was found. Burke initially admitted that Maffett lived with her at the apartment

       and that Maffett had helped her clean the shotgun. Maffett threatened to

       “blast” the K-9 unit. (Tr. Vol. II at 80.) During his interview, when Detective

       DeYoung asked Maffett about a shotgun in the apartment, Maffett asked if it

       was a Mossberg and said it was possibly his. This evidence was sufficient to

       infer Maffett was aware the shotgun was in the apartment and he had the

       capability to use the weapon. See, e.g., Massey v. State, 816 N.E.2d 979, 989-90

       (Ind. Ct. App. 2004) (evidence of defendant living in the house and admitting

       knowledge of the gun was sufficient to prove constructive possession). In light

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 8 of 14
       of the evidence in the record, the admission of a nearly incomprehensible video

       interview was harmless. 3 See McCorker v. State, 797 N.E.2d 257, 267 (Ind. 2003)

       (substantial cumulative evidence independent of the evidence at issue renders

       the court’s admission of such evidence harmless).


                                          Testimony about Ammunition

[19]   Maffett next argues the trial court abused its discretion by admitting testimony

       about ammunition found in the apartment because the testimony was not

       relevant and was more prejudicial than probative. Evidence Rule 401 states

       evidence is relevant if “(a) it has a tendency to make a fact more or less

       probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” Evidence Rule 403 provides a court

       “may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,




       3
         Additionally, Maffett argues that, even if admission of the tape recording itself was not prejudicial, the trial
       court had allowed it in partially based on the fact that much of it was inaudible or unclear. However, during
       closing, the State produced a transcript of the interview and read it to the jury. Maffett did not object to the
       reading of the transcript during closing argument; thus, any issue this could raise is waived for our review.
       See Tesfamariam v. Woldenhaimanot, 956 N.E.2d 118, 122 (Ind. Ct. App. 2011) (when complaining party does
       not object, the issue is waived for appellate consideration). An exception to the doctrine of waiver arises
       when errors are so blatant and serious that to ignore them would constitute a denial of fundamental due
       process, i.e., when fundamental error has occurred. Madden v. State, 656 N.E.2d 524, 526 (Ind. Ct. App.
       1995), trans. denied.
       We assume a jury follows the instructions it is given. See Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015)
       (appellate court assumes a properly instructed jury follows the instructions given), reh’g denied, cert. denied 136
       S. Ct. 901 (2016). The jury here was instructed to rely only on the evidence presented, “which may be either
       witness testimony or exhibits.” (App. Vol. II at 59.) The jury also was instructed the attorneys would make
       opening and closing arguments but those arguments were not to be considered evidence. (Id. at 44, 45.)
       Even though the closing arguments may have clarified for some jurors what was said on the tape, the
       admission remains harmless because the statements were vague and substantial independent evidence was
       presented to prove Maffett constructively possessed the shotgun.

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018                           Page 9 of 14
       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.”


[20]   Maffett alleges the evidence regarding handgun ammunition admitted during

       Detective DeYoung’s testimony was irrelevant and prejudicial because “nobody

       possesse[s] bullets without a gun.” (Tr. Vol. II at 37.) The trial court

       distinguished the testimony and video statements about ammunition from

       photographs of the ammunition, which the court excluded because the firearm

       for which the ammunition would be used was “not the subject of this case” and

       would be prejudicial. (Id. at 114.) The trial court found the testimony and

       videos showed “whether or not [Maffett] knew items in the location where the

       shotgun was found . . . [we]re relevant to show whether [Maffett] maintained

       dominion and control over that area and maintained dominion and control

       over the shotgun[.]” (Id. at 113.) Maffett argues the trial court’s statement

       differentiating the testimony and video from photos was in error as nothing in

       the testimony or video indicated the location of the ammunition in relation to

       the shotgun.


[21]   The State counters Maffett’s “possession of the ammunition tended to show

       that he had knowledge of weapons that were inside the apartment, and that he

       had the capability to maintain dominion and control over such weapons.” (Br.

       of Appellee at 15.) Therefore, the State argues, the ammunition evidence was

       relevant to the charged offense. However, the State maintains if there was any

       error, that error was harmless due to the substantial independent evidence the

       State presented.

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 10 of 14
[22]   We need not determine whether the evidence of the ammunition should have

       been admitted. “The improper admission of evidence is harmless error when

       the reviewing court is satisfied that the conviction is supported by substantial

       independent evidence of guilt so that there is no substantial likelihood that the

       challenged evidence contributed to the conviction.” Meadows v. State, 785

       N.E.2d 1112, 1121 (Ind. Ct. App. 2003), trans. denied. As noted above, the State

       presented evidence Maffett was in the apartment with the shotgun, lived in the

       apartment, cleaned the shotgun, and threatened to shoot the K-9 unit. The

       State presented substantial independent evidence sufficient to infer Maffett was

       aware of the shotgun in the apartment and was able to use it. Any prejudice

       inferred from the presence of ammunition for which there was not a gun was

       slight as neither the video nor Detective DeYoung’s statements lingered on that

       point. See Hinesley v. State, 999 N.E.2d 975, 986 (Ind. Ct. App. 2013) (if the

       evidence as a whole supports the conviction, an inconsequential reference to

       other evidence does not show prejudice), reh’g denied, trans. denied. Therefore,

       the admission of the video and testimony briefly mentioning handgun

       ammunition was harmless. See McCorker, 797 N.E.2d at 267 (substantial

       cumulative evidence independent of the evidence at issue renders the court’s

       admission of such evidence harmless).


                                        Inappropriate Sentence
[23]   Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due

       consideration of the trial court’s decision, we find the sentence inappropriate in

       light of the nature of the offense and the character of the offender. Anglemyer v.

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 11 of 14
       State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007).

       We consider not only the aggravators and mitigators found by the trial court,

       but also any other factors appearing in the record. Johnson v. State, 986 N.E.2d

       852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision, and our

       goal is to determine whether the appellant’s sentence is inappropriate, not

       whether some other sentence would be more appropriate. Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012), reh’g denied. Maffett, as the appellant, bears the

       burden of demonstrating his sentence is inappropriate. See Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[24]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

       at 494. The sentencing range for a Level 4 felony is “a fixed term of between

       two (2) and twelve (12) years, with the advisory sentence being six (6) years.”

       Ind. Code § 35-50-2-5.5 (2014). The trial court sentenced Maffett to ten years;

       thus, Maffett received a sentence above the advisory but below the maximum.


[25]   Maffett argues his offense was not egregious because he “did not threaten or

       resist law enforcement with the firearm.” (Br. of Appellant at 21.) However,

       evidence was presented Maffett threatened to “blast” the K-9 unit. (Tr. Vol. II

       at 80.) Moreover, the evidence suggested the shotgun had been stolen and

       Maffett knew that. We conclude Maffett’s sentence is not inappropriate based

       on the nature of his offense. See McBride v. State, 992 N.E.2d 912, 921 (Ind. Ct.

       App. 2013) (although defendant used unloaded guns, the fact he used them “in

       a threatening manner” supported the sentence given), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 12 of 14
[26]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of

       criminal history varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense. Id. Maffett acknowledged he has

       “several felonies[,]” (Br. of Appellant at 21), but he claims many of the

       convictions were non-violent.


[27]   Contrary to Maffett’s assertions, not only did he have six felony convictions

       and several misdemeanor convictions, but several of the convictions are for

       violent crimes. 4 Continuing to commit crimes after frequent contacts with the

       judicial system is a poor reflection on one’s character. Rutherford v. State, 866

       N.E.2d 867, 874 (Ind. Ct. App. 2007); see also Connor v. State, 58 N.E.3d 215,

       221 (Ind. Ct. App. 2016) (continued crimes indicate a failure to take full

       responsibility for one’s actions). As such, we cannot agree with Maffett that his

       sentence is inappropriate based on his character.




       4
         Maffett’s felony convictions include: Class D felony dealing in a substance represented to be a controlled
       substance, Class C felony battery committed by means of a deadly weapon or resulting in serious bodily
       injury, Class D felony battery resulting in bodily injury with a victim of less than fourteen years old, Class D
       felony domestic battery, three counts of Class D felony intimidation, and Class C felony escape.

       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018                        Page 13 of 14
                                                Conclusion
[28]   Any possible error in the admission of evidence was, at most, harmless. Maffett

       has not demonstrated his sentence is inappropriate in light of his character and

       his offense. Accordingly, we affirm.


[29]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 82A04-1711-CR-2679 | October 23, 2018   Page 14 of 14
