Adrian Anthony v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 19 2016, 6:47 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Brian Reitz Indianapolis, Indiana Deputy Attorney General Michael C. Borschel Indianapolis, Indiana Fishers, Indiana

IN THE COURT OF APPEALS OF INDIANA

Adrian Anthony, April 19, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-709 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Lisa F. Borges, Judge Trial Court Cause No. 49G04-1312-MR-77010

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-709 | April 19, 2016 Page 1 of 10 [1] Adrian Anthony (“Anthony”) was convicted after a jury trial of murder,1 a

felony, robbery2 as a Class A felony, and carrying a handgun without a license 3

as a Class A misdemeanor and was sentenced to sixty-two years. He appeals

his convictions and raises the following restated issue for our review: whether

the trial court abused its discretion when it admitted evidence that Anthony had

possessed and fired the murder weapon eight days before the present crime

because, he asserts, the evidence was inadmissible under Indiana Evidence Rule

404(b). [2] We affirm.

Facts and Procedural History [3] On November 27, 2013, Ron Gibson (“Ron”) and his brother Robbie Gibson

(“Robbie”) were working together on a duplex they were remodeling on Gray

Street in Indianapolis, Marion County, Indiana. The brothers had started work

that day at around 9:00 a.m. At some point later that day, when the brothers

were working on the porch area of the duplex, two men, later identified as

Anthony and Christopher Bell (“Bell”), walked into the front yard of the home.

They were both wearing black hooded sweatshirts. Ron had previously seen

1 See Ind. Code § 35-42-1-1(1). We note that the statutes under which Anthony was charged were amended effective July 1, 2014. However, he committed his offenses in November 2013, and we apply the statutes in effect at that time. 2 See Ind. Code § 35-42-5-1. 3 See Ind. Code § 35-47-2-1.

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Anthony walking around the neighborhood during the prior two weeks.

Anthony asked for a cigarette, and Ron replied that he did not have any

cigarettes and that he was waiting on his boss. Anthony then asked “where the

weed was at,” and Ron stated that he did not know because he did not smoke.

Tr. at 22. [4] At this point, Ron assumed that the two men would leave, but instead, they

walked onto the porch. Once on the porch, Anthony pulled out a handgun and

told the brothers that he “didn’t want no weed and he didn’t want a cigarette,

that it was a robbery.” Id. at 23. Anthony pointed the gun at Robbie and took

his wallet. Anthony handed the wallet to Bell and then told Ron to empty his

pockets. Anthony approached Ron and held the gun to the back of Ron’s neck

when Ron told him he had nothing in his pockets. Anthony checked Ron’s

pockets and found Ron’s cell phone. He demanded that Ron show him how to

unlock the phone with a special pattern. At that time, Anthony stated to Ron,

“I’m going to give you to the count of five and I’m going to shoot you,” and he

began counting down, “Five, four, three.” Id. at 30-31. [5] At the same time, a truck full of ladders and pulling a trailer turned onto Gray

Street. Anthony asked Ron if it was Ron’s boss, and he answered that it was.

As the truck approached, Ron began yelling at it for help, causing the truck to

slow down, and Anthony put the gun into his hooded sweatshirt. Bell ran

across the street, and Anthony began to pace in the middle of the porch near

Robbie. Ron also ran from the porch and across the street. As he got to the

middle of the street, he saw Robbie’s wallet on the ground. At that time, he

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heard a gunshot and heard Robbie screaming, “Ronnie, he shot me.” Id. at 32.

Ron saw Robbie fall to the ground and saw Anthony flee from the porch in the

same direction Bell had run. [6] The police arrived at the scene, and Ron gave them a description of Bell and

Anthony. Robbie was taken to the hospital, where he later died. Once police

obtained a description of the men, they set up a perimeter of two to three blocks

in every direction around the scene of the crime. Shortly thereafter, an officer

saw two men matching the suspects’ descriptions. These two men, later

identified as Bell and Anthony, saw the police vehicle and ran to a nearby

church. They tried to open the doors to the church, but the church was locked.

The officer ordered Bell and Anthony to the ground, and both turned to the

officer with their hands up. Bell complied, and the officer was able to

apprehend him; however, Anthony fled the scene. Ron was brought to the

location, and a show-up identification was conducted, in which Ron was

unable to identify Bell as one of the perpetrators. Bell was released and walked

away from the area. [7] At the scene of the robbery and shooting, police found a fired nine millimeter

cartridge casing. In their investigation, the police obtained information about

Ron’s stolen cell phone, and were able to track the phone to Terre Haute,

Indiana, where they discovered that Bell had traveled by Greyhound bus. The

police were able to get a potential address for Bell in Terre Haute, and on

November 29, 2013, they arrested him at that address. The police found Ron’s

stolen cell phone inside of the apartment where Bell had been found. While the

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police were searching for Bell in Terre Haute, they were also searching for

Anthony in Indianapolis, and on November 30, Anthony was arrested. Ron

was able to identify both Bell and Anthony after looking at a photographic

array. [8] The State charged Anthony with two counts of murder,4 Class A felony

robbery, and Class A misdemeanor carrying a handgun without a license. Prior

to the trial, the State filed a notice of intent to use 404(b) evidence, stating that it

intended to introduce evidence that, in addition to the instant crime, Anthony

had also been charged with Class A felony attempted robbery resulting from

events that transpired on November 19, 2013. Appellant’s App. at 62. The State

sought to present evidence that, on that date, Anthony had fired a single shot

during an attempted robbery and that the nine millimeter cartridge casing in

that case matched the one from the present case. Id. The State was seeking to

“introduce this evidence as proof of identity of the murderer and access to the

murder weapon.” Id. [9] At the hearing on the motion, the State informed the trial court that it did not

“necessarily believe that access to the murder weapon is considered 404(b)” and

that it would “tailor the evidence . . . [it presented] to be that the witnesses

would . . . [identify Anthony] as possessing the gun on November 19” and that

the casing from that incident matched the casing recovered in the present case.

4 The State charged Anthony under two different subsections of Indiana Code section 35-42-1-1 for the same crime.

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Tr. at 564-65. Anthony objected to this evidence being introduced, but the trial

court overruled the objection and allowed the evidence to be introduced.

Anthony requested that a limiting instruction be given, and the trial court

agreed to do so. At trial, the State called two witnesses to testify about the

November 19 incident, to which Anthony objected. During final instructions,

the trial court gave the following limiting instruction:

Evidence has been introduced that the Defendant was involved in conduct other than that charged in the information. This evidence has been received solely on the issue of Defendant’s identity. This evidence should be considered by you only for that limited purpose.

Appellant’s App. at 110. At the conclusion of the trial, the jury found Anthony

guilty as charged. Due to double jeopardy concerns, the trial court entered

judgment of conviction on only one count of murder, one count of Class A

felony robbery, and Class A misdemeanor carrying a handgun without a

license. Anthony was given an aggregate sentence of sixty-two years executed,

and he now appeals.

Discussion and Decision [10] Generally, we review the trial court’s ruling on the admission of evidence for an

abuse of discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013)

(citing Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)), trans. denied. We

reverse only where the decision is clearly against the logic and effect of the facts

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and circumstances. Id. Even if the trial court’s decision was an abuse of

discretion, we will not reverse if the admission constituted harmless error. Id. [11] Anthony argues that the trial court abused its discretion when it allowed the

State to introduce prior bad act evidence in violation of Indiana Evidence Rules

403 and 404(b). He contends that the trial court erred because it did not

specifically find that the State sufficiently proved that he shot a handgun on

November 19, 2013. Specifically, Anthony asserts that the “quantity and

quality of the information from the two prior bad act witnesses [was] minimal”

and did not establish a signature crime. Appellant’s Br. at 12. He further claims

the slight probative value of this evidence was greatly outweighed by the unfair

prejudice and, therefore, should have been excluded. [12] Indiana Evidence Rule 404(b) states 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 rationale behind this

evidentiary rule is that the jury is precluded from making the “forbidden

inference” that the defendant had a criminal propensity and therefore

committed the charged conduct. Rhodes v. State, 771 N.E.2d 1246, 1251 (Ind.

Ct. App. 2002) (citing Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)),

trans. denied. To determine whether Rule 404(b) evidence is admissible, “the

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

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charged act; and (2) balance the probative value of the evidence against its

prejudicial effect pursuant to Rule 403.” Thompson v. State, 728 N.E.2d 155,

160 (Ind. 2000). This court has held that “[e]vidence that a defendant had

access to a weapon of the type used in a crime is relevant to a matter at issue

other than the defendant’s propensity to commit the charged act.” Pickens v.

State, 764 N.E.2d 295, 299 (Ind. Ct. App. 2002), trans. denied. [13] Here, the State introduced evidence that, eight days before the murder and

robbery in this case, Anthony had possession of and fired the weapon used to

shoot Robbie. This evidence that Anthony had access to the weapon used to

kill Robbie was relevant as to whether Anthony murdered Robbie and was not

merely evidence of Anthony’s propensity to commit the charges crimes. Thus,

the evidence regarding the events of November 19 was relevant to show that

Anthony had access to the weapon used in Robbie’s murder. [14] Anthony argues that the probative value of the evidence was slight, and the

danger of unfair prejudice greatly outweighed this slight probative value. We

disagree. Possession of the murder weapon eight days prior to the murder is

highly probative. The trial court attempted to limit any unfair prejudice by not

allowing any inquiry into the specific details of Anthony’s attempted robbery on

November 19. Tr. at 350-60, 571. Additionally, the trial court gave a limiting

instruction regarding the challenged evidence in the present case that sought to

limit the purpose of the evidence to prove the identity of Anthony. Appellant’s

App. at 110. We, therefore, conclude that the evidence of the events of

November 19 were relevant to prove an issue other than his propensity to

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commit the present crime and the possibility of unfair prejudice was

outweighed by the probative value of the evidence that, a mere eight days

before the murder of Robbie, Anthony had access to the weapon used to

commit the murder. [15] Anthony, however, asserts that the trial court erred in not applying the three-

step analysis in Camm v. State, 908 N.E.2d 215 (Ind. 2009). In that case, our

Supreme Court stated that, “the law governing the admissibility of specific acts

evidence for ‘other purposes’ requires a trial court to make three findings”: (1)

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; (2) that the

proponent has sufficiently proven by a preponderance of the evidence that the

person who allegedly committed the act did, in fact, commit the act; and (3)

that the probative value of the evidence outweighs its prejudicial effect pursuant

to Rule 403. Id. at 223. We conclude that the evidence was also admissible

under this three-step analysis. [16] Under the first step, Indiana courts have held that evidence of access to a

weapon of the type used in a crime is relevant to a matter at issue other than the

defendant’s propensity to commit the charged act. Pickens, 764 N.E.2d at 299.

Here, the evidence of the events of November 19, 2013 was introduced to

establish that Anthony had access to the murder weapon. As to the second

step, sufficient evidence was presented that Anthony was the person who

committed the acts of November 19. Two eye witnesses identified Anthony as

possessing and firing a weapon on November 19, and a firearms expert testified

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that the casing from the attempted robbery on November 19 was fired from the

same weapon as the casing found at the scene of Robbie’s murder. Tr. at 351-

53, 359, 368-70. Lastly, as to the third step, evidence that Anthony had

possession of the murder weapon just eight days prior to the murder was highly

probative, and the trial court took measures to limit the prejudice of this

evidence by restricting the evidence allowed regarding the November 19

incident and giving a limiting instruction. Therefore, the possibility of any

unfair prejudice was outweighed by the high probative value of the evidence.

We find that the trial court did not abuse its discretion in admitting the

evidence that Anthony possessed and fired the murder weapon eight days prior

to the murder. [17] Affirmed. [18] Mathias, J., and Brown, J., concur.

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