Donald Charles Freeman, Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 09/06/2017, 10:20 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Charles Freeman, Jr., September 6, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1701-CR-19
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82C01-1601-F3-240
Bailey, Judge.
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Case Summary
[1] Donald Charles Freeman, Jr., (“Freeman”) appeals his convictions, following a
jury trial, and his sentence for armed robbery, as a Level 3 felony;1 resisting law
enforcement, as a Level 6 felony;2 and resisting law enforcement, as a Class A
misdemeanor.3
[2] We affirm Freeman’s convictions, and remand for clarification of sentencing.
Issues
[3] Freeman raises three issues on appeal which we restate as follows:
I. Whether the trial court abused its discretion when it admitted
Exhibit 37, an Alcohol, Tobacco, and Firearms (“ATF”)
firearms trace summary.
II. Whether Freeman’s two convictions for resisting law
enforcement violate the prohibition against double jeopardy
under the Indiana Constitution.
III.Whether the trial court should clarify its sentencing order to
provide that all sentences in this cause run concurrently to
each other and consecutively to cause number 82C01-1301-
FB-34.
1
Ind. Code § 35-42-5-1(1) (2016).
2
I.C. § 35-44.1-3-1(b)(1)(B).
3
I.C. § 35-44.1-3-1(a)(3).
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Facts and Procedural History
[4] In January 2016, Dolton Borders (“Borders”) arranged to deliver three grams of
marijuana to an unknown buyer. Borders drove to a liquor store on Fulton
Avenue in Evansville on the evening of January 8, 2016, to meet the buyer.
[5] Also on the evening of January 8, Trenton Terrell (“Terrell”) was with his
girlfriend, Shelby Carnes (“Carnes”), driving Carnes’ Nissan Juke in Evansville.
Terrell dropped off Carnes at Dick’s Sporting Goods (“Dick’s”) and proceeded
to the South side of Evansville to meet Freeman and another individual named
Isaiah. Freeman and Isaiah got into the vehicle, and Terrell drove the three of
them back to Dick’s to pick up Carnes. At Dick’s, Carnes got into the front
passenger seat, Freeman sat behind her, Isaiah sat in the rear driver’s side seat,
and Terrell continued to drive.
[6] Terrell drove to Fulton Avenue and stopped at the liquor store. Freeman then
exited the vehicle and approached Borders, who had already arrived at the
liquor store and was waiting in his vehicle. Freeman got into Borders’ vehicle,
and Borders showed Freeman the marijuana. Freeman pulled out a scale and
weighed the marijuana. Freeman then pulled out a gun, took the marijuana,
and demanded Borders’ wallet. Borders stated that he did not have his wallet,
and Freeman stated that he wanted Borders to show him that he did not have a
wallet. As Borders rose out of his seat to comply with Freeman’s demand,
Freeman saw that Borders had a holstered handgun. Borders’ handgun was a
nine-millimeter Smith & Wesson. While pointing his own gun at Borders,
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Freeman took Borders’ gun from him and exited Borders’ vehicle. Borders then
called 9-1-1 and reported that he had been robbed.
[7] Freeman got back into Carnes’ vehicle and told Terrell, “I got it.” Tr. Vol. III
at 89. Terrell then drove on Fulton Avenue toward downtown Evansville.
Meanwhile, officers with the Evansville Police Department (“EPD”) were
dispatched to Fulton Avenue in response to Borders’ 9-1-1 call. When Terrell
turned from Fulton Avenue onto Riverside Drive, several police cars pulled up
behind him and signaled for him to stop.
[8] When Terrell stopped the vehicle, Freeman exited from the back passenger side
of the vehicle and ran. EPD K-9 Officer Douglas Bueltel commanded Freeman
to stop, but Freeman continued to run. Officer Bueltel then opened the door of
his vehicle and gave his canine, Gero, the command to apprehend Freeman.
EPD Officer Zach Elfreich observed Freeman running from the other officers,
and followed Freeman in his vehicle. Near the “Spudz-N-Stuff” at Vine and
First Streets, Officer Elfreich saw Gero catch up with Freeman and grab onto
Freeman with a bite, but Freeman tried to continue running with Gero holding
onto his leg. Officer Elfreich then got out of his vehicle and ordered Freeman
to get on the ground. When Freeman did not comply with this command,
Officer Elfreich ran after Freeman and tackled him to the ground. Officer
Elfreich told Freeman several times to put his hands behind his back, but
Freeman did not comply and instead swung around and attempted to push
Officer Elfreich off. Freeman then struck Officer Elfreich in the face, causing
injury to Officer Elfreich’s face.
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[9] The EPD found a .22 caliber handgun under the front passenger seat of Carnes’
vehicle, and the gun was plainly visible from the backseat area. The police also
found a metal fifteen-round Smith and Wesson magazine and a digital scale
lying on the ground next to the passenger’s side of Carnes’ vehicle. The police
found the nine-millimeter Smith & Wesson handgun at Vine and First Streets,
where Freeman had been apprehended, approximately two blocks east of where
the police stopped Carnes’ vehicle.
[10] The State charged Freeman with Count I, armed robbery, as a Level 3 felony;
Count II, battery against a police officer, as a Level 5 felony;4 Count III,
resisting law enforcement, as a Level 6 felony; Count IV, carrying a handgun
without a license, as a Class A misdemeanor;5 Count V, resisting law
enforcement, as a Class A misdemeanor; and Count VI, possession of
marijuana, as a Class B misdemeanor.6 Freeman’s jury trial was held on
November 9 and 10, 2016.
[11] At the trial, Borders testified that Freeman had stolen Borders’ gun on January
8, 2016. Borders described his gun as a “Smith and Wesson SD9 [with] a black
handle on it and the top part of it is silver.” Tr. Vol. III at 114. Borders then
4
I.C. § 35-42-2-1.
5
I.C. § 35-47-2-1.
6
I.C. § 35-48-4-11.
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identified State’s Exhibit 11 as a picture of his gun. Borders testified that his
guardian, Kenneth McElwee, had purchased the gun for Borders.
[12] EPD Officer Aaron Bourland, a crime scene detective, also testified. He stated
that he found the Smith and Wesson handgun at Vine and First Streets, “a
block or two” east of where the police stopped Carnes’ vehicle on January 8,
2016. Id. at 34-35. Officer Bourland photographed the gun and sealed it as
evidence. He identified State’s Exhibit 11 as the photograph he took of the
Smith and Wesson handgun where it was found, and he identified State’s
Exhibit 34, admitted without objection, as the gun itself. He identified State’s
Exhibit 12 as the photograph he took of the magazine that he found on the
ground outside of the passenger side of Carnes’ vehicle. He testified that the
magazine photographed in Exhibit 12 fit the gun in Exhibit 34.
[13] Officer Bourland also testified that he ran firearms traces through the Alcohol,
Tobacco, and Firearms (“ATF”) division of the federal government on the
Smith and Wesson handgun in Exhibit 34 and the .22 caliber gun found under
the seat of Carnes’ vehicle. He testified that the Smith and Wesson handgun
“was traced through the ATF, the Smith & Wesson 9 millimeter, it was
purchased by a Kenneth Ray, the last name is M C E L W E E, it was bought
here in Evansville in October 29, 2015.” Id. at 60. Officer Bourland testified
that State’s Exhibit 37 was the ATF summary regarding the trace of the Smith
and Wesson handgun, and Exhibit 36 was the ATF summary regarding the
trace of the .22 caliber handgun. He explained the way in which he obtained
the trace summaries on the two handguns:
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OFFICER BOURLAND: I have a login and password through
the ATF, I submit the information that’s located on the firearm,
including the model, the serial number, and other identifying
marks, they then do a trace on the firearm and they send it back
to me which I then attach to RMS under the case number.
***
PROSECUTOR: And then with regard to RMS, what is RMS?
A: It is our system for record keeping where we do reports, it’s
basically where we attach and do everything that we do in terms
of documentation.
Q: Who has access to the ATF gun registration data base?
A: I, do you mean in terms of what I send off?
Q: Well, who generally has access, can I get there, can I buy a
password?
A: You cannot, we have credentials being crime scene detectives
to be able to do that.
Id. at 60-61.
[14] The State moved to admit Exhibits 36 (the ATF summary on the .22 caliber
handgun) and 37 (the ATF summary on the Smith and Wesson handgun).
Defendant did not object to the admission of Exhibit 36 (stating, “36 is fine,”
Id. at 62), but objected to the admission of Exhibit 37 on the grounds that “it
includes some information that I think isn’t relevant on this case and I would
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ask that it be redacted on that part based on this witness[’] testimony.”7 Id. The
State responded that it would redact the information to which the defendant
objected, and the defendant responded, “I have no problem with the three lines
in question being redacted.” Id. Defendant’s objection to Exhibit 37 was
sustained pending redaction.
[15] The State subsequently moved to admit a redacted version Exhibit 378 after
Borders’ testimony regarding where his guardian had purchased the Smith and
Wesson handgun. The defendant objected on the following grounds: “[T]he
foundation hasn’t been laid for anything other than the fact that this witness
purchased the gun from Rural King, the rest of the information in this report
hasn’t been authenticated, the foundation hasn’t been laid for this to come in to
evidence with this witness.” Id. at 127. The State responded that Officer
Bourland’s previous testimony had laid the foundation for the report in Exhibit
37. The trial court admitted the exhibit.
[16] The jury found Freeman guilty of counts I, III, IV, 9 and V. The jury found
Freeman not guilty of count II, and the trial court dismissed count VI upon the
7
The Defendant apparently objected to the information under the heading “Recovery Information,” which
was subsequently redacted in the admitted exhibit. State’s Exhibits 37 and 37-A.
8
Two versions of the ATF trace summary on the Smith and Wesson handgun were admitted into evidence:
an unredacted version was admitted as Exhibit 37, and a redacted version was admitted at Exhibit 37-A. For
ease of reference, we refer to Exhibit 37 throughout this opinion since the issue of redaction is not relevant to
this appeal.
9
Freeman does not appeal his conviction for count IV, carrying a handgun without a license, which related
to Freeman’s own gun.
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State’s motion. On December 2, 2016, the trial court sentenced Freeman to
nine (9) years under count I; two (2) years under count III; and one (1) year
each under counts IV and V. The trial court ordered that “[a]ll the counts are to
run concurrently” for an aggregate sentence of nine years and that the sentence
in the instant case, “l60l-F3-240, is to run consecutive to the sentence in l30l-
FB-34.” Tr. Vol. II at 11. However, the written sentencing order checks boxes
for both “concurrent” and “consecutive” for each count. Appellant’s App. Vol.
II at 118. And the abstract of judgment says, for each count: “Consecutive:
82C01-1301-FB-34[;] Concurrent: Counts.” Id. at 120.
[17] Freeman now appeals his convictions for one count of armed robbery and two
counts of resisting law enforcement and seeks clarification of his sentence.
Discussion and Decision
Admissibility of ATF Firearms Trace Summary
[18] Freeman contends that the trial court erred in admitting Exhibit 37, an ATF
firearms trace summary on the nine-millimeter Smith and Wesson handgun,
which showed that Border’s guardian purchased the handgun approximately
two months prior to the date of the crime. We review a trial court’s admission
or exclusion of evidence for an abuse of discretion, “which occurs if a trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before the court.” Speybroeck v. State, 875 N.E.2d 813, 818 (Ind.
Ct. App. 2007) (citation omitted). However, the State asserts that Freeman has
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waived an appeal of the admission of Exhibit 37 on lack-of-foundation grounds
because he failed to raise that objection below. We agree.
[19] As we have recently held,
[l]itigants may not object in general terms but must state their
objections with specificity. Espinoza v. State, 859 N.E.2d 375, 384
(Ind. Ct. App. 2006). Any grounds for objections not raised at
trial are not available on appeal, and a party may not add to or
change his grounds in the reviewing court. Treadway v. State, 924
N.E.2d 621, 631 (Ind. 2010). A claim of evidentiary error may
not be raised for the first time on appeal but rather must first be
presented at trial in order to permit consideration of the objection
and appropriate corrective action by the trial court. Stephenson v.
State, 29 N.E.3d 111, 121 (Ind. 2015).
Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied. In
Hunter, the defendant had objected at trial to the admission of recordings of a
drug buy on lack-of-foundation grounds only on the bases that there was
confusion as to the date on the exhibit and as to the confidential informant’s
mark on the exhibit. On appeal, the defendant contended the exhibit lacked a
proper foundation only because the confidential informant did not testify that
the recordings were true and accurate representations of the scene at the time of
the drug buy. However, we held that the defendant had waived the latter lack-
of-foundation claim because he had failed to object on that basis before the trial
court. Id.
[20] As in Hunter, Freeman has waived his contention that Officer Bourland’s
testimony failed to lay a proper foundation for Exhibit 37 because he failed to
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make that objection in the trial court. Rather, Freeman’s only objection to the
introduction of Exhibit 37 through Officer Bourland’s testimony was that the
exhibit contained some irrelevant information that should be redacted. And,
although Freemen objected to the introduction of the exhibit through Borders
because “the foundation hasn’t been laid for [Exhibit 37] to come in to evidence
with this witness,” Tr. Vol. III at 127 (emphasis added), that objection did not
relate in any way to the foundation laid for the exhibit by Officer Bourland’s
testimony.10 Freeman may not on appeal change the basis for his objections to
the admission of Exhibit 37. Hunter, 72 N.E.3d at 932.
[21] Waiver notwithstanding, even if we assume that the trial court erred in
admitting Exhibit 37, the error was harmless.
Generally, errors in the admission of evidence are to be
disregarded unless they affect the substantial rights of a party.
Turner [v. State], 953 N.E.2d [1039,] 1059 [(Ind. 2011)]. In
viewing the effect of the evidentiary ruling on a defendant’s
substantial rights, we look to the probable impact on the fact
finder. Id. The improper admission is harmless error 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. Moreover, “[a]ny error in the admission of evidence is not
prejudicial, and [is] therefore harmless, if the same or similar
10
In fact, Freeman had no objection to the admission, through Officer Bourland’s testimony, of Exhibit 36,
the ATF firearms trace summary of the .22 caliber handgun, for which the exact same foundational
testimony was provided by Officer Bourland. Tr. Vol. III at 60-62.
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evidence has been admitted without objection or contradiction.”
McCovens v. State, 539 N.E.2d 26, 30 (Ind. 1989).
Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).
[22] Here, the same evidence that was contained in Exhibit 37 was admitted
elsewhere at the trial without objection. Officer Bourland testified, without
objection, that the Smith and Wesson handgun with the same serial number as
the Smith and Wesson handgun found where Freeman was apprehended by
police was purchased by Kenneth McElwee two months before the robbery
occurred. Tr. Vol. III at 60. And Borders testified, without objection, that
Kenneth McElwee was his guardian and had bought the Smith and Wesson
handgun for him. Id. at 114, 129. Because the relevant evidence from Exhibit
37 was admitted without objection elsewhere, there was no prejudice to
Freeman from the admission of the exhibit.
[23] Moreover, there was substantial evidence, apart from the ATF firearms trace
summary in State’s Exhibit 37, that Freeman committed armed robbery by
stealing Borders’ Smith and Wesson handgun. In addition to both Borders’ and
Officer Bourland’s identification of the Smith and Wesson handgun, Borders
also testified that he witnessed Freeman draw a gun on him and then steal
Borders’ gun from him on the evening of January 8, 2016 by the liquor store on
Fulton Avenue. Carnes and Terrell also testified that they saw Freeman get
into Borders’ vehicle at the liquor store on Fulton Avenue at that date and time
and then get back into Carnes’ vehicle. EPD officers testified that they stopped
Carnes’ vehicle in which Freeman was a passenger and observed Freeman then
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run away from them. Officer Bourland testified that he found a .22 caliber
handgun under the passenger seat in front of where Freeman had been sitting in
Carnes’ vehicle. Officer Bourland also testified that he found the magazine that
fit Borders’ gun on the ground right outside of Carnes’ vehicle, by the door from
which Freeman had exited. And Officer Bourland testified that he found
Borders’ gun at the location where Freeman was ultimately apprehended by
police. Thus, Freeman’s conviction of armed robbery was supported by
substantial evidence of his guilt independently of Exhibit 37, making any error
in the admission of that exhibit harmless. Hoglund, 962 N.E.2d at 1238.
Double Jeopardy under the Indiana Constitution
[24] Freeman was convicted of two counts of resisting law enforcement, one for
fleeing from EPD officers after being ordered to stop, and another for fleeing
from Officer Elfreich after being ordered to stop and while inflicting bodily
injury upon him. Freeman maintains that both of these convictions cannot
stand in light of the prohibition against double jeopardy under Article 1, Section
14, of the Indiana Constitution.11 Whether convictions violate double jeopardy
is a question of law which we review de novo. E.g., Rexroat v. State, 966 N.E.2d
165, 168 (Ind. Ct. App. 2012), trans. denied.
11
Freeman does not challenge his convictions under the Fifth Amendment to the United States
Constitution.
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[25] Prohibitions against double jeopardy protect a defendant against, among other
things, multiple punishments for the same offense in a single trial. Richardson v.
State, 717 N.E.2d 32, 37 n.3 (Ind. 1999). “[T]wo or more offenses are the ‘same
offense’ in violation of Article 1, Section 14, of the Indiana Constitution, if,
with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.” Id. at 49-50
(emphases and footnote omitted).
In order to find a double jeopardy violation under the actual
evidence test, a reviewing court must conclude there is a
reasonable possibility that the evidentiary facts used by the
factfinder to establish the essential elements of an offense for
which the defendant was convicted or acquitted may also have
been used to establish all the essential elements of a second
challenged offense. Garrett v. State, 992 N.E.2d 710, 722-23 (Ind.
2013) (quoting Richardson, 717 N.E.2d at 53); Lee v. State, 892
N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey[v. State], 761
N.E.2d [831,] 833 [(Ind. 2002)]). “Application of this test
requires the court to ‘identify the essential elements of each of the
challenged crimes and to evaluate the evidence from the jury’s
perspective....’” Lee, 892 N.E.2d at 1234 (quoting Spivey, 761
N.E.2d at 832). In determining the facts used by the fact-finder,
“it is appropriate to consider the charging information, jury
instructions, [ ] arguments of counsel” and other factors that may
have guided the jury’s determination. Lee, 892 N.E.2d at 1234
(citing Spivey, 761 N.E.2d at 832 and Richardson, 717 N.E.2d at
54 n.48).
Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015) (emphasis added). Thus, under
the actual evidence test, “it is not sufficient merely to show that the same
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evidence may have been used to prove a single element of two criminal
offenses.” Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002) (quotations and
citation omitted). Rather, “in order for there to be a double jeopardy violation
under the actual-evidence test the evidentiary footprint for all the elements
required to prove one offense must be the same evidentiary footprint as that
required to prove all the elements of another offense.”12 Berg v. State, 45 N.E.3d
506, 510 (Ind. Ct. App. 2015).
[26] Within the context of multiple resisting law enforcement convictions, we have
held that “[a] defendant may be convicted of multiple counts of resisting law
enforcement when he has committed more than one of the acts enumerated
under [I.C. § 35-44.1-3-1].” Williams v. State, 755 N.E.2d 1183, 1186 (Ind. Ct.
App. 2001). Thus, we have upheld two convictions for resisting law
enforcement when one involved the defendant’s act of fleeing from officers
under Indiana Code Section 35-44.1-3-1(a), and the other involved the
defendant’s infliction of bodily injury upon an officer while resisting under
Indiana Code Section 35-44.1-3-1(b)(1)(B). Id.; see also, Arthur v. State, 824
N.E.2d 383, 386 (Ind. Ct. App. 2005) (recognizing that “resisting law
12
Thus, Freeman is incorrect when he contends, citing Alexander v. State, 768 N.E.2d 971 (Ind. Ct. App.
2002), trans. denied, that “a double jeopardy violation occurs if the evidence underlying all of the elements of
one offense is the same evidence underlying only one element of the second offense.” Appellant’s Br. at 21
(emphasis original). As we noted in Ellis v. State, Alexander is inconsistent with Supreme Court precedent on
this point. 29 N.E.3d 792, 798 n.2 (Ind. Ct. App. 2015) (citing Garrett v. State, 992 N.E.2d 710, 719 (Ind.
2013)), trans. denied.
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enforcement by fleeing is a different ‘species’ from resisting law enforcement by
force”), trans. denied.
[27] Here, the charging information for misdemeanor resisting states that Freeman
“did knowingly flee from Evansville Police Department Officers, after said
officers identified themselves by visible or audible means and visibly or audibly
ordered Donald Charles Freeman Jr. to stop.” Appellant’s Conf. App. at 18.
The charging information for felony resisting states that Freeman “did
knowingly flee from Officer Z. Elfreich, a law enforcement officer, after said
officer identified himself by visible or audible means and visibly or audibly
ordered said defendant to stop and in committing said act the defendant
inflicted bodily injury on Z. Elfreich, to wit: pain.” Id. at 17-18. Thus, the
misdemeanor conviction is based on Freeman’s flight from EPD officers and
the felony conviction is based on Freeman’s injury of Officer Elfreich while
fleeing from him. Because these two convictions involve different elements and
were proven by different evidence, they are not barred by the prohibition
against double jeopardy. Williams, 755 N.E.2d at 1186.
Clarification of Sentencing Order
[28] Finally, Freeman contends that the written sentencing order in this cause is
confusing and should be remanded to the trial court for clarification. We agree.
At Freeman’s sentencing, the trial court clearly stated that “[a]ll the counts are
to run concurrently.” Tr. Vol. II at 11. The court further stated that the
sentence in this case “is to run consecutive to the sentence in” another criminal
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case, i.e., cause number 82C01-1301-FB-34. Id. Yet, for each count in this
cause, the written sentencing order places an “X” in both the boxes entitled
“concurrent” and the boxes entitled “consecutive.”13 Appellant’s App. Vol. II at
118. And the abstract of judgment does not provide clarification; for each
count in this cause, it states as follows: “Consecutive: 82C01-1301-FB-34[;]
Concurrent: Counts.” Id. at 120.
[29] “Where we find an irregularity in the trial court’s sentencing decision, we may
remand to the trial court for a clarification or new sentencing determination.”
McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). We remand with instructions
for the trial court to clarify in its sentencing order that all of the counts in this
cause are to run concurrently to each other and consecutively to the sentence in
cause number 82C01-1301-FB-34. We also advise the trial court to correct the
statutory citation for count III.
Conclusion
[30] Freeman waived his foundation objection to Exhibit 37 by failing to raise it in
the trial court. Waiver notwithstanding, any error in the admission of Exhibit
37 was harmless. And Freeman’s two resisting law enforcement convictions do
not violate the Indiana Constitution’s prohibition against double jeopardy. We
13
We also note that the sentencing order cites the wrong statutory subsection for count III; it cites I.C. § 35-
44.1-3-1(a)(3) for the felony resisting law enforcement conviction, but the correct citation for that crime is
I.C. § 35-44.1-3-1(b)(1)(B).
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affirm Freeman’s convictions and remand for clarification that his sentence for
the counts in this cause are to run concurrently to each other and consecutively
to the sentence in cause number 82C01-1301-FB-34.
[31] Affirmed and remanded with instructions.
Riley, J., and May, J., concur.
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