Imari Butler v. State of Indiana (mem. dec.) ( 2015 )


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  •       MEMORANDUM DECISION
          Pursuant to Ind. Appellate Rule 65(D), this                         Feb 20 2015, 8:21 am
          Memorandum Decision shall not be regarded as
          precedent or cited before any court except for the
          purpose of establishing the defense of res judicata,
          collateral estoppel, or the law of the case.
    
    
    
          ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
          Patricia Caress McMath                                    Gregory F. Zoeller
          Marion County Public Defender Agency                      Attorney General of Indiana
          Indianapolis, Indiana
                                                                    Michael Gene Worden
                                                                    Deputy Attorney General
                                                                    Indianapolis, Indiana
    
    
    
    
                                                       IN THE
              COURT OF APPEALS OF INDIANA
    
          Imari Butler,                                            February 20, 2015
    
          Appellant-Defendant,                                     Court of Appeals Cause No.
                                                                   49A04-1406-CR-284
                  v.                                               Appeal from the Marion Superior
                                                                   Court.
                                                                   The Honorable Kurt M. Eisgruber,
          State of Indiana,                                        Judge.
          Appellee-Plaintiff.                                      Cause No. 49G01-0904-PC-37693
    
    
    
    
          Sullivan, Senior Judge
    
    
    
    [1]   Imari Butler appeals his adjudication as an habitual offender. We affirm.
    
    
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015    Page 1 of 9
    [2]   In 2009, Butler was charged with rape, a Class B felony;1 criminal deviate
    
          conduct, a Class B felony;2 robbery, a Class B felony;3 two counts of criminal
    
          confinement, both Class C felonies;4 sexual battery, a Class D felony;5 and theft,
    
          a Class D felony.6 In addition, Butler was charged with being an habitual
    
          offender under Indiana Code section 35-50-2-8 (2005).7 Following a jury trial,
    
          he was found guilty of rape, criminal deviate conduct, criminal confinement
    
          and sexual battery. Butler then pleaded guilty to being an habitual offender. In
    
          the aggregate, Butler was sentenced to sixty years, including a thirty-year
    
          enhancement for his habitual offender adjudication. Butler’s convictions were
    
          affirmed on appeal. See Butler v. State, 
    951 N.E.2d 641
     (Ind. Ct. App. 2011).
    
    
    [3]   In July 2012, Butler filed a petition for post-conviction relief, which he later
    
          amended in October 2013. Following a hearing on Butler’s petition in
    
          December 2013, the post-conviction court found that the trial court had failed
    
          to advise Butler of his right to a jury trial on the habitual offender phase and
    
    
    
    
          1
              Ind. Code § 35-42-4-1 (1998).
          2
              Ind. Code § 35-42-4-2 (1998).
          3
              Ind. Code § 35-42-5-1 (1984).
          4
              Ind. Code § 35-42-3-3 (2006).
          5
              Ind. Code § 35-42-4-8 (1998).
          6
              Ind. Code § 35-43-4-2 (1985).
          7
            Indiana Code section 35-50-2-8 was amended, effective July 1, 2014, to reflect the changes made to the
          designation of felonies in the criminal code. Because Butler was charged with the present offenses in 2009,
          the prior version of the statute is applicable here.
    
          Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015           Page 2 of 9
          ordered his habitual offender adjudication and corresponding sentence
    
          enhancement set aside.
    
    
    [4]   On May 5, 2014, a jury trial was held solely on Butler’s charge of being an
    
          habitual offender. The jury returned a verdict of guilty. As a result of his
    
          habitual offender adjudication, Butler was re-sentenced to a thirty-year
    
          enhancement to his sentence for his conviction of rape for an aggregate
    
          sentence of sixty years.8 Butler now appeals his adjudication as an habitual
    
          offender.
    
    
    [5]   Butler raises two issues, which we restate as:
    
                   I. Whether the trial court abused its discretion by refusing to give his
                   tendered jury instruction.
    
                   II. Whether the trial court abused its discretion by admitting certain
                   evidence.
    
    
                                                I. Jury Instruction
    [6]   Butler contends that the trial court abused its discretion by refusing his tendered
    
          jury instruction. During his re-trial on the habitual offender charge, Butler
    
          tendered to the trial court Defendant’s Proposed Instruction No. 1, which read:
    
          “Even if you find the State has proven the facts of the two prerequisite felony
    
          convictions to be true beyond a reasonable doubt, you still have the
    
    
    
    
          8
            Butler’s fifteen-year sentence for criminal deviate conduct was consecutive to his fifteen-year sentence for
          rape.
    
          Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015              Page 3 of 9
          unquestioned legal right to find the accused is not a habitual offender.”
    
          Appellant’s App. p. 157. The trial court refused this instruction.
    
    
    [7]   Instructing the jury lies solely within the discretion of the trial court, and we
    
          will reverse only upon an abuse of that discretion. Elliott v. State, 
    786 N.E.2d 799
    , 801 (Ind. Ct. App. 2003). When determining whether a trial court
    
          erroneously refused to give a tendered instruction, we consider the following:
    
          (1) whether the tendered instruction correctly states the law; (2) whether there
    
          was evidence presented at trial to support the giving of the instruction (this part
    
          of the test is not at issue in this case); and (3) whether the substance of the
    
          tendered instruction was covered by other instructions that were given. Mayes v.
    
          State, 
    744 N.E.2d 390
    , 394 (Ind. 2001).
    
    
    [8]   We turn now to the question of whether Butler’s tendered instruction is a
    
          correct statement of the law. The substance of his tendered instruction is
    
          indeed found in Seay v. State, 
    698 N.E.2d 732
     (Ind. 1998). There, our Supreme
    
          Court adopted the tenet that even where the jury finds the facts of the
    
          prerequisite prior felony convictions to be uncontroverted, the jury nevertheless
    
          has the unquestioned right to refuse to find the defendant to be an habitual
    
          offender. Id. at 734.
    
    
    [9]   With regard to the third part of the analysis, we look to the instructions given
    
          by the trial court. Here, the trial court instructed the jury with Instruction
    
          Number 2, which read: “Under the Constitution of Indiana you have the right
    
          to determine both the law and the facts. The court’s instructions are your best
    
    
          Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 4 of 9
    source in determining the law.” Appellant’s App. p. 160. The trial court also
    
    gave the jury Instruction Number 7, as follows in pertinent part: “The State
    
    may seek to have a person sentenced as a habitual offender for any felony by
    
    proving that the person has accumulated two (2) prior unrelated felony
    
    convictions. You may find the defendant to be a habitual offender only if the
    
    State has proven each of the following facts beyond a reasonable doubt . . . If
    
    the State fails to prove each of these facts beyond a reasonable doubt, you must
    
    find the defendant is not a habitual offender.” Id. at 165. We note that in
    
    Instruction Number 7, the trial court reinforced the jury’s discretion by
    
    instructing the jury that it “may” — not must —find the defendant to be a
    
    habitual offender “only if” the State proved two prior unrelated felony
    
    convictions. In addition, the trial court prohibited the jury from finding Butler
    
    to be a habitual offender, by instructing that it “must” find the defendant is not a
    
    habitual offender, if the State failed to prove the facts beyond a reasonable
    
    doubt. The trial court was “certainly not obligated to issue an invitation to the
    
    jury to disregard prior convictions in addition to informing the jury of its ability
    
    to determine the law and the facts.” See Walden v. State, 
    895 N.E.2d 1182
    , 1186
    
    (Ind. 2008). The substance of the information contained in the trial court’s
    
    instructions and Butler’s proposed instruction is the same. See id. at 1185-87
    
    (holding that, in habitual offender phase of trial, trial court’s instructions to the
    
    jury that it had right to determine law and facts of case and that it may, not
    
    must, find defendant to be habitual offender if two prior unrelated felony
    
    convictions are proved sufficiently covered substance of defendant’s tendered
    
    
    Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 5 of 9
           instruction that the jury could refuse to find that defendant was habitual
    
           offender even if evidence of prior felony convictions was uncontroverted).
    
    
    [10]   While we recognize that Butler’s argument is a request for us to adopt the
    
           reasoning of the dissent in Walden, we must decline his invitation. We are
    
           obliged to follow precedent established by the Indiana Supreme Court. Patton v.
    
           State, 
    507 N.E.2d 624
    , 626 (Ind. Ct. App. 1987), trans. denied. More
    
           particularly, a view expressed in a dissenting opinion in a Supreme Court case
    
           is not a precedent binding on this Court. New York Life Ins. Co. v. Bruner, 
    129 Ind. App. 271
    , 275, 
    153 N.E.2d 616
    , 618 (1958). We find no abuse of
    
           discretion by the trial court in refusing Butler’s Defendant’s Proposed
    
           Instruction No. 1.
    
    
                                       II. Admission of Evidence
    [11]   Next, Butler asserts that the trial court abused its discretion by admitting State’s
    
           Exhibits 104, 105, and 106 to prove his two prior unrelated felony convictions.
    
           The admissibility of evidence is within the sound discretion of the trial court,
    
           and we will not disturb the decision of the trial court absent a showing of abuse
    
           of that discretion. Gibson v. State, 
    733 N.E.2d 945
    , 951 (Ind. Ct. App. 2000).
    
           An abuse of discretion occurs when the trial court’s decision is clearly against
    
           the logic and effect of the facts and circumstances before the court. Id. Only
    
           when the error affects the substantial rights of the moving party does a claim of
    
           error in the exclusion or admission of evidence prevail on appeal. Nicholson v.
    
           State, 
    963 N.E.2d 1096
    , 1099 (Ind. 2012).
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 6 of 9
    [12]   To establish that Butler was an habitual offender, the State had to prove beyond
    
           a reasonable doubt that he had been convicted of two prior unrelated felonies.
    
           See Ind. Code § 35-50-2-8. In order to prove two prior unrelated felony
    
           convictions, the State must prove that “the second prior unrelated felony
    
           conviction was committed after sentencing for the first prior unrelated felony
    
           conviction” and “the offense for which the state seeks to have the person
    
           sentenced as a habitual offender was committed after sentencing for the second
    
           prior unrelated felony conviction.” Ind. Code § 35-50-2-8(c).
    
    
    [13]   At trial, the State introduced Exhibits 104, 105, and 106 to prove Butler’s two
    
           prior unrelated felony convictions. Butler objected to these exhibits, and the
    
           trial court admitted them over his objection. Butler’s objection to Exhibit 104,
    
           the officer’s arrest report, and Exhibit 105, the charging information, was that
    
           the documents were prejudicial because they contained charges that did not
    
           result in convictions. Butler’s objection to Exhibit 106, the abstract of
    
           judgment, was that the document contained an additional misdemeanor
    
           conviction.
    
    
    [14]   If, during a trial on an habitual offender charge, the State introduces evidence
    
           that the defendant has been convicted of more than two prior unrelated felonies
    
           and non-felonies, the introduction of such additional felonies and non-felonies
    
           is mere surplusage and therefore harmless. Kyles v. State, 
    888 N.E.2d 809
    , 814
    
           (Ind. Ct. App. 2008) (citing Wilson v. State, 
    511 N.E.2d 1014
    , 1017 (Ind. 1987)
    
           and Golden v. State, 
    485 N.E.2d 51
    , 56 (Ind. 1985)). Thus, the trial court did not
    
           abuse its discretion in admitting Exhibit 106 containing an additional
    
           Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 7 of 9
           misdemeanor conviction. However, with regard to Exhibits 104 and 105,
    
           Butler argues that additional charges not reduced to convictions are prejudicial
    
           in that the jury would be “much more likely to find him to be a habitual
    
           offender if it knew he had been charged with committing other offenses.”
    
           Appellant’s Br. p. 8. In light of the holding in Kyles, we fail to see how the
    
           inclusion of extraneous charges not resulting in convictions would prejudice the
    
           jury’s otherwise appropriate decision.
    
    
    [15]   Further, we note that the trial court gave the jury limiting instructions. “[Y]our
    
           decision is to be based on what the convictions are as opposed to the charges, so
    
           your consideration is the convictions. This paperwork will contain other
    
           charges that were alleged, but that doesn’t matter. It matters what he was
    
           convicted of only. You’re not to consider that extraneous --- those extraneous
    
           charges for any purpose. It only matters what he was convicted of.” Tr. pp. 48-
    
           49. Upon admitting Exhibit 105, the trial court admonished the jury as follows:
    
           “So State’s Exhibit 105 includes numerous charges, some of which there was no
    
           conviction. You are not to give that any consideration, and that’s the
    
           instruction I gave you earlier, and that is true for any of the charging
    
           informations. You only take into consideration what he was convicted of.” Id.
    
           p. 68. Additionally, upon admitting Exhibit 106 over Butler’s objection, the
    
           court admonished the jury: “The same instruction applies to the jury. Take
    
           into account only felony convictions.” Id. at 69.
    
    
    [16]   When a limiting instruction is given that certain evidence may be considered
    
           only for a particular purpose, the law presumes that the jury will follow the trial
    
           Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 8 of 9
           court’s admonition. Ware v. State, 
    816 N.E.2d 1167
    , 1176 (Ind. Ct. App. 2004).
    
           Moreover, this Court presumes that a timely and accurate admonition cures
    
           any error in the admission of evidence. Whiteside v. State, 
    853 N.E.2d 1021
    ,
    
           1030 (Ind. Ct. App. 2006). Thus, any prejudice resulting from the superfluous
    
           information contained in the documents was mitigated by the court’s
    
           immediate and repetitive admonishments.
    
    
    [17]   For the reasons stated, we conclude that the trial court did not abuse its
    
           discretion by refusing Butler’s proposed instruction or in admitting into
    
           evidence Exhibits 104, 105, and 106.
    
    
    [18]   Affirmed.
    
    
    [19]   Baker, J., and Riley, J., concur.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015   Page 9 of 9