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.
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[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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Adrian Anthony v. State of Indiana (mem. dec.)
Combined Opinion