MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Sep 30 2016, 8:23 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
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
Patricia Caress McMath Attorney General of Indiana
Marion County Public Defender Agency
Ellen H. Meilaender
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.B., September 30, 2016
Appellant-Respondent, Court of Appeals Case No.
49A04-1603-JV-416
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Petitioner. Marilyn A. Moores, Judge
The Honorable
Gary Chavers, Magistrate
Trial Court Cause No.
49D09-1510-JD-1923
Kirsch, Judge.
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[1] J.B. appeals his adjudication as a delinquent child for committing acts, which, if
committed by an adult, would constitute Class A misdemeanor dangerous
possession of a firearm1 and Level 6 felony pointing a firearm.2 J.B. raises the
following restated issue on appeal: whether the juvenile court erred when it
admitted evidence of J.B.’s prior hostile encounters with the victim.
[2] We affirm.
Facts and Procedural History
[3] On October 21, 2015, Brandi Ruiz (“Ruiz”) drove her friend from Churchill
Ranch Apartments in Indianapolis, Indiana, where Ruiz lived, to the friend’s
car, which was parked across the street from the apartment complex.3 As Ruiz
was driving toward the exit of the apartment complex, she saw a white car
parked and some people standing around it, including her neighbor’s son
named D.W. Ruiz continued out of the complex and into the parking lot where
her friend’s vehicle was parked. Ruiz parked her vehicle in a parking spot next
to the friend’s car, when a white Chevy Impala pulled up behind Ruiz’s van. A
male, later determined to be J.B., was in the front passenger seat. J.B. leaned
1
See Ind. Code § 35-47-10-5(a).
2
See Ind. Code § 35-47-4-3(b).
3
We note some inconsistency in the record concerning the date of the incident. The Petition for
Delinquency, the probable cause affidavit, and the testimony of two police officers indicated the date as
October 21, 2015, but the prosecutor at trial referred to October 22 when questioning the victim, Brandi Ruiz.
J.B. refers to both dates in his appellant’s brief. See Appellant’s Br. at 5 (stating October 21 in Statement of
Facts section) and at 7 (referring to “October 22nd incident” in Argument section).
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the upper half of his body up and out of the front passenger window, sat on the
door, and while reaching over the car’s roof, pointed a firearm at Ruiz and said,
“Do you want to f*ck with me now b*tch?” Tr. at 29. Ruiz recognized J.B.
from prior encounters with him. J.B. got back into the Impala, and it drove
away, first returning to the Churchill Ranch Apartments complex, then exiting
the complex and heading toward Pendleton Pike.
[4] Ruiz drove back to her apartment and called the police. Lawrence Police
Department Officer Jeffrey Gray (“Officer Gray”) was in the area and
responded to a radio dispatch of a male pointing a firearm. He saw a white
Chevy Impala, matching the description given to dispatch, as it was coming out
of the Churchill Ranch Apartments. He pulled the car over, and the driver was
determined to be D.W. J.B. was in the front passenger seat, and another male
was in the back seat. D.W. did not have a driver’s license and was arrested.
Prior to towing the vehicle, officers searched it. When the back seat was flipped
down, the trunk was accessible, and in it, the police discovered a loaded .22
caliber revolver. Another officer brought Ruiz to the scene, and she identified
J.B. as the person who had pointed the gun at her.
[5] On October 22, the State filed a petition alleging that J.B. was a delinquent
child for committing: (1) dangerous possession of a firearm, a Class A
misdemeanor when committed by an adult; (2) pointing a firearm, a Level 6
felony when committed by an adult; (3) carrying a handgun without a license, a
Class A misdemeanor when committed by an adult; and (4) criminal trespass, a
Class A misdemeanor when committed by an adult. Appellant’s App. at 21-22.
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[6] Prior to the start of the January 13, 2015 denial hearing, the State filed a motion
to introduce evidence of other crimes, wrongs, or acts under Indiana Rule of
Evidence 404(B), specifically evidence of (1) two prior encounters between J.B.
and Ruiz, one occurring on October 6 at the apartment complex and another
occurring about a week later at a Walmart, and (2) evidence that during this
same time frame Ruiz was the victim of vandalism to her vehicle. Id. at 64.
J.B. objected to the State’s motion, asserting that, first, the State failed to
provide required advance notice of intent to use such evidence and, second, the
State’s attempt to introduce evidence of uncharged conduct was improper. Tr.
at 6-7. The State responded that the October 21 incident should not be “viewed
in a vacuum,” the juvenile court “needs to know the history between the
parties,” and the evidence of the prior incidents was relevant to J.B.’s motive.
Id. at 7. Following argument, the juvenile court granted the State’s motion as
to the October 6 incident and the Walmart incident, but prohibited any
evidence concerning the vandalism, as nothing tied J.B. to those acts. The
juvenile court offered to grant a continuance to J.B., in order to provide him
with additional time to prepare; J.B. declined a continuance and elected to
proceed with the hearing, but again noted “for the record” his objection to the
admission of the evidence. Id. at 9.
[7] At the denial hearing, Ruiz testified that she recognized J.B. from two prior
hostile encounters with him, one occurring on October 6 and another about a
week later at a nearby Walmart. Ruiz testified that, on the afternoon of
October 6, she was returning to the apartment complex in her van, with her
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then-seventeen-year-old daughter (“Daughter”) and Daughter’s child. Ruiz saw
J.B., D.W., and a female sitting on the sidewalk near where she parked. As
Ruiz and Daughter got out of the van, J.B. stood up and said, “[H]ere comes
that nasty b*tch that I can’t stand.” Id. at 19. J.B. told the female sitting with
him to “jump” Ruiz and Daughter, urging the female to “just get them.” Id. at
21. At some point, the female came up behind Ruiz and “slugged” her in the
side of her head. Id. at 22. Thereafter, the female “jumped” Daughter,
knocking her to the ground, and they “started feuding.” Id. While Daughter
was on the ground, the female “smashed [Daughter’s] head into the ground.”
Id. at 23. A maintenance worker at the complex intervened, but about that
same time, J.B. “walked over and kicked [Daughter] in the face while she was
on the ground.” Id. at 23. During the fighting, Ruiz used her cell phone to call
the Lawrence Police Department. Officers arrived, Ruiz made a report of the
incident, and an ambulance transported Daughter to the hospital.
[8] According to Ruiz, about a week later, she and Daughter were in Ruiz’s van
and were driving into a nearby Walmart parking lot, when she saw J.B. and a
female. When J.B. and the female saw Ruiz, “they started waving their arms
and calling names.” Id. at 24. Ruiz called the police, who instructed Ruiz to go
home, which she did.
[9] Ruiz described the October 21 incident, where she saw J.B. pull himself out of
an open window of the Impala and point a gun at her. Ruiz described that she
was still seated in her van, but that she saw J.B. through her window and that
he “was screaming” at her and said, “[D]o you want to f*ck with me now
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b*tch?” Id. at 29. After that, J.B. returned inside the vehicle, and it drove
away. Ruiz immediately went back to her apartment and called the police.
[10] Officer Gray testified that he responded to the dispatch call, located the Impala,
and stopped the vehicle. The driver, D.W., did not possess a driver’s license.
Officers at the scene located a loaded revolver in the trunk area, which was
accessible from the rear seat of the car. None of the three occupants possessed a
permit to carry a handgun.
[11] J.B. also testified at the denial hearing, stating that, on the day of the Walmart
encounter, Ruiz passed him in her van as he was walking with his sister, and
she circled back and “started throwing stuff at us” and making racial slurs to
him. Id. at 75. J.B. said that, later that day, a detective transported him and his
sister to a police station for questioning about the matter. With regard to the
subsequent October 21 incident, for which he was charged, J.B. testified that he
had been playing basketball with his cousin, D.W., and that as they were
leaving the complex, police pulled over their vehicle. J.B. denied having gone
into the parking lot where Ruiz said that J.B. reached out of the Impala and
pointed a gun at her, taking the position that Ruiz made up the story to get him
in trouble. J.B. acknowledged that a history of verbal exchanges existed
between Ruiz and him, stating “I mean, she started it. I ain’t going to lie. I
did, I called her names back.” Id. at 80.
[12] At the conclusion of the denial hearing, J.B. moved for a dismissal of all counts
pursuant to Indiana Trial Rule 41(B). The juvenile court entered true findings
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for Counts 1 through 3, but dismissed Count 4 (criminal trespass) pursuant to
J.B.’s motion, and the juvenile court adjudicated J.B. to be a delinquent child.
At the February 2016 dispositional hearing, the juvenile court merged Count 3
with Count 1. On the true findings for Count 1 Class A misdemeanor
dangerous possession of a firearm and Count 2 Level 6 felony pointing a
firearm, the juvenile court imposed a suspended commitment to the Indiana
Department of Correction and placed J.B. on formal probation. J.B. now
appeals.
Discussion and Decision
[13] J.B. asserts that the juvenile court erred when it admitted evidence of the two
prior hostile encounters that Ruiz had with J.B., one on October 6 and the other
approximately one week later at the Walmart parking lot. He argues that the
prejudicial impact of the evidence outweighed any probative value of the
“marginally relevant evidence.” Appellant’s Br. at 10.
[14] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for abuse of
discretion. K.F. v. State, 961 N.E.2d 501, 510-11 (Ind. Ct. App. 2012), trans.
denied. An abuse of discretion occurs where the decision is clearly against the
logic and effect of the facts and circumstances. Id. “‘Errors in the admission or
exclusion of evidence are to be disregarded as harmless error unless they affect
the substantial rights of a party.’” J.L. v. State, 5 N.E.3d 431, 436 (Ind. Ct. App.
2014) (quoting Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)).
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[15] Indiana Evidence Rule 404(b) provides in pertinent part:
Evidence 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[.]
(Emphasis added.)
[16] In assessing the admissibility of Evidence Rule 404(b) evidence, a trial 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 charged
act, and (2) balance the probative value of the evidence against its prejudicial
effect pursuant to Indiana Evidence Rule 403. Witham v. State, 49 N.E.3d 162,
166 (Ind. Ct. App. 2015). “If evidence has some purpose besides behavior in
conformity with a character trait and the balancing test is favorable, the trial
court can elect to admit the evidence.” Boone v. State, 728 N.E.2d 135, 138 (Ind.
2000).
[17] Here, over J.B.’s objection, the juvenile court granted the State’s motion to
introduce Evidence Rule 404(b) evidence, specifically the October 6 incident
and the encounter at Walmart a week later, for the purpose of showing J.B.’s
motive for his actions on October 21. Thereafter, during the denial hearing,
Ruiz testified, without objection, about the October 6 incident, where, at J.B.’s
urging, a female “jumped” Ruiz and Daughter, and police were called to the
scene. Tr. at 23. Ruiz also described the Walmart incident occurring about a
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week later, in which she encountered J.B. and a female in a Walmart parking
lot, and J.B. waved his arms and yelled at Ruiz, and Ruiz again called the
police. He argues on appeal that the prejudicial impact of the Evidence Rule
404(b) evidence outweighed its probative value, if any.
[18] The State asserts, as an initial matter, that J.B. “has waived his [] argument,
both because he is raising a different argument on appeal than he raised in the
juvenile court and because he did not raise any contemporaneous objection to
the admission of this evidence during Ruiz’s testimony.” Appellee’s Br. at 7. In
arguing waiver, the State maintains that J.B. asserted “only two, narrow
arguments” in objecting to the admission of the evidence, namely, that the State
failed to provide timely notice of its intent to use the evidence and that the
evidence would not qualify for admission because it was evidence of uncharged
conduct. Because J.B. “did not mention Rule 403 or argue the prejudicial effect
would outweigh the probative value,” the State urges that he has waived his
Evidence Rule 403 argument on appeal. Id. at 8-9. J.B. maintains that,
although J.B. did not specifically cite to Evidence Rule 403 while making his
objection and argument to the State’s use of Evidence Rule 404(b) evidence,
probative value versus prejudicial effect “is always a consideration when the
admission of evidence is challenged under Rule 404(b)” and was implicitly an
element of his argument. Reply Br. at 5. J.B. also argues that, even though he
did not object again when Ruiz testified, he did not waive his argument
concerning admissibility of the evidence because he had already made his
objection known to the trial court, and “[t]here were no ‘fresh developments’
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that might have led the court to change its decision regarding admissibility.” Id.
at 6. We cannot agree.
[19] As J.B. acknowledges,
A contemporaneous objection at the time the evidence is
introduced at trial is required to preserve the issue for appeal[.] . .
. The purpose of this rule is to allow the trial judge to consider
the issue in light of any fresh developments and also to correct
any errors. Another purpose of the contemporaneous objection
rule is to promote a fair trial by preventing a party from sitting
idly by and appearing to assent to an offer of evidence or ruling
by the court only to cry foul when the outcome goes against him.
The rule requires parties to voice objections in time so that
harmful error may be avoided or corrected and a fair and proper
verdict will be secured.
Reply Br. at 6 (citations and quotation omitted). We recognize that, in this case,
Ruiz took the stand and began her testimony about the two incidents right after
the juvenile court had ruled that it would permit the State to present such
evidence; thus, the court’s ruling and Ruiz’s testimony were close in time.
However, the fact remains that J.B. did not comply with the contemporaneous
objection requirement, and he thereby waived the issue for appeal. N.W.W. v.
State, 878 N.E.2d 506, 509 (Ind. Ct. App. 2010) (respondent waived objection
to admissibility of evidence by failing to make timely and specific objection at
denial hearing), trans. denied.
[20] Furthermore, even if J.B. had properly preserved the issue for review, we find
no error in the juvenile court’s admission of the evidence. As J.B. correctly
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observes, “Evidence of motive is always relevant to proving a crime.”
Appellant’s Br. at 9. Our Supreme Court has made clear that “‘hostility is a
paradigmatic motive for committing a crime.’” Whitham, 49 N.E.3d at 167
(quoting Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997)). Although J.B.
concedes that evidence of a defendant’s prior confrontations with a victim may
be admissible to show the parties’ relationship and existing hostility between
them, he maintains that, in this case, the “highly” prejudicial effect of the
admitted evidence outweighed “its limited probative value.” Appellant’s Br. at 9.
He also argues that whether “someone else” hit Ruiz in the head and whether
he kicked Daughter has little to no bearing “on whether he pointed a gun at
Ruiz a couple of weeks later.” Id. at 10. We disagree.
[21] The evidence of the October 6 incident was that J.B., D.W., and a female were
on a sidewalk when Ruiz pulled up and parked her van. J.B. said, “[H]ere
comes that nasty b*tch that I can’t stand.” Tr. at 19. J.B. urged the female with
him to “jump” Ruiz and Daughter, which she did, hitting Ruiz in the head and
knocking Daughter to the ground. Id. at 21. About the time that an apartment
complex worker intervened and broke up the fight, J.B. “walked over and
kicked [Daughter] in the face while she was on the ground.” Id. at 23. Police
arrived and made a report of the incident. The Walmart encounter occurred
about a week later, and Ruiz again contacted the police, who later in the day
picked up J.B. and took him to the police station for questioning. Evidence of
the October 6 incident and the Walmart encounter illustrated the antagonistic
relationship between the parties, and it revealed that, due to Ruiz’s calls to
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police, J.B. faced questioning by law enforcement. The two incidents were
probative of J.B.’s motive to follow Ruiz, point a gun at her, and rhetorically
ask, “Do you want to f*ck with me now b*tch?” Id. at 29. The evidence was
properly admitted under Evidence Rule 404(b) to show motive. See Iqbal v.
State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (“where a relationship between
parties is characterized by frequent conflict, evidence of the defendant’s prior
assaults and confrontations with the victim may be admitted to show the
relationship between the parties and motive for committing the crime.”).
Accordingly, the juvenile court did not abuse its discretion when it admitted the
evidence.
[22] Affirmed.
[23] May, J., and Crone, J., concur.
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