MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jun 05 2020, 10:48 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Ivan A. Arnaez Caroline G. Templeton
Arnaez Law Offices Deputy Attorney General
Evansville, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kurtis R. Hall, June 5, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2941
v. Appeal from the Gibson Circuit
Court
State of Indiana, The Honorable Jeffrey F. Meade,
Appellee-Plaintiff. Judge
Trial Court Cause No.
26C01-1810-F4-1121
Najam, Judge.
Statement of the Case
[1] Kurtis Hall appeals his convictions, following a jury trial, for unlawful
possession of a firearm by a serious violent felon, a Level 4 felony, and auto
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theft, as a Level 6 felony, and his adjudication as a habitual offender. Hall
presents six issues for our review, which we consolidate and restate as the
following four issues:
1. Whether the trial court erred when it admitted into
evidence at trial firearms that officers had found in his
house and in his truck.
2. Whether the trial court abused its discretion when it
admitted alleged hearsay evidence at trial.
3. Whether the trial court abused its discretion when it
denied his motion for a mistrial.
4. Whether the State presented sufficient evidence to prove
that he was a habitual offender.
[2] We affirm.
Facts and Procedural History
[3] On October 2, 2018, a 2002 Harley Davidson Softail motorcycle (“the
motorcycle”) owned by Larry Jenkins was stolen from Jenkins’ residence in
Evansville. Jenkins was not home at the time, but Jenkins’ neighbor Jada
McKnight saw a man loading the motorcycle onto a trailer, and she
surreptitiously photographed the scene. McKnight was able to record the
license plate number on the man’s truck. McKnight then called law
enforcement to report the apparent theft. When Jenkins returned home, he
talked to McKnight and concluded that Hall, an acquaintance, was the man
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who had stolen the motorcycle. Jenkins reported his suspicion to law
enforcement.
[4] On October 3, officers with the Indiana State Police (“ISP”) set out to execute
an arrest warrant for Hall on charges unrelated to the motorcycle theft. When a
surveillance team saw Hall “drive up the road, park his truck in the driveway,
get out of his truck, and enter the home” in Gibson County, the team notified
ISP Trooper Ross Rafferty, who was waiting nearby. Tr. Vol. 2 at 229.
Trooper Rafferty, along with other ISP officers, including members of the U.S.
Marshal’s Task Force, soon arrived at Hall’s home. The officers had reason to
believe that Hall possessed firearms. Rather than knocking on the front door to
the house, Trooper Justin Bean called out to Hall on a PA system “to alert
[him] to [their] presence,” and he instructed Hall to exit the house. Id. at 231.
After several minutes, Hall came outside, and officers arrested him.
[5] The officers then conducted a protective sweep inside Hall’s house, and they
saw two rifles in plain view in the master bedroom. In the meantime, Trooper
Rafferty and Trooper Bean looked inside the green pickup truck Hall was
driving when he arrived home that day. In plain view through a truck window,
they saw the butt of a pistol stuck between the front seats. Officers also found a
motorcycle on the property matching the description of Jenkins’ stolen
motorcycle.
[6] Officers then obtained a search warrant for Hall’s home, outbuildings, and
vehicles. When they executed that search warrant, officers found a long rifle
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and a pellet gun in the master bedroom and a loaded 9-millimeter caliber pistol
in his pickup truck. Officers also confirmed that the motorcycle parked on the
property was Jenkins’ stolen motorcycle.
[7] The State charged Hall with possession of a firearm by a serious violent felon, a
Level 4 felony, and auto theft, as a Level 6 felony. The State subsequently
charged Hall with being a habitual offender. Prior to trial, Hall filed a motion
to suppress all of the evidence officers collected pursuant to the search warrant,
which they had obtained after conducting the protective sweep of his home.
The court denied that motion following a hearing.
[8] During his jury trial, 1 Hall testified that he had purchased the motorcycle from
Jenkins on October 2, 2018, and he submitted into evidence a receipt for the
motorcycle purporting to show Jenkins’ signature. However, Jenkins testified
that he did not sell the motorcycle to Hall; Jenkins testified that Hall stole the
motorcycle. A jury subsequently found Hall guilty as charged and adjudicated
him to be a habitual offender. The trial court entered judgment of conviction
accordingly and sentenced Hall to an aggregate term of eleven and one-half
years executed. This appeal ensued.
1
The jury trial was trifurcated—the theft, possession of a firearm, and habitual offender charges were each
tried separately.
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Discussion and Decision
Issue One: Firearms
[9] Hall first contends that the trial court erred when it admitted into evidence two
firearms officers recovered from his property: one inside his truck, and the
second one inside his house. He asserts that the officers violated his rights
under the Fourth Amendment to the United States Constitution when they
looked inside his truck and saw a firearm in plain view. And he maintains that
the officers’ protective sweep of his residence and the subsequent search
pursuant to a warrant violated his rights under the Fourth Amendment. We
address each contention in turn.
[10] Our standard of review is well settled:
Admission of evidence is generally left to the discretion of the
trial court, and thus we review admissibility challenges for abuse
of that discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind.
2014). When, however, admissibility turns on questions of
constitutionality relating to the search and seizure of that
evidence, our review is de novo. Id. at 40-41.
Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017).
[11] Hall first maintains that the officers violated his rights under the Fourth
Amendment because they were “on the curtilage” of his property without a
search warrant when they saw the gun in plain view in his truck. Appellant’s
Br. at 37. Hall is correct that “[w]hen a law enforcement officer physically
intrudes on the curtilage to gather evidence, a search within the meaning of the
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Fourth Amendment has occurred.” Collins v. Virginia, 138 S. Ct. 1663, 1670
(2018). “Such conduct thus is presumptively unreasonable absent a warrant.”
Id.
[12] However, Hall ignores the fact that the officers were legally present on his
property, including the curtilage of his property, because they were executing an
arrest warrant. As this Court has observed, officers executing an arrest warrant
have “authority to actually enter the residence, [as well as] authority to walk
around the curtilage. Once properly on the curtilage, the officers could notice
things in plain view, such as through [a] partially uncovered window.”
Carpenter v. State, 974 N.E.2d 569, 573 (Ind. Ct. App. 2012), trans. denied.
Trooper Rafferty testified that he parked his vehicle “directly behind” Hall’s
truck, and Trooper Bean parked next to Trooper Rafferty. Tr. Vol. 2 at 230. In
plain view through a truck window, both Trooper Rafferty and Trooper Bean
saw a gun wedged between the front two seats. Accordingly, the trial court did
not err when it admitted that gun into evidence.
[13] Turning now to Hall’s contention that the trial court erred when it admitted
into evidence a second firearm officers found inside his house, we agree with
the State that the error, if any, in the admission of that evidence was harmless.
It is well settled that the admission of evidence obtained in violation of the
Fourth Amendment is subject to a harmless error analysis. Zanders v. State, 118
N.E.3d 736, 743 (Ind. 2019). As our Supreme Court has explained,
[f]or these errors, “an otherwise valid conviction should not be
set aside if the reviewing court may confidently say, on the whole
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record, that the constitutional error was harmless beyond a
reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681,
106 S. Ct. 1431 (1986). Put another way, the question is, “Is it
clear beyond a reasonable doubt that . . . [the] jury would have
found the defendant guilty absent the error?” Neder v. United
States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L.Ed.2d 35 (1999).
***
. . . [H]armless-error analysis involves quantitatively and
qualitatively assessing the error in the context of other evidence
presented. See [Van Arsdall,] at 684. . . . This analysis requires us
to first identify the allegedly improper evidence, then evaluate its
significance in view of all the other evidence that was properly
presented. See, e.g., United States v. Hasting, 461 U.S. 499, 510-12,
103 S. Ct. 1974, 76 L.Ed.2d 96 (1983); United States v. Watts, 453
F. App’x 309, 312-14 (4th Cir. 2011); United States v. Tenerelli, 614
F.3d 764, 769-70 (8th Cir. 2010).
Id. at 743-44.
[14] The State charged Hall with the unlawful possession of a single firearm, but the
information did not specify whether it was Hall’s possession of the firearm
officers found in his truck or in his house. And at trial, the State did not specify
which of the two firearms admitted into evidence was meant to support that
charge. We hold that, even assuming error in the admission into evidence of
the rifle found in Hall’s house, it is clear beyond a reasonable doubt that the
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jury would have found Hall guilty absent the alleged error. 2 Zanders, 118
N.E.3d at 741. The State presented testimony that Hall was alone in his green
pickup truck when he drove up to his house immediately prior to the officers’
arrival. Hall constructively possessed the gun officers saw in plain view
between the front seats of the truck. See Grim v. State, 797 N.E.2d 825, 831 (Ind.
Ct. App. 2003). Any error in the admission into evidence of the rifle officers
found inside Hall’s house was harmless.
Issue Two: Alleged Hearsay
[15] Hall next contends that the trial court abused its discretion when it permitted
Trooper Rafferty to testify that Jenkins was in the Vanderburgh County Jail at
the time Hall alleged he had bought the motorcycle from him. During a side
bar, the State revealed that Trooper Rafferty did not have first-hand knowledge
that Jenkins was in jail that day but had discovered that fact after checking an
online database. Hall objected to the evidence on hearsay grounds, but the trial
court overruled the objection and allowed the testimony. On appeal, Hall
maintains that, contrary to the State’s argument to the trial court, the evidence
2
Hall did not file a reply brief and does not, therefore, challenge the State on its harmless error argument.
Hall has waived any contention that, absent the State’s designation of a particular gun to support the charge,
there is no guarantee that the jury’s verdict was unanimous. See Scuro v. State, 849 N.E.2d 682, 687-88 (Ind.
Ct. App. 2006) (holding defendant waived contention that verdict may not have been unanimous where State
presented evidence of two drug deals in the same day but only charged him with one), trans. denied. In any
event, officers saw Hall alone in his truck shortly before they saw a gun in plain view in the truck. The rifle
officers found inside the house was in a bedroom Hall shared with his wife. We hold that any error in the
admission of the rifle was harmless beyond a reasonable doubt.
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was not admissible under the business records exception in Evidence Rule
803(6).
[16] We need not address Hall’s contention on the merits because the “improper
admission of evidence is harmless error when the erroneously admitted
evidence is merely cumulative of other evidence before the trier of fact.” Hunter
v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017), trans. denied. Whether
Jenkins was in jail on October 2, 2018, is irrelevant to the issues at trial other
than to prove that Jenkins was not home at the time Hall stole the motorcycle.
And Trooper Rafferty’s testimony that Jenkins was not home was merely
cumulative of Jenkins’ own testimony that he was not home when Hall stole his
motorcycle. Accordingly, any error in the admission of Trooper Rafferty’s
testimony on this issue was harmless. See Zanders, 118 N.E.3d at 741.
Issue Three: Mistrial
[17] Hall next contends that the trial court abused its discretion when it denied his
motion for a mistrial. During its cross-examination of Hall at trial, the State
asked Hall about prior convictions in an effort to impeach him. Specifically,
the State asked Hall whether he had “a conviction [sic] in Madison County for
burglary and theft.” Tr. Vol. 3 at 85. Hall did not object and answered in the
affirmative. The State then asked Hall whether he also had convictions for
residential burglary in Illinois and for burglary and theft in Hendricks County.
Hall did not answer but objected to both of those questions on the basis that
evidence of those convictions was inadmissible under Evidence Rule 609. Hall
requested an admonishment and moved for a mistrial.
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[18] The trial court denied the motion for mistrial but admonished the jury as
follows:
You heard prior to the break, a couple of prior convictions, okay,
allegedly of the Defendant. I’m going to admonish that you only
give weight to one, and that was one out of Madison . . . County,
okay? Anything else, I’m going to ask that you completely
disregard. Regarding the one conviction out of Madison County,
I also want to advise the jury and admonish them that you can’t
use that as any evidence that the Defendant committed what he’s
been charged with. This only goes to his credibility. Okay?
Id. at 93.
[19] “Because the trial court is best positioned to assess the circumstances of an error
and its probable impact on the jury, ‘[t]he denial of a mistrial lies within the
sound discretion of the trial court,’ and this Court reviews only for abuse of that
discretion.” Lucio v. State, 907 N.E.2d 1008, 1010 (Ind. 2009) (quoting Gill v.
State, 730 N.E.2d 709, 712 (Ind. 2000)). “The overriding concern is whether
the defendant ‘was so prejudiced that he was placed in a position of grave
peril.’” Id. (quoting Gill, 730 N.E.2d at 712)). The gravity of peril is measured
by the probable persuasive effect of the misconduct on the jury’s decision, not
on the degree of impropriety of the conduct. Coleman v. State, 750 N.E.2d 370,
374 (Ind. 2001) (internal citations omitted).
[20] Hall maintains that he was entitled to a mistrial “because the State’s harpoon
deprived Mr. Hall of a fair trial.” Appellant’s Br. at 41. He points out that his
credibility was a crucial issue at trial, and that the State’s reference to three
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convictions by its questions unfairly impeached him. However, Hall
acknowledged, without objection, his prior convictions for burglary and theft.
In that context, and given the other independent evidence that Hall was lying
about having bought the motorcycle, including Jenkins’ testimony, we cannot
say that Hall was so prejudiced by the questions that he was placed in a position
of grave peril. Moreover, it is well settled that, “where the trial court
adequately admonishes the jury, such admonishment is presumed to cure any
error that may have occurred.” Johnson v. State, 901 N.E.2d 1168, 1173 (Ind.
Ct. App. 2009). We hold that the trial court did not abuse its discretion when it
denied Hall’s motion for a mistrial.
Issue Four: Habitual Offender Adjudication
[21] Finally, Hall contends that the State presented insufficient evidence to prove
that he was a habitual offender. Upon a challenge to the sufficiency of the
evidence for a habitual offender determination, the appellate court neither
reweighs the evidence nor judges the credibility of the witnesses; rather, we
examine only the evidence most favorable to the judgment, together with all of
the reasonable and logical inferences to be drawn therefrom. Woods v. State, 939
N.E.2d 676, 677 (Ind. Ct. App. 2010), trans. denied. The habitual offender
determination will be sustained on appeal so long as there is substantial
evidence of probative value supporting the judgment. Id.
[22] A person is a habitual offender if the State proves beyond a reasonable doubt
that he has two prior, unrelated felony convictions. Ind. Code § 35-50-2-8(g)
(2019). To support a habitual offender finding, (1) the second prior unrelated
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felony must be committed after sentencing for the first prior unrelated felony
conviction; and (2) the offense for which the State seeks to have the person
sentenced as a habitual offender must be committed after sentencing for the
second prior unrelated felony conviction. I.C. § 35-50-2-8(c).
[23] Hall asserts that the State presented sufficient evidence to support two prior
unrelated felonies, but not three. In particular, he maintains that the evidence
was insufficient to prove a third prior unrelated felony in Marion County. Hall
points out that, while State’s Exhibit 26 shows his name, race, date of birth, and
driver’s license number, it does not include fingerprints or a photo, and no one
testified that he was the same Kurtis Hall who pleaded guilty to burglary, as a
Class C felony, in Marion County in 1992. Hall avers that the State had to do
more to establish that he was the same Kurtis Hall named in Exhibit 26. We
cannot agree.
[24] Again, Hall concedes that he is the same Kurtis Hall named in the documents
in State’s Exhibits 24, 25, and 27 showing that he committed two prior felonies,
one in Madison County and one in Hancock County. Exhibit 26 includes
Hall’s name, race, gender, and date of birth, and that information matches the
same identifiers listed in the documents supporting the other two felony
convictions. This Court has held that these identifiers are sufficient to prove a
defendant’s habitual offender status. See Parks v. State, 921 N.E.2d 826, 834
(Ind. Ct. App. 2010) (holding documentation listing defendant’s name and
birthdate sufficient to prove defendant was the same person who committed a
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previous felony), trans. denied. The State presented sufficient evidence to
support Hall’s adjudication as a habitual offender.
[25] Affirmed.
Kirsch, J., and Brown, J., concur.
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