FILED
Apr 11 2018, 10:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dion Cannon, April 11, 2018
Appellant-Defendant, Court of Appeals Case No.
34A05-1707-CR-1544
v. Appeal from the Howard Superior
Court
State of Indiana, The Hon. William C. Menges, Judge
Trial Court Cause No.
Appellee-Plaintiff.
34D01-1511-F2-1036
Bradford, Judge.
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Case Summary
[1] In November of 2015, police visited the Kokomo home that Appellant-
Defendant Dion Cannon shared with Alexandra Linville to execute an arrest
warrant on Cannon. While one officer knocked on the door, another watching
through a window observed Cannon place something on a shelf before
answering the door. After arresting Cannon and obtaining a search warrant,
police searching the shelves found marijuana, a loaded handgun, and
approximately eighty-eight grams of heroin inside a vase. During Cannon’s
trial on several charges, Linville testified over objection that she had assisted
Cannon in dealing drugs prior to November of 2015 and that he sold heroin to
support himself. The jury found Cannon guilty of Level 3 felony possession of
a narcotic drug, Class A misdemeanor possession of marijuana, and Level 6
felony maintaining a common nuisance. The trial court sentenced Cannon to
an aggregate sentence of fifteen years of incarceration. Cannon argues that the
trial court abused its discretion in admitting Linville’s testimony regarding prior
drug-dealing activity, the trial court’s final instruction regarding the evidence of
other bad acts was ineffective, and his sentence is inappropriately harsh.
Because we conclude that any error in the admission of evidence was harmless
and that Cannon has not established that his sentence is inappropriate, we
affirm.
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Facts and Procedural History
[2] On November 18, 2015, Cannon had been in a relationship with Linville for
eight or nine years; shared a child born on December 4, 2013, with her; and
lived with her in her Kokomo home. On November 18, 2015, Cannon went to
Linville’s place of business and borrowed $1800 from her (in addition to the
$2200 he already had), money he told Linville he intended to spend on drugs.
Later that evening, Kokomo Police Department officers went to Cannon and
Linville’s home to serve an outstanding arrest warrant on Cannon.
[3] When Kokomo Police Officer Jayson Maynard knocked on the door, Cannon,
who was alone in the house at the time, yelled, “Oh s***, just a minute.” Tr.
Vol. I 56. From a window, Sergeant Gary Taylor observed Cannon take
something from a counter, conceal it in his hand, and place it somewhere in a
shelving unit near the door. When Cannon opened the door, officers detected
the odor of burnt marijuana coming from within the residence. After Cannon
was handcuffed and read his rights, Sergeant Taylor asked Cannon what he had
put on the shelf. Cannon replied that “it was marijuana, and that’s all the
illegal drugs that [I have] in the house.” Tr. Vol. I p. 57. Officers obtained a
search warrant for the house.
[4] Inside a child’s bedroom, officers found an AK-47 on a shelf in a closet.
Officers found a handgun on a high shelf in a bathroom. On the shelving unit
where Sergeant Taylor had observed Cannon place something, the police
discovered a handgun with a long “banana clip” with extra rounds. Tr. Vol. I
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p. 61. Police also found 16.23 grams of marijuana and a red vase that
contained approximately 88 grams of heroin on the shelving unit. Another
white substance, which appeared to be a possible cutting agent, was found in
the house. A digital scale was found in a kitchen cabinet.
[5] On November 20, 2015, the State charged Cannon with Level 2 felony dealing
in a narcotic drug, Level 3 felony possession of a narcotic drug, Level 5 felony
neglect of a dependent, Level 6 felony theft of a firearm, Level 6 felony
possession of marijuana, and Level 6 felony maintaining a common nuisance.
On April 21, 2017, the State amended the charging information to reduce
Cannon’s possession of marijuana charge to a Class A misdemeanor. Jury trial
was conducted on April 28, May 1, and May 2, 2017.
[6] Linville testified for the State at Cannon’s trial. Over objection, Linville
testified that she would assist Cannon in drug-dealing by “taking him
places[,]”she had driven him someplace in August of 2015 to sell heroin, and he
sold heroin and cocaine to support himself. Tr. Vol. I p. 136. The trial court
allowed the testimony as relevant to the questions of Cannon’s intent and
knowledge. Linville also testified that she had never stored illegal drugs in the
red vase and had never seen the heroin found inside the red vase before it was
shown to her at trial. Among its other final instructions, the trial court
instructed the jury that
Evidence has been introduced that the defendant was involved in
crimes, wrongful conduct or bad acts other than those charged in
the Informations. This evidence has been received solely on the
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issue of defendant’s intent or knowledge. This evidence should
be considered by you only for the limited purpose for which it
was received.
Tr. Vol. II 32–33.
[7] The jury found Cannon guilty of Level 3 felony possession of a narcotic drug,
Class A misdemeanor possession of marijuana, and Level 6 felony maintaining
a common nuisance. On June 13, 2017, the trial court sentenced Cannon to
fifteen years of incarceration for possession of a narcotic drug, one year for
possession of marijuana, and two-and-a-half years for maintaining a common
nuisance, all three sentences to be served concurrently.
Discussion and Decision
I. Evidence Concerning Other Bad Acts
[8] Cannon contends that the trial court abused its discretion in admitting
testimony from Linville regarding other bad acts by him, specifically drug-
dealing activity not charged in this case. We will only reverse a trial court’s
decision on the admissibility of evidence upon a showing of an abuse of that
discretion. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). An abuse of
discretion may occur if the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court, or if the court has
misinterpreted the law. Id. The Court of Appeals may affirm the trial court’s
ruling if it is sustainable on any legal basis in the record, even though it was not
the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182
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(Ind. Ct. App. 2005). We do not reweigh the evidence and consider the
evidence most favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d
1008, 1012 (Ind. Ct. App. 2006).
[9] Indiana Evidence Rule 404(b) provides that, in general, “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character.” We need not address the merits of Cannon’s evidentiary challenge
if we conclude that “[e]rrors in the admission of evidence are to be disregarded
as harmless unless they affect the substantial rights of the defendant.” Goudy v.
State, 689 N.E.2d 686, 694 (Ind. 1997). “The erroneous admission of evidence
is harmless error where a guilty finding is supported by substantial independent
evidence of guilt.” Bates v. State, 495 N.E.2d 176, 178 (Ind. 1986). “However,
reversal is warranted if the record as a whole reveals that the improper evidence
was likely to have had a prejudicial impact on the average juror such that it
contributed to the verdict.” Sundling v. State, 679 N.E.2d 988, 994 (Ind. Ct.
App. 1997).
[10] We conclude that the admission of evidence of other bad acts, even if the result
of an abuse of discretion,1 can only be considered harmless. Although the
heroin was not found on Cannon’s person,
1
While we conclude that we do not need to reach the question of whether the trial court abused its discretion
in admitting evidence of other bad acts by Cannon, we acknowledge the dissent’s extremely thorough and
scholarly discussion of the issue.
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[t]here is … no requirement that the accused’s actual possession
of the contraband must be shown to have existed at precisely the
same time as the law enforcement agency’s discovery of the
contraband. Put another way, conviction for possessory offenses
does not depend on the accused being “caught red-handed” in
the act by the police.
Wilburn v. State, 442 N.E.2d 1098, 1101 (Ind. 1982).
[11] Cases, like this one, where the State seeks to prove that the defendant’s
possession of the contraband occurred at a time other than its discovery are
referred to as “constructive possession” cases.
A defendant is in the constructive possession of drugs when the
State shows that the defendant has both (i) the intent to maintain
dominion and control over the drugs and (ii) the capability to
maintain dominion and control over the drugs. Lampkins v. State,
682 N.E.2d 1268, 1275 (Ind. 1997), on reh’g, 685 N.E.2d 698
(Ind. 1997). The proof of a possessory interest in the premises on
which illegal drugs are found is adequate to show the capability
to maintain dominion and control over the items in question.
Davenport v. State, 464 N.E.2d 1302, 1307 (Ind. 1984). In essence
the law infers that the party in possession of the premises is
capable of exercising dominion and control over all items on the
premises. See id.; Martin v. State, 175 Ind. App. 503, 372 N.E.2d
1194, 1197 (1978) (“[A] house or apartment used as a residence
is controlled by the person who lives in it and that person may be
found in control of any drugs discovered therein, whether he is
the owner, tenant, or merely an invitee.”). And this is so
whether possession of the premises is exclusive or not.
However, the law takes a different view when applying the intent
prong of constructive possession. When a defendant’s possession
of the premises on which drugs are found is not exclusive, then
the inference of intent to maintain dominion and control over the
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drugs “must be supported by additional circumstances pointing
to the defendant’s knowledge of the nature of the controlled
substances and their presence.” Lampkins, 682 N.E.2d at 1275.
Gee v. State, 810 N.E.2d 338, 340–41 (Ind. 2004). A non-exhaustive list of what
such additional circumstances may be includes “(1) incriminating statements
made by the defendant, (2) attempted flight or furtive gestures, (3) location of
substances like drugs in settings that suggest manufacturing, (4) proximity of the
contraband to the defendant, (5) location of the contraband within the
defendant’s plain view, and (6) the mingling of the contraband with other items
owned by the defendant.” Gee, 810 N.E.2d at 341 (citing Henderson v. State, 715
N.E.2d 833, 836 (Ind. 1999)).2 As we have noted, “[i]n each of these instances
of ‘additional circumstances’ exists the probability that the presence and
character of the contraband was noticed by the defendant. Accordingly, the
listed circumstances are not exhaustive. Other circumstances could just as
reasonably demonstrate the requisite knowledge.” Carnes v. State, 480 N.E.2d
581, 586 (Ind. Ct. App. 1985) (collecting cases that contain the “additional
circumstances” comprising the list in Gee).
[12] Cannon does not dispute that he had a possessory interest in the house he
shared with Linville, a fact sufficient to show his capability to maintain
dominion and control over the heroin. Additional circumstances also point to
2
We wish to emphasize that this list is nothing more than a collection of circumstances that have been found
sufficient to prove constructive possession in particular cases, not a test with elements to be satisfied or factors
to be weighed. In many cases, some or all of the listed circumstances will simply not be relevant.
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Cannon’s knowledge of the presence and nature of—and his intent to maintain
dominion and control of—the heroin. First and foremost is Linville’s
incriminating testimony. Linville testified that Cannon received $1800 from her
on November 18, 2015, and told her that he was planning on buying drugs with
the money. Later that day, police executed a search warrant on the house that
the couple shared and discovered a substantial amount of heroin, which
Linville testified she had never seen before. It is reasonable to infer that the
heroin was Cannon’s and that he put it in the vase. Moreover, the heroin was
found on a shelving unit very near other items that were Cannon’s, including a
handgun that Linville testified was his and marijuana that he admitted was his.
While this evidence of Cannon’s guilt would be enough by itself to render any
error harmless, there is more.
[13] The jury was specifically instructed to use evidence of Cannon’s other bad acts
only for the purposes of evaluating his intent or knowledge, which is presumed
to cure any error that might have occurred, unless Cannon can show otherwise,
which he did not do. See Hyppolite v. State, 774 N.E.2d 584, 598 (Ind. Ct. App.
2002) (“The trial court gave the jury an admonishment concerning the
situation, and that is presumed to cure any error.”), trans. denied; see also Hackney
v. State, 649 N.E.2d 690, 694 (Ind. Ct. App. 1995) (“A proper admonishment to
the jury is presumed to cure any alleged error, unless the contrary is shown.”),
trans. denied. Cannon limits his challenge to the timing of the admonition,
claiming that it was error to deliver it during final instructions. Cannon,
however, offers no supporting authority for this challenge, and our research has
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uncovered none. As for rebutting the presumption that the trial court’s
instruction cured any error, Cannon points to no indication in the record to
suggest that the jury did not follow the trial court’s instruction on this point,
and our own review has uncovered none. Cannon has failed to establish that
the trial court’s admonition failed to cure any error that might have occurred.
Given the substantial independent evidence establishing Cannon’s guilt and the
trial court’s admonition to the jury, we conclude that any error the trial court
may have made in admitting evidence of other bad acts can only be considered
harmless.
II. Appropriateness of Sentence
[14] This Court will revise a sentence authorized by statute only “if, after due
consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). The question is not whether another
sentence is more appropriate, but whether Cannon’s sentence is inappropriate.
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The “nature of the
offense” refers to a defendant’s actions in comparison with the elements of the
offense. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The “character of
the offender” refers to “general sentencing considerations and the relevant
aggravating and mitigating circumstances.” Douglas v. State, 878 N.E.2d 873,
881 (Ind. Ct. App. 2007).
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[15] Cannon has the burden of proving that his sentence is inappropriate in light of
the nature of the offense and his character. Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006). “[Deference to trial courts] should prevail unless overcome
by compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
trial court imposed an aggregate sentence of fifteen years of incarceration, with
the sentencing range for a Level 3 felony (his most serious conviction) being
three to sixteen years with nine as the advisory. See Ind. Code § 35-50-2-5(b).
[16] The nature of Cannon’s offenses justifies his fifteen-year sentence. Cannon was
convicted of heroin and marijuana possession and maintaining a common
nuisance. Cannon possessed approximately eighty-eight grams of heroin, over
three times the amount necessary to prove a Level 3 felony possession charge.
See Ind. Code § 35-48-4-6(d)(1) (providing that, to be a Level 3 felony, the
defendant must possess “at least twenty-eight (28) grams” of the narcotic drug).
Cannon also possessed over sixteen grams of marijuana. Perhaps most
disturbing, considering that Cannon shared his house with his not-yet-two-year-
old child, was the presence of no fewer than three loaded firearms, including
one that was found in the child’s bedroom. The nature of Cannon’s offenses
justifies his enhanced sentence.
[17] Cannon’s character, especially as revealed by his lengthy criminal history, also
justifies his enhanced sentence. Cannon, born in September of 1988,
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accumulated juvenile delinquency adjudications for habitual disobedience of a
parent, guardian, or custodian; theft; and battery resulting in bodily injury and
was taken into custody a total of eight times. (Appellant’s App. Vol. II 124–
26). As an adult, Cannon has prior convictions for two felonies and ten
misdemeanors, including Class D felony marijuana possession, Class D felony
operating a vehicle as a habitual traffic violator, Class A misdemeanor criminal
trespass, Class A misdemeanor possession of marijuana/hash oil/hashish,
Class A misdemeanor battery resulting in bodily injury, Class A misdemeanor
driving never having received a license, Class B misdemeanor visiting a
common nuisance, two counts of Class B misdemeanor public intoxication, two
counts of Class C misdemeanor driving never having received a license, and
Class C misdemeanor operating with blood alcohol concentration of 0.08 but
less than 0.15. Cannon has been found to be non-compliant with provisions of
community supervision on four occasions. As of sentencing in this case,
Cannon has charges pending for four more felony drug-dealing charges, set to
go to trial in June of 2017. Cannon admitted that he used marijuana and
heroin daily before his arrest on November 18, 2015. In summary, Cannon’s
history, at the very least, indicates that he has serious issues with substance
abuse that he has chosen not to address, despite his frequent contacts with the
criminal justice system and recently becoming a father. In light of the nature of
his offenses and his character, Cannon has failed to establish that his fifteen-
year sentence is inappropriately harsh.
[18] We affirm the judgment of the trial court.
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Crone, J., concurs.
Robb, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Dion Cannon, Court of Appeals Case No.
34A05-1707-CR-1544
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Robb, Judge, dissenting
[19] I respectfully dissent from the majority’s conclusion that the admission of
evidence of other bad acts “can only be considered harmless.” Slip op. at ¶ 3.
Because of the majority’s disposition of case, they did not tread into the often-
turbulent waters of Rule 404(b). However, because I conclude the evidence’s
admission was not harmless—I must.
I. Admission of Rule 404(b) Evidence
[20] At trial, Linville was asked how she helped aid, induce, or caused Cannon to
deal drugs, and she replied “[b]y taking him places.” Tr., Amended Vol. I at
136. Cannon objected to Linville’s statements, arguing that they violated
Indiana Evidence Rule 404(b). The trial court overruled Cannon’s objections
and allowed the State to present the evidence in order to prove Cannon’s intent
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and knowledge under Rule 404(b)(2). Over Cannon’s continuous objection,
Linville testified to the following:
[State]: And what was the purpose in taking him?
[Linville]: For a drug sale.
[State]: And did he conduct a drug sale at that time?
[Linville]: Correct.
[State]: Do you know what type of drug it was?
[Linville]: At what point and what time?
[State]: When you drove him to the place where the drug
sale took place, did you know what kind of drug it
was?
[Linville]: I don’t understand the question, I—
[State]: Well, what was he selling?
[Linville]: When though? I don’t understand. I don’t know
when I was charged for aiding, inducing, what sale
or when it was.
[State]: The aiding, inducing, causing charge was the one
you were arrested for at the salon?
[Linville]: Correct.
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[State]: And you’re telling me you don’t recall the date of
that event?
[Linville]: When I got arrested, yes.
[State]: No, no, no. When the actual sale took place?
[Linville]: I thought there was a few of them.
[State]: We’re talking about things that took place in 2015,
correct?
[Linville]: Right.
[State]: And did Mr. Cannon sell things, different kind [sic]
of drugs?
[Linville]: The—
[Defense Counsel]: Your Honor, I’m going to object, not only
my continuous previous objection but also
from preponderance standard which is
definitely not met at this point.
[The Court]: Overruled.
[State]: What type of drugs did he sell?
[Linville]: Heroin and cocaine.
[State]: Did you drive him to an event in August of 2015
when he sold heroin?
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[Linville]: Correct.
[State]: Did Mr. Cannon have a job?
[Linville]: No.
[State]: How did he support himself?
[Linville]: By selling drugs.
[State]: Did you go with him on drug sales?
[Linville]: Yes.
Id. at 147-48. Linville also confirmed that Cannon used the red vase on the
shelving unit, stating “[s]ometimes money or sometimes drugs were in there.”
Id. 153.
[21] Evidence Rule 404(b) states:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. . . .
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“The well established rationale behind Evidence Rule 404(b) is that the jury is
precluded from making the ‘forbidden inference’ that the defendant had a
criminal propensity and therefore engaged in the charged conduct.” Thompson
v. State, 690 N.E.2d 224, 233 (Ind. 1997). When a defendant objects to the
admission of evidence on the ground that the evidence would violate Rule
404(b), we apply the following test:
(1) The court must 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) The court must balance the probative value of the evidence
against its prejudicial effect pursuant to Rule 403.
Id.
[22] Evidence Rule 403 provides:
The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.
[23] Thus, if the “sole apparent purpose” of the evidence is to suggest the forbidden
inference—that the defendant acted in conformity with that criminal
character—the evidence is inadmissible. Pierce v. State, 29 N.E.3d 1258, 1269
(Ind. 2015). However, such evidence may be admissible for another purpose
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
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identity, absence of mistake, or lack of intent if the evidence survives Rule 403
balancing. Id.
[24] Cannon argues neither intent nor knowledge were at issue for the admission of
Linville’s testimony and that the State’s evidence created “exactly the type of
inferences 404(b) is designed to prevent.” Appellant’s Brief at 10. In response,
the State argues Linville’s testimony was admissible to prove Cannon’s intent
and knowledge because Cannon placed those subjects at issue with questions
during voir dire.
A. Intent
[25] On appeal, the State comingles its arguments regarding intent and knowledge.
However, they are two different permissible uses of Rule 404(b) evidence and
must be considered separately. I begin with intent.
[26] In Wickizer v. State, 626 N.E.2d 795 (Ind. 1993), our supreme court elaborated
on the intent exception of 404(b). There, the defendant was charged with child
molestation and, over objection, the State presented evidence of the defendant’s
prior sexual conduct with other children. Thereafter, the defendant testified
and admitted that while he did touch the victim’s penis, he did so for a non-
sexual purpose.3 During final jury instructions, the trial court admonished the
3
The charged offense included the element “with intent to arouse or to satisfy the sexual desires of either the
child or the older person.” Id. at 797 (citing Ind. Code § 35-42-4-3(d) (1981)).
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jury that evidence of the defendant’s prior sexual misconduct was “received
solely on the issue of the defendant’s depraved sexual instinct.” Id. at 800.
[27] The defendant appealed and our supreme court accepted transfer “to address
questions regarding the admissibility of prior conduct evidence under the
‘intent’ exception . . . .” Id. at 796. The court explained:
Admission of prior uncharged misconduct infers that the
defendant is of bad character and poses the danger that the jury
will convict solely upon this inference. . . . However, because the
mental state or culpability of a defendant is an element to be
proven by the prosecution in virtually every criminal case,
properly introduced evidence of intent typically is found to be
relevant and of probative value and thus admissible at trial.
Id. at 797 (citation omitted). After reviewing various judicial perspectives on
the admission of intent evidence, our supreme court concluded:
Indiana is best served by a narrow construction of the intent
exception in Evid. R. 404(b). It does not authorize the general
use of prior conduct evidence as proof of the general or specific
intent element in criminal offenses. To allow the introduction of
prior conduct evidence upon this basis would be to permit the
intent exception to routinely overcome the rule’s otherwise
emphatic prohibition against the admissibility of other crimes,
wrongs, or acts to prove the character of a person in order to
show action in conformity therewith. In this context, admission
of prior bad acts would frequently produce the “forbidden
inference” cautioned against in [Hardin v. State, 611 N.E.2d 123,
129 (Ind. 1993)].
The intent exception in Evid. R. 404(b) will be available when a
defendant goes beyond merely denying the charged culpability
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and affirmatively presents a claim of particular contrary intent.
When a defendant alleges in trial a particular contrary intent,
whether in opening statement, by cross-examination of the
State’s witnesses, or by presentation of his own case-in-chief, the
State may respond by offering evidence of prior crimes, wrongs,
or acts to the extent genuinely relevant to prove the defendant’s
intent at the time of the charged offense.
Id. at 799.
[28] Here, the State appears4 to argue that Cannon went beyond merely denying the
charged culpability and affirmatively presented a claim of particular contrary
intent because Cannon’s defense was “that he did not know about the drugs in
his house.” State’s Br. of Appellee at 15. I disagree.
[29] In support of its argument, the State claims, “This Court has allowed evidence
of prior dealing to show knowledge and intent where a defendant challenges his
knowledge of the drug,” and relies—to its own detriment—on Samaniego-
Hernandez v. State, 839 N.E.2d 798 (Ind. Ct. App. 2005), abrogated on other
grounds by Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (clarified on reh’g, 875
N.E.2d 218 (2007)). State’s Br. of Appellee at 14. There, although we held that
it was not an abuse of discretion for the trial court to admit evidence of a
controlled buy to show the defendant’s knowledge, as discussed at greater
length below, we cautioned:
4
Because the State comingles its arguments regarding intent and knowledge, at times it is difficult to discern
to which exception an argument applies. See State’s Br. of Appellee at 14-16.
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although Samaniego put both his knowledge and intent at issue,
the evidence was admissible only as a challenge to his lack of
knowledge. He did not affirmatively offer some contrary intent
with regard to the cocaine but rather merely denied any intent at
all due to his lack of knowledge in the first place. See Wickizer v.
State, 626 N.E.2d 795 (Ind. 1993) (the intent exception of Ind. R.
Evid. 404(b) is available where a defendant goes beyond merely
denying the charged culpability and affirmatively presents a
claim of particular contrary intent).
Id. at 803 n.5.
[30] Similarly, here, the State argues Cannon’s defense was simply that he did not
know about the drugs. I believe this is a mischaracterization of Cannon’s
defense but, nevertheless, even assuming that were true, claiming a lack of
knowledge is insufficient to affirmatively offer contrary intent. Therefore, I
believe Linville’s testimony was inadmissible under the intent exception of
Evidence Rule 404(b). See, e.g., Udarbe v. State, 749 N.E.2d 562, 566 (Ind. Ct.
App. 2001) (holding where defendant merely maintained his innocence and did
not present a claim of particular contrary intent, admission of prior uncharged
acts under the intent exception to Rule 404(b) was an abuse of discretion).
B. Knowledge
[31] The trial court also admitted Linville’s testimony under the knowledge
exception to Evidence Rule 404(b). Knowledge, like intent, is one of the
purposes for which evidence of other crimes, wrongs, or acts may be admitted.
Such evidence is most commonly used to rebut the possibility that the
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defendant was unaware that a criminal act was being committed. 12 Robert L.
Miller, Jr., Indiana Practice: Indiana Evidence, § 404.203 (3d ed. 2007).
1. At Issue
[32] Cannon argues—as he did with intent—that he never placed his knowledge at
issue for admission of Rule 404(b) evidence. In response, the State maintains
that Cannon placed his knowledge at issue with questions during voir dire.
[33] A threshold question is whether Indiana law requires knowledge to be placed at
issue at all. Our supreme court explained that when a defendant objects to the
admission of evidence on the ground that the evidence would violate Rule
404(b), the first step of our two-step inquiry is to “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. . . .” Thompson, 690 N.E.2d
at 233 (emphasis added).
[34] A matter is “at issue” if it is relevant to the resolution of a case. Our system of
criminal jurisprudence was built on a premise that “actus non facit reum nisi
means sit rea, meaning an act does not make one guilty unless his mind is
guilty.” U.S. v. Bates, 96 F.3d 964, 967 (7th Cir. 1996), affirmed by Bates v. U.S.,
522 U.S. 23 (1997); see also Morissette v. U.S., 342 U.S. 246, 251-52 (1952) (the
concept of crime as a “concurrence of an evil-meaning mind with an evil-doing
hand . . . took deep and early root in American soil.”). Nearly all crimes,
therefore, require “proof that the defendant not only committed a wrongful act,
but that he did so with the requisite mens rea, or culpable mental state.” Bates,
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96 F.3d at 967; see also Wickizer, 626 N.E.2d at 797 (“[T]he mental state or
culpability of a defendant is an element to be proven by the prosecution in
virtually every criminal case . . . .”). To signify the common law requirement of
mental culpability, legislatures have employed words such as “intentionally,”
“willfully,” or “purposely.” Bates, 96 F.3d at 967. These elements necessarily
require that a defendant acted at least knowingly, that is, with knowledge of his
or her actions. Thus, with the limited exception of strict liability offenses, a
defendant’s knowledge is always, at least nominally, “at issue.”
[35] In this regard, the knowledge exception is similar to the intent exception
outlined in Wickizer v. State. There, as more thoroughly discussed above, see ¶ 9,
supra, our supreme court explained that the intent exception to Rule 404(b)
should be given a narrow interpretation. 626 N.E.2d at 799. Therefore, in
order for intent to be placed at issue and for relevant Rule 404(b) evidence to be
admissible, the defendant must go “beyond merely denying the charged
culpability and affirmatively present[] a claim of particular contrary intent.” Id.
[36] Relying on Wickizer, we have previously held that—at least with respect to a
defendant’s knowledge of the wrongfulness of his actions—Rule 404(b)
evidence is only admissible when the defendant affirmatively puts his
knowledge at issue. Whitehair v. State, 654 N.E.2d 296, 302 (Ind. Ct. App.
1995). In Whitehair, the defendant was charged with receiving stolen property
by purchasing a stolen ATV. The State sought to admit evidence of stolen tires
in the defendant’s garage to show that he also knew the ATV was stolen. The
defendant argued he had not affirmatively placed his knowledge at issue and, in
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turn, the State argued that the defendant’s statement to police that he purchased
the ATV but lacked a receipt and defense counsel’s opening statement that the
defendant must be “proven guilty of knowing [sic] and intentionally retaining
the property of another person, that has been the subject of a theft[,]” was
sufficient to put the defendant’s knowledge at issue. Id. Describing the
evidence as “a close call,” we found the combination of the evidence placed the
defendant’s knowledge at issue and we concluded that the State was allowed to
use “evidence of extrinsic acts of misconduct to show that [the defendant] was
not a naïve purchaser, but rather knew that the ATV at issue had been the
subject of a theft.” Id.
[37] Next, we applied the knowledge exception more broadly in Samaniego-
Hernandez. There, as opposed to Whitehair where the issue was the defendant’s
knowledge of wrongfulness of his actions, Samaniego’s trial strategy was to
deny knowledge of the crime completely. Samaniego’s home was the subject of
a search warrant after Samaniego and his wife sold cocaine to a police
informant. During the execution of the search warrant, Samaniego was
handcuffed on the front porch and police located drugs and numerous
individuals inside the home. At trial, Samaniego explained in his opening
statement that those individuals “were in proximity or the direct location of all
of the various items that were found . . . .” 839 N.E.2d at 803. And,
throughout the trial, Samaniego “cross-examined witnesses to show that he had
nothing to do with the cocaine[,]” intentionally fostering “the impression that
he knew nothing about the cocaine[,]” which was “clearly supported by
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Samaniego’s closing argument as well as his statements to the judge during
trial.” Id.
For these reasons, we believe that evidence of the controlled buy
was not introduced solely to prove the forbidden inference of
Samaniego’s propensity to commit the charged crime. Rather,
Samaniego put his knowledge of the cocaine at issue, thereby
“opening the door” to the admissibility of evidence from the
controlled buy. That evidence was admissible to challenge the
impression that Samaniego could not have had knowledge of the
cocaine found in his home.
Id.
[38] In Baker v. State, 997 N.E.2d 67 (Ind. Ct. App. 2013), we again broadly applied
the knowledge exception. Baker was charged with the theft of approximately
forty-five gallons of gasoline and presented an alibi defense. At trial, a State’s
witness testified that he and Baker had stolen gas “[l]ike two or three (2-3)
times.” Id. at 71. The State argued that it was “entitled to refute [Baker’s alibi
defense] by introducing evidence of prior offenses of the same nature to show
[Baker’s] knowledge, identity, and intent.” Id. Concluding the evidence was
not admissible under the knowledge exception to Rule 404(b), we explained:
Nothing in the record indicates that Baker put his knowledge in
issue. Baker did not claim that he believed that he was entitled to
take the gasoline. Rather, he claimed that he was not involved in
the alleged theft of the gasoline.
Id.
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[39] Federal Rule of Evidence 404(b) also requires a defendant to “meaningfully
dispute” the non-propensity issue in order to justify the admission of Rule
404(b) evidence—including knowledge. U.S. v. Miller, 673 F.3d 688, 697 (7th
Cir. 2012). In Miller, similar to the facts presented here, the defendant was on
trial for possession with intent to distribute. The police found a large quantity
of drugs packaged into smaller bags with price tags attached and, perhaps
unsurprisingly, the defendant did not dispute his intent. Rather, the defendant
argued the drugs belonged to his girlfriend. The court explained:
The government argues that [the defendant’s] prior conviction is
relevant to prove intent here, but has not satisfactorily explained
why this is true. Miller’s defense, that the drugs were not his, has
nothing to do with whether he intended to distribute them. He
did not argue that he intended to consume rather than sell the
drugs, or that he lacked knowledge of cocaine or how to sell it.
Either argument would have better joined a genuine issue of
intent or knowledge. Rather, the only conceivable link between
the defense and intent here would also be true of almost any
defense [the defendant] might raise; by pleading not guilty, [the
defendant] necessarily contradicted the government’s belief that
he intended to distribute the drugs.
Id. at 698.
[40] This court has previously cautioned that, “We must take care to ensure that
Rule 404(b)’s exceptions do not swallow the rule.” Remy v. State, 17 N.E.3d
396, 400 (Ind. Ct. App. 2014), trans. denied. Mindful thereof, I am convinced
Indiana law requires that a defendant must first place their knowledge at issue
before relevant evidence of prior crimes or bad acts is admissible under Rule
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404(b). After all, the same concerns underlying the intent exception and the
“forbidden inference” in our supreme court’s decision in Wickizer, also haunt
the knowledge exception. 626 N.E.2d at 799. And, as the Seventh Circuit
explained in Miller, “if merely denying guilt opens the door wide to prior
convictions for the same crime, nothing is left of the Rule 404(b) prohibition.”
673 F.3d at 698. I therefore conclude in order for knowledge to be placed at
issue, defendants must go beyond simply pleading not guilty—even though by
doing so they necessarily contradict the State’s allegation that they had
knowledge of the crime—and affirmatively claim a lack of knowledge.
2. Voir dire
[41] Having determined that a defendant must first affirmatively claim a lack of
knowledge before Rule 404(b) evidence may be admitted, I turn to the question
of whether Cannon placed his knowledge at issue. The trial court found—as
the State now argues on appeal—that Cannon placed his knowledge at issue by
posing “several questions that probed prospective jurors about lack of
knowledge” during voir dire. State’s Br. of Appellee at 15; see Tr., Amended
Vol. I at 142-43. In turn, Cannon contends these questions were insufficient to
place knowledge at issue, and that he never argued a lack of knowledge during
the trial.
[42] With the potential exception of questions during voir dire, which I discuss
further below, Cannon did not affirmatively argue lack of knowledge during the
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trial itself.5 Defense counsel’s opening statement simply asked the jury to
provide Cannon with the presumption of innocence, consider the motivation
and purposes for witness testimony, and “at the end of the day return two (2)
guilty verdicts and (4) not-guilty verdicts.”6 Tr., Amended Vol. I at 49.
Although the State argues “Cannon asked questions on cross-examination that
were meant to show that Cannon did not have knowledge about the drugs in
the house[,]” State’s Br. of Appellee at 15, I am unable to discern the specific
questions to which the State refers and my review of defense counsel’s cross-
examination of the State’s witnesses does not create that impression. Similarly,
I disagree with the State’s assertion that Cannon continued to advance a theory
of lack of knowledge in closing argument when he stated:
The evidence as to his possession of this [heroin] comes from Ms.
Linville. . . . She agrees to come up here, point the finger at Mr.
Cannon and say it’s his fault, he’s a bad person, he did it, blame
him. I’ll get out of jail. She gets to point the finger at the
boyfriend that cheated on her. She gets to get back at him, and
that’s what the State wants you to believe. . . . On top of all that
no one took the stand and said I saw Dion Cannon possess and
touch 88 grams of heroin. . . . She was the one that had the
drugs, that knew about them, that bought the drugs, that had
5
Voir dire is not part of a trial. Nix v. State, 240 Ind. 392, 395-96, 166 N.E.2d 326, 327 (1960). The trial does
not begin until the jury is impaneled and the cause is submitted. Id.
6
Cannon was also convicted of maintaining a common nuisance and possession of marijuana but the defense
admitted to these charges at trial and asked that the jury find Cannon guilty accordingly. Tr., Amended Vol.
I at 48.
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access to the money that paid for the drugs. The reason she had
firsthand knowledge was because they were her drugs.
Tr., Amended Vol. II at 19-23. I view Cannon’s closing argument as doing
nothing more than contending the drugs were Linville’s, not his, and that she
had a motive to lie. Besides, questions during cross-examination and closing
argument came after the State admitted Rule 404(b) evidence regarding
Cannon’s knowledge and it must first be placed at issue. Therefore, whether
Cannon placed knowledge at issue turns solely on the “several questions that
probed prospective jurors about lack of knowledge” during voir dire. State’s Br.
of Appellee at 15.
[43] Cannon has not provided this court with the transcript of voir dire and therefore
I will not speculate as to his exact questions to jurors. However, during the
Rule 404(b) discussion outside the presence of the jury, the State made several
unchallenged assertions regarding Cannon’s questions during voir dire:
Well, Judge, I believe [Cannon] did in fact open the door to this
whole issue when we went through the jury selection process.
He asked all the jurors are there other people in your house, did
your kids hide something in your house that you don’t know
about, can your spouse hide something in your house, can they
do things in your house that you don’t know about. So all the
time that this jury was being selected [defense counsel is] over
here laying the groundwork to convince them that his client
didn’t do anything, that his client didn’t know anything, that his
client didn’t have any intent to do anything.
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Tr., Amended Vol. I at 140-41. Similarly, the trial court explained in overruling
Cannon’s objection:
If the evidence comes in [under the intent exception], then the
knowledge is irrelevant. Then we also have a very interesting
issue that [the State] raises is that during the voir dire you in fact
did question people about whether or not people could hide
things in their house and them not know about it and so forth
and basically the, [sic] and I recognize that was my impression of
what you were attempting to do on voir dire was based on my
trial practice and not necessarily what you intend to do, but you
were laying the ground work to make a final argument that they
didn’t show they knew about it and thereby trying to take
advantage of the situation through inoculation if you will during
the voir dire process to foreclose the State from raising that issue
and then trying to bring it up at the end and I don’t think that is
fair to the State. So I think knowledge is an issue at this point.
Id. at 142-43.
[44] On this issue, I view the facts presented as analogous to Sundling v. State, 679
N.E.2d 988 (Ind. Ct. App. 1997). There, Sundling was charged with child
molestation and, during voir dire, “Sundling’s attorney asked prospective jurors
various general questions regarding whether they understood that the testimony
of small children could be manipulated by parents, police and therapists.” Id. at
992. The State then filed its notice to offer Rule 404(b) evidence and the trial
court permitted the evidence for the purpose of determining whether “the
witness’ testimony may be fantasized.” Id. Sundling was convicted and
appealed, arguing the Rule 404(b) evidence was erroneously admitted. We
reversed Sundling’s conviction and explained:
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[A]n examination of the record reveals that Sundling did not
place the contention that the victims were fantasizing about their
molestations in issue. None of the questions posed to the jury
used the word “fantasy” or suggested that either [of the victims]
“fantasized” the alleged molestations. Sundling’s voir dire of
potential jurors merely pointed out that the testimony of young
children could be manipulated by parents, police and therapists.
Importantly, Sundling never presented any specific factual claim
at trial that [the victims] “fantasized” their sexual encounters so
as to allow the prosecution to rebut with evidence of prior
misconduct. Whether the children fantasized their molestation
was simply not put in issue; and consequently, it may not serve
as an excuse for the admission of Sundling’s extraneous bad acts
or uncharged crimes.
Id. at 993.
[45] Similarly, had Cannon’s questions during voir dire been combined with
argument in his opening statement, closing argument, or questions during cross-
examination, they may very well have been sufficient to place knowledge at
issue. See, e.g., McClendon v. State, 910 N.E.2d 826, 832 n.2 (Ind. Ct. App. 2009)
(noting “it is apparent from sidebar conversations that [the defendant] raised the
issue of self-defense in voir dire and his opening statement”), trans. denied. But
that is not the case before us. The questions were isolated and aimed at
inquiring into the potential jurors’ biases or tendency to believe or disbelieve
something. See Hopkins v. State, 429 N.E.2d 631, 635 (Ind. 1981) (noting the
proper use of questions during voir dire).
[46] In this respect, Cannon’s questions are even less likely to raise an issue than the
statements disguised as questions in Sundling. There, defense counsel asked
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whether prospective jurors “understood that the testimony of small children
could be manipulated by parents, police and therapists.” Sundling, 679 N.E.2d
at 992. As Judge Chezem aptly noted in her Sundling dissent, “Our supreme
court has held that ‘it is not the function of voir dire examination to ‘inform’ the
jurors of anything.’” Id. at 994-95 (citing Blackburn v. State, 271 Ind. 139, 390
N.E.2d 653, 656 (1979)). Because Sundling did not raise the defense of
manipulation in his case-in-chief and his statements to the jury “were not valid
attempt[s] to understand the potential jurors’ understanding[,]” Judge Chezem
concluded the Rule 404(b) evidence was properly admitted so that the State
could rebut the issue Sundling raised in voir dire. Id. at 995-96. I share no such
dilemma here and I believe Cannon’s questions during voir dire, standing
alone, were insufficient to place his knowledge at issue.
C. Forbidden Inference
[47] Cannon argues that the State admitted the evidence to suggest the forbidden
inference, i.e., “for the purpose of showing bad guy [sic] sitting at defense
counsel table is guilty of drug dealing and possession of drugs because he is a
bad guy who has dealt drugs and been in possession of drugs in the past.”
Appellant’s Br. at 10.
[48] We have previously explained that the reason the forbidden inference is
forbidden is not because the inference is unreasonable, but because it is
reasonable and thus susceptible to misuse. Craun v. State, 762 N.E.2d 230, 240
(Ind. Ct. App. 2002) (Kirsch, J., dissenting), trans. denied. Indeed, the State
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would need to do little more than list a defendant’s prior convictions and
alleged bad acts to sway the minds of many jurors. That is why courts require a
“prosecutor who wants to use prior bad acts evidence [to] come to court
prepared with a specific reason, other than propensity, why the evidence will be
probative of a disputed issue that is permissible under Rule 404(b). Mere
recitation that a permissible Rule 404(b) purpose is ‘at issue’ does not suffice.”
Miller, 673 F.3d at 700.
[49] As I concluded above, neither knowledge nor intent were affirmatively placed
at issue. By introducing much of Linville’s testimony, the State distracted from
the events of November 18, 2015, and, by its own admission, attempted to
“show the defendant was engaged in the continuous pattern of drug dealing for
years and negate the defendant’s defense that the defendant did not commit the
crimes.” Tr., Amended Vol. I at 144. This is the very inference that Rule
404(b) prohibits. See U.S. v. Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (“The
inference from ‘pattern’ by itself is exactly the forbidden inference that one who
violated the drug laws on one occasion must have violated them on the
occasion charged in the indictment. Unless something more than a pattern and
temporal proximity is required, the fundamental rule is gone. This is why
‘pattern’ is not listed in Rule 404(b) as an exception.”). Put simply, the
evidence was not relevant to a matter at issue other than the defendant’s
propensity to commit the charged acts and, therefore, it was inadmissible.
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II. Error
[50] Having concluded the admission of the evidence was an abuse of the trial
court’s discretion, I turn to its prejudicial impact. Sundling, 679 N.E.2d at 994.
The majority concludes that its admission, even if in error, was harmless.
However, if Rule 404(b) is to serve any purpose at all, I must disagree.
[51] “Generally, errors in the admission of evidence are to be disregarded unless
they affect the substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230,
1238 (Ind. 2012). In determining the effect of the evidence on a defendant’s
substantial rights, we look to the probable impact on the fact finder. Id.
Moreover, the “improper admission [of evidence] 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.
[52] The only conviction which Cannon appeals is that for possession of a narcotic
drug. A conviction for possession of a narcotic drug may be supported by either
actual or constructive possession. Griffin v. State, 945 N.E.2d 781, 783 (Ind. Ct.
App. 2011). “Actual possession occurs when a defendant has direct physical
control over an item, whereas constructive possession occurs when a person has
the intent and capability to maintain dominion and control over the item.” Id.
On appeal, the State appears to argue there was “strong” evidence of both
constructive and actual possession and that the evidence “provides a strong
inference that Cannon actually possessed the heroin and hid it in the shelf when
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the police arrived.” State’s Br. of Appellee at 17-18. This latter contention,
however, contradicts the State’s own closing argument and the uncontested
evidence presented at trial. Sergeant Taylor, who had observed Cannon hide
something on the shelf through the window, testified:
[Defense Counsel]: I’m going to show you what’s been marked
as State’s Exhibit 2. Is that the shelving unit
you’re talking about, sir?
[Officer Taylor]: Yes.
[Defense Counsel]: I only see four shelves in that picture. One
very recognizable above, one very
recognizable below.
[Officer Taylor]: Uh huh.
[Defense Counsel]: Where was the heroin located?
[Officer Taylor]: It was in a red vase.
[Defense Counsel]: Is there a red vase in that picture, sir?
[Officer Taylor]: It might be on that bottom shelf. I know the,
I don’t, I don’t I wasn’t the one, I was just
walking out of the room when Officer Root
was pulling the—
[Defense Counsel]: But you don’t recall where the heroin came
from?
[Officer Taylor]: No, I know it came from that shelf because
he had pulled the vase from that area and was
pulling the grapes out when I had walked into
the living room when he said that he had
located some more narcotics.
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[Defense Counsel]: Was this before or after the vase was
removed?
[Officer Taylor]: I’m not sure. You would have to ask Officer
Melton.
[Defense Counsel]: Ok. Is this the shelf where the marijuana was
located?
[Officer Taylor]: Yes.
[Defense Counsel]: Ok. Would that be on the center shelf just
behind that item laying on its side that you
said appeared to be a firearm?
[Officer Taylor]: Yeah, there’s one, two, three, and then
there’s shelving down here.
[Defense Counsel]: Ok. That was the shelf that he went to, is
that correct?
[Officer Taylor]: Yes.
[Defense Counsel]: And that was where the marijuana was
located?
[Officer Taylor]: Yes.
[Defense Counsel]: And he admitted that he had had marijuana
and placed it on that shelf, did he not?
[Officer Taylor]: Yes.
Tr., Amended Vol. I. at 68-69.
[53] The shelving unit in question contains five to six shelves. On what appears to
be the second shelf from the top, officers located a small, bowl containing 16.23
grams of marijuana. Sergeant Taylor testified this was the shelf on which
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Cannon appeared to hide something—not the shelf containing heroin two
shelves below. Moreover, the bowl was open, which would have easily allowed
Cannon to place the marijuana inside it before answering the door. The vase
containing heroin, however, was full of “some plastic, like fake, grapes” which
officers had to remove in order to reveal its contents. Id. at 61. These
uncontested facts prevent a reasonable inference that Sergeant Taylor witnessed
Cannon place heroin on the shelving unit. Therefore, the record does not
support actual possession because there was no evidence that Cannon had
direct physical control over the heroin. Griffin, 945 N.E.2d at 783.
[54] Indeed, the State conceded in its closing argument that Cannon hid marijuana
on the shelf—not heroin—proceeding on a theory of constructive possession.
The State argued:
Where’d that bag of marijuana come from? . . . he picks that bag
up off the counter and he takes it into the dining room and where
does he put it? He puts it on the third same shelf where the
heroin is. What’s that tell you? That shelf is his hiding place.
Tr., Amended Vol. II at 14.7 To fulfill the capability element of constructive
possession, as the majority emphasizes, slip op. at ¶ 11, the State must
demonstrate that the defendant was “able to reduce the controlled substance to
his personal possession.” Grim v. State, 797 N.E.2d 825, 832 (Ind. Ct. App.
7
I must assume the State was referring to the same shelving unit, not the “same shelf,” when arguing
Cannon “put[] [the marijuana] on the third same shelf where the heroin is[,]” id. (emphasis added), because, as
discussed above, the heroin was located two shelves below where Sergeant Taylor witnessed Cannon appear
to hide something.
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2003). To prove the second element—intent—the State must demonstrate the
defendant’s knowledge of the presence of the contraband. Id. When the
premises on which the contraband was found is in defendant’s exclusive
control, an inference is permitted that he or she knew of the presence of
contraband and was capable of controlling it. Griffin, 945 N.E.2d at 784. In
cases like this, where the premises were not in Cannon’s exclusive control—
because Linville owned the home and lived there as well—the inference is not
permitted absent some additional circumstances indicating knowledge of the
presence of the contraband and the ability to control it. Id. Among the
recognized additional circumstances are:
(1) incriminating statements by the defendant; (2) attempted flight or
furtive gestures; (3) a drug manufacturing setting; (4) proximity of the
defendant to the contraband; (5) the contraband is in plain view; and
(6) the location of the contraband is in close proximity to items owned
by the defendant.
Id. (citation omitted).
[55] In arguing these factors on appeal, the State mischaracterizes evidence
presented at trial. The State alleges that the heroin was found “in a glass vase
in Cannon’s residence and review of the evidence indicates it was readily
observed in that open container.” State’s Br. of Appellee at 17. To the
contrary, several officers testified that the heroin was not readily observable
because decorative plastic grapes concealed the vase’s contents. Tr., Amended
Vol. I at 61, 69, 218. The State also continues to argue the evidence supports
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an inference that Cannon put heroin on the shelf as police arrived, which, for
the reasons discussed above, is unsupported by the record.
[56] After disposing of such arguments, several factors remain which weigh in the
State’s favor, including: (1) Cannon admitted to the possession of marijuana,
which he placed on the same shelving unit as the heroin, albeit two shelves
above; (2) Linville’s testimony that she gave Cannon $1,800 he intended to use
to buy drugs; (3) Cannon was home alone; (4) Cannon was in close proximity
to the heroin; and (5) a digital scale, cutting agent, and several guns were
discovered in the house. If we were reviewing this case on a challenge to the
sufficiency of the evidence, I would vote to affirm Cannon’s conviction. Here,
however, is the crucial issue on which I disagree with the majority: we have
long held that the “question is not whether there is sufficient evidence to
support the conviction absent the erroneously admitted evidence, but whether
the evidence was likely to have had a prejudicial impact on the jury.” Camm v.
State, 812 N.E.2d 1127, 1137 (Ind. Ct. App. 2004), trans. denied. We adhere to
the following definition of non-constitutional reversible error, adopted from the
United State Supreme Court:
If, when all is said and done, the conviction is sure that the error
did not influence the jury, or had but very slight effect, the verdict
and judgment should stand . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude
that substantial rights were not affected. The inquiry cannot be
merely whether there was enough to support the result, apart
from the phase affected by the error. It is rather, even so,
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whether the error itself had substantial influence. If so, or if one
is left in grave doubt, the conviction cannot stand.
Miller v. State, 575 N.E.2d 272, 275 (Ind. 1991) (quoting Kotteakos v. United
States, 328 U.S. 750, 764-65 (1946)).
[57] Applying this standard, our supreme court faced an analogous situation in
Bonner v. State, 650 N.E.2d 1139 (Ind. 1995). There, police had received tips
that Bonner was dealing drugs and began surveillance of his activities,
ultimately culminating in his arrest and conviction for dealing in cocaine. Id. at
1040. During Bonner’s trial, three police officers testified to the fact that they
had been informed that Bonner was trafficking drugs. Id. On transfer, our
supreme court concluded the officers’ statements were inadmissible hearsay and
admitting the statements constituted reversible error. The court explained:
We must recognize that, despite other evidence of the
defendant’s guilt, the erroneously admitted testimony here was
likely to have had a prejudicial impact on the jury. The jury,
faced with the responsibility of determining whether the
defendant was guilty of the offense of dealing in cocaine on
February 3, 1989, was subjected to repeated evidence that police
received information before this date indicating that the
defendant was participating in “drug trafficking” involving
cocaine. This assertion was emphasized through its repetition in
the separate testimony of the three officers.
***
In view of the nature, scope, and repetition of evidence at issue,
we cannot conclude that there was no substantial likelihood that
this evidence contributed to the conviction, and thus we decline
to find the error harmless.
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Id. at 1141-42.
[58] Similarly here, the jury was exposed to numerous references to Cannon’s
alleged drug-dealing past and I believe the State invited the jury to decide guilt
for the wrong reasons. Linville’s testimony was replete with such references,
including allegations that Cannon made his living from “selling drugs” and that
she often took him places to conduct drug deals. Tr., Amended Vol. I at 148,
136. When the State sought to elicit the details of Linville’s aiding, inducing, or
causing charge, she replied, “I thought there was [sic] a few of them.” Id. at
148. Moreover, the State utilized the Rule 404(b) evidence during its case-in-
chief and closing argument. On more than one occasion, our supreme court
has held that such evidence was not harmless. See, e.g., Thompson, 690 N.E.2d
at 237 (holding evidence was not harmless where State emphasized the
evidence its opening statement, its case-in-chief, and again in closing
argument); Wickizer, 626 N.E.2d at 800-01 (holding improperly admitted
evidence was not harmless where State emphasized evidence in opening and
closing statements).
[59] Central to our analysis for harmless error, however, is the nature of the
erroneously admitted evidence. Here, Linville’s testimony painted a picture of
Cannon as a longtime drug dealer, unworthy and undeserving of the jury’s
consideration. The evidence was highly prejudicial—few accusations do more
to garner a jury’s condemnation than that of “drug dealer” and that, of course,
is why prosecutors attempt to admit such evidence whenever possible. Given
the admission of highly prejudicial evidence, it was very likely that the jury used
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the evidence precisely for the purpose for which it may not be considered:
“Cannon is a bad guy and if he did it before he probably did it again.”
[60] The majority makes much of the trial court’s admonishment to the jury—
stating that it is presumed to cure any error that might have occurred. Slip op.
at ¶ 13. I disagree. Here, the trial court informed the jury that the evidence
“has been received solely on the issue of defendant’s intent or knowledge. This
evidence should be considered by you only for the limited purpose for which it
was received.” Tr., Vol. II at 32–33. As discussed above, the evidence was not
admissible for either purpose and the admonishment specifically authorized its
consideration. Therefore, the limiting instruction was insufficient to nullify the
harm and our supreme court has repeatedly found reversible error despite the
presence of such admonishments. See Thompson, 690 N.E.2d at 237 n.12;
Wickizer, 626 N.E.2d at 799 n.3. On the facts presented here, I also agree with
the Seventh Circuit’s conclusion in U.S. v. Miller, regarding an almost identical
admonishment under similar circumstances. The court explained:
Some have suggested that such instructions are incoherent even
to bright laypeople. We leave the broader questions for another
day. For this case, it is enough to note that when the government
cannot explain how the prior conviction relates to the question of
intent without resorting to a propensity inference, it would be
unfair to expect the jury to do so based only on this instruction.
673 F.3d at 701-02. Here, the State engaged in the “forbidden inference” in
arguing for admission of the evidence and even the trial court came dangerously
close in its ruling:
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Then the next element we get into involve [sic] the crime of
dealing controlled substances taking place. The evidence we
have most favorable to the State is that Mr. Cannon is a drug
dealer, has been a drug dealer for a long period of time, that Ms.
Linville regularly took him out to drug deals. There’s been no
testimony that he’s ever dealt drugs from the home . . . .
Tr., Amended Vol. I at 227-28. Thus, I believe it would be disingenuous to
conclude that the jury—unfamiliar with the intricacies of the rules of
evidence—did otherwise.
[61] Furthermore, the record reveals that Cannon engaged in a trial strategy aimed
at preventing the State from admitting Rule 404(b) evidence. This strategy—
though quite skillful under the circumstances—required Cannon to be careful
not to place a Rule 404(b) exception “at issue,” and effectively relegated the
defense to highlighting reasonable doubt within the State’s case-in-chief. Had
Cannon known that Rule 404(b) evidence would be admitted, regardless of
whether he opened the door for it to be admitted or not, he may have employed
different strategies. See Mack v. State, 736 N.E.2d 801, 803 (Ind. Ct. App. 2000)
(“The collateral criminal conduct of being known to deal drugs, whether
substantiated by direct reference to a previous conviction or as an unsolicited
basis of reference, is the type of harm that [the defendant] sought to avoid. To
be tagged as a known drug dealer in this sparse evidentiary situation was not
harmless.”), trans. denied. Accordingly, although not necessary to this analysis,
I also believe that Cannon’s defense was prejudiced by the error.
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[62] In conclusion, I believe this case presents the very reason Rule 404(b) exists:
the “forbidden inference” is all but obvious from the record.8 Moreover, there
was no “substantial independent evidence of guilt” required to prove that there
was “no substantial likelihood the challenged evidence contributed to the
conviction.” Hoglund, 962 N.E.2d at 1238. This was, after all, only a case of
constructive possession and our role is not to search the record for any scintilla
of evidence to support a conviction, nor is it our role to “become . . . a second
jury to determine whether the defendant is guilty.” Neder v. U.S., 571 U.S. 1, 19
(1999); see Hamilton, 49 N.E.3d at 556. Rather, our role is to determine
“whether the error itself had substantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.” Miller, 575 N.E.2d at 275.
[63] “A fair trial is required for every defendant, regardless of his apparent guilt or
the magnitude of the crimes he may have committed.” U.S. v. Ostrowsky, 501
F.2d 318, 324 (7th Cir. 1974). Considering the highly prejudicial nature of the
evidence, its pervasive presence at trial, and the error’s effect on Cannon’s trial
strategy, I cannot conclude the error was harmless and I would reverse
Cannon’s conviction.
8
See Halliburton v. State, 1 N.E.2d 670, 681 (Ind. 2013) (noting that Rule 404(b) “is designed to prevent the
jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.”).
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Dion Cannon v. State of ndiana
Combined Opinion