FILED
Dec 29 2016, 8:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Summer C. Snow, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1605-CR-1175
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1412-F5-42
Brown, Judge.
Court of Appeals of Indiana | Opinion 45A03-1605-CR-1175| December 29, 2016 Page 1 of 22
[1] Summer C. Snow appeals her convictions for battery against a public safety
official as a level 5 felony and resisting law enforcement as a level 6 felony.
Snow raises one issue which we revise and restate as whether the trial court
abused its discretion in admitting testimony regarding a handgun. We affirm.
Facts and Procedural History
[2] At approximately 4:50 a.m. on November 30, 2014, Gary Police Officer Terry
Peck responded to a domestic incident at a house in Gary, Indiana. When
Officer Peck arrived at the house, he was met by Snow, who reported that her
boyfriend, Reginald Harris, was in the back seat of her car parked on the
driveway and that he refused to leave. Officer Peck asked Snow if Harris
owned the car or stayed at the house, and Snow replied “no, he doesn’t own the
car, that it was her house.” Transcript at 64. Officer Peck also asked Snow “if
she had any – if he had any weapons and she stated no.” Id. He and Snow
then walked up to the car. Officer Peck opened the rear door of the car and told
Harris that he needed to leave the car, Harris argued with him, Officer Peck
said that if he did not leave he would be arrested for criminal trespass, and
Harris still refused to exit the vehicle. Officer Peck placed his hand on Harris’s
arm and urged him to exit the car, and Harris grabbed Officer Peck’s wrist,
pulled him halfway into the car, and struck him in the face, the side of his body
and head, and his arms. When Harris pulled Officer Peck into the vehicle,
Snow started to shout and cheer Harris on, saying “[f]--- that white boy up,”
“I’m taping this s---,” and “beat his a--.” Id. at 75. Officer Peck broke free from
Court of Appeals of Indiana | Opinion 45A03-1605-CR-1175| December 29, 2016 Page 2 of 22
Harris, pulled him from the car, placed him on the ground, handcuffed him,
and placed him in his police vehicle.
[3] Officer Peck then told Snow to stop shouting and to be quiet and asked for her
identification, and she refused. He told Snow to return inside her house and
that, if she did not, she would go to jail for disorderly conduct. Snow turned
and walked towards her house while still shouting at Officer Peck, who walked
to the passenger side of Snow’s car to retrieve his flashlight and look for the
vehicle’s registration, and he heard what sounded like the front door of the
house close and assumed Snow had entered her house. Officer Peck walked
toward the back of Snow’s car and toward his police vehicle, and Snow was
back there and shouting loudly at him again. He warned Snow three times that
she may be arrested for disorderly conduct, and Snow said that she “dared [his]
b---- a-- to arrest her.” Id. at 82. He ordered Snow to place her hands on the
car, and she refused and started to shout “[t]hey’re abusing me. Somebody tape
this s---” at the top of her lungs. Id. He tried to grab Snow’s wrists, and she
pulled away from him and placed or tucked her hands underneath her
sweatshirt or the light jacket she was wearing. He tried to grab her wrist and
place her against her vehicle, and she swung at him.
[4] As Officer Peck struggled to control Snow, she struck him in the shoulders and
side of the head, scratched his chin, and kicked him in the thigh. At one point
during the altercation, Snow was able to jump on Officer Peck’s back, was
wrapped up around him, and started to bite his shoulder. He threw Snow off
and pushed her into her car, which seemed to stun her a little bit although she
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was still fighting and trying to swing, and he was able to grab hold of one of her
arms and place that arm into handcuffs. At that time, Officer Peck felt an
object fall and hit his knee and the top of his boot. Officer Peck initially
thought it was his “flashlight or a magazine that she might have knocked off of
[his] vest,” that he and Snow “struggled a little bit longer,” and that he “was
able to finally subdue her enough to get her in handcuffs.” Id. at 86. “She was
still trying to turn and kick, but by then she was in handcuffs and she couldn’t –
she was just difficult to handle, but she wasn’t striking [Officer Peck] anymore.”
Id. Corporal John Artibey arrived at the scene and observed Officer Peck
attempting to place Snow into handcuffs, that she was pulling away at the time,
and that he believed Officer Peck had one cuff on Snow. As Officer Peck
placed handcuffs on Snow, Corporal Artibey walked up through the yard, and
as he approached to escort her away from the vehicle he noticed a handgun on
the ground where both Officer Peck and Snow were standing. Snow admitted
that the gun belonged to her.
[5] The State charged Snow with two counts of battery against a public safety
official as level 5 felonies, resisting law enforcement as a level 6 felony, and
disorderly conduct as a class B misdemeanor. 1 Snow filed a motion in limine to
1
In the same charging information, the State charged Harris with battery against a public safety official
as a level 5 felony and resisting law enforcement as a level 6 felony. Snow and Harris were represented
by the same attorney and were tried together. In a separate opinion, we affirm Harris’s conviction for
battery against a public safety official as a level 5 felony. See Harris v. State, No. 45A03-1605-CR-1168
(Ind. Ct. App. December 29, 2016).
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prohibit the State from making any reference to or seeking to elicit from any
witness that a weapon was found at the scene during the incident.
[6] Prior to the start of the joint jury trial, the court heard arguments on the motion
in limine to prohibit any reference that a weapon was found at the scene. The
State argued that “it is relevant that she was actually carrying a weapon on her
when she was wrestling with Officer Peck” and that, “given the fact that I do
believe they plan on using self-defense or some sort of defense, I think it’s
pertinent the gun actually shows some sort of aggression on the part of the
defendant.” Id. at 4, 7. The State further argued that “Officer Peck is going to
testify that he asked Summer Snow to go inside the house and that it was under
his belief that she did walk inside the house” and “[s]o it is relevant that
possibly she could have went in there and got a weapon and had it on her when
she was wresting [sic] with him.” Id. at 7. In response, Snow’s counsel argued
that Officer Peck had no reason to believe Snow had a gun, that he was not
acting the way he acted because he thought he was in fear for his life, and “[s]o
his actions and the relevance and whether or not they were reasonable, the gun
plays no . . . part in that determination for the jury.” Id. at 8. The State replied
that it was “not arguing that . . . it goes towards his state of mind in knowing
that she had a gun,” that “one of their defenses for that – any kind of scuffle
between the cops could be them defending themselves from the cops is what
I’m saying,” and that “the fact that a gun was found shows that perhaps they
were more of an aggressor rather than one of defense.” Id. at 8-9.
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[7] The court asked “[s]o there’s going to be testimony that they were aggressive,”
and the State responded affirmatively. Id. at 9. The court then asked “[a]nd
your theory is that the aggressiveness on behalf of – I guess, let’s say – to be
clear, we’re talking about Snow – is because she was – in your theory, at least –
that she was trying to conceal a weapon in her possession,” and the State
answered: “Yes. I believe that would show more for an offensive rather than a
defense position, in terms of what happened with the scuffle.” Id. at 9-10. The
court found that, “[g]iven the State’s proffer,” it did not believe that “the
prejudicial value substantially outweighs the probative nature of the
information,” “particularly given the State’s proffer that they believe that Snow
was acting in the aggressive manner to perhaps conceal a weapon that could
have been in possession.” Id. at 10. The court further found: “A weapon that
was not there at one point, certainly appears later on. I believe that the State’s
proffer that this is significantly probative of the defendant’s action is enough no
[sic] allow the information to go before the jury.” Id. The court denied the
motion in limine with respect to the request to prohibit any reference that a
weapon was found at the scene.
[8] During Officer Peck’s trial testimony, defense counsel objected in regards to the
handgun based on the arguments made during the motion in limine, and the
court overruled the objection and stated that “the finding of the weapon is part
of the entire incident and I see no reason to keep that information from the
jury.” Id. at 89-90. Officer Peck testified that he and Corporal Artibey
discovered that the object that fell and hit his boot was actually a handgun.
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Officer Peck testified he sustained scratches to his face and a knot on his
forehead, and the court admitted photographs of Officer Peck’s injuries.
[9] Snow testified that she was worked up because she saw Harris being attacked.
She testified that Officer Peck asked for her identification and that she asked
why he needed it and that she was the person who called the police. She
testified that she turned around to retrieve her purse which was on the seat in
her car, that as soon as she had turned around Officer Peck punched her in the
back of the head, that he turned her around and continually punched her as she
tried to block the punches, and that she was just defending herself. When asked
her purpose of turning around, Snow replied to retrieve her identification
located in her vehicle. She testified that she never attempted to pull a weapon
out and that the weapon was in her purse on the front seat. When asked how
the weapon ended up on the ground, she answered “[i]f I can guess at it, I will
just say when our struggle ensued, that’s when the purse hit – it probably shifted
and the gun may have fell.” Id. at 216. On cross-examination, Snow indicated
that the whole purse was tipped over on the floor of her car, that everything was
on the floor of the vehicle, and that the gun had fallen on the ground where she
had her scuffle with Officer Peck.
[10] In closing argument, the State argued in part that the gun was never in Snow’s
purse, that it was in her pocket the entire time, that she lied, and that “[s]he was
never on the defense. She was the aggressor the entire time.” Id. at 356. The
jury found Snow guilty of one count of battery against a public safety official as
a level 5 felony and resisting law enforcement as a level 6 felony and not guilty
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of the other charges. The court sentenced Snow to an aggregate term of two
and one-half years with two years suspended to probation.
Discussion
[11] The issue is whether the trial court abused its discretion in admitting evidence
of the handgun. Generally, we review the trial court’s ruling on the admission
or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d
1115, 1134 (Ind. 1997), reh’g denied. We reverse only when the decision is
clearly against the logic and effect of the facts and circumstances. Joyner v.
State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. We may affirm a trial
court’s decision regarding the admission of evidence if it is sustainable on any
basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied.
Even if the trial court’s decision was an abuse of discretion, we will not reverse
if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966
(Ind. Ct. App. 1999), reh’g denied, trans. denied.
[12] Snow argues the court abused its discretion in admitting into evidence that a
gun was found at the scene when it was not used in any way nor was it related
to any element of the charged offenses. 2 She argues that the gun did not tend to
2
Snow was not charged with any gun-related offense. The prosecutor, during arguments on the motion in
limine, indicated that he believed Snow was on her property, and at trial Snow testified she did not take the
gun off her property that night. See Ind. Code § 35-47-2-1 (defining the crime of carrying a handgun without
being licensed and its exceptions, including the exception that a license is not required to carry a handgun if
the person carries the handgun while present in or on property that is owned or leased by the person).
Court of Appeals of Indiana | Opinion 45A03-1605-CR-1175| December 29, 2016 Page 8 of 22
prove or disprove a material fact in the case and that the prejudicial effect of the
jurors being aware that a gun was present outweighed any probative value.
[13] The State responds that the trial court did not abuse its discretion in admitting
evidence of the gun and that the evidence was inextricably linked to the charged
crimes. The State argues that Officer Peck had assumed that Snow had gone
inside, that when he later attempted to handcuff her as she fought him the gun
fell on his boot, that the reasonable inference from this testimony is that Snow
armed herself before she attacked Officer Peck, and that therefore the gun was
not unrelated to the charged crimes. The State also argues that any error in the
admission of the gun is harmless given the other evidence against her.
[14] Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence and the fact is of consequence in
determining the action. Ind. Evidence Rule 401. 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.
Ind. Evidence Rule 403. A decision concerning relevance and prejudice is
within the sound discretion of the trial court, and its decision is afforded a great
deal of deference on appeal. Sandifur v. State, 815 N.E.2d 1042, 1048 (Ind. Ct.
App. 2004), trans. denied.
[15] While the record does not show that Snow brandished the gun when Officer
Peck instructed her to place her hands on the car or in her subsequent struggle
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with him, Officer Peck testified that he heard what sounded like the front door
of the house close and assumed Snow had entered her house and that Snow
reappeared shouting loudly at him, dared him to arrest her, and shouted
“[s]omebody tape this s---” at the top of her lungs. Transcript at 82. He
testified that, when he tried to grab Snow’s wrists, she pulled away from him
and placed or tucked her hands underneath her sweatshirt or the light jacket she
was wearing; that she struck and kicked him; that Snow was able to jump on his
back and was wrapped up around him; and that, at the time he was able to grab
one of her arms and place that arm into handcuffs, he felt an object hit his knee
and the top of his boot. He also testified that he struggled a little longer to
subdue Snow and place her in handcuffs and that he discovered the object that
had fallen to the ground was a gun. Corporal Artibey testified that, when he
arrived at the scene, he observed Officer Peck attempting to place Snow into
handcuffs, that she was pulling away at the time, and that he believed Officer
Peck had one handcuff on Snow. Corporal Artibey further testified that, as
Officer Peck was placing the handcuffs on Snow, he walked up through the
yard and discovered the handgun on the ground where they were both standing.
[16] The testimony explained the circumstances and context of the extended verbal
and physical altercations between Snow and Officer Peck. In particular,
although possession of a firearm is not an element of battery on a public safety
official as a level 5 felony or resisting law enforcement as a level 6 felony as
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charged, 3 the inference from the testimony is that Snow had entered and exited
her house, that she began to shout at Officer Peck and dared him to arrest her,
and that, during this time and then at the same time that she physically
struggled with Officer Peck and jumped on his back, she was in possession of
and concealed a handgun. After the gun fell from her person, Snow continued
to struggle with Officer Peck a little longer before he was finally able to subdue
her. The fact a concealed weapon fell from Snow’s person during the scuffle
has at least some tendency to show, in light of the fact she had entered and
exited her house and shouted at and dared Officer Peck, that Snow was acting
in an aggressive manner. A defendant is not entitled to have her actions
sanitized when evidence is presented to a jury. See Reaves v. State, 586 N.E.2d
847, 859 (Ind. 1992). On the record and circumstances before us, we cannot
say the trial court abused its discretion in admitting testimony regarding Snow’s
possession and concealment of a gun on her person at the time she shouted at
and physically struggled with Officer Peck. 4 See Sandifur, 815 N.E.2d at 1048-
1049 (holding that evidence of the death of a person who had methadone in her
3
See Ind. Code § 35-42-2-1 (governing the offense of battery); Ind. Code § 35-44.1-3-1 (governing the offense
of resisting law enforcement).
4
The dissent emphasizes that the State’s argument on appeal is that the gun was inextricably bound up with
the charged crimes and that this argument is an end-run around the Indiana Supreme Court’s disapproval of
the res gestae doctrine. However, the trial court, in its role as gatekeeper of evidence, clarified that the State’s
theory was that Snow “was trying to conceal a weapon in her possession,” and the State explained its position
that “that would show more for an offensive rather than defense position, in terms of what happened with the
scuffle.” Transcript at 9-10 (emphases added). We find, as explained above, that the challenged evidence is
relevant.
Court of Appeals of Indiana | Opinion 45A03-1605-CR-1175| December 29, 2016 Page 11 of 22
system, although not an element of the offense of dealing in a schedule II
controlled substance, was relevant). 5
[17] In addition, errors in the admission or exclusion of evidence are to be
disregarded as harmless error unless they affect the substantial rights of the
party. Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015). To determine whether an
error in the introduction of evidence affected the party’s substantial rights, we
assess the probable impact of that evidence upon the jury. Id. The jury heard
the testimony of Officer Peck and Officer Artibey regarding their encounter
with Snow and Harris on November 30, 2014. Defense counsel thoroughly
cross-examined the officers, and Snow testified before the jury regarding her
version of the altercations with Officer Peck. The extensive testimony
presented clear accounts of the actions of Snow related to resisting law
enforcement and battering Officer Peck, and it is unlikely that the jury was
significantly influenced by the testimony regarding the presence of Snow’s gun
in light of the other testimony regarding her actions. See Lewis, 34 N.E.3d at
248 (concluding it was unlikely that the jury was significantly swayed by further
testimony that the defendant was a mean drunk on top of the other testimony it
5
Snow cites to Oldham v. State, in which the trial court admitted evidence in Oldham’s murder trial that
police found a number weapons in his garage. 779 N.E.2d 1162, 1174 (Ind. Ct. App. 2002), trans. denied.
This court observed on appeal that there was no evidence the guns belonged to Oldham or he knew the
weapons were in the garage, that the clear implication was that Oldham was a dangerous criminal with a
store of weapons at his disposal, and that the evidence was irrelevant and prejudicial. Id. at 1174-1175.
Here, Snow possessed and concealed a handgun on her person while at the same time physically struggling
with Officer Peck. We find Oldham to be distinguishable.
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heard which painted a sufficiently clear picture of his temperament on the night
of the crime and holding that the admission of the challenged testimony was
thus not reversible error). Any error in the admission of the testimony
challenged by Snow is, at most, harmless.
Conclusion
[18] For the foregoing reasons, we affirm Snow’s convictions.
[19] Affirmed.
Bradford, J., concurs.
Vaidik, C.J., dissents with separate opinion.
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ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Public Defender Attorney General of Indiana
Crown Point, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Summer C. Snow, December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
45A03-1605-CR-1175
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1412-F5-42
Vaidik, Chief Judge, dissenting.
[20] I respectfully dissent. I do so because the fact that Snow legally possessed a
handgun on her own property that she did not use or brandish during her
altercation with Officer Peck was not relevant to any issue in this case. And the
admission of the gun, including the State’s inflammatory characterization of it
as “unregistered” and “literally against the law,” was not harmless error. This
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case boiled down to Officer Peck’s word against Snow’s and the admission of
the gun could have tipped the scales in favor of the State. I would therefore
reverse and remand this case for a new trial.
[21] To begin, the State must prove that the handgun was relevant. Relevant
evidence is evidence that tends to make more probable or less probable the
existence of a fact that is of consequence in determining the action. Ind.
Evidence Rule 401. The only argument of relevance that the State makes on
appeal is that the gun was “inextricably bound up” with other evidence in this
case. Appellee’s Br. p. 15. The majority does not use this language but begins
its analysis by finding that the gun was admissible because it explained “the
circumstances and context” of Snow’s altercation with Officer Peck. Slip op. at
11. Either of the above justifications for the admission of the gun is misplaced.
[22] Historically, Indiana allowed evidence that was “part of the story” of a
particular crime, or res gestae evidence. However, in Swanson v. State, our
Supreme Court held that res gestae should no longer be used as a way to admit
evidence:
At best, res gestae is an imprecise concept, and it has tended to be
an all too easy substitute for describing the legal relevance of a
particular piece of evidence. The term res gestae does not appear
in our Rules of Evidence, and we believe that the admissibility of
evidence is better tested by reference to the concepts found in
those rules. In other words, is the evidence in question relevant
in that it tends to make more probable or less probable the
existence of some fact pertinent to the case? Evid. R. 401.
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666 N.E.2d 397, 398 (Ind. 1996), reh’g denied. The Court indicated that it “fully
expect[ed] that the great majority of the evidence we formerly admitted by
calling it res gestae will continue to be admitted in Indiana courts. It will be
admitted, however, by reference to the legal concepts and vocabulary of the
Indiana Rules of Evidence.” Id. at 399.
[23] Two years after the Supreme Court denounced res gestae as a basis to admit
evidence, this Court determined that evidence was properly admitted because it
was “inextricably bound up” with other evidence in the case. Utley v. State, 699
N.E.2d 723 (Ind. Ct. App. 1998), trans. denied. In that case, a man was charged
with reckless homicide and leaving the scene of an accident after running over
another man with whom he had previously been in an intimate relationship.
The defendant was convicted of leaving the scene of an accident and appealed,
arguing that the trial court abused its discretion in admitting evidence that he
had previously been in an intimate relationship with the victim. The defendant
claimed that the evidence of their relationship revealed his sexual orientation,
which was irrelevant and exposed him to the danger of unfair prejudice. This
Court, however, found that the fact that the defendant had previously been in
an intimate relationship with the victim was admissible and that the defendant’s
sexual orientation, while not alone relevant, was “inextricably bound up” with
the relevant relationship evidence:
The former intimate nature of Utley’s relationship with the
victim was highly probative and relevant to explain the context of
the argument which preceded the events which culminated in the
victim’s death and any motive Utley may have had to harm the
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victim. That Utley’s sexual preference was disclosed through
this evidence was merely incidental or collateral, but
“inextricably bound up” with the crime charged. See State v.
Lambert, 528 A.2d [890,] 892 [(Me. 1987)] (evidence of
defendant’s sexual preference “inextricably bound up” with the
crime alleged).
Utley, 699 N.E.2d at 728-29 (emphasis added).
[24] Other panels of this Court have determined that evidence was properly
admitted by using the “inextricably bound up” language from Utley. For
example, in Sanders v. State, the defendant, who was charged with child
molesting, argued that the trial court abused its discretion in admitting evidence
that earlier that same evening, he offered the victim and two of her friends $25
if they submitted to oral sex with him. This Court found that this evidence was
“highly probative” and “inextricably bound up” with the charged crime.
Sanders v. State, 724 N.E.2d 1127, 1131 (Ind. Ct. App. 2000). The fact that the
defendant offered the victim $25 for oral sex is easily separable—not
“inextricable”—from the fact that he molested the victim later that night. In
addition, the fact was independently relevant to show that the defendant
molested the victim later that night. See also Sandifur v. State, 815 N.E.2d 1042,
1048-49 (Ind. Ct. App. 2004) (finding that victim’s death from methadone
overdose was “inextricably bound up” with the charge against defendant for
dealing methadone to her), trans. denied; Willingham v. State, 794 N.E.2d 1110,
1116 (Ind. Ct. App. 2003) (using “inextricably bound up” language to support
admission of evidence that defendant sold cocaine the week before he was
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arrested and charged with dealing in cocaine because it was “probative of [his]
motive to sell the cocaine that the detectives found in his bedroom”); Pope v.
State, 740 N.E.2d 1247, 1250-51 (Ind. Ct. App. 2000) (using “inextricably
bound up” language to uphold admission of fact that defendant met detective
posing as minor at hotel to prove child exploitation and child pornography
charges that were based on facts separate from hotel meeting). To the extent
these decisions relied on the “inextricably bound up” language to support
admission of the evidence, the reliance was dicta because the evidence was
relevant on independent grounds. Notably, our Supreme Court has never
adopted “inextricably bound up” as a basis for admissibility.
[25] In my opinion, language such as “inextricably bound up” or as the majority
uses—“the circumstances and context” of Snow’s altercation with the officer—
have become invitations to revive a defunct res gestae exception. The State
accepts the invitation in this case by arguing in its brief that the sole relevance
of the handgun is that it is “inextricably bound up” with other evidence in this
case.
[26] As for whether the handgun is otherwise relevant in this case, the majority
develops an argument of relevance that was neither argued by the State on
appeal nor argued by the State at the trial-court level. Initially, the State argued
at the motion in limine hearing that the gun was relevant because it showed that
Snow acted in an aggressive manner because she was trying to conceal a
weapon in her possession. See Tr. p. 9-10 (“THE COURT: And your theory is
that the aggressiveness on behalf of—I guess, let’s say—to be clear, we’re
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talking about Snow—is because she was—in your theory, at least—that she was
trying to conceal a weapon in her possession? MR. MULLINS: Yes. I believe
that would show more for an offensive rather than a defensive position, in terms
of what happened with the scuffle.”). This explanation, however, defies
common sense. If Snow was trying to hide her gun, why would she attack a
police officer? Moreover, as the State conceded at the motion in limine hearing
and as the majority notes on appeal, Snow legally possessed the gun. See id. at
3; slip op. at 9 n.2. Snow had no reason to conceal it.
[27] Then at trial, the State argued that the fact that Snow possessed (but did not use
or brandish) an “unregistered” gun showed that she was the initial aggressor.
Tr. p. 356. Notably, there is no handgun “registration” requirement in Indiana.
See IN.gov, Frequently Asked Questions,
http://iot.custhelp.com/app/answers/detail/a_id/2198/kw/ISP%20Firearms
(last visited Dec. 20, 2016). Snow legally possessed the handgun on her own
property. I cannot say that legally possessing a handgun on one’s own
property, without using or brandishing it, tends to prove that the possessor is
likely to have started a fight.
[28] The majority, on its own accord, finds that the gun is relevant because the fact
that a concealed weapon fell from Snow during her struggle with Officer Peck
has at least some tendency to show that, in light of the fact that she had entered
and exited her house and dared Officer Peck to arrest her, she was the
aggressor. Although the State appeared to indicate at the motion in limine
hearing that there would be evidence at trial that Snow went into her house to
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retrieve the gun, see Tr. p. 7, no such evidence was presented at trial. In fact,
the State argued at trial that Snow had the gun in her pocket the “entire” time.
Id. at 347 (“The gun was never in her purse. It was in her pocket the entire
time.”); see also id. at 355 (“It was never in the car. It was always in her
pocket”). Because the evidence shows that Snow legally possessed a gun on her
property that she did not use or brandish during her altercation with Officer
Peck and that was not discovered until after she was handcuffed and led away
from the scene, I do not believe that the gun was relevant to any fact at issue in
this case. Accordingly, I believe that the trial court abused its discretion in
admitting the gun into evidence.
[29] Moreover, I do not believe that the error in admitting the gun was harmless. As
the State recognized during closing argument, there were “two stories”
presented to the jury at trial. Id. at 345; see also id. at 361 (defense counsel: “We
have two conflicting stories.”). These stories were essentially told by two
people: Snow and Officer Peck. Snow’s theory was that Officer Peck used force
against her first, that he did so unreasonably, and that she did what she had to
do in order to protect herself. She supported her theory with evidence of her
injuries, which required stitches and a trip to the hospital compared to the
officer’s injuries of a few scratches and a bump to his forehead. In contrast, the
State’s theory was that Snow was the aggressor and that Officer Peck only hit
her in “self-defense.” Id. at 346. As evidence of its theory, the State relied
heavily on the gun, including admitting the actual gun into evidence. Id. at 93-
94. The State argued that because Snow possessed a gun that it claimed was
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“unregistered,” she was an aggressive person and therefore the initial aggressor
in this case:
Ms. Snow testified that she has the gun for protection. My
question is, if it’s for protection, why does she even have it? It’s
just her and her boyfriend. I’m assuming she’s not taking it to
the gas station because, as she said, it’s unregistered. It’s
literally against the law. I’m assuming she doesn’t want to
break any law. Now, protection, when it’s just her and her
boyfriend in her driveway. That doesn’t sound like protection.
Additionally, she stated the gun is in her purse sitting on her
front seat. . . . Are you going to believe that all the contents of
the purse fell on the floor of the car except for one thing, the gun,
which somehow fell outside of the car? . . . Does that sound
reasonable? No. The gun was never in her purse. It was in her
pocket the entire time. She lied. And why lie, if the gun is for
protection? If all you’re doing is protecting yourself, not
instigating, not aggravating, why lie about the gun?
*****
Now, one of the facts in evidence is a gun was found. A gun was
found presumably having fallen out of her pocket. As we know,
it wasn’t in the car. It wasn’t in her purse. It fell right where they
were fighting, right where he was trying to defend himself and
getting her under arrest. It was never in the car. It was always in
her pocket.
Now, why would she have it? Does that sound like someone on
defense, somebody who goes in their house, . . . could have
stayed in the house—but comes back yelling, shouting and
carrying an unregistered firearm? Does that sound like someone
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that’s on the defense to you? No, no. She was never on the
defense. She was the aggressor the entire time.
Id. at 347-48, 355-56 (emphases added).
[30] This case essentially comes down to one person’s word against another’s.
Because this case did not have overwhelming evidence and especially
considering the State’s emphasis during closing argument on Snow’s
“unregistered” gun, which was “literally against the law,” I believe that the gun
had a probable impact on the jury’s decision. I would therefore reverse Snow’s
convictions and remand this case for a new trial on the charges of Level 5
felony battery against a public safety official and Level 6 felony resisting law
enforcement.
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