Opinion
Court of Appeals Case No. 20A-CR-1775
04-01-2021
Anthony D. WOOTEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Timothy P. Broden, Lafayette, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Timothy P. Broden, Lafayette, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[1] Anthony Wooten was convicted in the Tippecanoe Superior Court of Level 2 felony dealing in methamphetamine and Class A misdemeanor resisting law enforcement. He was also found to be a habitual offender. Wooten appeals, claiming that the trial court committed fundamental error when it admitted evidence of his criminal history in violation of Indiana Evidence Rule 404(b). Concluding that admission of this evidence did not constitute fundamental error, we affirm.
Facts and Procedural History
[2] On July 24, 2019, Officer Khoury Elias of the Lafayette Police Department initiated a traffic stop of a car after the driver failed to signal before turning. Tr. Vol. II, p. 153. The officer also determined that the license plate was not registered to the vehicle. Id. at 154–55. After the driver pulled the car over to the side of the road, Wooten and the other two occupants exited the vehicle and began walking away. Officer Elias directed the three individuals to return to the curb next to the vehicle, and they complied with the officer's instruction. Id. at 158–59. When Wooten returned to the front passenger side of the car, he "[t]urned around, with his right side then nearest the vehicle ... and then he knelt down as if he was discarding something under the vehicle." Id. at 159. Officer Michael Zambon, who assisted with the traffic stop, checked the area underneath the car and found several plastic bags containing methamphetamine. Id. at 159–60, 187.
[3] While the responding officers completed other tasks, Wooten rose from his seat on the curb and fled. Id. at 171. Officer Zambon caught Wooten and placed him in the back of Officer Elias's squad car. Id. at 171–72. Officer Elias read Wooten his Miranda rights, informed him that he was being arrested for dealing and possession, and transported him to the Tippecanoe County Jail. Id. at 173, 175–76. At the jail, Wooten agreed to give a statement as long as it was not recorded. Id. at 176. Wooten told Officer Elias "that he was selling the methamphetamine to accrue enough money to bond out his girlfriend who had a warrant and possibly have additional money for court fees." Id. at 177.
[4] Wooten was charged with Level 2 felony dealing in methamphetamine, Level 4 felony possession of methamphetamine, and Class A misdemeanor resisting law enforcement, and he was alleged to be a habitual offender. His two-day, bifurcated jury trial began on August 24, 2020. At trial, Wooten testified on direct examination that he ran from the police because he was "[s]cared to death." Id. at 217. The State elicited the following testimony on cross-examination:
STATE: Why were you scared to death?
WOOTEN: Okay. Honestly, I've – I've been in trouble with the law years ago. And –
STATE: Years ago?
WOOTEN: Yes. Some years ago.
STATE: How many years ago?
WOOTEN: Three, four.
STATE: For what?
WOOTEN: Years.
STATE: No, for – what were you in trouble with the law for?
WOOTEN: I had two misdemeanors in the last – from ’17 and ’18, I had two misdemeanors and in – prior to ’17, I had a theft charge.
STATE: That's it, huh?
WOOTEN: No, I've had other criminal activity.
STATE: Like what?
WOOTEN: Possession charge.
STATE: Weren't you convicted of conspiracy to commit dealing in methamphetamine?
WOOTEN: Yes, I was.
STATE: Okay. And in 2017, you actually had a couple felonies.
WOOTEN: Possession and a theft, yes.
STATE: Okay. So it wasn't just misdemeanors.
WOOTEN: No.
STATE: In fact, you had been arrested by the same officer just shortly before this.
WOOTEN: Yeah. Two months prior.
STATE: For meth.
WOOTEN: Actually that entire case was completely dropped. You actually dropped that case.
STATE: For meth, right?
WOOTEN: Yes. It's for meth.
Id. at 220–21. During its closing argument, the State discussed Wooten's attempted escape and referenced his above testimony to argue
[t]here's no threats, there's no coercion, and there's no sudden scare .... This is somebody who admittedly on the stand told you he's familiar with law enforcement. He's been in trouble before. He knows Officer Elias .... This was an opportunity to try to get out of there because the writing was on the wall at that point.
Id. at 234.
[5] The jury found Wooten guilty as charged and also found him to be a habitual offender. The trial court entered judgment of convictions for Level 2 felony dealing in methamphetamine and Class A misdemeanor resisting law enforcement, and adjudicated Wooten a habitual offender. Tr. Vol. III, pp. 47, 54-55. Wooten was ordered to serve an aggregate sentence of 25 years, with 20 years executed and five years suspended to probation. Id. at 69.
The trial court did not enter a judgment for the Level 4 felony possession of methamphetamine guilty verdict due to double jeopardy concerns. See Tr. Vol. III, pp. 52–54.
Discussion and Decision
[6] Wooten's sole assertion on appeal is that the trial court improperly admitted evidence of his criminal history at trial. Appellant Br. at 6. But Wooten did not object at trial to the admission of his prior criminal activity; therefore, he has waived the issue for appeal. See Baker v. State , 948 N.E.2d 1169, 1178 (Ind. 2011) (citation omitted). However, Wooten seeks to avoid waiver by claiming that the trial court's admission of his criminal history constituted fundamental error. Id.
[7] The fundamental error doctrine allows us to review an issue that was not properly preserved for appeal; however, this exception to our general waiver rule is "extremely narrow." Boesch v. State , 778 N.E.2d 1276, 1279 (Ind. 2002) (citation omitted). An error is fundamental when a fair trial is made impossible due to "[b]latant violations of basic principles, coupled with substantial potential or actual harm and denial of due process." Southward v. State 957 N.E.2d 975, 977 (Ind. Ct. App. 2011). An erroneous evidentiary ruling does not constitute fundamental error when the jury could overlook the improper evidence and reach the same conclusion based solely upon properly admitted evidence. See id.
[8] Here, Wooten argues that the trial court's admission of his prior criminal history constituted fundamental error and thus denied him a fair trial. Appellant Br. at 11. After Wooten testified that he fled from the officers because he was scared due to prior "trouble with the law," the State, cross examined him about his past convictions and arrests. Tr. Vol. II, pp. 220–21. The State referenced this testimony during its closing argument, asserting that Wooten did not run from police out of fear, but because his experience with the criminal justice system made him aware that he was about to be arrested. Id. at 234.
In addition to claiming that the trial court did not commit fundamental error by admitting evidence of Wooten's criminal history, the State argues that Wooten invited the error because Wooten made the initial reference to his prior criminal history. Because we conclude the admission of the evidence did not constitute fundamental error, we need not address the State's alternative argument.
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[9] Wooten claims that a fair trial was impossible because evidence of his prior crimes "served no purpose other than to create the inference that he had the propensity to commit the charged offenses." Appellant Br. at 6. Although evidence of a defendant's criminal history may be used for a number of purposes at trial, such evidence may not be used to claim that past crimes are indicative of a person's character and that the person acted in accordance with that character on a particular occasion. See Ind. Evidence Rule 404(b).
[10] Wooten compares his case to Rhodes v. State in which this court found the admission of criminal history was fundamental error. 771 N.E.2d 1246 (Ind. Ct. App. 2002), trans. denied. During the underlying OWI trial in Rhodes , the State offered police testimony regarding Rhodes's past driving incidents and entered a complete driving record into evidence without making any redactions. Id. at 1252. The State also made statements at trial regarding domestic battery allegations against Rhodes and the legitimacy of his child. Id. at 1252–54. Our court concluded that the State's case-in-chief was primarily "a focused inquiry into Rhodes's ... prior misconduct." Id. at 1256. Therefore, although Rhodes failed to object on the basis of Evidence Rule 404(b) at trial, it was fundamental error for the trial court to admit the defendant's criminal history and other character evidence. Id.
[11] Rhodes was distinguished by Wilson v. State. 931 N.E.2d 914 (Ind. Ct. App. 2010), trans. denied. Relying in part on Rhodes , Wilson appealed his convictions of receiving stolen auto parts and driving while suspended, arguing that the trial court committed fundamental error by admitting his entire BMV record without requiring the State to redact "substantial evidence of unrelated prior misconduct." Id. at 915. However, our court concluded that the trial court's decision to admit the unredacted BMV record was not fundamental error. Id. at 920. In distinguishing the Rhodes decision, the court in Wilson pointed out that the fundamental error in Rhodes was due to a " ‘flood’ of irrelevant character evidence [introduced] at trial." Id. (citing Rhodes , 771 N.E.2d at 1256 ). Conversely, Wilson's evidentiary appeal centered on one piece of evidence, which in light of the other unchallenged evidence, was not "so prejudicial that it made it impossible for Wilson to receive a fair trial." Id. at 920.
[12] Wooten's case is akin to Wilson and easily distinguishable from Rhodes . In Rhodes , the prosecution's case-in-chief relied heavily upon the defendant's prior crimes. See 771 N.E.2d at 1256. But here, the State did not present evidence of Wooten's criminal record during its case-in-chief. Rather, the State elicited evidence of Wooten's prior crimes during its cross examination of Wooten. See Tr. Vol. II, pp. 220–21. Further, the volume of criminal history presented at Wooten's trial pales in comparison to what the appellate court reviewed in Rhodes . Unlike in Rhodes , Wooten's criminal records were not submitted into evidence. See Rhodes , 771 N.E.2d at 1252. Wooten was asked limited questions on cross examination regarding his history with law enforcement after he made misleading statements about his criminal history. Tr. Vol. II, pp. 220–21.
[13] We acknowledge that the State referenced Wooten's cross-examination testimony during its closing argument. Id. at 234. However, the jury was instructed that "[s]tatements of the attorneys are not evidence." Id. at 250. Further, the State did not use Wooten's history with law enforcemen to show that he had a propensity to commit similar crimes. Rather, the reference was made only to cast doubt on Wooten's claim that he was afraid of the police officers during the traffic stop. Id. Therefore, the State's limited argument concerning Wooten's criminal history did not constitute "a focused inquiry into ... prior misconduct." Rhodes , 771 N.E.2d at 1256.
[14] Finally, as in Wilson , there is a plethora of unchallenged evidence that independently supports Wooten's convictions. For example, Officer Elias testified that Wooten "knelt down [by the car] as if he was discarding something under the vehicle." Tr. Vol. II, p. 159. When Officer Zambon checked the ground near that area of the car, he found a bag containing what was later determined to be methamphetamine. Id. at 159–60. Soon after the bag was discovered, Wooten attempted to flee the scene on foot but was quickly apprehended by Officer Zambon and placed in the back of a police car. Id. at 171–72. And Wooten told Officer Elias that "he was selling the methamphetamine to accrue enough money to bond out his girlfriend." Id. at 177. This properly admitted evidence more than supports Wooten's convictions.
Conclusion
[15] For the reasons stated above, the trial court did not commit fundamental error when it admitted evidence of Wooten's prior convictions.
[16] Affirmed.
Altice, J., and Weissmann, J., concur.