Opinion
No. 27A05-1010-CR-710
08-16-2011
CARTIER D. TASBY, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : DAVID M. PAYNE Ryan & Payne Marion, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
DAVID M. PAYNE
Ryan & Payne
Marion, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Jeffrey D. Todd, Judge
Cause No. 27D01-1007-FD-148
BAILEY , Judge
Case Summary
Cartier D. Tasby ("Tasby") appeals his convictions for residential entry, a class D felony, theft, as a class D felony, and resisting law enforcement, as a class A misdemeanor.We affirm.
I.C. § 35-43-4-2(a).
I.C. § 35-44-3-3(a).
Issues
Tasby raises numerous issues for our review, which we reframe as:
At the end of his brief, Tasby lists other alleged errors committed by the prosecutor and/or the trial court, but he has waived our review of these issues because he does not support his arguments with cogent reasoning. The appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on[.]" Ind. App. Rule 46(A)(8)(a). "It is well settled that we will not consider an appellant's assertion on appeal when he has failed to present cogent argument supported by authority and references to the record as required by the rules." Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004). "If we were to address such arguments, we would be forced to abdicate our role as an impartial tribunal and would instead become an advocate for one of the parties." Id.
I. Whether sufficient evidence supports his convictions;
II. Whether the prosecutor committed misconduct constituting fundamental error by questioning him about his use of aliases, alternate Social Security numbers, and an alternate date of birth;
III. Whether the trial court abused its discretion by refusing to admit his proffered demonstrative evidence;
IV. Whether the trial court committed fundamental error by failing to ask him whether or not he wanted jury instructions on lesser included offenses; and
V. Whether his conviction should be reversed because he did not have access to the jail law library.
Facts and Procedural History
On July 23, 2010, Tasby was introduced to Jessica Henderson ("Henderson") while he was staying at the Grant County Rescue Mission. Henderson's brother, a friend of Tasby's who also stayed at the Mission, made the introduction when Henderson came to see him for lunch, as she would do from time to time. The next day, Henderson invited Tasby over to her apartment. He arrived around 7:00 or 8:00 p.m. and they went to the store to buy dinner. It was Henderson's understanding that Tasby would not be spending the night.
As the two talked after dinner, Henderson began to feel more and more uncomfortable about Tasby's presence. At one point, Henderson took a call on her cell phone, which Tasby found to be disrespectful, so he put one hand on her neck and pushed her down onto her couch. Afraid to move, Henderson stayed on the couch until there was a knock on the door from her friend and neighbor. Tasby ordered her to answer it. When Henderson answered the door, she ran out of the apartment with her son, went to her neighbor's house and called her mother who then called the police.
Officer Greg Adams ("Officer Adams") of the Marion Police Department responded to the call and arrived at Henderson's apartment complex around 12:43 a.m. on July 26, 2010. He examined Henderson for physical injuries and found none, but could tell she was upset and asked her if she would like to press charges against Tasby. She said no, but was adamant that she wanted Tasby to leave. Officer Adams then told Tasby that Henderson no longer wanted him on the premises, ordered him to leave, and stated that if he returned, he would be arrested for criminal trespass. Tasby picked up his belongings and left the premises. After Tasby left, Henderson went back into her apartment and noticed that her keys and cell phone were missing. She decided to spend the night at her neighbor's house and fully closed the front door to her apartment as she left.
Later that night, Henderson went back to her apartment to obtain a cup and diapers for her son. When she entered her apartment, she noticed Tasby's bag by the front door, which she had observed him carrying earlier as he left the complex. After walking a little further into her home, Henderson decided to leave and then called the police.
Officer Adams returned to the apartment complex around 2:45 a.m. Henderson informed him that Tasby was back in her apartment, so Officer Adams went inside and discovered Tasby lying on Henderson's bed, pretending to be asleep. Officer Adams twice announced his presence, but Tasby did not respond. Officer Adams then flipped on the bedroom light, kicked the bottom of Tasby's legs, again announced his presence, and informed Tasby that he was under arrest. Tasby opened his eyes and asked, "What's going on?" Tr. 78. Officer Adams informed him that he was under arrest for residential entry, and that he needed to show his hands. Tasby rolled his eyes, closed them, and acted as if he was going back to sleep.
Although Tasby still refused to show his hands, Officer Adams was able to discern that Tasby did not have a weapon, so he holstered his, grabbed Tasby's left arm, and pulled it from his body to apply handcuffs. Tasby forcibly pulled his left arm from Officer Adams and put it back close to his body. At this point Officer Adams grabbed the edge of the mattress and pulled the whole bed off the frame in an effort to avoid a struggle within the tight quarters of Henderson's bedroom.
Tasby flipped off of the bed and onto the ground, landing on his stomach. Officer Adams pounced and put his knee across the back of Tasby's neck. Tasby still refused to surrender his arms, but Officer Adams was eventually able to secure Tasby with handcuffs, despite Tasby's straining and pulling against him. As Officer Adams led Tasby out, Tasby repeatedly attempted to pull away from Officer Adams, so much so that Officer Adams had to put one hand on the staircase railing to keep from falling down the stairs.
Once at his squad car, Officer Adams searched Tasby and found two cell phones in one of his pockets and a set of keys in another. After putting Tasby in his car, Officer Adams showed Henderson the items he recovered from Tasby. She positively identified the keys and one of the cell phones as hers.
On July 27, 2010, Tasby was charged with residential entry, theft, and resisting law enforcement. A jury trial was held September 27-28, 2010, and Tasby represented himself with the assistance of attorney Robert Bratch. At the conclusion, the jury found Tasby guilty of all charges. On October 25, 2010, the trial court sentenced Tasby to three years each on the residential entry and theft convictions, and ordered they be served concurrently. The Court sentenced Tasby to one year for resisting law enforcement, and ordered Tasby to serve it consecutively to the other charges for an aggregate sentence of four years.
Tasby now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
Tasby challenges the sufficiency of the evidence supporting each of his convictions. When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh evidence. Id. We will affirm the conviction unless "no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000) ). "The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict." Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001) ).
Residential Entry
Tasby argues that his conviction for residential entry must be reversed because he did not break and enter Henderson's apartment. In order to convict Tasby of residential entry as charged, the State had to prove that Tasby knowingly broke and entered Henderson's dwelling. I.C. § 35-43-2-1.5; App. 10. A person knowingly engages in conduct if, when he engages in the conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b). "In order to establish that breaking has occurred, the State need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized entry." McKinney v. State, 653 N.E.2d 115, 117 (Ind. Ct. App. 1995). The opening of an unlocked door is sufficient. Young v. State, 846 N.E.2d 1060, 1063 (Ind. Ct. App. 2006). The element of breaking may be entirely proved with circumstantial evidence. Id. However, a defendant's reasonable belief that he had permission of the dwelling's owner to enter is a defense to the charge of residential entry. Webster v. State, 708 N.E.2d 610, 614 (Ind. Ct. App. 1999), trans. denied.
Officer Adams testified that he told Tasby that Henderson no longer wanted him on the premises, and that he should leave. Both Officer Adams and Henderson observed Tasby leave the apartment complex. Henderson testified that Tasby did not have authorization or permission from her to return to her apartment later. Henderson testified that she fully closed her door before she left to stay at her neighbor's apartment. Tasby was later found by Officer Adams lying in Henderson's bed after he had been told that Henderson no longer wanted him around. Tasby even testified that he twisted the doorknob and opened the door. From this evidence, the jury could have reasonably inferred that Tasby opened Henderson's unlocked front door and entered her apartment, which is a sufficient breaking to sustain a residential entry conviction. His other argument, that he had a reasonable belief that he had Henderson's permission to enter based on certain statements of her neighbor, amounts to an invitation to reweigh the evidence, which we will not do. Drane, 867 N.E.2d at 146.
Theft
Tasby challenges the sufficiency of his theft convictions by asserting that he neither exerted unauthorized control over Henderson's cell phone and keys, nor did so with the intent to deprive her of any part of their use or value. In order to convict Tasby of theft as charged, the State had to prove that Tasby knowingly exerted unauthorized control over Henderson's property (her cell phone and keys), with the intent to deprive Henderson of any part of its value or use. I.C. § 35-43-4-2(a); App. 10. To "exert control over property" means, among other things, to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess. I.C. § 35-43-4-1(a). A person's control over property of another is "unauthorized" if it is exerted without the other person's consent. I.C. § 35-43-4-1(b)(1). The intent to deprive may be inferred from a defendant's conduct and the natural and usual sequence to which such conduct logically and reasonably points. Hayworth v. State, 798 N.E.2d 503, 508 (Ind. Ct. App. 2003). In other words, the trier of fact is entitled to infer intent from the surrounding circumstances. Id.
Henderson testified that when she returned to her apartment after Tasby initially left, she discovered that her cell phone and house keys were missing. She testified that this concerned her, and although Henderson did not immediately report the items missing, she testified that she intended to file a police report the next day. When Officer Adams searched Tasby, he found two cell phones in one pocket and a set of keys in another. Henderson identified her keys and one of the cell phones as hers. By carrying and concealing her items in his pocket, the jury had evidence that Tasby exerted control over Henderson's property. He also did so without her consent. The jury could also have inferred that it was Tasby's intent to deprive her of the items' value and use, since Tasby had the items in his pocket and did not return them to Henderson, even though he went back inside her apartment. Sufficient evidence supports Tasby's theft conviction.
Resisting Law Enforcement
Finally, Tasby challenges the sufficiency of the evidence supporting his conviction for resisting law enforcement, arguing that he did not knowingly and forcibly resist. In order to convict Tasby as charged, the State had to prove that he knowingly and forcibly resisted Officer Adams while Officer Adams was engaged in the execution of his duties. I.C. § 35-44-3-3(a)(1). Force is an element of this offense, and one "forcibly resists" when "strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties." Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009) (quoting Spangler v. State, 607 N.E.2d 720 (Ind. 1993)). However, the force need not rise to the level of mayhem, and our supreme court has acknowledged that more "modest" levels of resistance may be sufficient for a conviction. Graham, 903 N.E.2d at 965-66 (citing with approval Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 2005) where we affirmed a conviction for resisting law enforcement when a defendant in custody used a "modest level of resistance" by pushing officers away with his shoulders while cursing and yelling, and also "stiffened up" while officers attempted to put him in the vehicle such that the officers had to use force).
In Lopez v. State, 926 N.E.2d 1090 (Ind. Ct. App. 2010), trans. denied, we recently affirmed a conviction for resisting law enforcement on facts similar to those here. In Lopez, the defendant refused to stand to be handcuffed when ordered to do so by police officers, giving officers no choice but to pull him from the couch. Id. at 1093. When the officers pulled Lopez by the arms to remove him from the couch, he tried to pull away, and when Lopez was on the ground, the officers attempted to put his arms behind his back, but were unable to do so. Id. at 1094. We stated that "If the officers were unable to pull his arms out from under him, it is reasonable to infer that he was forcibly resisting their efforts rather than remaining entirely passive." Id.
Here, Officer Adams testified that he attempted to handcuff Tasby while Tasby was lying on Henderson's bed, but Tasby "forcibly" pulled his arm away. Tr. 79. After he was on the floor, Tasby still refused to give his hands to Officer Adams, and was straining and pulling against him. As Officer Adams was leading him out of the house, Tasby was still attempting to pull away, and Officer Adams had to use the staircase handrail to keep from falling. Thus, similar to the facts in Lopez, Tasby repeatedly pulled his arms away from Officer Adams and struggled against being handcuffed, in addition to attempting to pull away once restrained. Sufficient evidence supports his conviction for resisting law enforcement.
II. Prosecutorial Misconduct
Tasby next argues that his conviction should be reversed because the prosecutor engaged in misconduct by asking him on cross-examination about his use of specific aliases, alternate Social Security numbers, and an alternate date of birth. Tasby acknowledges that he did not object to these questions or raise the issue of prosecutorial misconduct for the trial court's review. A party's failure to present a contemporaneous trial objection asserting prosecutorial misconduct precludes appellate review of the claim. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). However, default may be avoided if the prosecutorial misconduct amounts to fundamental error. Id. To constitute fundamental error, the prosecutorial misconduct "must 'make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process [and] present an undeniable and substantial potential for harm.'" Id. (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).
"[A]n appellate claim of prosecutorial misconduct presented on appeal in the absence of contemporaneous trial objection will not succeed unless the defendant establishes not only the grounds for prosecutorial misconduct but also the additional grounds of fundamental error." Booher, 773 N.E.2d at 818. We review a properly preserved claim of prosecutorial misconduct by determining whether (1) the prosecutor engaged in misconduct, and, if so, (2) whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Id. "The gravity of the peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct." Id.
At trial, the prosecutor began his cross-examination of Tasby by asking whether or not he had used five different aliases. The prosecutor then inquired as to whether Tasby had ever used five other Social Security numbers, and an alternate date of birth. Tasby denied the use of all aliases, alternative Social Security numbers, and the date of birth. He explained that one of the names mentioned was that of his brother.
We agree with Tasby that the prosecutor's questions were improper, but do not think that these exchanges placed him in a position of grave peril, let alone amount to fundamental error. Although Tasby did not object to the prosecutor's questions, he responded to them, and was able to deny the use of all aliases, alternate Social Security numbers, and the other date of birth. He even explained that one of the names was that of his brother. The jury was free to accept Tasby's responses to the prosecutor's questions. Additionally, the inquiry, though improper, ended with the denial as the prosecutor did not seek to impeach with extrinsic evidence.
See Indiana Evidence Rule 608, which states that "[f]or the purposes of attacking or supporting the witness's credibility, other than conviction of a crime as provided in Rule 609, specific instances may not be inquired into or proven by extrinsic evidence." While the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation for truthfulness, the prosecutor may not inquire into specific instances of misconduct that have not resulted in convictions of crimes listed in Evidence Rule 609. Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006), trans. denied. In other words, a witness may not be impeached by specific acts of misconduct that have not resulted in criminal convictions. Id. We have previously observed that, under this rule, a trial court properly excluded evidence that a witness had previously used a false Social Security number and was fired from her job. Id.
Moreover, the State did not mention Tasby's responses in its initial final argument. Tasby, however, did address his responses, and impressed upon the jury his denials. The State responded in rebuttal, but primarily focused upon credibility issues attendant to Tasby's prior conviction for receiving stolen property, which the State raised during cross-examination and is permissible for impeachment purposes as a crime of dishonesty under Evidence Rule 609. See Fletcher v. State, 264 Ind. 132, 136, 340 N.E.2d 771, 774-75 (1976) (receiving stolen property, now part of theft, is a crime involving dishonesty or false statement for impeachment purposes).
Finally, we conclude that the probable persuasive effect on the jury was minimal given the amount of independent evidence supporting Tasby's conviction, which we have already discussed. Overwhelming independent evidence of guilt can serve to keep defendants from grave peril. Bassett v. State, 895 N.E.2d 1201, 1209 (Ind. 2008). We therefore conclude that the prosecutor's questions did not place Tasby in grave peril and did not deny him a fundamentally fair trial.
III. Admissibility of Demonstrative Evidence
After the State's redirect examination of Officer Adams, Tasby requested that Officer Adams step down from the witness stand and stand next to Tasby so that the jury could observe their size difference. The State did not lodge an objection, but the trial court denied Tasby's request. Tasby claims the trial court erred in refusing this demonstrative evidence because the size difference between the men was relevant to whether or not he was resisting. We disagree with Tasby that the trial court erred in refusing this evidence.
Demonstrative evidence is evidence that is offered for purposes of illustration and clarification. Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). To be admissible, the evidence need only be sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact. Id. However, like all evidence, the admissibility of demonstrative evidence is subject to the balancing of probative value against the danger of unfair prejudice. Id.; see also Dunlap v. State, 761 N.E.2d 837, 842 (Ind. 2002) ("The admissibility of demonstrative evidence must also meet the requirements of Rule 403, which balances probative value against prejudicial effect"). We afford trial court's wide latitude in balancing these concerns, and review their determinations for an abuse of discretion. Wise, 719 N.E.2d at 1196.
Indiana Rule of Evidence 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." During his cross examination of Officer Adams, Tasby asked Officer Adams to describe Tasby's build, to which he replied "Large." Tr. 85. Tasby then asked Officer Adams to read what he had written on an assessment sheet about Tasby's appearance and Officer Adams replied, "Fat. Heavy." Tr. 85. Tasby pressed Officer Adams during cross-examination as to whether Adams would be able to subdue Tasby alone, given Tasby's size, at one point leading off a question with "Sir, I am six (6) five (5) two hundred and somewhere in the area of eighty pounds." Tr. 92. The jury was able to observe Tasby's and Officer Adams's statures and builds in the courtroom proceedings. We therefore agree with the State that the demonstrative evidence would have been needlessly cumulative, and thus find no abuse of the trial court's discretion.
IV. Failure to Inquire as to an Instruction on Lesser-included Offenses
Tasby next argues that the trial court erred by failing to ask him whether he wanted an instruction on lesser included offenses. "A defendant waives any alleged error for failure to instruct on the lesser included offense by failing to tender the instruction he desires to the trial court." Williams v. State, 451 N.E.2d 687, 690 (Ind. Ct. App. 1983). Moreover, the failure of a trial court to sua sponte give instructions on lesser-included offenses does not constitute fundamental error. Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991).
This standard of review is not altered by Tasby's decision to represent himself because "[p]ro se litigants without legal training are held to the same standard as trained counsel and are required to follow procedural rules." Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied. "[C]ourts of this State have never held that a trial court is required to guide pro se litigants through the judicial system." Id. In Evans, we found no error when a court did not advise a post-conviction petitioner of rules and repercussions during his hearing. Id. Similarly, we decline to find that the trial court erred by not asking Tasby about whether he wanted instructions on lesser-included offenses. Regardless, Tasby was assisted by standby counsel who not only could have prompted Tasby to ask for such an instruction if he thought it warranted, but in fact spoke on Tasby's behalf during discussions on final instructions and informed the trial court that Tasby had no objection to those instructions. Tasby has waived any claimed error in the trial court's failure to do so.
V. Use of the Law Library and Access to Legal Materials
Tasby also argues that he was denied access to the prison library, and therefore his convictions should be reversed. We note, again, that Tasby did not raise this issue for the trial court, and therefore he has waived any claim of error on appeal. Waiver notwithstanding, our supreme court has held:
A defendant who chooses to proceed pro se must accept the hazards incidental to his position. Yager v. State (1982), Ind., 437 N.E.2d 454. In Engle v. State (1984), Ind., 467 N.E.2d 712, the defendant argued the trial court erred in denying his request for direct access to a law library. We found that his right to access to the court had not been undermined because he had access to legal materials and legal assistance through standby counsel. Id. at 715.Jenkins v. State, 492 N.E.2d 666, 668 (Ind. 1986).
Despite any lack of access to the prison law library, Tasby had court-appointed standby counsel who was available to provide him access to legal materials. His argument for reversal in this regard is therefore unavailing.
Conclusion
The State introduced sufficient evidence to support Tasby's convictions. The prosecutor's questions as to Tasby's use of aliases, alternate Social Security numbers, and an alternate date of birth, while improper, did not place Tasby in a position of grave peril or deny him a fundamentally fair trial. The trial court did not abuse its discretion when it refused Tasby's offered demonstrative evidence. It also had no duty to inquire as to whether Tasby wanted an instruction on lesser included offenses, and its decision not to do so on its own motion is not fundamental error. Finally, because Tasby had the assistance of standby counsel, he cannot claim error based upon a denial of access to the prison law library or legal materials.
Affirmed. FRIEDLANDER, J., and BROWN, J., concur.