COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW JON MCGOVERN STEVE CARTER
Louisville, Kentucky Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
ARTHUR JOHN BRYANT, )
vs. ) No. 31A01-0209-CR-365
STATE OF INDIANA, )
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger D. Davis, Judge
Cause No. 31D01-0106-MU-485
January 29, 2004
OPINION- FOR PUBLICATION
Appellant-defendant Arthur John Bryant appeals his conviction for Murder,
See footnote a felony, Theft,See footnote a
class D felony, and Obstruction of Justice,See footnote a class D felony, raising a
number of issues. Specifically, Bryant claims entitlement to reversal because: (1) an
inculpatory statement he made to his mother at the police station should have
been suppressed because it was improperly obtained by detectives who had eavesdropped and
recorded the conversation; (2) evidence he offered in an attempt to establish that
his father was the individual who had killed his stepmother was improperly excluded;
(3) certain song lyrics Bryant wrote that the State introduced into evidence should
have been excluded because they were irrelevant and prejudicial; and (4) evidence regarding
incidents where he had choked his mother and had threatened her on prior
occasions was irrelevant and prejudicial and should have been excluded. Bryant also
argues that the sentence imposed was inappropriate. Concluding that none of the
errors that Bryant present amount to reversible error, we affirm the convictions and
The facts most favorable to the verdict are that seventeen-year-old Bryant was living
with his father, Lee, and stepmother, Carol. KristiBryants motherdetermined that she could
no longer control her sons behavior. At some point, Bryant had been
adjudicated a juvenile delinquent for committing a number of offenses.
It was revealed that Bryant stole from Kristi, threatened her with a baseball
bat and choked her on at least one occasion. Bryant had also threatened
to kill Carol and expressed hostility toward her in some poetry he had
written, which included references to a person being found dead in the trunk
of an automobile.
On Tuesday, January 4, 2000, Bryant and Carol argued. When Lee returned home
from work the following day, neither Bryant nor Carol was at home.
Lee eventually discovered a note Bryant had written explaining that he was going
to spend the night with his friend, Doug Kintner. However, when Carol
did not return home, Lee became concerned and telephoned Carols mother and some
other people. Lee also drove to various places in search of his
wife. When Carol had still not returned the following day, Lee reported
her missing to the police.
The police discovered Carols vehicle early Saturday morning on State Road 56 in
Washington County. At Kristis suggestion, the police looked inside the trunk and
found Carols dead body wrapped in a comforter. An investigation revealed that
Carol had died from asphyxiation as a result of ligature strangulation. Thereafter,
the police located Bryant and arrested him in Salem on January 8, 2000.
At the time of the arrest, Bryant was approximately one month away
from his eighteenth birthday.
It was determined that between Wednesday and Saturday, Bryant had driven Carols vehicle,
with her body inside the trunk. He showed off the car to
his friends, gave away some of Carols jewelry, and sold some of her
property to a pawnshop.
After the arrest, Bryant told his mother that he could not take any
more of Carols crap, and he also had told Lee that it was
either her or me. Tr. p. 1351-55; 1449-50, 1950-52. DNA analysis
on a pair of jeans recovered by the police from the trunk of
Carols car showed that the jeans contained Carols bodily fluids, and that Bryant
had worn the jeans. While at the police station, Detective Richard Bauman
of the Harrison County Sheriffs Office attempted to question Bryant. Bryant immediately
requested the presence of an attorney, whereupon Detective Bauman permitted him to consult
with Kristi in an interview room. However, Detective Bauman and Officer William
Whelen secretly listened to the conversation and recorded it by means of a
hidden microphone and video camera. While the recording is inaudible, Detective Bauman
and the officer both testified [d]uring the time set for Kristi and [Bryant]
to talk, [Bryant] informed her that he had told his father that he
had a problem with Carol. He told his father to take care
of it or he would. He said he took care of it.
Tr. p. 271, 277, 1355. Detective Bauman initially testified at a
motion to suppress hearing and in his deposition that he heard this statement
as he entered the interview room. However, he changed his testimony at
trial, indicating that he heard this statement while secretly listening to the conversation
by means of the hidden microphone. While Bryant objected to Officer Baumans
testimony, he failed to object to the statements made by Officer Whelen.
Also at trial, the State established that Bryant enjoyed listening to rap music
and would spend time rewriting the lyrics to certain songs. Some of
the lyrics Bryant wrote referenced placing a body in the trunk of a
car. At some point, the police discovered the poems, and the State
offered them into evidence in an effort to insinuate that they foretold Carols
Bryants defense at trial was that Lee had committed the murder. In
an effort to establish that defense, Bryant made offers of proof to demonstrate
that Carol and Lees relationship was violent. The particular evidence sought to
establish that Carol feared Lee and wanted to leave him. Several witnesses
testified that Lee had physically attacked Carol several months before the murder.
These witnesses also testified that Lee would choke Carol during his attacks.
Two officers also testified regarding a domestic disturbance that occurred between Lee and
Carol on February 5, 1995. Both officers testified that Carol was bleeding
and had redness around her neck. A life-long friend also testified about
Lees violent attacks on Carol. Two of Carol and Lees neighbors testified
that they witnessed Lee attack Carol in Carols front yard on one occasion.
Another neighbor witnessed Lee shove Carol in September or October prior to
Carols death. The trial court ultimately excluded the admission of most of
this evidence on relevancy and hearsay grounds. The trial court also noted
that the prior acts of violence were too remote in time as a
basis for his ruling.
At conclusion of the jury trial on August 21, 2001, Bryant was convicted
on all counts. Thereafter, the trial court sentenced him to sixty years
for Murder, two years and three months for theft, and two years and
three months on the obstruction of justice charge. Bryant was ordered to
serve the sentences consecutively to each other and consecutive to the sentences that
he had received in all other cases. As a result, Bryant was
ordered to serve sixty-four and one-half years in this cause, plus the sentences
in the other causes for a total of eighty-one and one-half years.
Bryant now appeals.
DISCUSSION AND DECISION
I. Inculpatory Statements
Bryant first claims that he is entitled to a new trial because police
officers secretly listened toand vieweda conversation that Bryant had with his mother in
an interview room at the police station. In essence, Bryant contends that
the incriminating statements he made should have been suppressed because the police conduct
amounted to a violation of his Fourth Amendment rights under the United States
Constitution as well as the rights guaranteed under Article I, Section 11 of
the Indiana Constitution. Appellants Br. p. 8.
Inasmuch as Bryant was seventeen-years-old at the time of his arrest, the provisions
of our juvenile waiver of rights statute, Indiana Code section 31-32-5-1, are applicable
in these circumstances. In relevant part, this statute makes it clear that
a right guaranteed to a child under the United States or Indiana Constitution
may be waived only: (2) by the childs custodial parent, guardian, custodian,
or guardian ad litem if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver.
We have observed that strict compliance governing waiver of the constitutional rights of
a child is required in order to protect the childs rights. Hickman
v. State, 654 N.E.2d 278, 281 (Ind. Ct. App. 1995). Moreover, the
State must show beyond a reasonable doubt that a juveniles waiver of the
right to remain silent was made knowingly, intelligently and voluntarily, which determination is
made from the totality of the circumstances, considering only that evidence favorable to
the State and any uncontested evidence. Tingle v. State, 632 N.E.2d 345,
352 (Ind. 1994).II. Exclusion of Evidence Regarding An Alleged Hostile Relationship Between Lee and
Inasmuch as Bryant was a juvenile at the time the statements were made,
the police could not attempt to question him without first permitting him to
have a meaningful consultation with a parent or guardian. Our juvenile waiver
of rights statute requires actual consultation of a meaningful nature. D.D.B. v.
State, 691 N.E.2d 486, 487 (Ind. Ct. App. 1998). Moreover, the consultation
can be meaningful only in the absence of police pressure. Washington v.
State, 456 N.E.2d 382, 383-84 (Ind. 1983).
In this case, the evidence shows, and the State concedes, that police monitoring
and videotaping of a consultation between a juvenile and his parent or guardian
does not comply with the concept of meaningful consultation. Appellees Br. p.
8. Moreover, the State acknowledges that [t]he police action in [this] case
certainly violated the spirit of the statute. Appellees Br. p. 8.
Inasmuch as there is no dispute that Bryant never waived his rights, the
statements as testified to by Detective Bauman should not have been admitted into
evidence. Moreover, we find that in these circumstances, the officers conduct with
regard to the eavesdropping and recording of Bryants conversation with his mother was
particularly reprehensible and egregious.
Be that as it may, however, such an error is subject to harmless
error analysis. Specifically, this court has determined that erroneously admitted evidence that
is merely cumulative of other evidence in the record is harmless and is
not grounds for reversal. Williams v. State, 782 N.E.2d 1039, 1047 (Ind.
Ct. App. 2003), trans. denied. That is, when a defendant fails to
object to the introduction of evidence, makes only a general objection, or objects
only on other grounds, the defendant waives the suppression claim. G.J. v.
State, 716 N.E.2d 475, 478 (Ind. Ct. App. 1999).
Here, the record shows that Bryant objected at trial to Detective Baumans statement
that he overheard Bryant tell Carol that I told dad I had a
problem and if he didnt take care of it, I would, and I
did. Tr. p. 1355. However, it is undisputed that Bryant failed
to object to the same testimony when it was offered by Officer Whelan.
Tr. p. 1447-49. Additionally, Bryant never objected to Kristis testimony regarding
the statement that he had made, as well as others that had been
made during the conversation. Thus, inasmuch as Bryant failed to lodge a
proper objection, he has not preserved this claim on appeal. As a
result, Bryant is not entitled to a reversal on this basis.
Bryant contends that the trial court erred in excluding evidence that Lee had
physically abused and attempted to strangle Carol on prior occasions. Specifically, Bryant
argues that evidence establishing that Lee attacked Carol during the course of their
marriage was admissible to show Lees motive of hostility to kill Carol.
Thus, Bryant contends that the trial court violated his federal and state constitutional
right to present a defense. Appellants Br. p. 9.
In resolving this issue, we note that the trial court is vested with
broad discretion in ruling on the admissibility of evidence. Edmond v. State,
790 N.E.2d 141, 144 (Ind. Ct. App. 2003), trans. denied. An evidentiary
ruling will be reversed on appeal only for an abuse of that discretion.
Id. An abuse of discretion occurs when the trial courts ruling is
clearly against the logic and effect of the facts and circumstances. Id.
To be sure, a trial courts decision to exclude evidence is afforded
great deference on appeal, and that decision will be reversed only for a
manifest abuse of discretion that denies the defendant a fair trial. Swann
v. State, 789 N.E.2d 1020, 1023-24 (Ind. Ct. App. 2003), trans. denied.
In an effort to demonstrate that Lee was the individual who killed Carol,
Bryant sought to introduce evidence of Lees hostile and violent relationship with Carol.
In the offer of proof, Bryants counsel attempted to establish that
Carol feared that Lee would kill her, that Lee would strangle Carol during
fights, and that Lee beat her on a regular basis. Tr. p.
1726-29, 1772-83. As will be explained in more detail below, four witnesses
alleged that Lee had attacked Carol at a tavern, and one of them
believed that the incident had occurred approximately eighteen months prior to Carols death.
Tr. p. 1824. The trial court excluded the evidence, noting that
three of the four witnesses were not convincing about the timeframe of the
tavern attack. Tr. p. 1889. Thus, it was determined that the
incident was too remote in time to be admitted. Tr. p. 1889.
Pursuant to Indiana Evidence Rule 401, evidence is relevant if it has any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would
be without the evidence. Evidence that tends to show that someone else
committed the offense meets the relevancy definition. Dickens v. State, 754 N.E.2d
1, 5 (Ind. 2001). Moreover, a defendant has the right to present
evidence that another person committed the crime for which the defendant is charged.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). Additionally,
it has been determined that evidence of motive is relevant in a criminal
case. Cook v. State, 734 N.E.2d 563, 567 (Ind. 2000).
However, even though certain evidence may be relevant, it may be excluded where
inadmissible hearsay is offered or when the evidence involves inadmissible crimes, misconduct or
other wrongs. Ind. Evidence Rule 802; Ind. Evidence Rule 404(b). Evidence
may also be excluded when its probative value is substantially outweighed by the
danger of unfair prejudice. Ind. Evidence Rule 403. The above-cited rules
are applicable to a circumstance where a defendant proffers evidence that a third
party may have committed the crime. See Smith v. State, 754 N.E.2d
502, 504-06 (Ind. 2001).
In this case, Bryant proffered evidence from Kathy Hammack that a few months
prior to Carols death, she observed Carol sitting in a car outside of
a tavern, that Carol was crying, and that she had a black eye
and bruise marks on her neck. In response to Hammocks questions as to
what had happened, Carol told Hammack that Lee had tried to kill her.
Tr. p. 1774. In our view, such evidence was classic hearsay,
inasmuch as it was an out of court statement offered for the truth
that Lee tried to kill Carol. See Davenport v. State, 749 N.E.2d
1144, 1149 (Ind. 2001).
However, Bryant maintains that the evidence should have been admitted pursuant to the
excited utterance exception to the hearsay rule. Before evidence may be admitted
under this exception, Indiana Evidence Rule 803(2) requires that the statement must relate
to a startling event that was made while the declarant was under the
stress of the excitement caused by the event. Whether a particular statement
qualifies as an excited utterance turns on whether the statement was inherently reliable
because the declarant was under the stress of the event and unlikely to
make a deliberate falsehood. Davenport, 749 N.E.2d at 1148. The time
period between the statement and the startling event is one of the factors
to be considered. Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000).
Whether the statement was made in response to an inquiry is also
a factor for consideration. Id.
Here, there is no evidence relating the amount of time between whatever event
caused Carol to be upset and her statement to Hammack. Hammacks testimony
that the black eye and slap mark appeared to be recently inflicted fails
to provide a reliable gauge for the length of time between the infliction
of the injuries and the time that Hammack observed the injuries. In
essence, Hammacks opinion that the injuries were fresh, tr. p. 1772-74, permits only
speculation as to whether the startling event was near in time or remote.
See Davenport, 749 N.E.2d at 1149 (observing that statements made more than
one-half hour after the startling event are generally not admissible as excited utterances).
Additionally, it is apparent that Carols statement was made in response to Hammacks
inquiry. Such a reaction increases the likelihood that the statements were not
made under the stress of the startling event. See Davis v. State,
796 N.E.2d 798, 802-03 (Ind. Ct. App. 2003) (observing that the key factor
under this exception to the hearsay rule is that the declarant be under
the stress of the precipitating event when the statement is made). Moreover,
it is apparent that Carol was capable of rational thought because the evidence
also established that Carol attempted to call other members of her family to
pick her up after the alleged incident had occurred. Tr. p. 1775.
In some instances, our trial courts have admitted statements under this exception when
several hours have elapsed between the event and the statements. See Lieberenz
v. State, 717 N.E.2d 1242, 1246 (Ind. Ct. App. 1999), (observing that a
rape victims statement that she made to a police a number of hours
after the incident was admissible under the excited utterance exception). Moreover, we
have recognized that while a statement is generally less likely to be admitted
if it is made long after the startling event, the amount of time
that has passed is not dispositive. Id.
In this case, it is apparent that the trial court made the determination
that Carol was not under the stress of excitement caused by the startling
event when the statement was made, and we decline to second-guess that determination.
Thus, under these circumstances, we cannot say that the trial court abused
its discretion in concluding that Hammacks testimony relating Carols statement should not have
In a separate but related argument, Bryant maintains that Carols alleged later statement
that she made to Hammack that Lee said he would kill us all,
tr. p. 1774-76, was admissible under the hearsay exception known as present sense
impression. This exception to the hearsay rule applies to statements that
describe or explain a material event, condition or transaction, made while the declarant
was perceiving the event, condition or transaction, or immediately thereafter. Ind. Evidence
Rule 803(1). We note that Bryant has raised this contention for
the first time on appeal. Thus, it is waived. See Taylor
v. State, 710 N.E.2d 921, 923 (Ind. 1999) (holding that a defendant is
limited to the specific grounds argued to the trial court and cannot assert
new bases for admissibility of statements for the first time on appeal).
To be sure, an offer of proof should identify not only anticipated testimony,
but also the grounds on which the evidence is believed to be admissible.
Id. Because Bryant did not advance the theory of present sense
impression for the admission of Hammacks testimony at the trial level, his
Bryant also proffered evidence from Barbara Buchanan, Jewel Corn, Anthony Shirley, and William
Noe concerning an incident at a tavern where Lee allegedly punched Carol,
as well as evidence suggesting that while Carol worked at the tavern she
often would appear with bruises and marks on her neck. Tr. p.
1788-1827. With the exception of Noe, the witnesses could not state with
any certainty as to when the incident occurred. According to Noe, the
incident occurred in August, 1998, and Carol was killed on January 5, 2000.
Tr. p. 1827. Thus, the prior misconduct evidence that Bryant proffered
regarding Lee concerned events nearly one-and-one-half years before Carol died. As a
result, we conclude that the trial court properly concluded that this evidence was
too remote to have any probative value. See Roop v. State, 730
N.E.2d 1267, 1270 (Ind. 2000).
We also observe that the evidence Bryant offered establishing that Carol told Buchanan
that Lee said he would kill her sooner or later, and testimony from
Shirley that Carol told him Lee choked her was likewise too remote.
Bryant contends, however, that this evidence showed Carols fear of Lee, and should
have been admissible under the state of mind exception to the hearsay rule.
Indiana Evidence Rule 803(3) indeed recognizes such an exception to the hearsay rule.
However, this exception is limited to three situations: (1) to show
the intent of the victim to act in a particular way; (2) where
the victims state of mind is placed in issue; and (3) sometimes to
explain physical injuries suffered by the victim. Hatcher v. State, 735 N.E.2d
1155, 1161 (Ind. 2000).
Here, Bryant maintains that Carols then-existing state of mind was placed in issue
by Lees testimony. During the States case-in-chief, Lee admitted that he had
once questioned Carol about whether she was having an affair. Tr. p.
1530. Lee further testified that Carol went along with him whenever his
band played. Tr. p. 1536-37. Contrary to Bryants argument, such evidence
did not portray Lee and Carols relationship as ideal. Thus, we cannot
say that Carols then existing state of mind was placed into evidence by
this testimony. Rather, it was not until Lee was questioned during Bryants
case-in-chief that he made the statements that his relationship with Carol was good,
that it had some ups and downs, and there was no argument regarding
Carols purported threats to leave him. Tr. p. 2035-39. Inasmuch as
this testimony was offered before Lee testified for the defense, Bryant may not
successfully claim that the State opened the door to such evidence. Bryant
is therefore prohibited from bootstrapping this evidence into admission by offering it and
then claiming that the State put it in issue. See Bassett v.
State, 795 N.E.2d 1050, 1052 (Ind. 2003) (recognizing that the State could not
admit then existing state of mind evidence where the defendant did not put
the victims state of mind in issue); see also Willey v. State, 712
N.E.2d 434, 444 (Ind. 1999).
Bryant then sought to offer evidence from police officers regarding Lees battery of
Carol in 1995 that occurred five years before Carols murder. Tr. p.
1828-35; 1856-62. Our supreme court has recognized that evidence of prior bad
acts greater than three years from the date of the charged incident has
low probative value. See Spencer v. State, 703 N.E.2d 1053, 1056 (Ind.
1999). As a result, Bryant has failed to show that the trial
court abused its discretion in excluding the proffered testimony of Lees prior bad
acts from 1995.
In our view, it is readily apparent that Bryant proffered this evidence to
establish the forbidden inference that if Lee had choked Carol before, then he
likely choked her and caused her death. Such evidence is inadmissible for
not only the prior bad acts of the defendant, but for other witnesses
as well. See Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003)
(holding that the admissibility of prior bad acts by persons other than defendants
is subject to Indiana Evidence Rule 404(b)).
Finally, contrary to Bryants argument that he was denied the opportunity to present
a defense, the trial court permitted him to present evidence of Lees prior
bad acts against Carol that were closer in time to the date of
her murder. Tr. p. 1897-98, 1901, 1906, 1909-10, 1913-14. Thus, we
conclude that there was no error with respect to this issue.
III. Admission of Bryants Lyrics
Bryant next claims that the trial court improperly allowed some song lyrics he
had composed to be admitted into evidence as well as the fact that
he enjoyed rap music. Bryant contends that this evidence was irrelevant, prejudicial
and constituted impermissible character evidence. Therefore, he claims entitlement to a reversal
on this basis.
At trial, the State offered two rap song lyrics that Bryant either composed
or plagiarized. The exhibits were offered as an indication of Bryants intent
regarding Carols murder. Both sets of lyrics contained the line: Cuz
the 5-0 wont even know who you are when they pull yo ugly
ass out the trunk of my car. Ex. 104, 105. Again,
evidence is relevant where it has any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Ind.
Evidence Rule 401. Inasmuch as Carols body was recovered from the trunk
of her car, and Bryant had driven that vehicle for several days visiting
friends and telling them that he was the owner, the reference in the
exhibits to finding a body in the trunk of my car made it
more probable that Bryant killed Carol and placed her body in the trunk.
Thus, such evidence was relevant, and the trial court did not abuse
its discretion in admitting the exhibits on this basis.
Additionally, while some of the language in the exhibits could be construed as
highly prejudicial to Bryant because they contain profanity, racial slurs, degrading references to
women and references to murder and drug use, he failed to argue at
trial that any part of the poems should be redacted. To the
contrary, Bryant maintained that the exhibits had to be admitted in their entirety
if the trial court was going to allow them. Tr. p. 1516-20.
As a result, Bryant invited any unfair prejudice that stemmed from the
admission of the exhibits. To be sure, a defendant is precluded from
inviting an error at trial and subsequently arguing on appeal that the error
requires a reversal. M.T. v. State, 787 N.E.2d 509, 513 (Ind. Ct.
Bryant goes on to maintain, however, that the exhibits tended to establish only
that he was of bad character and impermissibly implied that he killed Carol.
Thus, Bryant contends that the lyrics should have been excluded under Indiana
Evidence Rule 404(b).
In addressing this contention, we note that evidence of prior bad acts, crimes
or wrongs allegedly committed by the defendant that are used to prove the
defendants character and show that he acted in a like manner in the
present case are prohibited. Oldham v. State, 779 N.E.2d 1162, 1171 (Ind.
Ct. App. 2002), trans. denied. We have observed that the purpose of
Rule 404(b) is to prevent the jury from assessing the defendants guilt in
the present case on the basis of his past propensities. Ziebell v.
State, 788 N.E.2d 902, 908 (Ind. Ct. App. 2003). Evidence of prior
bad acts, crimes, or wrongs by the defendant is not admissible where it
is offered for the sole purpose of producing the forbidden inference that the
defendants present charged conduct is in conformity with his prior bad conduct.
Urdarbe v. State, 749 N.E.2d 562, 564 (Ind. Ct. App. 2001). Such
evidence, however, is admissible if it bears on some issue other than a
defendants criminal propensity and its probative value is not substantially outweighed by the
danger of unfair prejudice. See Craun v. State, 762 N.E.2d 230, 236
(Ind. Ct. App. 2002), trans. denied. The trial courts admission of prior
bad acts or misconduct evidence will be affirmed on appeal if it is
sustainable on any basis in the record. Id.
Here, Bryant has failed to show that the exhibits constituted evidence of any
prior crime or misconduct. Even so, it has been established that prior
crimes, misconduct, or bad acts evidence may be admitted if that evidence is
relevant to the issue of a defendants intent. Evid. R. 404(b); Murray v.
State, 742 N.E.2d 932, 934 (Ind. 2001). This exception, however, is limited
to those instances where the defendant goes beyond merely denying the charged culpability
and affirmatively presents a claim of particularly contrary intent. Crain v. State,
736 N.E.2d 1223, 1235 (Ind. 2000). Throughout these proceedings, Bryants defense was
that he did not murder Carol, but that someone else did. To
be sure, Bryant specifically accused his father of committing the murder. Thus,
Bryant specifically and affirmatively placed before the jury a contrary intent concerning the
charged offenses. Under these circumstances, the exhibits were relevant on the
contested issue of Bryants intent because the exhibits tended to show that he
had a hostile and violent attitude towards Carol.
In addition to the above, it has also been established that prior misconduct
evidence may be admitted to rebut a specific factual claim raised by the
defendant. Koo v. State, 640 N.E.2d 95, 101 (Ind. Ct. App. 1994),
trans. denied. The exhibits, containing the reference to the police finding a
body in the trunk of a car, were relevant to rebut Bryants claim
that Lee murdered Carol. See Evans v. State, 727 N.E.2d 1072, 1080
(Ind. 2000) (recognizing that evidence of a defendants prior bad acts is relevant
to directly rebut the defendants claim that another person was the initial aggressor).
Thus, it was reasonable for the trial court to have admitted the
exhibits on this basis.
Finally, while the exhibits may have been relevant, our inquiry does not stop
here. That is, we must also determine whether the trial court abused
its discretion in balancing the probative value of the exhibits against the tendency
to prejudice the defendant. Id. at 1079. Properly relevant prior misconduct
or evidence of bad acts is inadmissible only where its probative value is
substantially outweighed by the danger of unfair prejudice. See Crain, 736 N.E.2d
at 1236. As indicated above, it was Bryant who insisted on including
the exhibits in their entirety if any part of them was to be
admitted. Thus, Bryant invited any unfair prejudice resulting from the contents
of the exhibits, and he cannot now claim error on such grounds.
IV. Bryants Prior Acts of Violence Against Kristi
Bryant next claims that the trial court abused its discretion in admitting evidence
that he had attempted to choke Kristi and chase her with a baseball
bat on a prior occasion. Bryant maintains that this evidence constituted irrelevant
and prejudicial character evidence and that the alleged attacks on Kristi had no
relevance as to whether he had murdered Carol.
Although Bryant attacks the admission of the evidence on relevancy grounds, our supreme
court has determined that evidence that is otherwise inadmissible may become admissible when
the defendant opens the door to questioning on that evidence. Kubsch v.
State, 784 N.E.2d 905, 919 n. 6 (Ind. 2003). In order to
open the door, the evidence relied upon must leave the trier of fact
with a false or misleading impression of the facts related. Ortiz v.
State, 741 N.E.2d 1203, 1208 (Ind. 2001).
Here, during the direct examination of defense witness Stephanie Ringer, who was Bryants
parole officer, Bryants counsel asked about her knowledge as to why Bryant stopped
living with Kristi. In response, Ringer testified that Bryant moved out and
lived with his father because of an incident where Bryant had taken Kristis
truck and driven it to another county. During a sidebar conference, the
State maintained that Bryant had opened the door during Ringers testimony to questioning
regarding the additional and complete reasons why Bryant went to live with his
father. The trial court agreed, and the State was then permitted to
pursue that line of questioning. Tr. p. 1943. Kristi then testified
that Bryant was out of control, and she thought that his father could
do better. Tr. p. 1944. Kristi then acknowledged that she was
afraid of Bryant, that he stole checks from her and that, on one
occasion, he chased her with a baseball bat and choked her. Tr.
In light of this testimony, it is quite apparent that Ringers response to
Bryants questioning left the jury with the false and misleading impression that Kristi
sent Bryant to live with his father only because he took her truck
without permission on one occasion. Based upon Kristis response to the States
questioning, the real reason that Bryant went to live with Lee was because
Bryant was out of control, Kristi was afraid of him, and he had
tried to kill her. In other words, the situation that actually occurred
was markedly different than portrayed from Bryants questioning of Ringer. Inasmuch as
Bryant first injected into the trial the subject of why Kristi sent him
to live with his father, the State could conduct further questioning on the
subject and present the jury with the complete factual situation. See Kubsch,
784 N.E.2d at 919 (holding that where a defendant presented evidence that he
did not have access to a handgun, the door was opened to hearsay
evidence that the defendant in fact had access to a handgun). Thus,
we cannot say that the trial court abused its discretion by allowing into
evidence the testimony from Bryants mother regarding the true reason why she sent
him to live with his father.
V. Inappropriate Sentence
As a final issue, Bryant contends that he was inappropriately sentenced. Specifically,
he maintains that the trial court erred in finding that Bryants history of
substance abuse was an aggravating circumstance. He also contends that the trial
court erred in failing to assign significant weight to his youthful age and
urges that the sentence was inappropriate given [his] alleged offense and his character.
Appellants Br. p. 10.
A. Aggravating and Mitigating Circumstances
In determining whether a sentence is appropriate, we consider the factors listed as
aggravators and mitigators under Indiana Code section 35-38-1-7.1, each of which is merely
an amplification of the considerations of the nature of the offense and character
of the offender addressed by Appellate Rule 7(B). We examine the record
to determine whether the trial court sufficiently explained its reasons for selecting the
sentence it imposed. Sipple v. State, 788 N.E.2d 473, 479-80 (Ind. Ct.
App. 2003), trans. denied.
The trial court is not required to find mitigating factors, or to accept
as mitigating, the circumstances proffered by the defendant. Powell v. State, 751
N.E.2d 311, 317 (Ind. Ct. App. 2001). Only when the trial court
fails to find a significant mitigator that is clearly supported by the record
is there a reasonable belief that it was overlooked. Kien v. State,
782 N.E.2d 398, 415 (Ind. Ct. App. 2003), trans. denied. However, it
is in the sole discretion of the trial court to determine which aggravating
and mitigating circumstances to consider and to determine the weight accorded each of
these factors. Perry v. State, 751 N.E.2d 306, 309 (Ind. Ct. App.
2001). Moreover, the trial court is not obligated to explain why it
has found that a proffered mitigating factor does not exist. Creager v.
State, 737 N.E.2d 771, 782 (Ind. Ct. App. 2000), trans. denied.
With respect to aggravating circumstances, the existence of only one is sufficient to
support an enhanced sentence. Buzzard v. State, 712 N.E.2d 547, 554 (Ind. Ct.
App. 1999), trans. denied. When the sentencing court improperly applies an
aggravating circumstance but other valid aggravating circumstances exist, a sentence enhancement may still
be upheld. Bacher v. State, 722 N.E.2d 799, 803 (Ind. 2000).
Before imposing the sentence, the trial court must: (1) identify significant aggravating
and mitigating circumstances; (2) state the specific reason why each circumstance is aggravating
and mitigating; and (3) demonstrate that the aggravating and mitigating circumstances have been
weighed to determine that the aggravators outweigh the mitigators. Powell, 751 N.E.2d
at 315. A sentence enhancement will be affirmed if, after due consideration
of the trial courts decision, this court finds that the sentence was appropriate
in light of the nature of the offense and the character of the
offender. See Ind. Appellate Rule 7(B).
At the sentencing hearing, the trial court identified the following as aggravating circumstances:
(1) Bryants criminal history; (2) his extensive illegal drug activity; and (3), that
Bryant, based upon his character and condition, attitude, and risk of committing criminal
offenses in the future, is in need of correctional rehabilitative treatment that can
best be provided in a penal facility. Tr. p. 2262-63.
With respect to the mitigating circumstances, the trial court noted Bryants youth, his
difficult childhood and the fact that he had been depressed and suicidal on
With regard to Bryants argument that his drug abuse history should have been
considered a mitigating circumstance rather than an aggravator, we note that he failed
to present this claim at the sentencing hearing. Thus, he has waived
the issue. See Simms v. State, 791 N.E.2d 225, 233 (Ind. Ct.
App. 2003). Moreover, the record demonstrates that Bryant was aware of his
drug and alcohol problem, yet he had not taken any positive steps to
treat his addiction. Tr. p. 500-03. Thus, the trial court did
not err in determining that his substance abuse was an aggravating factor.
See Bennett v. State, 787 N.E.2d 938, 948 (Ind. Ct. App. 2003), trans.
denied (holding that the defendants alcoholism could properly have been considered an aggravating
circumstance); Hornbostel v. State, 757 N.E.2d 170, 184 (Ind. Ct. App. 2001), trans.
denied (recognizing that drinking is not to be considered a mitigating circumstance).
While Bryant also contends that the trial court failed to give sufficient weight
to the mitigating factor of his youth, our supreme court has held that
youthful age does not automatically qualify as a significant mitigator. See Gross
v. State, 769 N.E.2d 1136, 1141 n. 4 (Ind. 2002). Moreover, Bryant
was not so youthful. Specifically, he was only one month shy of
his eighteenth birthday when he murdered Carol. Under these circumstances, we cannot
say that the trial court abused its discretion in finding Bryants youth to
be only a moderate mitigating circumstance. Finally, when considering the factors identified
by the trial court at sentencing, it is apparent to us that the
relevant aggravators and mitigators were sufficiently considered and balanced. Thus, Bryants
claim with respect to this issue must fail.
Having evaluated the aggravating and mitigating factors in this case, the question remains
as to whether the sentence is inappropriate pursuant to Appellate Rule 7(B) and
must be revised. Under Appellate Rule 7(B), a court is to initially
focus on the presumptive sentence that may be imposed following a conviction for
a particular class of felony. Rodriguez v. State, 785 N.E.2d 1169, 1179
(Ind. Ct. App. 2003), trans. denied.
In essence, Bryant argues that his sentence is inappropriate because he was not
among the worst of offenders. At the sentencing hearing, the trial court
considered Bryants character and observed that he had no respect for Carol or
for his own mother. Tr. p. 2261. The trial court went
on to note that Bryant was not credible. Tr. p. 2262.
As recounted above, the evidence established that Bryant strangled Carol and hid her
body inside the trunk of her car, which he then stole. Bryant
then stole jewelry, sold or gave some of it away and drove Carols
vehicle around town. All these actions occurred while Carols dead body was
in the trunk of the vehicle. Additionally, Bryant sought to escape responsibility
for the offense by attempting to implicate his father in the crime.
Tr. p. 1568-76.
We note that Bryant was not sentenced to the maximum and consecutive sentences
that could have been imposed for the commission of these offenses. As
a result, when considering the nature of the offenses and Bryants character, we
cannot say that the sentence Bryant received was inappropriate. Thus, the sentence
may stand, and we decline to revise it.
In light of our discussion of the issues above, we conclude that the
eavesdropping and recording of the conversation by police officers that Bryant had with
his mother after the arrest, though inappropriate and appalling, did not give rise
to reversible error in these circumstances. We also note that the trial
court did not abuse its discretion in excluding evidence pertaining to the allegedly
hostile relationship between Carol and Lee, and further hold that the trial court
did not err in admitting the song lyrics into evidence that Bryant had
written. Moreover, we conclude that the trial court properly admitted evidence of
prior injuries that Bryant had inflicted upon Kristi as well as evidence that
Kristi feared Bryant. Finally, we decline to revise Bryants sentence.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and RILEY, J., concur.
Ind. Code § 35-42-1-1.
Footnote: Ind. Code § 35-43-4-2.
Footnote: Ind. Code § 35-44-3-4.