ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC SALTZMANN STEPHEN CARTER
Anderson, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KURTIS R. HALL, )
vs. ) No. 48A02-0105-CR-285
STATE OF INDIANA, )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Dennis D. Carroll, Judge
Cause No. 48D01-0007-CF-258
June 10, 2002
OPINION FOR PUBLICATION
Appellant-Defendant Kurtis Hall (Hall) appeals his convictions of Burglary, a Class B felony
See footnote ,
Theft, a Class D felonySee footnote and Auto Theft, a Class D felonySee footnote .
Hall presents three issues for review:
Whether the trial court abused its discretion by permitting the State to impeach
its witness Donald Choate with evidence restricted by Indiana Trial Rule 609(b);
Whether the trial court violated Halls right to due process when refusing an
instruction on receiving stolen property; and
Whether the trial court improperly sentenced Hall in reliance upon Halls habitual offender
status as a sentencing aggravator.
Facts and Procedural History
On March 29, 2000, David Essex returned to his Fortville home to find
his sliding glass door had been pried open and his home burglarized.
Among the items missing from the residence were 23 shotguns and rifles, 4
handguns, knives, a leather coat and other clothing. A 1997 GMC pickup
truck, a 1998 GMC pickup truck and a travel trailer were also missing.
Fortville police questioned Amy Lemon, one of Essexs masonry employees who also occasionally
cleaned his house. Eventually, Lemon implicated Hall in the burglary. Lemon
informed the police that she had observed some of Essexs property in Halls
possession. Further, Lemon stated that Hall had confessed that he and an
accomplice, Donald Choate (Choate), had burglarized the Essex home. The 1998 pickup
truck was recovered in Indianapolis. The 1997 pickup truck was recovered at
Halls residence in Indianapolis. The travel trailer was found on property owned
On July 6, 2000, the State charged Hall with Burglary, a Class B
felony, Theft, a Class D felony, and Auto Theft, a Class D felony.
The State further alleged that Hall was a habitual offender. Hall
was tried before a jury on January 31 and February 1, 2001.
He was found guilty of all counts against him. On February 26,
2001, the trial court imposed upon Hall an aggregate sentence of forty years,
with ten years suspended.See footnote Hall now appeals.See footnote
Discussion and Decision
I. Impeachment of Choate
Choate was called by the State to testify during its case-in-chief. The
State had given notice of its intention to introduce Choates prior convictions if
he proved to be a hostile witness. Upon a showing that Choate
was conducting himself as a hostile witness, the trial court permitted the State
to impeach Choate by evidence of his recent and remote convictions.See footnote Hall
now claims that the trial court abused its discretion by admitting evidence of
stale convictions. The essence of Halls allegation of error is that he
suffered undue prejudice when the jury was encouraged to infer that he had
a close friendship with a habitual thief.
Indiana Rule of Evidence 609(a) sets forth the general rule for impeachment by
evidence of conviction of crime:
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime or an attempt of a crime
shall be admitted but only if the crime committed or attempted is (1)
murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2)
a crime involving dishonesty or false statement.
Indiana Rule of Evidence 609(b) provides:
Evidence of a conviction under this rule is not admissible if a period
of more than ten years has elapsed since the date of the conviction
or, if the conviction resulted in confinement of the witness then the date
of the release of the witness from the confinement unless the court determines,
in the interests of justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence
of a conviction more than ten years old as calculated herein is not
admissible unless the proponent gives to the adverse party sufficient advance written notice
of intent to use such evidence to provide the adverse party with a
fair opportunity to contest the use of such evidence.
The party seeking to overcome the Rule 609(b) presumption of exclusion must support
its probative value argument with specific facts and circumstances upon which the trial
court may base a finding of admissibility.
Dowdy v. State, 672 N.E.2d
948, 951 (Ind. Ct. App. 1996). In Scalissi v. State, 759 N.E.2d
618 (Ind. 2001), the Indiana Supreme Court discussed the States use of impeachment
evidence in light of Evid. R. 609(b):
Rule 609(b), unlike Rule 403, is a rule that presumes the exclusion of
convictions more than ten years old.
As such, the party seeking to
admit such convictions must support the argument for probative value with specific facts
and circumstances upon which the trial court may base a finding of admissibility.
In addition, the trial court must balance the probative value against the
prejudicial effect of the old convictions on the record. We review this
ruling under Rule 609(b) for an abuse of discretion.
The five-part test
first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.)
cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and
reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir. 1991), is
instructive. The trial court is to consider the following five factors, but
this list is not exclusive: (1) the impeachment value of the prior
crime; (2) the point in time of the conviction and the witness subsequent
history; (3) the similarity between the past crime and the charged crimes; (4)
the importance of the defendants testimony; and (5) the centrality of the credibility
issue. . . . [W]hen the trial court has erroneously admitted evidence, we
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties. Ind. Trial Rule 61. We have
interpreted this to mean that if, in light of all the evidence in
the case, the error has had an insubstantial impact on the jury, the
error did not affect the substantial rights of the parties.
Id. at 624-25.
II. Due Process Claim
Here, the record does not support Halls assertion that the trial court failed
to engage in the requisite balancing test. Rather, the trial court acknowledged
the requirement of balancing the relevant factors, and indicated that it had considered
both the arguments of the State and the defense with regard to those
factors. The trial court concluded, in essence, that the series of Choates
crimes of dishonesty, including a recent conviction, demonstrated that Choate had engaged in
a pattern of conduct probative of his credibility. We find no abuse
of discretion in the trial courts admission of impeachment evidence.
Hall next contends that he offered a proper instruction on receiving stolen property,
which was refused by the trial court without an in-court explanation of the
courts rationale for refusing the instruction. He claims that the trial courts
omission deprived him of due process.
Generally, the manner of instructing the jury lies within the sound discretion of
the trial court. Lewis v. State, 759 N.E.2d 1077, 1080 (Ind. Ct.
App. 2001), trans. denied. A decision on the submission of jury instructions
is only reversible upon a showing of abuse of that discretion. Young
v. State, 696 N.E.2d 386, 389 (Ind. 1998). A defendant is only
entitled to reversal if he affirmatively demonstrates that the instructional error prejudiced his
substantial rights. Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind. Ct. App.
The State contends that Hall waived his due process allegation concerning the manner
in which the trial court refused his tendered instruction, because he failed in
his brief to cite relevant authority to support his argument or include a
verbatim recitation of the proposed instruction. We agree.
Indiana Appellate Rule 46(A)(8)(a) provides:
The argument 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, in accordance with Rule 22.
Subsection (8)(e) provides:
When error is predicated on the giving or refusing of any instruction, the
instruction shall be set out verbatim in the argument section of the brief
with the verbatim objections, if any, made thereto.
In light of his noncompliance with Appellate Rule 46(A)(8), Hall waived his argument
that he was denied due process in the trial courts refusal of his
instruction. Moreover, waiver notwithstanding, we are unaware of any authority requiring that
the trial court provide a sua sponte written or oral analysis of the
reasons for refusal of an instruction to comport with the requirements of procedural
See footnote Hall has demonstrated no reversible error.
III. Habitual Offender Status as Aggravator
Finally, Hall contends that he was twice punished due to his status as
a habitual offender, once in the twenty-year sentence enhancement and second, in the
use of his status as an aggravator identified by the trial court at
McVey v. State, 531 N.E.2d 458 (Ind. 1988), the Indiana Supreme Court
remanded for resentencing where the trial court found aggravating circumstances sufficient to enhance
the presumptive sentence, yet the only aggravating circumstances noted were the fact that
appellant had twice previously been convicted of felonies and that a firearm was
used in the robbery. Inasmuch as the use of the firearm was
what raised the robbery to a Class B felony, and the two previous
felonies were what supported the habitual offender finding, they could not standing alone
be the aggravating circumstances to justify the enhanced sentence for robbery. Id.
at 461 (emphasis added). However, a single valid aggravating circumstance may be
sufficient to sustain an enhanced sentence. Gibson v. State, 702 N.E.2d 707,
710 (Ind. 1998), cert. denied 531 U.S. 863 (2000).
Here, the trial courts statement identifying aggravators and mitigators provided:
The Court finds aggravation: (1) Significant criminal history, (2) commission of new
criminal offenses while on parole and/or probation, and (3) habitual offender status.
The Court finds mitigation: (1) Cooperation with law enforcement authorities.
(Appendix 121.) Halls instant sentence was not aggravated solely because of the
prior convictions supporting the habitual offender determination. He had a history of
convictions independent of those predicate felonies.
See footnote Moreover, the trial court properly considered
the circumstance that Hall committed the instant offenses while on parole or probation.See footnote
Johnson v. State, 725 N.E.2d 864, 868 (Ind. 2000). Inasmuch as
Halls sentence enhancement is supported by valid aggravating circumstances independent of his status
as a habitual offender, resentencing is not required.
In light of the foregoing, Hall has not demonstrated that the trial court
admitted improper impeachment evidence, violated Halls right to due process or improperly sentenced
ROBB, J., and MATTINGLY-MAY, J., concur.
nd. Code § 35-43-2-1.
nd. Code § 35-43-4-2(A).
nd. Code § 35-43-4-2.5(B)(1).
Hall received a twenty-year sentence for Burglary, a Class B felony, enhanced
by twenty years based upon his adjudication as a habitual offender. Hall
received three-year sentences for each of his Class D felony convictions, to be
served concurrently with the forty-year sentence.
Oral argument was held at St. Mary of the Woods in Terre
Haute, Indiana on April 29, 2002.
Footnote: Choates prior convictions included: 1965 Burglary, 1970 Burglary, 1981 Forgery and
1982 Conspiracy to Commit Burglary or Theft. (Appendix 17.) Additionally, Choate
had a conviction within the ten-year period preceding his testimony, specifically, a 1996
Theft conviction. (Appendix 175-76.)
Footnote: When a defendant requests a lesser-included offense instruction, the trial court engages
in a three-part analysis: (1) determine, by a comparison of the relevant
statutes, whether the lesser-included offense is inherently included in the crime charged; if
not, (2) determine whether the lesser-included offense is factually included in the crime
charged; and, if either, (3) determine whether a serious evidentiary dispute exists whereby
the jury could conclude that the lesser offense was committed but not the
Hauk v. State, 729 N.E.2d 994, 998 (Ind. 2000). The
trial court should grant the defendants request for a lesser-included offense instruction if
it answers the third inquiry affirmatively. Id.
The predicate convictions supporting the habitual offender determination were Halls 1990 conviction
of Forgery and his 1992 conviction of Burglary. (Tr. 386-87.) Hall
also had prior convictions of Theft in 1990, Driving While Suspended in 1991,
Theft in 1994, and Residential Burglary (in the State of Illinois) in 1997.
(Presentence Report, Appendix 114-15.)
Footnote: Hall was on parole when he committed the instant offenses. (Presentence
Report, Appendix 116.)