ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER ZACHARY J. STOCK
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
MICHAEL R. BAYES, )
vs. ) No.17A03-0203-CR-79
STATE OF INDIANA, )
APPEAL FROM THE DEKALB SUPERIOR COURT
The Honorable Kevin P. Wallace, Judge
Cause No. 17D01-0102-CF-4
November 27, 2002
OPINION FOR PUBLICATION
On February 1, 2001, Appellant-Defendant Michael R. Bayes (Bayes) was charged by Information
with Unlawful Possession of a Firearm by a Serious Violent Felon, a Class
See footnote Following a jury trial held on December 19, 2001, Bayes
was found guilty. On January 17, 2002, Bayes was sentenced to serve
ten years in prison. We affirm. See footnote
Bayes raises three issues on appeal:
Whether there was a material variance between the offense charged by Information and
the evidence adduced at trial;
Whether the trial court erroneously published a transcript to the jury that was
not properly redacted; and,
Whether references to Bayes as a serious violent felon denied him a presumption
of innocence. Facts and Procedural History
On September 10, 1982, Bayes was convicted of Arson, a Class B felony.
On July 21, 2000, Bayes wrote a check for $150.00 to Lyle
Lanning (Lanning) and received a shotgun with a scope in return (Mossberg shotgun).
Bayes, his stepson, and Lanning, were present during this transaction.
On August 20, 2000, DeKalb County Sheriffs Deputy, Terry Wilcox (Deputy Wilcox) spoke
to Bayes wife, formerly known as Susan Bayes, now Susan Hoffman, (Hoffman) regarding
domestic problems between Bayes and Hoffman. The next day, following the entry
of a protective order against Bayes,
See footnote and at the request of Hoffman, Deputy
Wilcox removed twelve to fourteen firearms from a gun cabinet in the couples
home, including the Mossberg shotgun.
In November of 2000, Lanning filed a complaint with the DeKalb County Sheriffs
Department (Sheriffs Department) alleging that Hoffman stole a shotgun from him. Hoffman
responded that Bayes purchased the shotgun in question from Lanning with a personal
check drawn on the couples joint checking account. Later that month, the
Sheriffs Department received a certified copy of Bayes previous conviction for Arson, as
a Class B felony. Thereafter, on February 1, 2001, the State charged
Bayes with unlawful possession of a firearm. Specifically, the Information charged Bayes
with knowingly and intentionally possess[ing] a firearm to wit: a Mossberg, Model
# 695, 12 ga. Shotgun with serial #M017202, while having a Serious Violent
Felony conviction in the State of Indiana for Arson . . .
At trial, several witnesses testified that Bayes handled the Mossberg shotgun. In
Bayes testimony he admitted that the Mossberg shotgun was in his house, but
denied that he ever held it. The jury found Bayes guilty of
Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B
felony. Bayes appeals his conviction.
Discussion and Decision
I. Material Variance
Bayes argues that there was a material variance between the States Information and
the evidence admitted at trial. Specifically, Bayes asserts that the States Information
charged Bayes with possession of a Mossberg, Model # 695, 12 ga. Shotgun
with serial #M017202[,] yet the evidence at trial showed only that he possessed
a Mossberg shotgun. (App. 6.) Bayes contends that the evidence at
trial lacked the specificity found in the States Information and as such created
a material variance that leaves him vulnerable to future prosecution involving the same
events, facts, and evidence.
Rule of Law
A charging information must allege the elements of the crime such that the
accused is sufficiently apprised of the nature of the charges against him so
that he may anticipate the proof and prepare a defense in advance of
trial. See Ind. Const. Art 1, § 13; Ind. Code § 35-34-1-2;
Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001). However, the State
is not required to include detailed factual allegations in the charging instrument, though
it may choose to do so. Richardson v. State, 717 N.E.2d 32,
51 (Ind. 1999). A variance is an essential difference between the charging
instrument and the proof presented at trial. Allen v. State, 720 N.E.2d
707, 713 (Ind. 1999). Yet, not all variances are material or fatal.
Id. The test to determine whether a variance between the proof
at trial and a charging information or indictment is fatal is as follows:
(1) was the defendant misled by the variance in the evidence from the
allegations and specifications in the charge in the preparation and maintenance of his
defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future criminal proceeding covering the
same event, facts, and evidence against double jeopardy?
Id. (citing Harrison v. State, 507 N.E.2d 565, 566 (Ind. 1987) (citations
omitted)). Bayes asserts error on the double jeopardy grounds, arguing that he
remains subject to the likelihood of another prosecution for Unlawful Possession of a
Firearm by a Serious Violent Felon based upon possession of the same Mossberg
shotgun at issue here.Analysis
Bayes failed to object to any alleged variance between the States Information and
the evidence adduced at trial. Absent fundamental error, Bayes failure to lodge
a specific objection at trial waived any material variance issue. See Hobson
v. State, 495 N.E.2d 741, 746 (Ind. Ct. App. 1986). Nevertheless, fundamental
error based upon an assertion of double jeopardy should be determined on a
case by case basis. See Taylor v. State, 717 N.E.2d 90, 96
n.7 (Ind. 1999).
Here, the evidence at trial possessed sufficient specificity to guard against the subsequent
prosecution of Bayes for possession of the Mossberg shotgun. Specifically, Deputy Wilcox
identified the Mossberg shotgun as one of the firearms he had removed from
the couples home. Further, Deputy Wilcox recognized the shotgun because its a
deer slayer, [with a] deer slug rifle barrel and its a Mossberg with
a synthetic design. (Tr. 126.) Additionally, Lanning identified the Mossberg shotgun
(States Exhibit 3), stating that it was the same firearm he had pawned
to Bayes. (Tr. 140.) Lanning described the firearm as a Mossberg
500 rifle, slug barrel, or slug gun used for deer huntin. (Tr.
147.) Bayes stepson also identified States Exhibit 3 as being the same
firearm that Bayes purchased from Lanning. (Tr. 168.) The aforementioned testimony
adequately protects Bayes from subsequent prosecution for possession of the Mossberg shotgun.
II. Admission of Evidence
Additionally, Bayes argues that the trial court erroneously published an exhibit (States Exhibit
4A) to the jury that had not been adequately redacted. States Exhibit
4A was a transcript from a prior hearing, in which Hoffman had sought
a protective order against Lanning. Bayes contends that testimony from Hoffman that
she was afraid of him, and that he had threatened her with a
gun, remained legible in States Exhibit 4A despite the trial courts ruling that
such testimony be redacted. However, failure to make a contemporaneous objection to
the admission of evidence at trial results in waiver of the error on
appeal. See Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000).
A contemporaneous objection affords the trial court the opportunity to make a final
ruling on the matter in the context in which the evidence is introduced.
Id. Here, Bayes waived the issue of proper redaction when he
failed either to inspect States Exhibit 4A before it was published to
the jury, or timely object to the testimony that remained unredacted.
III. Serious Violent Felon
Lastly, we address Bayes contention that repeated references to him as a serious
violent felon by the trial court and prosecutor effectively denied him his due
process right to the presumption of innocence. However, because Bayes failed to
lodge a timely objection at trial this issue is waived.
Rule of Law
As a general rule, the failure to object at trial results in a
waiver of the issue on appeal. Benson v. State, 762 N.E.2d 748,
755 (Ind. 2002). A contemporaneous objection affords the trial court the opportunity
to make a final ruling on the matter in the context in which
the evidence is introduced. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.
2000). The fundamental error exception to this waiver rule is an extremely narrow
one. Mitchell v. State, 726 N.E.2d 1228, 1236 (Ind. 2000). To
amount to fundamental error, the error must be a blatant violation of basic
principles, the harm or potential for harm must be substantial, and the resulting
error must deny the defendant fundamental due process. Bostick v. State, 773
N.E.2d 266, 271 (Ind. 2002) (internal quotation and citation omitted); see also Barany
v. State, 658 N.E.2d 60, 64 (Ind. 1995) (defining fundamental error as error
so prejudicial to the rights of the defendant as to make a fair
As a person accused of a criminal offense, Bayes had a constitutional due
process right to a fair trial. See U.S. Const. amends. V, XIV;
Ind. Const. art I, §§ 12, 13. Due process constitutionally clothed Bayes
with a presumption of innocence. See Estelle v. Williams, 425 U.S. 501,
503 (1976). Given that use of the phrase serious violent felon may
have caused fundamental error by impinging upon such due process rights, we turn
to address the merits of Bayes argument.
Here, during voir dire and closing, the trial court and prosecutor repeatedly referred
to Bayes conviction for a serious violent felony and his status as a
violent, or serious violent felon. Examples of these references include the following:
[Trial Court, addressing the jury pool]: This case is entitled the State of Indiana
versus Michael R. Bayes and was started with the filing of an information
alleging that Mr. Bayes committed the criminal offense of being in unlawful possession
of a firearm by a serious violent felon. (Tr. 38.)
. . . .
[Prosecutor, during voir dire]: [Bayes] possessed the firearm while having a conviction of what
Indiana defines is a violent felony. (Tr. 51.)
. . . .
[Prosecutor, during voir dire]: And if I prove beyond a reasonable doubt that he
possessed a firearm and that he has a prior conviction for arson as
a class B felony and the Judge instructs you that the law says
arson as a class B felony is a violent felony under the statute,
would you be willing to find him guilty? (Tr. 61.)
. . . .
[Prosecutor, during voir dire]: Uh, do you have a problem about it being against
the law for somebody convicted of a violent felony, to have any kind
of firearm. (Tr. 82.)
. . . .
[Trial court, addressing sworn jurors]: Omitting the formal parts, the Information reads as follows:
. . . Bayes did knowingly and intentionally possess a firearm . .
. while having a serious violent felony conviction . . . The statute
defining the offense of unlawful possession of a firearm by a serious violent
felon . . . reads as follows: A serious violent felon who
knowingly possesses a firearm commits unlawful possession of a firearm by a serious
violent felon, a class B felony. (Tr. 103-04.)
. . . .
[Prosecutor, opening statement]: Thats what I gotta prove, . . . that he has
a conviction for a violent felony . . . (Tr. 108.)
[Prosecutor, closing statement]: Uh, the defendant, . . . admitted on the stand that
he has a prior conviction for arson . . . So, he is
a convicted violent felon. (Tr. 213.)
. . . .
[Trial court, final instructions]: The case . . . was commenced with the filing
of an Information charging the Defendant with Unlawful Possession of a Firearm By
a Serious Violent Felon, a Class B felony. (Tr. 226.)
Bayes argues that these references invited the jury to infer that he is
of bad character, thereby depriving him of a presumption of innocence. Appellants
Brief at 11.
Evidence of prior convictions is generally inadmissible because such evidence has no tendency
to establish the guilt or innocence of the accused. Spearman v. State,
744 N.E.2d 545, 547 (Ind. Ct. App. 2001) (quoting Lawrence v. State, 259
Ind. 306, 310, 286 N.E.2d 830, 832 (1972)). However, Indiana Code section
35-47-4-5 provides in pertinent part as follows:
(a) As used in this section, serious violent felon means a person who
has been convicted of:
. . . .
(c) A serious violent felon who knowingly or intentionally possesses a firearm commits
unlawful possession of a firearm by a serious violent felon, a Class B
As such, under Indiana Code section 35-47-4-5, [t]he legal status of the offender
is an essential element of the crime, and the act the possession
is illegal only if performed by one occupying that status. Spearman,
744 N.E.2d at 548. A trial court can limit the prejudicial effect
of evidence of a prior conviction by excluding evidence regarding the underlying facts
of the prior felony and limiting prosecutorial references thereto. 744 N.E.2d at
Here, the underlying facts of Bayes prior conviction for Arson, as a Class
B felony, were not made known to the jury, evidence of the conviction
was admitted on direct examination without objection, and Bayes himself admitted to having
been convicted of the crime. Moreover, the States multiple references to
Bayes as a serious violent felon were accompanied by the following statements during
[Prosecutor, voir dire]: . . . Uh, Ms. Freels, you have to understand that
just because [Bayes] has a prior conviction for, well, hes charged with arson,
a class B felony. You understand that doesnt make it any more
likely or less likely that he possessed a gun? You understand if
I prove that other part it doesnt necessarily mean that he did the
second part of the charge?
[Prosecutor, voir dire]: Youre willing to keep that in mind and separate the two
in your mind.
(Tr. 53.) This question was then similarly posed to the other jurors
that made up the voir dire panel of jurors. Later in voir
dire, the State again suggested to the jury that in order to convict
it would need the requisite proof to establish a prior felony conviction and
possession of a firearm.
[Prosecutor, voir dire]: Okay. And you [juror] cant use the prior to decide
whether or not he possessed a firearm. But I have to prove
the prior conviction to show that it was against the law for him
to possess a firearm.
. . . .
[Prosecutor, voir dire]: So you understand, it doesnt make him more or less guilty
here today except that Ive got to prove that [prior felony conviction] as
part of my charge?
(Tr. 90.) These exchanges between the State and jury may or may
not have sufficiently minimized the clearly prejudicial effect of the repeated references to
Bayes status as a serious violent felon. Nevertheless, without a timely objection
to allow the trial court to assess the prejudicial impact on the jurors
at the time the status references were made, and in light of our
Supreme Courts narrow definition of fundamental error, this Court is constrained to hold
that the prejudice did not amount to fundamental error. In other words,
absent a timely objection, we cannot say that the potential for the impermissible
inference that Bayes was of bad character and as such possessed the Mossberg
shotgun was substantial, and amounted to fundamental error.
BAKER, J., and NAJAM, J., concur.
Ind. Code § 35-47-4-5(a)(1)(A) and (b)(14) and (c).
Oral argument was held at Vincennes University on October 8, 2002.
Footnote: The protective order was apparently ordered by the trial court that
had jurisdiction over the couples dissolution proceedings, which commenced prior to the actions
of Deputy Wilcox. (Tr. 203).
It is well established that the State bears the burden to
prove every element of an offense. Austill v. State, 745 N.E.2d 859,
862 (Ind. Ct. App. 2001). This burden is placed on the State
as part of the constitutional presumption that a defendant is innocent until proven
guilty. Id. To this end, we note that the prosecutor could
have established the essential elements of Indiana Code § 35-47-4-5 without using the
prejudicial status phrase of serious violent felon. Specifically, the State needed to
prove beyond a reasonable doubt that Bayes had been 1) convicted of Arson
as a Class B felony; and, 2) knowingly or intentionally possessed a Mossberg
shotgun. See Ind. Code § 35-47-4-5(b)(14) & (c).
Moreover, where a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.
N.E.2d at 551 (Darden, J., dissenting) (citing Jones v. United States, 529 U.S.
848 (2000) (quoting United States ex rel. Attorney General v. Delaware & Hudson
Co., 213 U.S. 366 (1909))). As indicated by the majority in Spearman,
such doubtful constitutional questions can be avoided when applying Indiana Code section 35-47-4-5
by minimizing the number of references to the underlying predicate felony and avoiding
the phrase serious violent felon, and instead referencing a felony enumerated under IC
35-47-4-5. Spearman, 744 N.E.2d at 550 n.8. Our legislature could not
have intended to apply Indiana Code section 35-47-4-5 otherwise, for to do so
would be to create instances of prejudice analogous to determining habitual offender status
without bifurcation or the admissibility of prior convictions contrary to our rules of
evidence. See Ind. Evidence Rule 404(b).
In habitual offender cases, the consideration of a defendant's prior convictions is removed
from the jury's guilt/innocence determination on the felony charge. Shelton v. State,
602 N.E.2d 1017, 1019 (Ind. 1992). Through separating the consideration of prior
convictions from the jury's initial guilt/innocence determination, the defendant is provided a fair
and impartial jury to determine his guilt or innocence on the underlying felony
charge. Id. Under the Indiana Rules of Evidence, evidence of a
prior conviction is as prejudicial as evidence can get, and requires a strong
showing of probative value. Thompson v. State, 690 N.E.2d 224, 235 (Ind.
1997). Here, Bayes Arson conviction is an essential element of the charged
offense and as such cannot be bifurcated, or considered not probative. See
Spearman, 744 N.E.2d at 548. However, the potential for prejudice may be
minimized by practices suggested by this Court in Spearman and in the instant