ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA DeLEY JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
TERESA DASHIELL GILLER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JOSEPH LARRY, )
vs. ) No. 48A02-9812-CR-1018
STATE OF INDIANA, )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-9711-CF-249
September 15, 1999
OPINION - FOR PUBLICATION
Appellant-Defendant Joseph Larry (Larry) appeals his conviction after a jury trial
of Battery, a class C felony.See footnote
The sole issue raised on appeal may be restated as whether the trial court abused its
discretion by admitting evidence that, after Larry's co-defendant made statements to the
police implicating Larry in the charged crime, Larry called the co-defendant a snitch and
beat him up.
The evidence most favorable to the verdict reveals that two men, Darrell Porter,
(Porter), and Larry, confronted the victim and demanded his money. (R. 153-54, 158-63).
Larry brandished a handgun to threaten the victim. (R. 163-64). As the victim turned to
leave, Larry struck him on the back of the head with the gun. (R. 155, 159-162, 169-72).
The victim bled profusely from the wound caused by being struck by the gun. (R. 173).
Porter was charged as Larry's co-defendant in the instant case. (R. 251). After he
was arrested, Porter made statements to the police which implicated Larry in the instant
offense. (R. 262). After Porter made the statements to police, Larry confronted Porter,
called him a snitch and stated that he had heard that Porter was to testify against him. (R.
264). Soon afterwards, Larry and another individual jumped Porter and severely beat him.
(R. 265-68). Porter testified against Larry at trial to the effect that Larry had struck the
victim on the back of the head with a gun. (R. 259-260). Discussion and Decision
A. Larry's Contention
Larry asserts the trial court erred by admitting the evidence that he had called Porter
a snitch and had beaten him up. Specifically, Larry contends that the admission of this
evidence of collateral misconduct was violative of Ind. Evidence Rule 404 and/or the
balancing test prescribed by Evid. R. 403. We disagree.
B. Standard of Review -- Evidentiary Rulings
The evidentiary rulings of a trial court are afforded great deference on appeal and are
overturned only upon a showing of an abuse of discretion. Bacher v. State, 686 N.E.2d 791,
793 (Ind. 1997); Thompson v. State, 671 N.E.2d 1165, 1171 (Ind. 1996). A trial court's
decision to admit evidence will not be reversed absent a showing of a manifest abuse of the
trial court's discretion resulting in the denial of a fair trial. Minnick v. State, 544 N.E.2d
471, 477 (Ind. 1989).
of Collateral Misconduct
Indiana Evidence Rule 404 reads:
(a) Character Evidence Generally. Evidence of a person's character
or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion, . . .
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. . . .D. Relevancy -- Balancing Test under Evid. R. 403
(emphasis added). Evidence is excluded under Evid. R. 404(b) only when it is introduced
to prove the forbidden inference of demonstrating the defendant's propensity to commit
the charged crime. Hardin v. State, 611 N.E.2d 123, 128 (Ind. 1993).
All relevant evidence is admissible except as otherwise provided by law. Evid. R.
402; Hardin, 611 N.E.2d at 127 (evidence is relevant if it tends to prove or disprove a
material fact or sheds any light on the guilt or innocence of the accused). The trial court has
discretion to permit the admission of even marginally relevant evidence. Utley v. State, 699
N.E.2d 723, 728 (Ind. Ct. App. 1998), trans. denied. However, even evidence which may
otherwise be admissible may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence. Evid. R.
403; Hardin, 611 N.E.2d at 127. The trial court has wide latitude in weighing the probative
value of the evidence against the possible prejudice of its admission and its ruling will be
reviewed only for an abuse of discretion. Poindexter v. State, 664 N.E.2d 398, 400 (Ind. Ct.
E. Evidence of Defendant's Attempts to Cover up Crime or Suppress Evidence
The manufacture, destruction, or suppression of evidence may properly be considered
by the jury as an admission of the defendant's guilt or his guilty knowledge. Scifres-Martin
v. State, 635 N.E.2d 218, 220 (Ind. Ct. App. 1994); Cox v. State, 422 N.E.2d 357, 360-62
(Ind. Ct. App. 1981) (evidence that the defendant made threats against a witness are in the
nature of an attempt to suppress or conceal evidence which are generally admissible to show
the defendant's guilt or guilty knowledge). Moreover, evidence that the defendant attempted
to suppress evidence against him is highly probative/prejudicial. See id. F. Analysis
The evidence that Larry called Porter a snitch and beat him up was properly
admissible to prove Larry's guilty knowledge or consciousness of guilt with respect to the
charged crime. See id. Thus, the evidence of guilty knowledge was properly admissible
under the knowledge exception listed in Evid. R. 404(b). Moreover, considering the highly
probative nature of this evidence, we cannot conclude that the trial court abused its discretion
by determining that its probative value was not substantially outweighed by the danger of
unfair prejudice under Evid. R. 403. Therefore, the trial court did not abuse its discretion by
admitting the challenged evidence of collateral misconduct.
GARRARD, J., and HOFFMAN, Sr.J., concur.
1 Ind. Code § 35-42-2-1(3) (Battery is a class C felony if it results in serious bodily injury or is
committed by means of a deadly weapon).
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