*1 (Ind. v. tick
2002). Huffman waived Importantly, that he any respect to sentence
right with in the This is demonstrated
could receive. could that he acknowledgment court's
trial fifty years, a minimum sentence
face of one- years sentence term of
maximum pa or life without thirty years,
hundred agreement
role, Huffman's continued Through jury determination.
to waive right to actions, waived the Huffman
his sentenc the evidence for
have a hear he any possible sentence
ing purposes court the trial and authorized
could receive the assistance without
to hear the evidence what the Su precisely jury. This allowable in stated was
preme Court that defen acknowledged it
Blakely when judicial factfinding.
dants consent is affirmed.
The sentence MATHIAS, J.,
BAILEY, J., concur. RHONE, Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 02A03-0409-CR-435. of Indiana. Appeals
Court
May2,2005. Denied June
Rehearing *3 IN, At- Miller, Wayne,
P. Fort Stephen torney Appellant. for Carter, Attorney General Steve At- Indiana, Ploughe, Deputy Cynthia L. IN, General, Indianapolis, Attor- torney neys Appellee. home,
OPINION any guns both p. "No." Tr. responded, Rhone and his wife VAIDIK, Judge. officers, however, spied 97. The a hand- Summary Case of an gun top entertainment center and on A convicted Rhone of un- shotgun in a corner. As a result of these by a possession of a firearm serious lawful discoveries, the officers arrested Rhone for recovery violent felon of two unlawful of firearms a seri- handguns appeals, from his home. Rhone ous violent felon. failed to alleging establish charged The with Unlawful that he was a serious violent felon and that of a Firearm Possession Serious Vio *4 improperly trial court the the instructed trial, Felon, felony.1 lent a Class B At jury regarding the elements of his offense. presented part State as of its evidence a vacate his conviction because we find We affidavit, probable cause which indicated only presented by evidence shooting that Rhone was arrested after to establish that Rhone was a serious in someone the head. The affidavit said hearsay. felon inadmissible violent was nothing being about a vehicle the means vacating grounds are Because we on of by which the victim was killed. Addition insufficiency stemming of the evidence Adam, ally, primary Officer Michelle evidence, from the erroneous admission of homicide, investigator of the testified that jeopardy hold that principles double do we a the case involved the use of firearm. retrial, not retrial. In the event of a bar Adam, however, Officer admitted that she jury we note that the should be instructed present was not when the incident oc only non-vehicular reckless homicide gained curred and that she knowledge her as a qualifies felony, serious violent but the that the reckless homicide was committed jury need not be instructed that Rhone by means of a firearm from other officers knew or have known he awas should ' Following witnesses at the scene. serious violent felon. of presentation the trial court History Facts and Procedural jury, pertinent part: in instructed. In pled guilty June Rhone to the of The crime Unlawful Possession of a Homicide, offense of Reckless and the trial by a Firearm Serious Violent Felon is judgment court entered of Ac- conviction. by in part defined statute as follows: cording this convictionarose A person knowingly who or intention- out of an incident wherein Rhone shot ally possesses having a firearm after in someone the head. been convicted of and sentenced for a Following report guns a that Rhone had felony serious violent as defined under believing his home and him to abe 35-47-4-5, I.C. commits Unlawful Pos- upon previ- serious violent felon based his by session a Firearm a Serious Vio- ous for conviction reckless homicide involv- Felon, lent a Class B firearm, ing Wayne police Fort officers defendant, To convict the went to Rhone's home investigate. proved must have each of the arrival, Upon their Rhone and his wife elements: invited the inside officers their home. The Rhone, officers asked the if Rhones there were That defendant § pled guilty 1. Ind.Code 35-47-4-5. Rhone was addi- Rhone to that count and does not tionally charged any regarding with Class A misdemeanor raise issue that count in this appeal. 35-42-2-1; however, Battery, see Ind.Code intentionally Appellant's p. Br. 183. Defense counsel or knowingly 1. explained purpose proffering his such an possessed 2. require jury instruction was to to find firearm, any weapon defined as 3. a that Rhone knew he was a serious violent designed to expelling, capable ofsic] guilty felon. found The Rhone readily 'or that be con- expel, charged. appeal This ensued. expel, projectile verted of an explosion means Discussion Decision convicted had after Defendant been his for unlaw- attacks conviction Homi- and sentenced Reckless ful a firearm serious cide, you instructs which the Court First, felon on two he grounds. under I1.C. enumerated offense __ alleges that the State failed to establish 35-4/¥-h-5b. previous that his for reckless conviction each of If the State failed homicide was committed means other beyond these elements reasonable Second, than a he claims that vehicle. doubt, you jury. trial court improperly instructed the defendant find should not guilty. We address each issue turn. *5 each of these prove
If the State did Sufficiency I. of the Evidence doubt, beyond a reasonable elements [1-3] contends that his convie Rhone guilty find the defendant of you possession tion for of a firearm unlawful by of a Firearm a Unlawful Possession by cannot a serious violent felon stand Felon, a B Serious Violent Class failed to that because the State establish Appellant's App. p. (emphasis supplied). 67 a qualified he as serious felon. violent objected on to this instruction the sufficiency claim of reviewing When the in grounds specify that it did not that reweigh evi the we neither the a homicide conviction to order for reckless credibility judge dence nor the of the wit in a being result someone classified as State, 1132, v. 783 nesses. Jones N.E.2d felon, violent the reckless homicide (Ind.2003). serious only pro look 1139 We the committed means could not have been supporting the verdiet bative evidence Additionally, a Rhone tendered of vehicle. the reasonable inferences therefrom de instruction, the which the trial a trier of fact termine whether reasonable court refused: guilty the defendant was could conclude If there beyond a reasonable doubt. Id. is
(1) A in conduct "inten- person engages value to probative substantial evidence of if, in tionally" engages when he conviction, it will not be set support conduct, objective it is his conscious Id. aside. to do so.
(2) person engages A in conduct "know- § 35-47-4-5 defines Indiana Code if, in
ingly" engages when he felon," pertinent part, "serious violent conduct, high proba- he is aware of a convicted of com person "a who has been bility doing that he is so. felony violent mitting serious 385-47-4-5(a)(1)(A). (3) § of- Indiana." Ind.Code defining Unless the statute otherwise, if provides statute, fense a kind of As used a "serious violent felony" the crime of reckless culpability required for commis- includes offense, by means of a required it is with homicide not committed sion of every 35-47-4-5(b)(8). Thus, material element of vehicle. LC. respect § of unlawful prohibited conduct. convict Rhone 1282 felon, simply people tion is what other told by a serious
firearm 118-19, p. Tr. 122. The Affidavit had been [her]." that Rhone had to Cause, not commit homicide convicted of reckless for which was sworn and Probable perjury by penalties affirmed to thereafter, and, under a. vehicle ted means of Adam, provided: in pertinent part Officer intentionally possessed knowingly or 35-47-4-5; Causey victim, I.C. found Ed- police firearm. See On arrival gunshot E. Moore ... with a ward (Ind.Ct.App. N.E.2d 2004). victim, wound to the head. The Edward Moore, at the pronounced E. was dead dispute that he was Rhone does not scene. homicide; of reckless previously convicted Rod Howard of the Fort Officer rather, failed to he claims that the State Wayne Dept arrived and found Police underlying the homicide his establish that Joseph standing ... over one W. Rhone for reckless homicide previous conviction body Joseph Edward E. Moore." 'of other than a committed means was Rhone stated to Officer Rod Howard W. To Rhone's status as vehicle. establish that victim wrestled over the he and the felon, offered into serious violent gun off. ... gun and the went Exhibit which contained evidence State's witness, Mikell, A R. Donald stated to Summary; Chronological Case Wayne Detective Dan Meeks of the Fort Information; the Affidavit for Charging he, R. Dept, Police Donald [sic] Cause; Judgment of Probable and the Defendant, Mikell, Joseph and the W. Rhone's 1994 convie- regarding Conviction Rhone, driving looking were around homicide, testimony tion for reckless the victim because W. Rhone primary investigating officer from the *6 stated that the victim had stolen items firearm, vehicle, a a not to Rhone used 4 from his residence. these doeu- commit reckless homicide. Of Joseph R. Mikell and Donald W. 6, only in ments contained State's Exhibit Joseph Rhone located the victim.... W. the Affidavit for Probable Cause identified from grabbed handgun Rhone under Rhone committed the by the means R: and ap- the seat -of Donald Mikell claims that this reckless homicide. Rhone victim, E. proached the Edward Moore. prejudicial. evidence was irrelevant and Mikell, witness, R. The Donald stated investigat- Additionally, he claims that the Joseph Rhone then struck the victim W. ing testimony officer's and the Affidavit for witness, twice in the head. The Donald hearsay Probable are and thus Cause Mikell, R. stated W. Rhone then should not- have been admitted over his in attempted to strike the victim objection. and the victim head a third time that Officer Adam testified at trial she gun gun discharged and the grabbed the of Edward investigated shooting death in striking the wetlm the head. [sic] by Moore Rhone and that the homicide 6, objected p. Ex. 1-8. Rhone State's firearm, by was committed with a not relevancy, and prejudice, this evidence on initially means of a vehicle. While Officer , hearsay grounds. "personal Adam her testified that based on hearsay dispos- committed We find to be the knowledge," previously firearm, Hearsay later in this case. is defined homicide with she itive issue reckless "statement, by other than one made present during admitted that she was not as testifying at the trial the declarant while shooting and confirmed "whatever prove in evidence to hearing, or offered in investiga- knew the course of [she] [her]
1283 (b) investigative reports prepared by or matter asserted." Ind. the truth of the office, government, public State, for a or an 801(c); Martin v. 736 Evidence Rule (Ind.2000). 1213, Hearsay agency 'by is when offered it in a in N.E.2d case (c) party; it fits into which it is a factual findings not admissible unless generally in exceptions by government delineated offered in criminal one of (d) Evidence Rule 802. evidence rules. Ind. cases; factual findings resulting from special investigation particular The Affidavit for Probable Cause is hear of a cease, incident, say complaint, exeept it is an out-of-court statement or when because previously that Rhone offered an accused in a criminal case. offered committed non-vehicular reckless homic Id. Thus, question becomes wheth ide.2 supreme analyzed Our court the "factual hearsay er the fits into one of the delineat findings government offered hearsay exceptions: argues ed The State depth criminal exclusion in in Ealy cases" Affidavit for Probable Cause (Ind.1997), v. N.E.2d 1047 State, 685 Records and admissible under the Public crafted a three—step determining test Reports exception codified at Indiana Evi admissibility hearsay under that 803(8). Rule dence subpart. Haly The test has since been extended to all of the exclusions listed 8038) pro
Indiana Evidence Rule 803(8). State, Shepherd Rule v. following exception vides the to the exclu 2 (Ind.Ct.App.1997), N.E.2d 326 n. hearsay evidence: sion denied; Bailey trans. see also Unless the sources of information or (Ind.Ct.App.2004) 333-34 other lack circumstances indicate (applying Faly test to determine what trustworthiness, records, reports, state- "investigative report"), constitutes ments, form, compilations any or data - Nonetheless, trams. denied. without cita ageney, setting or forth public office authority, tion to the State asserts that regularly its conducted and re- regularly the Affidavit for "is not an Probable Cause activities, corded or matters observed "investigative report' and therefore does duty pursuant imposed law and explicit not fall within the exclusions of duty report, to which there was a or *7 808(8)." Appellee's p Evidence Rule Br. findings resulting factual from an inves- agree. 5. cannot We tigation pursuant authority made to granted by law. a must determine First, court 8088). 808(8), however, Evid. R. Rule report whether the record or contains find by excluding ree- public continues certain ings materially that address a contested reports exception: or from ords this Ealy, in the case. 685 N.E.2d at issue step not If in the first excep- inquiry The are within this the is analysis in negative, answered the (a) hearsay investiga- tion to the rule: report and the record or is not reports by police tive and other law ends there personnel, except hearsay grounds. enforcement when of- rendered inadmissible on case; Otherwise, to proceed fered an accused in a criminal Id. the court must Adam, prepared 2. Officer who hearsay. officer See and therefore also constituted Cause, appeared argu- Affidavit for Probable in Evid. R. The State makes no $01(c). subject court and was to cross-examination. testimony appeal ment on that Officer Adam's Any knowledge gained regarding the reck- she firearm, a not a established that Rhone used officers, came 'other less homicide from vehicle, to homicide. commit reckless Cause, in the Affidavit for Probable recounted Adam, primary hori- requires the court at 1054. Officer which step, the second case, assigned pre- to the investigator cide report or con- if the record to determine Cause, pared the Affidavit for Probable findings Factual findings. Id. tains factual good she had cause to believe which stated investigator drawn are conclusions committed the crime of reck- If the record Id. at 1051. from the facts. homicide. Officer Adam selected and less findings, factual does contain report or certain facts to include delineated step move on to three court must then the justify her Affidavit for Cause Probable report was whether determine arrest of Rhone for the crime warrantless or in an- advocacy purposes prepared for Consequently, of reckless homicide. we Id. at 1054. If the litigation. of ticipation find that the Affidavit for Probable Cause for advoca- prepared record was report or findings. factual contains anticipation litigation, cy purposes or in hearsay. it inadmissible Id. Moving step, then is then we must third Even that the rec- for Proba if the trial court determines determine whether the Affidavit hurdle, advocacy prepared pur this final Cause was report ord or clears ble anticipation litigation. poses inadmissible if it or We report record or be inquiry and final in the answer this third if value is not relevant or its is probative primary purposes affirmative because the outweighed by danger substantially of the Affidavit for Probable Cause are issues, of the or prejudice, unfair confusion an arrest upon set forth the facts jury. See Ind. Evidence misleading the can was made so that the court and 403. Rules 402 determine provide and to the lawfulness of the arrest Faly test step first of the Applying the with the information needed to case, we conclude that to the facts of this See, charges against the accused. bring Cause relates to the Affidavit for Probable e.g., Baran v. materially issue before the tri- contested (Ind.1994) (Debruler, J., concurring) (ques court; namely, the Affidavit for al Proba- reliability probable cause tioning the piece of evidence pivotal ble Cause was admissibility-be- affidavit-and thus its previous Rhone's convie- establishing that every cause "an officer would have reason homicide was committed tion for reckless choosing what quite to be when selective and there- other than a vehicle means include, exaggerating on details to even qualified fore as a serious violent document, of the purpose occasion. The pos- for Rhone to have only illegal It is all, judicial persuade officer at after if firearms his home he is sessed the justified."). that an arrest was hearing felon. Thus without this serious violent Hence, prepared for ad- the Affidavit was no conviction. Be- there can be voeacy foregoing on the purposes. Based *8 for Probable Cause re- cause the Affidavit analysis, conclude that the Affidavit for we materially contested issue in the lates to a inadmissible Probable Cause constitutes case, step to two of the proceed we must Therefore, trial court erred hearsay. the Ealy test. admitting it into evidence. See also - - test, Haly part States, the second of the Under at Shepard v. United U.S. - -, 1257, we must determine whether the Affidavit 125 1254 at L.Ed.2d S.Ct. - - (2005) find (holding for Cause contains factual at that a trial Probable police reports drawn to or ings, may defined as conclusions court not look facts, opposed complaint applications plea the as to investigator from prior may if conviction listings, simple prior or a recordation of determine the be "simple numbers, a sentence under the Ealy, and the like." 685 N.E.2d used to enhance
1285 actually presented at ("ACCA")3 the evidence Where Act Criminal Career Armed a matter of law as trial is insufficient may ex court that a trial concluding but conviction, may the defendant definition, the charging sustain statutory the amine charges. Carpen on those tran- not retried agreement, be document, plea written (Ind. any explicit State, 696, 705 colloquy, 786 N.E.2d plea ter v. seript to which judge 2003). However, trial by the "'if all finding factual admitted, is suffi erroneously that even assented); Taylor v. United the defendant verdict, 2143, 602, 110 jury double 575, States, support S.Ct. cient to 495 U.S. on the a retrial does not bar jeopardy (1990) (determining that 607 L.Ed.2d 109 or infor v. (quoting indictment Id. Stahl charge'" look to the same court (Ind.1997)). of a prior 89, The United instructions 94 mation used why if it can be explained has Supreme Court conviction States determine | - under purposes enhancement for this is so: ACCA)4 solely evidentiary on A reversal based fundamentally different insufficiency has proba that the
Having found pur- inadmissible, jeopardy for implications, we double was affidavit ble cause on such based than a reversal poses, established could have the State note that as the "incorrect ordinary "trial errors" for reck conviction previous that Rhone's rejection of evidence." While or receipt violent as a serious qualified less homicide finding "that the is in effect the former personal with calling an officer felony by its case" failed to for has government conviction previous knowledge that defendant, "im- the latter against committed homicide was reckless or guilt to the nothing respect with offering plies byor than a vehicle other means defendant," but is sim- of the guilty innocence transcript from into evidence that has been [he] ply set "a determination it assuming hearing, plea adequately ' judicial process through homi convicted reckless Rhone committed forth that - fundamental This, in some is defective vehicle. than a by means other cide respect." Because however, not do.5 did any admissible to present failed the State 33, 40, Nelson, 109 488 U.S. Lockhart previous Rhone's to establish evidence (1988) (quoting 265 102 LEd.2d S.Ct. com was reckless homicide for conviction 1, 14-16, States, 437 U.S. Burks v. United vehicle, his than a other mitted means (1978)). LEd.2d 1 Stat 98 S.Ct. of a fire for unlawful conviction sustained otherwise, the trial court had ed cannot felon by a serious arm objections, then hearsay Rhone's stand. it on notice put have been would in sup other evidence present to the needed leads us conclusion This element. particular of that port may be question retried. whether grounds, hearsay on Cause inadmissible Act, was U.S.C. Career 3. The Armed Criminal on that basis. our decision and we reach 924(e), statute that serves is the federal enhancing of a felon the sentence vehicle for prior acquired three convictions has who cases, charging information future In *9 drug offenses. felonies or violent judg- court's plea agreement, or the and the may that the also show conviction ment of holdings Taylor were Shepard 4. The and qualifying serious is a prior conviction ap- grounds statutory on federal reached - ‘ case, sentencing hearings. In this ply to for Probable argued the Affidavit Rhone 1286 readily con- expel, or that be evidence-albeit, inadmissi-
There was projectile by previous expel, Rhone's verted to that ble-to establish an explosion com- means of homicide was for reckless conviction other than a vehicle. by means mitted had been convicted after Defendant Hence, retry- from is not barred Reckless Homi- and sentenced for of State, 823 ing Rhone. See Jaramillo cide, you which the Court instructs 2005). (Ind. n. 5 N.E.2d 1188-1190 is an enumerated under I.C. offense that Rhone have determined Because we 35-4 7--5. retried, of purposes guidance may be App. p. (emphasis supplied). Appellant's the instructional errors we also address of Indiana Code light language In of the by Rhone. raised 35-47-4-5, designates § reckless Jury II Instructions if felony only homicide as serious violent vehicle, by means of a it is not committed alleges that the trial jury that the instruction should agree we instructional errors as court committed specified have "reckless homicide not com- jury Instructing the lies within the well. mitted means of a vehicle" instead Massey v. of the trial court. discretion just "reckless homicide." (Ind.Ct.App. 2004). Jury instructions are to be consid Additionally, Rhone contends that in reference to each ered as a whole and by rejecting his ten the trial court erred particular An in a instruc other. Id. error day instruction. dered mens rea On in reversal unless the tion will not result trial, an instruction to the Rhone tendered jury charge jury misleads the as to entire court, trial which stated: in the Id. Before a defen the law case. (1) person engages A conduct "inten- reversal, to a he must dant is entitled if, tionally" engages when he ~ in affirmatively show that the erroneous conduct, objective it is his conscious rights. his substantial prejudiced struction to do so. Id. (2) person engages A conduct "know- regard- allegation Rhone's first of error if, in the ingly" engages when he jury that the trial ing the instructions is conduct, high proba- of a he is aware have court should instructed bility doing he is so. homicide only reckless committed (3) defining the of- Unless the statute support than a could means other vehicle otherwise, provides fense if a kind of his conviction for unlawful culpability required for commis- firearm a serious violent felon. The offense, required of an it is with sion the ele- regarding trial court's instruction respect every material element of pertinent part pro- crime in ments of the prohibited conduct. vided: in- p.Br. 13. The trial court Appellant's defendant, To convict the jury regarding the definitions structed proved must have each of intentionally knowingly, but it did elements: part of Rhone's ten- not include the third Rhone, That defendant instruction. dered 2C intentionally 1. knowingly or - contention, Indiana Contrary to Rhone's possessed 35-47-4-5(c) require does not Code firearm, vio- any weapon proof that he knew he was serious 3. a defined as Instead, merely lent felon. the statute capable expelling, designed o[sic]
128] knowingly or inten requires person that a EATON, Appellant- having a firearm after Mitchell J.
tionally possess of a serious violent been convicted Defendant, also, 35-47-4-5(c); e.g., Causey, § see I.C. then, Essentially, N.E.2d at 143. inviting impose
Rhone is this Court to Indiana, Appellee-Plaintiff. STATE of knowledge requirement. We decline this No. 42A05-0407-CR-354. invitation. Because neither Indiana Code requires 35-47-4-5 nor case law Appeals Court Indiana. prove person State to that a his knew May2,2005. status as a serious felon as an element of unlawful of a fire felon, arm a serious violent we find that in refusing
the trial court did not err this | instruction.
Reversed.
NAJAM, J., concurs. part
KIRSCH,C.J., concurs and part separate opinion. with
dissents
KIRSCH, Judge, concurring in Chief,
part dissenting part. fully majority's
I concur with the resolu- regarding
tion of II Issue instruc-
tions, I respectfully but dissent from its
holding that probable cause affidavit testimony
and the Adam Officer consti- hearsay
tuted inadmissible evidence. hearsay
To constitute the evi- prove
dence must be offered "to the truth
of the matter asserted." Ind. Evidence 801(c) Here, I
Rule do not believe the
probable cause affidavit and officer's
testimony were offered the truth therein; of the matters I think that rather,
they only to prove were offered what was pro-
at issue in the 1994 reckless homicide
ceeding. The conviction itself establishes Thus, it, I proof. see neither the affidavit,
probable cause nor the officer's
testimony, hearsay, constitutes I
would affirm the conviction.