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Erroneous admission of evidence of prior bad act was harmless, COA says

December 14, 2018

The Indiana Court of Appeals affirmed the admission of evidence in a Wabash County case after finding that despite a trial court’s erroneous admission of evidence of a prior bad act, such an error was harmless.

After threatening to shoot Johnny Gillum “on the spot” if he couldn’t locate his personal items in Gillum’s apartment, Robert Smith left to go to a gas station to “meet” with a heroin dealer. Unbeknownst to him, the drug deal – arranged for Smith by Gillum – was a diversion for Gillum to call police. Nearly two weeks prior, Gillum had seen Smith with a pink handgun and took the current threat seriously, despite not seeing a gun on Smith’s person in the apartment.  

When police arrived at the gas station, they found Smith inside the driver’s side of vehicle and knew him to be a habitual offender. Smith was then arrested, and during a subsequent pat down search, officers found a bag of methamphetamine and a syringe. A loaded black revolver was also on the floorboard of the car.

Smith was subsequently charged with various drug, gun and driving offenses, and the Wabash Circuit Court found Gillum’s prior gun knowledge was admissible evidence while also denying denied Smith’s motion to suppress the handgun recovered during the inventory search of the vehicle.

Smith was ultimately convicted for Level 5 felony operating a motor vehicle while privileges are forfeited for life; Level 4 felony possession of methamphetamine; Level 6 felony illegal possession of a hypodermic syringe, and; Level 5 felony carrying a handgun without a license. He was also found to be a habitual offender.

On appeal, Smith argued the trial court erred by denying his motion to suppress and by admitting the handgun at trial, contending that it violated both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution.

The appellate court, however, found that gun recovered during the inventory search was not a violation of Fourth Amendment or the Indiana Constitution because the car was not owned by Smith and he could not identify who it belonged to. The court also court found the intrusion to be minimal and the officers’ need to secure the vehicle was reasonable.

However, the appellate court did find that the admission of evidence regarding Smith’s prior bad act involving the pink handgun was an error, but the error did not affect Smith’s substantial rights.

“This evidence does not meet the requirements of Evidence Rule 404(b), and any minimal probative value was outweighed by unfair prejudice to Smith,” Judge Elizabeth Tavitas wrote for the court. “Despite the trial court’s error, however, any error in admitting evidence regarding the pink gun and the threat to shoot Gillum was harmless. Gillum’s very brief testimony that Smith possessed a pink gun on August 1, 2016, would not have head a probable impact on the jury’s determination that Smith possessed a gun on August 16, 2016.”

Thus, the appellate court upheld the result in Robert H. Smith v. State of Indiana, 85A05-1712-CR-2908.

 

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