Burglary conviction stands against cross-examination appeal

June 19, 2019

The burglary conviction of a South Bend man who broke into his brother-in-law’s bar where he once had worked and wrote out a check to a third party was affirmed Wednesday. The burglar argued on appeal that he had wrongly been denied an opportunity to cross-examine the third party about his criminal past.

The Indiana Court of Appeals affirmed the conviction in Donald Newland, Jr. v. State of Indiana, 19A-CR-95. Donald Newland Jr. had worked at the Blarney Stone Bar until April 2016, when his employment ended. His brother-in-law, John Hensley, owned the bar and noticed a suspicious check drawn on the bar’s bank account the following month. The check was made out to Chaz Coburn, who Hensley did not know, in the amount of $300.

After contacting his security company and reviewing video footage, Hensley recognized Newland entering the bar, going upstairs to the office, using the keypad to enter the office and moments later leaving the office while holding a piece of paper, according to the record.

Newland was charged in July 2018 with Level 5 felony burglary and Class A misdemeanor theft, and a jury convicted him of burglary, sentencing him to two years in the Department of Correction, followed by one year in community corrections and another year of probation.

In his appeal, Newland argued the St. Joseph Superior Court abused its discretion by denying him the opportunity to cross-examine Coburn about his prior convictions, although Coburn as a state witness testified on direct examination that he had prior convictions for theft, conversion and auto theft and was currently in jail. Newland also was able to establish through an offer of proof that Coburn’s 2016 theft conviction was for a theft from his place of employment, a bar.

“We agree with the trial court that the State did not open the door to further questioning about Coburn’s theft conviction,” Judge Patricia Riley wrote for the panel. “In accordance with Evid. R. 609, Coburn’s theft conviction was admissible and relevant with regard to his credibility as a witness. The State merely questioned him whether he had been convicted of theft in 2016, to which Coburn responded affirmatively. The State did not inquire into the particulars of the conviction. As Newland made no showing that the jury was misled by learning of this conviction, the trial court properly limited Newland’s cross-examination.

“… Newland argues that he should have been allowed to delve into the details surrounding Coburn’s theft conviction because such evidence falls within the exceptions of Evid. R. 404(b). Indiana Evidence Rule 404(b) generally prohibits the admission of evidence of a person’s ‘other crimes’ to prove the person’s character in order to show that the person acted in conformity therewith. …

“We are not persuaded,” the panel concluded. “Newland’s real motivation to introduce the circumstances surrounding Coburn’s prior theft conviction can be gleaned from Newland’s offer to prove in which he established that Coburn’s 2016 conviction for theft was for theft from his place of employment, which was a bar. It is apparent that his strategy was to place before the jury the details of Coburn’s previous conviction for the sole purpose of creating the forbidden inference, namely, prior wrongful conduct in similar circumstances suggests present guilt. See Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999) (commenting that Indiana Evidence Rule 404(b) is designed to prevent the jury from making the ‘forbidden inference’). Accordingly, we conclude that the trial court properly prevented Newland from further cross-examining Coburn on his prior conviction.”



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