Curry v. State

35 N.E.3d 315 (Table)

Kevin Lavell CURRY, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A03–1405–CR–172.

Court of Appeals of Indiana.

June 3, 2015.

Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BROWN, Judge.

[1] Kevin Lavell Curry appeals the habitual criminal offender enhancement to his sentence. He raises four issues which we revise and restate as:

I. Whether the trial court abused its discretion when it admitted certain evidence of Curry's prior convictions for purposes of the habitual offender enhancement;

II. Whether the State presented sufficient evidence that Curry is an habitual offender; and

III. Whether the trial court committed fundamental error when it allowed the State to add the habitual offender enhancement after the omnibus date.

[2] We affirm.

Facts and Procedural History

[3] On July 1, 2009, the State charged Curry with one count of corrupt business influence as a class C felony and fifteen counts of forgery as class C felonies. Curry v. State (Curry I ), No. 20A03–1008–CR–454, slip op. at 4 (Ind.Ct.App. May 31, 2011), trans. denied. The omnibus date was September 21, 2009. Id. On January 27, 2010, the State filed an amended information, alleging that Curry was an habitual offender. Id. at 4–5. Specifically, the State alleged that Curry had prior felony convictions for forgery in 2007 in Indiana and for aggravated kidnapping in 1990 in Texas. On June 24, 2010, a jury found Curry guilty as charged and found him to be an habitual offender. Id. at 5, 9–11.

[4] In his direct appeal, Curry raised several issues including: (1) the denial of his motion for a directed verdict; (2) the sufficiency of the evidence; (3) the belated amendment of the charging information to include an habitual offender enhancement; and (4) the appropriateness of his sentence. Id. at 5, 9–12. We remanded for clarification of his sentence but affirmed in all other respects. Id. at 2, 15–16. With respect to the amendment of the charging information, we held that Curry “failed to establish that the amendment prejudiced him in the preparation and presentation of his defense.” Id. at 12.

[5] In April 2012, Curry filed a petition for post-conviction relief and raised three issues: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) prosecutorial misconduct. On December 19, 2013, the post-conviction court denied Curry's petition except with respect to his ineffective assistance of appellate counsel argument regarding his habitual offender enhancement and ordered a new trial regarding the habitual offender enhancement.

[6] Curry appealed the post-conviction court's order with regard to whether his trial counsel was ineffective. Curry v. State (Curry II ), No. 20A03–1312–PC–513, slip op. at 2 (Ind.Ct.App. August 11, 2014), reh'g denied, trans. denied. We affirmed the denial of his petition for post-conviction relief and noted that Curry was not prejudiced by the belated filing of the habitual offender allegation, which prevented him from succeeding on his claim of ineffective assistance of trial counsel for failure to challenge the belated amendment. Id. at 10.

[7] On March 21, 2014, Curry filed a motion to exclude evidence, in which he argued that a certified booking photograph the State sought to use to prove the September 13, 1990 conviction for aggravated kidnapping in Texas was actually a booking photograph from a November 19, 2001 arrest. Curry argued that this evidence was inadmissible because it had been provided to him after the discovery deadline had passed and that it would unfairly prejudice his ability to present a defense, that it was not relevant under Ind. Evidence Rule 401, and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the photograph did not pertain to the alleged conviction the State was required to prove. The court entered an order, and as to the certified booking photograph, stated that it would “exclude any reference to anything other than the certified copy and the Court will not allow the certified copy to come in unless some other independent means of connecting the identifiers in the booking photo to the Kevin L. Curry on trial is made.” Appellant's Appendix at 496.

[8] On March 25, 2014, Curry's trial on the habitual offender enhancement began. At the trial, the court heard testimony from former Elkhart County Deputy Prosecuting Attorney Kristine Osterday (“DPA Osterday”), who was involved in the initial prosecution of Curry on the corrupt business influence charge underlying the retrial on the habitual offender enhancement.

[9] The court heard argument as to State's Exhibit 1, a certified copy of the 2007 Indiana conviction from Curry's guilty plea to counterfeiting as a Class D felony in the Elkhart Superior Court in cause number 22D02–0606–FC–221, which included an entry in the chronological case summary (“CCS”) indicating that the instant case was a probation violation under Curry's 2007 Indiana conviction. State's Exhibit 1 contained an “Affidavit to Show Probable Cause” in the 2007 Indiana conviction for “Kevin L. Curry DOB: 03–10–64,” an “Information Charging Forgery A Class C Felony, I.C. 35–43–5–2(a)(1)(A) ” including a copy of a check with Curry's signature, a copy of a “Motion to Withdraw Plea of Not Guilty and Enter Pleas of Guilty, Plea Agreement, and Disclosure” including Curry's initials, “KC,” next to each line of the plea agreement, an order noting that Curry “entere[ed] a plea of guilty to: COUNTERFEITING D FELONY,” a sentencing order, and a twelve-page CCS for the 2007 Indiana conviction that included an entry stating that Curry had violated his probation in the 2007 Indiana conviction by committing the instant offense. State's Exhibit 1.

[10] Defense counsel objected to the admission of State's Exhibit 1, arguing that evidence of a probation violation was not relevant under Ind. Evidence Rule 401 and that “it would not withstand a balancing test under Indiana Rule[ ] of Evidence 403 ” because State's Exhibit 1 contained references to Curry's criminal history that were “unduly prejudicial and not probative, could mislead the jury and cause confusion of the issues.” Transcript at 16. The court overruled the objection, stating that caselaw supported the proposition that it is “not prejudicial to include evidence of a probation violation directly related to the habitual proceedings” and that the information in the exhibit was “relevant and it does not appear to the court to be counterbalanced by any significant prejudice.” Id. at 17. Defense counsel also objected to sentencing information being included in State's Exhibit 1. The court struck the inclusion of the exact sentence length from the 2007 Indiana conviction. The court removed eleven pages of the CCS from the 2007 Indiana conviction but allowed the CCS entry showing the probation violation to remain in the exhibit, and published the exhibit to the jury as State's Exhibit 1A.

[11] The court heard argument as to State's Exhibit 3,¹ which contained a certified copy of a plea agreement from an August 29, 1990 offense in Texas for aggravated kidnapping, stamped “FELONY INFORMATION” at the top of the page, and dated September 13, 1990, the date of conviction for the offense, and included the length of Curry's sentence for that offense, which was seven years of probation, the conditions of probation for “Kevin Lavell Curry,” and a reference that Curry violated his probation and was sentenced to five years in the Texas Department of Criminal Justice, institutional division, on July 14, 1993, as a result of the probation violation. State's Exhibit 3. The exhibit also contained prints of Curry's right thumb and right index finger, a signature for Kevin Curry, as well as his date of birth of 3–10–64, race, and sex. The portion of State's Exhibit 3 containing Curry's guilty plea agreement and conditions of probation was stamped with a Recorder's Memorandum, which states: “At the time of recordation this instrument was found to be inadequate for the best photographic recordation because of illegibility, carbon or photo copy, discolored paper, etc. All blockouts, additions, and changes were present at the time the instrument was filed and recorded.”² State's Exhibit 3. On the portion of the exhibit dealing with the July 14, 1993 probation violation, the Recorder's Memorandum states: “This instrument is of poor quality and not satisfactory for photographic recordation; and/or alterations were present at the time of filming.” Id.

[12] Defense counsel objected to the admission of State's Exhibit 3 on grounds that the exhibit was “not relevant ... prejudicial, [and] would not withstand [an] Indiana Rules of Evidence 403 balancing test....” Transcript at 17. Defense counsel also objected to the inclusion of the sentencing information in the exhibit. Defense counsel additionally objected that State's Exhibit 3 was of “poor quality” and that a recorder's stamp on various pages of the document indicated that the documents were “not as they were originally created” and that the exhibit “draw[s] into questions of authenticity about a witness.” Id. at 51–52.

[13] The court overruled the objection to including the reference to a probation violation but, although it redacted a specific reference to “the South Carolina charges which were quite serious in nature and which could be quite highly prejudicial” to Curry, it did not redact the general reference to the probation violation from State's Exhibit 3. Id. at 18. It also allowed the inclusion of the sentencing information because the charge in the Texas case was “already fully resolved.” Id. at 20. The court also added that the exhibit did not appear to contain “any obvious alteration of the document and...