Cowan v. State, 53A04-0208-CR-412.

• Decision Date: 05 March 2003
• Docket Number: No. 53A04-0208-CR-412.,53A04-0208-CR-412.
• Citation: 783 N.E.2d 1270
• Parties: Cory Lamont COWAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

783 N.E.2d 1270

Cory Lamont COWAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 53A04-0208-CR-412.

Court of Appeals of Indiana.

March 5, 2003.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Cory Cowan appeals his conviction for Receiving Stolen Property,¹ a class D felony. Specifically, he maintains that: (1) Indiana Rules of Evidence 403 and 404 were violated because evidence of uncharged crimes was admitted at trial and was highly prejudicial to him; (2) the trial court erred in instructing the jury on accomplice liability because the evidence did not support the giving of such an instruction and was confusing; (3) the prosecutor committed misconduct during closing argument; and (4) the evidence was insufficient to support the conviction. Concluding that there was no error, we affirm Cowan's conviction.

FACTS

The facts most favorable to the verdict are that on May 8, 2001, Julie Bowles and Lisa Harkness met Cowan and his roommate, Charles Hays, at a Bloomington bar. All four eventually went to Cowan's apartment, where they smoked cocaine. At one point, Cowan and Hays approached the girls about stealing some checkbooks or credit cards and using those to buy some merchandise for them in exchange for additional drugs.

Bowles and Harkness agreed, left the apartment and then drove to the PTS Electronics parking lot where they searched for an unlocked vehicle. The girls eventually discovered an unlocked truck and removed a checkbook that belonged to Julia Graham, a PTS employee. Bowles and Harkness then proceeded to a nearby Marsh grocery store where they purchased several items and received some cash after forging Graham's name on a check. Thereafter, they returned to Cowan's apartment and gave the cash to Cowan and Hays. Cowan and Hays then prepared a list of items they wanted Bowles and Harkness to purchase for them using the stolen checks. Both girls then drove to a Wal-Mart where they again used stolen forged checks to purchase a number of items for Cowan and Hays as well as some clothing for themselves.

The next day, all four went to Bowles's residence in Bedford where they brought two other women into their plan. Bowles, Cowan, and Hays went to pick up Harkness's daughter from day care, whereupon they went to a sporting goods store and Bowles again purchased some items with a forged check. Bowles and Cowan then proceeded to a Finish Line athletic shoe store. Cowan tried on a number of shoes, selected the ones he wanted, and placed them on the checkout counter. Cowan then exited the store and waited outside for Bowles. Bowles again forged Graham's name on a stolen check to pay for the shoes. After leaving the store, the police stopped both Cowan and Bowles and directed them to sit at a table. Cowan assisted Bowles in hiding the checkbook under the table, where the police later found it.

Bowles admitted to the police that she forged the check, that Cowan knew about it, and acknowledged that most of the merchandise she had purchased was for him. As a result of the incident, Cowan was charged with one count of receiving stolen property, which were the shoes that had been "purchased" from the Finish Line. Bowles eventually told three versions of the events that occurred with regard to the spree. During an interview with the police immediately following the arrest, Bowles explained that she had found Graham's checkbook in a parking lot. Bowles also stated that she was aware of only two checks that had been forged. Later in the interview, however, Bowles admitted that she stole Graham's checkbook from Graham's vehicle, but Bowles continued to deny any knowledge of other instances that forged checks or stolen credit cards were used to purchase merchandise at local businesses.

At trial, Bowles offered yet another version of the events in accordance with the terms of a plea agreement where she would avoid incarceration by testifying against Cowan. Specifically, she testified that Cowan and Hays orchestrated a scheme whereby Bowles and Harkness were directed to steal checkbooks and credit cards from two vehicles and to buy merchandise for Cowan and Hays at businesses with forged checks or stolen credit cards.

Prior to trial, Cowan filed a motion in limine to exclude any evidence regarding drug usage or transactions involving stolen checks other than the incident that had occurred at the Finish Line. The State argued that this evidence was relevant for purposes other than proving Cowan's propensity toward criminality, and the trial court denied the motion. At trial, Cowan raised a relevance objection when Bowles first testified about using cocaine at the apartment as well as her own use of xanax. Cowan made no other evidentiary objections to the testimony regarding drugs and the other forged check transactions and never raised an objection at trial that the evidence had been erroneously admitted. Over Cowan's objection, the trial court gave an instruction on accomplice liability regarding inducement and causing another to commit an offense. During closing arguments, Cowan did not raise any objection to the State's comments regarding the credibility of the State's witnesses. Following the conclusion of the trial on May 9, 2002, Cowan was found guilty as charged. He now appeals.

DISCUSSION AND DECISION

I. Evidence of Uncharged Crimes

Cowan first contends that the trial court erred in admitting highly prejudicial evidence of other crimes in violation of Ind. Evidence Rules 403 and 404. Specifically, Cowan maintains that the evidence of his drug use and crack-for-merchandise deal was not relevant to the receiving stolen property charge and was highly prejudicial. Cowan also asserts that evidence of prior bad acts by persons other than Cowan was irrelevant and prejudicial.

In resolving this issue, we note that it is within the sound discretion of the trial court to admit or exclude evidence. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind.2000). We will not reverse the trial court absent an abuse of that discretion. Id. Our supreme court has determined that a trial court abuses its discretion when its evidentiary ruling is clearly against the logic, facts and circumstances presented. Id.

Ind. Evidence Rule 404(b) provides that:

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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The rationale behind Evid. R. 404(b) is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct. Monegan v. State 721 N.E.2d 243, 248 (Ind.1999). When a defendant objects to the admission of evidence on the grounds that it violates Evid. R. 404(b), we: (1) determine whether evidence of prior bad acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of such evidence against its prejudicial effect. Id. The supreme court has also determined that the provisions of Evid. R. 404(b) do not bar the admission of evidence of uncharged criminal acts that are "intrinsic" to the charged offense. Lee v. State, 689 N.E.2d 435, 439 (Ind.1997). "Intrinsic" refers to those offenses occurring at the same time and under the same circumstances as the crimes charged. Id.

Here, the evidence at trial showed that Cowan suggested that Bowles and Harkness use stolen checks or credit cards to obtain various merchandise for him in exchange for drugs. In complying with Cowan's request, it was established that the girls stole Graham's checkbook and wrote forged checks to obtain cash and various items. The scheme culminated in Bowles's use of a forged check to obtain the tennis shoes from the Finish Line for Cowan— the charge that the State ultimately brought against him.

The evidence of the other acts as well as the drug usage served as the basis for everything that followed the charged incident and was necessary to explain and understand that incident. In essence, the evidence presented at trial regarding the drug usage was relevant to Cowan's motive, and it was necessary to explain and understand the offense that had been charged. Thus, it can be said that the drug usage and other uncharged criminal acts were inextricably bound up with the forgery spree that culminated in the theft of the tennis shoes from the Finish Line. See Lee, 689 N.E.2d at 439.

Additionally, the evidence of the other forged checks passed by Bowles and Harkness at the other stores, as well as the theft of the checkbook, was relevant to show Cowan's knowledge that the property had been stolen, inasmuch as his knowledge was an essential element of the offense the State had to prove beyond a reasonable doubt in accordance with Indiana Code section 35-43-4-2. Specifically, the evidence demonstrated that it was Cowan who had suggested the forgery scheme and that he knew of Bowles's and Harkness's use of the forged checks to obtain goods at Marsh, Wal-Mart and the other sporting goods store. Tr. p. 180-92, 195-97, 262-72. That evidence was relevant to show that Cowan also knew that Bowles had used a forged check to obtain the Finish Line merchandise. Moreover, most of the evidence at issue pertained to the offenses and acts committed by Harkness and Bowles, and not by Cowan....