Green v. State
| Decision Date | 19 May 2023 |
| Docket Number | 22A-CR-1615 |
| Parties | Thomas L. Green, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Elkhart Superior Court The Honorable Kristine A Osterday, Judge Trial Court Case No. 20D01-2101-F4-3
ATTORNEY FOR APPELLANT CHRISTOPHER J. PETERSEN GOSHEN INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA STEVEN J. HOSLER DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
[¶1] Thomas Green appeals his conviction of stalking, contending the trial court erred in its admission of certain evidence. He also appeals his consecutive sentencing. Concluding there was no error on either point, we affirm.
[¶2] Green and the victim, S.R., were in a relationship for about six years, during which time they had a son. Their relationship, beyond co-parenting their son, ended in September 2017. Although no longer a couple, S.R. and Green continued to spend time together with their son on the weekends, and they spoke on the phone or texted most days just as if they were still a couple.
[¶3] Since the end of her relationship with Green, S.R. had not dated anyone else, and Green had not seen her with another man. Then, in November 2020, S.R. and Eddie Scott, a co-worker, left work on their break and went to a nearby gas station to get lunch. As S.R. was getting a drink, she heard Green's voice. Green said to Scott, "That's my baby's mama." Tr. Vol. 2, p. 178. S.R. told Green not to make a scene, and Green responded, "You going to make me kill this n****r." Tr. Vol. 3, p. 97. S.R. and Scott paid for their food, and they all exited the store. As S.R. and Scott walked to S.R.'s car, Green told her that Scott was not to get in her car. Nevertheless, S.R. and Scott got in her car and drove away with Green following them in his car, a silver Chevy Cruze. Green followed them until they pulled into their employer's parking lot. After this incident, Green, S.R., and their son all spent Thanksgiving and Christmas together at Green's mother's home.
[¶4] Things changed in the new year. On January 3, 2021, Martel Griffin, a coworker of Scott and S.R., was out at his car in the parking lot when Green pulled up in a Chevy Cruze and began asking Griffin questions about Scott. Green asked if Griffin knew Scott, if he knew what time Scott got off work, if he knew what kind of car Scott drove, and if he knew how long Scott had "been messing around with S[.R]." Tr. Vol. 3, p. 135. Green then told Griffin he would wait for Scott and directed him not to tell Scott. Griffin immediately told Scott about the incident.
[¶5] The following day on January 4, Griffin was giving Scott a ride home from work. Scott asked him to stop at a gas station for a drink. Griffin pulled into a nearby station, and they saw Green sitting in his car. Scott told Griffin not to stop. The pair stopped at the next gas station on their route, and Scott went in. Green followed them in the same car he had driven the previous day. When they left the station, Green continued following them. Griffin turned onto Scott's street but backed into a neighbor's driveway to keep Green from knowing where Scott lived. Green pulled up and blocked them in. He got out of his car and began walking toward Griffin's car, pulling up the front of his shirt as he went. When he did so, Griffin saw the handle of a gun sticking out of Green's pants. Griffin drove through the neighbor's grass to get away, and a few blocks away, Scott flagged down a police officer.
[¶6] On January 7, on their morning break at work, S.R. and Scott went to a nearby gas station for snacks. The station's surveillance video from that time and date showed a car, similar to the one known to be driven by Green, drive past the gas station while S.R. and Scott were inside and unaware of Green's presence at the time. The next day, Scott used S.R.'s phone to text Green and tell him to leave Scott alone. They exchanged several text messages, one of which, sent by Green, said: "If i [sic] really wanted your bitch ass i [sic] could have got both of you hoes at speedway yesterday." Ex. Vol. 5, p. 38 (State's Ex. 15).
[¶7] On January 8 and 9, Green also sent several text messages to S.R. One message contained a meme[1] showing Kermit the frog sitting on a stool with the words, "Ever just look at someone and think, 'This motherf***er is going to be the reason I go to jail.'" Id. at 33 (State's Ex. 10).
[¶8] On January 11, S.R. went to a nearby gas station on her morning break at work. As she made her way back to her car after getting a drink, she felt something in her back. S.R. turned around to find Green. He put a gun to her face, against her cheek, and asked, "Where's that n****r at?" Tr. Vol. 2, p. 217. S.R. believed Green was referring to Scott. She ran back into the station and asked the employee to call the police. John Weaver was also at the gas station that morning and testified at trial to seeing a man with a gun approach a woman.
[¶9] On January 14, Green texted S.R. a picture of a set of eyes, which she took to mean that he was watching her. The following day she received a text from Green that said, "See you gone." Id. at 234. She believed Green was still watching her because when she received this text S.R.'s car, which was usually in her driveway at that time of day, was gone. The next few days S.R. continued getting text messages from Green, including another picture of eyes, and, "See you switched up" and "No tanning?" Id. at 237. S.R. believed these texts were comments on a departure from her normal routine of going tanning every day after work.
[¶10] The State charged Green with intimidation, a Level 5 felony;[2] domestic battery by means of a deadly weapon, a Level 5 felony;[3] stalking, a Level 5 felony;[4]carrying a handgun without a license, a Class A misdemeanor;[5] and unlawful possession of a firearm by a serious violent felon, a Level 4 felony.[6] A jury found Green guilty as charged. At sentencing, the court merged the intimidation into the domestic battery offense and merged the carrying a handgun without a license into the unlawful possession of a firearm offense. The court then sentenced Green to five years for the offense of domestic battery, six years for the offense of stalking, and twelve years for the possession of a firearm. The court also ordered that the domestic battery and possession of a firearm sentences were to be served concurrently, with the stalking sentence consecutive to that. Green now appeals.
[¶11] Green presents two issues for our review:
[¶12] Green first contends the court erred by admitting evidence of the January 4 incident with Scott and Griffin. Specifically, he argues that admission of the uncharged misconduct violated Evidence Rules 404(b) and 403.
[¶13] As a general matter, the trial court is afforded considerable discretion in ruling on the admissibility and relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096 (Ind. 2012). Because the trial court is best able to weigh the evidence and assess witness credibility, we will review its rulings on admissibility for abuse of discretion and reverse only if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Canfield v. State, 128 N.E.3d 563 (Ind.Ct.App. 2019), trans. denied.
[¶14] Evidence Rule 404(b)(1) precludes the admission of evidence of a crime, wrong, or other act to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character. Evidence is excluded under this rule when its purpose is to permit the jury to indulge in the "forbidden inference" that the defendant "must be guilty of the charged crime because, on other occasions, he acted badly." Fairbanks v. State, 119 N.E.3d 564, 565 (Ind. 2019). However, such evidence may be admissible for other purposes, such as "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Ind. Evidence Rule 404(b)(2). In assessing the admissibility of 404(b) evidence, a trial court must (1) determine that such evidence 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 the evidence against its prejudicial effect pursuant to Evidence Rule 403. Whitham v. State, 49 N.E.3d 162 (Ind.Ct.App. 2015), trans. denied. Rule 403 provides that a trial court may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect.
[¶15] Here, during trial and out of the presence of the jury, the parties presented their arguments on the admissibility of testimony concerning the incident on January 4. Green's counsel objected under 404(b) because it would show Green's propensity toward violence and gun possession and argued it is irrelevant to the crime of Green's stalking of S.R. The State responded that the testimony is admissible as evidence of Green's "indirect stalking" of S.R. and Green's harassment and terrorizing of S.R. that continued to January 11. Tr. Vol. 3, p. 76. In addition, the State noted that, in his opening statement, Green's...
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