Tony Lawrence Richey v. State of Indiana

FILED

May 19 2023, 8:44 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Amanda O. Blackketter Theodore E. Rokita

Blackketter Law, LLC Attorney General of Indiana

Shelbyville, Indiana Indianapolis, Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tony Lawrence Richey, May 19, 2023

Appellant-Defendant, Court of Appeals Case No.

22A-CR-1107

v. Appeal from the Shelby Superior

Court

State of Indiana, The Honorable R. Kent Apsley,

Appellee-Plaintiff Judge

Trial Court Cause No.

73D01-2110-F4-020

Opinion by Judge May

Judges Weissmann and Foley concur.

May, Judge.

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 1 of 25

[1] Tony Lawrence Richey appeals following his conviction of Level 4 felony

possession of a firearm as a serious violent felon (“SVF”). 1 Richey raises three

issues on appeal, which we revise, reorder, and restate as:

1. Whether officers unconstitutionally seized Richey in violation

of his rights under the Fourth Amendment to the United States

Constitution and Article 1, section 11 of the Indiana Constitution

prior to discovering a firearm;

2. Whether the State presented sufficient evidence that Richey

had committed an SVF-qualifying offense; and

3. Whether the trial court committed fundamental error when it

admitted evidence of more than one of Richey’s prior

convictions.

We affirm.

Facts and Procedural History 2

[2] On October 28, 2021, Deputy Justin Parker of the Shelby County Sheriff’s

Department was on duty in a marked police car when he received a dispatch

regarding a suspicious person walking on a bridge over the Flat Rock River in

rural Shelby County. Deputy Parker responded to the call and found an

individual camped underneath the bridge. The individual told Deputy Parker

1

Ind. Code § 35-47-4-5.

2

We heard oral argument in this matter on April 4, 2023, in Indianapolis. We commend counsel for their

able presentations.

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 2 of 25

that he had not been walking on the bridge, but he packed up his camp and

called a relative to pick him up. Deputy Parker’s shift ended shortly thereafter,

and he began driving back to his house. Deputy Parker passed Richey, who

was walking on the road, during the drive back to his house. He did not

recognize Richey, but the two exchanged waves.

[3] Deputy Parker arrived at his house and changed clothes. He then got in his

personal vehicle to drive to an appointment in Greenwood. As Deputy Parker

was driving to Greenwood, he saw Richey again. Deputy Parker stopped to

speak with Richey, and he asked Richey where he was going. Richey said he

was trying to get to Indianapolis. Deputy Parker thought this was unusual

because Richey was not walking in the direction of Indianapolis, but Deputy

Parker continued driving to his appointment in Greenwood. However, en route

to the appointment, Deputy Parker found out the appointment was cancelled,

and he decided to visit relatives who lived nearby. While visiting his relatives

and approximately three-and-a-half hours after Deputy Parker first saw Richey,

Deputy Parker saw Richey walking around again. Deputy Parker noted that,

even though it was raining, Richey was not wearing rain gear. It was also near

dusk, and Deputy Parker knew there were not any gas stations or restaurants

nearby.

[4] Deputy Parker thought it would be best if a uniformed officer came to check on

Richey. Deputy Parker then called Deputy Kenneth Thompson, another

Shelby County Sheriff’s deputy, and he continued to watch Richey as Richey

walked into nearby woods. Deputy Thompson was on duty at the time, and

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when Deputy Thompson arrived, he used his intercom to request anyone in the

woods to come out. No one exited the woods, and Deputy Thompson left to

respond to another call.

[5] Deputy Parker called Officer John Searle, an off-duty Shelbyville Police Officer,

and told him about Richey. Deputy Parker then returned to visiting with his

relatives. A short while later, Officer Searle saw Richey while Officer Searle

was driving to a gas station to put gasoline in his patrol vehicle. Officer Searle

noticed Richey was walking with the flow of traffic, and he initiated a stop of

Richey. Officer Searle turned on his patrol car’s red and blue lights, and he

directed Richey to stand in front of the patrol vehicle. Officer Searle called

Deputy Parker, and Deputy Parker arrived on the scene in his patrol vehicle

with his red and blue lights activated. Deputy Parker asked Richey if he had

been walking on the Flat Rock River bridge earlier in the day, and Richey

indicated that he was walking around in that area. Richey was cooperative

with the officers. He gave the officers varying answers regarding his intended

destination, but he did acknowledge he would like a “courtesy ride.” 3 (Tr. Vol.

3

At trial, the State questioned Deputy Parker:

Q. Okay. What’s a courtesy ride?

A. I mean, it, it’s just that, it’s a free taxi ride pretty much paid for by the tax payers, I

guess. So, I mean, we do that multiple times, we get, we get people that, you know, walk

from one place to another and sometimes they can be a hindrance, you know, a lot of

people decide to walk on the interstate, which is illegal, we pick those people up instead

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 4 of 25

II at 66.) During this time, neither Officer Searle nor Deputy Parker

handcuffed Richey or conducted a pat down search of Richey. They also did

not put Richey in a patrol car. The officers never affirmatively told Richey that

he was free to leave or that he was not free to leave.

[6] After speaking with Richey, the officers called Deputy Thompson and asked

him to come to the scene to give Richey a courtesy ride. Deputy Thompson

arrived approximately eleven minutes after Officer Searle stopped Richey.

After speaking with the other officers on the scene, Deputy Thompson “just

walked up to Mr. Richey and was like ‘So, hey, man, you, you want a ride?’

Like, ‘Where you, where you wanna go?’” (Id. at 155.) Richey responded

affirmatively and asked to be driven to Edinburgh. As Deputy Thompson and

Richey were walking to Deputy Thompson’s car, Deputy Thompson asked

Richey if he had any weapons because Deputy Thompson always makes sure

the individuals who accept courtesy rides from him are unarmed before getting

into his vehicle for officer safety. Richey responded that he had a gun, so

Deputy Thompson performed a pat down search of Richey. Deputy Thompson

discovered a handgun and ammunition during the search and arrested Richey

on suspicion of carrying a handgun without a license.

of ticketing them or something else and just get them to where they need to go and that

way it, you know, one less thing we have to worry about.

(Tr. Vol. II at 67.)

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 5 of 25

[7] The next day, the State charged Richey with Level 4 felony unlawful possession

of a firearm by an SVF. On March 8, 2022, Richey filed a motion to suppress

the handgun and ammunition because the evidence was discovered during an

illegal seizure. The trial court held a hearing on Richey’s motion on March 16,

2022. On March 18, 2022, the trial court issued an order denying Richey’s

motion to suppress. The trial court found Officer Searle stopped and detained

Richey when he encountered Richey walking on the wrong side of the road, but

“[w]hat began as a brief detention became a consensual encounter with a

couple of the neighbors who also happened to be police officers, until Deputy

Thompson could arrive, which he did a short time later.” (App. Vol. II at 81.)

[8] The trial court then held a jury trial beginning on March 22, 2022. Richey

objected when the State offered the handgun and ammunition as evidence, and

the trial court overruled the objection. The State also introduced certified court

records from the Owen County Circuit Court that indicated “Tony Lawrence

Richey,” born August 30, 1972, was convicted on January 11, 1995, of eight

total felony counts consisting of three counts of Class B felony burglary, three

counts of Class C felony burglary, one count of Class C felony arson, and one

count of Class D felony automobile theft, for crimes committed in 1994.

(State’s Ex. Vol. I at 21-29.) Stephen Cradick, the Owen County Sheriff from

1991 to 1999, testified that he was involved in the investigation of this offender

in 1994, but he could not identify Richey as that offender at the time of

Richey’s trial because of the passage of time between the 1994 burglaries and

the 2022 trial.

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[9] The certified court records from Owen County also included the presentence

investigation report (“PSI”), which described the offender’s tattoos as: “Lion-

Right. lower-arm, Skull-rht. upper arm, Heart-back, DG thumb, face on back,

grim reaper on left arm.” (Id. at 26) (errors in original). Lieutenant Shana

Carrell, the assistant jail commander of the Shelby County Jail, testified that the

jail took pictures of Richey’s tattoos when he was booked into the jail in 2021,

and Lieutenant Carrell took additional photographs of Richey’s tattoos a few

days prior to trial. 4 Lieutenant Carrell testified Richey had a skull tattooed on

his right upper arm, a heart tattooed on his back, and a face on his back.

Lieutenant Carrell explained Richey’s arms were heavily tattooed, and it was

possible some of the tattoos Richey had on his arm in past years were covered

by subsequent tattoos. The trial court also required Richey to show his bare

arms and upper back to the jury. In addition, the State introduced a recorded

call Richey made from the Shelby County Jail in which he said, “I own up to

what I did wrong” and referenced “a case that I had in Owen County.” (State’s

Ex. 15 at approx. 11:47.)

[10] The jury found Richey guilty as charged. On April 26, 2022, the trial court

sentenced Richey to a term of seven years. The trial court ordered Richey to

serve the first six years of his sentence incarcerated in the Indiana Department

4

During oral argument, Richey’s counsel acknowledged some of the photographs of Richey’s tattoos

included in the appellate record are not legible, but she stated she believed the photographs shown to the jury

were able to be seen clearly. Moreover, the jury was able to personally observe Richey’s tattoos.

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 7 of 25

of Correction, and the trial court suspended the final year of Richey’s sentence

to probation.

Discussion and Decision

1. Constitutionality of Search

[11] Richey argues the officers lacked the requisite reasonable suspicion to initiate a

Terry 5 stop and detained him longer than necessary to effectuate the purpose of

the stop. He contends, based thereon, that the gun and ammunition should not

have been admitted at trial because they were obtained following an

unconstitutional seizure. Thus, Richey appeals the admission of the evidence at

trial. See Washington v. State, 784 N.E.2d 584, 586-87 (Ind. Ct. App. 2003)

(explaining issue is appropriately framed as challenge to admission of evidence

at trial when defendant objected at trial and appeals from a completed trial,

even though defendant filed a pre-trial motion to suppress).

[12] Generally, we review a trial court’s decision on the admission of evidence for

an abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014),

trans. denied. “A trial court abuses its discretion if its decision is clearly against

the logic and effect of the facts and circumstances before the court or if the court

misapplies the law.” Id. However, the constitutionality of a search or seizure is

a matter of law that we review de novo. Holloway v. State, 69 N.E.3d 924, 929

5

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1869 (1968).

Court of Appeals of Indiana | Opinion 22A-CR-1107 | May 19, 2023 Page 8 of 25

(Ind. Ct. App. 2017), trans. denied. When making such a determination, we

“consider the foundational evidence from the trial as well as the evidence from

the motion to suppress hearing which is not in direct conflict with the trial

testimony.” Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005).

1.1 Officer Searle’s Terry stop of Richey

1.1.1 Fourth Amendment

[13] The Fourth Amendment to the United Stated Constitution provides:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

“The Amendment protects citizens from search or seizure absent a warrant

supported by probable cause.” Tigner v. State, 142 N.E.3d 1064, 1068 (Ind. Ct.

App. 2020). However, there are several exceptions to the warrant requirement,

and the State bears the burden of proving at trial that one of those exceptions

applies before it may admit evidence collected during a warrantless seizure. Id.

[14] One exception to the warrant requirement is the so-called Terry stop, which is

“a brief investigatory stop falling short of traditional arrest.” Clark v. State, 994

N.E.2d 252, 263 (Ind. 2013). Such a stop “permits an officer to stop and briefly

detain a person for investigative purposes if the officer has reasonable suspicion

supported by articulable facts that criminal activity may be afoot[,] even if the

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officer lacks probable cause.” Id. (internal quotation marks omitted). The

reasonable suspicion requirement is satisfied when “the facts known to the

officer, together with the reasonable inferences arising from such facts, would

cause an ordinarily prudent person to believe that criminal activity has occurred

or is about to occur.” Crabtree v. State, 762 N.E.2d 241, 246 (Ind. Ct. App.

2002). It “entails something more than an inchoate and unparticularized

suspicion or hunch but considerably less than proof of wrongdoing by a

preponderance of the evidence.” Id. “[A] set of individually innocent facts,

when observed in conjunction, can be sufficient to create reasonable suspicion

of criminal activity.” Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003). “What

constitutes reasonable suspicion is determined on a case-by-case basis, and the

totality of the circumstances is considered.” Polson v. State, 49 N.E.3d 186, 190

(Ind. Ct. App. 2015). We must strike a balance between the interests of public

safety and an individual’s right to be free of arbitrary law enforcement

interference. Id.

[15] Richey asserts Officer Searle lacked reasonable suspicion to initiate a Terry stop

of him. However, police officers may initiate a stop when they observe even a

minor traffic violation, State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006), and

Officer Searle observed Richey walking on the wrong side of the road, which is

a Class C infraction. See Ind. Code § 9-21-17-14 (“If neither a sidewalk nor a

shoulder is available, a pedestrian walking along and upon a highway shall

walk as near as practicable to an outside edge of the roadway. If the roadway is

two-way, the pedestrian shall walk only on the left side of the roadway.”) &

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Ind. Code § 9-21-17-24 (“A person who violates this chapter commits a Class C

infraction.”). Thus, Officer Searle possessed the requisite reasonable suspicion

to initiate a stop. 6 See Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009)

(holding officer had reasonable suspicion of a traffic violation to pull over the

defendant’s vehicle).

1.1.2 Indiana Constitution

[16] While the language of Article 1, Section 11 of the Indiana Constitution mirrors

the Fourth Amendment, we interpret Article 1, Section 11 independently.

Hardin v. State, 148 N.E.3d 932, 941 (Ind. 2020), cert. denied, 141 S. Ct. 2468

(2021). Under the Indiana Constitution, we assess the reasonableness of a

search or seizure by looking at the totality of the circumstances. Id. While

other considerations may impact our analysis, we balance three factors when

examining the reasonableness of a search or seizure: “1) the degree of concern,

suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion

6

In Neeley v. State, we held the officers’ stop of Neeley was unlawful even though Neeley was walking on the

wrong side of the road. 70 N.E.3d 866, 873 (Ind. Ct. App. 2017). We noted “none of the officers ever

informed Neeley that he had been stopped for walking on the wrong side of the road” and one officer testified

it “‘wasn’t a real big deal[.]’” Id. Richey likens his case to Neeley because “none of the officers spoke to

Richey about walking on the wrong side of the road…[and] Officer Searle testified that he has never ticketed

anyone for that infraction, and he was not going to ticket Richey for it.” (Appellant’s Br. at 17-18.) We

acknowledge the stop of Richey bears several similarities to the stop in Neeley. However, well-established

Fourth Amendment precedent from both the United States Supreme Court and our Indiana Supreme Court

allows police officers to initiate a traffic stop upon observation of a traffic violation. See, e.g., Whren v. U.S.,

517 U.S. 806, 819, 116 S. Ct. 1769, 1777 (1996) (holding traffic stop was reasonable under the Fourth

Amendment when officers had probable cause to believe the defendant violated the traffic code); State v. Keck,

4 N.E.3d 1180, 1184 (Ind. 2014) (“If an officer observes a driver commit a traffic violation, he has probable

cause—and thus also the lesser included reasonable suspicion—to stop that driver.”). Moreover, Deputy

Parker observed Richey wandering in the rain for several hours without rain gear, and the sun had set by the

time Officer Searle stopped Richey. Thus, the stop was also motivated by a concern for Richey’s safety.

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the method of the search or seizure imposes on the citizen’s ordinary activities,

and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356,

361 (Ind. 2005).

[17] Officer Searle had a high degree of knowledge Richey committed a traffic

violation based on his personal observation of Richey walking on the road with

the flow of traffic. In addition, Officer Searle had knowledge Richey might be

lost or otherwise in need of assistance. Moreover, the initial stop was a small

intrusion on Richey’s normal activities, and “law enforcement has at least a

legitimate, if not a compelling, need to enforce traffic-safety laws[.]” Marshall v.

State, 117 N.E.3d 1254, 1262 (Ind. 2019), cert. denied, 140 S. Ct. 113 (2019).

Therefore, we hold Officer Searle’s stop of Richey did not violate Richey’s

rights under the Indiana Constitution. See id. (holding traffic stop for speeding

did not violate the defendant’s rights under the Indiana Constitution).

2.2 Duration of the Terry stop and Deputy Thompson’s search of Richey

2.2.1. Fourth Amendment

[18] Richey next argues that, even if Officer Searle’s initial stop of him was lawful,

the stop became unconstitutional when officers held him at the scene longer

than necessary. A police officer violates the Fourth Amendment’s shield

against unreasonable seizure when the officer holds someone beyond the time

needed to handle the matter for which the stop was made. Rodriguez v. U.S.,

575 U.S. 348, 350, 135 S. Ct. 1609, 1612 (2015). “Authority for the seizure

thus ends when tasks tied to the traffic infraction are—or reasonably should

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have been—completed.” Id. at 1614. However, a consensual encounter does

not implicate the Fourth Amendment. Powell v. State, 912 N.E.2d 853, 859

(Ind. Ct. App. 2009).

[19] The Fourth Amendment is triggered only “when there is a show of authority

such that a reasonable person would have believed he was not free to leave.”

State v. Scott, 966 N.E.2d 85, 88 (Ind. Ct. App. 2012), trans. denied. “The test for

whether such a reasonable impression existed is what a reasonable person,

innocent of any crime, would have thought had he been in the citizen’s shoes.”

Id. at 89. The test “is necessarily imprecise” and “is designed to assess the

coercive effect of police conduct, taken as a whole, rather than to focus on

particular details of that conduct in isolation.” Id. Factors that may indicate to

a reasonable person that the person is not free to leave include: “(1) the

threatening presence of several officers, (2) the display of a weapon by an

officer, (3) the physical touching of the person, or (4) the use of language or

tone of voice indicating that compliance with the officer’s request might be

compelled.” State v. Augustine, 851 N.E.2d 1022, 1026 (Ind. Ct. App. 2006).

[20] Richey notes Deputy Parker arrived approximately nine minutes after Officer

Searle stopped Richey, and Deputy Thompson arrived nearly eleven minutes

after the stop. During this time, Richey stood in front of Officer Searle’s police

vehicle. Richey leaned on the hood of Officer Searle’s vehicle, and both

Deputy Parker and Officer Searle activated their red and blue police lights.

Richey contends all these facts indicate he was not free to leave.

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[21] However, neither Officer Searle nor Deputy Parker handcuffed Richey. They

also did not display any weapons or search Richey. The officers never grabbed

Richey or threatened him. Contra Neeley v. State, 70 N.E.3d 866, 874 (Ind. Ct.

App. 2017) (holding Terry stop progressed to unlawful seizure when officers

physically restrained the defendant for thirteen minutes and threatened him

with injury and arrest). Richey gave varying answers regarding his intended

destination, but he never expressed an unwillingness to accept a ride. Officer

Searle testified that, during the encounter: “I think I said something like, you

know, another officer is on his way and [Richey] just stayed.” (Tr. Vol. II at

137.) Because neither Officer Searle nor Deputy Parker was on duty, they

wanted to wait for Deputy Thompson to arrive to give Richey a courtesy ride.

Deputy Thompson simply asked Richey “‘So, hey, man, you, you want a ride?’

Like, ‘Where you, where you wanna go?’” (Id. at 155.) He did not demand

Richey get into his vehicle, and Deputy Thompson testified that for officer

safety he always asks someone if the person has a weapon before giving the

person a courtesy ride. A reasonable person in Richey’s position would have

felt free to decline the offer of a courtesy ride or to express a desire to continue

traveling on foot, but Richey did neither. Therefore, Richey’s Fourth

Amendment right against unreasonable search and seizure was not violated

because the initial Terry stop of Richey turned into a consensual encounter

before the officers discovered the handgun on Richey. See McLain v. State, 963

N.E.2d 662, 667 (Ind. Ct. App. 2012) (holding search of defendant’s vehicle

was part of a consensual encounter and did not implicate the defendant’s

Fourth Amendment rights when the search occurred after officer’s traffic stop of

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defendant had concluded), trans. denied. While Deputy Thompson did search

Richey after Richey disclosed he possessed a handgun, such a search was

necessary to ensure Deputy Thompson’s safety. See N.W. v. State, 834 N.E.2d

159, 166 (Ind. Ct. App. 2005) (holding pat down search of juvenile due to

concern for officer safety did not violate Fourth Amendment), trans denied.

1.2.2 Indiana Constitution

[22] Richey also argues the duration of the stop violated his rights under the Indiana

Constitution because he “had been stopped by police for twelve minutes before

the firearm was discovered” and “there was no justifiable law enforcement need

to detain Richey for 12 minutes.” (Appellant’s Br. at 22.) Indiana Code section

34-28-5-3 provides that whenever a law enforcement officer believes in good

faith that a person committed a traffic violation, the officer may detain the

person for a time sufficient to inform the person of the allegation, obtain the

person’s identification information, and allow the person to execute a notice to

appear. Moreover, in Quirk, our Indiana Supreme Court held evidence found

by officers during a search of the defendant’s vehicle must be suppressed

because the officers’ continued detention of the defendant after issuing a

warning ticket was unreasonable under the Indiana Constitution. 842 N.E.2d

at 343.

[23] However, as we explained above, Officer Searle’s Terry stop of Richey turned

into a consensual encounter prior to Deputy Thompson’s discovery of the

firearm. Richey was free to decline the offer of a courtesy ride and continue

walking. However, he chose to accept the offer, and Richey voluntarily

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disclosed he had a gun when Deputy Thompson asked whether he had any

weapons. See Powell, 912 N.E.2d at 863 (holding consensual encounter did not

violate the defendant’s rights under Article 1, Section 11 of the Indiana

Constitution). Once Richey disclosed that he had a firearm, Deputy Thompson

had a significant need to search Richey for weapons to ensure Deputy

Thompson’s safety during the courtesy ride, and Deputy Thompson’s pat down

search of Richey was minimally intrusive. Richey’s possession of the gun also

raised concern and suspicion regarding whether he could legally possess a

firearm. Because Officer Searle’s Terry stop of Richey turned into a consensual

encounter before the discovery of the firearm and Deputy Thompson’s search of

Richey after Richey disclosed he had a handgun was reasonable, the officers did

not violate Richey’s rights under Article 1, Section 11 of the Indiana

Constitution. See Triblet v. State, 169 N.E.2d 430, 437 (Ind. Ct. App. 2021)

(holding pat down search for weapons to ensure officer safety was reasonable

under the Indiana Constitution), trans. denied.

2. Sufficiency of the Evidence

[24] Richey also asserts “the State’s limited identity evidence for the 1994 burglary

offender was insufficient to prove beyond a reasonable doubt that Richey was

that offender, and his conviction must be reversed.” (Appellant’s Br. at 9.) We

apply a well-settled standard of review when evaluating claims of insufficient

evidence:

Sufficiency-of-the-evidence claims . . . warrant a deferential

standard, in which we neither reweigh the evidence nor judge

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witness credibility. Rather, we consider only the evidence

supporting the judgment and any reasonable inferences drawn

from that evidence. We will affirm a conviction if there is

substantial evidence of probative value that would lead a

reasonable trier of fact to conclude that the defendant was guilty

beyond a reasonable doubt.

Powell v. State, 151 N.E.3d 256, 262-63 (Ind. 2020) (internal citations omitted).

[25] “The State must prove every element of the crime charged beyond a reasonable

doubt.” Willis v. State, 983 N.E.2d 670, 672 (Ind. Ct. App. 2013). The statute

defining unlawful possession of a firearm by an SVF provides that someone

convicted of one of several listed felonies, including burglary as a Class A or

Class B felony if committed before July 1, 2014, is an SVF. Ind. Code § 35-47-

4-5(b)(16)(A). An SVF who knowingly or intentionally possesses a firearm

commits a Level 4 felony. Ind. Code § 35-47-4-5(c).

[26] Richey argues the State failed to present sufficient evidence of his identity to

prove he was the 1994 burglary offender. In Payne v. State, we held the State did

not present sufficient evidence the defendant committed a previous violent

felony when “the only evidence the State introduced to prove Payne’s identity

as the defendant in the robbery cause was the evidence of the robbery

defendant’s name and birth date.” 96 N.E.3d 606, 613 (Ind. Ct. App. 2018),

trans. denied. Likewise, in Woodward v. State, 187 N.E.3d 311, 322 (Ind. Ct.

App. 2022), reh’g denied, we held the State failed to present sufficient evidence

that the defendant, Zachary Woodward, was an SVF because, while the State

presented evidence that an individual named Zachary Woodward was

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convicted of dealing in a controlled substance in 2008, “the State did not

introduce evidence of the defendant Woodward’s social security number nor

any other evidence linking defendant Woodward to the previous conviction.”

Id. at 320. Richey likens his case to Woodward and notes the State did not

present photographs or fingerprints of the 1994 offender, evidence of that

offender’s social security number, or witness testimony identifying Richey as

the 1994 offender.

[27] Yet, in Hernandez v. State, our Indiana Supreme Court explained:

Certified copies of judgments or commitments containing a

defendant’s name or a similar name may be introduced to prove

the commission of prior felonies. While there must be

supporting evidence to identify the defendant as the person

named in the documents, the evidence may be circumstantial. If

the evidence yields logical and reasonable inferences from which

the finder of fact may determine beyond a reasonable doubt that

it was a defendant who was convicted of the prior felony, then a

sufficient connection has been shown.

716 N.E.2d 948, 953 (Ind. 1999) (internal citations omitted), reh’g denied.

[28] Sheriff Cradick investigated the 1994 burglaries and testified that “Tony

Lawrence Richey” had been convicted of perpetrating the burglaries. (Tr. Vol.

II at 211.) The charging information, plea agreement, and abstract of judgment

from the case stemming from those burglaries included an offender with the

same name and date of birth as Richey. Moreover, the State presented the PSI,

which included additional details regarding the offender like his height, race,

hair color, and eye color. All these details matched Richey. The PSI also

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described the tattoos of the offender who committed the 1994 burglaries, and

the State presented evidence of the tattoos on Richey’s body at the time of trial.

Lieutenant Carrell testified that some of the tattoos on Richey’s body at the

time of trial matched the descriptions listed in the PSI for the offender who

committed the 1994 burglary. In addition, the State introduced into evidence a

jail telephone call in which Richey referenced an Owen County case. Richey

argues this evidence is not sufficient to prove he was the offender convicted of

Class B felony burglary in 1995 because tattoos can be added, removed, or

modified over time and Richey’s reference to an Owen County case could mean

a case other than the 1994 burglaries. However, these arguments are simply

invitations for us to reweigh the evidence, which our standard of review

precludes. See Walker v. State, 678 N.E.2d 402, 404 (Ind. Ct. App. 1997)

(“Walker’s argument is substantially an invitation to reweigh the evidence and

reexamine the victim’s credibility as a witness, which our standard of review

precludes us from accepting.”). A reasonable finder of fact could weigh the

matching name, date of birth, and physical characteristics described in the

Owen County Court records, the tattoos, and Richey’s statement during the jail

call to mean Richey was the offender convicted of Class B felony burglary in the

Owen County case. See Oster v. State, 992 N.E.2d 871, 878 (Ind. Ct. App. 2013)

(holding the State presented sufficient evidence of the defendant’s identity to

support a habitual offender finding when the defendant’s parole officer testified

that despite a slight name difference, the defendant was the person referred to in

previous court records), trans. denied.

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3. Admission of Prior Convictions

[29] Lastly, Richey argues the trial court committed fundamental error when it

admitted evidence of more than one of Richey’s prior convictions. As

explained above, we generally review a trial court’s decision on the admission

of evidence for an abuse of discretion. Mack, 23 N.E.3d at 750. However, if a

party fails to object to admission of the challenged evidence before the trial

court, the issue is waived for appeal unless the admission constitutes

fundamental error. Mendenhall v. State, 963 N.E.2d 553, 567 (Ind. Ct. App.

2012), trans. denied. “The fundamental error exception is extremely narrow and

applies only when the error constitutes a blatant violation of basic principles,

the harm or potential for harm is substantial, and the resulting error denies the

defendant fundamental due process.” Id. This exception is available only in

“egregious circumstances,” when the claimed error either makes a fair trial

impossible or constitutes a clearly blatant violation of basic and elementary

principles of due process. Id. “The mere fact that error occurred and that it was

prejudicial will not satisfy the fundamental error rule.” Purifoy v. State, 821

N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied. To constitute fundamental

error, a defendant must show greater prejudice than ordinary reversible error.

Id. Richey failed to object at trial to the evidence he now challenges and thus

he must demonstrate fundamental error.

[30] Indiana Rule of Evidence 404(b) provides: “Evidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on

a particular occasion the person acted in accordance with the character.”

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However, “[t]his evidence may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Id. Rule 404(b) “is designed to

prevent the jury from making the ‘forbidden inference’ that prior wrongful

conduct suggests present guilt.” Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.

1999) (quoting Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998)). “Simply

stated, evidence is inadmissible under Indiana Evidence Rule 404(b) when its

only apparent purpose is to prove that the defendant is a person who commits

crime.” Wilson v. State, 931 N.E.2d 914, 919-20 (Ind. Ct. App. 2010), trans.

denied. Nonetheless, if relevant, “evidence of other crimes may be admissible

for purposes other than to show the defendant’s character or propensity to

commit the crime charged.” Id. at 920.

[31] Here, the State offered and the trial court admitted evidence that on January 11,

1995, Richey was convicted of three counts of Class B felony burglary, three

counts of Class C felony burglary, one count of Class C felony arson, and one

count of Class D felony automobile theft. This evidence included copies of the

charging information, an abstract of judgment, and documents associated with

Richey’s plea agreement. Richey contends the only prior conviction with any

relevance to the instant case “was one conviction for burglary as a Class B

felony which was necessary to prove the SVF element.” (Appellant’s Br. at 24.)

He asserts admission of the additional convictions amounts to fundamental

error.

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[32] To obtain a conviction, the State was required to prove both that Richey

possessed a firearm and that he was an SVF. See Ind. Code § 35-47-4-5.

Overwhelming evidence demonstrates Richey possessed a handgun. Richey

admitted he had a gun before getting into Deputy Thompson’s car, and Deputy

Thompson found a handgun in Richey’s waistband immediately thereafter.

Both Deputy Parker and Officer Searle saw the handgun at the scene, and in a

subsequent jail phone call, Richey stated, “they caught me with a weapon.”

(St. Ex. 8 at 3:06.)

[33] With respect to Richey’s SVF-status, the State was required to prove Richey

was convicted of one count of Class B felony burglary in 1995. Therefore, the

State needed to present evidence that (1) a trial court entered judgment of

conviction for a serious violent felony prior to the date of Richey’s possession of

a handgun in the instant case and (2) that judgment of conviction was entered

against Richey. The abstract of judgment indicated the Owen Circuit Court

entered a judgment of conviction for Class B felony burglary against “Tony

Richey” on January 11, 1995. (State’s Ex. Vol. I at 24.) The charging

information, joint motion to enter guilty plea, and PSI from that case provided

additional details regarding the offender and those details matched Richey.

[34] The concern here, though, is not that the certified court documents from Owen

County were admitted at all, but rather that the documents disclosed seven

other felony convictions beyond the one conviction the State needed to prove its

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case. 7 The disclosure of these additional felony convictions was error. See, e.g.,

Baker v. State, 997 N.E.2d 67, 73 (Ind. Ct. App. 2013) (holding it was error for

the trial court to admit evidence of defendant’s prior bad acts but error was

nonetheless harmless).

[35] However, Rule 404(b) “is designed to prevent the jury from making the

‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Laird

v. State, 103 N.E.3d 1171, 1176 (Ind. Ct. App. 2018), trans. denied. “The effect

of Rule 404(b) is that evidence is excluded only when it is introduced to prove

the forbidden inference of demonstrating the defendant’s propensity to commit

the charged crime.” Id. at 1777. It is not disputed that Richey possessed a

handgun as he approached Deputy Thompson’s vehicle, and therefore, there is

no danger that the jury drew an inference that Richey committed the charged

possession offense merely because Richey committed criminal acts in the past.

[36] The Owen County court documents were introduced to prove Richey was the

individual convicted of Class B felony burglary in Owen Circuit Court on

January 11, 1995. Once the jury concluded Richey was that individual, the

7

We note this issue could have been avoided had the State presented the charging information for only one

count of Class B felony burglary and redacted references to Richey's additional convictions from the abstract

of judgment, PSI, and plea agreement documents it introduced from the Owen County case. See, e.g.,

Wilson, 931 N.E.2d at 920 ("Initially, we observe that any unrelated character evidence contained in Wilson's

BMV record should have been redacted from Wilson's record before it was admitted at trial.") Likewise, it

would have been better practice for Richey to have objected to admission of the documents in unredacted

form or for the trial court to have sua sponte ordered redaction in light of the well-established rule "that

evidence of a defendant's prior criminal history is highly prejudicial and should not be admitted." Null v.

State, 690 N.E.2d 758, 762 (Ind. Ct. App. 1998).

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State had succeeded in proving Richey’s SVF-status. Whether Richey was

convicted of any additional offenses, and what those offenses might have been,

was immaterial. The number of convictions in 1995 would not make a jury

more or less likely to find Richey was the Tony Lawrence Richey convicted in

1995. Thus, the fact that the jury learned Tony Lawrence Richey was

convicted of multiple other felonies in 1995 does not constitute fundamental

error. 8 See Warren v. State, 182 N.E.3d 925, 934 (Ind. Ct. App. 2022) (holding

officer’s testimony that he initially believed brown substance found in

defendant’s house was heroin constituted harmless error because “we are

satisfied that there is no substantial likelihood that the challenged evidence

contributed to the jury’s verdict”).

[37] Richey also argues fundamental error occurred because, despite an agreement

among the parties not to include the term “serious violent felon” in the trial

court’s reading of the charging information when instructing the jury, the term

was nonetheless included. (Appellant’s Br. at 26.) We have recommended that

trial courts “reference the predicate felony as one ‘enumerated under [Indiana

Code section] 35-47-4-5’ rather than as a ‘serious violent felony.’” Spearman v.

State, 744 N.E.2d 545, 550 n.8 (Ind. Ct. App. 2001), reh’g denied, trans. denied.

8

Richey also asserts the trial court committed fundamental error when it “admitted the charging information

with some details regarding all three prior Class B felony burglaries.” (Appellant’s Br. at 27.) However,

Richey fails to explain how the disclosure of these details denied him a fair trial, and we decline to hold that

disclosure of these minimal details constituted fundamental error. See Halliburton v. State, 1 N.E.3d 670, 683

n.7 (Ind. 2013) (noting defendant failed to show how introduction of character evidence amounted to

fundamental error).

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However, the State did not emphasize the facts of the underlying burglaries,

and the trial court used the SVF term a limited number of times. The trial court

also instructed the jury regarding the presumption of innocence and the State’s

burden to prove Richey guilty beyond a reasonable doubt. Therefore, the trial

court’s limited use of the term did not amount to fundamental error. See Ray v.

State, 846 N.E.2d 1064, 1070 (Ind. Ct. App. 2006) (holding trial court’s error in

instructing the jury that the defendant had a prior robbery conviction during

prosecution for being an SVF in possession of a handgun was harmless), trans.

denied.

Conclusion

[38] Officer Searle lawfully stopped Richey upon observing a traffic violation, and

the Terry stop turned into a consensual encounter before Deputy Thompson

discovered the handgun. The State presented sufficient evidence that Richey

committed an SVF qualifying offense because Richey’s name, date of birth,

physical characteristics, and tattoos matched those of an offender convicted in

1995 of Class B felony burglary in Owen County. In addition, the trial court

did not commit fundamental error when it admitted evidence of Richey’s other

felony convictions in 1995. For these reasons, we affirm the trial court.

[39] Affirmed.

Weissmann, J., and Foley, J., concur.

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