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Wilder v. State

Court of Appeals of Indiana

January 9, 2018

Robert Wilder, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Peggy R. Hart, Magistrate, Trial Court Cause No. 49G10-1609-CM-37937

          ATTORNEY FOR APPELLANT Joel M. Schumm Indiana University Robert H. McKinney School of Law Indianapolis, Indiana Seth M. Smoker Certified Legal Intern.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana.

          BAILEY, JUDGE.

         Case Summary

         [¶1] Robert Wilder ("Wilder") appeals his conviction, following a jury trial, of battery resulting in bodily injury, as a Class A misdemeanor, [1] and the term of his probation that prohibits him from possessing firearms. We affirm.

         Issues

         [¶2] Wilder raises the following two issues on appeal:

I. Whether the detective's testimony violated Indiana Rule of Evidence 704(b) and its admission was fundamental error.
II. Whether the condition of probation which prohibits him from possessing firearms during his probation period violates his right to bear arms, as protected by the Second Amendment to the United States Constitution and Article 1, § 32 of the Indiana Constitution.

         Facts and Procedural History

         [¶3] Wilder owns and operates a pierogi food truck. Food truck operators must operate out of a commissary or licensed board of health kitchen, and Wilder's commissary is on the south side of Indianapolis next to a bar and restaurant called The Tailgate, which is owned by Dennis Turpen ("Turpen").

         [¶4] At approximately 12:30 p.m. on August 6, 2016, Wilder went to his commissary to pick up frozen pierogi. Wilder's sixteen-year-old son was driving Wilder's vehicle, and Wilder's friend, William Greuesser ("Greuesser"), was a passenger in the back seat of the vehicle. Turpen had parked his truck in an alley behind his restaurant-where there are no parking spaces-in order to unload supplies from his truck and take them into his restaurant. Although Turpen's truck was not blocking the alley access, it was parked in such a manner that passing around his vehicle would be difficult. Wilder and Turpen had previously argued on several occasions about Turpen parking his car behind his restaurant. Believing his son, who was an inexperienced driver, would not be able to drive around Turpen's truck, Wilder called out to Turpen to move his truck. Turpen responded that it would only take him a few minutes to unload his truck, and pointed out that there was room enough to drive around his truck.

         [¶5] Wilder became angry, yelled at Turpen, and then exited his vehicle and approached Turpen. An altercation ensued during which Wilder tackled Turpen and got Turpen face-down on the ground. Wilder knelt on top of Turpen and placed his forearm on the back of Turpen's neck. William Camp ("Camp"), who was across the street from Turpen and Wilder at a strip mall, did not see how the altercation began but he did witness Wilder holding Turpen down on the ground and banging Turpen's face onto the ground. Wilder then got up and went to Turpen's truck, where he began throwing things out of the truck and onto the ground. Wilder then got into the driver's seat of his own vehicle and sped away. Turpen sustained bleeding lacerations to his hands, arms, elbows, face and one knee. Wilder was not injured.

         [¶6] Both Turpen and Camp independently called 9-1-1 to report the incident. Indianapolis Metropolitan Police Department ("IMPD") Officer James Rusk ("Officer Rusk") responded to the 9-1-1 calls. When he arrived at The Tailgate, he saw that Turpen had blood on his nose, hands, elbows, and knees. Camp approached Officer Rusk and informed him that he had witnessed the altercation. Officer Rusk interviewed both Turpen and Camp at the scene.

         [¶7] IMPD Detective Kevin Duley ("Det. Duley") was assigned to investigate the incident further. As part of his investigation, Det. Duley interviewed Turpen five days after the incident and noticed that Turpen still had injuries on his nose and hands. Det. Duley also interviewed Camp regarding the incident. Det. Duley showed Camp an array of photographs, including one of Wilder, and Camp identified Wilder as the person whom he saw kneeling on top of Turpen and banging Turpen's head on the ground on August 6.

         [¶8] The State charged Wilder with battery resulting in bodily injury as a Class A misdemeanor. At his May 15, 2017, jury trial, Wilder contended that he had acted in self-defense because Turpen had swung at him first. As part of that defense, and beginning in his opening statement, Wilder attacked the quality of the police investigation and, specifically, the fact that police never spoke to Wilder, his son, or Greuesser before filing charges. In his opening statement, Wilder's attorney stated:

The police investigation, which you will also learn today, uh, spoke to Turpen and Camp and that's it, never talked to my client. If they had they would have found out that there was another eye witness and you will hear from him today too. … And, if the police had investigated this case appropriately you'd-they'd know that there was reasonable doubt.

Tr. Vol. II at 38-39. On cross-examination of Officer Rusk, Wilder's attorney elicited testimony that Officer Rusk never interviewed Wilder, his son, or Greuesser, and that Officer Rusk did not take photographs at the scene, collect DNA evidence, inspect Turpen's head for more injuries, call in an evidence technician, or check if there were surveillance videos at surrounding businesses that may have recorded the altercation.

         [¶9] Following Officer Rusk's testimony, the State called Det. Duley to testify. He was the State's final witness in its case-in-chief, and the prosecutor asked the detective why he never spoke to Wilder during his investigation. Det. Duley replied:

I felt that the evidence was sufficient that a battery had occurred, and uh[, ] in speaking with Mr. Camp[, ] his testimony to me corroborated what the victim said. And, in my opinion, Mr. Camp did not have a dog in the fight. He would have been better off to just walk away from the whole thing. Um, so it, it played a lot or it waived [sic] heavily for me that he was willing to stick around and give testimony that backed up what the victim said. That being said[, ] I also felt like this was a case that maybe needed to see its day in court, as opposed to me taking a statement and-it be tried in the Prosecutor's Office so to speak. So[, ] I submitted it to the Prosecutor for charging.

Tr. Vol. II at 117.

         [¶10] On May 15, the jury found Wilder guilty as charged. At the June 5 sentencing hearing, the State requested a no-contact order. Wilder did not object to the issuance of a no-contact order, but he asked the court to remove from its terms the prohibition on possessing a firearm, as this case did not involve the use of any firearm. The trial court imposed a 365-day sentence, all suspended to probation except for time served. The court imposed standard conditions of probation which included a condition that Wilder "not possess a firearm, destructive device, or other dangerous weapon or live in a residence where there are such items." App. Vol. II at 119. The court also imposed a no-contact order as a condition of probation, which included an order that Wilder "have no firearms, deadly weapons, or ammunition in his/her possession." Id. at 30. This appeal ensued.

         Discussion and Decision

         Indiana Rule of ...


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