[Copyrighted Material Omitted]
from the Montgomery Circuit Court, The Honorable Harry A.
Siamas, Judge, Trial Court Cause No. 54C01-1802-F4-238
for Appellant: Mark Small, Indianapolis, Indiana
for Appellee: Curtis T. Hill, Jr., Attorney General of
Indiana, Caryn N. Szyper, Deputy Attorney General,
[¶ 1] Following a jury trial in Montgomery
Circuit Court, Lisiate Tavake ("Tavake") was
convicted of Level 4 felony unlawful possession of a firearm
by a serious violent felon and sentenced to eight years of
incarceration. Tavake appeals and presents four issues, which
we consolidate and restate as the following three:
I. Whether the trial court erred in concluding that Tavakes
conviction in California for robbery is substantially similar
to the crime of robbery in Indiana;
II. Whether the trial court abused its discretion when it
denied Tavakes request to prevent the lead investigating
officer from testifying after he sat at the prosecuting
attorneys table during the trial even after the court
granted Tavakes motion for separation of witnesses;
III. Whether the trial court abused its discretion by
admitting into evidence Tavakes booking records from the
local jail and correctional records from California.
[¶ 2] We affirm.
Facts and Procedural History
[¶ 3] On the night of January 30, 2018,
Montgomery County emergency dispatch received a 911 call from
a man who stated that someone might be shooting a firearm in
his apartment complex. Officers from the Crawfordsville
Police Department went to the apartment complex, knocked on
the door of the apartment mentioned in the call, and spoke
with the occupant thereof. The officers detected no smell of
gunpowder, and they did not see any shell casings that would
indicate that a firearm had recently been discharged. The
occupant permitted the officers to enter his apartment to
investigate. When they discovered no indications of the use
of a firearm, they determined that someone had most likely
called in a false report.
[¶ 4] The officers then gathered in the
lobby of the apartment complex. As they did so, Tavake
cracked open the door to his apartment and stared at the
officers. One of the officers asked Tavake if everything was
okay, and Tavake gave a short answer indicating that he was
fine. When the officers left the apartment building, Tavake
followed them and spoke with them from the top of the stairs
that led from the street to the front door of the building.
An unusual conversation then took place.
[¶ 5] Tavake asked the officers if they were
looking to arrest someone. The officers indicated that they
were not. Tavake then informed the officers that he had an
active arrest warrant based on a parole violation in
California. Tavake told the officers that he was on parole
for a robbery conviction. Tavake gave the police an Indiana
learners permit, and one of the officers ran his information
through the police computer system. However, no arrest
warrant appeared in their system. Tavake insisted that he
needed to be extradited to California, and one of the
officers informed him that such a decision was up to the
authorities in California, who had apparently not entered a
warrant for Tavakes arrest in the interstate database.
Another officer informed Tavake that he should speak with his
parole officer in California.
[¶ 6] Still apparently unsatisfied with
these answers, Tavake asked the officers what would happen if
he committed a crime in Indiana. The police informed him that
this would only guarantee that he would get in trouble in
Indiana and that California still might not choose to
extradite him. Tavake joked that he had never had so much
trouble trying to get arrested. He then told the officers
that he had two handguns in his apartment that he was not
supposed to have due to his robbery conviction. The officers
informed him that he would need to be handcuffed and that
they would need to search his apartment for the weapons.
Tavake readily agreed. The officers placed Tavake in custody
and read him his Miranda rights.
[¶ 7] The police searched Tavakes apartment
and found two handguns: a Glock 9 mm pistol and a Taurus .40
caliber pistol. Both weapons were, as Tavake indicated,
loaded and had a bullet in the chamber. The police then
confirmed that Tavake had been convicted of second-degree
robbery in California on June 20, 2009.
[¶ 8] On February 1, 2018, the State charged
Tavake with Level 4 felony unlawful possession of a firearm
by a serious violent felon ("SVF") and Class A
misdemeanor false informing. The State subsequently amended
the information to specify the offense underlying the SVF
charge. A two-day jury trial commenced on September 25, 2018.
After both sides made their opening statements, Tavake made a
motion for separation of the witnesses. The trial court
granted Tavakes motion. The court told counsel for both
parties to advise their witnesses of the separation order and
then adjourned for lunch.
[¶ 9] When the trial resumed, Officer Cade
Mills ("Officer Mills"), one of the responding
officers, sat at the prosecutors table. The State, however,
did not formally designate Officer Mills as its assisting
witness. Still, Tavake did not object to Officer Millss
presence at the prosecutors table, even though Officer Mills
was listed on the States witness list. Tavake also did not
object as the State called its first two witnesses. When the
State called Officer Mills to testify, however, Tavake
objected, noting the separation-of-witnesses order and that
the State had failed to designate Officer Mills as its
assisting witness. Tavake requested that Officer Mills be
excluded from testifying. The prosecuting attorney
acknowledged his failure but argued that Officer Mills should
not be prevented from testifying. The trial court ruled as
The record will show that Officer Mills has been in the
courtroom sitting next to Prosecuting Attorney Buser
throughout this case from the time evidence was begun. The
court is going to overrule the motion. I understand why its
made, but I think it was pretty evident, it was evident to
the court and should have been evident to the defense that
the state intended to have Officer Mills as its designated
witness. If Officer Mills were sitting in the back and not
sitting at counsel table then I probably would grant the
motion, but it appears to the court that it was evident that
the state intended him to be their designated witness. So I
dont see how the defense is harmed or prejudiced by Officer
Mills[s] presence and his subsequent testimony since the
state did have the right to designate one witness to remain
in the courtroom to assist the state. So your objection is
noted and overruled.
Tr. pp. 121-22.
[¶ 10] Tavake also objected when the
prosecuting attorney tendered as evidence, as States Exhibit
11, a copy of Tavakes booking records from the Montgomery
County Jail. Tavake based his objection on grounds that the
booking records had not
been listed on the States pre-trial exhibits list. Tavakes
counsel stated that he had received the booking records
approximately one week before the trial began. The
prosecuting attorney acknowledged this but informed the trial
court that he himself had only received the records from the
jail the week before trial and immediately provided a copy to
defense counsel. The prosecuting attorney also stated that he
had telephoned defense counsel about this addition to the
States exhibits list. The trial court overruled Tavakes
objection, stating, "it appears that the information was
submitted to defense as soon as the State received it."
Tr. p. 147.
[¶ 11] Tavake additionally objected when the
prosecuting attorney proffered States Exhibit 9, which
consisted of certified copies of Tavakes correctional
records from California, including the abstract of judgment
from his robbery conviction, a booking photograph, an FBI
card, and copies of his fingerprints. Tavake specifically
objected to pages three, four, and five of these records.
Page five listed other crimes Tavake had been convicted of
(receiving stolen property and participation in a criminal
street gang), and pages three and four listed Tavakes
"external movements." Tr. p. 154. The State agreed
to remove pages three and four from the records and agreed to
redact the portions of the other pages referring to Tavakes
other convictions. The trial court agreed to the removal of
pages three and four and ordered that the remaining pages be
redacted. Tavake then further objected to a reference to the
enhancement of his robbery conviction, which the trial court
also ordered to be redacted. Lastly, Tavake asked that the
court redact from the records a reference to "186.22
(B)(1) PC," which was listed on the FBI record.
Id. at 156-57. Tavake argued that this reference
would confuse the jury, but the trial court disagreed and
admitted the otherwise-redacted copy of the records into
[¶ 12] At the conclusion of the trial, the
jury found Tavake guilty of Level 4 felony unlawful
possession of a firearm by an SVF, but not guilty of Class A
misdemeanor false informing. On October 24, 2018, the trial
court sentenced Tavake to eight years of incarceration.
Tavake now appeals.
I. The California Crime of Robbery is
Substantially Similar to the Crime of Robbery in
13] Tavake first argues that the trial court erred
by determining that his conviction in California for robbery
counts as a conviction for a crime that is substantially
similar to the crime ...