Timothy A. Cooper v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                         Oct 19 2020, 9:04 am
court except for the purpose of establishing                                          CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Courtney L. Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy A. Cooper,                                       October 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-855
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Steven P. Meyer, Judge
                                                         Trial Court Cause No.
                                                         79D02-1907-F5-123



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020                    Page 1 of 13
[1]   Timothy A. Cooper (“Cooper”) appeals his conviction for failure to register as a

      sex or violent offender with a prior conviction1 as a Level 5 felony. Cooper

      raises the following restated issues for our review:

                 I. Whether the trial court abused its discretion by admitting
                 evidence of Cooper’s prior conviction for failure to register;


                 II. Whether the evidence was sufficient to support Cooper’s
                 conviction for Level 5 felony failure to register as a sex or violent
                 offender with a prior conviction; and


                 III. Whether Cooper’s due process rights were violated because
                 he claims that the jury observed him in shackles.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On May 19, 2000, Cooper pleaded guilty to rape as a Class B felony, which

      made him a sexually violent predator pursuant to Indiana Code section 35-38-1-

      7.5. State’s Exs. 6-8. In 2012, Cooper filed a petition to determine his

      registration status, which the trial court denied and dismissed. State’s Ex. 8. In

      its denial and dismissal of Cooper’s petition, the trial court noted that because

      of Cooper’s plea of guilty to rape he “was adjudged a sexually violent predator

      pursuant to Indiana Code 35-38-1-7.5” and was required to register with local

      law enforcement for life.

Id. It also noted

that the required ten-year registration




      1
          See Ind. Code § 11-8-8-17(a)(1), (b).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 2 of 13
      period following Cooper’s release from incarceration had not elapsed when

      Cooper filed the petition and concluded that Cooper’s petition was not yet ripe

      for consideration.

Id. [4]

  On April 1, 2019, Officer Alexander Dehr (“Officer Dehr”) of the Lafayette

      Police Department was assigned to monitor Cooper, which required Officer

      Dehr to visit Cooper once per month to ensure that Cooper was residing at the

      address he provided. Tr. Vol. II at 179-82. On April 13, 2019, Officer Dehr

      went to 1427 North 16th Street, the address Cooper provided, but Cooper was

      not there.

Id. at 183.

Officer Dehr returned to that same address on April 23,

      2019 and May 29, 2019 and on both occasions met with Cooper.

Id. at 183-84.

      On June 23, 2019, Officer Dehr again arrived at 1427 North 16th Street to

      confirm Cooper’s residency at that address.

Id. at 184.

When Officer Dehr

      knocked on the door, he instead found a different individual living at the

      residence.

Id. at 185.

Officer Dehr called Cooper, and Cooper told Officer

      Dehr that he had been “kicked out” and was homeless.

Id. [5]

  Officer Dehr met with Cooper at the local library, and he confirmed that

      Cooper had not registered his new status as homeless.

Id. at 185, 188.

Cooper

      also told Officer Dehr that he was not “required” to register and had spoken

      with Detective David Morgan (“Detective Morgan”), the officer in charge of

      maintaining the sex offender registry, about the issue.

Id. at 188-89.

Officer

      Dehr informed Cooper that he needed to update his registration and gave him

      additional time to complete his paperwork.

Id. at 189.

On July 21, 2019,

      Officer Dehr again met with Cooper to confirm that he had completed his
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 3 of 13
      required registration.

Id. at 192.

Cooper indicated that he had not done so but

      planned to do it the next day.

Id. at 193.

At that point, Officer Dehr placed

      Cooper under arrest.

Id. [6]

  On July 22, 2019, the State charged Cooper with failure to register as a sex or

      violent offender with a prior conviction as a Level 5 felony. Appellant’s App. Vol.

      II at 18. On February 12, 2020, the State filed a notice of its intent to offer

      404(b) evidence, in which it notified Cooper that it intended to offer evidence

      related to his investigation, arrest, and prosecution for failure to register as sex

      offender in Cause Number 46C01-1304-FD-1157 (“Cause No. FD-1157”);

      Cause Number 46C01-1210-FD-2894 (“Cause No. FD-2894”); and 49F09-

      0509-FD-167240 (“Cause No. FD-162740”).

Id. at 7, 66.

The State intended to

      use Cause No. FD-1157, Cause No. FD-2894, and Cause No. FD-162740 to

      show “[Cooper’s] knowledge of his responsibility to register as his past failures to

      do so have resulted in criminal charges.”

Id. at 66

(emphasis in original). The

      following day, Cooper filed his objection to the State’s notice of intent to offer

      404(b) evidence, principally arguing that admission of the information about

      the cases under the three cause numbers involving failure to register would be

      used to show propensity and would be more prejudicial than probative.

Id. at 7, 72-74. [7]

  At a February 18, 2020 hearing the trial court stated it was “leaning toward

      allowing the conviction” in Cause No. FD-1157 and “leaving out” Cause No.

      FD-2894 and Cause No. FD-162740, because neither resulted in a conviction.

      Tr. Vol. II at 34, 37. At the hearing, the trial court also determined that it would

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 4 of 13
      conduct a bifurcated trial.2

Id. at 51.

On February 20, 2020, the trial court

      issued an order stating that it would allow the admission of Cooper’s prior

      conviction for failure to register in Cause No. FD-1157 under Indiana Evidence

      Rule 404(b) “for the limited purpose of proving knowledge” and excluded

      Cause No. FD-2894 and Cause No. FD 162740 because neither led to a

      conviction and “the probative value of such evidence is substantially

      outweighed by unfair prejudice, misleading the jury, and needlessly presenting

      cumulative evidence.” Appellant’s App. Vol. II at 76.


[8]   On February 25, 2020, trial court held the first phase of the bifurcated jury trial.

      Tr. Vol. II at 68. The State sought to admit Cooper’s prior conviction for failure

      to register in Cause No. FD-1157. Tr. Vol. III at 8. Cooper renewed his

      objection to the admissibility of his failure to register conviction in Cause No.

      FD-1157, which the trial court overruled.

Id. at 8-9.

In overruling Cooper’s

      objection, the trial court instructed the jury not to consider Cooper’s conviction

      in Cause No. FD-1157 as evidence of “guilt or that the evidence of this prior act

      creates any inference that [Cooper] acted in conformity with that prior

      conduct” and emphasized that the jury was “only to consider it for evidence of

      knowledge that [Cooper] is required to register as a sex offender.”

Id. at 10. 2

        In the first phase of the trial, the jury would determine whether Cooper committed failure to register as a
      sex or violent offender as a Level 6 felony. Tr. Vol. II at 168. In the second phase of the trial, the jury would
      determine whether Cooper committed failure to register as a sex or violent offender with a prior conviction as
      a Level 5 felony. Tr. Vol. III at 91.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020                     Page 5 of 13
[9]    Cooper testified that he was subject to a ten-year registration period for his rape

       conviction, that he filed a challenge to his lifetime registration requirement, and

       that he believed he should not have to register.

Id. at 37-40.

He claimed that on

       November 20, 2018, Detective Morgan told him he no longer had to register 3

       but that he nevertheless “did what he was supposed to do” and registered his

       address in April 2019.

Id. at 40-41.

On cross-examination, Cooper

       acknowledged that he previously had initialed the sex or violent offender

       registration form, which advised that it was a felony to fail to register when

       required.

Id. at 53;

State’s Ex. 9.


[10]   At the conclusion of the first phase of the trial, the jury returned a verdict of

       guilty for failure to register as a sex or violent offender as a Level 6 felony. Tr.

       Vol. III at 89; Appellant’s App. Vol. II at 131. In the second phase of the trial, the

       State moved to admit the evidence that was admitted during the first phase of

       the trial, including Cooper’s conviction for failure to register in Cause No. FD-

       1157, which the trial court granted. Tr. Vol. III at 95. The State rested its case-

       in-chief, and the jury found Cooper guilty of failure to register as a sex or

       violent offender with a prior conviction as a Level 5 felony.

Id. at 95, 99;

       Appellant’s App. Vol. II at 130.


[11]   At the outset of the March 23, 2020 sentencing hearing, Cooper stated to the

       trial court that during his trial when he was “coming upstairs to your



       3
        Detective Morgan indicated that he did not recall telling Cooper that Cooper did not have to register. Tr.
       Vol. III at 24, 26.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020                  Page 6 of 13
       courtroom” he was “shown in shackles and cuffed up in front of the jury on the

       third floor.” Tr. Vol. III at 109. Cooper told the trial court that the jury saw

       him “chained up like a slave” and that he believed the jury seeing him shackled

       and chained “had a lot to do” with the guilty verdict.

Id. No one else

at the

       sentencing hearing corroborated Cooper’s account, and Cooper did not move

       for any particular remedy in response.

Id. at 109-10.

The trial court sentenced

       Cooper to a four-year sentence with three hundred and twenty-eight days

       executed in the Department of Correction; however, it suspended three years

       and thirty-seven days of the sentence and ordered Cooper to serve one and one-

       half years on Community Corrections as a condition of probation. Appellant’s

       App. Vol. II at 12-17. Cooper now appeals.


                                      Discussion and Decision

                                     I.       Admission of Evidence
[12]   Cooper argues the trial court abused its discretion when it admitted evidence of

       Cooper’s prior conviction in Cause No. FD-1157 during the first phase of his

       trial. A trial court has broad discretion in ruling on the admissibility of

       evidence, and we disturb those rulings only upon an abuse of that discretion.

       Chambless v. State, 

119 N.E.3d 182

, 188 (Ind. Ct. App. 2019), trans. denied. “An

       abuse [of discretion] occurs only where the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances.”

Id. There is a

       strong presumption that the trial court properly exercised its discretion.

Id. “In determining the

admissibility of evidence, we will only consider evidence that



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 7 of 13
       favors the trial court’s ruling and unrefuted evidence that favors a defendant.”

Id. [13]

  Indiana Evidence Rule 404(b) prohibits a trial court from admitting evidence of

       another crime, wrong, or act “to prove a person’s character in order to show

       that on a particular occasion the person acted in accordance with the

       character.” Ind. Evidence Rule 404(b)(1). “The purpose of the rule is to protect

       against the ‘forbidden inference -- that the defendant acted badly in the past,

       and that the defendant’s present, charged actions conform with those past bad

       acts . . . .’” Erickson v. State, 

72 N.E.3d 965

, 973-74 (Ind. Ct. App. 2017)

       (quoting Nicholson v. State, 

963 N.E.2d 1096

, 1099-100 (Ind. 2012) (citation

       omitted)), trans. denied. Evidence of crimes, wrongs, or other acts are

       admissible if offered for another purpose, such as to prove “motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.” Evid. R. 404(b)(2). In assessing the admissibility of 404(b)

       evidence, we: (1) determine whether the evidence of other crimes, wrongs, or

       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 the evidence

       against its prejudicial effect pursuant to Rule 403. 

Erickson, 72 N.E.3d at 974

.


[14]   In the first phase of the trial, the State sought to introduce Cooper’s prior

       conviction for failure to register in Cause No. FD-1157 to show his knowledge

       of the registration requirement. Appellant’s App. Vol. II at 66. The trial court

       admitted the prior conviction over Cooper’s objection, instructing the jury not

       to consider the conviction in Cause No. FD-1157 as evidence of “guilt or that

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 8 of 13
       the evidence of this prior act creates any inference that [Cooper] acted in

       conformity with that prior conduct” and emphasized that the jury was “only to

       consider it for evidence of knowledge that [Cooper] is required to register as a

       sex offender.” Tr. Vol. III at 10.


[15]   Cooper asserts that he did not place his knowledge of the registration

       requirement at issue during the trial, and his prior conviction should not have

       been admitted during the first phase of the trial. Instead, he contends that his

       defense was that he was not required to register and that his prior conviction

       was “completely and totally irrelevant.” Appellant’s Br. at 16. We disagree.

[16]   In Whitehair v. State, 

654 N.E.2d 296

, 302 (Ind. Ct. App. 1995), this court

       concluded that, with respect to a defendant’s knowledge of the wrongfulness of

       his actions, evidence of a defendant’s prior bad acts is only admissible when the

       defendant puts his knowledge in issue. See also Baker v. State, 

997 N.E.2d 67

, 71

       (Ind. Ct. App. 2013) (citing Whitehair and noting that where the record did not

       indicate that knowledge was at issue “evidence of Baker’s prior bad acts was

       not admissible under the knowledge exception to Evidence Rule 404(b)”).4




       4
         Cooper cites Christian-Hornaday v. State, 

649 N.E.2d 669

(Ind. Ct. App. 1995) for the proposition that he is
       first required to place his knowledge in issue before the evidence of prior conviction for failure to register in
       Cause No. FD-1157 could be admitted. Christian-Hornaday addressed the intent exception to Indiana Rule of
       Evidence 404(b) not knowledge. We also note that Christian-Hornaday used the Seventh Circuit’s four-part
       test for assessing 404(b) claims, which the Indiana Supreme Court declined to adopt. See Hicks v. State, 

690 N.E.2d 215

, 219 (Ind. 1997) (“We see no persuasive reason to adopt the Seventh Circuit test.”).




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020                      Page 9 of 13
[17]   Here, Cooper’s knowledge of the registration requirement was at issue. At trial,

       Officer Dehr testified that during his interaction with Cooper, Cooper indicated

       that he had not registered his address and that “he was not required” to do so.

       Tr. Vol. II at 188. In addition, Detective Morgan testified that Cooper had

       disputed his registration status in the past, indicating “several times” that

       Cooper did not want to register and that Cooper felt that he “shouldn’t have to

       be on the registry at all.” Id.at 244. Cooper’s own testimony concerning his

       belief that he did not have to register along with his cross-examination of

       Detective Morgan as to Cooper’s complaints about having to register and

       changes in the law with respect to ten-year and lifetime registration also showed

       that his knowledge of his registration obligation was at issue. Tr. Vol. III at 21-

       22, 37-40. Cooper’s letters challenging his status as a sexually violent predator

       and requesting to be removed from the registry also demonstrated that his

       knowledge was at issue. State’s Exs. 17-18. Thus, the trial court properly

       admitted the evidence of Cooper’s prior conviction in Cause No. FD-1157

       under the knowledge exception. Cooper’s prior conviction was used only for its

       probative value in showing that Cooper was aware of the requirement to

       register, demonstrating that the trial court sought to protect against the jury

       indulging in the “forbidden inference” that Cooper’s “prior wrongful conduct

       suggests present guilt.” Fairbanks v. State, 

119 N.E.3d 564

, 568 (Ind. 2019), cert.

       denied, 

140 S. Ct. 198

(2019) (citation omitted). Therefore, the trial court did

       not abuse its discretion when it admitted the evidence of Cooper’s prior

       conviction for failure to register in Cause No. FD-1157 for the purpose of


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 10 of 13
       showing his knowledge of the registration requirement during the first phase of

       the trial.


                                  II.     Sufficiency of the Evidence
[18]   Cooper next argues that the State’s evidence was insufficient to sustain his

       conviction for Level 5 felony failure to register. When we review the

       sufficiency of the evidence to support a conviction, we do not reweigh the

       evidence or assess the credibility of the witnesses. Lehman v. State, 

55 N.E.3d 863

, 868 (Ind. Ct. App. 2016), trans. denied. We consider only the evidence

       most favorable to the trial court’s ruling and the reasonable inferences that can

       be drawn from that evidence. Lock v. State, 

971 N.E.2d 71

, 74 (Ind. 2012). We

       also consider conflicting evidence in the light most favorable to the trial court’s

       ruling. Oster v. State, 

992 N.E.2d 871

, 875 (Ind. Ct. App. 2013), trans. denied. A

       conviction will be affirmed if there is substantial evidence of probative value

       that a reasonable trier of fact could have concluded the defendant was guilty

       beyond a reasonable doubt. Wolf v. State, 

76 N.E.3d 911

, 915 (Ind. Ct. App.

       2017).


[19]   Cooper was convicted of failure to register as a sex or violent offender with a

       prior conviction as a Level 5 felony. The State was required to prove that

       Cooper had a prior unrelated conviction under Indiana Code section 11-8-8-17.

       See Ind. Code § 11-8-8-17(b)(1). Cooper contends that the State failed to prove

       that he had a prior conviction for failure to register because the evidence

       admitted in the first phase of his trial was admitted only to show Cooper’s


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 11 of 13
       knowledge of the registration requirement and not as substantive evidence. We

       disagree. Having found Cooper guilty of failure to register as a Level 6 felony

       at the conclusion of the first phase of the trial, at the start of the second phase of

       Cooper’s trial the State moved to incorporate “all the previously submitted

       exhibits” from the first phase of the trial. Tr. Vol. III at 95. Cooper did not

       object, and the trial court incorporated all the previously submitted exhibits,

       which included the prior conviction for failure to register in Cause No. FD-

       1157.

Id. In the first

phase of the trial, the trial court correctly limited the use

       of Cooper’s prior conviction for failure to register in Cause No. FD-1157 to

       show his knowledge of the registration requirement.

Id. at 9-10;

Appellant’s App.

       Vol. II at 104. Contrary to Cooper’s assertions, the evidence of Cooper’s prior

       conviction for failure to register in Cause No. FD-1157 was properly

       incorporated and presented to the jury as substantive evidence during the

       second phase of the trial, and the jury could rely on it as proof that he had been

       previously convicted of that offense. Thus, the State presented sufficient

       evidence that Cooper had a prior conviction for failure to register to sustain his

       conviction for failure to register as a sex or violent offender with a prior

       conviction as a Level 5 felony.


                                              III. Due Process
[20]   Cooper finally argues that his due process rights were violated because the jury

       observed him “shackled and in custody” on one occasion. Appellant’s Br. at 22.

       Cooper did not raise this issue until the sentencing hearing, and there is no

       indication that Cooper ever objected, moved for a mistrial, or otherwise sought

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 12 of 13
       any relief at the time he alleged the jury saw him in custody at some point

       during his jury trial. Tr. Vol. III at 109. Thus, Cooper has waived this issue for

       our review. See Shorter v. State, 

144 N.E.3d 829

, 841 (Ind. Ct. App. 2020)

       (quoting Washington v. State, 

808 N.E.2d 617

, 625 (Ind. 2004)) (concluding that

       failure to raise an argument in the trial court constituted waiver on appeal

       because “‘a trial court cannot be found to have erred as to an issue or argument

       that it never had an opportunity to consider’”). Indeed, Cooper even

       acknowledges as much in his appellant’s brief. See Appellant’s Br. at 22

       (“Timothy Cooper politely insists that counsel raise this issue in his direct

       appeal. Although Cooper may be a little fuzzy on preservation of error and

       issue waiver – he may just have a point.”)

[21]   Waiver notwithstanding, we note that the fact that a defendant has been seen by

       jurors while being transported in handcuffs is not a basis for reversal, absent a

       showing of actual harm. Jenkins v. State, 

492 N.E.2d 666

, 669 (Ind. 1986).

       Moreover, our Supreme Court has also held that “reasonable jurors could

       expect [defendants] to be in police custody while in the hallway of the

       courthouse.” Davis v. State, 

770 N.E.2d 319

, 326 (Ind. 2002). Thus, we cannot

       say that Cooper has demonstrated that he was harmed by the jury seeing him in

       custody.

[22]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-855 | October 19, 2020   Page 13 of 13
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