SVF finding stands for man with California robbery conviction

A man who initially showed signs of wanting to be arrested has lost his argument on appeal that his out-of-state robbery conviction was substantially like the same crime in Indiana, thus qualifying him a serious violent felon.

After following some police officers in his Montgomery County apartment building who had responded to a false report of gunfire, Lisiate Tavake informed the officers that he had an active arrest warrant for a parole violation in a California robbery case. No warrant appeared for Tavake’s arrest in the officer’s police computer system, and Tavake then joked that he had never had such trouble trying to get arrested. He also told the officers there were two guns in his apartment that he wasn’t supposed to have due to the California conviction.

The officers told Tavake he would need to be handcuffed and his apartment would need to be searched, which he readily agreed to. The officers indeed located two handguns, so Tavake was charged with Level 4 felony unlawful possession of a firearm by a serious violent felon and Class A misdemeanor false informing.

Although the Montgomery Circuit Court granted Tavake’s motion for separation of witnesses, one of the responding officers sat at the prosecutor’s table during the ensuing trial. Tavake did not initially object to this during the state’s first two witnesses, but he did object when the officer was called to testify.

The trial court overruled the objection, as well as a later objection to the admission of his booking records from the Montgomery County Jail. Tavake was then convicted of the Level 4 felony charge and sentenced to eight years of incarceration.

On appeal, Tavake first argued the trial court erred by determining his California robbery conviction was substantially similar to the same crime in Indiana, therefore qualifying him as a serious violent felon.

But “(h)aving compared the elements of the crime of robbery in California with the elements of the crime of robbery in Indiana, we conclude that they have common core characteristics that are largely, even though not identically, alike in degree and extent,” Judge Paul Mathias wrote for the panel. “Both require the taking of property from the presence of another person accomplished by the use of force or fear.”

Additionally, the appellate court determined that the issue with the separation-of-witnesses order was not an abuse of the trial court’s discretion.

“Officer (Cade) Mills was included on the State’s witness list and sat at the prosecutor’s table as if a designated assisting witness. Yet Tavake did not object until Officer Mills was called to testify,” Mathias wrote. “As noted by the trial court, there appears to have been no subterfuge on the part of either Officer Mills or the prosecuting attorney. Instead, the prosecuting attorney admitted that he simply forgot to designate Officer Mills as his assisting witness.”

The appellate panel further determined Tavake had waived his arguments regarding the admission of booking information, finding no indication that the relatively late disclosure of the jail booking records was intentional or a surprise to Tavake, who had received the records when the prosecuting attorney did just a week before trial.

Lastly, the appellate court concluded that although irrelevant, the inclusion of information listed on an FBI card from Tavake’s correctional records in California did not result in any perceivable prejudice to him. The trial court’s judgment was therefore affirmed in Lisiate Tavake v. State of Indiana, 18A-CR-2561.