Divided COA finds evidence of prior bad acts harmless

A majority of the Indiana Court of Appeals has upheld a Howard County man’s drug convictions and sentence, finding any error in the admission of evidence of prior bad acts was harmless. The dissent, however, provided a lengthy history of state and federal caselaw to highlight why she believed the error was prejudicial.

In Dion Cannon v. State of Indiana, 34A05-1707-CR-1544, Dion Cannon borrowed $1,800 from Alexandra Linville, his girlfriend, and told her he intended to use the money to buy drugs. Later the same day, Kokomo Police Department officers arrived at the home Cannon and Linville shared to serve an outstanding warrant on Cannon.

While waiting for Cannon to open the door, Sergeant Gary Taylor — who could see into the home through a window — saw Cannon hiding something on a shelf. The officers then smelled marijuana when Cannon opened the door, and Cannon admitted to hiding marijuana on the shelf.

The officers then obtained a search warrant for the home and found the marijuana, multiple firearms, heroin and a digital scale. Thus, Cannon was charged on six drug and firearm-related counts.

Linville testified over objection at the ensuing trial that she assisted Cannon’s drug habit by driving him places to deal drugs, but that she had never seen the heroin found in the home. A jury then convicted Cannon of Level 3 felony possession of a narcotic, Class A misdemeanor possession of marijuana and Level 6 felony maintaining a common nuisance. The trial court sentenced him to an aggregate 15 years.

Writing for the majority of the appellate court, Judge Cale Bradford concluded the admission of Linville’s testimony constituted harmless error.

“Cannon does not dispute that he had a possessory interest in the house he shared with Linville, a fact sufficient to show his capability to maintain dominion and control over the heroin,” Bradford wrote. “Additional circumstances also point to Cannon’s knowledge of the presence and nature of — and his intent to maintain dominion and control of — the heroin. First and foremost is Linville’s incriminating testimony.”

The majority joined by Judge Terry Crone also upheld Cannon’s sentence in light of the amount of drugs found in the house, the fact that a baby lived in the home and his extensive criminal history.

Though Judge Margret Robb did not dissent from the majority’s conclusion regarding Cannon’s sentence, she did dissent on the admissibility of Linville’s testimony. Writing separately in a 31-page dissent that was more than twice the length of the majority opinion, Robb said that if Cannon’s defense had been that he did not know about the drugs — as the state maintained — such a defense would be “insufficient to affirmatively offer contrary intent,” thus defeating the intent exception to Evidence Rule 404(b).

Turning next to the rule’s knowledge exception, Robb said a defendant must affirmatively claim a lack of knowledge — which she said Cannon did not do — before Rule 404(b) evidence can be admitted. Though Cannon’s questions during voir dire explored the issue of lack of knowledge, voir dire is not part of trial and, thus, cannot be used to employ the knowledge exception, she said.

“Here, Linville’s testimony painted a picture of Cannon as a longtime drug dealer, unworthy and undeserving of the jury’s consideration,” Robb wrote. “… Given the admission of highly prejudicial evidence, it was very likely that the jury used the evidence precisely for the purpose for which it may not be considered: ‘Cannon is a bad guy and if he did it before he probably did it again.’”

“In conclusion, I believe this case presents the very reason Rule 404(b) exists: the ‘forbidden inference’ is all but obvious from the record,” Robb continued. “… Considering the highly prejudicial nature of the evidence, its pervasive presence at trial, and the error’s effect on Cannon’s trial strategy, I cannot conclude the error was harmless and I would reverse Cannon’s conviction.”