After a jury trial, Terrance Trabain Miller was convicted of one count of Level 2 felony dealing in methamphetamine, one count of Level 2 felony dealing in heroin, a narcotic drug, and one count of Class A misdemeanor resisting law enforcement. The State moved to dismiss one count of unlawful possession of a firearm by a serious violent felon (SVF) after the jury’s verdict, and the court granted the motion. After pleading guilty to an habitual offender enhancement, Miller received an aggregate sentence of forty-nine years executed in the DOC. Finding that fundamental error occurred during trial, we reverse and remand.
Miller now appeals, raising several issues, but the following is dispositive: Absent an objection, which results in waiver of the issue, did fundamental error occur when the trial court gave a preliminary jury instruction on Miller’s SVF charge to which Miller’s counsel agreed?
While acknowledging that no objection was made at trial, Miller first argues that fundamental error occurred when the court’s preliminary instruction on the SVF charge was given. More specifically, Miller argues that the instruction informed the jury of two things: (1) that Miller had a prior felony conviction (for robbery) that was not relevant to the other charges, and (2) that possession of the handgun was already established, as possession of the handgun was used to elevate two other charges against Miller, namely dealing and possession of a narcotic drug. In reply, the State argues that a fundamental error analysis is inappropriate because this issue should be decided under an invited error analysis. The State asserts that Miller’s counsel, who noted for the record that he was agreeing for strategic reasons not to bifurcate the trial on the SVF charge, also agreed to the language of Preliminary Instruction No. 18. The State contends that any error was invited. In rebuttal, Miller acknowledges that “invited error precludes relief from counsel’s strategic decisions gone awry.” Reply Br. p. 6 (quoting Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014)). Miller contends, however, that no such viable strategic decision existed.
The error of which Miller complains appears at first glance to be invited error. The “doctrine of invited error is grounded in estoppel, and forbids a party to take advantage of an error that [he] commits, invites, or which is the natural consequence of [his] own neglect or misconduct.” Brewington, 7 N.E.3d at 975 (internal quotations omitted). Miller’s counsel stated for the record that he agreed for strategic reasons not to bifurcate the SVF portion of the trial, and also agreed to the language of Preliminary Instruction No. 18.
It appears that Miller’s counsel invited the error and that the matter ends here. That said, we must decide whether invited error preempts fundamental error. We conclude that it does not.
Where fundamental error is not argued in terms of ineffective assistance of trial counsel, “fundamental error requires a showing of at least as much prejudice to the defendant as a claim of ineffective assistance of counsel.” See id. at 974. “To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007).
Here, Miller argues that there could be no viable strategic reason for his counsel to agree to the modified instruction in lieu of bifurcation of the SVF charge. Indeed, our Supreme Court has on many occasions wrestled with the issue of admissibility of prior convictions and their tendency “to prejudice or mislead or excite the minds and inflame the passions of the jury.” See Lawrence v. State, 286 N.E.2d 830, 832 (Ind. 1972). To that end, “evidence of prior crimes is generally inadmissible in a criminal case, because it has no tendency to establish the guilt or innocence of the accused.” Id. at 833; see also Ind. Evidence Rule 404. The Court has further observed, however, that prior-crimes evidence is admissible when relevant to some issue in the case, noting that “the undesirable tendency to prejudice remains, but the overriding interests of the State in arriving at the truth prevails.” Lawrence, 286 N.E.2d at 833. This comports with the language of Indiana Evidence Rule 404(b) and the rule’s permitted uses at trial of other crimes, wrongs, or acts.
This brings us to the question before us, specifically, the instance of SVF charges tried along with the principal charges in a case. This Court has considered bifurcation of SVF charges, in a variety of factual settings. In Spearman v. State, 744 N.E.2d 545, 548 (Ind. Ct. App. 2001), trans. denied, we held that bifurcation was impractical, and the trial court did not abuse its discretion, in denying the motion to bifurcate where the defendant faced only the charge alleging he was an SVF. Next, in Hines v. State, 794 N.E.2d 469, 473 (Ind. Ct. App. 2003), trans. denied, we held that the trial court abused its discretion and reversal was required where the court denied a request that the principal charge of robbery be bifurcated from the unlawful possession of a firearm by an SVF charge. In Hines, there was only minimal evidence that the defendant may have flashed a gun during the commission of the robbery, and the defendant had offered to stipulate to his SVF status if the jury convicted him of the robbery charge. The Hines Court explicitly reversed because the prior crime evidence was not probative of the primary charge, but also implicitly because it was not relevant.
This line of cases shows the slippery slope which has developed over the years under the SVF charge relevancy analysis. We can think of no reason why a jury should be made aware of the fact of a defendant’s prior conviction to support an SVF charge during the phase where the other primary charges are being tried. Evidence Rule 404(b) provides the mechanism for the introduction of that evidence in allowable situations. Prior convictions may also be used to impeach the defendant if he chooses to testify. See Evidence Rule 609 (impeachment by evidence of a criminal conviction).
We believe that a bright line must be drawn here. Instruction No. 18 should not have been agreed to let alone used. The prejudicial nature of the prior-crimes evidence in the primary charge phase of the trial erodes if not eviscerates the defendant’s right to the presumption of innocence. This is so no matter the level of sophistication of the juror tasked with divorcing himself from applying that knowledge to the primary charge. We believe that bifurcation of SVF charges serves the purpose of protecting a defendant’s right to the presumption of innocence and ensures a fair trial. Miller did not receive a fair trial because of this fundamental error.
Here, Miller’s counsel should have moved for bifurcation of the SVF charge rather than agree to an instruction referring to the prior conviction. Although the State dismissed the SVF charge after the jury had rendered its verdicts, reasoning that “we [have not proved] the armed robbery that was alleged,” Tr. Vol. III, p. 7, this does little to balance the rights that were deprived for the duration of the trial on the primary charges. The jury was made aware at the outset when receiving preliminary instructions that Miller had a prior conviction. The damage was already done.
We cannot say that Miller’s convictions were not tainted by the “forbidden inference that he had a criminal propensity and therefore engaged in the charged conduct.” See Thompson v. State, 690 N.E.2d 224 (Ind. 1997). “We have previously explained that the reason the forbidden inference is forbidden is not because the inference is unreasonable, but because it is reasonable and thus susceptible to misuse.” Cannon v. State, 99 N.E.3d 274, 290 (Ind. Ct. App. 2018) (Robb, J., dissenting) (citing Craun v. State, 762 N.E.2d 230, 240 (Ind. Ct. App. 2002) (Kirsch, J., dissenting), trans. denied). Because there is a risk that such misuse occurred, we must reverse Miller’s convictions, finding that fundamental error occurred.
For the reasons set forth above, we reverse.
Judgment reversed and remanded.
Najam, J., and Pyle, J., concur.
Miller v. State, No. 21A-CR-2315, __ N.E.3d __ (Ind. Ct. App., Nov. 1, 2021).