Court of Appeals of Indiana | Memorandum Decision 49A04-1406-CR-284 | February 20, 2015 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Patricia Caress McMath

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Imari Butler,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

February 20, 2015

Court of Appeals Cause No.

49A04-1406-CR-284

Appeal from the Marion Superior 

Court.

The Honorable Kurt M. Eisgruber, 

Judge.

Cause No. 49G01-0904-PC-37693

Sullivan, Senior Judge

[1] Imari Butler appeals his adjudication as an habitual offender. We affirm.
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[2] In 2009, Butler was charged with rape, a Class B felony;1criminal deviate 

conduct, a Class B felony;2robbery, a Class B felony;3two counts of criminal 

confinement, both Class C felonies;4sexual battery, a Class D felony;5 and theft, 

a Class D felony.6 In addition, Butler was charged with being an habitual 

offender under Indiana Code section 35-50-2-8 (2005).7 Following a jury trial, 

he was found guilty of rape, criminal deviate conduct, criminal confinement 

and sexual battery. Butler then pleaded guilty to being an habitual offender. In 

the aggregate, Butler was sentenced to sixty years, including a thirty-year 

enhancement for his habitual offender adjudication. Butler’s convictions were 

affirmed on appeal. See Butler v. State, 951 N.E.2d 641 (Ind. Ct. App. 2011).

[3] In July 2012, Butler filed a petition for post-conviction relief, which he later 

amended in October 2013. Following a hearing on Butler’s petition in 

December 2013, the post-conviction court found that the trial court had failed 

to advise Butler of his right to a jury trial on the habitual offender phase and 

 

1

Ind. Code § 35-42-4-1 (1998).

2

Ind. Code § 35-42-4-2 (1998).

3

Ind. Code § 35-42-5-1 (1984).

4

Ind. Code § 35-42-3-3 (2006).

5

Ind. Code § 35-42-4-8 (1998).

6

Ind. Code § 35-43-4-2 (1985).

7

Indiana Code section 35-50-2-8 was amended, effective July 1, 2014, to reflect the changes made to the 

designation of felonies in the criminal code. Because Butler was charged with the present offenses in 2009, 

the prior version of the statute is applicable here.
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ordered his habitual offender adjudication and corresponding sentence 

enhancement set aside.

[4] On May 5, 2014, a jury trial was held solely on Butler’s charge of being an 

habitual offender. The jury returned a verdict of guilty. As a result of his 

habitual offender adjudication, Butler was re-sentenced to a thirty-year 

enhancement to his sentence for his conviction of rape for an aggregate 

sentence of sixty years.8 Butler now appeals his adjudication as an habitual 

offender.

[5] Butler raises two issues, which we restate as: 

I. Whether the trial court abused its discretion by refusing to give his 

tendered jury instruction.

II. Whether the trial court abused its discretion by admitting certain 

evidence.

I. Jury Instruction

[6] Butler contends that the trial court abused its discretion by refusing his tendered 

jury instruction. During his re-trial on the habitual offender charge, Butler 

tendered to the trial court Defendant’s Proposed Instruction No. 1, which read: 

“Even if you find the State has proven the facts of the two prerequisite felony 

convictions to be true beyond a reasonable doubt, you still have the 

 

8 Butler’s fifteen-year sentence for criminal deviate conduct was consecutive to his fifteen-year sentence for 

rape.
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unquestioned legal right to find the accused is not a habitual offender.” 

Appellant’s App. p. 157. The trial court refused this instruction.

[7] Instructing the jury lies solely within the discretion of the trial court, and we 

will reverse only upon an abuse of that discretion. Elliott v. State, 786 N.E.2d 

799, 801 (Ind. Ct. App. 2003). When determining whether a trial court 

erroneously refused to give a tendered instruction, we consider the following: 

(1) whether the tendered instruction correctly states the law; (2) whether there 

was evidence presented at trial to support the giving of the instruction (this part 

of the test is not at issue in this case); and (3) whether the substance of the 

tendered instruction was covered by other instructions that were given. Mayes v. 

State, 744 N.E.2d 390, 394 (Ind. 2001).

[8] We turn now to the question of whether Butler’s tendered instruction is a 

correct statement of the law. The substance of his tendered instruction is 

indeed found in Seay v. State, 698 N.E.2d 732 (Ind. 1998). There, our Supreme 

Court adopted the tenet that even where the jury finds the facts of the 

prerequisite prior felony convictions to be uncontroverted, the jury nevertheless 

has the unquestioned right to refuse to find the defendant to be an habitual 

offender. Id. at 734.

[9] With regard to the third part of the analysis, we look to the instructions given 

by the trial court. Here, the trial court instructed the jury with Instruction 

Number 2, which read: “Under the Constitution of Indiana you have the right 

to determine both the law and the facts. The court’s instructions are your best 
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source in determining the law.” Appellant’s App. p. 160. The trial court also 

gave the jury Instruction Number 7, as follows in pertinent part: “The State 

may seek to have a person sentenced as a habitual offender for any felony by 

proving that the person has accumulated two (2) prior unrelated felony 

convictions. You may find the defendant to be a habitual offender only if the 

State has proven each of the following facts beyond a reasonable doubt . . . If 

the State fails to prove each of these facts beyond a reasonable doubt, you must 

find the defendant is not a habitual offender.” Id. at 165. We note that in 

Instruction Number 7, the trial court reinforced the jury’s discretion by 

instructing the jury that it “may” — not must —find the defendant to be a 

habitual offender “only if” the State proved two prior unrelated felony 

convictions. In addition, the trial court prohibited the jury from finding Butler 

to be a habitual offender, by instructing that it “must” find the defendant is not a 

habitual offender, if the State failed to prove the facts beyond a reasonable 

doubt. The trial court was “certainly not obligated to issue an invitation to the 

jury to disregard prior convictions in addition to informing the jury of its ability 

to determine the law and the facts.” See Walden v. State, 895 N.E.2d 1182, 1186 

(Ind. 2008). The substance of the information contained in the trial court’s

instructions and Butler’s proposed instruction is the same. See id. at 1185-87 

(holding that, in habitual offender phase of trial, trial court’s instructions to the 

jury that it had right to determine law and facts of case and that it may, not 

must, find defendant to be habitual offender if two prior unrelated felony 

convictions are proved sufficiently covered substance of defendant’s tendered 
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instruction that the jury could refuse to find that defendant was habitual 

offender even if evidence of prior felony convictions was uncontroverted). 

[10] While we recognize that Butler’s argument is a request for us to adopt the 

reasoning of the dissent in Walden, we must decline his invitation. We are 

obliged to follow precedent established by the Indiana Supreme Court. Patton v. 

State, 507 N.E.2d 624, 626 (Ind. Ct. App. 1987), trans. denied. More 

particularly, a view expressed in a dissenting opinion in a Supreme Court case 

is not a precedent binding on this Court. New York Life Ins. Co. v. Bruner, 129 

Ind. App. 271, 275, 153 N.E.2d 616, 618 (1958). We find no abuse of 

discretion by the trial court in refusing Butler’s Defendant’s Proposed 

Instruction No. 1.

II. Admission of Evidence

[11] Next, Butler asserts that the trial court abused its discretion by admitting State’s 

Exhibits 104, 105, and 106 to prove his two prior unrelated felony convictions. 

The admissibility of evidence is within the sound discretion of the trial court, 

and we will not disturb the decision of the trial court absent a showing of abuse 

of that discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). 

An abuse of discretion occurs when the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before the court. Id. Only 

when the error affects the substantial rights of the moving party does a claim of 

error in the exclusion or admission of evidence prevail on appeal. Nicholson v. 

State, 963 N.E.2d 1096, 1099 (Ind. 2012).
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[12] To establish that Butler was an habitual offender, the State had to prove beyond 

a reasonable doubt that he had been convicted of two prior unrelated felonies. 

See Ind. Code § 35-50-2-8. In order to prove two prior unrelated felony 

convictions, the State must prove that “the second prior unrelated felony 

conviction was committed after sentencing for the first prior unrelated felony 

conviction” and “the offense for which the state seeks to have the person 

sentenced as a habitual offender was committed after sentencing for the second 

prior unrelated felony conviction.” Ind. Code § 35-50-2-8(c).

[13] At trial, the State introduced Exhibits 104, 105, and 106 to prove Butler’s two 

prior unrelated felony convictions. Butler objected to these exhibits, and the 

trial court admitted them over his objection. Butler’s objection to Exhibit 104, 

the officer’s arrest report, and Exhibit 105, the charging information, was that

the documents were prejudicial because they contained charges that did not 

result in convictions. Butler’s objection to Exhibit 106, the abstract of 

judgment, was that the document contained an additional misdemeanor 

conviction.

[14] If, during a trial on an habitual offender charge, the State introduces evidence 

that the defendant has been convicted of more than two prior unrelated felonies

and non-felonies, the introduction of such additional felonies and non-felonies

is mere surplusage and therefore harmless. Kyles v. State, 888 N.E.2d 809, 814 

(Ind. Ct. App. 2008) (citing Wilson v. State, 511 N.E.2d 1014, 1017 (Ind. 1987) 

and Golden v. State, 485 N.E.2d 51, 56 (Ind. 1985)). Thus, the trial court did not 

abuse its discretion in admitting Exhibit 106 containing an additional 
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misdemeanor conviction. However, with regard to Exhibits 104 and 105, 

Butler argues that additional charges not reduced to convictions are prejudicial 

in that the jury would be “much more likely to find him to be a habitual 

offender if it knew he had been charged with committing other offenses.” 

Appellant’s Br. p. 8. In light of the holding in Kyles, we fail to see how the 

inclusion of extraneous charges not resulting in convictions would prejudice the 

jury’s otherwise appropriate decision.

[15] Further, we note that the trial court gave the jury limiting instructions. “[Y]our 

decision is to be based on what the convictions are as opposed to the charges, so 

your consideration is the convictions. This paperwork will contain other 

charges that were alleged, but that doesn’t matter. It matters what he was 

convicted of only. You’re not to consider that extraneous --- those extraneous 

charges for any purpose. It only matters what he was convicted of.” Tr. pp. 48-

49. Upon admitting Exhibit 105, the trial court admonished the jury as follows: 

“So State’s Exhibit 105 includes numerous charges, some of which there was no 

conviction. You are not to give that any consideration, and that’s the 

instruction I gave you earlier, and that is true for any of the charging 

informations. You only take into consideration what he was convicted of.” Id.

p. 68. Additionally, upon admitting Exhibit 106 over Butler’s objection, the 

court admonished the jury: “The same instruction applies to the jury. Take 

into account only felony convictions.” Id. at 69. 

[16] When a limiting instruction is given that certain evidence may be considered 

only for a particular purpose, the law presumes that the jury will follow the trial 
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court’s admonition. Ware v. State, 816 N.E.2d 1167, 1176 (Ind. Ct. App. 2004). 

Moreover, this Court presumes that a timely and accurate admonition cures 

any error in the admission of evidence. Whiteside v. State, 853 N.E.2d 1021, 

1030 (Ind. Ct. App. 2006). Thus, any prejudice resulting from the superfluous 

information contained in the documents was mitigated by the court’s 

immediate and repetitive admonishments.

[17] For the reasons stated, we conclude that the trial court did not abuse its 

discretion by refusing Butler’s proposed instruction or in admitting into 

evidence Exhibits 104, 105, and 106.

[18] Affirmed.

[19] Baker, J., and Riley, J., concur.