ATTORNEY FOR APPELLANT

Karen S. Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James Gilman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 28, 2016

Court of Appeals Case No.

49A02-1601-CR-95

Appeal from the Marion Superior 

Court.

The Honorable Stanley E. Kroh, 

Magistrate.

Cause No. 49G03-1505-F5-017073

Darden, Senior Judge

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Statement of the Case

[1] A jury found James Gilman guilty of leaving the scene of an accident resulting 

in death, a Level 5 felony.1

 He appeals the trial court’s decision to allow the 

State to reopen its case after closing argument. 

Issue

[2] Specifically, the sole issue Gilman presents is whether the trial court erred in 

allowing the State to reopen its case after closing argument to present evidence 

in rebuttal of Gilman’s prior knowledge of an existing warrant for his arrest as 

being unduly prejudicial and an abuse of discretion. 

Facts and Procedural History

[3] Gilman and Melissa were married, but were separated. Despite the separation, 

Gilman continued to visit Melissa where she resided. Robin Kemp was the 

mother of Gilman’s children. 

[4] On April 21, 2015, at around 10:15 p.m., Robin drove to the house where 

Melissa resided and Gilman was visiting. Melissa approached Robin’s 

Chevrolet Equinox. Robin, who remained in the car, was yelling and claimed 

that she was on her cell phone with the police. She was angry about a dispute 

that had arisen between her and Gilman about who owned a Chevrolet Impala 

1 Ind. Code § 9-26-1-1.1(a)(1)(A) (2015).

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that was registered in Robin’s name but was in Gilman’s possession. Melissa 

went back inside the house and spoke to Gilman.

[5] Shortly thereafter, Gilman left the house, entered the Impala, and attempted to 

drive away. Robin then drove her vehicle into the Impala, knocking it into the 

neighbor’s yard. After the collision, the two vehicles then “took off” down the 

street. Tr. p. 153. 

[6] Both Gilman and Robin were driving at unsafe, high speeds, and their cars 

bumped several times. While driving side by side, at approximately 87 miles 

per hour, the cars collided. The collision was so forceful that it lifted the 

Equinox’s tires off the pavement and caused it to run off the road, slide onto 

soft ground, and strike a tree. As a result of the impact, Robin sustained 

multiple blunt force traumatic injuries, including one to her head which killed 

her instantly. The accident occurred around 10:30 p.m. 

[7] The impact caused Gilman’s vehicle to spin out of control. His Impala came to 

rest approximately 129 feet from Robin’s. The Impala was facing the Equinox 

and had one functioning headlight, which made Robin’s vehicle visible to 

Gilman. Neighbors tried to assist Robin before emergency response arrived. 

However, Gilman exited the Impala and fled the scene of the accident without 

rendering assistance to Robin and before the police or emergency services 

arrived. Gilman did not report the accident to the police. He did not return to 

his home, or contact his wife, until three days later. Gilman learned, shortly 

after the accident, that Robin had died.

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[8] The police interviewed Gilman about the accident on May 15, 2015. During 

the interview, Gilman admitted that at the time of the accident he knew of an 

outstanding active warrant for his arrest in an unrelated case. On May 18, 

2015, Gilman was charged with Level 5 felony leaving the scene of an accident 

resulting in death.

[9] Pre-trial the State filed a notice of intent to offer Trial Rule 404(b) evidence 

depending on defendant’s defense.2

 At a hearing held on the matter, the State 

informed the trial court that it would introduce evidence of Gilman’s prior 

knowledge of the outstanding arrest warrant if Gilman argued at trial that he 

had a defense for leaving the scene of the accident. After the hearing, the trial 

court issued an order, finding that the arrest warrant evidence was relevant to 

Gilman’s motive and intent for leaving the scene of the accident, but that “the 

probative value of the . . . evidence is substantially outweighed by the danger of 

unfair prejudice . . . .” Appellant’s App. p. 38. Nevertheless, the court 

determined that “should Defendant place intent at issue by presenting a claim 

of particular contrary intent, the evidence then is admissible.” Id.

[10] At trial, the State presented its evidence, including autopsy evidence that at the 

time of the accident Robin tested positive for high levels of methamphetamine 

and amphetamine. The State rested. Gilman rested without presenting any 

evidence or testimony. However, in closing, defense counsel argued that 

2 Neither the notice of intent to offer evidence nor the brief in support were included in Appellant’s 

Appendix.

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Gilman fled the scene of the accident “out of necessity” because Robin was 

exhibiting aggressive behavior and he feared Robin would hurt him. Tr. p. 177. 

The State objected immediately and the trial court sustained the objection.

[11] Immediately following the conclusion of defense counsel’s closing argument, 

the State requested permission of the court to reopen its case and present 

additional evidence because the State believed counsel had made a necessity 

defense claim.3

 Gilman objected. The court granted the State’s request but it 

also allowed Gilman to supplement his argument if he chose to do so.

[12] The State reopened its case and Sergeant Doug Heustis, with the Indianapolis 

Metropolitan Police Department, testified that Gilman was aware of an active 

warrant for his arrest at the time of the accident.4

 Gilman did not crossexamine Heustis or reopen his case, but did supplement his closing argument. 

Gilman now appeals.

Discussion and Decision

[13] Gilman maintains that the trial court erred when it allowed the State to reopen 

its case to present evidence of his arrest warrant because the evidence was more 

3 The prerequisites in establishing a necessity defense are: (1) the act charged as criminal must have been 

done to prevent a significant evil; (2) there must have been no adequate alternative to the commission of the 

act; (3) the harm caused by the act must not be disproportionate to the harm avoided; (4) the accused must 

entertain a good-faith belief that his act was necessary to prevent greater harm; (5) such belief must be 

objectively reasonable under all the circumstances; and (6) the accused must not have substantially 

contributed to the creation of the emergency. Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct. App. 1994). 

Neither Gilman nor the State requested a necessity defense instruction.

4 No evidence was presented during trial on the nature of Gilman’s arrest warrant or the crime charged.

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prejudicial than probative. Gilman also argues it was the State that opened the 

door to his intent to leave the scene of the accident.

[14] Whether the trial court allows the State to reopen its case after the State has 

rested is a matter of judicial discretion, and for reversible error the defendant 

must establish that the trial judge clearly abused that discretion. Maxwell v. 

State, 408 N.E.2d 158, 163 (Ind. Ct. App. 1980). Among the factors which 

weigh in the exercise of discretion are whether there is any prejudice to the 

opposing party, whether the party seeking to reopen appears to have rested 

inadvertently or purposely, the stage of the proceedings at which the request is 

made, and whether any real confusion or inconvenience would result from 

granting the request. Ford v. State, 523 N.E.2d 742, 745-46 (Ind. 1988). Two 

conditions must be shown to exist to justify a court of appellate jurisdiction in 

setting aside a ruling made by a trial court in the exercise of judicial discretion: 

1) the action complained of must have been unreasonable in light of all 

attendant circumstances or it must have been clearly untenable or unreasonable; 

and 2) the action was prejudicial to the rights of the complaining party. Id. at 

746. 

[15] During closing argument, over the State’s objection, Gilman’s counsel argued 

that Gilman had six seconds to decide what to do at the scene of the accident, 

stating: “And what was that decision? Do I stick around and risk getting killed 

or do I run? Split-second decision, life at issue[.]” Tr. p. 173. Counsel later 

stated: “State argues that he knew that [Robin] hit the tree because they were 

right by each other. But let’s look at the conditions. It’s dark. He’s scared.” 

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Id. at 176. Counsel closed by stating: “. . . I would ask you today to find that 

there was a reason he ran. He ran out of necessity. Had he known that she had 

crashed, it might have been a different story. . . And so he ran because he 

thought his life was in danger.” Id. at 177-78.

[16] The State made its request to reopen its case immediately after defense counsel 

concluded his closing argument. The court granted the request, stating:

At this point, the Court believes the relevance of the reasons Mr. 

Gilman left [the scene of the accident], the existence that he was 

aware of a warrant, that relevance becomes much more greater, 

and, in the Court’s view, outweighs the possibility of unfair 

prejudice.

So the Court is going to allow the State to reopen its case. 

However, the Court is also going to give the defense a chance to 

argue again after you – I think what we will do is – I guess the 

fair way to do it would be after you close your case to allow the 

defense to respond by giving their closing argument. It’s more 

time on closing. And then give you your chance to rebut. 

Id. at 192. The court then allowed Sergeant Heustis to testify regarding 

Gilman’s prior knowledge of the arrest warrant before the incident, and gave 

Gilman the opportunity to cross-examine Heustis and present additional closing 

argument. Based upon the trial court’s pre-trial ruling on the outstanding arrest 

warrant evidence, the evidence presented during trial, the events that transpired 

during trial, and the trial court’s careful consideration in attempting to balance 

and address the equities in this matter, we decline to find an abuse of discretion.

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[17] Gilman was forewarned in advance by the court, pre-trial, that opening the

door to Gilman’s motive for leaving the scene of the accident could result in the 

admission of the arrest warrant evidence. Gilman did not heed the court’s 

warning. Subsequently, counsel argued at closing that Gilman fled the scene of 

the accident because he feared Robin would hurt him. Even though the State 

objected to counsel’s closing argument and the trial court sustained the 

objections, counsel continued to press the “fear of injury” motive for leaving the 

scene of the accident. As a result, the State requested permission to reopen its 

case immediately after defense counsel concluded his closing argument. Based 

on defense counsel’s closing argument, the trial court exercised is discretion and 

determined that the probative value of the arrest warrant evidence outweighed 

any unfair prejudice, and allowed the State to reopen its case and call Sergeant 

Heustis to the witness stand to testify. Likewise, the trial court granted Gilman 

permission to reopen and/or supplement his argument. 

[18] Heustis was not a surprise witness. He had testified in the State’s case-in-chief. 

Heustis’s interview with Gilman regarding Gilman’s knowledge of the arrest 

warrant was recorded, and defense counsel had a copy of the recording, pretrial. Before Heustis testified before the jury about the arrest warrant evidence, 

Gilman was again provided a preview of Heustis’s testimony. Outside of the 

jury’s presence, the trial court asked the State to proffer Heustis’s testimony to 

the court and defense counsel only. No evidence was presented to the jury 

regarding the specific details of Gilman’s arrest warrant or the crime charged.

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[19] Gilman was given the opportunity to cross-examine Sergeant Heustis, but 

declined. See Gorman v. State, 463 N.E.2d 254, 257 (Ind. 1984) (no prejudice 

found in reopening case where witness was known to defense and defense given 

opportunity to cross-examine witness and call additional witnesses in his 

behalf). The State then re-rested, and the trial court allowed defense counsel 

the opportunity to supplement his closing argument. 

[20] We conclude that under these circumstances, allowing the State to reopen its 

case was not unreasonable. Also, Gilman has failed to show how he was 

unduly prejudiced by the reopening. Defense counsel had been forewarned and 

was well aware of the consequences of arguing Gilman’s motive for fleeing the 

scene of the accident, and, upon reopening the case, the trial court gave Gilman 

an opportunity to cross-examine the sole witness (Heustis) on the matter and to 

supplement his closing argument. The trial court did not abuse its discretion on 

this issue. 

Conclusion

[21] For the reasons stated, we find that the trial court did not abuse its discretion in 

in allowing the State to reopen its case and present evidence of Gilman’s 

knowledge of his arrest warrant.

[22] Affirmed.

Robb, J., and Barnes, J., concur.

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