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: ATTORNEYS FOR APPELLEE:

GARY GRINER GREGORY F. ZOELLER

Mishawaka, Indiana Attorney General of Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL R. ANDERSON, JR., )

)

Appellant-Defendant, )

)

vs. ) No. 71A04-1204-CR-220

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT

The Honorable Jane Woodward Miller, Judge 

Cause No. 71D01-1104-FD-323 

December 21, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
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STATEMENT OF THE CASE

Michael R. Anderson Jr. (“Anderson”) appeals his convictions for operating a 

motor vehicle while never having received a driver’s license as a class C misdemeanor,

1

possession of marijuana as a class A misdemeanor,

2

and possession of marijuana as a 

class D felony.

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 We affirm.

ISSUES

1. Whether the trial court erroneously denied Anderson’s request to call a late 

witness.

2. Whether the trial court erroneously instructed the jury.

FACTS

On April 2, 2011, Officer Eric Schlegelmilch (“Officer Schlegelmilch”) of the 

South Bend Police Department was patrolling in his marked police car along Lincolnway 

West. Around midnight, Officer Schlegelmilch saw a white Pontiac Grand Prix with 

“heavy, thick window tint”, which prevented him from seeing how many occupants were 

inside. (Tr. 50). Officer Schlegelmilch activated his emergency lights, and the Pontiac 

pulled into the parking lot of a gas station. 

The driver, subsequently identified as Anderson, exited the Pontiac. At some 

point, Anderson dropped a “clear, plastic baggie with a green, leafy substance....” (Tr. 

 

1

Indiana Code § 9-24-18-1

2

I.C. § 35-48-4-11(1)

3

I.C. § 35-48-4-11(3)
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56). Believing that the bag contained marijuana, Officer Schlegelmilch approached

Anderson and placed him under arrest. After obtaining identifying information from 

Anderson, Officer Schlegelmilch searched the Bureau of Motor Vehicles database for the 

status of Anderson’s driver’s license. The search revealed that Anderson had never 

received a driver’s license.

During Anderson’s arrest, Officer Anthony Dawson (“Officer Dawson”) arrived 

and searched the Pontiac. Between “the [driver’s] seat and the center console [Officer 

Dawson] found another clear, cellophane bag with suspected marijuana inside.” (Tr. 83). 

Officer Kyle Dombrowski (“Kyle Dombrowski”) took several photographs at the scene 

and collected the bags of marijuana. Afterwards, Officer Jonathan Gray (“Officer Gray”) 

used a “Narco Pouch” field test kit to determine that the substance in the bags was 

marijuana. (Tr. 105). In addition, Officer Gray transported Anderson to the St. Joseph 

County Jail. Upon arriving at the jail, Anderson was searched as a part of the book-in 

process. During the search, a jail deputy discovered another “small baggie of a green, 

leafy substance” in Anderson’s “left coat pocket.” (Tr. 109). The contents of the bag 

tested positive for marijuana.

On April 29, 2011, the State charged Anderson with Count I, operating a vehicle 

while never receiving a driver’s license, a class C misdemeanor; Count II, possession of 

marijuana, a class A misdemeanor; and Count III, possession of marijuana, a class D 

felony. Anderson subsequently filed a motion seeking to suppress the evidence collected 

by law enforcement.
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Anderson’s bifurcated jury trial was held on December 15 and 16, 2011. Prior to 

the presentation of evidence, the trial court heard evidence on Anderson’s motion to 

suppress. The motion was denied. During the State’s presentation of evidence, Officers 

Schlegelmilch, Dawson, Dombrowski, and Gray testified. After the officers testified, the 

State concluded its presentation. The jury was then excused and the trial court met with 

the attorneys to talk about what final instructions would be given to the jury. After the 

parties came to an agreement as to the final instructions, Anderson informed the trial 

court that he had decided not to testify. As the trial court was about to have the jury 

returned to the courtroom, Anderson’s counsel informed the trial court that he had been 

approached by Anderson’s girlfriend, Ashley Star (“Star”) with relevant evidence. 

Anderson’s counsel stated that Star would testify about the Pontiac, and that she was in 

possession of several photographs, taken in daylight, that showed the level of tint on its 

windows. The State objected, arguing (1) that it had no notice of Star’s anticipated 

testimony; and (2) that this “new” evidence was the result of collusion between Star and 

Anderson, as she had been in the courtroom during the suppression hearing and portions 

of the trial. Taking into account the State’s arguments, the trial court denied Anderson’s 

request to have Star testify because (1) the pictures were irrelevant as to the issue of 

possession of marijuana; (2) the request was untimely; and (3) the jury had already been 

informed that the trial was concluding on that day. When the jury returned to the 

courtroom, Anderson’s counsel indicated that no further evidence would be presented.
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The jury subsequently found Anderson guilty of Counts I and II. Afterwards, the 

jury was excused and the parties agreed to allow the trial court to hear evidence on Count 

III, possession of marijuana as a class D felony. The parties stipulated to the accuracy of 

the certified documents showing that Anderson had previously been convicted of 

possession of marijuana. As a result, the trial court found Anderson guilty of Count III.

On April 20, 2012, the trial court sentenced Anderson to concurrent terms of sixty 

(60) days on Count I and eighteen (18) months on Count III, all to be served at the 

Department of Correction. Anderson now appeals. 

DECISION

I. Exclusion of Witness:

Trial courts are given considerable discretion in decisions regarding the orderly 

procedure of a trial, and we review those decisions for an abuse of discretion. Vasquez v. 

State, 868 N.E.2d 473 (Ind. 2007). However, trial courts must be mindful that the Sixth 

Amendment of the Federal Constitution grants a criminal defendant the right to call 

witnesses to testify on his or her behalf. “Few rights are more fundamental than that of 

an accused to present witnesses in his own defense, . . . .” Taylor v. Williams, 484 U.S. 

400, 408 (1988). As a result, depending on the circumstances, excluding a witness may 

be appropriate or it may be unconstitutional. “Indiana jurisprudence recognizes a strong 

presumption to allow defense testimony, even of late-disclosed witnesses: ‘The most 

extreme sanction of witness exclusion should not be employed unless the defendant’s 
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breach has been purposeful or intentional or unless substantial and irreparable prejudice 

would result to the State’” Vasquez, 868 N.E.2d at 476 (quoting Wisehart v. State, 491 

N.E.2d 985, 991 (Ind. 1986)). When the trial court has made a decision to exclude a 

witness because of a procedural violation or as a sanction, “we will reverse only if there 

is clear error and resulting prejudice.” Id. 

Here, we find that the trial court did not erroneously exclude Star’s testimony. 

Anderson’s counsel was first made aware that Star wanted to testify after evidence was 

closed and final jury instructions had been assembled. If normal discovery procedures 

had been followed, each party would have disclosed witnesses in a timely fashion. This

would have given each side the opportunity to seek a separation of witnesses order.

4

 

However, because no one was aware of Star’s status as a witness, she was able to remain 

in the courtroom during the trial and suppression hearing. As a result, it is highly likely 

that Star’s testimony would have been improperly designed to counter the testimony of 

the State’s witnesses. This explanation is made more likely since Anderson’s counsel did 

not even know about the photographs until evidence had closed. For this reason alone, 

we find that the sudden appearance of Anderson’s girlfriend as a witness was likely 

designed to purposefully or intentionally avoid the trial discovery process. Vasquez, 868 

N.E.2d 473. Therefore, the trial court did not err.

 

4

Indiana Rule of Evidence 615 allows either party to seek an order excluding witnesses who will testify from the 

courtroom. The purpose of an order separating witnesses is to prevent later witnesses from hearing the questioning 

and testimony of earlier witnesses; allowing witnesses to remain in the courtroom might enable a witness to tailor

his or her testimony to correspond more closely to the testimony of witnesses on one side or the other. Williams v. 

State, 924 N.E.2d 121 (Ind. Ct. App. 2009); Smiley v. State, 649 N.E.2d 697 (Ind. Ct. App. 1995); Bell v. State, 495 

N.E.2d 526 (Ind. 1986). 
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II. Jury Instructions:

The purpose of jury instructions is to inform the jury of the law 

applicable to the facts without misleading the jury and to enable it to 

comprehend the case clearly and arrive at a just, fair, and correct verdict. In 

reviewing a trial court’s decision to give a tendered jury instruction, we 

consider (1) whether the instruction correctly states the law, (2) is 

supported by the evidence in the record, and (3) is not covered in substance 

by other instructions. The trial court has discretion in instructing the jury, 

and we will reverse only when the instructions amount to an abuse of 

discretion. To constitute an abuse of discretion, the instructions given must 

be erroneous, and the instructions taken as a whole must misstate the law or 

otherwise mislead the jury. We will consider jury instructions as a whole 

and in reference to each other, not in isolation.

O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012) (quoting Munford v. State, 

923 N.E.2d 11, 14 (Ind. Ct. App. 2010)). In addition, “[e]rrors in the giving or refusing 

of instructions are harmless where a conviction is clearly sustained by the evidence, and 

the instruction would not likely have impacted the jury’s verdict.” Atwood v. State, 905 

N.E.2d 479, 486 (Ind. Ct. App. 2009), trans. denied.

Anderson argues that the trial court “provided confusing and inconsistent 

instructions to the jury.” Appellants’s Br. at 6. Specifically, Anderson argues that certain 

instructions informed the jury that the State must prove each element beyond a 

reasonable doubt. Additionally, he argues that another instruction, regarding an 

affirmative defense, stated that Anderson had the burden of proving this defense by a 

preponderance of the evidence. Further, Anderson asserts that the trial court did not 

provide a definition of the phrase “preponderance of the evidence.” As a result, 

Anderson claims that the instructions were in conflict, leading to an unreliable verdict.
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It is well settled that the burden of proving 

all elements of a criminal offense beyond a reasonable doubt rests with the 

State. This ultimate burden of persuasion never shifts to the defendant, and 

the raising of an affirmative defense does not relieve the State of its 

ultimate burden of proof. However, while the State is ultimately 

responsible for proving every element beyond a reasonable doubt, the State 

does not bear the burden of negating all affirmative defenses that justify or 

excuse conduct which would otherwise be criminal. Thus “there is a 

difference between affirmative defenses that establish separate and distinct 

facts in mitigation of culpability and affirmative defenses that negate an 

element of the crime.” That difference is that it is only unconstitutional to 

place the burden of persuasion for an affirmative defense on the defendant 

when proving the defense becomes tantamount to requiring the defendant to 

negate an element of the crime. 

Geljack v. State, 671 N.E.2d 163, 164-165 (Ind. Ct. App. 1996) (citations omitted).

With respect to Count I (driving while never receiving a license), the trial court 

instructed the jury that the State was required to prove the following elements beyond a 

reasonable doubt: (1) Anderson; (2) operated; (3) a motor vehicle; (4) upon a highway; 

and (5) while never having received a driving license. (App. 24); See also Ind. Code § 9-

24-18-1. However, the trial court also instructed the jury that, “The burden is on the 

defendant to prove by a preponderance of the evidence that he had been issued a driver’s 

license or permit that was valid at the time of the alleged offense.” (App. 29). This 

instruction informs the jury that Anderson had the burden of proving an element of the 

charged crime, namely a valid license. As a result, it is erroneous. See Geljack, 671 

N.E.2d at 164-165. 

However, this does not end our inquiry. While the instruction was erroneous, it 

may be found to be harmless error if (1) the conviction is clearly sustained by the 
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evidence, and (2) the instruction did not likely have an impact on the verdict. Atwood, 

905 N.E.2d at 486. Here, the testimony of the South Bend police officers, combined with 

Anderson’s Bureau of Motor Vehicles report, clearly support his conviction. (State’s Ex. 

4a). Further, Anderson presented no evidence that would have allowed the jury to 

consider the erroneous instruction. As a result, the instruction is not likely to have had 

any impact on the verdict. Therefore, any error was harmless. 

Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.