Gerald Lamont Stokes, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Gerald Stokes appeals his conviction for unlawful possession of a firearm by a serious violent felon (SVF) and his adjudication as a habitual offender. Stokes argues the trial court fundamentally erred when it tried the SVF count and the habitual offender enhancement in the same phase. He also alleges trial court error in the admission of a series of phone calls he made while incarcerated. We disagree and affirm.

Facts and Procedural History

[2] In December 2023, Stokes got into an argument with his brother, Johnnie, and Johnnie's wife, Tiyonna, at Johnnie and Tiyonna's home. During the argument, Tiyonna was shot in the chest. Tiyonna identified Stokes as the shooter.

[3] As a result, the State charged Stokes with aggravated battery, a Level 3 felony; SVF, a Level 4 felony; battery resulting in serious bodily injury, a Level 5 felony; and battery by means of a deadly weapon, a Level 5 felony. The State also filed two enhancements: one alleging Stokes was a habitual offender and another alleging Stokes used a firearm in the commission of an offense.

[4] Stokes was apprehended and, during a six-day period, he made eight phone calls from jail. During the calls, Stokes told the other caller to tell Johnnie, his sister, and other witnesses not to come to court.

[5] Before trial, Stokes insisted on representing himself pro se even though he admitted he had never represented himself at trial and demonstrated a lack of understanding of the rules when asked about basic procedure like the number of peremptory challenges he would have. Stokes acknowledged that proceeding pro se meant he waived any right to claim he had ineffective representation at this trial. Moreover, after Stokes began representing himself, the trial court expressed concern and offered at various times to reappoint the public defender, but Stokes declined.

[6] Prior to jury selection at trial, the court articulated the phases of the trial: the three battery counts would be tried in the first phase, while the SVF count and the two enhancements would be tried in the second phase. The trial court reiterated the phases twice more: once prior to the State's case-in-chief and again after the State rested. At no point did Stokes object to the manner of bifurcation.

[7] During phase one, the trial court admitted the phone calls over Stokes’ objections. The jury ultimately found Stokes not guilty of each battery count. Because of this, the State could not proceed with the firearm enhancement. Following phase two, the jury found Stokes guilty of the SVF count and found him to be a habitual offender. The trial court entered judgment of conviction and sentenced Stokes to ten years on the SVF count, enhanced by ten years for the habitual offender adjudication. Stokes now appeals.

Discussion and Decision

I. Bifurcation

[8] Stokes opted to represent himself pro se. Pro se litigants are held to the same standard as licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied. This means that they must follow the established rules of procedure and accept the consequences when they fail to do so. Id.

[9] Stokes first argues that the trial court erred when it tried the SVF count and the habitual offender enhancement in the same phase. Generally, the issue of whether a proceeding should be bifurcated is reviewed for an abuse of discretion. Dugan v. State, 860 N.E.2d 1288, 1290 (Ind. Ct. App. 2007), trans. denied. However, Stokes acknowledges he did not object to the manner of bifurcation at trial and must demonstrate fundamental error on appeal. See Appellant's Br. p. 19.

[10] “To qualify as fundamental error, ‘an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible[.]’ ” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007) (quoting Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)). Further, the error “must ‘constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.’ ” Id. But this doctrine is available only in egregious circumstances. Absher, 866 N.E.2d at 355. “The mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule.” Id.

[11] When the jury found Stokes not guilty of the three battery counts in phase one, all that remained at issue for phase two were the SVF count and the habitual offender enhancement. In phase two, the State offered proof of Stokes’ three prior felony convictions: one to support the SVF conviction and two others to support the habitual offender adjudication. Stokes did not object to the admission of the three prior felony convictions. Stokes now claims this procedure was fundamentally erroneous.

[12] Our Supreme Court addressed a similar issue in Turpin v. State, 435 N.E.2d 1 (Ind. 1982). There, the trial court allowed the jury to consider, in a single phase, the evidence establishing the underlying offenses of theft and burglary as well as the evidence of prior thefts and burglary supporting a habitual offender enhancement. Id. at 3. On appeal, the court held this procedure constituted fundamental error. Id. at 4.

[13] But Stokes’ trial is distinguishable. First, the jury heard the evidence of prior felony convictions in phase two only after hearing all substantive evidence in phase one and returning a verdict on the battery counts. Second, evidence of prior felony convictions was required for both the SVF conviction and the habitual offender adjudication. Third, unlike Turpin, whose prior convictions were of a similar nature to the underlying offense, Stokes’ prior felony convictions involved drugs and were thus unrelated to the violent nature of the charges Stokes faced in phase one, further diminishing any potential prejudice. Additionally, because both charges independently required the admission of prior felony convictions, the jury would have learned of Stokes’ criminal history regardless of whether these matters were tried separately. Thus, the jury was not impermissibly tainted with knowledge of Stokes’ prior felony convictions during its initial guilt or innocence determination. See, e.g., Shelton v. State, 602 N.E.2d 1017, 1019 (Ind. 1992) (allowing habitual offender enhancement to be tried in same phase as “with a prior” charges, all of which required State to introduce evidence of prior felony convictions).

[14] We acknowledge that generally the habitual offender enhancement should be bifurcated from the underlying felony charges and that not doing so is error. See Ind. Code § 35-50-2-8(h) (2023) (governing habitual offender proceedings and providing that “[i]f the person was convicted of the felony in a jury trial, the jury shall reconvene for the sentencing hearing”) (emphasis added). Here, the trial court did not bifurcate the habitual offender enhancement from the SVF count and instead tried them in the same phase.

[15] While the trial court clearly erred in its bifurcation procedure—and we do not endorse this practice—the error does not rise to the level of fundamental error in these specific circumstances. To show fundamental error, Stokes must demonstrate that the trial court's procedure made a fair trial impossible and constituted a blatant violation of basic principles. See Absher, 866 N.E.2d at 355. We cannot find a fair trial impossible here where the impact on the jury was likely minimal. First, the specific nature of Stokes’ prior drug-related felonies created minimal risk that the jury would make improper character inferences related to the SVF gun possession charge. Second, both the SVF count and the habitual offender enhancement independently required proof of prior felony convictions, meaning the jury would inevitably learn about Stokes’ criminal history regardless of bifurcation.

[16] Also, the jury had already demonstrated its ability to properly follow instructions and weigh evidence by acquitting Stokes of all battery charges in phase one. The jury did so after being properly instructed to enter their verdict based only the evidence presented. This acquittal strongly indicates that this particular jury, after being properly instructed, was capable of making impartial decisions based solely on the evidence relevant to each charge, rather than being improperly influenced by character evidence. This conclusion is further supported by the court's clear instructions to the jury during both phases about considering only relevant evidence for each specific charge, instructions which we must presume the jury followed. Our role in determining fundamental error on appeal is not to reweigh evidence or second-guess the jury's ability to follow instructions, but to determine whether the error so prejudiced the defendant as to make a fair trial impossible. The record before us does not demonstrate such prejudice. Given the procedural safeguards employed by the trial court and the jury's demonstrated ability to carefully evaluate the evidence, we cannot say that trying the SVF count and habitual offender enhancement together in phase two constituted a blatant violation of basic principles that denied Stokes fundamental due process and made a fair trial impossible.

[17] Given all these factors, Stokes has failed to convince us that his first trial was so impossibly unfair such that fundamental error entitles him to relief. Therefore, we conclude that the trial court did not fundamentally err in these circumstances when it tried the SVF count and the habitual offender enhancement in the same phase.

II. Admission of Evidence

[18] Stokes next argues the trial court erred when it admitted into evidence in phase one a series of phone calls he made while he was incarcerated. Specifically, Stokes contends the court committed reversible error in admitting the calls because they should have been excluded pursuant to Evidence Rules 404(b) and 403. Although Stokes was acquitted after phase one, the jury still considered the calls in phase two as evidence that Stokes committed the SVF count.

[19] “A trial court has broad discretion in ruling on the admissibility of evidence[.]” Isom v. State, 31 N.E.3d 469, 482 (Ind. 2015). Thus, we will disturb its ruling only if it amounts to an abuse of discretion. Id. An abuse of discretion occurs only “if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (citation and quotations omitted).

[20] Evidence Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” The rule “ ‘is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.’ ” Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)). Evidence Rule 404(b)(2) provides in pertinent part, “This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

[21] To ascertain whether the trial court abused its discretion regarding the admissibility of 404(b) evidence, we must first “decide if the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act.” Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997). Then, we must “balance the probative value of the evidence against its prejudicial effect pursuant to [Evidence] Rule 403.” Id.; see Ind. Evidence Rule 403 (relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of ․ unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”). “A trial court's evidentiary rulings are presumptively correct, and the ‘defendant bears the burden on appeal of persuading us that the court erred in weighing [unfair] prejudice and probative value under Evid. R. 403.’ ” Rivera v. State, 132 N.E.3d 5, 12 (Ind. Ct. App. 2019) (quoting Anderson v. State, 681 N.E.2d 703, 706 (Ind. 1997)), trans. denied.

[22] At trial, the State moved to admit nine phone calls. Stokes objected to each call as inadmissible pursuant to Evidence Rule 404(b) and 403. Tr. Vol. 4, p. 109. On appeal, Stokes raises the same objection but concedes the call made on April 22, 2024, “was relevant to the State's argument[.]” Appellant's Br. p. 32. “He also concedes that the other [eight] calls were minimally relevant insofar as they tended to prove that Stokes was threatening witnesses to keep them from testifying.” Id. at 32-33. The crux of Stokes’ argument is that the trial court should not have admitted all of the calls because “[e]ach successive call was less probative, and more prejudicial than the last[.]” Id. at 33. We disagree.

[23] Turning to the first factor in our assessment of whether the 404(b) evidence was erroneously admitted, we conclude the evidence of other acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act—that matter being Stokes’ knowledge of guilt. For decades, our Supreme Court has held that “threats against potential witnesses as attempts to conceal or suppress evidence are admissible as bearing upon knowledge of guilt.” West v. State, 755 N.E.2d 173, 182 (Ind. 2001).

[24] The court addressed a similar issue in Bowman v. State, 51 N.E.3d 1174 (Ind. 2016). There, the trial court admitted into evidence a series of seven letters written by the defendant, finding that the “letters constituted probative evidence of a guilty mind, in that they constituted attempts by the defendant to coerce, influence, intimidate or threaten witnesses with regard to their testimony.” Id. at 1180 (citation and quotations omitted). On appeal, the court held that “[a]lthough some of these letters may be cumulative, the trial court was within its discretion in determining that they constituted attempts by Bowman to unduly influence witnesses into providing false testimony favorable to his defense, and were thus admissible under Rule 404(B)(2).” Id. at 1181.

[25] Here, Stokes’ calls appear to be evidence not of “other acts” but of the charged offense. During the eight calls, made in a six-day period just weeks before trial, Stokes told the other caller to tell Johnnie, his sister, and other witnesses not to come to court. Even if we assume the calls refer to other acts, we conclude that, although cumulative, they are relevant evidence of Stokes’ knowledge of guilt.

[26] Next, we balance the probative value of the calls against their prejudicial effect pursuant to Evidence Rule 403. This inquiry is not whether the evidence is prejudicial, because all relevant evidence is inherently prejudicial in a criminal case, but rather whether the evidence is unfairly prejudicial. Jackson v. State, 222 N.E.3d 390, 403 (Ind. Ct. App. 2023) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)).

[27] We find that the prejudicial nature of the calls does not substantially outweigh their probative value. The calls are only prejudicial in that they are highly probative of Stokes’ commission of the charged offenses and thus does not rise to the level of unfair prejudice. Therefore, we conclude the trial court did not abuse its discretion by admitting Stokes’ calls into evidence.

Conclusion

[28] The trial court did not fundamentally err when it tried the SVF count and the habitual offender enhancement in the same phase, nor did it abuse its discretion by admitting Stokes’ calls into evidence.

[29] Affirmed.

[30] “[A] fair trial in a fair tribunal is a basic requirement of due process.” Whiting v. State, 969 N.E.2d 24, 33 (Ind. 2012) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). Like the majority, I conclude the trial court's bifurcation procedure here was erroneous. But unlike the majority, I conclude the trial court's disregard of repeated caution signs that appeared throughout the proceedings denied Stokes a fair trial in a fair tribunal on the SVF count. Although Stokes acted pro se and did not object to the trial court's manner of structuring his trial, fundamental error “permits an appellate court to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). I would reverse Stokes’ conviction for fundamental error.¹

[31] The habitual offender statute seeks to provide a fair procedure by which an individual convicted of a felony may receive an enhanced sentence: “If the person was convicted of a felony in a jury trial, the jury shall reconvene for the sentencing hearing.” Ind. Code § 35-50-2-8(h) (emphasis added). The legal principles underlying the concept of bifurcation are due process and the general prohibition on character evidence. “The purpose of the bifurcated proceeding is to prevent the jury from being tainted by knowledge of the defendant's prior felony convictions, in determining his guilt or innocence of the charge before them.” Shepler v. State, 412 N.E.2d 62, 69 (Ind. 1980). Evidence of prior convictions is generally inadmissible because it has no tendency to establish the accused's guilt of the underlying felony, but only to “prejudice or mislead or excite the minds and inflame the passions of the jury.” Shelton v. State, 602 N.E.2d 1017, 1019 (Ind. 1992) (quoting Lawrence v. State, 286 N.E.2d 830, 832 (Ind. 1972)). By separating the consideration of prior convictions from the initial guilt determination, the defendant is provided a fair and impartial jury on the underlying felony charge. Id.

[32] Here, the trial court stated several times that the SVF count and habitual offender enhancement would be considered together in phase two. At a pretrial conference, the trial court explained to Stokes that the jury would not be told during phase one that he had been charged with a SVF count, a firearm enhancement, or the habitual offender enhancement:

[W]e don't want to prejudice you in terms of, oh, he's a convicted felon so he must be guilty ․ and base a conviction on that rather than basing it upon the evidence. So we do it in two separate phases. It's for your protection. But we can do all three of those together if we get to it.

Tr. Vol. 2 at 69–70 (emphasis added). On the first day of trial, while discussing preliminary matters before voir dire, the State noted there were no instructions about the SVF count and asked, “How would the jury know to proceed with phase two unless in phase one they find him in possession of a firearm?” Tr. Vol. 3 at 10. The trial court responded, “Right. I'm bifurcating the SVF.” Id. The court then stated it was “not required to bifurcate the [SVF] count itself,” only to bifurcate it from the other counts, and “when we get to the habitual SVF phase, [the jury] would be told that they may consider all the evidence from the first phase”). Id. (emphasis added); see also id. at 95–96 (after jury selection and before preliminary instructions to the jury, the State again asked about an SVF “dummy charge” for the jury to determine whether Stokes possessed a firearm during phase one and the trial court responded, “I am not required to do that, and I will not do that in this case․ It will be a standalone charge. But it would be heard with the habitual and the firearms enhancement. We're not going to trifurcate this case.”) (emphasis added). Finally, when discussing the procedure that would follow the jury's verdict, the State asked about bifurcating the SVF count and the habitual offender enhancement in phase two and the trial court replied: “We're not trifurcating. This court does not trifurcate. The law says I do not have to trifurcate. It's all coming in at once.” Tr. Vol. 4 at 155 (emphasis added). These statements conflate the SVF count and habitual offender determination and indicate a misunderstanding of the circumstances in which bifurcation is required.

[33] Unlawful possession of a firearm by a serious violent felon is a standalone felony charge, not a sentencing enhancement. Compare Ind. Code § 35-47-4-5(c) (“A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Level 4 felony.”), with Ind. Code § 35-50-2-8(a) (“The state may seek to have a person sentenced as a habitual offender for a felony by alleging, on one (1) or more pages separate from the rest of the charging instrument, that the person has accumulated the required number of prior unrelated felony convictions in accordance with this section.”). Although multiple enhancements may be heard in the same phase, see Shelton, 602 N.E.2d at 1020, a felony charge and an enhancement may not, Lawrence, 286 N.E.2d at 834.² Trial of the SVF count should have been bifurcated from the habitual offender enhancement determination.

[34] Notwithstanding the error of law, there were several points at which the trial court should have recognized the potential for prejudice in its chosen procedure and changed course. See Whiting, 969 N.E.2d at 34 (noting “the fundamental-error doctrine asks whether the error was so egregious and abhorrent to fundamental due process that the trial judge should or should not have acted, irrespective of the parties’ failure to object or otherwise preserve the error for appeal”).

[35] First was when the issue of how to instruct the jury and structure the proceedings arose repeatedly before trial even began. The trial court assured Stokes its chosen procedure was for his protection. Then at least two times before the jury was given preliminary instructions in phase one (and again before the jury returned its phase one verdicts) the State raised the question of whether the procedure was appropriate. To the extent the trial court was referring to bifurcating the SVF count alone when it responded in any of these instances, it was correct a standalone SVF count does not have to be bifurcated into possession and prior conviction phases because a jury cannot determine whether the defendant committed an illegal act without hearing evidence of a prior conviction. See Spearman v. State, 744 N.E.2d 545, 548 (Ind. Ct. App. 2001), trans. denied. But this is a different question than whether an SVF count must be bifurcated from a habitual offender enhancement, the crucial question here. Answered correctly, Stokes’ due process rights would have been protected.

[36] Second was when the jury found Stokes not guilty of all counts in phase one. At that point, Stokes was not a convicted felon in the jury's eyes. Bifurcation is necessary to guarantee the defendant's right to a fair trial on the underlying felony charge. See Lawrence, 286 N.E.2d at 833. The SVF count was the only remaining felony charge and should have been submitted to the jury separately.

[37] Third was when the trial court instructed the jury in phase two. The SVF count was the only felony to which a habitual offender enhancement could attach but Stokes had not yet been found guilty of that charge. The court overlooked the plain language of the habitual offender enhancement statute requiring a finding of guilt before reconvening to determine whether the defendant should be sentenced as a habitual offender. The trial court also disregarded the language of the pattern jury instruction for habitual offender allegations that presumes the defendant was convicted of a felony in an earlier phase. See Ind. Pattern Crim. Jury Instr. 15.1240 (stating one of the elements the State must prove is that “Defendant later committed Count __ ․ (name felony[ ] of which Defendant was convicted in Phase I), a Level [1] [2] [3] [4] felony”) (emphasis added).

[38] The trial court also crafted its own instruction to support its procedure, telling the jury that if it found Stokes not guilty of the SVF count, it was “prohibited from considering the habitual offender charge.” Tr. Vol. 4 at 205, 217. This instruction coupled with instructions about the proof required for the habitual offender allegation and evidence of multiple prior convictions likely had the effect of encouraging the jury to find Stokes guilty of the SVF count so it could also find him to be a habitual offender. See Lawrence, 286 N.E.2d at 833–34 (“The unfairness inherent in this procedure becomes even more obvious when it is seen that a conviction on the principal charge, which may be influenced by evidence of prior convictions, is necessary to obtain a conviction on the habitual criminal charge.”).

[39] And fourth was when the jury sent several questions while deliberating, indicating confusion on the possession element of the SVF count. The jury asked: “[W]hat is the full ․ definition of possession? ․ Does it mean physically on you or ․ around you?”; “[A]re felons allowed to have firearms in the same home if there are other people in the home?”; “[W]as there a gun submitted on December 15, 2023?”; and “[W]as the search warrant executed in April related to December 15?” Tr. Vol. 4 at 219, 221.³ Stokes was charged with battery by a deadly weapon on or about December 15, 2023, among other crimes tried in phase one. Two guns, found four months after the incident for which Stokes was on trial, were admitted into evidence during phase one. Yet the jury found him not guilty of that charge—indeed, of all charges—in phase one. In phase two, the State relied on the evidence from phase one to prove the possession element of the SVF count and did not introduce any additional substantive evidence, just evidence that Stokes had three prior convictions. See Tr. Vol. 4 at 206 (State, in its opening for phase two, saying it is “going to prove two things[.] One, [Stokes] was convicted of conspiracy to commit drug dealing which made it a crime to have a gun. Two, we're going to introduce two prior unrelated felony convictions that made him a habitual offender.”). The State did not argue to the jury that the evidence it heard in phase one proved Stokes actually possessed a gun on December 15 for purposes of phase two, relying on the jury to work out for itself that being instructed only on actual possession meant that it had to be talking about December 15.⁴ But the jury seemingly was not convinced in phase one that Stokes used a gun on December 15. The jury here did an admirable job, but its questions point toward confusion on the elements it was required to find and the evidence it could rely on for the SVF count. Evidence of multiple prior convictions may have had more than a minimal impact on its decision in phase two.

[40] In cases where a jury has already found the defendant guilty, learning of additional criminal behavior would not have an outsized impact. But Stokes was found not guilty of all charges in phase one. Although a prior conviction is an essential element of a SVF count, only one prior conviction is required, and it cannot be the same prior used for the habitual offender enhancement. See Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007). The admissibility of a prior conviction in such cases is justified only by its relevance to the issues. Lawrence, 286 N.E.2d at 833. Here, the two prior convictions upon which the habitual offender enhancement was predicated have no relevance to the SVF count. Moreover, the full breadth of the prior convictions shows Stokes has a history of drug involvement spanning twenty-four years.⁵ Courts have stated in a different context that “it is widely known that guns and drugs go hand in hand.” United States v. Gulley, 722 F.3d 901, 908 (7th Cir. 2013). As our Supreme Court stated in Lawrence, “[i]t is highly improbable that twelve jurors can be found with sufficient mental discipline to compartmentalize the evidence.” 286 N.E.2d at 833.

[41] Again, I acknowledge Stokes did not object to the bifurcation procedure. But he had been assured by the trial court at the outset that the chosen procedure was for his own protection. And the trial court made clear in its responses to the State throughout the proceedings that it was going to try the SVF count and habitual offender allegation together no matter what and did so as a matter of course. See Tr. Vol. 4 at 155 (“This court does not trifurcate.”). Any objection Stokes made—whether pro se or by counsel—would likely have been overruled because the trial court itself created the error.⁶

[42] I also note the majority distinguishes Turpin v. State, a case in which our Supreme Court found fundamental error when the trial court instructed the jury to consider the underlying felony charges and the habitual offender enhancement at the same time. See slip op. at ¶¶ 12–13 (citing 435 N.E.2d at 4). The reason the trial court in Turpin submitted the case to the jury in that manner was because the defendant admitted to having several prior convictions. In other words, the error was precipitated by the defendant himself, yet the Court still found fundamental error. Here, the majority faults Stokes for precipitating the error by representing himself and not objecting to the procedure. But that is what fundamental error review is for—correcting blatant trial errors that are otherwise procedurally barred. See Ryan, 9 N.E.3d at 668. Further, and perhaps most importantly, the Court in Turpin said, “[T]he mandatory provisions of [the habitual offender] statute cannot be ignored and a finding of waiver is inapplicable under the circumstances of this case.” 435 N.E.2d at 3. “There is no discretion reposed in the trial court to depart from the demands of this statute.” Id.

[43] Taken together, the trial court's disregard of these caution signs adds up to an error so prejudicial to Stokes’ rights as to make a fair trial on the SVF count impossible. I would reverse Stokes’ conviction.⁷

FOOTNOTES

1.   Although Stokes analyzes his claim under the rubric of fundamental error, he does not necessarily concede it must be analyzed as such. Noting the State raised the issue of bifurcating the SVF count and the habitual offender enhancement, and the trial court had the opportunity to consider and explain the reason for its chosen procedure, Stokes contends the rationale for waiver does not apply and we could address this issue on its merits for an abuse of discretion. See Appellant's Br. at 26-28. I would reach the same result under either analysis.

2.   For this reason, I disagree with the majority's statement that the jury “was not impermissibly tainted with knowledge of Stokes’ prior felony convictions during its initial guilt or innocence determination” because the determination on a SVF count is a “guilt or innocence determination.” Slip op. at ¶ 13. In making this statement, the majority relies on Shelton v. State, which held a habitual offender enhancement may be tried in the same phase as a charge enhancement because the jury is not required in those instances to find the defendant guilty of another charge, “but merely to find facts which would enhance defendant's sentence.” 602 N.E.2d at 1020 (quoting Wise v. State, 400 N.E.2d 114, 118 (Ind. 1980)). A SVF count—although requiring proof of a prior conviction—is not a charge enhancement but a standalone substantive charge.

3.   The trial court did not answer any of these questions.

4.   In a motion to correct error hearing prior to sentencing, the State asserted “it mentioned December 15th, 2023” in closing argument of phase two. Tr. Vol. 4 at 234. “It was all about that December 15th date. And the State was careful in making sure that the Court instructed only about actual possession. So [the jury] was determining whether it was December 15th, 2023.” Id. My review of the transcript of phase two finds no such statement during the State's closing argument. The State's only mention of a firearm was when it said, “The only things (inaudible) in this case are that you heard evidence just now the Defendant had a firearm.” Id. at 215.

5.   The SVF count was predicated on a 2002 conviction for conspiracy to commit dealing. The habitual offender enhancement was predicated on two convictions for possession of cocaine, one in 2018 and one in 1994. The majority notes the prior convictions for possession were “unrelated to the violent nature of the charges Stokes faced in phase one, ․ diminishing any potential prejudice.” Slip op. at ¶ 13. But Stokes was found not guilty of the charges in phase one—the relevant charge for considering prejudice from the prior convictions is the SVF count.

6.   Our Supreme Court recently held in the context of prosecutorial misconduct that “[r]equiring additional requests where the trial court already overruled an objection appears in actuality to be futile, as it only seems logical that those requests would be denied as well.” Konkle v. State, 253 N.E.3d 1068, 1081 (Ind. 2025). The State here did not make a specific objection, but the same principle would seem to apply.

7.   Because I would reverse Stokes’ conviction, I would not reach the admissibility of evidence issue.

Crone, Senior Judge.

Judge DeBoer concurs. Judge Kenworthy dissents in part with separate opinion. DeBoer, J., concurs. Kenworthy, J., dissents in part with separate opinion.