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Olivia Covington for www.theindianalawyer.com

The Marion Superior Court did not abuse its discretion when it allowed the state to reopen its case against a defendant after closing arguments because the defendant had been forewarned that certain evidence could be admitted if he presented a contrary intent defense, the Indiana Court of Appeals held Wednesday.

In James Gilman v. State of Indiana, 49A02-1601-CR-95, Robin Kemp came to the house where James Gilman’s estranged wife, Melissa, lived while Gilman was visiting in April 2015. Kemp was the mother of Gilman’s children.

When Kemp arrived at the home, she remained in the car but was yelling and claiming that she was on the phone with police discussing a dispute between her and Gilman about who owned a Chevrolet Impala that was registered in her name. Gilman then got into the Impala and attempted to drive away, but Kemp drove her vehicle into the Impala, knocking it into the neighbor’s yard.

Both Gilman and Kemp then took off at high speeds and their cars bumped several times before colliding at roughly 87 miles per hour. The impact of the collision killed Kemp instantly, but Gilman’s vehicle came to a rest a short distance away from Kemp’s. Gilman could see Kemp injured inside her vehicle, but he fled the scene without helping her, calling for police or waiting for emergency services to arrive.

During an interview about the accident in May, Gilman admitted that at the time of the accident he knew of an outstanding warrant for his arrest in an unrelated case. He was then charted with Level 5 felony leaving the scene of an accident resulting in death.

During a pretrial hearing, the state informed the Marion Superior Court that it intended to introduce evidence of Gilman’s knowledge of the outstanding warrant if he argued that he had a defense for leaving the scene of the accident. The court issued an order saying the evidence could only be introduced “should Defendant place intent at issue by presenting a claim of particular contrary intent.”

The state rested without presenting the evidence of Gilman’s knowledge of the warrant, but during closing arguments, the defense argued that Gilman fled the scene “out of necessity” because he believed Kemp would hurt him. The state objected, and the court sustained the objection.

Then, the state requested permission to reopen its case and present its additional evidence of Gilman’s knowledge of the outstanding warrant because Gilman had made a necessity claim. The trial court granted the state’s request over Gilman’s objection and also allowed Gilman to supplement his argument if he wanted.

The jury found Gilman guilty as charged and he appealed, arguing that the trial court erred when it allowed the state to reopen its case because the evidence in question was more prejudicial than probative.

But Indiana Court of Appeals Senior Judge Carl Darden wrote Wednesday that Sgt. Doug Heustis, who testified to Gilman’s knowledge of the warrant and who interviewed Gilman after the accident, was not a surprise witness because he testified in the state’s case-in-chief. Similarly, Darden wrote that Gilman’s counsel was given a copy of Heustis’ interview with Gilman before the trial.

Further, Gilman’s counsel chose not to cross-examine Heustis and did not supplement its closing argument after the state re-rested, the appellate judge said.

“We conclude that under these circumstances, allowing the State to reopen its cases was not unreasonable,” Darden wrote. “Also, Gilman has failed to show how he was unduly prejudiced by the reopening.”