NOT FOR PUBLICATION

MEMORANDUM DECISION

BROWN, Judge.

Earnest Jackson appeals his conviction for unlawful possession of a firearm by a serious violent felon ("SVF") as a class B felony.1 Jackson raises one issue, which we revise and restate as whether the trial court abused its discretion by denying Jackson's motion to bifurcate where the only charge was unlawful possession of a firearm by a SVF. We affirm.

The relevant facts follow. In the late evening of March 22, 2010, South Bend Police Corporal Alan Wiegand observed a green vehicle driving with malfunctioning rear lights in South Bend. Corporal Wiegand followed the vehicle, which subsequently made a left turn without signaling, and he proceeded to initiate a traffic stop. Upon stopping the vehicle, Corporal Wiegand "noticed a lot of movement inside the car, as if possibly they were trying to hide something or destroy something," and the movement was mostly occurring in "the front seat, particularly the passenger." Transcript at 172. Corporal Wiegand approached the vehicle on the passenger side and observed two occupants including Jackson who was seated in the passenger seat. As Corporal Wiegand approached, he noticed that Jackson "was twisting his body in a manner that was blocking the majority of the front area of the vehicle" from Corporal Wiegand's view which led him to believe that Jackson was trying to conceal something. Id. at 175. After receiving assistance from another officer and speaking with both Jackson and the driver, Corporal Wiegand determined that there was an outstanding warrant for Jackson's arrest. Corporal Wiegand then arrested both Jackson and the driver and conducted a pat-down search of Jackson.2

Corporal Wiegand was then informed by other officers that "they had found a gun inside the vehicle" which was observed "sticking out from the center arm rest." Id. at 178. Corporal Michael Stuk took pictures of the handgun he observed and then "cleared the magazine and the rounds out of the pistol" because it had been "cocked in the loaded position." Id. at 238. He removed five bullets from the handgun. Jackson was transported to the St. Joseph County Jail where he was subjected to a more "thorough" and "in-depth" search, and the searching officer discovered "a .25 caliber bullet in his pocket." Id. at 187-188.

On March 29, 2010, the State charged Jackson with unlawful possession of a firearm by a SVF as a class B felony in which the charging information noted that he had been previously convicted of robbery as a class B felony in St. Joseph County, Indiana, on January 13, 1988. On October 8, 2010, Jackson filed a motion to bifurcate trial and/or motion in limine in which he argued that any reference to his previous robbery conviction "would unfairly prejudice a jury's consideration of whether [he] possessed a firearm," and he requested that the trial court bifurcate the proceedings "pursuant to Indiana Rule of Trial Procedure 42(B) to avoid prejudice," or alternatively that the court "preclude any reference to the alleged use of a handgun, by granting a Motion in Limine, with respect to the alleged Robbery in the underlying offense." Appellant's Appendix at 24-25.

On October 11, 2010, the court began jury trial proceedings and at the outset denied Jackson's motion to bifurcate. The court then addressed Jackson's motion in limine by saying: "[I]t appears to me that the facts of the earlier robbery are absolutely irrelevant, it's simply the conviction itself, which is the relevant issue. And to the extent that [Jackson's] motion in limine deals with the facts of the other robbery, [it] is granted." Transcript at 4.

The court then addressed another issue highlighted by previous opinions from this court related to the "difficulty" in what "the legislature chose to name this crime, namely Serious Violent Felon[] in Possession of a Firearm." Id. The court noted "some discussion in the appellate level cases that trial courts should limit the jury's exposure to that term," and in recognition thereof stated: "[F]or purposes of the trial . . . I have renamed the offense in the instructions . . . Unlawful Possession of a Firearm . . . ." Id. at 5. The State and Jackson also discussed with the court what would be presented to the jury regarding Jackson's previous robbery conviction with the State submitting a partially-redacted charging information, criminal docket, and abstract of judgment. Jackson's counsel took issue with some of the language in the documents including references to his use of a handgun during the robbery and that he was "threatening the use of force," and the court, after noting that it did not "think you can have it both ways," suggested that Jackson enter a stipulation regarding his previous conviction. Id. at 8-9.

The court then proceeded to the voir dire stage and stated to the prospective jurors that Jackson had been charged with "Unlawful Possession of a Firearm, a Class B Felony," and read the prospective jurors the charging information as follows:

Id. at 13, 22. The jury was subsequently empanelled.

The next day, on October 12, 2010, the parties entered two stipulations, including a stipulation stating that Jackson "was convicted in Indiana of Robbery, a Class B Felony. . . on January 13, 1988," and the court read the stipulations to the jury. Appellant's Appendix at 26. Over the course of the jury trial, evidence was presented regarding whether Jackson possessed the handgun, and the jury never heard the phrase "serious violent felon." The jury found Jackson guilty as charged. On November 10, 2010, the court held a sentencing hearing and noted that Jackson's conviction is non-suspendable due to his prior conviction. The court sentenced Jackson to the minimum of six years in the Department of Correction.

The sole issue is whether the trial court abused its discretion by denying Jackson's motion to bifurcate where the only charge was unlawful possession of a firearm by a SVF. Generally, a motion to bifurcate is reviewed for an abuse of discretion. Hines v. State, 794 N.E.2d 469, 471 (Ind. Ct. App. 2003), adopted and incorporated by reference by Hines v. State, 801 N.E.2d 634 (Ind. 2004), reh'g denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Hines, 794 N.E.2d at 471.

Jackson argues that the trial court abused its discretion and violated his due process rights by denying his request to bifurcate the proceedings. Specifically, Jackson argues that while the actions taken by the court "were aimed at protecting Jackson's right to a fair trial, they simply did not go far enough" because "[t]he jury's exposure to the fact of the prior robbery conviction diminished Jackson's right to be presumed innocent." Appellant's Brief at 8. Jackson argues that "[bifurcation of the proceedings would have meant that the jury had to judge whether [he] possessed a firearm strictly on the merits of the evidence without having knowledge of his twenty-two year old robbery conviction." Id. The State argues that "[t]he sole charge in the instant case was that [Jackson] was a serious violent felon in possession of a firearm, making bifurcation impractical, if not impossible, just as in" Spearman v. State, 744 N.E.2d 545 (Ind. Ct. App. 2001), reh'g denied, trans. denied. Appellee's Brief at 4.

The crime of unlawful possession of a firearm by a SVF is defined by Indiana Code § 35-47-4-5, which provides in relevant part:

Thus at trial, in order to prove unlawful possession of a firearm by a SVF, the State had to prove that Jackson knowingly or intentionally possessed a firearm while, at the same time, having a qualifying prior felony conviction as enumerated under Ind. Code § 35-47-4-5. See also Dugan v. State, 860 N.E.2d 1288, 1291 (Ind. Ct. App. 2007), trans. denied.

This court has previously addressed instances in which the defendant has moved for bifurcated proceedings after having been charged with unlawful possession of a firearm by a SVF only. In Dugan, we examined the principal cases on this issue, namely Spearman, in which this court "held that the defendant's due process rights were not violated when the trial court did not conduct bifurcated proceedings" and Hines. Dugan, 860 N.E.2d at 1291-1292. First, in Spearman, the defendant moved for bifurcated proceedings to prevent the jury from learning of his prior felony conviction until it determined whether he was in possession of a firearm. Id. at 1291. After the court denied Spearman's motion, the case proceeded to a jury trial wherein Spearman "stipulated that he had been convicted of criminal confinement . . . ." Spearman, 744 N.E.2d at 546. As analyzed in Dugan, after the jury found Spearman guilty, we affirmed his conviction and held:

Dugan, 860 N.E.2d at 1291-1292. In so holding, we noted that in determining whether the defendant was prejudiced by the admission of the prior conviction, "the focus should be on whether the prejudice arising from evidence of prior crimes outweighs the probative value of such evidence" and that "any prejudicial effect can be mitigated ` by excluding evidence regarding the underlying facts of the prior felony and limiting prosecutorial references thereto.'" Id. at 1292.

The Hines case presented a different circumstance where the defendant "was charged with robbery and unlawful possession of a firearm by a SVF." Id. (citing Hines, 794 N.E.2d at 470-472). The Hines court noted that Hines's "status as a SVF was not an essential element of the robbery charge" or even probative of that charge, and it held that not only would it have been feasible to have bifurcated the proceedings on the different charges, but also the unfair prejudice substantially outweighed its probative value "with respect to the robbery charge." Id. (quoting Hines, 860 N.E.2d at 472) (emphasis added). In so holding, the court "did not require the SVF element to be bifurcated from the gun possession element." Id.

As recognized in Dugan, a trial court does not abuse its discretion in declining to hold bifurcated proceedings on the different elements of unlawful possession of a firearm by a SVF.3 Id. Although it is true that in cases "where a defendant will stipulate as to his status as a serious violent felon, [the] removal of the need to prove that status should shift the principal focus to the need to avoid prejudice to the defendant," id. at 1292-1293, here the trial court proceeded diligently in this regard. Indeed, the jury was repeatedly instructed that the charge against Jackson was titled "Unlawful Possession of a Firearm, a Class B Felony," rather than using the "serious violent felon" language contained in the statute. See, e.g., Transcript at 13; see Williams v. State, 834 N.E.2d 225, 228 (Ind. Ct. App. 2005) (noting previous concerns raised by Judge Barnes and Judge Darden regarding the term "serious violent felon" and commending the trial court for circumventing these "legitimate concerns" by avoiding such references). Although the State indicated during its opening statement that it would present evidence that Jackson had "a prior conviction of robbery, in 1988" including "court documents and . . . some testimony from a fingerprint examiner," Jackson subsequently stipulated to the 1988 robbery, and at trial the State confined its presentation of evidence to whether Jackson possessed the handgun on the relevant date in March, 2010. Transcript at 147. Accordingly, we conclude that the court did not abuse its discretion in denying Jackson's motion to bifurcate.

For the foregoing reasons, we affirm Jackson's conviction for unlawful possession of a firearm by a serious violent felon.

Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.