Opinion
Court of Appeals Case No. 21A-CR-2165
07-18-2022
Joshua L. BARTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Stacy R. Uliana, Bargersville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Defendant, Joshua Barton (Barton), appeals his convictions for two counts of non-support of a dependent child, Level 6 felonies, Ind. Code § 35-46-1-5(a).
[2] We affirm.
ISSUES
[3] Barton presents this court with two issues, which we restate as:
(1) Whether the trial court abused its discretion in admitting his pretrial diversion agreement (Diversion Agreement) into evidence at trial; and
(2) Whether any abuse of the trial court's discretion in admitting the Diversion Agreement requires reversal.
FACTS AND PROCEDURAL HISTORY
[4] E.J. and Barton are the parents of L.B., born October 28, 2009, and C.B., born December 19, 2011, (collectively, Children). In 2010, E.J. and Barton moved the family from Arizona to Brown County, Indiana, where Barton had family. Barton is a journeyman trim carpenter who is experienced in the construction industry. E.J. became addicted to opioids during her relationship with Barton. In March of 2012, E.J. entered in-patient treatment in Monticello, Indiana, for her opioid addiction. While E.J. was in treatment, Barton initiated a proceeding seeking sole custody of Children. After E.J. completed treatment in Monticello, she broke off her relationship with Barton, regained physical custody of Children, and relocated with Children to Wisconsin, where she had family. On September 11, 2013, by agreed entry of the parties, Barton was ordered to pay $130 per week for Children's support. This figure was derived using a child support worksheet and the income documentation submitted by Barton. The parties’ agreed entry further provided that Barton was to make all payments to the Indiana State Central Collection Unit (ISCCU) or to the Clerk of the Brown County Circuit Court and that Barton's income would be subject to an income withholding order. Barton was also informed by the Brown County Prosecutor's Office, Child Support Division (CSD), that if his child support obligation was not being withheld from his paycheck, he must pay his child support obligation directly to the Brown County Clerk or to the ISCCU.
Barton was ordered to pay a gross amount of $165, but he received a $35 credit for transportation costs to facilitate long-distance parenting time.
[5] Between November 19, 2013, and May 18, 2015, Barton worked for at least four employers. From March 1, 2014, to April 20, 2014, Barton worked for Abell Nursery and Landscaping (Abell) in Monroe County doing general labor, including unloading semi-trucks of plants and moving plants around the worksite. During the week of March 12, 2014, an income withholding order was generated by the CSD, although it is unclear from the record whether it was applied to Barton's pay. Barton received five paychecks from Abell and then just stopped coming to work. Barton next worked in the summer of 2014 for a construction business owned by Phillip Hagemeyer (Hagemeyer). During the week of July 16, 2014, the CSD generated an income withholding order for Barton's Hagemeyer construction pay. Barton quit that job immediately after Hagemeyer told him the income withholding order would be applied. From January 30, 2015, to March 13, 2015, Barton worked for SteelTech Partners, LLC, (SteelTech), for a total of six weekly pay periods. The week of February 19, 2015, the CSD issued an income withholding order for Barton's SteelTech pay, but no child support was withheld from Barton's pay before he left SteelTech. Thereafter, Barton worked for Tradesman International, Inc. (TI), from March 23, 2015, to May 10, 2015, for a total of eight weekly pay periods. The week of April 20, 2015, the CSD issued an income withholding order for Barton's TI. No income withholding order was applied to Barton's TI income during the first six pay periods. Child support was withheld from Barton's seventh TI check. During the eighth TI pay period, Barton did not work a full week, and his employment with TI ceased.
[6] During the relevant timeframe, Barton only made one cash payment to the Brown County Clerk of $100 on November 22, 2013. Barton paid no support directly to E.J. From November 19, 2013, to May 18, 2015, Barton only paid $3,888 of the $10,270 he owed in child support, or 38% of his obligation. Barton never expressed remorse to E.J. about not paying his child support; rather, he simply promised that he would start making payments. [7] On November 6, 2017, the State filed an Information, charging Barton with two counts of Level 6 felony non-support of a dependent in which it alleged that Barton had failed to support L.B. and C.B. between November 19, 2013, and May 18, 2015, and owed an arrears of $10,240. On February 5, 2019, the trial court held a hearing during which the State and Barton, who was represented by counsel, presented the trial court with a pretrial diversion agreement (Diversion Agreement) pursuant to which the State agreed to withhold prosecution of the non-support charges and to dismiss the charges if Barton successfully completed the terms and conditions of the Diversion Agreement within eighteen months, including that Barton would admit to two counts of felony non-support, he would not commit any new offenses, and he would pay $6,000 in arrears by February 5, 2019. The Diversion Agreement further provided in relevant part as follows:
By signing below, Defendant (1) agrees to the terms of this [Diversion Agreement] and (2) waives the right to a speedy trial under Criminal Rule 4 ;
Defendant acknowledges that failure to successfully complete the [Diversion Agreement] will result in (1) the [Diversion Agreement] being set aside and the prosecution resuming; (2) acknowledges this filed document may be used in Court against the Defendant ; (3) agrees and understands that any violation of this agreement does not entitle Defendant to any pretrial credit time; (4) all monies paid hitherto being forfeited; and (5) agreeing to appear in Court on August 31[,] 2020[,] at 3:00 p.m. with failure to do so resulting in a potential warrant for Defendant's arrest.
(Exh. 12) (emphasis added). Barton and Barton's counsel both signed the Diversion Agreement. At the February 5, 2019, hearing, after the trial court confirmed with Barton that he had read and signed the Diversion Agreement, the trial court stated the following on the record:
And I don't know that there's any real record I need to make, other than ensuring that you understand it, that you've had adequate opportunity to talk to your attorney about it, and indicating that you have agreed to appear in Court on August 31, 2020 at 3:00 p.m. for basically a compliance hearing.
(Supplemental Tr. p. 4). The trial court stated that it would note that the matter was being resolved by pretrial diversion unless there was anything else that needed to be addressed. Barton did not indicate that he had any questions about the Diversion Agreement or that he had not had an adequate opportunity to discuss the Agreement with his counsel. The Diversion Agreement was filed.
[8] On June 11, 2019, Barton was convicted of invasion of privacy. On August 27, 2020, the State filed its notice that it was withdrawing from the Diversion Agreement and was resuming prosecution of the non-support charges based on Barton's violation of the Diversion Agreement by committing the new offense of invasion of privacy. By April 27, 2021, the State and Barton had reached a plea agreement whereby Barton would plead guilty as charged and the State would recommend concurrent sentences, with a cap of one year on the executed portion of his sentences. However, at his change of plea hearing, Barton was unable to establish a factual basis for his plea, and the matter was scheduled for a jury trial.
[9] On August 3, 2021, Barton filed a motion in limine seeking to exclude any reference at trial to the Diversion Agreement, including his admission to the charges. On August 4, 2021, the trial court convened Barton's two-day jury trial. The trial court heard argument on Barton's motion in limine to exclude the Diversion Agreement and his admissions. Barton's counsel objected on the basis of Indiana Trial Rules 410 and 408 and argued that it would be unfair under the circumstances to admit the Diversion Agreement because the jury, as lay people, might not understand how Barton could have admitted to the charges in the Agreement but then, after prosecution had resumed, was unable to establish a factual basis for his guilty plea. Barton's counsel was concerned about how this would affect the jury's perception of Barton's credibility and that the jury might conclude that Barton had acted in bad faith in his dealings with the State. The State contended that the parties had bargained for the terms of the Diversion Agreement, Barton had signed the Agreement and acknowledged that it could be used in court against him, and that the Agreement did not preclude Barton from asserting his affirmative defense of inability to pay. The trial court observed that Barton's acknowledgement that the Agreement could be used against him in court was a stipulation of admissibility, it was significant that Barton had been represented by counsel at the time he entered into the Agreement, and that, absent any other indications to the contrary, his admissions in the Agreement were knowing and voluntary. The trial court denied Barton's motion in limine pertaining to the Diversion Agreement.
[10] The trial court provided the jury with a preliminary instruction that "[i]t is a defense to the charge of [non-support of a dependent child] that the defendant was unable to provide support" and that Barton had the burden of proving his defense by the greater weight of the evidence. (Transcript Vol. II, p. 172). During his opening argument, the Deputy Prosecutor mentioned once that Barton had admitted in the Diversion Agreement "to not supporting his children." (Tr. Vol. II, p. 178). Barton's counsel informed the jury that the Diversion Agreement was "not the entirety of the issue. The support wasn't paid. That[ ] still leaves open the question of whether the support could have been paid." (Tr. Vol. II, p. 179). During presentation of the State's case, E.J. testified that while she was living with Barton and up until she entered rehab in March of 2012, Barton had not exhibited any difficulty with his breathing and had not received any diagnosis for a condition related to his lungs. Evidence of Barton's employment and a printout of his child support payment record was admitted. The State had the Diversion Agreement admitted as its last piece of evidence with some of the diversion conditions redacted, including that Barton had agreed to refrain from committing new offenses and would pay $6,000. As per the agreement of the parties, the trial court admonished the jury as follows regarding the Diversion Agreement:
You are admonished that you may not speculate regarding why the case was not dismissed. And you will also notice that there are certain areas that have been redacted. You must not speculate regarding what that information may have been or concern yourselves with the reasons for the redactions.
(Tr. Vol. III, pp. 139-40). After the State rested, Barton's mother testified that during the relevant period Barton's health was deteriorating due to "several issues" which impacted his ability to work. (Tr. Vol. III, p. 141). She also related that in 2014 she had purchased a home for Barton which he was to renovate in lieu of paying her rent or a house payment. Barton's mother confirmed that Barton worked during the period spanning from 2013 to 2015. For his part, Barton testified that he knew that he was required to pay his child support payment himself if it was not being deducted from his paycheck. Regarding his employment, Barton testified that his new wife had forced him to leave Abell, he left Hagemeyer due to an accident and "alcoholism", his employment at SteelTech ended because he was not adequately skilled as a welder, and that his employment at TI ended because the job moved to another town and he lacked transportation. (Tr. Vol. III, p. 152). As to his health, Barton explained that during the relevant period, his health deteriorated. Barton testified that he had difficulty breathing around sawdust and that his energy was low. Barton also explained that he had a long-term struggle with alcoholism. Barton acknowledged that the Diversion Agreement contained his admission that he owed the alleged child support arrears, but he also acknowledged that he desired to assert the affirmative defense that he had paid as much as he was able to pay. Barton asserted that he had made payments directly to E.J., but when pressed by the Deputy Prosecutor, detailed that he had made only one $200 payment in cash to E.J.
[11] During his closing argument, the Deputy Prosecutor did not reference the Diversion Agreement or the admissions Barton had made in it. In Barton's closing argument, his counsel emphasized that the jury could acquit Barton of the non-support charges if it found that he had established his affirmative defense of inability to pay. In his rebuttal, the Deputy Prosecutor did not mention the Diversion Agreement and acknowledged that the jury could acquit if it found that Barton had proved his affirmative defense. The jury received a final instruction on Barton's affirmative defense of inability to pay.
[12] The jury found Barton guilty as charged. On September 8, 2021, the trial court sentenced Barton to two years for each conviction, to be served concurrently and with all but 180 days suspended to probation.
[13] Barton now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[14] Barton challenges the admission of the Diversion Agreement as Exhibit 12 at his trial. As a general rule, a trial court has discretion regarding the admission of evidence at trial, and we review a trial court's evidentiary rulings only for an abuse of discretion. Hall v. State , 177 N.E.3d 1183, 1193 (Ind. 2021). "We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and errors affect a party's substantial rights." Id.
II. Analysis
A. Barton's Waiver of Admissibility
[15] Barton contends that the trial court abused its discretion in admitting Exhibit 12 in contravention of the Indiana Rules of Evidence, statutory authority, and common law. However, we do not reach the merits of these claims, as we agree with the State that Barton validly and voluntarily waived any restriction on the admissibility at trial of Exhibit 12. In the Diversion Agreement, the State and Barton agreed that the State would withhold prosecution on the non-support charges as long as Barton complied with certain terms and conditions within eighteen months. In entering into the Diversion Agreement, the parties executed a contract. See Buskirk v. Buskirk , 86 N.E.3d 217, 222-23 (Ind. Ct. App. 2017) (observing that the basic requirements for a contract are offer, acceptance, consideration in the form of a benefit accruing to the promisor or a detriment borne by the promise, and a meeting of the minds of the parties). Therefore, we apply the law of contract formation and interpretation to the Diversion Agreement, consistent with other jurisdictions which treat pretrial diversion agreements as contracts. See, e.g., State v. Chamberlain , 280 Kan. 241, 120 P.3d 319, 323 (2005) ("Kansas courts have applied contract principles when interpreting diversion agreements."); State v. Dahl , 942 N.W.2d 838, 840 (N.D. 2020) (applying the law of contracts to a pretrial diversion agreement); In re D.R.R. , 322 S.W.3d 771, 773 (Tx. Crim. App. 2010) (recognizing that when a prosecutor and a defendant enter into a pretrial agreement, they become operative parties to a contract). Inasmuch as resolution of Barton's claims entails our review of the trial court's interpretation of the Diversion Agreement, that is a matter which we undertake de novo. Lake Imaging, LLC v. Franciscan Alliance , Inc., 182 N.E.3d 203, 206 (Ind. 2022).
[16] Barton's Diversion Agreement provided that "Defendant admits to the crimes" of two counts of non-support of a dependent child (the Guilt Provision) and that he "acknowledges this filed document may be used in Court against" him (the Admissibility Provision). (Exh. 12). Barton contends that he did not enter into the Diversion Agreement voluntarily because the Admissibility Provision was too ambiguous for him to know that he had agreed to the admissibility of the Guilt Provision and because the State's requirement that he admit to the charges rendered the Diversion Agreement involuntary. We address each of these contentions in turn.
[17] When faced with a dispute about the meaning of a contract provision, courts are required to give a contract's clear and unambiguous language its ordinary meaning, courts may not construe clear and unambiguous provisions, and courts may not add provisions not agreed upon by the parties. Id. at 211. A term or phrase is not ambiguous solely because the parties disagree about its meaning; rather, a word or phrase is ambiguous if reasonable people could differ as to its meaning. New Hampshire Ins. Co. v. Ind. Automobile Ins. Plan , 176 N.E.3d 514, 522 (Ind. Ct. App. 2021), trans. denied. The overarching goal of contract interpretation is to determine the intent of the parties when they made the agreement. Id.
[18] Barton contends that the Admissibility Provision is "ambiguous as to whether Barton agreed to the admissibility of the [D]iversion [A]greement in his criminal jury trial" and that, therefore, it must be construed against the party who prepared the document, who he contends was the State. (Appellant's Br. p. 18). Barton's claim of ambiguity rests on his theories that (1) he only acknowledged that the Diversion Agreement may be used against him in court, he did not agree to its admissibility; (2) that the Diversion Agreement only provided that it "may" be used against him, but did not foreclose the possibility that it would not be used against him; and (3) that the use of the term "Court" could be reasonably interpreted as some form of judicial proceeding other than a trial on guilt. As a result, Barton argues that a reasonable person could have interpreted the Diversion Agreement as preserving his ability to seek preclusion of the Diversion Agreement and his admissions from the evidence at a trial on his guilt.
[19] We do not find these arguments persuasive because Barton has not identified any true ambiguity in the Admissibility Provision. As to Barton's contention that he merely acknowledged, but did not agree, that the Diversion Agreement could be used against him in court, he overlooks that in the first line of the Diversion Agreement provided that the State and "Defendant agree, pursuant to Indiana Code [section] 33-14-17 as follows:" and that the Admissibility Provision followed. (Exh. 12). Therefore, we do not find that the use of the word "acknowledges" in the Admissibility Provision rendered that provision ambiguous. In addition, the word ‘may’ means "[t]o be permitted" or "[t]o be a possibility". Black's Law Dictionary (11th ed. 2019). The word ‘court’ is defined as a "place where justice is judicially administered" or a "tribunal constituted to administer justice". Black's Law Dictionary (11th ed. 2019). Putting these words together, we find the phrase in the Diversion Agreement "may be used in Court" to be broad, not ambiguous, and we conclude that the clear intent of the parties in entering into this provision, as manifested by its unambiguous language, was that Barton agreed that if he failed to successfully complete the terms of the Agreement, the Diversion Agreement could be used for any purpose in a proceeding in court, which would include being admitted into evidence at a trial to determine his guilt in a criminal proceeding. We cannot read into the Diversion Agreement Barton's proposed limitation. See Lake Imaging , 182 N.E.3d at 211 (observing that we may not "add provisions not agreed upon by the parties"). Accordingly, we reject Barton's contention that a reasonable person could have understood the Admissibility Provision to mean that he had preserved his right to seek exclusion of the Diversion Agreement from the evidence.
[20] We also decline to credit Barton's argument that the State's requirement that he admit to the charges rendered the Diversion Agreement involuntary, which is essentially an argument that he executed the Diversion Agreement under duress. "[W]hen a party claims he executed a contract under duress, the ultimate fact to be determined is whether or not the purported victim was deprived of the free exercise of his own will." J.W. v. State , 113 N.E.3d 1202, 1207 (Ind. 2019) (internal quote omitted). Here, Barton did not seek a hearing on the voluntariness of his execution of the Diversion Agreement, and there is simply no evidence before us that the requirement that Barton admit to the two counts of non-support deprived him of the exercise of his free will. Rather, the evidence before us is that at the February 5, 2019, hearing on the Diversion Agreement, Barton, who was represented by counsel, acknowledged that he had read and signed the Diversion Agreement. When given the opportunity by the trial court, Barton did not ask any questions or assert the need for more time to consult with his counsel before filing the Diversion Agreement, despite the fact that our review of the record indicated that he spoke readily and unprompted about other subjects during the hearing.
[21] We also agree with the State that Barton's assertion that requiring an admission of guilt renders the Diversion Agreement involuntary as a matter of law is not supported by Bell v. State , 622 N.E.2d 450 (Ind. 1993), overruled on other grounds by Jaramillo v. State , 823 N.E.2d 1187 (Ind. 2005). That case involved the admission at trial of Bell's confession made as part of guilty plea negotiations that fell through. Id. at 452. In holding that the confession was inadmissible, our supreme court relied upon statutory authority barring the admission into evidence of failed plea agreements and of communications concerning plea agreements. Id. The Bell court also cited the Fifth Amendment's privilege against self-incrimination and held that Bell's "statement to the prosecutor, when made, was the result of direct or implied promises by the prosecutor. It is involuntary and inadmissible." Id. at 453. However, Bell did not hold that all plea agreements are involuntary as a matter of law due to the fact that a prosecutor has offered leniency in exchange for a plea, nor did it hold that any waiver on the admissibility of statements made during plea negotiations is invalid. Indeed, in United States v. Mezzanatto , 513 U.S. 196, 115 S.Ct. 797, 130 L.E.2d 697 (1995), the United States Supreme Court held that Mezzanatto's verbal agreement to allow the Government to use statements he made during plea discussions for impeachment purposes if the case went to trial, a use that is expressly prohibited by the Federal Rules of Evidence, was valid, absent any "affirmative indication that the agreement [waiving the use] was entered into unknowingly or involuntarily[.]" Mezzanatto , 513 U.S. at 210, 115 S.Ct. 797. In rejecting Mezzanatto's argument that his waiver was invalid because it was essentially a contract of adhesion, the Court reasoned that the government may properly offer benefits in exchange for a plea, but that a case-by-case inquiry must be made as to "whether waiver agreements are the product of fraud or coercion." Id. Here, as we have already noted above, there is no evidence before us of any fraud or coercion inducing Barton's entry into the Diversion Agreement containing the Admissibility Provision. As a result, we conclude that when Barton executed the Diversion Agreement, Barton waived any objection to the admissibility of his Diversion Agreement, including his admission to the offenses, and that the trial court did not abuse its discretion in admitting the Diversion Agreement as Exhibit 12.
Barton further contends that the State lacked statutory authority to require him to admit to the offenses as a condition of his Diversion Agreement. We observe that Barton did not raise this argument below, and, therefore, it is waived. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013) ("Declining to review an issue not properly preserved for review is essentially a cardinal princip[le] of sound judicial administration." (internal quote omitted)).
B. Rule 403
[22] Barton argues that, even if he validly agreed to the admissibility of Exhibit 12, the trial court still erred in admitting that evidence in contravention of Indiana Evidence Rule 403, which provides as follows:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
As we have observed, "[a]ll relevant evidence is inherently prejudicial to a defendant." Schnitzmeyer v. State , 168 N.E.3d 1041, 1045 (Ind. Ct. App. 2021). The bar for unfair prejudice, rather than mere prejudice, is high. Id. Courts "err on the side of admissibility and consider whether there is risk that a jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury." Id. (quotation omitted).
[23] Barton claims that the admission of Exhibit 12 was barred by Rule 403 because, prior to entering into the Diversion Agreement, he was not provided a colloquy "to ensure he understood the implications of admitting that he committed the charged crimes." (Appellant's Br. p. 23). As a result, Barton argues that his admissions had low probative value and were inherently unreliable. However, we do not find this argument to be persuasive, as Barton's understanding of the implications of his admissions is a distinct and different issue from the accuracy and veracity of those admissions as would affect their probative value. [24] Next, Barton argues that the probative value of Exhibit 12 was outweighed by the danger of unfair prejudice because the jury was informed that he had failed to meet the terms of his Diversion Agreement, which gave the jury an unfavorable impression of him, and because it confused the issues before the jury because a jury of lay people would not understand how Barton could assert his inability to pay defense after admitting to the offenses in the Diversion Agreement. However, the trial court admonished the jury not to speculate as to the reasons why the Diversion Agreement had been terminated, and the trial court issued preliminary and final instructions to the jury regarding Barton's affirmative defense of inability to pay. A jury is presumed to have followed the trial court's instructions. Doroszko v. State , 154 N.E.3d 874, 877 (Ind. Ct. App. 2020), trans. denied. Barton does not adequately explain how the trial court's admonishment and instructions to the jury did not cure any danger of unfair prejudice flowing to him. We find no abuse of discretion in the trial court's admission of Exhibit 12.
III. Harmless Error
[25] Although we have concluded that the trial court did not err in admitting Exhibit 12, we conclude that, even if the trial court had erred in admitting the challenged evidence, we would not reverse Barton's convictions. As we have already observed, we will not reverse a conviction unless the trial court's error affected a party's substantial rights. Hall , 177 N.E.3d at 1193. "In determining whether an evidentiary ruling has affected a defendant's substantial rights, we assess the probable impact of the evidence on the factfinder." Cutshall v. State , 166 N.E.3d 373, 378 (Ind. Ct. App. 2021).
[26] At trial, the State presented the testimony of Barton's employers, Barton's child support payment records, and Barton's pay records, all of which showed that he did not make his child support payments as required and that he ceased working at several jobs when an income withholding order was imminent or was applied. The child support prosecutor testified that she told Barton that, if his support obligation was not deducted from his pay, it was his responsibility to pay the support himself directly, something that Barton acknowledged at trial that he knew. In light of this evidence, Barton had no real challenge to the State's case-in-chief, and that would have been true even if Exhibit 12 had not been admitted. In contrast, Barton's evidence on his affirmative defense of inability to pay, which rested mainly on his theory that his health prohibited him from working, was supported by vague allusions to undiagnosed health issues and his admitted alcoholism.
[27] Our examination of the record also revealed that Exhibit 12 did not play a large role in the State's case. The Deputy Prosecutor mentioned it once in his opening statements and did not mention the Diversion Agreement at all in closing or rebuttal. The State did not have Exhibit 12 admitted through a sponsoring witness, and the jury was provided with an admonishment limiting their consideration of Exhibit 12. The jury was instructed on Barton's defense of inability to pay, and Barton's counsel informed the jury that the Diversion Agreement was not conclusive as to Barton's guilt. In light of strength of the State's case, the relative weakness of Barton's affirmative defense, the limited use of Exhibit 12 at trial, the arguments of the parties, and the trial court's instructions to the jury, we conclude that even if the Diversion Agreement was improperly admitted, its impact on the jury was so minimal as to not require reversal.
CONCLUSION
[28] Based on the foregoing, we conclude that the trial court did not abuse its discretion in admitting Barton's Diversion Agreement as Exhibit 12, and that, if it had, any resulting error was harmless.
[29] Affirmed.
[30] May, J. and Tavitas, J. concur