FILED Oct 26 2023, 8:35 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell W. Brown, Jr. Theodore E. Rokita The Region Lawyers, Inc. Attorney General of Indiana Merrillville, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Cobb, October 26, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2085 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Salvador Vasquez, Judge Trial Court Cause No. 45G01-2109-F4-168
Opinion by Judge Foley Chief Judge Altice and Judge May concur.
Foley, Judge.
[1] A jury convicted Anthony Cobb (“Cobb”) of three offenses stemming from a
traffic stop and a warrantless vehicle search: (1) Class C misdemeanor operating
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 1 of 27 a vehicle while intoxicated, 1 (2) Class A misdemeanor resisting law
enforcement, 2 and (3) Level 4 felony unlawful possession of a firearm by a
serious violent felon. 3 Cobb appeals, presenting the following restated issues:
I. Whether the United States Constitution and Article 1, Section 11 of the Indiana Constitution prohibited admitting evidence from a warrantless vehicle search;
II. Whether the trial court abused its discretion in admitting two recorded phone calls;
III. Whether, by failing to ensure that Defendant’s Exhibit 4 was transmitted on appeal, Cobb waived his claim that the trial court erred in excluding this exhibit; and
IV. Whether the trial court abused its discretion in declining to give the “reasonable theory of innocence” jury instruction.
[2] We affirm.
Facts and Procedural History [3] On September 13, 2021, the State brought several charges against Cobb. As
amended, the information alleged that Cobb committed Class C misdemeanor
operating a vehicle while intoxicated, Class A misdemeanor resisting law
1 Ind. Code § 9-30-5-2(a). 2 I.C. § 35-44.1-3-1(a)(1). 3 I.C. § 35-47-4-5(c).
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 2 of 27 enforcement, and Level 4 felony unlawful possession of a firearm by a serious
violent felon. The charges stemmed from a traffic stop that led to a warrantless
search of a vehicle Cobb had been driving, with the search revealing a firearm
under the driver’s seat. Ahead of a jury trial, Cobb moved to suppress evidence
from the search, alleging that the search was unconstitutional under both the
state and federal constitutions. Following a hearing, the trial court denied the
motion to suppress. Cobb did not pursue an interlocutory appeal, and the case
proceeded to a bifurcated jury trial held on July 5, 2022, and July 6, 2022.
[4] During the first phase of the jury trial, there was evidence that, around 3:30
a.m. on September 12, 2021, Officer George Fields Jr. of the Lake Station
Police Department (“Officer Fields”) was on patrol when his vehicle’s radar
system clocked a vehicle speeding. Officer Fields began following the vehicle,
and saw the vehicle cross the center line three or four times. Officer Fields then
initiated a traffic stop, and the vehicle pulled over to the shoulder of the road.
[5] As Officer Fields walked up to the passenger side of the vehicle, he smelled the
odor of alcohol emanating from the vehicle. He also saw an open bottle of
tequila on the “passenger seat floorboard.” Tr. Vol. IV p. 21. Cobb—the
driver—was the only person in the vehicle. Officer Fields smelled alcohol on
Cobb’s breath, and he noticed the odor of alcohol emanating from Cobb’s
person. Officer Fields also noticed that Cobb’s speech was slurred, his eyes
were “glossy,” and his face was flushed. Id. at 23. Officer Fields called for a
backup officer. While waiting for the officer to arrive, Officer Fields directed
Cobb to keep his hands on the steering wheel. However, Cobb did not comply.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 3 of 27 At first, Cobb was “[j]ust not showing his hands[.]” Id. at 25. Once Cobb
showed his hands, he “kept moving them around” and “became fidgety.” Id.
Officer Fields thought Cobb was “showing signs of nervousness,” which
concerned Officer Fields. Id.
[6] Before long, Officer David Wright of the Lake Station Police Department
(“Officer Wright”) arrived. At that point, Officer Fields asked Cobb to step out
of the vehicle. Cobb did not immediately do so, complying only after Officer
Fields asked “more than two or three times.” Id. When Cobb stepped out of
the vehicle, he “kept saying hold on, hold on[.]” Id. at 26. He reached into the
center console of the vehicle and retrieved a cellphone, telling Officer Fields: “I
got to record this.” Id. Cobb began recording the encounter on his cellphone.
[7] Officer Fields asked if Cobb “had been drinking that night,” and Cobb said he
had consumed “[a] few” or “a couple” of alcoholic beverages. Id. Officer
Fields then asked Cobb to perform field sobriety tests. Cobb refused, saying:
“[I]f it’s going to put me in jail, I’m not going to do it.” Id. at 28. Officer Fields
also asked Cobb to take a portable breath test, and Cobb refused. Officer Fields
then handcuffed Cobb, arresting him for operating while intoxicated. At that
point, Officer Fields stood near Cobb with his hand on Cobb’s wrists.
[8] Because Cobb was arrested, and there was “nobody else . . . in the vehicle to
take possession of it,” Officer Wright called for a tow truck. Id. at 29. Officer
Wright then opened the driver’s door of the vehicle to “perform an inventory
and search incident to arrest search on the vehicle.” Id. at 93. As soon as
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 4 of 27 Officer Wright opened the door, Cobb “began to start pulling away” from
Officer Fields. Id. at 30. Cobb managed to break free from Officer Fields’s
grip. When Cobb broke free, he lunged in the direction of the driver’s door.
Officer Fields regained control over Cobb and instructed him several times to
stop pulling away. Cobb continued to pull away. To maintain control over
Cobb, Officer Fields had to “physically bend [Cobb] over the hood of the
car . . . so he could not move.” Id. at 35. Officer Wright came to the front of
the vehicle to help restrain Cobb, who was flailing his arms, shoulders, and legs
“as much as he could,” to the point that the officers “knew keeping [Cobb] on
the front of the vehicle was not the safe option.” Id. at 111. The two officers
“took [Cobb] to the grassy area next to the vehicle” and held Cobb on the
ground. Id. at 94. Officer Wright called dispatch to request backup. When
backup arrived, Cobb was moved into a police vehicle while Officer Wright
observed him nearby.
[9] Officer Fields then “conducted his inventory and search incident to arrest”
search of the vehicle Cobb had been driving. Id. at 95. Officer Fields testified
that he found a firearm under the driver’s seat of the vehicle. He testified that
the firearm was loaded and positioned so that the driver “could just reach down
and grab it if need be,” with “the handle of the gun . . . kind of flush with the
driver’s seat[.]” Id. at 34. He added: “The barrel was pointed toward the back,
and the handle . . . was facing outward to where it was pretty easily able to be
grabbed.” Id. at 83. The vehicle Cobb was driving was registered to a person
named Yvonne Cobb (“Yvonne”), who had a valid permit to carry a firearm.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 5 of 27 The firearm seized from the vehicle was purchased by a male person other than
Cobb, and the firearm had not been reported stolen.
[10] At trial, Cobb timely objected to the admission of all evidence obtained from
the vehicle search, including the firearm seized during the search. Cobb also
moved to “[i]ncorporate the previous arguments” he had made when litigating
the pretrial motion to suppress. Id. at 31. The trial court said it would
incorporate the arguments. The court then overruled the objection. Cobb
asked the trial court to recognize a continuing objection, which it did. The
court then summarized its recent rulings, stating as follows: “Incorporated by
reference, a hearing conducted outside the jury’s presence, the objection is
noted. It will be [a] continuing objection consistent with the rules.” Id.
[11] The State sought to admit recordings of two phone calls Cobb made from jail
on June 29, 2023, the day after the trial court denied the motion to suppress,
and June 30, 2023. In each call, Cobb spoke with Yvonne.4
[12] Cobb objected to the admission of the recordings, asserting the evidence was
not relevant and unfairly prejudicial. The State responded that the evidence
was relevant and highly probative of Cobb’s consciousness of guilt, arguing that
“the gist” of the evidence was that Cobb told Yvonne: “[Y]ou need to come in
here and take responsibility for the gun that’s in your car.” Id. at 140. Cobb
4 On appeal, Cobb admits that the calls were “between [him] and Yvonne[.]” Appellant’s Br. p. 9. At one point, Cobb asserts that Yvonne is his sister. See id. at 8.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 6 of 27 argued that the recorded statements were not as “explicit” as the State
represented, with the State “trying to interpret and make that argument [as to]
what [Cobb] [wa]s talking about[.]” Id. at 141. Although the State agreed that
the recorded statements were “not explicit,” the State claimed that “the whole
call” indicates that Cobb wanted Yvonne to take responsibility for the firearm.
Id. As to relevance, Cobb contended that the recordings “would be relevant if
[Yvonne] were to come in and testify to show her motive, her bias of the reason
why she’s testifying[.]” Id. at 139. However, Cobb asserted that Yvonne would
not be testifying.
[13] Before making its evidentiary ruling, the trial court listened to each recording.
The court ultimately admitted the recordings over Cobb’s objection, noting:
[I]f he’s making comments about having a witness come in his case and making . . . even these generalities, I think that’s sufficient and it really goes more to the weight that the jury would give it and not the admissibility. I think this information is relevant. I think it’s certainly probative [of] the defendant’s state of mind.
Id. at 145. As to whether the evidence was unfairly prejudicial, the trial court
decided that “the prejudice is not so substantial that it should keep the
information out” under Indiana Evidence Rule 403. Id. at 146.
[14] After the State rested, Cobb called Officer Fields as a witness. At one point,
Cobb moved to introduce Defendant’s Exhibit 4, which consisted of a video
clip assembled from Cobb’s cellphone recording of the traffic stop. The State
objected, alleging that the video clip contained inadmissible hearsay. During an Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 7 of 27 ensuing sidebar discussion, Cobb asserted that the evidence was not being used
for the truth of the matter asserted, but to prove that Cobb did not have slurred
speech. The State again argued the evidence contained inadmissible hearsay.
The State also argued: “We are just getting this certain section they want to
play.” Id. at 179. The State expressed concern that the video footage contained
in Defendant’s Exhibit 4 “could have been cherrypicked out and chosen for
today,” and asserted the State was also objecting on that basis. Id. at 180.
[15] The trial court concluded that the clip contained inadmissible hearsay and
sustained the State’s objection. After further discussion, Cobb asked the trial
court “to allow Defendant’s Exhibit 4 . . . for an offer of proof,” and the trial
court agreed to retain the proffered exhibit for that purpose. Id. at 186.
[16] Once the defense rested, the trial court addressed final jury instructions. Cobb
said he “would re-tender and re-request the burden of proof instruction,”
seeking an instruction containing language “that the evidence must be so
convincing to overcome every reasonable theory of innocence.” Id. at 193.
According to Cobb, this instruction was proper under the circumstances
because the State had a “purely . . . circumstantial case” for the count of
operating a vehicle while intoxicated and the firearm-related count. Id. Cobb
“concede[d] that there [was] direct evidence” for the count of resisting law
enforcement. Id. The trial court ultimately declined to give the instruction,
reasoning that, because there was direct evidence as to at least one of the
charges, “[i]t is clearly a mix,” and the instruction was improper. Id. at 196.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 8 of 27 [17] After the initial phase, the jury determined that Cobb was guilty of Class A
misdemeanor resisting law enforcement and Class C misdemeanor operating a
vehicle while intoxicated, and that Cobb had possessed a firearm. The jury trial
proceeded to the next phase, and the jury returned a guilty verdict for Level 4
felony unlawful possession of a firearm by a serious violent felon. The trial
court later held a sentencing hearing, imposing concurrent sentences for an
aggregate term of five years in the Department of Correction. Cobb appeals.
Discussion and Decision I. Evidence from the Warrantless Vehicle Search [18] On appeal, Cobb presents several evidentiary challenges, among them, a
challenge to the trial court’s decision to admit evidence stemming from the
search of the vehicle, including the firearm seized during the search. According
to Cobb, the search violated the Fourth Amendment to the United States
Constitution and Article 1, Section 11 of the Indiana Constitution.
[19] In general, a trial court has “broad discretion to admit or exclude evidence[.]”
Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). Whenever the trial court
makes an evidentiary ruling, the court generally considers “the foundational
evidence presented at trial.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
However, “[i]n ruling on admissibility following the denial of a motion to
suppress,” the trial court “also considers the evidence from the suppression
hearing that is favorable to the defendant”—but the trial court considers this
additional evidence “only to the extent it is uncontradicted at trial.” Id. Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 9 of 27 [20] Our role is not to reweigh the evidence presented to the trial court. See id.
Rather, “[b]ecause the trial court is best able to weigh the evidence and assess
witness credibility, we review its rulings on admissibility for abuse of
discretion,” reversing “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.’”
Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)). However, to the
extent the trial court’s evidentiary ruling turns on the constitutionality of a
search or seizure, “the ultimate determination of the constitutionality of a
search or seizure is a question of law that we consider de novo.” Id.
A. Fourth Amendment
[21] The Fourth Amendment generally requires that law enforcement obtain a
warrant before conducting a search or seizure, specifying that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated[.]” This text “makes
clear” that the ultimate touchstone of the Fourth Amendment is
reasonableness. Lange v. California, 141 S. Ct. 2011, 2017 (2021) (citing Brigham
City v. Stuart, 547 U.S. 398, 403 (2006)). As the United States Supreme Court
has explained, warrantless searches—i.e., “searches conducted outside the
judicial process, without prior approval by [a] judge or magistrate[—]are per se
unreasonable under the Fourth Amendment[.]” Arizona v. Gant, 556 U.S. 332,
338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). However,
there are “a few specifically established and well-delineated exceptions” to the
warrant requirement. Katz, 389 U.S. at 357. “Among the exceptions . . . is a
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 10 of 27 search incident to a lawful arrest.” Gant, 556 U.S. at 338. There is also an
exception for an inventory search of a vehicle conducted “pursuant to standard
police procedures[.]” South Dakota v. Opperman, 428 U.S. 364, 372 (1976).
[22] On appeal, Cobb argues that the firearm was seized pursuant to an invalid
inventory search. Although the State contends that the search satisfied this
exception, the State also examines whether the search was justified under a
different exception. In his Reply Brief, Cobb argues that, because the State
focused on the inventory exception at trial, principles of waiver preclude the
State from presenting an alternative appellate justification for the search. In so
arguing, Cobb acknowledges there is caselaw stating that an appellate court
may “uphold a correct legal ruling even if based upon incorrect or absent legal
reasoning below[.]” Reply Br. p. 7. However, he argues that the State
exclusively relied upon caselaw “applying the rules of evidence and not
evidentiary rulings based upon constitutional questions.” Id. According to
Cobb, because there was a constitutional dimension to the instant evidentiary
ruling, we should limit our analysis and focus only on the inventory exception.
[23] In affirming an evidentiary ruling—even a ruling involving a constitutional
question—this Court is not bound by any legal theory for admitting or
excluding the evidence. See Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002)
(affirming on different constitutional grounds the decision to admit evidence
from a search); Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App. 2012)
(same), trans. denied. Rather, “[a]s an appellate court, we may affirm a trial
court’s judgment on any theory supported by the evidence.” Ratliff, 770 N.E.2d
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 11 of 27 at 809. In other words, so long as the record provides a proper basis for the trial
court’s ruling, the ruling itself is not erroneous. See id. Thus, if there is a “legal
ground apparent in the record” that supports the evidentiary ruling, id., we may
discuss that legal ground without addressing any other potential ground, see id.
[24] In this case, we accept the State’s invitation to consider whether the warrantless
search satisfied an exception other than the inventory exception. We proceed
to examine whether the search satisfied the exception for a search incident to a
lawful arrest. This exception generally “authorizes police to search a vehicle
incident to a recent occupant’s arrest[.]” Gant, 556 U.S. at 343. The exception
applies in two scenarios: (1) “when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search,” id.,
and (2) “when it is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle,” id. at 335. As to this latter scenario, “[i]n many
cases, [such] as when a recent occupant is arrested for a traffic violation, there
will be no reasonable basis to believe the vehicle contains relevant evidence.”
Id. at 343. For example, when a defendant “was arrested for driving with a
suspended license, officers could not expect to find evidence of this crime in the
vehicle.” Meister v. State, 933 N.E.2d 875, 878 (Ind. 2010). However, under
certain circumstances, “the offense of arrest will supply a basis for searching the
passenger compartment of an arrestee’s vehicle and any containers therein.”
Gant, 556 U.S. at 344. The Indiana Supreme Court has explained that, in these
instances, the warrantless vehicle search is justified by law enforcement’s need
to preserve evidence. See State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind. 2010).
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 12 of 27 [25] When the United States Supreme Court articulated the scope of this exception,
the Court collected cases where it was reasonable for officers to believe that
evidence of the offense might be in the vehicle. See Gant, 556 U.S. at 344. One
such case was New York v. Belton, where a police officer conducted a warrantless
search of a vehicle after arresting the occupants for possession of marijuana.
453 U.S. 454, 456 (1981). Before conducting the search, the officer “had
smelled burnt mari[j]uana and had seen on the floor of the car an envelope
marked ‘Supergold’ that he associated with mari[j]uana.” Id. at 455–56.
[26] Similar to the circumstances in Belton, here, Officer Fields arrested Cobb for
operating a vehicle while intoxicated after (a) seeing Cobb weaving on the
roadway; (b) observing Cobb’s flushed face, glossy eyes, and slurred speech; (c)
smelling alcohol on Cobb’s breath; (d) noticing the odor of alcohol emanating
from Cobb’s person; and (e) seeing an open bottle of tequila on the passenger
side floorboard of the vehicle. Under these circumstances, it was reasonable to
believe that evidence of operating while intoxicated may be found under the
driver’s seat. We therefore conclude that the search was justified as a search
incident to arrest. See Gant, 556 U.S. at 335 (“[C]ircumstances unique to the
vehicle context . . . justify a search incident to a lawful arrest when it is
‘reasonable to believe evidence relevant to the crime of arrest might be found in
the vehicle.’” (quoting Thornton v. United States, 541 U.S. 615, 632 (2004)
(Scalia, J., concurring))); compare Meister, 933 N.E.2d at 878 (vehicle search was
not justified under this exception when the offense of arrest was driving with a
suspended license) with Belton, 453 U.S. at 456 (vehicle search was justified
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 13 of 27 when the offense of arrest was possession of marijuana, the officer smelled
marijuana, and the officer saw an envelope in the vehicle with writing on it
associated with marijuana (discussed with approval in Gant, 556 U.S. at 344)).
B. Article 1, Section 11
[27] Cobb also argues that evidence from the search was subject to exclusion
because the search violated Article 1, Section 11 of the Indiana Constitution.
[28] The language in Article 1, Section 11 of the Indiana Constitution is nearly
identical to the language in the Fourth Amendment, with both constitutional
provisions authorizing only reasonable searches. Compare Ind. Const. art. 1, §
11 with U.S. Const. amend. IV. However, we “interpret Article 1, Section 11
independently.” Hardin v. State, 148 N.E.3d 932, 942 (Ind. 2020). When we
determine whether a search was reasonable under Article 1, Section 11, we look
to “the totality of the circumstances,” applying the framework from Litchfield v.
State, 824 N.E.2d 356, 361 (Ind. 2005). Hardin, 148 N.E.3d at 942. As to that
framework, although a case could present “other relevant considerations,” the
reasonableness of a search generally turns on a balancing of “1) the degree of
concern, suspicion, or knowledge that a violation has occurred, 2) the degree of
intrusion the method of the search or seizure imposes on the citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Litchfield, 824 N.E.2d at
361. When weighing these factors—known as the Litchfield factors—we
consider “the full context in which the search . . . occurs.” Hardin, 148 N.E.3d
at 943. And we consider these factors whether or not there was a warrant. Id.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 14 of 27 [29] In challenging the constitutionality of his search under Article 1, Section 11,
Cobb directs us to his Fourth Amendment analysis and asserts that “the State
failed to present any evidence that Officers Fields’[s] search of [the] vehicle was
reasonable.” Appellant’s Br. p. 14. As to the Litchfield factors, Cobb contends
that (1) “[t]here was no evidence presented . . . that Officer Fields had any
degree of concern, suspicion or knowledge that a violation occurred”; (2)
“[t]here was no evidence presented to establish what, if any, law enforcement
needs Officer Fields was satisfying”; and (3) “Officer Fields’s actions
constituted a significant degree of intrusion of Mr. Cobb’s rights.” Id. Cobb
also seems to suggest that, at trial, the State failed to present any foundational
evidence supporting the constitutionality of the search. That is, he asserts that
the State presented foundational evidence at the hearing on the motion to
suppress, but this foundational evidence cannot be relied upon because “the
State never asked the trial court to incorporate the evidence previously
presented.” Id. at 15.
[30] Irrespective of evidence presented at the pre-trial hearing, by the time Cobb
objected to the admission of evidence from the search, the State had presented
trial testimony from Officer Fields setting forth why Officer Fields conducted
the traffic stop (he observed speeding and weaving), what he observed as he
approached the vehicle (an odor of alcohol and an open bottle of tequila in the
passenger compartment), and what he observed while interacting with Cobb (an
odor of alcohol on Cobb’s breath and other indicia of intoxication, including
Cobb’s flushed face and glossy eyes). By then, Officer Fields had also testified
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 15 of 27 that, before the vehicle search, he arrested Cobb for operating while intoxicated.
We therefore disagree with Cobb’s suggestion that, at trial, the State failed to
present any foundational evidence regarding the reasonableness of the search.
[31] Turning to the first Litchfield factor, in examining law enforcement’s degree of
concern, suspicion, or knowledge that a violation has occurred, “we consider all
‘the information available to them at the time’ of the search or seizure.” Hardin
v. State, 148 N.E.3d 932, 946 (Ind. 2020) (quoting Duran v. State, 930 N.E.2d 10,
18 (Ind. 2010)). Information supporting a vehicle search includes “very recent
information indicating that evidence of criminal activity would be in the
vehicle.” Id. at 944. In this case, there was evidence Officer Fields saw Cobb
driving the vehicle, noticed Cobb displaying signs of intoxication, smelled the
odor of alcohol emanating from Cobb, and observed an open bottle of liquor on
the floorboard of the passenger seat. Based on these observations, law
enforcement had an extremely high degree of suspicion that (1) Cobb operated
a vehicle while intoxicated and (2) evidence of this crime was inside the vehicle.
Moreover, because of Cobb’s conduct during the roadside encounter, law
enforcement had additional suspicion that the vehicle contained contraband.
That is, Cobb initially refused to exit the vehicle. Once Cobb was arrested and
Officer Wright opened the driver’s door to begin a search, Cobb broke free from
Officer Fields and lunged toward the driver’s door, seemingly trying to thwart
the search of the vehicle. Even after the two officers regained control over
Cobb, he continued to pull away from them, necessitating a call for backup.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 16 of 27 [32] Regarding the intrusiveness of the search, “we consider the degree of intrusion
from the defendant’s point of view.” Id. We also consider the extent to which
the search intruded into “both the citizen’s physical movements and the
citizen’s privacy.” Id. Generally, a vehicle search constitutes an “obvious
intrusion into [a person’s] privacy.” Id. at 946. Still, the degree of intrusion can
be “lessened by the way officers conducted the search.” Id. In other words,
“how officers conduct a search . . . matters.” Id. at 945 (emphasis removed).
[33] Here, the vehicle search did not intrude into Cobb’s freedom of movement
because Cobb was already in police custody. See id. at 946 (identifying no
intrusion into physical movements under similar circumstances). And although
the vehicle search constituted an intrusion of privacy, here—as in the Indiana
Supreme Court’s Hardin decision—the search “appears to have been no more
extensive than a visual inspection of the interior of the vehicle—something
someone might do to find a credit card or french fry dropped between a seat
and the center console.” Id. Indeed, it is not as though Cobb is arguing that
law enforcement “searched his vehicle in an egregious manner as could’ve been
the case if officers had torn apart his seats or ripped out his dashboard looking
for hidden compartments.” Id. Under these circumstances, we conclude that
the search resulted in a moderate degree of intrusion. See id. (concluding that
there was a moderate degree of intrusion under similar circumstances).
[34] As to the extent of law enforcement needs, we consider both (1) the general
needs of law enforcement and (2) the specific needs of the officers under the
circumstances of the search. Id. at 946–47. Put differently, “we look to the
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 17 of 27 needs of the officers to act in a general way”—e.g., to combat drunk driving—
and “we also look to the needs of the officers to act in the particular way and at
the particular time they did.” Id. In considering law enforcement needs in a
more specific way, “we take a practical approach and do not require officers to
undertake duplicative tasks.” Id. at 947 (giving the example of requiring officers
to obtain an independent warrant to test evidence they already lawfully seized).
[35] In this case, law enforcement needed to preserve evidence to help combat drunk
driving. Of course, because Cobb—the sole vehicle occupant—was in police
custody, there was not an especially high risk of someone driving off with the
evidence. Cf. Myers v. State, 839 N.E.2d 1146, 1153–54 (Ind. 2005) (upholding a
search of a vehicle based in part on elevated law enforcement needs when the
vehicle’s owner was not under arrest and might have driven the vehicle away).
Thus, under the circumstances at hand, law enforcement did not have a
considerable need to conduct a warrantless roadside search of the vehicle.
[36] Balancing the three Litchfield factors based on the totality of the circumstances,
we conclude that the vehicle search was reasonable—especially in light of the
extremely high degree of suspicion that evidence of a crime was in the vehicle.
II. Recorded Calls [37] Cobb argues that the trial court erred in admitting the recorded phone calls
because the evidence was not relevant and, even if the evidence was relevant,
the evidence was subject to exclusion because it was unfairly prejudicial.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 18 of 27 [38] As to relevance, Indiana Evidence Rule 402 provides that “[i]rrelevant evidence
is not admissible.” Moreover, under Rule 401, “[e]vidence is relevant if: (a) it
has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.”
[39] Here, the challenged evidence indicated that on June 29, 2022—the day after
the trial court denied Cobb’s motion to suppress—Cobb called Yvonne and the
two spoke about the ruling. Cobb said he “got the ruling on the gun yesterday”
and would soon be going to trial. State’s Ex. 4A at 1:05–1:22. Cobb said that
someone suggested to “holler at” Yvonne. Id. at 2:45–3:00. Cobb told Yvonne:
“I told him you had a lot going on, but I guess I’ll try.” Id. at 2:59–3:04.
[40] The challenged evidence also indicates that Cobb called Yvonne the next day.
At the beginning of the call, an automated message stated that the call was from
an inmate at Lake County Jail. State’s Ex. 4 at :02–:05. Cobb told Yvonne that
he was “going to be frank and very direct” and choose his words “correctly.”
Id. at :38–:48. Cobb said he spoke with his lawyer and “tried to have this
matter resolved differently,” but he “was unable to.” Id. at :50–1:12. Cobb
said: “This was the time I needed you.” Id. at 3:00–3:04. He also said: “I was
really done with goofy shit; I was done.” Id. at 5:02–5:07. Cobb went on to
say: “That’s your right. You decided to do what you want, but man, if there
was ever a time I needed you. . . . This is it. This is it.” Id. at 5:56–6:22.
[41] On appeal, Cobb asserts that his statements in the calls “were generalities” and
that at no point “did [he] ask Yvonne . . . to come and testify or ask her to take
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 19 of 27 responsibility of the firearm.” Appellant’s Br. p. 17. Cobb also argues that, to
the extent the State claimed the statements were relevant to Cobb’s “‘mental
state’ of how he is thinking and feeling,” “what [he] was thinking on June 29
and June 30, 2022, nearly ten months from the date of the incident, has . . . no
relevance on whether he knowingly or intentionally possessed a firearm.” Id.
[42] The State responds that the testimony was relevant because “[t]hese calls
supported an inference that Cobb was attempting to influence Yvonne’s
testimony, if she chose to testify.” Appellee’s Br. p. 26. For this proposition,
the State directs us to Grimes v. State, wherein the Indiana Supreme Court
stated: “Any testimony tending to show an accused’s attempt to conceal
implicating evidence or to manufacture exculpatory evidence may be
considered by the trier of fact as relevant[.]” 450 N.E.2d 512, 521 (Ind. 1983).
The Indiana Supreme Court explained that this type of evidence is relevant in a
criminal matter because the evidence “reveal[s] a consciousness of guilt.” Id.
[43] In his Reply Brief, Cobb cursorily states that “[t]he phone calls did not tend to
prove any material fact more or less probable[.]” Reply Br. p. 4. Yet, Cobb
makes no attempt to distinguish Grimes. See id. In light of the Indiana Supreme
Court’s analysis in Grimes, we conclude that the challenged evidence has at least
some tendency to indicate that Cobb was conscious of his guilt and trying to
manufacture exculpatory testimony. We therefore conclude that the trial court
did not abuse its discretion in determining that the recorded phone calls were
relevant. See Ind. Evidence Rule 401 (“Evidence is relevant if: (a) it has any
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 20 of 27 tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”).
[44] We turn to Cobb’s contention that, despite being relevant, the recorded phone
calls were subject to exclusion because the evidence was unfairly prejudicial.
Under Indiana Evidence Rule 403: “The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair
prejudice[.]” The risk of unfair prejudice relates to “the capacity of the
evidence to persuade by illegitimate means, or the tendency of the evidence to
suggest [making a] decision on an improper basis.” Hall v. State, 177 N.E.3d
1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d 215, 224 (Ind.
2009)). Because “all relevant evidence is ‘inherently prejudicial’ in a criminal
prosecution,” the weighing test under Evidence Rule 403 “boils down to a
balance of probative value against the likely unfair prejudicial impact . . . the
evidence may have on the jury.” Id. at 1194 (quoting Richmond v. State, 685
N.E.2d 54, 55–56 (Ind. 1997)). Furthermore, we afford our “[t]rial courts . . .
wide latitude in weighing probative value against the danger of unfair
prejudice.” Id. at 1193.
[45] As to the probative value of the evidence, as earlier noted, the challenged
evidence reasonably indicates that Cobb was conscious of his guilt and trying to
manufacture exculpatory testimony. Turning to the risk of unfair prejudice,
Cobb points out that, because of the evidence, the jury was aware Cobb had
been incarcerated. Yet, Cobb directs us to no caselaw regarding the risk of
prejudice arising from the jury’s awareness that the accused was at one point
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 21 of 27 incarcerated. Regarding prejudice, Cobb also asserts that the challenged
evidence contains his statement that he was “done with this goofy shit,” State’s
Ex. 4A at 5:02–5:07—a statement Cobb claims was unfairly prejudicial because
it “referred to [his] lifestyle,” Appellant’s Br. p. 17. However, we conclude that
the trial court was well within its discretion to regard this brief, vague statement
as presenting a relatively low risk of unfair prejudice under the circumstances.
[46] Ultimately, in light of a trial court’s wide latitude in weighing the probative
value of the proffered evidence against the danger of prejudice, we cannot say
the trial court erred in declining to exclude these phone calls under Rule 403.
III. Video Clip [47] Cobb argues that the trial court erred by excluding Defendant’s Exhibit 4, a
video clip that showed part of his roadside encounter with law enforcement.
Cobb claims that, despite the State’s hearsay objection, the evidence should
have been admitted because the evidence “was not offered for the truth of the
matter asserted[.]” Appellant’s Br. p. 18. Rather, Cobb claims that the
evidence was offered to help the jury “determine whether [his] speech was
slurred as Officer Fields had . . . described.” Id.
[48] Whenever the trial court’s evidentiary ruling excludes evidence, a party
preserves a challenge to that ruling only if the party “informs the court of [the]
substance [of the evidence] by an offer of proof, unless the substance was
apparent from the context.” Evid. R. 103(a)(2). Here, Cobb made an offer of
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 22 of 27 proof, and the court said it would retain Cobb’s exhibit for that purpose. Tr.
Vol. IV p. 186. Thus, Cobb preserved a claim of error at the trial court level.
[49] Despite properly preserving his claim of error before the trial court, Cobb failed
to ensure that a copy of Defendant’s Exhibit 4 was transmitted on appeal. As
this court recently noted, “it is the appellant’s burden to provide us with an
adequate record to permit meaningful appellate review.” Martinez v. State, 82
N.E.3d 261, 263 (Ind. Ct. App. 2017), trans. denied. Here, we acknowledge that
Cobb requested the trial exhibits in his Notice of Appeal. However, when the
exhibit volumes prepared for this appeal ultimately did not contain Defendant’s
Exhibit 4, it was Cobb’s obligation to seek supplementation of the record. See
id. (discussing the appellant’s burden to obtain the record, which—whenever
necessary—includes preparing a statement of evidence under Appellate Rule
31). And to the extent Cobb did not discover the omission of the exhibit until
his briefing deadline loomed, Cobb could have sought an extension of time. See
Ind. Appellate Rule 35(A) (“Any motion for an extension of time shall be filed
at least seven (7) days before the expiration of time unless the movant was not then
aware of the facts on which the motion is based.” (emphasis added)).
[50] Because Cobb failed to provide Defendant’s Exhibit 4 or otherwise address the
omission of this exhibit from the appellate exhibit volumes, we conclude that
Cobb waived his claim that the trial court erred in excluding the exhibit. See
Martinez, 82 N.E.3d at 263 (identifying appellate waiver due to a failure to
obtain part of the record “integral to our review of [the] arguments”).
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 23 of 27 IV. Proposed Jury Instruction [51] Cobb claims the trial court erred by failing to give his proposed “reasonable
theory of innocence” jury instruction regarding the burden of proof. According
to Cobb, the nature of the State’s evidence supported giving this instruction.
[52] “Trial courts generally enjoy considerable discretion when instructing a jury.”
Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020). When the appellant
claims the evidence supported giving a particular jury instruction, we generally
review the court’s decision for an abuse of discretion. Id.; see Hampton v. State,
961 N.E.2d 480, 490 (Ind. 2012). However, to the extent the decision turned
on a question of law, our review is de novo. See Humphrey, 151 N.E.3d at 1207.
[53] Here, Cobb asked the trial court to include the following jury instruction known
as the “reasonable theory of innocence” instruction: “In determining whether
the guilt of the accused is proven beyond a reasonable doubt, you should
require that the proof be so conclusive and sure as to exclude every reasonable
theory of innocence.” Ind. Pattern Crim. Jury Inst. 13.1000. This instruction is
proper only “[w]hen the trial court determines that the defendant’s conduct
required for the commission of a charged offense, the actus reus, is established
exclusively by circumstantial evidence[.]” Lewis v. State, 34 N.E.3d 240, 246
(Ind. 2015) (emphasis added) (quoting Hampton, 961 N.E.2d at 491).
[54] Circumstantial evidence is evidence “based on inference and not on personal
knowledge or observation.” Hampton, 961 N.E.2d at 489 (quoting Black’s Law
Dictionary 636 (9th ed. 2009)). In contrast, direct evidence is evidence “based
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 24 of 27 on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” Id. Put differently: “Direct evidence means
evidence that directly proves a fact, without an inference, and which in itself, if
true, conclusively establishes that fact. Circumstantial evidence means
evidence that proves a fact from which an inference of the existence of another
fact may be drawn.” Id. (quoting Gambill v. State, 675 N.E.2d 668, 675 (Ind.
1996)). For example, “footprints or fingerprints that place an accused at the
scene of a crime may be direct evidence of the accused’s presence at some point
in time but only circumstantial proof that the accused committed the charged
offense.” Id. at 489–90; see also id. at 490 n.8 (providing additional examples
and explanation, noting that “[t]he complexities of distinguishing direct from
circumstantial evidence have received considerable academic attention”).
[55] In arguing that the trial court erred in refusing to give the “reasonable theory of
innocence” instruction, Cobb focuses only on the firearm-related offense. As to
this offense, he claims the instruction was proper because the State proved the
actus reus—possession of the firearm—exclusively by circumstantial evidence.
[56] “‘[P]ossession’ . . . can be either actual or constructive.” Sargent v. State, 27
N.E.3d 729, 732–33 (Ind. 2015). “Actual possession occurs when a person has
direct physical control over the item.” Id. at 733. Constructive possession
occurs “when the person has (1) the capability to maintain dominion and
control over the item; and (2) the intent to maintain dominion and control over
it.” Id. (quoting Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)).
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 25 of 27 [57] Cobb asserts that the State pursued a theory that he constructively possessed the
firearm. He suggests that, whenever the State pursues a theory of constructive
possession, the State necessarily relies exclusively on circumstantial evidence to
prove possession. Yet, as the State points out on appeal, among the evidence of
Cobb’s constructive possession of the firearm was testimony from Officer Fields
about the location of the firearm in the vehicle Cobb was driving. That is,
Officer Fields testified that he saw the firearm positioned such that it was
“pretty easily able to be grabbed” from the driver’s seat. Tr. Vol. IV p. 83.
Officer Fields also testified that Cobb had occupied the driver’s seat, and there
were no other occupants in the vehicle. The testimony from Officer Fields was
direct evidence that Cobb had the capability to maintain dominion and control
over the firearm—a matter the State was trying to prove. See, e.g., Sargent, 27
N.E.3d at 733 (noting there are two types of possession and one occurs when a
person has the capability and the intent to maintain dominion and control over
an item). Thus, the State did not exclusively rely on circumstantial evidence in
proving that Cobb possessed the firearm.
[58] Because the State did not exclusively rely on circumstantial evidence to prove
the actus reus of the firearm-related offense, we cannot say the trial court
abused its discretion in declining to give the proposed jury instruction.
Conclusion [59] The trial court did not abuse its discretion in admitting evidence from the
warrantless search of Cobb’s vehicle, nor did the trial court abuse its discretion
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 26 of 27 in admitting the recorded phone calls. As to the exclusion of the video clip,
Cobb waived his appellate challenge by failing to ensure the proffered evidence
was transmitted on appeal. Finally, the trial court did not abuse its discretion in
declining to give the proposed “reasonable theory of innocence” jury instruction
when there was direct evidence to prove Cobb’s possession of the firearm.
[60] Affirmed.
Altice, C.J., and May, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-2085 | October 26, 2023 Page 27 of 27