Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be
FILED regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Jan 09 2012, 9:07 am collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT KNIERIM GREGORY F. ZOELLER Danville, Indiana Attorney General of Indiana
IAN MCLEAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DANIEL FOSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 53A01-1105-CR-222 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Marc Kellams, Judge Cause No. 53C02-1004-FA-362
January 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge Case Summary
Daniel Foster appeals the trial court’s denial of his motion to correct error, which
challenged his convictions for Class A felony attempted murder and three counts of Class
C felony criminal recklessness. We affirm.
Issue
Foster raises one issue, which we restate as whether the trial court properly denied
his motion to correct error regarding affidavits from two witnesses, who claimed that they
perjured themselves during their defense testimony.
Facts
On April 12, 2010, Rebecca Baugh was pregnant with Foster’s child. Baugh and
Foster had been arguing over Foster’s relationship with another woman. Foster’s sister,
Heather Foster, and his cousin, Wendy Campbell, were with Baugh and drove to Foster’s
residence. Campbell was driving the truck, Baugh was sitting in the middle, and Heather
was sitting on the passenger side. As they approached the driveway to Foster’s residence,
Foster stepped from behind a tree, raised a gun, and shot at the truck. The bullet hit the
windshield. Campbell decided to get out of the truck, but Baugh and Heather drove away
and called the police. When the police arrived, Baugh had pieces of glass in her ear and
on her clothing. Baugh and Heather told the police officers that Foster had shot at the
truck. Campbell refused to speak with the officers. The officers were unable to locate
the bullet, but a roofer working on a nearby house reported hearing a gunshot. During an
interview with police a few days later, Baugh claimed that Foster did not shoot at the
truck.
2 The State charged Foster with three counts of Class A felony attempted murder
and three counts of Class C felony criminal recklessness. Foster and Baugh resumed
their relationship and, during a bail hearing, Baugh testified that Foster did not shoot the
truck. Heather and Campbell also testified at the bail hearing that Foster did not shoot
the truck.
At Foster’s jury trial, Baugh testified that she lied to the police officers during the
second interview and that she lied at the bail hearing. Baugh testified that they decided to
claim that a rock damaged the windshield. They fabricated estimates from two
windshield repair businesses, including one from Thickstun Glass Company, and the
fabricated estimates claimed that the rock was still embedded in the windshield at the
time of the estimate. John Chester, a forensic scientist with the Indiana State Police
Laboratory, testified that the hole in the windshield was caused by a high-velocity, low-
mass impact and that microscopic traces of lead, which were consistent with a bullet,
were found in the hole. Another expert, John Larsen, also testified that the windshield
was damaged by a bullet. Heather and Campbell testified for Foster, claimed that a rock
damaged the windshield, and claimed that they obtained estimates for repairing the
windshield, which allegedly still had the rock stuck in it at the time of the estimates. On
rebuttal, the State called Thomas Thickstun, the owner of a company that allegedly gave
Foster an estimate to repair the windshield. Thickstun testified that his company did not
produce Foster’s estimate to repair the windshield.
The jury found Foster guilty of Class A felony attempted murder of Baugh and all
three counts of Class C felony criminal recklessness. The jury found Foster not guilty of
3 the attempted murder of Heather and Campbell. After Foster’s March 2011 sentencing,
he filed a motion to correct error based on allegedly newly discovered evidence. Foster
submitted affidavits from Heather and Campbell.1 In her affidavit, Heather claimed that
she lied in her testimony at the trial, that Foster did shoot at the truck but that Heather,
Campbell, and Baugh were inside of the house at the time, and that she fabricated the
windshield estimates. In her affidavit, Campbell claimed that Foster probably did shoot
at the truck but that Heather, Campbell, and Baugh were inside of the house at the time
and that she lied about a rock hitting the windshield. The trial court denied Foster’s
motion to correct error. Foster now appeals.
Analysis
Foster claims that the trial court improperly denied his motion to correct error
regarding affidavits from Heather and Campbell, who claimed that they perjured
themselves during their defense testimony. “The denial of a motion predicated on newly
discovered evidence is a discretionary ruling and is reviewed deferentially.” Godby v.
State, 736 N.E.2d 252, 258 (Ind. 2000). We will reverse only for an abuse of discretion,
which exists if the judgment goes against the logic and effect of the facts or the trial court
has misinterpreted the law. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind. Ct. App.
2009), trans. denied.
A recantation or admission of perjury does not necessarily mandate the grant of a
new trial. Id. To obtain a new trial based on newly discovered evidence, a party must
1 Foster also claimed that Baugh had admitted to perjuring herself at the trial. However, Foster presented no evidence to support this claim. 4 establish that: (1) the evidence was not available at trial; (2) it is material and relevant;
(3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or
incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is
worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result. Godby, 736 N.E.2d at 258. The moving party has the burden
of showing that the newly discovered evidence meets all nine prerequisites for a new
trial. Id. “We must analyze these nine factors with care, as ‘the basis for newly
discovered evidence should be received with great caution and the alleged new evidence
carefully scrutinized.’” Martinez, 917 N.E.2d at 1247 (quoting Carter v. State, 738
N.E.2d 665, 671 (Ind. 2000)).
Although the basis for the trial court’s decision does not appear in the record, we
conclude that the trial court would have been within its discretion in deciding that the
allegedly newly discovered evidence was not worthy of credit. See Webster v. State, 699
N.E.2d 266, 269 (Ind. 1998). Neither Heather nor Campbell is a disinterested witness
here. Both Heather and Campbell have demonstrated their willingness to perjure
themselves to protect Foster. Heather initially told police that Foster shot the windshield
Free access — add to your briefcase to read the full text and ask questions with AI
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be
FILED regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Jan 09 2012, 9:07 am collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT KNIERIM GREGORY F. ZOELLER Danville, Indiana Attorney General of Indiana
IAN MCLEAN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DANIEL FOSTER, ) ) Appellant-Defendant, ) ) vs. ) No. 53A01-1105-CR-222 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Marc Kellams, Judge Cause No. 53C02-1004-FA-362
January 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge Case Summary
Daniel Foster appeals the trial court’s denial of his motion to correct error, which
challenged his convictions for Class A felony attempted murder and three counts of Class
C felony criminal recklessness. We affirm.
Issue
Foster raises one issue, which we restate as whether the trial court properly denied
his motion to correct error regarding affidavits from two witnesses, who claimed that they
perjured themselves during their defense testimony.
Facts
On April 12, 2010, Rebecca Baugh was pregnant with Foster’s child. Baugh and
Foster had been arguing over Foster’s relationship with another woman. Foster’s sister,
Heather Foster, and his cousin, Wendy Campbell, were with Baugh and drove to Foster’s
residence. Campbell was driving the truck, Baugh was sitting in the middle, and Heather
was sitting on the passenger side. As they approached the driveway to Foster’s residence,
Foster stepped from behind a tree, raised a gun, and shot at the truck. The bullet hit the
windshield. Campbell decided to get out of the truck, but Baugh and Heather drove away
and called the police. When the police arrived, Baugh had pieces of glass in her ear and
on her clothing. Baugh and Heather told the police officers that Foster had shot at the
truck. Campbell refused to speak with the officers. The officers were unable to locate
the bullet, but a roofer working on a nearby house reported hearing a gunshot. During an
interview with police a few days later, Baugh claimed that Foster did not shoot at the
truck.
2 The State charged Foster with three counts of Class A felony attempted murder
and three counts of Class C felony criminal recklessness. Foster and Baugh resumed
their relationship and, during a bail hearing, Baugh testified that Foster did not shoot the
truck. Heather and Campbell also testified at the bail hearing that Foster did not shoot
the truck.
At Foster’s jury trial, Baugh testified that she lied to the police officers during the
second interview and that she lied at the bail hearing. Baugh testified that they decided to
claim that a rock damaged the windshield. They fabricated estimates from two
windshield repair businesses, including one from Thickstun Glass Company, and the
fabricated estimates claimed that the rock was still embedded in the windshield at the
time of the estimate. John Chester, a forensic scientist with the Indiana State Police
Laboratory, testified that the hole in the windshield was caused by a high-velocity, low-
mass impact and that microscopic traces of lead, which were consistent with a bullet,
were found in the hole. Another expert, John Larsen, also testified that the windshield
was damaged by a bullet. Heather and Campbell testified for Foster, claimed that a rock
damaged the windshield, and claimed that they obtained estimates for repairing the
windshield, which allegedly still had the rock stuck in it at the time of the estimates. On
rebuttal, the State called Thomas Thickstun, the owner of a company that allegedly gave
Foster an estimate to repair the windshield. Thickstun testified that his company did not
produce Foster’s estimate to repair the windshield.
The jury found Foster guilty of Class A felony attempted murder of Baugh and all
three counts of Class C felony criminal recklessness. The jury found Foster not guilty of
3 the attempted murder of Heather and Campbell. After Foster’s March 2011 sentencing,
he filed a motion to correct error based on allegedly newly discovered evidence. Foster
submitted affidavits from Heather and Campbell.1 In her affidavit, Heather claimed that
she lied in her testimony at the trial, that Foster did shoot at the truck but that Heather,
Campbell, and Baugh were inside of the house at the time, and that she fabricated the
windshield estimates. In her affidavit, Campbell claimed that Foster probably did shoot
at the truck but that Heather, Campbell, and Baugh were inside of the house at the time
and that she lied about a rock hitting the windshield. The trial court denied Foster’s
motion to correct error. Foster now appeals.
Analysis
Foster claims that the trial court improperly denied his motion to correct error
regarding affidavits from Heather and Campbell, who claimed that they perjured
themselves during their defense testimony. “The denial of a motion predicated on newly
discovered evidence is a discretionary ruling and is reviewed deferentially.” Godby v.
State, 736 N.E.2d 252, 258 (Ind. 2000). We will reverse only for an abuse of discretion,
which exists if the judgment goes against the logic and effect of the facts or the trial court
has misinterpreted the law. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind. Ct. App.
2009), trans. denied.
A recantation or admission of perjury does not necessarily mandate the grant of a
new trial. Id. To obtain a new trial based on newly discovered evidence, a party must
1 Foster also claimed that Baugh had admitted to perjuring herself at the trial. However, Foster presented no evidence to support this claim. 4 establish that: (1) the evidence was not available at trial; (2) it is material and relevant;
(3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or
incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is
worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result. Godby, 736 N.E.2d at 258. The moving party has the burden
of showing that the newly discovered evidence meets all nine prerequisites for a new
trial. Id. “We must analyze these nine factors with care, as ‘the basis for newly
discovered evidence should be received with great caution and the alleged new evidence
carefully scrutinized.’” Martinez, 917 N.E.2d at 1247 (quoting Carter v. State, 738
N.E.2d 665, 671 (Ind. 2000)).
Although the basis for the trial court’s decision does not appear in the record, we
conclude that the trial court would have been within its discretion in deciding that the
allegedly newly discovered evidence was not worthy of credit. See Webster v. State, 699
N.E.2d 266, 269 (Ind. 1998). Neither Heather nor Campbell is a disinterested witness
here. Both Heather and Campbell have demonstrated their willingness to perjure
themselves to protect Foster. Heather initially told police that Foster shot the windshield
while they were in the vehicle, later testified that a rock damaged the windshield, and
now claims that Foster did shoot the windshield but they were not in the vehicle at the
time. Campbell testified that a rock damaged the windshield and now claims that Foster
did shoot the windshield but they were not in the vehicle at the time.
When their story that a rock damaged the windshield was completely discredited
at the trial, they came forward with this most recent story. However, Heather and
5 Campbell’s most recent story does not correspond with the evidence that police officers
responding to Heather and Baugh’s call immediately after the shooting found glass in
Baugh’s ear and on her clothing. Further, Heather and Campbell’s most recent
explanation conflicts with the testimony of Foster and Heather’s uncle, who testified that
he was working on a car outside Foster’s residence all afternoon and did not hear any
gunshots.
This issue turns on credibility of witnesses. The trial court observed Heather and
Campbell at trial, was presented with evidence at the trial of their possible perjury, and
was presented with their affidavits in connection with the motion to correct error. The
trial court would have been within its discretion to find the affidavits unworthy of credit.
Because it was Foster’s burden to establish all nine elements of the aforementioned test
and he has failed to carry that burden, the trial court did not err by denying his motion for
a new trial based on this evidence.
Conclusion
The trial court properly denied Foster’s motion to correct error. We affirm.
Affirmed.
KIRSCH, J., and BRADFORD, J., concur.