FILED May 29 2026, 9:22 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Devante Shakur Foster, Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff
May 29, 2026 Court of Appeals Case No. 25A-CR-325 Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2112-F3-38841
Opinion by Chief Judge Tavitas Judges Kenworthy and DeBoer concur.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 1 of 29 Tavitas, Chief Judge.
Case Summary [1] Following a three-day jury trial, Devante Foster was convicted of two counts of
armed robbery, Level 3 felonies; kidnapping, a Level 3 felony; criminal
confinement, a Level 3 felony; and theft, a Level 5 felony, arising from the
armed robberies of two armored vehicles on December 15 and 16, 2021. Foster
appeals. We affirm in part, reverse in part, and remand. 1
Issues [2] Foster raises four issues, 2 which we consolidate and restate as three dispositive
issues:
I. Whether the State’s remarks during closing argument constituted prosecutorial misconduct that resulted in fundamental error.
II. Whether the trial court violated Foster’s constitutional rights to present a defense and to confront his accuser by limiting his cross-examination of a witness.
1 We held oral argument in this matter on April 28, 2026, at the Indiana Historical Society. We thank the Indiana Historical Society for its hospitality and counsel for their presentations. 2 We need not address Foster’s sufficiency-of-the-evidence argument regarding the kidnapping conviction because we vacate that conviction on substantive double jeopardy grounds.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 2 of 29 III. Whether Foster’s convictions for theft, kidnapping, criminal confinement, and armed robbery violate the substantive bar to double jeopardy.
Facts [3] On December 15, 2021, Domonique Wilson and Tonya Stowers worked a two-
person route for Loomis Armored Services in Indianapolis, making stops at a
Kroger and a Dollar General. Wilson’s assignment at the Dollar General was
to service an ATM machine. After placing cash into the machine, Wilson
exited the store carrying an empty courier bag.
[4] As Wilson walked back toward the armored vehicle, two armed men exited a
white Chevrolet truck, which had positioned itself behind the Loomis vehicle.
The men wore ski masks and gloves, ran toward Wilson, and pointed handguns
at him. The two armed men grabbed Wilson’s empty courier bag. They then
seized Wilson by his hair, dragged him approximately ten feet to the rear of the
armored vehicle, and demanded entry into the vehicle. Stowers activated the
vehicle’s alarm, and the two men fled in the white truck. A third masked man
was spotted “peeking out from around that truck” and also fled the scene after
hearing the active alarm. Tr. Vol. V p. 100.
[5] Wilson told responding officers that the attackers were black males between five
feet ten inches and six feet tall. Wilson could not identify any of the
perpetrators’ faces because of the masks. The empty courier bag was later
recovered approximately one mile away.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 3 of 29 [6] On December 16, 2021, Troy Harper drove an armored truck for Brinks, Inc. to
AutoZone to complete a cash drop. As Harper returned to the armored vehicle,
two masked men exited a light red vehicle with no license plate and ran toward
him with drawn handguns. The men pointed guns at Harper, pulled him to the
back of the truck, and placed a gun in his face. The men took the key from
around Harper’s neck to access the vehicle. One of the men then forced Harper
into the back of the armored truck.
[7] The vehicle had been left in “branch mode,” a setting used when the truck is at
the Brinks facility that unlocks the safe compartments, rather than “route
mode,” which locks the compartments during deliveries. Tr. Vol. IV p. 4.
Because of this error, the men were able to open the safe compartment and
remove multiple pre-packaged bags of currency. They fled in the red car, which
was abandoned approximately one block away. Police later searched the car
and found a license plate inside the trunk registered to Erica Moore, 3 which
connected Darius Moore to the case. The total amount of currency taken was
$843,599; law enforcement later recovered $17,720, leaving a net loss to Brinks
of $825,879. Harper could not identify the perpetrators’ faces because they
wore ski masks.
3 The record does not identify Erica Moore beyond her status as the registered owner of the license plate recovered from the trunk of the abandoned red car. No witness testified as to her relationship to Darius Moore or her knowledge of or involvement in the robberies. She was not charged in connection with either incident.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 4 of 29 [8] In the days following the robberies, investigators observed in Kroger
surveillance footage, taken on December 15, the white Chevrolet truck from the
first robbery and a silver Mustang with a vanity license plate reading
“BREDWIN” traveling together. Although the silver Mustang was not
observed directly at the scenes of either robbery, investigators searched the
Flock 4 database and located images showing the Mustang traveling with the
white Chevrolet truck before and after the Loomis robbery on December 15 and
traveling with the red abandoned car before and after the Brinks robbery on
December 16. A search of Bureau of Motor Vehicles records confirmed that the
Mustang was registered to Christie S. Foster, Devante Foster’s mother.
[9] A police report from November 30, 2021, established that Foster was the driver
of the Mustang approximately two weeks before the Loomis robbery. The
physical descriptions provided by the victims matched Foster “in general.” Tr.
Vol. IV pp. 80, 87. Investigators began surveillance of multiple known
addresses associated with Foster and Lonnie McGill, 5 including an address on
Roseway Drive.
4 The Flock Safety license plate reader system (“Flock”) consists of stationary cameras positioned throughout a municipality that record vehicle movement at intersections. The system captures images of vehicles and their license plates and stores that data in a searchable database for thirty days. Law enforcement may search the database by date, time, location, vehicle make, model, and other identifying characteristics. Each image includes the camera’s location, the date, and a timestamp. 5 McGill, Foster’s maternal half-brother and co-defendant, was charged jointly with Foster for his participation in both the December 15 and December 16, 2021 robberies and was tried alongside Foster before the same jury.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 5 of 29 [10] On December 20, 2021, members of the IMPD SWAT team conducted a traffic
stop of Foster on Interstate 69 as he returned from Michigan. Foster was
driving a newly purchased Chevrolet Tahoe. The vehicle was searched
pursuant to a search warrant. Inside the Tahoe, investigators found a
cellphone; $36,760 in United States currency bundled with rubber bands and
hair ties in a backpack; three gaming monitors in retail boxes; a box for a laptop
computer; and purchase receipts from a Walmart in Coldwater, Michigan,
including one receipt for items valued at over $700, paid in cash. Most
significantly, the search yielded seven handwritten three-by-five index cards
bearing the following operational instructions: “Know your spot,” “Check for
cameras,” “Practice code,” “Have a burner,” “Do not use personal names,”
and “Do not move unless A or B say.” Tr. Vol. IV pp. 233-35. One of the
cards bore the word “AutoZone,” the location of the December 16 Brinks
robbery. Id. at 233.
[11] Later that same evening, investigators executed a search warrant at the
Roseway Drive house. Inside the residence, investigators found $7,000 in cash
inside a shoebox on a bed; a vase full of cash found in a third room; multiple
firearms, including an FNH pistol; a blue face mask consistent with the masks
worn by the robbery suspects; a handwritten receipt for the purchase of two
FNH pistols bearing McGill’s name; multiple cell phones in a box with Foster’s
driver’s license; and newly purchased merchandise with receipts totaling
approximately $2,000 to $3,000 from a mall in Columbus, Ohio.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 6 of 29 [12] The State eventually charged Foster, McGill, and Moore with six counts for the
two armed robberies. The State charged Foster as follows:
Count I, armed robbery, a Level 3 felony (I.C. 35-42-5-1(a)(2)): On or about December 15, 2021, [Foster] did knowingly or intentionally take property, a courier bag from Dominique Wilson and/or Loomis Armored Services, by putting Dominique Wilson in fear and while [Foster] was armed with a handgun, deadly weapon[.]
Count II, kidnapping, a Level 3 felony (I.C. 35-42-3-2(a) and I.C. 35-42-3-2(b)(3) (A)): On or about December 15, 2021, [Foster], while armed with a deadly weapon, to-wit: a handgun did knowingly remove Dominique Wilson by force or threat of force from one place, to-wit: the parking lot ground to another place, to-wit: the side of a truck[.]
Count III, criminal confinement, a Level 3 felony (I.C. 35-42- 3-3(a) and I.C. 35-42-3-3(b)(3) (A)): On or about December 15, 2021, [Foster] did knowingly confine Dominique Wilson without the consent of Dominique Wilson, said [Foster] being armed with a deadly weapon, to wit: a handgun[.]
Count IV, armed robbery, a Level 3 felony (I.C. 35-42-5- 1(a)(2)): On or about December 16, 2021, [Foster] did knowingly or intentionally take property, a handgun and/or U.S. Currency from Troy Harper and/or BRINKS, Inc., by putting Troy Harper in fear and while [Foster] was armed with a handgun, deadly weapon[.]
Count V, criminal confinement, a Level 3 felony (I.C. 35-42-3- 3(a) and I.C. 35-42-3-3(b)(3) (A)): On or about December 16, 2021, [Foster] did knowingly confine Troy Harper without the
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 7 of 29 consent of Troy Harper, said [Foster] being armed with a deadly weapon, to wit: a handgun[.]
Count VI, 6 theft, a Level 5 felony (I.C. 35-43-4-2(a) and I.C. 35-43-4-2(a)(2) (A)): On or about December 16, 2021, [Foster] did knowingly exert unauthorized control over the property of Brinks, Inc., to-wit: U.S. Currency; with the intent to deprive said person of any part of the use or value of the property, said property having a value in excess of fifty thousand dollars, to-wit: approximately $843,000.00.
Appellant’s App. Vol. II pp. 47-48.
[13] Moore pleaded guilty to armed robbery, a Level 3 felony, for his participation
in the December 16, 2021 robbery. In October 2024, the trial court conducted a
three-day jury trial of Foster and McGill, and Moore testified as a State’s
witness. During his testimony, the State asked Moore whether he admitted he
was involved in the armed robbery with Foster and McGill. Moore replied,
“[in] the plea’s factual basis, yes.” Tr. Vol. IV p. 248. The State then asked,
“And in that factual basis, you admitted that you aided Lonnie McGill and
Devante Foster in that robbery that took place on that day, and that is what you
are currently serving a sentence for; is that right?” and Moore replied “[y]es.”
Id. at 248-49.
6 In the charging information filed with the trial court, the State mistakenly labeled Count VI as Count VII. The State charged Foster with a total of six counts. See App. Vol. II p. 48.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 8 of 29 [14] On cross-examination, Foster’s counsel asked Moore: “Were you telling the
truth when you said that Mr. Foster and Mr. McGill helped you with the
robbery?” Id. at 249. Moore responded, “I can’t say.” Id. Foster’s counsel
followed up, “You can’t say whether or not you told the truth?” Moore
answered, “No.” Id. Foster’s counsel then asked Moore whether the plea
“minimized [his] punishment.” Id. Moore replied, “I didn’t sign a testifying
plea.” Id. When Foster’s counsel pressed Moore to clarify, yes or no, whether
Foster was involved, Moore responded, “I’ll perjure myself.” Id. at 250.
[15] The trial court intervened and cautioned Moore: “You may not perjure
yourself. So answer the questions that are asked of you.” Id. The State then
requested a bench conference. During that conference, the State expressed
concern that Moore appeared to believe his guilty plea had conferred immunity
from additional charges for any recantation at trial, which was incorrect; the
State explained, “That’s why I was worried before he keeps going.” Tr. Vol. V
p. 2. Foster’s counsel responded, “I don’t know how I can effectively represent
Mr. Foster. Does [Moore] need a lawyer?” Id. The trial court declined to
appoint counsel for Moore on the ground that Moore had not requested
representation and instructed Foster’s counsel: “He said he could not answer
you without perjuring himself. You need to ask a different question. You may
not elicit perjury from a witness.” Id.
[16] After the bench conference, Foster’s counsel abandoned the cross-examination
regarding Moore’s knowledge of Foster’s participation in the robbery. Foster’s
counsel asked Moore how much money he took in the robbery; Moore
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 9 of 29 answered, “I’m not for sure.” Id. Foster’s counsel then asked whether Moore
could share any other details about either the December 15 or December 16
robbery. Moore responded, “No.” Id.
[17] The State also presented the testimony of a cell site location data analyst who
analyzed call detail records for phones associated with Foster and McGill. On
December 15, 2021, Foster’s phone connected to a tower covering the Roseway
Drive address in the overnight hours before the Loomis robbery; received a call
from McGill at 9:35 a.m.; placed a call to Moore’s number eight minutes before
the robbery; and returned to the same tower and sector covering Roseway Drive
approximately twenty minutes after the robbery. On December 16, 2021,
Foster’s phone placed a call to Moore’s number at 5:51 a.m. from towers
covering the Roseway Drive area; connected to towers covering the AutoZone
corridor on East Washington Street in the period surrounding the 11:07 a.m.
Brinks robbery; and returned to the same Roseway Drive tower and sector
approximately twenty-five minutes after the robbery. The analyst also
presented animated video displays mapping the movement of both phones
through Indianapolis on both days.
[18] In closing argument, the State characterized Moore’s testimony as identifying
Foster as a participant in the robbery, and Foster did not object. In rebuttal, the
State made two additional statements at issue on appeal. First, addressing
defense counsel’s assertion that Foster was five feet six inches tall, the State
argued that Foster’s driver’s license listed his height as five feet eight inches and
stated that defense counsel’s earlier representation that Foster was five feet six
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 10 of 29 inches tall was “a lie.” Tr. Vol. V p. 113. Second, the State again asserted that
Moore testified that Foster was a participant in the robbery. Foster did not
object to either statement.
[19] On October 24, 2024, the jury found Foster guilty as charged. On January 16,
2025, the trial court held a sentencing hearing. At sentencing, the trial court sua
sponte vacated Foster’s conviction for Count III, criminal confinement, a Level
3 felony, arising from the confinement of Wilson on December 15, 2021,
finding that it “merge[d]” with the kidnapping conviction. Tr. Vol. V pp. 181,
197. The trial court entered judgments of conviction on the five remaining
counts and sentenced Foster to an aggregate of forty-six years, with thirty-six
years executed in the Indiana Department of Correction (“DOC”) and ten years
suspended to probation. 7 Foster now appeals.
7 The trial court sentenced Foster as follows:
Count Charge Sentence Consecutive To
I Armed robbery, a Level 3 Ten years felony Nine years executed at DOC; one year suspended to probation
II Kidnapping, a Level 3 felony Ten years Count I Fully executed at DOC
IV Armed robbery, a Level 3 Fifteen years Count II felony Twelve years executed at DOC; three years suspended to probation
V Criminal confinement, a Level Five years Count IV 3 felony Fully executed at DOC
VI Theft, a Level 5 felony Six years Count V Fully suspended to probation
Aggregate Forty-six years: thirty-six years executed at DOC; ten years suspended to probation Sentence
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 11 of 29 Discussion and Decision I. The State’s remarks during closing argument did not result in fundamental error.
[20] Foster argues that the State committed prosecutorial misconduct during closing
arguments in two respects: (1) the State told the jury that Foster’s counsel lied
about Foster’s height; and (2) the State mischaracterized Moore’s testimony by
telling the jury that Moore directly identified Foster as a participant in the
robberies.
[21] If a claim of prosecutorial misconduct is properly preserved for appeal, “we
determine ‘(1) whether misconduct occurred, and if so, (2) whether the
misconduct, under all of the circumstances, placed the defendant in a position
of grave peril to which he or she would not have been subjected otherwise.’”
Konkle v. State, 253 N.E.3d 1068 (Ind. 2025) (quoting Ryan v. State, 9 N.E.3d
663, 667 (Ind. 2014)). 8 “To preserve the misconduct claim for appeal, the
defendant must object at the time the alleged misconduct occurs.” Id. at 1077.
Foster did not object to these remarks at trial, which results in waiver of the
App. Vol. II pp. 39-42; Tr. Vol. V pp. 198-99. The trial court also ordered restitution of $776,000, joint and several with McGill. 8 Konkle abrogated Ryan and several other cases only to the extent that those cases held that, even if a timely objection was overruled, a claim of prosecutorial misconduct was waived unless the defendant also requested that the jury be admonished and moved for a mistrial. Konkle, 253 N.E.3d at 1080-82. Konkle held that only an objection is required to preserve a claim of prosecutorial misconduct and left undisturbed the other parts of the Ryan opinion and even cited it on other grounds.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 12 of 29 issue on appeal. See id. at 1081. Foster must, therefore, show that the alleged
prosecutorial misconduct constituted fundamental error.
[22] “Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to make a fair trial impossible.” Ryan, 9
N.E.3d at 668. The defendant must show that the alleged errors “(a) constitute
clearly blatant violations of basic and elementary principles of due process and
(b) present an undeniable and substantial potential for harm.” Id. Fundamental
error is meant to permit appellate courts a means to correct the most egregious
and blatant trial errors that otherwise would have been procedurally barred,
“not to provide a second bite at the apple for defense counsel who ignorantly,
carelessly, or strategically fail to preserve an error.” Id.
A. The Deputy Prosecutor’s misconduct does not amount to fundamental error.
[23] During rebuttal closing argument, the prosecutor made a comment regarding
Foster’s height and stated: “[Foster’s counsel] stood up and said [his] client is
5′6″. I’m going to draw your attention to Devante Foster’s driver’s license
wherein it lists him as 5′8″. So that was a lie.” Tr. Vol. V p. 113. Foster’s
counsel had earlier stated that Foster’s height was five feet six inches.
[24] Foster argues that the Indiana Rules of Professional Conduct require lawyers to
“demonstrate respect for the legal system and for those who serve it, including
judges, other lawyers, and public officials.” Appellant’s Br. p. 14. Foster also
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 13 of 29 argues that the statement exceeded what the Supreme Court condemned in
Splunge v. State, 641 N.E.2d 628, 630 (Ind. 1994). Foster further contends that
the statement about Foster’s height had no relevance to the question of Foster’s
participation in the robbery. The State conceded that Deputy Prosecutor,
Brandon Carothers, committed misconduct when he remarked that Foster’s
counsel had lied to the jury about Foster’s height. Appellee’s Br. p. 18. The
State contends, however, that the misconduct did not rise to the level of
fundamental error for two reasons. First, the evidence of Foster’s guilt was
substantial and independent of the remark. Second, any prejudice caused by
the remark was cured by the trial court’s instruction to the jury that statements
made by the Deputy Prosecutor are not evidence.
[25] Although the Deputy Prosecutor committed prosecutorial misconduct, this
isolated instance of misconduct does not constitute fundamental error. We
cannot say that the remark was so prejudicial to the rights of the defendant “as
to make a fair trial impossible.” Ryan, 9 N.E.3d at 668. The remark was made
during closing argument at the close of trial. Moreover, the trial court
instructed the jury that closing arguments are not evidence, and substantial
evidence supported the convictions. The remark, therefore, did not violate the
basic principles of due process or cause Foster substantial harm. Accordingly,
we find no fundamental error.
B. The State did not mischaracterize Moore’s testimony.
[26] In its closing argument, Deputy Prosecutor Stewart Wahle asserted that
“Darius Moore came in here and he told you [he] was the third man on that Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 14 of 29 day.” Tr. Vol. V pp. 102-03. In rebuttal, Deputy Prosecutor Wahle further
asserted: “It’s his testimony that it’s not a situation where it’s two other people.
It was him, and all of the evidence, all of the evidence that clearly points only to
them backs up what he is telling you. He’s the third co-conspirator. These are
the other two co-conspirators.” Id. at 117. Foster did not object to any
statements, which were based on Moore’s admission that he had “aided Lonnie
McGill and Devante Foster in that robbery that took place on that day, and that
is what [he is] currently serving a sentence for[.]” Tr. Vol. IV p. 248-49.
[27] Foster argues that Moore’s testimony did not concern the underlying facts of
the robbery because the State questioned Moore only about his guilty plea and
the factual basis he admitted to, not the events of the December 16 robbery
itself. Foster contends that the prosecutor’s closing argument, thus,
transformed Moore’s testimony about a guilty plea factual basis into direct
eyewitness testimony about the robbery. According to Foster, this is a material
distinction because direct testimony from a participant in the crime identifying
Foster as another participant would have been the only direct evidence of
Foster’s guilt.
[28] According to the State, Moore testified that he pleaded guilty to the December
16th armed robbery and, when he pleaded guilty, he admitted that he aided
Foster and McGill in committing that robbery. The State argues that, based on
this testimony and the other evidence presented at trial, Moore, Foster, and
McGill were the three men involved in the nearly identical armed robberies that
occurred on December 15 and 16, 2021. The State contends that the
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 15 of 29 prosecutor’s statements constituted a permissible discussion of the evidence and
reasonable inferences drawn therefrom.
[29] The question before us is whether the State’s characterization of Moore’s
testimony was a reasonable inference from the evidence admitted at trial or a
material misstatement of fact constituting prosecutorial misconduct. During
Moore’s testimony, the State asked, “And in that factual basis, you admitted
that you aided Lonnie McGill and Devante Foster in that robbery that took
place on that day, and that is what you are currently serving a sentence for; is
that right?” and Moore replied “[y]es.” Tr. Vol. IV p. 248-49. The substance
of Moore’s testimony clearly indicated that he admitted, under oath, that he
and Foster and McGill were involved in the December 16 robbery. We
conclude, therefore, that the State did not materially mischaracterize Moore’s
testimony and did not commit prosecutorial misconduct, let alone fundamental
error, by making the statements.
II. The trial court did not violate Foster’s constitutional rights to present a defense and to confront his accuser.
[30] Foster next argues that his constitutional rights to confront witnesses and to
present a defense under Article 1, Section 13 of the Indiana Constitution and
the Sixth and Fourteenth Amendments to the United States Constitution were
violated because the trial court prohibited the defense from asking Moore
further questions that might elicit perjury from Moore.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 16 of 29 [31] “Generally, ‘[t]rial courts have broad discretion to admit or exclude evidence,’
and we review for abuse of that discretion.” Combs v. State, 168 N.E.3d 985,
990 (Ind. 2021) (citing Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015)). We
will reverse only where the decision is clearly against the logic and effect of the
facts and circumstances and the error affects a party’s substantial rights. Clark v.
State, 994 N.E.2d 252, 259-60 (Ind. 2013). To the extent that the challenge
involves a constitutional question, our review is de novo. Hall v. State, 36 N.E.3d
459, 466 (Ind. 2015). We must first address the threshold issue of whether the
record establishes the existence of a constitutional question. See Borosh v. State,
336 N.E.2d 409, 413 (Ind. Ct. App. 1975) (“[W]hen a constitutionally
impermissible denial of cross-examination is asserted in a criminal cause before
this court, our first inquiry must be whether the record establishes the existence
of a constitutional issue.”).
[32] When a constitutional error occurs in restricting cross-examination, it does not
automatically warrant reversal, and we must determine whether the error was
harmless. McCarthy v. State, 749 N.E.2d 528, 534 (Ind. 2001). “The correct
inquiry is whether, assuming that the damaging potential of the cross-
examination were fully realized, a reviewing court might nonetheless say that
the error was harmless beyond a reasonable doubt.” Id. (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986)). “Whether the trial court’s error is
harmless depends on several factors, including: [t]he importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 17 of 29 the witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution’s case.” Id. at
535.
[33] At trial, the Deputy Prosecutor asked Moore: “And in that factual basis, you
admitted that you aided Lonnie McGill and Devante Foster in that robbery that
took place on that day, and that is what you are currently serving a sentence for;
is that right?” Tr. Vol. IV pp. 248-49. Moore replied, “[y]es.” Id. Later,
during cross-examination, Moore refused to answer clarifying questions
because he did not want to commit perjury. The trial court instructed Foster’s
counsel to not ask questions that would elicit perjury from Moore. Foster
argues that his defense was “based on identity, so the trial court’s decision to
prevent him from countering evidence . . . was a substantial impairment on his
right to present a defense.” Appellant’s Br. p. 20.
A. U.S. Constitution Sixth Amendment
[34] The Sixth Amendment’s Confrontation Clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI. “This right of confrontation is
made obligatory on the states by the Fourteenth Amendment.” State v. Owings,
622 N.E.2d 948, 950 (Ind. 1993). The Sixth Amendment has not “been
interpreted literally to guarantee a criminal defendant all rights of confrontation
at every trial for every witness.” Id. The right to confront witnesses and present
a defense “is subject to reasonable limitations placed at the discretion of the trial
judge.” McQuay v. State, 566 N.E.2d 542, 543 (Ind. 1991). Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 18 of 29 [35] Here, the trial court properly exercised its discretion in limiting Foster’s cross-
examination of Moore. The trial court allowed the State to question Moore
regarding his involvement in the December 16, 2021 robbery. During cross-
examination, Moore stated, “I’ll perjure myself,” when asked questions
regarding the factual basis he admitted to when pleading guilty. Tr. Vol. IV p.
250. The trial court then cautioned Moore against committing perjury and
instructed Foster’s counsel to ask a different question. The trial court only
intervened to prevent the knowing introduction of perjured testimony. Moore
admitted during direct examination that he pleaded guilty to the December 16
robbery. Thus, the practical effect of limiting Foster’s rights to confront Moore
was minimal.
[36] Moore’s testimony was, moreover, not the only evidence connecting Foster to
the robberies. The State presented substantial independent evidence linking
Foster to the crimes, including the getaway vehicle registered to Foster’s
mother, a large sum of cash recovered from Foster’s vehicle, and cell phone
data placing Foster near the robbery locations on both December 15 and
December 16, 2021. Even assuming that the trial court’s limitation of Foster’s
cross-examination of Moore constituted error, that error was harmless beyond a
reasonable doubt. See McCarthy, 749 N.E.2d at 535-36 (holding error harmless
where the prosecution’s case was otherwise strong, independent corroborating
evidence existed, and cross-examination of the witness had been thorough and
unlimited on all other matters). Thus, Foster’s Sixth Amendment rights were
not violated.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 19 of 29 B. Indiana Constitution Article 1, Section 13
[37] Article 1, Section 13 of the Indiana Constitution provides that “in all criminal
prosecutions, the accused shall have the right to . . . meet the witnesses face to
face . . . .” Although Indiana courts have determined that cross-examination is
the primary interest secured by Article 1, Section 13, the rights guaranteed by
Article 1, Section 13 are not necessarily identical to those given by the Sixth
Amendment. Owings, 622 N.E.2d at 950. Nonetheless, like the Sixth
Amendment, Article I, Section 13 has not “been interpreted literally to
guarantee a criminal defendant all rights of confrontation at every trial for every
witness.” Id.
[38] The analysis under Article 1, Section 13 of the Indiana Constitution yields the
same result. Foster enjoyed the full panoply of his constitutional rights
throughout the entirety of the trial proceedings. The trial court’s limitation on
Foster’s cross-examination of Moore was confined to the isolated episode in
which Moore expressly stated that he would perjure himself if the questioning
continued. The limitation was, thus, narrowly tailored and reasonable under
the circumstances, and the trial court acted well within its discretion. Foster’s
rights under Article 1, Section 13 of the Indiana Constitution were, therefore,
III. Foster’s convictions for theft, kidnapping, criminal confinement, and armed robbery violate substantive double jeopardy principles.
[39] Foster claims his convictions for: (A) Count IV, armed robbery, a Level 3
felony, and Count VI, theft, a Level 5 felony; (B) Count IV, armed robbery, a
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 20 of 29 Level 3 felony, and Count V, criminal confinement, a Level 3 felony; and (C)
Count I, armed robbery, a Level 3 felony, and Count II, kidnapping, a Level 3
felony, constitute substantive double jeopardy.
[40] The State conceded in its appellate brief that Foster’s convictions for armed
robbery and theft “violate[d] the substantive bar to double jeopardy.”
Appellee’s Br. p. 20. Later, during oral argument, the State conceded that
Foster’s convictions for armed robbery and criminal confinement similarly
constitute substantive double jeopardy. The remaining issue before us, thus, is
whether Foster’s convictions for both armed robbery and kidnapping amount to
substantive double jeopardy.
A. Standard of Review
[41] Whether multiple convictions constitute double jeopardy is a question of
law that we review de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).
Our Supreme Court has identified two types of double jeopardy: the first type
occurs where “a single criminal act or transaction violates multiple statutes with
common elements and harms one or more victims,” and Wadle governs such
claims. Wadle v. State, 151 N.E.3d 227 (Ind. 2020). The second type occurs
when “a single criminal act or transaction violates a single statute but harms
multiple victims,” and Powell governs such claims. Powell v. State, 151
N.E.3d 256, 263 (Ind. 2020). The parties agree that Wadle, rather than Powell,
governs because Foster’s substantive double jeopardy claim challenges the trial
court’s authority to enter multiple judgments of conviction under multiple
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 21 of 29 criminal statutes, not the “charging of a single offense in several counts.” 9
Powell, 151 N.E.3d at 263.
[42] Under the first step of the Wadle test, we ask whether “the language of either
statute clearly permits multiple punishment, whether expressly or by
unmistakable implication.” Wadle, 151 N.E.3d 227 at 253.
[43] “Under Wadle step two, we determine whether the two offenses for which the
defendant was convicted constitute ‘included’ offenses.” Wadle, 151 N.E.3d at
248. Included offenses come in two varieties: (1) “inherently” included
offenses; and (2) offenses that are included “as charged” or “factually
included.” A.W., 229 N.E.3d at 1067. As explained in Wadle, 151 N.E.3d at
248, an offense is inherently included if it meets the definition of an included
offense under Indiana Code Section 35-31.5-2-168. This statute provides that
an “[i]ncluded offense” means an offense that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property,
9 Our Supreme Court recently decided Moyers v. State, 277 N.E.3d 33 (Ind. 2026), which established a threshold framework for determining whether Powell or Wadle governs a substantive double jeopardy claim.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 22 of 29 or public interest, or a lesser kind of culpability, is required to establish its commission.
I.C. § 35-31.5-2-168.
[44] In contrast to inherently included offenses, “[o]ffenses are included as charged
when ‘the charging instrument alleges that the means used to commit the crime
charged include all of the elements of the alleged lesser included offense.’”
A.W., 229 N.E.3d at 1067. In A.W., our Supreme Court clarified Wadle’s
“perhaps misunderstood directions, while adding a modification at Step 2.”
Specifically, A.W. held that:
[W]here ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant’s favor, and thus find a presumptive double jeopardy violation at Step 2. In this event, the State can later rebut this presumption at Step 3.
Id. at 1069.
[45] “Under Wadle step three, we examine the facts underlying the offenses, ‘as
presented in the charging instrument and as adduced at trial.’” Wadle, 151
N.E.3d at 249. “‘Based on this information, a court must ask whether the
defendant’s actions were so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.’” Id. “If
the defendant’s acts constitute a single transaction, the multiple convictions
constitute double jeopardy.” Id. At this step, the State bears the burden of
rebutting the presumptive double jeopardy violation by using the facts presented
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 23 of 29 at trial to demonstrate a “distinction between what would otherwise be two of
the ‘same’ offenses.” A.W., 229 N.E.3d at 1071 (citing Wadle, 151 N.E.3d at
249 n.27).
B. The convictions for Armed Robbery and Kidnapping violate substantive double jeopardy principles.
[46] Foster contends that his convictions for armed robbery and kidnapping arising
from the December 15 Loomis robbery constitute a substantive double jeopardy
violation. The State argues that no double jeopardy violation occurred because
Foster completed the armed robbery before he committed the kidnapping. We
agree with Foster.
[47] Armed robbery is governed by Indiana Code Section 35-42-5-1(a) and provides:
[A] person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Level 5 felony. However, the offense is a Level 3 felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant . . . .
Kidnapping is governed by Indiana Code Section 35-42-3-2(a) and provides:
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 24 of 29 (a) A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another commits kidnapping. Except as provided in subsection (b), the offense of kidnapping is a Level 6 felony.
(b) The offense described in subsection (a) is . . . a Level 3 felony if it:
(A) is committed while armed with a deadly weapon;
[48] Applying the three-step Wadle test, we first determine whether the statutes at
issue clearly permit “multiple punishment, whether expressly or by
unmistakable implication[.]” Wadle, 151 N.E.3d at 253. The parties agree that
neither the armed robbery nor the kidnapping statute clearly permits multiple
punishment, either expressly or by unmistakable implication. We, therefore,
proceed to the second step of the Wadle test.
[49] At Wadle Step 2, Foster does not argue that kidnapping is “an inherently
included offense of armed robbery” but contends that it was factually included
as charged. Appellant’s Br. p. 31. Here, Foster was charged as follows:
Count I, armed robbery, a Level 3 felony under I.C. 35-42-5- 1(a)(2): On or about December 15, 2021, [Foster] did knowingly or intentionally take property, a courier bag from Dominique Wilson and/or Loomis Armored Services, by putting Dominique Wilson in fear and while [Foster] was armed with a handgun, deadly weapon[.]
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 25 of 29 Count II, kidnapping, a Level 3 felony under I.C. 35-42-3-2(a) and I.C. 35-42-3-2(b)(3)(A): On or about December 15, 2021, [Foster], while armed with a deadly weapon, to-wit: a handgun did knowingly remove Dominique Wilson by force or threat of force from one place, to-wit: the parking lot ground to another place, to-wit: the side of a truck[.]
Appellant’s App. Vol. II p. 47-48. Foster contends that the charging
information is ambiguous as to whether the kidnapping was the means used to
commit the robbery. Because of this ambiguity in the charging information,
under A.W., it must be construed in Foster’s favor and we proceed to the Wadle
Step 3 analysis. The State conceded in its appellate brief regarding Step 2 that
“the charging information is ambiguous as to whether the kidnapping offense is
an included offense of the armed robbery offense.” Appellee’s Br. p. 34.
Accordingly, we proceed to Step 3. 10
[50] At Wadle Step 3, Foster argues that the facts confirm that the kidnapping was
the means used to effectuate the robbery, making the two offenses a single
continuous transaction. In his reply brief, Foster further argues that the taking
of the courier bag and the forced movement of Wilson toward the armored
vehicle “should not be viewed in isolation” because all actions shared the same
10 We note that the charge of kidnapping contains a distinct element, asportation, i.e., the transportation of a person from one place to another, that is neither required by nor included in the charging information for armed robbery, a Level 3 felony. The State, however, did not raise this distinction at the Wadle Step 2 analysis and, instead, proceeded directly to a Wadle Step 3 analysis.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 26 of 29 purpose, occurred in the same location, and were compressed in time.”
Appellant’s Reply Br. p. 10.
[51] The State argues that no single, continuous crime occurred because Foster
“completed the elements of armed robbery before he committed the
kidnapping” by pointing a gun at the victim while taking the courier bag.
Appellee’s Br. p. 35. Nothing but the courier’s bag was taken during the
December 15 Loomis robbery. The State contends that Foster committed
kidnapping by grabbing Wilson and forcing him from one side of the truck to
the other and that the robbery and kidnapping were committed sequentially. Id.
[52] Foster used a gun to move Wilson to perpetrate the robbery. See State’s Ex.
4(a) at 12:00-12:42. The video evidence depicts that all actions occurred in less
than a minute in the same location, which was the parking lot where the
Loomis armored vehicle was parked. Id. There was no discernible break
between the armed robbery and the kidnapping; the actions were continuous
and, thus, constituted a single transaction. Accordingly, we conclude that the
State failed to meet its “burden of rebutting the presumptive double jeopardy
violation.” A.W., 229 N.E.3d at 1071. See e.g., Jones v. State, 159 N.E.3d 55,
66-67 (Ind. Ct. App. 2020) (holding that convictions for both criminal
confinement and kidnapping violate double jeopardy because defendant’s
actions constitute a single continuous transaction), trans. denied. As a result, we
remand with instructions to vacate the kidnapping conviction and the sentence
entered thereon.
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 27 of 29 Conclusion [53] The State’s closing argument did not constitute fundamental error warranting
reversal of Foster’s convictions for two counts of armed robbery. The trial court
did not violate Foster’s constitutional rights under the Sixth Amendment’s
Confrontation Clause and Indiana Constitution Article 1, Section 13 to present
a defense and to confront witnesses by limiting his cross-examination of Moore.
We conclude, however, that Foster’s convictions for theft, kidnapping, and
criminal confinement violate the substantive bar to double jeopardy and must,
therefore, be vacated. Accordingly, we affirm in part, reverse in part, and
remand with instructions for the trial court to vacate Foster’s convictions for
theft, kidnapping, and criminal confinement, and to resentence Foster
accordingly.
[54] Affirmed in part, reversed in part, and remanded.
Kenworthy, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT Sarah Medlin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 28 of 29 Andrew M. Sweet Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-CR-325 | May 29, 2026 Page 29 of 29