FILED Nov 22 2023, 9:16 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael D. Dean Theodore E. Rokita Withered Burns, LLP Attorney General of Indiana Lafayette, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Ambrose Doyle, Jr., November 22, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-604 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-2101-F2-4
Opinion by Judge Riley. Judges Crone and Mathias concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Defendant, Michael Doyle (Doyle), appeals his convictions for
dealing in methamphetamine (ten grams or more), a Level 2 felony, Ind. Code §
35-48-4-1.1(a)(1); and dealing in methamphetamine (between five and ten
grams), a Level 3 felony, I.C. § 35-48-4-1.1(a)(1).
[2] We affirm.
ISSUES [3] Doyle presents this court with three issues, which we restate as:
(1) Whether the trial court properly admitted the statements of a witness pursuant to the doctrine of forfeiture by wrongdoing;
(2) Whether the trial court abused its discretion by admitting evidence of uncharged conduct; and
(3) Whether the trial court abused its discretion when it refused Doyle’s proffered instruction on circumstantial evidence.
FACTS AND PROCEDURAL HISTORY [4] On January 14, 2021, around 8:50 p.m., Deputy Ryan Holloway (Deputy
Holloway) of the Newton County Sheriff’s Department brought his K-9 unit to
the scene of a traffic stop in Goodland, Indiana, involving a vehicle in which
Joshua Sweet (Sweet) was a passenger. After the K-9 officer alerted to the
presence of narcotics in the vehicle, Deputy Holloway searched the vehicle and
found what a field test and weighing at the scene indicated was approximately
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 2 of 21 9.5 grams of methamphetamine, as well as paraphernalia and a digital scale.
Deputy Holloway confronted Sweet about the methamphetamine. Sweet told
Deputy Holloway that he had procured the methamphetamine from Doyle and
that Doyle was dealing drugs at the Red Roof Inn in Lafayette, Indiana, Room
102. Sweet allowed Deputy Holloway to access his cellphone and to read
Facebook messages between himself and Doyle arranging for Sweet to come to
the Red Roof Inn to meet with Doyle. Doyle told Sweet he was in Room 102,
“All my cars outside,” and “I need money,” to which Sweet responded, “I got
1000 can you do two for that[.]” (Exh. Vol. VI, pp. 165, 166). Doyle told
Sweet, “Yes right now in Hand in My Pocket it’s no one else’s it’s so is that a
yes come through or what” (Exh. Vol. VI, p. 166). Deputy Holloway had
known Sweet for several years, and Sweet had provided the deputy with reliable
information in the past. Deputy Holloway forwarded this information to the
Lafayette Police Department (LPD).
[5] In the early hours of January 15, 2021, officers with the LPD went to the Red
Roof Inn in Lafayette with a K-9 unit, who alerted to the presence of narcotics
in Room 102. Based on this alert, the officers procured a search warrant for the
room which they executed that day. No one was in the room when the officers
entered. The LPD officers found eleven baggies of what was later determined
to be at least 49.48 grams 1 of methamphetamine in the top drawer of the room’s
1 Two of the eleven baggies were tested and confirmed to be methamphetamine. The remaining baggies were not tested but were determined to weigh 241.45 grams.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 3 of 21 dresser/wall unit. In the same drawer officers found two baggies, one of which
was later determined to contain .65 grams of cocaine, two glass pipes
commonly used to smoke methamphetamine, and a digital scale which was
later found to have Doyle’s DNA on it. In the room, the officers also found
$2,228 in cash, a box of sandwich baggies, a used syringe, and clothing and
other items which appeared to belong to a female. Further investigation
revealed that Doyle’s red car was parked outside Room 102 when the officers
made entry.
[6] While officers were still on the scene at Room 102, a silver Nissan sedan pulled
up just outside Room 102. Officers recognized Doyle as the passenger in the
Nissan, took him into custody, and provided him with his Miranda
advisements. Doyle told the officers that he had been in and out of Room 102
over the previous day or two. The officers searched the Nissan and found what
they suspected to be spice and partially consumed spice cigarettes. Doyle had
$1,950 on his person. Subsequent investigation revealed that Room 102 had
been rented to Riley Smith (Smith), a male friend of Doyle’s.
[7] On January 15, 2021, the State filed an Information, charging Doyle with Level
2 felony dealing in methamphetamine (ten grams or more); Level 6 felony
cocaine possession; Level 6 felony unlawful possession of a syringe; Class A
misdemeanor possession of a controlled substance (spice or a synthetic drug);
and Class C possession of paraphernalia. All these offenses were alleged to
have occurred on or about January 15, 2021. In a separate Information the
State alleged that Doyle was an habitual offender. On September 7, 2021, the
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 4 of 21 State filed a motion seeking to add two charges to the Information, namely
Level 2 felony dealing in methamphetamine alleged to have occurred on
January 5 and 6, 2021, and Level 3 felony dealing in methamphetamine alleged
to have occurred on January 14, 2021. The Level 3 felony charge related to the
dealing that Sweet had reported. On September 23, 2021, the trial court
granted the State’s motion to add the new charges. On November 3, 2022,
Doyle filed a motion to sever the new Level 2 felony dealing in
methamphetamine charge. On November 10, 2022, the trial court granted
Doyle’s motion to sever, and it granted a motion by the State to dismiss the
Class A misdemeanor possession of a controlled substance (spice or lookalike
substance) charge.
[8] On November 3, 2022, the State served Sweet with a trial subpoena. On
November 14, 2022, the trial court convened Doyle’s four-day jury trial. Sweet
did not appear for the first day of trial, and, with Doyle present in open court,
the trial court issued a writ of body attachment for Sweet. Due to Sweet’s
failure to appear, the State filed a motion to introduce evidence pursuant to
Indiana Rule of Evidence 804(b)(5), seeking the admission of Sweet’s January
14, 2021, statements to Deputy Holloway and alleging that Sweet was
unavailable for trial due to Doyle’s wrongdoing. On November 15, 2022, prior
to the presentation of the evidence, the trial court held a hearing on the State’s
motion. The State presented evidence of a telephone call Doyle had made from
jail on January 29, 2021, wherein Doyle read from the probable cause affidavit
filed in the instant matter that on January 14, 2021, Sweet had reported his drug
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 5 of 21 dealing at the Red Roof Inn. Doyle instructed the woman on the other end of
the call to contact his stepson, Hunter Snow (Snow). Doyle instructed the
woman to tell Snow that Doyle loved him, that Snow should “take care of
[Sweet,]” and that Snow should make sure to “do what [he] did to [his] dad to
[Sweet].” (Exh. 7). Doyle explained in the call that Snow had previously
beaten up his own father for Doyle. Doyle expressed his hope that Snow would
“punch every fucking wall in the jail with that dude.” (Exh. 7). During the
call, the woman to whom Doyle was speaking expressed her willingness to
assist and confirmed that Sweet was in Rensselaer. Doyle noted that his
stepson Snow was also in Rensselaer.
[9] At the hearing on the State’s motion to admit Rule 804(b)(5) evidence, the State
also had admitted into evidence a voice text from Sweet received by the State
on November 9, 2022, in which Sweet stated that he would “not be much help
for you guys,” “last time look what it did for me,” and “so take it how you
want to, endangered my family’s lives.” (Exh. 2). Sweet had also texted the
State on November 14, 2022, that he would not appear to testify at trial and
that he would turn himself in after Doyle’s trial was over. In those texts, Sweet
stated, “Last time I helped you it was published and my family was ran off the
road several times and worse[.]” (Exh. Vol. VI, p. 23). In texts sent by Sweet
later in the morning of the first day of Doyle’s trial, Sweet stated that he feared
being prosecuted for his testimony. After being assured that he could only be
prosecuted if he did not appear, Sweet texted that he was not sure what
happened on the night of January 14, 2021, because he was high and drunk,
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 6 of 21 implied he would not testify because he was not being paid, and stated that he
would assert his Fifth Amendment right not to testify. Also admitted into
evidence at the Rule 804(b)(5) hearing was a jailhouse telephone call made
during the evening of November 14, 2022, from Doyle to a woman whom he
instructed to call both the Newton County Jail and the Tippecanoe County Jail
to attempt to locate Sweet and to find out when visitation hours at the jails
were. Doyle instructed the woman to tell jail personnel that she was a friend or
a relative if asked. At the close of the evidentiary hearing on the State’s motion
for Rule 804(b)(5) evidence, the trial court took the matter under advisement.
[10] During opening argument, Doyle’s counsel told the jury that it would hear
evidence that Doyle had admitted to law enforcement that he had been in
Room 102 but that he was only there to visit prostitutes, not to deal
methamphetamine. The jury also heard testimony that drug dealers commonly
work out of hotels, they usually have a larger amount of drugs in their
possession than a mere user would, they often deal in more than one kind of
drug at a time, they use scales and sandwich baggies as packaging when dealing
drugs, and that they commonly have large amounts of cash on their persons.
[11] Regarding the Rule 804(b)(5) evidence, the trial court made an in-trial ruling
that the State had met its burden, noting that Doyle had been present in open
court when it had issued a body attachment warrant for Sweet on the first day
of trial, that Doyle had then placed the call about finding out if Sweet had been
taken into custody, and that the reason Doyle had placed that call “wasn’t to go
ask him how he was.” (Transcript Vol. III, p. 6). Thereafter, Sweet’s
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 7 of 21 statements from the January 14, 2021, traffic stop and the contents of the
messages he had shown the deputy between himself and Doyle were admitted
into evidence.
[12] During trial, the trial court held a hearing on the admissibility of messages from
Doyle’s Facebook account. In these messages, Doyle arranged drug deals with
several individuals, including Sweet and Smith, between September 9, 2021,
and September 15, 2021. In some messages, Doyle stated he was at the Red
Roof Inn, and, in an image captured on January 14, 2021, Doyle was seen
standing next to a door labeled Room 102. The messages Sweet had shown to
Deputy Holloway on January 14, 2021, were included within this evidence.
Doyle objected that the proffered evidence was inadmissible character evidence
prohibited by Evidence Rule 404(b) and that the evidence was irrelevant, given
that it was unrelated to the charges before the jury. The trial court admitted the
evidence over Doyle’s objection pursuant to the “common scheme” exception
to Rule 404(b) in that it showed Doyle’s drug dealing over a period of time.
(Tr. Vol. III, p. 98). The trial court also ruled that Doyle’s use of Room 102
was relevant. At Doyle’s request, the trial court issued the following limiting
instruction to the jury pertaining to Doyle’s Facebook records:
Members of the jury[,] . . . any evidence of the prior acts may not be considered as a basis for an inference that . . . the defendant acted in conformity with his prior conduct or with his indicated propensity.
(Tr. Vol. III, p. 124).
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 8 of 21 [13] At the final instruction conference, Doyle proffered the following instruction on
circumstantial evidence:
[W]here proof of guilt is by circumstantial evidence only[,] [i]t must be so conclusive in character and point [s]o surely and unerringly to the guilt of the accused as to exclude every reasonable theory of innocence.
(Tr. Vol. III, p. 227). Doyle’s counsel argued that this was a pattern instruction,
and was, thus, an accurate statement of the law. The trial court declined to give
the instruction, ruling that the pattern instruction had changed and that the
State had presented some direct evidence, rendering the instruction
inapplicable.
[14] During closing argument, Doyle’s counsel reminded the jury of this limiting
instruction. At the close of the evidence the jury found Doyle guilty of the
Level 2 and Level 3 felony dealing charges and not guilty of all the remaining
charges. After the jury returned its verdicts, Doyle admitted to being an
habitual offender. On January 20, 2023, the trial court held Doyle’s sentencing
hearing and issued an aggregate twenty-eight-year sentence, with twenty-four
years executed and four years suspended to probation.
[15] Doyle now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 9 of 21 DISCUSSION AND DECISION I. Forfeiture by Wrongdoing
[16] Doyle challenges the admission of Sweet’s January 14, 2021, statements to
Deputy Holloway, which Doyle argues violated his Sixth Amendment 2 right to
confrontation and the Indiana Rules of Evidence. We generally review the trial
court’s admission of evidence under an abuse of discretion standard. Carr v.
State, 106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied. However, when a
claim of error in the admission of evidence is based upon the violation of a
constitutional right, our standard of review is de novo. Id.
[17] The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him[.]” U.S. Const. amend. VI. In light of this guarantee, “a witness who
makes testimonial statements admitted against a defendant will ordinarily be
present at trial cross-examination, and . . . if the witness is unavailable, his prior
testimony will be introduced only if the defendant had a prior opportunity to
cross-examine him.” Giles v. California, 554 U.S. 353, 358, 128 S.Ct. 2678,
2682, 171 L.Ed.2d 488 (2008) (citing Crawford v. Washington, 541 U.S. 36, 68,
124 S.Ct. 1354, 158 L.E.2d 177 (2004)). However, the Crawford court held that
2 The State cited Indiana Evidence Rule 804(b)(5) in its motion to admit Sweet’s statements to Deputy Holloway, and Doyle relied on his Sixth Amendment confrontation right in arguing the State’s motion. On appeal, Doyle argues that the challenged evidence violated Article 1, section 13 of our state constitution and Indiana Evidence Rule 403. However, Doyle did not mention either Article 1, section 13 or Rule 403 at trial, and, therefore, we conclude that he has waived those arguments for purposes of appeal. See State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022) (“Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal.”), trans. denied.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 10 of 21 this right to confrontation may be forfeited if the defendant procures the
absence of a witness through his own wrongful conduct. Id. at 59, 1354; see also
Fowler v. State, 829 N.E.2d 459, 467-68 (Ind. 2005) (recognizing the doctrine of
forfeiture by wrongdoing). The doctrine of forfeiture by wrongdoing was
developed to protect the integrity of judicial proceedings. Galloway v. State, 188
N.E.3d 493, 498 (Ind. Ct. App. 2022), trans. denied. The doctrine is only
applicable where, in undertaking the actions that rendered the witness
unavailable, the defendant had in mind the particular purpose of making that
witness unavailable. Giles, 554 U.S. at 367, 128 S.Ct. at 2678; see also White v.
State, 978 N.E.2d 475, 479-80 (Ind. Ct. App. 2012) (citing United States v.
Dhinsa, 243 F.3d 635, 653-54 (2nd Cir. 2001), with approval for the proposition
that the State need only prove that the defendant was at least partially
motivated by the intent to silence the witness), trans. denied.
[18] In addition, hearsay, which is an out-of-court statement offered to prove the
truth of the matters it contains, is generally inadmissible under the Indiana
Rules of Evidence. Ind. Evidence Rules 801(c); 802. The Evidence Rules
provide an exception to the general prohibition on hearsay where a witness is
unavailable and the statement is
offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 11 of 21 Evid. R. 804(b)(5). The State was required to establish forfeiture by
wrongdoing by the preponderance of the evidence, whether as forming an
exemption to the Confrontation Clause or as an exception to the hearsay rules.
Scott v. State, 139 N.E.3d 1148, 1154 (Ind. Ct. App. 2020) (Sixth Amendment),
trans. denied; White, 978 N.E.2d at 480 (Rule 804(b)(5)).
[19] The evidence before us establishes that initially at the scene of the January 14,
2021, traffic stop, Sweet identified Doyle as the source of the
methamphetamine found in Sweet’s vehicle, and Sweet reported that Doyle
was dealing drugs out of the Red Roof Inn in Lafayette. On January 15, 2021,
Doyle was taken into custody and charged with several drug-related offenses.
That same day, Doyle’s initial hearing was conducted at which Doyle filed a
pro se request for a speedy trial, and his jury trial was initially set for May 4,
2021. On January 29, 2021, after having read copies of the probable cause
affidavit which contained Sweet’s January 14, 2021, statements, Doyle called a
third party and instructed her to tell Doyle’s stepson to batter Sweet, and that
third party expressed her willingness to assist. After a series of continuances,
Doyle’s trial was eventually reset for November 14, 2021. Days before trial, on
November 9, 2021, and after being served with a trial subpoena, Sweet
indicated reluctance to assist the State, stated that his past cooperation had
placed his family in peril, and expressed fear for the safety of his family. On the
first day of Doyle’s trial, Sweet communicated to the State that he would not
appear, again expressing his fear his family’s safety. Doyle was present when
the trial court issued a body attachment warrant for Sweet when Sweet did not
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 12 of 21 appear for trial, and that night Doyle telephoned a third party and directed her
to find out whether Sweet was being held in jail and when visiting hours were.
Sweet did not appear on the second day of Doyle’s trial, but he sent several text
messages to the State providing shifting explanations for why he was not going
to appear to testify against Doyle.
[20] The trial court ruled that, with this evidence, the State had met its burden of
proof to establish Doyle’s forfeiture by wrongdoing. We agree. We may infer a
defendant’s intent to silence a witness “from a defendant’s conduct and the
natural consequences thereof.” See Smoots v. State, 172 N.E.3d 1279, 1287 (Ind.
Ct. App. 2021) (finding adequate evidence of Smoot’s intent, even though his
recorded jailhouse conversation did not contain any explicit statements of his
intent that others should threaten or dissuade the witness from testifying). The
timing of a defendant’s actions is probative of his or her intent on this issue. See
White, 978 N.E.2d at 481-82 (considering the temporal proximity of White’s
shooting of his wife to a hearing on a child custody dispute as probative of his
intent to keep his wife from testifying at that hearing).
[21] Here, Doyle placed the January 29, 2021, call to arrange to have his stepson
batter Sweet after Doyle had been charged with four criminal offenses and after
he had learned that Sweet had incriminated him. Within the context and
circumstances of this case, the natural consequence of Doyle’s communication
was to intimidate Sweet into not cooperating with the State. Although Doyle
argues that this call was too remote in time to his November 2022 trial date to
be probative of his intent, we observe that the January 29, 2021, call was placed
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 13 of 21 shortly after Doyle had filed a speedy trial motion and was made only
approximately three months prior to his first scheduled trial date. Doyle placed
the second of the relevant calls during his trial after he was present in open
court when a body attachment warrant had been issued for Sweet. After Doyle
made these calls, Sweet again expressed concern for his family’s safety and did
not, in fact, appear for trial. The timing of Doyle’s calls close to a previously
scheduled trial date and within Doyle’s actual trial also permits a reasonable
inference that his communications were intended to procure Sweet’s absence
for trial. See id.
[22] We further conclude that there was sufficient evidence to establish that it was
Doyle’s communications that caused Sweet’s absence. See Scott, 139 N.E.3d at
1155 (noting that the severity of the defendant’s conduct is not at issue, only
whether the defendant intended to procure the witness’s absence and whether
the defendant’s conduct was of such significance that it kept the witness from
testifying). Doyle twice directed others to make contact with Sweet, and he
arranged to have his stepson batter Sweet. Thereafter, Sweet expressed his
unwillingness to cooperate, both on November 9, 2021, and on November 14,
2021, the first day of Doyle’s trial. In addition, in his last texts with the State
on the second day of Doyle’s trial, Sweet provided multiple, shifting answers
about why he would not appear, from which it can reasonably be inferred that
Sweet was being evasive about why he would not appear and that the real
reason for his reticence was because of Doyle’s actions. Doyle does not provide
us with any legal authority for his implication on appeal that the State must
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 14 of 21 present direct evidence that the defendant’s conduct caused the witness’s
absence, and we observe that we have sustained findings of forfeiture by
wrongdoing based on circumstantial evidence. See, e.g., Carr, 106 N.E.3d at 554
(addressing Carr’s argument that he never explicitly urged the witness not to
appear for trial by noting that the circumstantial evidence presented by the State
supported a reasonable conclusion that the witness did not appear due to Carr’s
efforts). Accordingly, we conclude that the admission of Sweet’s statements
through Deputy Holloway’s testimony did not violate Doyle’s Sixth
Amendment confrontation right and was not an abuse of the trial court’s
discretion in light of Rule 804(b)(5). 3
[23] However, even if the trial court had erred in admitting the challenged evidence,
we would still affirm his convictions. “The improper admission [of evidence] is
harmless error if the conviction is supported by substantial independent
evidence of guilt satisfying the reviewing court there is no substantial likelihood
the challenged evidence contributed to the conviction.” Hoglund v. State, 962
N.E.2d 1230, 1238 (Ind. 2012). Here, the State presented the jury with
Facebook messages between Sweet and a person named “Michael” in which
the two arranged a drug transaction at Room 102 of the Red Roof Inn. In
addition, Doyle admitted that he had been present in Room 102 close in time to
3 Given our conclusion, we do not address the State’s argument that Doyle failed to establish on appeal that Sweet’s statements were testimonial in nature so as to render the Confrontation Clause applicable. We note, however, that in arguing for the admissibility of Sweet’s statements in the trial court, the State did not dispute that Sweet’s statements were testimonial.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 15 of 21 law enforcement’s discovery of drugs there, his car was parked right outside
Room 102 when the search of the room occurred, Doyle showed up at Room
102 while the investigation was ongoing, Doyle had a large amount of cash on
his person, and his DNA was found on the digital scales found next to a large,
dealer-sized quantity of methamphetamine. (Exh. Vol. p. 10; Tr. Vol. II, pp.
128-30). As the State correctly points out, the jury was entitled to infer Doyle’s
intent to deal the methamphetamine found in Room 102 based solely on the
fact that 49.48 grams of methamphetamine were found there. See I.C. § 35-48-
4-1.1(b)(2) (requiring an amount of twenty-eight grams or more of
methamphetamine to independently sustain a finding of an intent to deal).
Given this substantial additional evidence of Doyle’s guilt, we conclude that
any error in the admission of the challenged statements was harmless.
II. Facebook Records
[24] Doyle next contends that the trial court abused its discretion when it allowed
into evidence his Facebook messages arranging uncharged drug deals with
multiple people. We review the trial court’s decision on the admission of
evidence for an abuse of its discretion. Fansler v. State, 100 N.E.3d 250, 253
(Ind. 2018). We will reverse only where the trial court’s decision is against the
logic and effect of the facts and circumstances. Id.
[25] Indiana Evidence Rule 404(b) generally prohibits “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character[,]” but it
also provides that such evidence “may be admissible for another purpose, such
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 16 of 21 as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” In addition, any Rule 404(b) evidence
must also pass Rule 403 muster, in that its probative value must not be
substantially outweighed by a danger of unfair prejudice or confusion of the
issues. Hall v. State, 137 N.E.3d 279, 284 (Ind. Ct. App. 2019).
[26] Doyle contends that the challenged evidence was admitted in contravention to
Rule 404(b) because it served only to show his propensity to deal drugs and that
the evidence was not admissible for any other permitted purpose. Doyle also
argues that the prejudicial effect of the evidence of his prior dealing greatly
outweighed its probative value. The State counters that the challenged evidence
was admissible to show Doyle’s knowledge of the drugs found in Room 102
and that its admission was not barred by Rule 403.
[27] We find the case of Cannon v. State, 99 N.E.3d 274 (Ind. Ct. App. 2018), trans.
denied, to be instructive to the resolution of this issue. At Cannon’s trial on drug
dealing and possession charges, over Cannon’s objection, the trial court allowed
his girlfriend to testify that she had helped him in the past by driving him to
drug deals and that Cannon sold heroin and cocaine to support himself. Id. at
277. The trial court instructed the jury that the girlfriend’s testimony about
Cannon’s prior dealing had been received solely on the issue of Cannon’s intent
or knowledge and that it should only be considered for that limited purpose.
On appeal, this court concluded that any error in the admission of this evidence
was harmless, given the other substantial evidence of his guilt and that
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 17 of 21 [t]he jury was specifically instructed to use evidence of Cannon’s bad acts only for the purpose of evaluating his intent or knowledge, which is presumed to cure any error that might have occurred, unless Cannon can show otherwise, which he did not do. See Hyppolite v. State, 774 N.E.2d 584, 598 (Ind. Ct. App. 2002) (“The trial court gave the jury an admonishment concerning the situation, and that is presumed to cure any error.”), trans. denied; see also Hackney v. State, 649 N.E.2d 690, 694 (Ind. Ct. App. 1995) (“A proper admonishment to the jury is presumed to cure any alleged error, unless the contrary is shown.”), trans. denied.
Id. at 280. In affirming the trial court, we observed that Cannon had failed to
meet his burden to overcome the relevant presumption by pointing to anything
in the record to indicate that the jury had failed to follow the trial court’s
instruction. Id.
[28] We reach the same result here. As we have already observed, there was
substantial evidence of Doyle’s drug dealing apart from the challenged
evidence. In addition, at Doyle’s request, the trial court issued an instruction
that the evidence of Doyle’s prior dealing as contained in his Facebook
messages could not be considered by the jury as showing that he had acted in
conformity with that conduct for purposes of the instant charges. Doyle does
not take issue with the substance of this instruction or contend that it was
somehow inadequate. On appeal, Doyle does not address the trial court’s
instruction to the jury at all, let alone provide us with any indication that the
jury did not follow this instruction. As such, we conclude that Doyle has failed
to overcome the presumption that the jury followed the trial court’s instruction
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 18 of 21 which rendered any error in the admission of the Facebook evidence harmless.
See id.; see also Isom v. State, 31 N.E.3d 469, 480-81 (Ind. 2015) (declining to
address the merits of Isom’s claim of error in the denial of his mistrial motion
based on the admission of evidence, where the trial court had issued an
admonishment, noting the strong presumption that juries follow the trial court’s
instruction and that an admonishment cures any error).
III. Final Instruction
[29] Doyle contends that the trial court erred when it rejected his proffered
instruction on circumstantial evidence. “The trial court has broad discretion as
to how to instruct the jury, and we generally review that discretion only for
abuse.” McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015). Upon reviewing a
trial court’s decision to reject a proposed instruction, we consider (1) if the
tendered instruction correctly states the law; (2) if there was evidence to support
giving the instruction; and (3) if the substance of the instruction was covered by
other instructions that were given. Id. at 763-64.
[30] Doyle contends that his proffered instruction was a correct statement of the law
and that it was supported by the evidence. However, Doyle’s proposed
instruction provided that “[W]here proof of guilt is by circumstantial evidence
only[,] [i]t must be so conclusive in character [and point] so surely and
unerringly to the guilt of the accused as to exclude every reasonable theory of
innocence.” (Tr. Vol. III, pp. 230) (emphasis added). Therefore, this
instruction would only be supported by the evidence if the State’s case against
Doyle was entirely circumstantial. It was not.
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 19 of 21 [31] As our supreme court explained in Hampton v. State, 961 N.E.2d 480, 489 (Ind.
2014), direct evidence is “evidence that directly proves a fact, without an
inference, and which in itself, if true, conclusively establishes that fact[,]” while
circumstantial evidence is that which “proves a fact from which an inference of
the existence of another fact may be drawn.” Here, Doyle was charged with
Level 3 felony dealing methamphetamine to Sweet on January 14, 2021. 4 As
we have already concluded, the trial court properly admitted Sweet’s January
14, 2021, statements to Deputy Holloway that Doyle was the source of the
methamphetamine found in Sweet’s car and that Doyle was dealing
methamphetamine out of Room 102 at the Red Roof Inn. This was direct
evidence that was probative of whether Doyle was dealing drugs on January 14,
2021, as charged in the Level 3 felony dealing in methamphetamine
Information. See id. Even if the State’s case on the other charges was purely
circumstantial, Doyle did not proffer any alternate instruction limiting his
instruction to other charged offenses apart from the Level 3 felony dealing
charge. Therefore, the trial court did not abuse its discretion in declining to
give Doyle’s proffered instruction. See Griffin v. State, 16 N.E.3d 997, 1007 (Ind.
Ct. App. 2014) (finding no error in the trial court’s rejection of Griffin’s
4 Doyle argues that he “was not convicted of selling drugs to Sweet.” (Appellant’s Reply p. 9). However, Doyle was charged with and convicted of Level 3 felony dealing in methamphetamine for knowingly or intentionally delivering between five and ten grams of methamphetamine to Sweet on January 14, 2021. Although the Information did not specify that this charge related to Doyle’s dealing to Sweet, during closing argument, the deputy prosecutor specifically discussed the details of the methamphetamine found in Sweet’s car on January 14, 2021, and Sweet’s statements to Deputy Holloway in relation to this charge: “[Sweet] told Holloway he got meth from [] Doyle and that he got it at the Red Roof Inn.” (Tr. Vol. III, p. 235).
Court of Appeals of Indiana | Opinion 23A-CR-604 | November 22, 2023 Page 20 of 21 proposed instruction on circumstantial evidence, where the State presented
direct evidence to support its allegations).
[32] Even if the trial court had erred in rejecting Doyle’s proposed instruction, we
would still sustain Doyle’s convictions. We will only reverse a conviction
based on instructional error if the defendant establishes that the error prejudiced
his substantial rights. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). Doyle
does not develop any argument regarding how he was prejudiced by the
claimed instructional error. Therefore, he has failed to persuade us that reversal
is merited. 5 See id.
CONCLUSION [33] Based on the foregoing, we hold that Sweet’s statements were properly
admitted, any error in the admission of Doyle’s Facebook messages was
harmless, and that the trial court acted within its discretion when it rejected his
proposed instruction.
[34] Affirmed.
[35] Crone, J. and Mathias, J. concur
5 In light of our conclusion on this issue, we do not address Doyle’s contention that his proffered instruction, which was expressly disapproved of by our supreme court in Hampton, 961 N.E.2d at 483, 491, was “revived” by this court’s unpublished decision in Wooldridge v. State, 213 N.E.3d 1064, slip op. (Ind. Ct. App. June 26, 2023). (Appellant’s Reply p. 8).
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