MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 14 2018, 10:06 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Glen E. Koch II Curtis T. Hill, Jr. Boren, Oliver & Coffey, LLP Attorney General of Indiana Martinsville, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rickey D. Haines, March 14, 2018 Appellant-Defendant, Court of Appeals Case No. 07A01-1708-CR-1994 v. Appeal from the Brown Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Judith A. Stewart, Judge Trial Court Cause No. 07C01-1512-F1-373
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 1 of 24 [1] Following a jury trial, Rickey D. Haines (“Haines”) appeals his convictions for
Level 3 felony criminal confinement,1 Level 6 felony domestic battery,2 Class A
misdemeanor possession of a firearm by a domestic batterer, 3 and his
adjudication as a habitual offender.4 He raises the following restated issues:
I. Whether the trial court abused its discretion when it admitted evidence of two prior incidents of domestic violence by Haines toward the victim;
II. Whether the trial court erred when it denied Haines’s motion to dismiss that was based on the State’s failure to preserve the victim’s cell phone after it was forensically examined by the State; and
III. Whether the trial court erred when it did not grant Haines’s motion to correct error concerning the habitual offender enhancement because some convictions used by the State were outside the ten-year limit imposed by statute.
[2] We affirm in part, reverse in part, and remand.
1 See Ind. Code § 35-42-3-3(a), (b). 2 See Ind. Code § 35-42-2-1.3(a), (b)(2). 3 See Ind. Code § 35-47-4-6. 4 See Ind. Code § 35-50-2-8(d). We note that Haines was also convicted of Level 6 felony strangulation, Indiana Code section 35-42-2-9(b), but the trial court later vacated that conviction based on double jeopardy grounds. Appellant’s App. Vol. 2 at 250.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 2 of 24 Facts and Procedural History [3] As of December 2015, Haines and Jennifer Wagers (“Wagers”) had been in an
on-again/off-again relationship for approximately fourteen years, and they had
two minor children together, J.H. and G.H. (together, “Children”). On
December 8, 2015, Wagers went to Haines’s residence to make dinner and pick
up their Children, ages nine and five years old at the time, who would be
getting off the school bus there. When Wagers arrived, she went inside to begin
making dinner. At some point, Wagers went into the bathroom, and, shortly
thereafter, Haines came in and closed the door behind him. Haines demanded
that Wagers hand over her cell phone to him, because he wanted to search her
phone for contact with another man, and the two argued. Wagers would not
unlock her phone, and Haines was yelling at her. He told her to “assume the
position,” Wagers got on the floor on her knees, and Haines tried to drown her
in the bathtub. Tr. Vol. IV at 168. She ended up on her stomach on the floor of
the bathroom, and he had sex with her, which she testified was non-consensual.
G.H. knocked on the bathroom door, and Haines told him go away. Tr. Vol. IV
at 170-71; Tr. Vol. V at 52, 65. G.H. heard his mother crying and saying “stop,”
and he ran to summon Haines’s mother (“Grandmother”), who lived nearby.
Tr. Vol. V at 52-53. Grandmother came to Haines’s residence and knocked on
the closed bathroom door, and Haines opened the door. Wagers asked
Grandmother to stay, but she left the residence.
[4] Eventually, Wagers escaped the bathroom and ran out of the residence, and
Haines ran out another door, still arguing about the phone. Haines cornered
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 3 of 24 Wagers on the porch and would not let her down the stairs to leave. He
punched her in the face with his fist. As Wagers sat on the porch, Haines put
Wagers in “a choke hold,” saying “good night bitch” as she struggled. Tr. Vol.
IV at 175; Tr. Vol. V at 68. The Children came outside at some point, yelled at
Haines “to stop,” observed Haines put their mother in a choke hold, and saw
him throw a bicycle at Wagers. Tr. Vol. V at 68. He told the Children to go
back into the house. Haines ripped a metal porch rail out of the porch and
threatened to hit Wagers and break her kneecap. He then swung the metal pole
at Wagers, striking her on the shin, ripping her pants, lacerating her leg, and
bruising her foot. Wagers agreed to unlock her phone, and Haines looked
through it. He saw messages to other people and was angry, and he ordered her
to go back into the residence, which she did.
[5] Inside, he made Wagers get his shotgun and give it to him, and he sent the
Children to bed. He told Wagers to go to the bedroom, and he followed,
bringing the shotgun and setting it in a corner. He told her to remove her pants
and lay on her stomach, which she did, and he had intercourse with her, and he
directed her to perform oral sex.5 During this time, Haines told Wagers that he
was recording “everything” on her phone, indicating he was going to share it on
social media “to show everyone how much of a whore [she] was and how much
5 Wagers testified that Haines engaged in non-consensual sexual activity with her while they were in the bathroom and again, later, after they returned inside the house from outside. Tr. Vol. IV at 168-70, 180-81. Haines acknowledged engaging in the sexual activity, but told police it was consensual. Tr. Vol. V at 135. The jury found Haines not guilty on the rape charge. Tr. Vol. VI at 67.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 4 of 24 of a bad mother [she] was.” Tr. Vol. IV at 181-182, 218, 233, 237. Haines
eventually went to sleep, but Wagers did not leave because she could not walk
and was afraid he would catch her. Sometime in the morning, Wagers regained
custody of her phone, finding it on Haines’s dresser, and after he left for work,
Wagers called her sister, Jamie Wagers (“Jamie”) and asked her to come for
her. After Wagers had left Haines’s residence, she called the Brown County
Sheriff’s Department to report what Haines had done.
[6] Deputy Joshua Stargell (“Deputy Stargell”) arrived, and Wagers told him that
she had been battered the previous night by Haines. He observed a large
laceration on her left shin, redness around her nose and neck. She showed the
officer the metal pole that Haines used to batter her; it was about four feet long
and had a bolt sticking out of it. She also told him that she was strangled and
punched in the nose. Wagers told Chief Deputy Michael Morris (“Chief
Deputy Morris”) that Haines had said that he was recording sex acts on her
phone, so Chief Deputy Morris collected Wagers’s phone as evidence. Chief
Deputy Morris arranged for the Fishers Police Department’s forensic analysis
lab to examine the phone, advising the Fishers Police Department about the
sexual allegations that Wagers had made against Haines and her statement to
deputies that Haines said he was recording sex acts. An examiner in the
Fishers forensic analysis lab conducted a forensic examination of the cell
phone, and the examiner did not find any video recordings or photographs
related to the case. In the process, the examiner made and kept a digital backup
of all the phone’s content. As nothing relevant was found on the phone, Chief
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 5 of 24 Deputy Morris went and retrieved the phone in Fishers. After Chief Deputy
Morris was advised that the analysis “did not recover any type of evidence of
the alleged assault at all,” he returned the phone to Wagers, who used the
phone for a period of time, but replaced it eventually when the screen broke.
Tr. Vol. V at 134.
[7] On December 11, 2015, the State charged Haines with Level 1 felony rape, and
it subsequently amended the information to add charges of Level 3 felony
criminal confinement, Level 6 felony domestic battery, Level 6 felony
strangulation, and Class A misdemeanor possession of a firearm by a domestic
batterer. The State also alleged that Haines was a habitual offender. Appellant’s
App. Vol. 2 at 4, 12-13, 31, 116, 165.
[8] In March 2016, the State filed notice of its intent to introduce evidence under
Indiana Evidence Rule 404(b), specifically, evidence of: (1) a prior domestic
battery conviction in which Wagers was the victim; (2) pending charged
conduct of, among other things, domestic battery and criminal recklessness
with a deadly weapon, in which Wagers was the victim; (3) prior uncharged
acts of domestic battery against Wagers; and (4) protective orders and no
contact orders granted in favor of Wagers against Haines. Id. at 40-41. In
December 2016, Haines filed a motion in limine to exclude that evidence. Id. at
96-97. On February 23, 2017, the trial court issued an order, ruling that the
State could admit evidence of two incidents, one in 2009 and another in 2015,
both of which had resulted in criminal charges, as this evidence was relevant to
motive and the relationship between the parties, but that the State could not
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 6 of 24 admit any other evidence of uncharged acts or protective orders that had been
obtained. Id. at 109-11.
[9] In April 2016, Haines filed a motion to dismiss, in which he asserted that the
charges against him should be dismissed on state and federal due process
grounds because the State “negligently destroyed a cell phone belonging to the
alleged victim,” that the phone was material evidence, and that he was
irreparably and materially prejudiced because he had no ability to examine the
phone. Id. at 45-46. The trial court conducted a hearing on May 11, 2016 on
Haines’s motion to dismiss. At the hearing, the State argued that Haines’s
motion should be denied, for various reasons, including that evidence was not
destroyed as all contents on the phone were preserved and available to both
parties. The State called as a witness Detective J.D. Floyd (“Detective Floyd”),
a computer forensic examiner with the Fishers Police Department. Detective
Floyd stated that the Fishers Police Department has one of six forensic
laboratories in the state and the Fishers lab handles cases for agencies
throughout the state. He testified that his sergeant was contacted by Chief
Deputy Morris, who asked the Fishers lab to perform “an extraction” on the
phone. Tr. Vol. II at 80. Using specialized cabling and software, the examiner
extracts or “reads” data, noting that they do not and cannot “write to,” that is,
change, the data. Id. at 81. Detective Floyd stated that each phone is different
as far as what data can be accessed, including whether deleted information is
capable of being recovered, and what is capable of extraction is also dependent
on the “advancements of the software.” Id. at 84. He said, for this particular
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 7 of 24 phone, “I was able to extract the file system, or do a back up of the phone,
which allowed me to extract the logical data of the phone but not the physical
data[,]” with logical data being the things that you can see when you look at the
phone, whereas physical data would be a “bit for bit” copy including memory
of the phone and any attached micro SD card. Id. He testified that the
extracted information was retained and preserved on the forensic server.
[10] With regard to what he was looking for, Detective Floyd stated that he was
instructed to see if there were any pictures or videos that would be relevant to
the alleged offense and also to look for evidence of deleted information. He
reported that he “found no items of relevance on the phone.” Id. at 85. The
physical phone was thereafter returned to the Brown County Sheriff’s
Department. Detective Floyd testified that, based on his experience, anything
that could be extracted from the phone was extracted by him and preserved. Id.
at 85-86. On cross-examination, Detective Floyd acknowledged that his
software program was not the only program used around the country to extract
data. The State also called Wagers, who testified that law enforcement returned
the phone to her after examination and that it had value to her because it still
had unused minutes on it. She stated that at some point after it was returned to
her, the screen cracked, and she deleted everything and gave it to her father.
[11] In arguing for the trial court to grant Haines’s motion to dismiss, defense
counsel urged that the phone “clearly should have been expected to play a
significant role in [Haines]’s defense,” as the phone “may have exonerated
[Haines] from the crimes with which he is charged[,]” but “because the phone
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 8 of 24 itself has been effectively destroyed” it could not be independently examined by
an expert. Id. at 90. The State’s failure to preserve the phone, Haines argued,
prejudiced him. The State responded that a backup of the extracted data was
preserved and remained available. The next day, the trial court issued an order
denying Haines’s motion to dismiss. Appellant’s App. Vol. 2 at 69-71. In it, the
trial court found that the phone was “potentially useful” evidence, but was not
“materially exculpatory” evidence, and, further, a digital backup copy of the
phone’s contents existed and was available to both parties or their experts. Id.
Finding that there was no evidence of bad faith by the State and no grounds for
dismissal of the pending charges, the trial court denied Haines’s motion.
[12] A bifurcated jury trial was held on March 27 through March 30, 2017. The
State called, among other witnesses, Wagers, her sister Jamie, both Children,
and deputies. Wagers testified as to the events of the night in question, which
began because Haines kept demanding to see the contents of her cell phone,
which she described as “a generic prepaid phone.” Tr. Vol. IV at 168. She
described being yelled at, punched, sexually assaulted, strangled, hit with a
metal pole, and having Haines throw a bike at her. She stated, “When he made
me perform oral sex, . . . he was telling me that he was recording everything[,]”
and saying, “Everyone’s going to know how much of a whore you are.” Id. at
181. When asked, “Do you know if he was recording or not?” she replied,
“That’s what he was telling me.” Id. at 182, 218. She testified that she turned
the phone over to law enforcement, and, after it had been examined, they
returned it to her. When asked why she wanted the cell phone back, she stated,
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 9 of 24 “I’m a single mother with two kids. I had to have my phone.” Id. at 186. She
stated that she kept it and used it “for a long time[,]” but “[t]he screen ended up
breaking so I had to replace it, the phone.” Id.
[13] As is relevant to this appeal, Wagers also testified about prior acts of domestic
violence against her by Haines. Haines objected, but the trial court stated that it
would allow two specific acts, as they were relevant to Haines’s motive. Prior
to Wagers’s testimony concerning prior bad acts, the trial court gave the
following admonishment:
Ladies and gentlemen, you are about to hear some evidence of acts other than those that are charged in this case. This evidence is being received only on the issue of motive and you should consider it - should be considered by you only for that limited purpose.
Id. at 204. Wagers then testified that in October 2009, Haines accused her of
sleeping with a neighbor, and during their argument about it, Haines hit
Wagers in the face and strangled her while the Children were present. He was
convicted for his actions. Id. at 204-05. She also testified that, in June 2015,
Haines pushed Wagers on the floor during an argument, and as she drove
away, he fired a shotgun at her car. Id. at 205-07.
[14] Deputy Stargell testified to being dispatched around 11:00 a.m. on December 9,
2015 and that Wagers told him she had been battered and sexually assaulted the
night before by Haines. Lieutenant Michael Moore testified that he went to the
scene to assist Deputy Stargell, and he observed that Wagers was “definitely
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 10 of 24 distraught” and sometimes crying. Id. at 136. Nathan Tompkins, previously a
detective with the Brown County Sheriff’s Department, testified that he was
contacted by Deputy Stargell, came to Haines’s residence, and interviewed
Wagers. She described sexual assaults, being punched in the face, being
choked, and he observed injuries to her leg. He later interviewed the Children,
separately, at their school. Pictures that authorities had taken of Wagers and
her injuries were admitted into evidence.
[15] Chief Deputy Morris explained that, on the night in question, he collected
Wagers’s phone as evidence “because there were allegations that the phone had
been used to facilitate the alleged assault in some fashion,” Tr. Vol. V at 133,
and he contacted the Fishers Police Department and asked them to analyze the
phone. When asked why he ultimately returned the phone to Wagers, he
explained that (1) “[T]hey did not recover any type of evidence of the alleged
assault,” and, therefore, Chief Deputy Morris “did not see any evidentiary
value in it,” and (2) Wagers seemed attached to the phone and wanted it back,
and “she’s a single mother, live[s] somewhat remotely, and . . . was of a very
modest means, and that seemed her only mode of communicating with the []
outside world if something were to happen. I felt, you know, prudent to give
her the phone back.” Id. at 134-35. He estimated that he returned the phone to
Wagers approximately one week after collecting it from her.
[16] Jamie testified that Wagers called her on the morning of December 9, 2015,
stating that she needed help. Jamie said that, when she arrived, Wagers was
upset, crying and in pain, and “hobbling” due to “a big gash” in her leg. Id. at
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 11 of 24 85. At Wagers’s request, Jamie helped to gather Wagers’s belongings and the
Children’s belongings. They followed each other back to Wagers’s house and
called police.
[17] Detective Floyd testified that an investigator with the Brown County Sheriff’s
Department contacted the Fishers Police Department to assist with a forensic
examination of Wagers’s cell phone; Detective Floyd noted that it was not
uncommon for other departments to request forensic examination of items. He
conducted a forensic examination of the phone, which was a Motorola prepaid
phone. He explained the ideal process was to “make a bit for bit copy” of the
device in question, which means to “take every bit of memory that it has and
copy it so we can examine it forensically[,]” but depending on the manufacturer
and the model, sometimes a bit for bit copy is not possible, in which case he
would attempt to get “a logical copy,” which is what you can see on the device.
Id. at 94. Detective Floyd explained that some “track phones” are designed not
to communicate with computers, although “this particular phone was able to
communicate” with the computer. Id. at 95. However, Detective Floyd was
not able to conduct a bit for bit examination of Wagers’s phone, and instead,
his department “pull[ed] all the back up data and the shared back up data off
the phone.” Id. at 96. He stated that he “did not find anything of evidentiary
value” on the phone, indicating he did not find “any video that might
demonstrate the allegation.” Id. at 97. He could not testify as to whether there
was a video that had been deleted from Wagers’s cell phone. Detective Floyd
testified that all the information obtained from the phone was preserved, and he
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 12 of 24 still had it as of the date of trial. He also testified that he gave the phone and a
CD or DVD of its contents to the Brown County investigator. The computer
program that Detective Floyd used to extract and copy data was called
Cellebrite, and he acknowledged the possibility that some other program
potentially may have been able to access other information on the phone. Id. at
102-03.
[18] Right before the State rested its case-in-chief, counsel for Haines renewed his
motion to dismiss “based on destruction of evidence,” stating “the phone
should have been preserved as potential exculpatory evidence and it was not
preserved.” Id. at 179. The State argued that the phone’s extracted data “is
available and still stored and remains available.” Id. at 180. After it was
confirmed that the digital copy of the phone’s contents still remained available,
the trial court reaffirmed its denial of Haines’s motion to dismiss. Id. at 179-90,
235-36.
[19] The jury found Haines not guilty of the rape charge and guilty of the remaining
counts. Haines waived a jury trial as to the habitual offender charge, and, after
a hearing, the trial court adjudicated him to be a habitual offender. On April
20, 2017, Haines filed a motion to correct error, relying on the recently-decided
case of Johnson v. State, which held that “convictions from which the offender
was released more than ten years before the current offense do not count for
habitual purposes under [Ind. Code section 35-50-2-8(d)].” 75 N.E.3d 549, 552-
53 (Ind. Ct. App. 2017), trans. granted. Haines argued that, in his case, two of
the prior convictions relied upon by the State for his habitual offender
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 13 of 24 enhancement did not count under Johnson for habitual purposes, and he asked
the trial court to vacate the habitual offender finding. Appellant’s App. Vol. 2 at
227-28. The State filed a response indicating that transfer would be sought and
that the Johnson case had not yet been certified. The trial court took the matter
under advisement.
[20] On May 1, 2017, the trial court set the motion to correct error for hearing, and
it imposed a nine-year sentence on the criminal confinement conviction,
enhanced by six years for the habitual offender adjudication, two and one-half
years on the domestic battery conviction, and one year on the firearm
possession conviction, with the sentences to run concurrently for an aggregate
sentence of fifteen years. Id. at 19, 245-48; Tr. Vol. VI at 151-52. The court
subsequently vacated the conviction for Level 6 felony strangulation on double
jeopardy grounds. Appellant’s App. Vol. 2 at 250; Tr. Vol. VI at 181. In August
2017, the trial court denied Haines’s motion to correct error, noting that transfer
had been granted in the Johnson case. Appellant’s App. Vol. 2 at 21; Appellant’s
App. Vol. 3 at 10. Haines now appeals.
Discussion and Decision
I. Evidence Rule 404(b) [21] Haines asserts on appeal that the trial court erred when it admitted evidence of
his prior bad acts, namely a prior domestic violence conviction and a pending
charge of criminal recklessness, with Wagers being the victim in both. The trial
court has sound discretion to admit or exclude evidence, and we will reverse
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 14 of 24 only when an abuse of that discretion occurs. Iqbal v. State, 805 N.E.2d 401,
406 (Ind. Ct. App. 2004). An abuse of discretion occurs when the trial court
determines an issue in a manner that is “clearly against the logic and effect of
the facts and circumstances.” Id.
[22] Generally, evidence that is relevant – that is, evidence that has probative value
as to an issue of fact in a case – is also admissible. Ind. Evidence Rules 401,
402. Indiana Evidence Rule 403 provides that where the probative value of the
evidence is substantially outweighed by a danger of unfair prejudice, confusion
of the issues, misleading the jury, undue delay, or needless presentation of
cumulative evidence, otherwise relevant evidence may be excluded. Indiana
Evidence Rule 404(b) further limits the admissibility of otherwise relevant
evidence and provides that while evidence of a person’s other crimes, wrongs,
or acts may not be used to prove that a person acted in conformity with such
other crimes, wrongs, or acts, such evidence may be admissible for other
purposes, including proof of motive. In assessing the admissibility of Rule
404(b) evidence, a trial court must undertake a two-step analysis: (1) determine
whether the evidence is relevant to a matter at issue other than the defendant’s
propensity to commit the charged act, and (2) balance the probative value of the
evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221 (Ind.
1997); Goldsberry v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005).
[23] With regard to the first step of the inquiry, we have recognized that “where a
relationship between parties is characterized by frequent conflict, evidence of
the defendant’s prior assaults and confrontations with the victim may be
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 15 of 24 admitted to show the relationship between the parties and motive for
committing the crime.” Iqbal, 805 N.E.2d at 408. With regard to the second
step, “‘The trial court has wide latitude, however, in weighing the probative
value of the evidence against the possible prejudice of its admission.’”
Goldsberry, 821 N.E.2d at 455 (quoting Evans v. State, 727 N.E.2d 1072, 1079
(Ind. 2000)).
[24] Here, the State offered evidence of an October 2009 incident, for which Haines
was ultimately convicted, during which Haines accused Wagers of having slept
with a neighbor, and he hit her in the face and strangled her, in the Children’s
presence. The State also offered evidence of a June 2015 incident, for which
Haines faced pending charges, when during an argument Haines pushed
Wagers and then shot at her car as she drove away. He also shot her cell phone
that she had left at his house. The State offered the evidence of the two prior
bad acts to show Haines’s motive of control over the victim, and Haines
objected that the evidence was unduly prejudicial under Indiana Evidence Rule
403. The trial court admitted the evidence as proper motive evidence, showing
the relationship between the parties and a motive – hostility – for the crimes.
Prior to the State offering the evidence, the trial court admonished the jury:
Ladies and gentlemen, you are about to hear some evidence of acts other than those that are charged in this case. This evidence is being received only on the issue of motive and you should consider it - should be considered by you only for that limited purpose.
Tr. Vol. IV at 204.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 16 of 24 [25] On appeal, Haines acknowledges that “[i]n . . . domestic violence trials, courts
often allow evidence of prior domestic violence involving the same victim to
show the motive of hostility and give context to the parties’ relationship,” but
he contends that, “[g]iven the [S]tate’s other evidence regarding motive and the
dissimilarities between the prior incidents and the current incident and the
inflammatory nature of the evidence regarding the discharge of a firearm,” the
State’s stated purpose of motive was “too attenuated to justify admission for
that purpose.” Appellant’s Br. at 13-14. We disagree with his suggestion that the
evidence was “too attenuated” to the present offenses to show motive. Both
incidents present a similar factual scenario to the charged conduct in this case.
The October 2009 incident stemmed from Haines’s suspicions and accusations
that Wagers was involved with another man, which is what precipitated the
argument in this case. In the 2009 argument, Haines hit Wagers in the face and
strangled her in the presence of Children, and, in this case, he similarly hit her,
strangled her, and then hit her in the leg with a metal post, in the Children’s
presence. In the 2015 incident, Haines had pushed Wagers to the ground, and
he had fired a shotgun at her car when she attempted to leave; the present case
similarly included a battery and a shotgun, with Wagers testifying that Haines
made her retrieve his shotgun and place it in the corner of the room and that
she was afraid to try to leave the residence until after he had gone to work the
next day. We find that the prior bad acts that were admitted were relevant to
show the volatile and hostile relationship between Haines and Wagers and
Haines’s motive for committing the crimes.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 17 of 24 [26] Haines also argues that, even if the evidence was relevant to motive, “its
prejudicial effect far outweighed its probative value.” Appellant’s Br. at 13-14.
We disagree. The trial court did not permit all the evidence that the State had
desired to introduce as outlined in its Notice filed before trial; that is, the trial
court granted Haines’s motion in limine to exclude other uncharged acts of
domestic violence as well as past protective orders that Wagers had obtained
against Haines. Appellant’s App. Vol. 2 at 109-11. The prior bad acts that were
permitted into evidence were limited in scope, were similar to the instant
offenses, and involved the same victim, and the trial court gave a limiting
instruction to the jury, directing it that the evidence should not be considered
for anything other than Haines’s motive for engaging in the charged acts.
“When a limiting instruction is given that certain evidence may be considered
only for a particular purpose, the law will presume that the jury will follow the
trial court’s admonitions.” Ware v. State, 816 N.E.2d 1167, 1176 (Ind. Ct. App.
2004); see also Embry v. State, 923 N.E.2d 1, 10 (Ind. Ct. App. 2010) (finding that
a court’s limiting instruction reduced any prejudice from the admission of Rule
404(b) motive evidence of prior acts of violence between the parties), trans.
denied. Based on the record before us, we find that the trial court did not abuse
its discretion when it admitted the Rule 404(b) evidence.
[27] Furthermore, even if it was error to admit the evidence, as Haines claims, it was
harmless. That is, “Even when a trial court abuses its discretion in admitting
evidence under Rule 404(b), ‘we will only reverse for that error if ‘the error is
inconsistent with substantial justice’ or if ‘a substantial right of the party is
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 18 of 24 affected.’” Stettler v. State, 70 N.E.3d 874, 881 (Ind. Ct. App. 2017) (quoting
Iqbal, 805 N.E.2d at 406 and Timberlake v. State, 690 N.E.2d 243, 255 (Ind.
1997)), trans. denied. Here, the jury acquitted Haines of the rape charge, and the
evidence of Haines’s guilt on the other charges was substantial, given Wagers’s
own consistent testimony, which was corroborated by the Children’s testimony
about hearing the argument in the bathroom, summoning Grandmother
because they were scared, observing Haines throw a bike at Wagers, and seeing
him place her in a choke hold. Wagers’s testimony was also corroborated by
her physical injuries. Haines has not shown that he was denied a fair trial by
the trial court’s decision to admit the challenged evidence. Accordingly, we
find no error, let alone reversible error, in the admission of the evidence.
II. Motion to Dismiss [28] Haines claims that because the Brown County Sheriff’s Department returned
Wagers’s cell phone to her after it had been forensically examined, and he was
thus precluded from having another expert examine the phone, the State failed
to preserve materially exculpatory evidence, and Haines’s due process rights
were violated such that the trial court should have granted his motion to
dismiss. We review a trial court’s ruling on a motion to dismiss for abuse of
discretion. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010).
[29] “When determining whether a defendant’s due process rights have been
violated by the State’s failure to preserve evidence, we must first decide whether
the evidence is potentially useful evidence or material[ly] exculpatory
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 19 of 24 evidence.” Id. Materially exculpatory evidence is evidence that “possesses an
exculpatory value that was apparent before the evidence was destroyed” and
must “be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” Id. (quoting Noojin
v. State, 730 N.E.2d 672, 675-76 (Ind. 2000) and California v. Trombetta, 467 U.S.
479, 489 (1984)). Exculpatory evidence is defined as “[e]vidence tending to
establish a criminal defendant’s innocence.” Id. (quoting Black’s Law
Dictionary 597 (8th ed. 2004)). The State’s duty to preserve exculpatory
evidence is limited to evidence that might be expected to play a significant role
in a defendant’s defense. Id. Failure to preserve material exculpatory evidence
violates due process regardless of whether the State acted in good or bad faith.
Id.
[30] In contrast, potentially useful evidence is “‘evidentiary material of which no
more can be said than that it could have been subjected to tests, the results of
which might have exonerated the defendant.’” Blanchard v. State, 802 N.E.2d
14, 26 (Ind. Ct. App. 2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 57
(1988)). The government’s failure to preserve potentially useful evidence does
not constitute a denial of due process of law “unless a criminal defendant can
show bad faith on the part of the police.” Durrett, 923 N.E.2d at 453. “Bad
faith is defined as being ‘not simply bad judgment or negligence, but rather
implies the conscious doing of wrong because of dishonest purpose or moral
obliquity.’” Blanchard, 802 N.E.2d at 27-28 (citing Samek v. State, 688 N.E.2d
1286, 1289 (Ind. Ct. App. 1997), trans. denied).
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 20 of 24 [31] Here, the trial court determined that the phone was not materially exculpatory
evidence and was, instead, potentially useful evidence and that the State did not
act in bad faith. We agree with this determination. Wagers told deputies that
Haines had told her that he was recording her, so they collected her phone as
potential evidence. The cell phone was then forensically analyzed, and no
relevant videos or pictures were found on it; nonetheless, the entirety of the
phone’s contents was digitally saved and was available to both parties and their
experts.6 Because the phone “could have been subjected to tests, the results of
which might have exonerated the defendant” it was potentially useful evidence.
Durrett, 923 N.E.2d at 453. For any due process violation to have occurred,
however, Haines was required to show that the State acted in bad faith. Id. In
this case, where (1) nothing of evidentiary value was found on the phone, (2) its
entire contents were saved, and (3) Wagers needed the phone, the Brown
County Sheriff’s Department returned it to her. There is no indication that the
State attempted to hide or destroy evidence or engaged in conscious
wrongdoing. To the extent that Haines suggests that, under the facts of this
case, we should “presume” that the State acted in bad faith, that is not the law,
6 We note that, according to the record before us, the State provided a digital copy of the phone to Haines during the trial. Appellant’s App. Vol. 2 at 62-63; Tr. Vol. V at 183-90, 234. Haines did not thereafter seek to admit into evidence anything found on the phone.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 21 of 24 and we reject that argument. Appellant’s Br. at 20. The trial court did not abuse
its discretion when it denied Haines’s motion to dismiss.7
III. Habitual Offender [32] In May 2017, the trial court imposed a nine-year sentence on the confinement
conviction, enhanced by six years for the habitual offender adjudication, two
and one-half years on the domestic battery conviction, and one year on the
firearm possession conviction, to run concurrent with each other for an
aggregate sentence of fifteen years. Appellant’s App. Vol. 2 at 19, 245-48; Tr. Vol.
VI at 151-52. On appeal, Haines asserts, and the State concedes, that his
habitual offender adjudication must be vacated. We agree. When Haines
committed the present offenses, Indiana’s habitual offender statute, Indiana
Code subsection 35-50-2-8(d), stated:
A person convicted of a felony offense is a habitual offender if the state proves beyond a reasonable doubt that:
(1) the person has been convicted of three (3) prior unrelated felonies; and
(2) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
7 We note that, at the hearing on the motion to dismiss, counsel for Haines argued, among other things, that “[W]e are completely unable to present a defense to count I of rape without that cell phone.” Tr. Vol. II at 91. The jury found Haines not guilty of the rape charge.
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 22 of 24 (B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) and the time the person committed the current offense.
[33] As the State acknowledges, all of Haines’s prior felonies relied upon for his
habitual offender finding were Class D felonies, and in December 2017 our
Supreme Court in Johnson v. State interpreted Indiana Code section 35-50-2-8(d)
and held that each prior lower-level felony used for habitual offender purposes
must meet the statute’s ten-year requirement.8 87 N.E.3d 471, 473 (Ind. 2017).
Here, while the State proved that Haines has three prior unrelated felonies, not
all three met the ten-year requirement. We thus reverse the habitual offender
enhancement and remand to the trial court for resentencing proceedings
consistent with this decision.9
8 As our Supreme Court observed in Johnson v. State, “The legislature has since amended subsection 8(d), which now provides ‘not more than ten (10) years have elapsed between the time the person was released from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior unrelated felonies and the time the person committed the current offense.’ I.C. § 35-50-2-8(d) (2017).” 87 N.E.3d 471, 473 n.1 (Ind. 2017). 9 As the State observes, our Supreme Court in Coble v. State, 523 N.E.2d 228, 229 (Ind. 1988) held that when a habitual offender enhancement is vacated on appeal, the trial court has the authority on remand to resentence the defendant on the underlying felony to which the habitual enhancement had been attached. Appellant’s Br. at 27. We note that this court recently acknowledged the Coble decision and stated, “[G]iven
Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018 Page 23 of 24 [34] Affirmed in part, reversed in part, and remanded.
Bailey, J., and Pyle, J., concur.
the relationship between a habitual offender enhancement and the offense to which that enhancement is attached, the trial court does have the authority on remand to resentence the defendant on the attached offense.” Jackson v. State, 88 N.E.3d 1106, 1110 (Ind. Ct. App. 2017) (holding that the underlying sentence in Jackson’s case was not subject to change on remand because, unlike habitual enhancements that “attach” to a particular conviction, the vacated criminal gang enhancement did not attach to a conviction to enhance the sentence), trans. pending. Thus, here, the trial court may resentence Haines on the criminal confinement conviction, if it wishes to do so. Our Supreme Court has also held that, on remand, the State in some cases may retry a defendant on the habitual enhancement. See Calvin v. State, 87 N.E.3d 474, 479 (Ind. 2017) (reversing habitual offender enhancement as unsupported by sufficient evidence and remanding for retrial on that enhancement); Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012) (reversing habitual offender enhancement and remanding for resentencing, stating, “[R]etrial on a sentencing enhancement based on a prior conviction is permitted even where the enhancement is reversed because of insufficient evidence.”).
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