Joshua Adam Anderson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2019, 10:43 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Curtis T. Hill, Jr.
Jason Gray, Certified Legal Intern Attorney General of Indiana
Riley L. Parr, Certified Legal Intern
Appellate Clinic Tyler G. Banks
Indiana University Deputy Attorney General
Robert H. McKinney School of Law Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Adam Anderson, July 31, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2599
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G04-1611-MR-44184
Crone, Judge.
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Case Summary
[1] Joshua Adam Anderson appeals his conviction for murder, a felony. He
contends that the trial court abused its discretion by admitting certain evidence
and committed fundamental error by inadvertently failing to collect an exhibit
that was passed out to the jury and failing to give a reasonable theory of
innocence instruction. He also asserts that the sentencing order incorrectly
indicates that two counts with which he was charged were dismissed when the
jury actually found him not guilty of those counts. Finding that the trial court’s
failure to collect the exhibit did not result in fundamental error and further
finding that the trial court committed no error in admitting evidence or
instructing the jury, we affirm his conviction.1 However, because the
sentencing order does not correctly reflect that the jury found Anderson not
guilty of two counts with which he was charged, we remand for correction of
the sentencing order.
Facts and Procedural History
[2] All relevant events occurred in 2016. In September of that year, Anderson met
Sam Huggins. They developed an intimate relationship, and Anderson moved
into Huggins’s Indianapolis apartment. On the night of either November 4 or
5, Anderson introduced his friend, Edward Parr, to Huggins. Huggins picked
1
Anderson also asserts that the cumulative effect of the trial court’s errors resulted in fundamental error
requiring reversal of his conviction. Given our resolution of his individual claims of error, we need not
address his claim of cumulative error.
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up Anderson and Parr in his silver 2000 Jeep Cherokee and drove them to his
apartment where the three drank alcohol. Parr was surprised when he saw
Huggins and Anderson kissing because he was unaware that Anderson was
homosexual. At some point, Huggins asked Parr to leave, and Parr walked
home.
[3] The next day, Anderson called Parr, and they met near an Indianapolis library.
They talked “about what happened inside [Huggins’s] apartment” the night
before, and Anderson told Parr, “[S]ometimes you got to do what you got to do
to get what you want.” Tr. Vol. 2 at 103-04.
[4] On November 6 at about 5:00 a.m., Anderson called Parr and asked him if he
wanted to “get high.” Id. at 104. Parr agreed, and Anderson picked up Parr in
Huggins’s Jeep. Anderson explained to Parr that Huggins had left town to visit
his sister in Florida and that Huggins had left Anderson the Jeep, some money,
a credit card, and a debit card, and told Anderson to have fun. Over the course
of the next few days, Anderson used Huggins’s credit and debit cards to obtain
money to buy crack cocaine. In fact, Huggins’s bank and credit records
revealed that between November 7 and 10, more than $1500 had been
withdrawn or spent from Huggins’s two bank accounts and one credit card
account. When Anderson ran out of money, he returned to Huggins’s
apartment and took two television sets, an Xbox, and some DVDs to trade for
drugs.
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[5] Anderson and Parr did drugs in a hotel room for a day and a half and then went
to various friends’ homes, where they continued to use drugs. Sometimes
Anderson left Parr and drove the Jeep somewhere else to buy more drugs.
After one of these trips, Anderson returned to Parr’s location without the Jeep
but as a passenger in someone else’s vehicle. On the night of November 7,
Anderson and Parr walked to Parr’s home. As they walked, Anderson started
crying and told Parr that he “choked the life out of [Huggins] and threw him in
the bathtub.” Id. at 109. Parr was not sure whether to believe Anderson.
[6] On the morning of November 8, Parr sent an anonymous email tip to the police
through Crime Stoppers. The following day, Parr called the Indianapolis
Metropolitan Police Department and spoke to Detective Robert Flack. After
confirming some of the information relayed by Parr, Detective Flack went to
Huggins’s apartment. A maintenance worker opened the door to the apartment
to allow the detective to enter. Detective Flack saw no signs of forced entry.
He announced his presence multiple times and called out for Huggins but
received no response. He walked through the apartment and entered the
bedroom, where he observed an unmade bed, a single slipper on the floor next
to the bed, and an empty space where he believed a television had been. He
saw no signs of a struggle. As Detective Flack approached the bathroom, he
detected “a fragrance-type odor.” Id. at 29. He entered the bathroom, pulled
back the shower curtain, and found Huggins’s dead body in the bathtub. The
bathtub was filled with water, in which opened bottles of cologne and
mouthwash were floating. Huggins was wearing his underwear, his shirt was
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pulled up partway over his head, and he had on one slipper that paired with the
one Detective Flack had seen by the bed.
[7] A forensic pathologist performed an autopsy and determined that Huggins’s
cause of death was asphyxia due to strangulation and drowning. Id. at 188.
The pathologist also observed numerous injuries to Huggins’s head and body: a
contusion on the left side of the forehead, a laceration to the right ear, a
hemorrhage in the conjunctiva in his right eye, small abrasions on his upper
right neck and chest area, contusions on both elbows, and multiple injuries to
his chest caused by blunt trauma. Id. at 173-81.
[8] On November 10, Anderson turned himself in to police. Detective Jose Torres
interviewed Anderson. This interview was recorded on video (“the Interview”).
State’s Ex. 102. Anderson was informed of and waived his Miranda rights.
During the Interview, Anderson admitted that he believed that he had killed
Huggins. Id. at 9:20–12:30. He explained that he thought he killed Huggins
when, while the two were having sex, he was choking Huggins at Huggins’s
request. Id. at 8:30–12:30. Anderson said that he was sorry and that it was a
horrible accident. Anderson told Detective Torres, “[T]his is a man I loved,
and I never had no, absolutely no intention in this world of hurting him.” Id. at
28:30–28:36. Anderson admitted to Detective Torres that he used Huggins’s
debit and credit cards in the days following Huggins’s death and that he had
taken televisions and DVDs from Huggins’s apartment to trade for drugs. Id. at
13:45–15:20.
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[9] During the Interview, Anderson also discussed an October incident involving
himself and Huggins when police were called (“the October Incident”). Id. at
6:30–6:45; 7:17–7:59. He disclosed that one evening he wanted to buy cocaine
while Huggins wanted to buy marijuana, and they began to argue about which
drug to buy. During the argument, Anderson pushed Huggins into a dresser
and, for a minute or two, kept Huggins from leaving the living room because he
wanted Huggins to listen to him. Anderson said he was arrested that night and
charged “with a few different things.” Id. at 7:48–7:59.
[10] Anderson also discussed his alcohol use on the night of the October Incident
and the night of Huggins’s death. He said that he and Huggins were in a great
mood the night of Huggins’s death, that they were drinking, and that Anderson
let his “drinking get out of hand.” Id. at 38:10–38:16. He explained, “I’m not
the type of person that does this, and you can know, you can ask anybody that
knows me. I’m, I am not a violent person, in the least bit, it’s but when you
introduce tons of alcohol into my system, I become an a**hole.” Id. at 38:33–
38:50. Detective Torres then asked Anderson, “Is that what happened earlier
when, when you [were] arrested for the battery and everything with
[Huggins]?” Id. at 38:52–38:58. Anderson replied, “[Y]eah I was drunk
then[.]” Id. at 39:00. Detective Torres queried, “So you have the tendency to
become a little more violent when you (inaudible).” Id. at 39:03. Anderson
responded, “Yeah when I…. when I drink a lot yeah. …. But uh but yeah, other
than that, I mean unless I’m extremely whacked out of my mind, I don’t put
my hands on people. I just don’t do it.” Id. at 39:06–39:19.
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[11] On November 14, the State charged Anderson with Count 1, murder; Count 2,
murder while committing or attempting to commit robbery; and Count 3,
robbery resulting in serious bodily injury. Prior to trial, the State filed a notice
of intent to offer evidence about the October Incident pursuant to Indiana
Evidence Rule 404(b), which Anderson opposed. Following a hearing, the trial
court ruled that the evidence of the October Incident was admissible to show
motive, absence of mistake or accident, and/or the nature and circumstances of
the relationship between Anderson and Huggins. Also prior to trial, Anderson
filed a motion in limine to exclude any evidence that he has a tendency to
become violent when he is intoxicated, which the trial court denied. In
addition, he filed a notice of proposed redactions to the Interview and
objections to the admission of portions of the Interview that related to the
October Incident and to his character while under the influence of alcohol,
which the trial court also denied.
[12] At trial, the trial court admitted, over Anderson’s objection, evidence related to
the October Incident and to his use of alcohol and its effects on him. This
evidence included portions of State’s Exhibit 102, the video recording of the
Interview, and State’s Exhibit 103, the transcript of the Interview. It also
included testimony from Officer Pepper Eldridge, the officer who responded to
the October Incident, and photographs taken that night. However, the trial
court granted Anderson’s request for the following admonishment to the jury,
which was given when Exhibits 102 and 103 were admitted:
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This exhibit, which is a video recording that’s going to be played
for you here in a minute, you’ll have State’s Exhibit 103, which is
the transcript. You’ll have a copy of that transcript. It is a
transcript that was prepared by someone who listened to it and
typed it up. So there could be mistakes that were made in it.
There could be typographical errors. What you hear is the
evidence you can consider, all right. What you see is only an aid
for you as you listen to the video recording and watch the video
recording, okay. So if you see something different between the
two, the evidence you can consider is what you hear and see,
okay.
….
…. There will be evidence introduced that the defendant was
involved in wrongful conduct other than those charged in the
information. This evidence has been received solely on the issue
of the defendant’s motive, nature of the relationship between
[Anderson] and [Huggins], and/or the absence of accident. This
evidence should be considered by you only for those limited
purposes. This evidence should be considered by you as evidence
of the defendant’s character.
….
[T]hanks for correcting me. …. This evidence should not be
considered by you as evidence of the defendant’s character.
Tr. Vol. 3 at 17-18.
[13] The Interview was played for the jury. Before it was finished, the trial court
took a recess. The trial court informed the jurors that they could not keep
Exhibit 103 and to leave it on their chairs. Id. at 19. There is no indication in
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the record that the jurors failed to follow the trial court’s instructions during this
recess. After the recess, the trial court finished playing the Interview, and the
State called Officer Eldridge to testify.
[14] Officer Eldridge testified that she responded to a request for police assistance on
October 2 at about 9:00 p.m. She explained that police assistance was
requested because somebody was pounding on a patio screen door and would
not leave. When she arrived at the apartment building, a Mr. Yates approached
her and told her that his friends “had a subject behind that residence detained,”
whom Officer Eldridge identified as Anderson. Id. at 30. Yates and his friends
told Officer Eldridge that they saw their neighbor, Huggins, run out of his
apartment after Anderson, and Yates and his friends chased Anderson because
they thought a crime was occurring. Yates told Officer Eldridge that Anderson
was carrying a backpack that contained a bottle of alcohol and a white sock
containing another bottle of alcohol. One of the bottles of alcohol was open,
and Officer Eldridge testified that Anderson had been drinking it. Yates and his
friends did not report witnessing any violence between Anderson and Huggins,
and Detective Eldridge did not observe any violence between Anderson and
Huggins. However, Officer Eldridge observed that Huggins had a gash several
inches long on the inside of his right forearm and that Huggins’s front door
frame had been kicked in. During Officer Eldridge’s testimony, photographs
taken that night were admitted over Anderson’s objection, including a
photograph of Anderson sitting on the curb in handcuffs, a photograph of his
backpack and a bottle of alcohol, a photograph of the damaged door frame, and
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photographs of the injury to Huggins’s forearm. State’s Exhibits 104, 105, 107,
108, 109.
[15] At the conclusion of Officer Eldridge’s testimony, the State rested. The trial
court took another recess. The jurors still had Exhibit 103, but the trial court
did not instruct them to leave the exhibit on their chairs. Before the jury
returned, the prosecutor reminded the trial court that Exhibit 103 needed to be
collected. The trial court responded, “Yes, we do. I think they wanted to leave
them here but were told to take them back. And I heard him do that, but I
didn’t think about the fact they had the transcripts and we hadn’t pulled them.”
Id. at 40. From this comment, it appears that the jurors took Exhibit 103 with
them into the jury room during this recess.
[16] When the jury returned, the defense presented its case. During Anderson’s
testimony, the jurors retained possession of Exhibit 103. Anderson testified that
he loved Huggins, that Huggins asked him to choke him during sex, that he was
uncomfortable doing so but agreed because he wanted Huggins to be happy,
and that they had engaged in that sexual activity two or three times previously
without any problem. Anderson testified that on the day of Huggins’s death, he
had been drinking since noon and was drunk when they went to bed to engage
in sex, and that at some point he could not remember what happened. He said
that he was still drunk when he woke up naked and lying partially on the right
side of the bed. He saw Huggins lying on the ground and thought Huggins
might be unconscious. He checked Huggins’s pulse and checked to see if he
was breathing and started “freaking out.” Id. at 59. He testified that he carried
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and dragged Huggins’s body into the bathroom and put him in the bathtub. He
did not remember putting more water in the bathtub, so he thought the water
must have already been there from an earlier bath. He said he took Huggins’s
wallet, keys, and phone, and left in Huggins’s car. He explained that he wanted
to get high to help him forget the whole night. He denied that he meant for
what happened to Huggins to happen. He also denied that what happened to
Huggins was because he wanted money or because he wanted something
Huggins would not give him.
[17] During Anderson’s testimony, the trial court took another recess. The trial
court did not instruct the jury to leave Exhibit 103 on their chairs, but there is
no indication in the record that the jury took the exhibit with them during this
recess. At the conclusion of Anderson’s testimony and after defense counsel
rested, the prosecutor reminded the trial court that Exhibit 103 had not been
collected. The trial court then instructed the jurors to hand the exhibit to the
bailiff. During closing argument, Anderson’s counsel conceded that Anderson
committed reckless homicide, but argued that the State’s evidence did not
support murder or robbery. The trial court provided final jury instructions,
which included an instruction on reckless homicide. The jury found Anderson
guilty on Count 1 and not guilty on Counts 2 and 3. The sentencing order
incorrectly shows that Counts 2 and 3 were dismissed. Appellant’s App. Vol. 2
at 16. The trial court sentenced Anderson to sixty years. This appeal ensued.
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Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
admitting certain evidence.
[18] Anderson contends that evidence regarding (1) the October Incident and (2) his
tendency to become violent when intoxicated was improper character evidence
inadmissible under Indiana Evidence Rule 404.2 We review evidentiary rulings
for an abuse of discretion resulting in prejudicial error. Williams v. State, 43
N.E.3d 578, 581 (Ind. 2015). An abuse of discretion occurs when the trial
court’s ruling is either clearly against the logic and effect of the facts and
circumstances before it or the court misinterprets the law. Id. In determining
whether improperly admitted evidence has prejudiced the defendant, we assess
the probable impact of that evidence on the jury in light of all the other properly
admitted evidence. Id. If independent, properly admitted evidence of guilt
supports the conviction, the error is harmless. Id.[19] Turning first to the evidence Anderson challenges regarding the October
Incident, he focuses solely on Officer Eldridge’s testimony and the
corresponding photographic exhibits, which he contends were inadmissible
under Indiana Evidence Rule 404(b). Rule 404(b) prohibits the admission of
evidence of another crime, wrong, or act “to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the
2
We reject Anderson’s claim that the State failed to address either of his arguments regarding the admission
of evidence simply because the State consolidated his arguments into one issue.
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character.” This rule is designed to prevent “the jury from indulging in the
‘forbidden inference’ that a criminal defendant’s ‘prior wrongful conduct
suggests present guilt.’” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019)
(quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)).
[20] Although Evidence Rule 404(b) proscribes the use of evidence of prior bad acts
to show character, it provides that such evidence may be admissible for other
purposes, including, but not limited to, “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
(Emphases added.) To determine whether evidence of prior bad acts is
admissible, the trial court must first assess whether the evidence “is relevant to a
matter at issue other than the defendant’s propensity to commit the charged
act.” Fairbanks, 119 N.E.3d at 568. “The test for admission is whether or not
the evidence is so specifically and significantly related to the charged crime in
time, place and circumstance as to be logically relevant to one of the particular
excepted purposes.” Reeves v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011)
(quoting Malone v. State, 441 N.E.2d 1339, 1346 (Ind. 1982)), trans. denied. If
the proffered evidence meets the relevancy threshold, the trial court must then
apply the balancing test required under Indiana Evidence Rule 403 and
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determine whether the evidence’s probative value is “substantially outweighed”
by the danger of unfair prejudice.3
[21] The State argues that the October Incident evidence was admissible to show
intent and lack of accident. Anderson asserts that Officer’s Eldridge testimony
and the photographic exhibits were not relevant to intent or lack of accident
because the evidence showed no actual violence between the parties. We agree
with the State.
[22] In order for evidence of prior bad acts to be admissible to show intent to
commit the charged crime, the defendant must place his or her intent in issue.
Ceaser v. State, 964 N.E.2d 911, 917 (Ind. Ct. App. 2012), trans. denied. Lack of
accident is a subset of intent. See Fairbanks, 119 N.E.3d at 570 (“[W]hen the
State seeks to introduce other-bad-acts evidence to disprove accident, the State
wants to show the defendant had the requisite mens rea to commit the charged
act.”). Our supreme court has held that prior bad acts are relevant to negate a
claim that the victim’s death was accidental. Crain v. State, 736 N.E.2d 1223,
1235-36 (Ind. 2000).4
[23] Here, Anderson placed his intent and lack of accident in issue. To convict
Anderson of murder under Count 1, the State was required to prove beyond a
3
Evidence Rule 403 states, “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, or needlessly presenting cumulative evidence.”
4
Contrary to Anderson’s claim, prior bad acts do not need to result in charges to be relevant under Evidence
Rule 404(b).
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reasonable doubt that Anderson knowingly or intentionally killed Huggins.
Ind. Code § 35-42-1-1(1). At trial, Anderson admitted that he killed Huggins,
but claimed it was an accident. Specifically, Anderson’s defense was that on
the night of Huggins’s death, Anderson was extremely drunk and unknowingly
and unintentionally killed Huggins while engaging in sexual activities by
accidentally choking Huggins too hard.
[24] In the Interview, Anderson admitted that on the October night when police
were called to Huggins’s apartment, Anderson battered and confined Huggins
during an argument and was arrested and charged with a few things. State’s
Exhibit 102 at 6:30–7:59. He also admitted that he was drunk. Id. at 39:00.
Anderson does not challenge the admission of this evidence on appeal.
Anderson also admitted during the Interview that he had been drinking that
night. Id. at 38:52–39:03. Officer Eldridge’s testimony regarding the October
Incident and the photographic exhibits are directly connected to Anderson’s
admission that he had battered and confined Huggins and provided additional
information to explain what happened that night. Specifically, Officer
Eldridge’s testimony and the photographs showed that Huggins was in fact
injured that night, the extent of that injury and that the injury was probably not
the result of an accident, and that Anderson was drinking alcohol that night.
Therefore, the evidence was relevant to negate Anderson’s claim that he
accidentally caused Huggins’s death.
[25] As for whether the probative value of the evidence of Anderson’s prior
wrongful conduct was substantially outweighed by the potential for unfair
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prejudice such that it was inadmissible under Rule 403, we note that his prior
wrongful conduct and the instant crime had significant similarities, most
notably that they involved the same victim and that Anderson was drinking
both times. It is also significant that the October Incident occurred just a few
weeks before the charged crime. In addition, the trial court gave a limiting
instruction and admonished the jury that Anderson’s prior wrongful conduct
was not admitted to demonstrate character or prove action in conformity
therewith. Balancing the probative value on the issue of intent and lack of
accident against the danger of unfair prejudice, we cannot say the trial court
abused its discretion by admitting evidence of the October Incident.
[26] Turning now to Anderson’s challenge to evidence regarding his tendency to
become violent when intoxicated, he contends that certain portions of Exhibits
102 and 103 were inadmissible under Evidence Rule 404(a)(1), which provides
that “[e]vidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the
character or trait.”5 Specifically, Anderson challenges the admissibility of his
statements that alcohol causes him to “become an a**hole[,]” that he has “the
tendency to become a little more violent[,]” and that “unless I’m extremely
whacked out of my mind, I don’t put my hands on people.” State’s Exs. 102
and 103. Anderson argues that from this evidence the jury could have inferred
5
Evidence Rule 404(a)(2) provides exceptions for a defendant or victim in a criminal case that are not
relevant in this case.
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that “because Anderson has the ‘tendency’ to get violent when he gets drunk,
and because he was drunk at the time of the victim’s death, he must have gotten
violent and murdered Huggins.” Appellant’s Br. at 38. He compares the
evidence here with character evidence that this Court concluded was
inadmissible in Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans.
denied (2003). That case is distinguishable. The evidence in that case included
business cards with mafia names on them and novelty cards with Oldham’s
photograph and captions such as “Considered armed and dangerous.” Id. at
1171. On appeal from his murder conviction, Oldham argued that the
evidence gave rise to the impermissible inference that he was a person with a
dangerous and criminal character and that the murder was entirely consistent
with his character and prior bad acts. Id. at 1172. The State argued that the
business and novelty cards were admissible to show Oldham’s ownership of a
shirt because the evidence was found in close proximity to the shirt. Id. The
Oldham court rejected the State’s argument because the transcript showed that
the State did not attempt to link Oldham’s ownership of the shirt with the
location of the challenged evidence. Id. at 1172-73. Rather, when Oldham
took the stand to testify, the prosecutor showed him the business and novelty
cards and asked him such things as whether he considered himself to be armed
and dangerous. Id. at 1172. The Oldham court concluded that the prosecutor’s
questioning showed that “the prosecutor did not present the items as harmless
novelty items, but tried to use the business cards and the novelty photograph to
paint Oldham as a dangerous criminal. This evidence was obviously
inadmissible under Evidence Rule 404. Id. at 1172-73.
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[27] Anderson’s argument ignores the context in which he made the challenged
statements and the fact that he made them in an attempt to excuse his actions
on the night of Huggins’s death and the night of the October Incident. When
Anderson made the challenged statements in the Interview, he was asserting
that he was “not a violent person,” but he let his “drinking get out of hand”
when he killed Huggins and he would not have killed Huggins if he had not
been drinking. State’s Ex. 102 at 38:10–38:16; 38:33–38:50. Thus, his
statements were directly connected to his state of mind on the night of
Huggins’s death. In addition, Anderson agreed in the Interview that he was in
a similar state of mind on the night of the October Incident. Id. at 38:52-39:19.
We have already determined that evidence of the October Incident was relevant
to the issue of Anderson’s intent and lack of accident and admissible under
Evidence Rule 404(b). Because the challenged statements were directly
connected to the charged crime and the October Incident and reflected
Anderson’s state of mind on those particular instances, we cannot say that the
trial court abused its discretion in admitting these statements.
Section 2 – The trial court’s failure to immediately collect
Exhibit 103 did not result in fundamental error.
[28] Anderson asserts that the trial court committed reversible error by allowing the
jurors to take Exhibit 103 to the jury room during a recess, and to retain
possession of it during Officer Eldridge’s testimony and Anderson’s testimony.
Generally, a trial court’s decision to allow the jury to take exhibits into the jury
room is reviewed for an abuse of discretion. Thacker v. State, 709 N.E.2d 3, 7
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(Ind. 1999); Mays v. State, 907 N.E.2d 128, 132 (Ind. Ct. App. 2009), trans.
denied. Here, the trial court inadvertently allowed the jurors to take Exhibit 103
into the jury room during one trial recess. Accordingly, the trial court cannot
be said to have exercised any discretion in this matter. However, Anderson
does not assert, nor does anything in the record suggest, that defense counsel
was unaware that the jury had the exhibit during a recess, during Officer
Eldridge’s testimony, and during Anderson’s testimony. Defense counsel could
have objected that Exhibit 103 had not been collected and requested curative
measures before Officer Eldridge or Anderson testified or when the trial court
directed that the exhibit be collected after Anderson testified. If defense counsel
had done so, any error or potential prejudice resulting from the jury’s
inadvertent possession of the exhibit could have been addressed and cured
during trial. Accordingly, we conclude that Anderson waived this issue for
review.6 See Lake v. State, 565 N.E.2d 332, 335 (Ind. 1991) (concluding that
where defense counsel was present and did not call into question trial court’s
manner of handling jury, no error was preserved for appeal); see also Hennings v.
State, 532 N.E.2d 614, 616 (Ind. 1989) (applying fundamental error standard of
review where defendant failed to object when trial court permitted jury to take
evidence into jury room for deliberations).
6
Anderson asserts that we should review this issue “on its merits ‘without insisting that the claim first be
presented to the trial judge.’” Appellant’s Br. at 27 (quoting Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind.
Ct. App. 2007), trans. denied). However, the cases Anderson relies on apply to claims of error involving
probation conditions and sentencing, and we find no principled basis to apply the standard of review in those
cases to the very different claim of error raised here.
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[29] Because Anderson has waived this issue, he may win reversal of his conviction
only by establishing that the jury’s possession of the exhibit under the
circumstances resulted in fundamental error:
In order to be fundamental, the error must represent a blatant
violation of basic principles rendering the trial unfair to the
defendant and thereby depriving the defendant of fundamental
due process. The error must be so prejudicial to the defendant’s
rights as to make a fair trial impossible. In considering whether a
claimed error denied the defendant a fair trial, we determine
whether the resulting harm or potential for harm is substantial.
Harm is not shown by the fact that the defendant was ultimately
convicted. Rather, harm is determined by whether the
defendant’s right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth
to which he would have been entitled.
Baker v. State, 948 N.E.2d 1169, 1178-79 (Ind. 2011) (citations omitted).
[30] Although we have decided that the abuse of discretion standard does not apply
here because Anderson waived the issue for review, we believe that some of the
considerations applicable when the trial court exercises its discretion in deciding
whether to send evidence to the jury room are helpful to our fundamental error
analysis. Under the common law,7 “the trial court should consider three factors
in deciding whether to permit the jury to take a copy of the exhibits into the jury
7
The procedure for allowing jurors to review evidence and testimony is governed by both case law and
Indiana Code Section 34-36-1-6. However, Section 34-36-1-6 applies only after the jury retires for
deliberations and the jurors explicitly indicate a disagreement as to any part of the testimony or a desire to be
informed as to any point of law. Hall v. State, 897 N.E.2d 979, 982 (Ind. Ct. App. 2008).
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room: (1) whether the material will aid the jury in a proper consideration of the
case; (2) whether any party will be unduly prejudiced by submission of the
material; and (3) whether the material may be subjected to improper use by the
jury.” Hall v. State, 897 N.E.2d 979, 982-83 (Ind. Ct. App. 2008) (citing Thacker
v. State, 709 N.E.2d 3, 6 (Ind. 1999)).
[31] Anderson argues that fundamental error occurred because
the jury had the transcript in the jury room–isolated from all
other evidence and without guidance from the trial court–it could
have given the transcript undue weight or considered it for some
improper use. Moreover, rather than listen to Anderson’s
testimony, the only witness who provided an alternative to the
State’s narrative of murder, the jury might well have instead
perused the transcript that contained prejudicial character
evidence.
Appellant’s Br. at 32-33 (citation omitted).
[32] We are unpersuaded based on the following reasons. First, we have already
decided that Exhibit 103 did not contain inadmissible evidence, and therefore
the danger of prejudice or misuse is not nearly as great as Anderson asserts.
Second, the jurors received extensive guidance from the trial court when they
were provided with Exhibit 103. Specifically, the trial court informed them that
the video recording of the Interview was the evidence they were to consider and
that Exhibit 103 was only an aid to help them as Exhibit 102 was played. Tr.
Vol. 3 at 17. The trial court also instructed the jury that Exhibits 102 and 103
contained evidence of prior wrongful conduct, but that that evidence was not to
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be considered as evidence of Anderson’s character and was only to be
considered on the issues of Anderson’s motive, the nature of the relationship
between Anderson and Huggins, and the absence of accident. Id. at 18. Then,
before the trial court dismissed the jury for the next recess, the trial court
informed the jurors that they could not keep Exhibit 103 and to leave the
exhibit on their chairs. Id. at 19. “When the jury is properly instructed, we will
presume they followed such instructions.” Weisheit v. State, 26 N.E.3d 3, 20
(Ind. 2015) (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987)).
Although the trial court did not repeat these instructions immediately before the
following recess, when the jurors apparently brought the exhibit back to the jury
room, there is nothing in the record to suggest that they did not adhere to the
trial court’s instruction that Exhibit 103 was just an aid to use while they
watched Exhibit 102. The presumption that the jurors followed the trial court’s
instruction to treat Exhibit 103 only as an aid to Exhibit 102 is bolstered by the
fact that during this recess, when the prosecutor reminded the trial court that
Exhibit 103 needed to be collected, the trial court commented that the jurors
wanted to leave the exhibit on their chairs. Tr. Vol. 3 at 40.
[33] Third, there is nothing in the record that suggests that the jurors were reading
Exhibit 103 rather than listening to Anderson’s testimony, and we presume that
the jurors continued to heed the trial court’s instruction that the exhibit was just
an aid to the video recording. And fourth, Exhibit 103 was substantially similar
to Anderson’s trial testimony. Exhibit 103 contained Anderson’s statements
that he loved Huggins, that he would never want to hurt him, and that
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Huggins’s death was a terrible accident. Therefore, Exhibit 103, like
Anderson’s testimony, supported Anderson’s defense that Huggins’s death was
accidental. As such, we cannot say that the exhibit was unduly prejudicial.
[34] Clearly, the trial court erred in failing to immediately collect Exhibit 103 after
Exhibit 102 was finished playing, and the jurors improperly retained Exhibit
103 during a recess and during Anderson’s testimony. However, the potential
for Exhibit 103 to be used improperly by the jury or be given greater weight
than other evidence was negligible given the trial court’s instructions and the
jurors’ apparent willingness to follow the court’s instructions.8 We conclude
that the error did not deprive Anderson of a fair trial, and therefore the error did
not rise to the level of fundamental error.9
8
This case is nothing like the case of Thomas v. State, 259 Ind. 539, 539-41, 289 N.E.2d 508, 509-10 (Ind.
1972), relied on by Anderson, in which our supreme court held that the trial court abused its discretion in
permitting the jury to take a witness’s statements in the jury room during deliberations because the statements
were admitted solely as prior inconsistent statements to impeach the witness and could have been improperly
used for the truth of the matter contained therein. Likewise, Anderson’s reliance on Toohy v. Sarvis, 78 Ind.
474 (1881), is unavailing because that case, too, is very different. In that civil case, our supreme court
reversed the denial of the defendant’s motion for a new trial because the jury, attended by the bailiff, was left
to deliberate in the courtroom where papers in the cause had been inadvertently left and a juror read aloud to
the other jurors one of the letters written from the defendant to the plaintiff. Id. at 475.
9
Anderson also argues that the jury’s possession of Exhibit 103 in the jury room during one recess violated
his right “to be present in the courtroom at every stage of the proceedings requiring the presence of the jury,”
under the Indiana Constitution Article 1, Section 13. James v. State, 613 N.E.2d 15, 24 (Ind. 1993).
Anderson’s failure to object at trial waives this issue for our review. See Long v. State, 121 N.E.3d 1085, 1088
(Ind. Ct. App. 2019) (concluding that defendant’s failure to object at trial waived his claim that his
constitutional right to a public trial was violated). Waiver notwithstanding, we note that even were we to
assume that Anderson’s right to be present during trial was violated, the “mere fact that an alleged error
implicates constitutional issues does not establish that fundamental error has occurred.” Nichols v. State, 974
N.E.2d 531, 535 (Ind. Ct. App. 2012) (quoting Schmidt v. State, 816 N.E.2d 925, 945 (Ind. Ct. App. 2004),
trans. denied (2005)). We have already concluded that fundamental error did not result from the jury’s
possession of Exhibit 103 in the jury room during a recess, and the fact that this alleged error involves a
constitutional right does not change that conclusion.
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Section 3 – The trial court’s failure to give a reasonable theory
of innocence instruction does not constitute error, let alone
fundamental error.
[35] Anderson asserts that the trial court committed fundamental error by failing to
sua sponte give a reasonable theory of innocence instruction. The manner of
instructing a jury lies largely within the discretion of the trial court, and we will
reverse only for an abuse of discretion. Randall v. State, 115 N.E.3d 526, 529
(Ind. Ct. App. 2015). In reviewing the trial court’s decision to refuse a
proposed jury instruction, “we consider whether the instruction (1) correctly
states the law, (2) is supported by the evidence, and (3) is covered in substance
by other instructions that are given.” Id. Here, Anderson failed to tender the
instruction he contends should have been given, and therefore he failed to
preserve the issue for appellate review. See Ortiz v. State, 766 N.E.2d 370, 375
(Ind. 2002) (“Failure to tender an instruction results in waiver of the issue for
review.”). To avoid waiver, Anderson must show that the court’s failure to
give the instruction resulted in fundamental error. Id.[36] In Hampton v. State, 961 N.E.2d 480 (Ind. 2012), our supreme court carefully
considered when a reasonable theory of innocence instruction should be
required and what the specific content of that instruction should be. The
supreme court concluded as follows:
[B]ecause Indiana jurisprudence recognizes the importance of [a
reasonable theory of innocence] instruction in certain cases
involving circumstantial evidence but our case law reveals a
reluctance to find reversible error for failure to give the
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instruction if there is substantial direct evidence of guilt, we elect
to apply the approach taken in [Spears v. State, 272 Ind. 634, 639-
40, 401 N.E.2d 331, 335 (1980)] and direct that the “reasonable
theory of innocence” instruction is appropriate only where the
trial court finds that the evidence showing that the conduct of the
defendant constituting the commission of a charged offense, the
actus reus, is proven exclusively by circumstantial evidence. As
discussed above, to deny the availability of a “reasonable theory
of innocence” instruction whenever there is any direct evidence
of the fact that a criminal offense has occurred … could render
the instruction unlikely ever to be used, but requiring the
instruction whenever there is no direct evidence of any single
element would compel its use in almost all criminal cases
because mens rea is often shown only by circumstantial evidence.
We thus hold that, when the trial court determines that the
defendant’s conduct required for the commission of a charged
offense, the jury should be instructed as follows: In determining
whether the guilt of the accused is proven beyond a reasonable doubt, you
should require that the proof be so conclusive and sure as to exclude every
reasonable theory of innocence.
Id. at 490-91.10
[37] Anderson argues that a reasonable theory of innocence instruction should be
required where a defendant’s mens rea is established exclusively by
circumstantial evidence and is the central issue at trial. However, in Hampton,
our supreme court specifically held that the instruction is appropriate only
10
“The Latin phrase ‘actus reus’ refers to the ‘wrongful deed that comprises the physical components of a
crime and that generally must be coupled with the mens rea [the criminal state of mind], to establish criminal
liability.’” Hampton, 961 N.E.2d at 487 n.5. (quoting BLACK’S LAW DICTIONARY 41-42 (9th ed. 2009)).
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where the trial court finds that the actus reus is proven exclusively by
circumstantial evidence. See id.; see also Spears, 272 Ind. at 639-40, 401 N.E.2d
at 335 (holding that reasonable theory of innocence instruction was not required
on charge of assault with intent to kill where evidence of assault was direct and
evidence of intent to kill was circumstantial). “Supreme court precedent is
binding upon us until it is changed either by that court or by legislative
enactment.” Stafford v. State, 83 N.E.3d 721, 725 (Ind. Ct. App. 2017) (quoting
Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. denied (2003)).
Accordingly, we find no error, let alone fundamental error.
Section 4 – The sentencing order needs correction.
[38] Last, Anderson asserts, and the State concedes, that the sentencing order
incorrectly indicates that the two counts for which Anderson was found not
guilty were dismissed. Appellant’s App. Vol. 2 at 16. We agree, and therefore
remand to amend the sentencing order to state that Anderson was found not
guilty of Counts 2 and 3.
[39] Based on the foregoing, we affirm Anderson’s conviction and remand for
correction of the sentencing order.
[40] Affirmed and remanded.
Bradford, J., and May, J., concur.
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