MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                    FILED
regarded as precedent or cited before any                                        Aug 21 2020, 9:21 am

court except for the purpose of establishing                                             CLERK
                                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                                 Court of Appeals
                                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darius Shawtee McNary,                                   August 21, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-381
        v.                                               Appeal from the
                                                         Vanderburgh Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Kelli E. Fink, Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1903-F2-1460



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020             Page 1 of 16
[1]   Darius Shawtee McNary (“McNary”) was convicted in a jury trial of dealing in

      methamphetamine in the amount of ten grams or more,1 a Level 2 felony;

      possession of methamphetamine in the amount of twenty-eight grams or more,2

      a Level 3 felony; dealing in marijuana weighing at least thirty grams but less

      than ten pounds,3 a Level 6 felony; and was adjudicated as an habitual

      offender.4 McNary raises one issue on appeal, which we restate as whether the

      trial court abused its discretion in denying McNary’s motion to correct error,

      which alleged that McNary was entitled to a new trial because newly

      discovered evidence proved that one of the State’s witnesses had lied at trial.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On January 25, 2019, Indiana State Police Troopers (“the officers”) helped

      Michael Dodge, a parole officer, serve a felony warrant on a person who

      resided at an Evansville apartment complex. Tr. Vol. II at 9, 19-20, 50. Some

      residents of the apartment complex asked the officers to perform a welfare

      check on the apartment of Tiffany Taylor (“Taylor”), where McNary also lived.

      Id. at 10, 19-20. The officers knocked on Taylor’s door, and when she opened




      1
          See Ind. Code § 35-48-4-1.1(a)(2), (e).
      2
          See Ind. Code § 35-48-4-6.1(a), (d).
      3
          See Ind. Code § 35-48-4-10(a)(2), (c)(2)(A).
      4
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 2 of 16
      the door, the officers could smell marijuana; Taylor consented to the officers’

      request to search her apartment. Id. at 20, 129-30. During the search, the

      officers lifted the ceiling tiles in the kitchen and found several bags of marijuana

      and a large amount of cash. Id. at 21-22, 66; State’s Exs. 1, 2, 3, 17-18. The

      officers also lifted the ceiling tiles in the bathroom where they found a loaded

      handgun, a glass smoking pipe, a bag of methamphetamine, a digital scale, and

      a notebook that Taylor had given McNary. Tr. Vol. II at 21, 34, 37, 39, 48;

      State’s Exs. 7, 10, 32-33. The notebook was a drug ledger, which recorded drug

      transactions, including the amount of money exchanged and the names of

      several buyers, including “Jersey” and “Shorty.” Tr. Vol. II at 178-80; State’s

      Exs. 10, 32. Once the search was over, Taylor’s children were placed in foster

      care that same day. Tr. Vol. II at 144, 146, 200. Soon after, the Indiana

      Department of Child Services filed a petition to find Taylor’s children as

      children in need of services. Id. at 144.


[4]   On March 1, 2019, the State charged McNary with Level 2 felony dealing in

      methamphetamine, Level 2 felony conspiracy to commit dealing in

      methamphetamine, two counts of Level 3 felony possession of

      methamphetamine, Level 4 felony unlawful possession of a firearm by a serious

      violent felon, Level 6 felony conspiracy to commit dealing marijuana, Level 6

      felony dealing marijuana, and alleged that McNary was an habitual offender.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 3 of 16
      Appellant’s App. Vol. II at 23, 26-28.5 The State eventually dismissed several

      counts against McNary, and he proceeded to trial on the habitual offender

      allegation and three counts: Count 1, Level 2 felony dealing in

      methamphetamine; Count 2, Level 3 felony possession of methamphetamine;

      and Count 3, Level 6 felony dealing marijuana. The State dismissed the

      remaining counts.6 Tr. Vol. II at 4.


[5]   Taylor testified at the September 23, 2019 trial. She stated that she had not

      made a deal with the State regarding her testimony, although she hoped the

      State would give her consideration for her testimony against McNary. Id. at

      109-10, 158.7 Taylor testified that while she was incarcerated, she was unable

      to get her children back, but that now that she was not incarcerated, she could

      work toward getting them back. Id. at 158.




      5
       About ten weeks later, Taylor was charged with dealing in methamphetamine, conspiracy to deal
      methamphetamine, possession of methamphetamine, conspiracy to possess methamphetamine, dealing in
      marijuana, conspiracy to deal marijuana, and possession of marijuana. Tr. Vol. II at 109, 144.
      6
       Count 2 and Count 3 were initially designated as Count 4 and Count 7 but were re-designated as Counts 2
      and 3 when the State dropped the other charges. Tr. Vol. II at 4.
      7
        The record is confusing about whether the State had actually offered Taylor a plea agreement and whether
      she had accepted such an offer. In an affidavit filed after trial, Deputy Prosecutor Hunter Renschler stated
      that on May 13, 2019, he made an offer to Taylor's attorney, in which Taylor would plead guilty as charged
      in her case and would be sentenced to a term of ten years and that if she would testify against McNary,
      Deputy Prosecutor Renschler would take her cooperation into account. Appellant’s App. Vol. III at 99.
      Deputy Prosecutor Renschler stated that on June 6, 2019, Taylor’s attorney contacted him and said that
      Taylor would be interested in testifying against McNary. Id. However, acting as if no formal deal had been
      agreed to, Deputy Prosecutor Renschler also stated in his affidavit that Taylor was told that the State
      expected her to tell the truth and “that her cooperation would be taken into consideration.” Id. at 100 (emphasis
      added).



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020                       Page 4 of 16
[6]   Taylor’s testimony established some, but not all, of the State’s case against

      McNary. Taylor testified that she began dating McNary in November of 2018

      and that he lived at her apartment. Id. at 110-12. Taylor and McNary would

      smoke marijuana together, and McNary introduced Taylor to

      methamphetamine, which they would also smoke together. Id. at 110-11, 114-

      15. During the time period McNary stayed at Taylor’s apartment, he would

      have two friends over -- Shorty and Jersey -- who would smoke with McNary.

      Id. at 116. Taylor also testified that McNary typically kept the

      methamphetamine pipe and some methamphetamine in his pocket. Id. at 118,

      121-22. She also testified that she gave McNary the notebook that McNary

      later used to record his drug transactions. Id. at 127. Taylor identified the scale

      that McNary used to weigh drugs. Id. at 132-33.


[7]   Some of Taylor’s testimony did not confirm the State’s case. For instance,

      Taylor testified that she never saw a large amount of methamphetamine or

      marijuana in her apartment. Id. at 117-18. She testified that when Jersey and

      Shorty came over to smoke drugs with McNary, she never saw money

      exchange hands. Id. at 117. Other parts of Taylor’s testimony addressed

      inconsistencies between her statements. On cross-examination, Taylor

      admitted that when she was questioned by law enforcement at her apartment,

      she had given a different story because McNary was standing close by and she

      was afraid of him. Id. at 130, 143. Taylor stated she was testifying at McNary’s

      trial because “the truth needs to be heard, and I agreed to cooperate. I have

      children. I have to take care of them.” Id. at 160.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 5 of 16
[8]    On September 23, 2019, McNary was convicted of all charges and admitted to

       being an habitual offender. Id. at 215, 219. On November 7, 2019, McNary

       was sentenced to an aggregate term of twenty-eight years in the Indiana

       Department of Correction. Appellant’s App. Vol. II at 21-22.


[9]    Two days after McNary was sentenced, he filed a motion to correct error, with

       accompanying affidavits, alleging that he had obtained newly discovered

       evidence that Taylor “testified the way she did due to pressure from the State,”

       and that “the State had coached [Taylor] on what to say and what not to say.”

       Id. at 109-12. McNary alleged that that evidence was discovered in two jail

       phone calls between Taylor and McNary, one occurring on September 27,

       2019, and the other call occurring on October 21, 2019. Id. at 109-10. McNary

       claimed that “Taylor clearly gives the impression in the above phone calls that

       she was pushed into testifying for the State on this manner and that at least

       some of her testimony was false.” Id. at 110.


[10]   In the September 27 phone conversation, Taylor told McNary that the State

       was “trying to hit [her] with fucking ten years,” and asked McNary “do you

       want me to look at my kids through glass for ten years.” Appellant’s App. Vol. III

       at 10-11. Taylor added that “I didn’t ever do you wrong. I will say that. I

       never did you fucking wrong. I tried to do everything that I fucking could for

       you.” Id. at 14. In the October 21 phone conversation, Taylor again told

       McNary that she was “not going to sit in jail for ten years and look at my babies

       from jail.” Id. at 19. Taylor told McNary she “gave [the State] as little as I

       could.” Id. When McNary asked whether the State had told Taylor what to

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 6 of 16
say, she replied, “I mean, somewhat, like kinda couching [sic] me about what I

could and couldn’t say and shit like that,” and said that the State subpoenaed

her to testify. Id. at 22, 25. To provide additional context to Taylor’s

statements, we provide these excerpts from the two phone conversations:


        Excerpts from Phone Conversation of September 27, 2019


        MS. TAYLOR: You trying to say bogus that I did it?


        MR. MCNARY: Yeah.


        MS. TAYLOR: Are you talking about that bogus that I did it?


        MR. MCNARY: I can’t hear you.


        MS. TAYLOR: So, are you saying that it was bogus that I did it.


        MR. MCNARY: Man, the whole situation (unintelligible).


        MS. TAYLOR: Yeah, well, I had to do what I had to do.


        ....


        MS. TAYLOR: What do you mean, Darius? Do you want me
        to look at my kids through glass for ten years?


        MR. MCNARY: I’m saying, why would you do that though?
        Why would you fucking listen to them and have them make you
        fucking lie like that? . . . .



Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 7 of 16
        ....


        MR. MCNARY: Have fucking people talk you into fucking
        lying . . . ?


        MS. TAYLOR: Well, whatever.


        MR. MCNARY: What?


        MS. TAYLOR: Said whatever.


        MR. MCNARY: Oh, so they didn’t tell you to do that?


        ....


        MR. MCNARY: Like what, n***a? You fucking let them lie,
        though. I mean, you let them fucking talk you into, I know for a
        fact . . . . Do you not understand that they basically talked you
        into basically taking a n***a’s life over some stupid dumbass
        shit?


        MS. TAYLOR: They were trying to hit me with ten years.


        ....


        MR. MCNARY: Then they dropped all [those charges against
        you] to get you to fucking lie on me?


        MS. TAYLOR: They didn’t drop everything. So, I still go shit.
        And I did five fucking months in jail.


Id. at 10-12.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 8 of 16
               Excerpts from Phone Conversation of October 21, 2019


               MR. MCNARY: And then what? Like what the fuck were they
               telling you to say?


               MS. TAYLOR: You talking about.


               Mr. MCNARY: I mean, were they telling you exactly what to
               say on the way to there?


               MS. TAYLOR: I mean, somewhat, like kinda couching [sic] me
               about what I could and couldn’t say and shit like that. . . . .


       Id. at 22.


[11]   On November 18, 2019, Deputy Prosecutor Hunter Renschler (“Deputy

       Prosecutor Renschler”) filed an affidavit asserting, “at no point was . . . Taylor

       pushed or pressured into testifying for the State and we most certainly never

       implied or told her to say anything other than the truth.” Id. at 100. Before

       calling Taylor to testify, Deputy Prosecutor Renschler advised her that she

       could not testify about McNary’s previous cases or any previous interactions

       McNary may have had with law enforcement. Id.


[12]   Two other deputy prosecuting attorneys, James Doyle (“Deputy Prosecutor

       Doyle”) and Jessica Berry (“Deputy Prosecutor Berry”), also submitted

       affidavits stating that they were present at a September 19, 2019 witness

       conference with Deputy Prosecutor Renschler and Taylor. Id. at 102-05. Both

       Deputy Prosecutor Doyle and Deputy Prosecutor Berry stated that Taylor was


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 9 of 16
       not threatened or coerced into testifying. Id. Deputy Prosecutor Doyle stated

       that Taylor was not pressured to provide specific answers, and Deputy

       Prosecutor Berry stated that she instructed Taylor not to speak about McNary’s

       prior bad acts, criminal history, and law enforcement contacts after Taylor

       brought up those events. Id. at 103.


[13]   On January 10, 2020, the State and McNary filed a joint stipulation and motion

       for the trial court to rule on the November 9, 2019 motion to correct error

       without a hearing. Id. at 2-5. The parties attached transcripts of the September

       and October phone calls, transcripts of Taylor’s trial testimony, and numerous

       motions and affidavits for the trial court’s consideration. Id. On January 21,

       2020, the trial court denied McNary’s motion to correct error. Appellant’s App.

       Vol. II at 20. McNary now appeals. We will provide additional facts as

       necessary.


                                      Discussion and Decision
[14]   McNary argues that the trial court abused its discretion in denying his motion

       to correct error, alleging that he was entitled to a new trial because newly

       discovered evidence proved that Taylor lied at trial. The decision of whether to

       grant a new trial on the basis of newly discovered evidence is within the sound

       discretion of the trial court, and we will reverse the trial court only upon a

       showing that it abused its discretion. Reed v. State, 702 N.E.2d 685, 691 (Ind.

       1998). An abuse of discretion occurs only when a trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it. Jones


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 10 of 16
       v. State, 957 N.E.2d 1033, 1037 (Ind. Ct. App. 2011). To obtain a new trial

       based on newly discovered evidence, a defendant must make nine showings:

       (1) the evidence has been discovered since the trial; (2) it is material and

       relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not

       privileged or incompetent; (6) due diligence was used to discover it in time for

       trial; (7) the evidence is worthy of credit; (8) it can be produced upon retrial;

       and (9) it will probably produce a different result at retrial. Taylor v. State, 840

       N.E.2d 324, 329-30 (Ind. 2006). Regarding the final and critical ninth factor, a

       defendant must raise a strong presumption that the result at any subsequent trial

       in all probability would be different. Reed, 702 N.E.2d at 691. We analyze

       these nine factors with care because newly discovered evidence should be

       viewed with great caution and carefully scrutinized. Taylor, 840 N.E.2d at 330.

       The burden of showing that all nine requirements are met rests with the

       defendant. Id.


[15]   Of the nine factors that a defendant must show to obtain a new trial, McNary

       and the State focus on factors four and nine, with McNary contending that the

       newly discovered evidence is not merely impeaching and that there is a strong

       presumption that the newly discovered evidence would lead to a different result

       than the result in the first trial. See id.


[16]   As to factor four, McNary argues that the newly discovered evidence from the

       phone conversations is not merely impeaching because Taylor’s statements

       during the phone conversations did more than show that the State pressured her

       to testify and reveal her motives to testify against McNary; they also show her

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 11 of 16
       hope that testifying would help her get her children back from foster care. Tr.

       Vol. II at 158. Thus, McNary claims the phone conversations demonstrate that

       Taylor lied at his trial. As support for his contention, he notes that when he

       accused Taylor of lying during their phone conversations, she (1) did not deny

       lying and (2) did not respond by saying, “What I said was true.” Appellant’s

       Reply Br. at 7. McNary concludes, “[This] is not impeachment evidence; it is a

       recantment.” Id.


[17]   It was within the trial court’s discretion to determine whether Taylor’s

       statements during the phone conversations indicated that she had lied at trial.

       For example, when weighing Taylor’s statement that the State was “kinda

       couching [sic] me about what I could and couldn't say” -- Appellant’s App. Vol.

       III at 22 -- the trial court could have reasonably concluded that the State was

       not instructing Taylor to lie but was instead advising her to not testify about

       McNary’s criminal record and other unlawful behavior. Indeed, Deputy

       Prosecutor Berry stated in her affidavit that she told Taylor not to speak about

       McNary’s prior bad acts, criminal history, and law enforcement contacts. Id. at

       103. Likewise, the trial court could have reasonably concluded that Taylor’s

       explanation for why she testified against McNary did not indicate that she lied

       at trial. In response to McNary’s questions about why she testified, Taylor

       responded, “Do you want me to look at my children through glass for ten

       years?” and “They were trying to hit me with ten years.” Id. at 11, 12. The trial

       court could have reasonably concluded these statements simply revealed

       Taylor’s motives for testifying, not that she lied at trial. If Taylor’s motives for

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 12 of 16
       testifying were self-serving, she was not the first, and will certainly not be the

       last, witness to testify for a perceived benefit, whether promised or not. The

       trial court was within its discretion to conclude that the phone conversations

       did not indicate that Taylor lied at trial.


[18]   Moreover, even if the trial court should have concluded that the phone

       conversations established that Taylor lied at trial, Taylor’s statements during

       the conversations were still “merely impeaching” and did not provide grounds

       for a new trial. Notably, “impeachment” is defined as “‘[t]he act of discrediting

       a witness, as by catching the witness in a lie or by demonstrating that the witness

       has been convicted of a criminal offense.’” Taylor, 840 N.E.2d at 330 n.1

       (emphasis added) (quoting Black’s Law Dictionary 768 (8th ed. 2004)). Thus,

       when a person recants a previous statement, the new statement is merely

       impeaching and is not grounds for a new trial. See McVey v. State, 863 N.E.2d

       434, 446 (Ind. Ct. App. 2007), trans. denied. In McVey, we determined that a

       molestation victim’s affidavit contradicting her trial testimony was merely

       impeaching because it would “merely serve to cast doubt on [her] trial

       testimony [and] . . . place her credibility at issue.” See id. Similarly, in Lahr v.

       State, we held that an affidavit by a prison trustee that he had lied at trial was

       merely impeaching and did not justify a new trial. 640 N.E.2d 756, 763 (Ind.

       Ct. App. 1994), trans. denied. See also Abbott v. State, 535 N.E.2d 1169, 1172

       (Ind. 1989) (affidavit from accomplice’s brother that the accomplice said that

       the defendant was not involved in the crime was merely impeaching and did

       not justify a new trial); Chiesi v. State, 644 N.E.2d 104, 107-08 (Ind. 1994)


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 13 of 16
       (defendant was not entitled to new trial where witness did not directly recant

       trial testimony and the people who filed affidavits alleging that witness had lied

       were not disinterested but had their own interests in the outcome of the case),

       abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 1990).

       Therefore, even if the trial court should have concluded that the phone

       conversations show that Taylor lied at trial, her statements during those

       conversations were merely impeaching and were not the basis for a new trial.


[19]   We acknowledge that under some circumstances, Indiana’s appellate courts

       have ruled that evidence showing that a witness lied is not “merely

       impeaching” and does justify a new trial. For instance, in Wilson v. State, we

       held that newly discovered evidence was not merely impeaching where the

       boyfriend of the victim executed an affidavit that recanted his trial testimony

       that he saw the defendant point a firearm at the victim; the evidence was not

       merely impeaching because the affidavit exposed the boyfriend to a potential

       perjury charge and was corroborated by two other affidavits. 677 N.E.2d 586,

       588-89 (Ind. Ct. App. 1997). This new evidence was not merely impeaching

       because it “destroy[ed] or obliterat[ed] the testimony upon which the conviction

       was obtained.” Id. at 588. In Francis v. State, the Indiana Supreme Court found

       newly discovered evidence did not merely impeach the victim’s testimony

       because the new evidence was eyewitness testimony from two disinterested

       witnesses who placed the defendant away from the scene of crime, giving the

       new evidence “independent, probative merit of its own.” 544 N.E.2d 1385,

       1387 (Ind. 1989); see also State v. McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999)


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 14 of 16
       (co-defendant’s recantation was not merely impeaching because it was free-

       standing evidence of the defendant’s innocence). Here, however, Taylor’s

       statements in the phone conversations did not “destroy” or “obliterate” her trial

       testimony. Her statements did not contradict or repudiate her testimony and,

       because the statements came from her and not a disinterested source, her

       statements did not have independent, probative merit. See Wilson, 677 N.E.2d

       at 588-89; see also Francis, 544 N.E.2d at 1387. Taylor’s statements do not fit the

       criteria of the aforementioned cases where a lie or recantation was the basis to

       grant a new trial.


[20]   McNary has failed to establish that Taylor’s statements during the phone

       conversations were not merely impeaching and would have served as a basis for

       a new trial because of newly discovered evidence. A person seeking a new trial

       must satisfy all nine prerequisites for newly discovered evidence to justify a new

       trial. See Taylor, 840 N.E.2d at 330. In failing to demonstrate one of those

       prerequisites - that Taylor’s statements were not merely impeaching - McNary

       has failed to meet his burden to show that he is entitled to a new trial. See id. at

       329-30. Thus, the trial court did not abuse its discretion in denying McNary’s

       motion to correct error and his request for a new trial based on newly

       discovered evidence.


[21]   We note that McNary has also failed to establish a strong presumption that the

       result at a new trial would be different. See Reed, 702 N.E.2d at 691. The trial

       judge may consider the weight that a reasonable trier of fact would give the new

       evidence and evaluate its probable impact on a new trial in light of all the facts

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 15 of 16
       and circumstances shown at the original trial. Bradford v. State, 675 N.E.2d 296,

       302 (Ind. 1996). Here, Taylor’s statements during the phone conversations

       shed light on her motives to testify against McNary. As the State observes,

       Taylor’s reasons for testifying were already explored at trial, during direct

       testimony, cross-examination, and closing argument. See Tr. Vol. II at 144, 146,

       158-60, 203-04. Moreover, it would have been reasonable for the trial court to

       determine that a jury in a second trial would give great weight to the affidavits

       executed by Deputy Prosecutors Renschler, Berry, and Doyle, which all

       asserted that Taylor was not pressured to lie and that they “coached” Taylor’s

       testimony only to make sure that she did not testify about McNary’s criminal

       record and other criminal activity. Appellant’s App. Vol. III at 100, 102-05. We

       reject McNary’s contention that introducing the statements Taylor made during

       the phone conversations would likely lead to an acquittal at a second trial. The

       trial court did not abuse its discretion in denying Taylor’s motion to correct

       error and request for a new trial based on newly discovered evidence.


[22]   Affirmed.


       Pyle, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-381 | August 21, 2020   Page 16 of 16
