      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                              FILED
      this Memorandum Decision shall not be                                        Sep 12 2019, 7:36 am
      regarded as precedent or cited before any
                                                                                          CLERK
      court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                       Court of Appeals
      the defense of res judicata, collateral                                            and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Linda L. Harris                                          Curtis T. Hill, Jr.
      Kentland, Indiana                                        Attorney General of Indiana
                                                               Caroline G. Templeton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Scottie M. Kincade,                                      September 12, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-655
              v.                                               Appeal from the Warren Circuit
                                                               Court
      State of Indiana,                                        The Honorable Hunter J. Reece,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               86C01-1609-MR-32



      Mathias, Judge.


[1]   Following a jury trial in Warren Circuit Court, Scottie M. Kincade (“Kincade”)

      was convicted of murder and Level 4 felony arson. Kincade appeals and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019                 Page 1 of 15
      presents two issues, which we restate as: (1) whether the trial court committed

      reversible error by failing to ensure that bench conferences were recorded, and

      (2) whether the trial court abused its discretion by admitting evidence of

      Kincade’s violent relationship with the victim.


[2]   We affirm.


                                 Facts and Procedural History
[3]   Kincade had been in an “on again/off again” romantic relationship with the

      victim in this case, Heather Smith (“Smith”), for approximately twenty years.

      Tr. Vol. 4, p. 123. The couple had three children together: S.M.K., E.J.K., and

      M.N.K, who were respectively twelve, ten, and five years old at the time of

      their mother’s death. Smith and Kincade’s relationship was violent and

      combative. Smith went to her mother’s house “beat up” several times. Tr. Vol.

      4, p. 98. In 2011, Kincade threatened to burn down Smith’s grandmother’s

      house when Smith was temporarily residing there. He also once told a friend

      that he “could get away with murder in this county.” Tr. Vol. 3, p. 135. Smith

      and Kincade’s oldest child, S.M.K., stated that his parents’ relationship was

      “horrible,” and that they constantly fought and struck each other. Disturbingly,

      Kincade told S.M.K. that the child would “never be able to see her again so

      [S.M.K.] needed to tell [Smith] goodbye,” because Kincade was going to “put

      [Smith] in a box and throw her in the river.” Tr. Vol. 5, p. 231. He also told a

      friend shortly before the murder that he was going to “kill that bitch someday,”

      referring to Smith. Tr. Vol. 3, p. 188.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 2 of 15
[4]   Smith obtained three different protective orders against Kincade over the years,

      and Kincade had been previously convicted of invasion of privacy for violating

      one of these protective orders. The most recent protective order was still in

      effect at the time of Smith’s death in September 2016. The police responded to

      several domestic violence reports at the couple’s home, including one in March

      2016, at which time Smith appeared with a swollen lip and redness to her neck

      and chest. Kincade was arrested and charged with domestic battery as a result.

      In April 2016, Smith went to church with two black eyes and a busted lip. And

      the police responded to four additional reports of domestic violence at Smith’s

      home within thirty days in the late summer of 2016.

[5]   In August 2016, Smith was with a friend when Kincade called her over fifty

      times in less than one hour. Around that time, Smith also reported to her

      therapist that she was anxious because she was ending her relationship with

      Kincade and because she was scheduled to appear in court as a witness in the

      domestic battery case against Kincade.

[6]   Also in the late summer of 2016, Smith contacted Bryant Ledbetter

      (“Ledbetter”), a man both she and Kincade had grown up with. Smith spoke

      with Ledbetter about visiting him in Kansas in December of that year. Shortly

      thereafter, Kincade and one of his children contacted Ledbetter and threatened

      him with harm if he continued to pursue a relationship with Smith. Ledbetter

      then told Smith that he did not want to have a relationship with her. Still, Smith

      filed a notice of her intent to relocate to Kansas with her and Kincade’s



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 3 of 15
      children.1 After ending her relationship with Kincade,2 Smith started dating

      other men. One of these men used the alias “Zach Stevens,” and Smith planned

      to see him on September 27, 2016.


[7]   Shortly after 8:00 a.m. in the morning of September 27, 2016, the SIM card in

      Kincade’s phone was removed from the phone he typically used and placed in

      another phone. At approximately 12:45 p.m., the SIM card was put back into

      Kincade’s phone. That morning, Kincade called Smith thirty-five times and

      sent her thirty text messages. Kincade made no calls to Smith after noon.

[8]   At 12:19 p.m. that day, the Warren County Sheriff’s Office received a call that

      there was a fire at Smith’s home on Jackson Street in Williamsport, Indiana. A

      volunteer fireman for the Williamsport Fire Department heard the dispatch

      while at home near the location of the fire. He looked outside his window and

      saw smoke coming from Smith’s house. He immediately drove to Smith’s

      house and met Kincade’s sister, Sandy, who informed him that Smith was

      inside the home. The volunteer determined that he was unable to safely enter

      the burning home without protective gear, so he left the scene to go to the fire

      station.

[9]   Another neighbor, Richard Howe (“Howe”), saw black smoke coming from

      Smith’s house as he returned home. Howe telephoned Kincade to let him know




      1
          See Ind. Code § 31-17-2.2-1.
      2
          S.M.K. testified that Smith had kicked Kincade out of the home in the weeks prior to her death.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019                     Page 4 of 15
       that the house was on fire, and Kincade responded by saying that he was on his

       way to the house. When Kincade did not arrive, Howe telephoned him again,

       but Kincade never came to the scene of the fire. Sandy called Kincade to ask

       where he and Smith were. Kincade responded sarcastically, “[a]sk Zach,”

       referring to the man Smith had planned to meet that day. Tr. Vol. 3, p. 240.


[10]   Firefighters arrived on the scene and put out the fire. Arson investigator

       Timothy Murray (“Murray”) from the Indiana State Fire Marshall’s Office

       investigated the fire. Near a bedroom of the house, Murray found Smith’s body

       lying supine on the floor. Smith’s body was burned in most areas, except for

       parts of her shoulder blades and buttocks, which had been lying against the

       floor. The bedframe in the bedroom suffered from severe heat damage, and the

       burn pattern on the bedroom floor suggested that a flammable liquid had been

       used. Murray concluded that a fire accelerant had been poured on Smith’s

       body, as the area of the wall next to her left thigh was unburned even though

       Smith’s thigh had sustained severe burn injuries. Based on the portions of

       Smith’s body that were not burned, which indicated that she had not moved

       during the fire, Murray concluded that Smith’s body did not move when the

       accelerant was poured.


[11]   Shortly after noon on the day of the fire, Kincade telephoned his brother, Steve

       Kincade (“Steve”), and told him that the house was on fire and that “[t]he bitch

       is in it.” Tr. Vol. 4, p. 28. Kincade asked his brother to go to the school and

       speak to Kincade’s children. Steve attempted to speak with the children at the

       school but was unable to do so. He then went to his family’s home and found

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 5 of 15
       shotgun shells strewn about the floor. One of Kincade’s friends saw Kincade

       driving Smith’s car shortly after noon on the day of the fire. Later that

       afternoon, Amanda Fields (“Fields”), who knew Smith, saw Kincade driving

       Smith’s car in an erratic manner and at speeds upwards of eighty miles per

       hour. She telephoned the police to report Kincade’s location.


[12]   Indiana State Trooper Joshua Edwards (“Trooper Edwards”), who had been

       searching for Kincade in order to speak with him about Smith’s death,

       responded to the report and located Kincade driving Smith’s car. When

       Trooper Edwards activated his lights and siren, Kincade lost control of the car

       and sideswiped a truck. He then drove along the side of the road in a cornfield,

       turned into the cornfield for over one hundred yards, and came to a stop.

       Trooper Edwards approached the car, but Kincade had fled. Inside the car the

       police found a new lighter, a partially full can of gasoline, and shotgun shells.

       None of these items had been in Smith’s car when she dropped her children off

       at school earlier in the day. The police searched the cornfield for Kincade but

       were unable to find him.


[13]   At approximately 10:00 p.m. that night, local resident John Anderson

       (“Anderson”) was on property belonging to his grandparents when he heard

       Kincade call his name. Anderson spoke to Kincade, and Kincade asked him to

       call someone to come pick him up. Anderson obliged and telephoned Kincade’s

       sister. The next morning, Timothy Purcell (“Purcell”) found Kincade sitting in




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 6 of 15
       a chair at Purcell’s home.3 Purcell called the police and told them that Kincade

       was at his home. When the police arrived, Kincade attempted to leave out the

       back door. The police ordered Kincade to show his hands, but he ignored the

       order and went back inside. When the police entered through the back door,

       Kincade was holding a knife and had cut his wrists. The police then took

       Kincade into custody.

[14]   A subsequent autopsy of Smith’s body conducted by Dr. E. Allan Griggs (“Dr.

       Griggs”) revealed that the cause of death was breathing super-heated air and the

       resulting lack of oxygen. Dr. Griggs had difficulty determining if Smith had

       suffered from any injuries before being burned, as the fire had damaged her

       body so severely. Another doctor, Dr. Thomas Sozio (“Dr. Sozio”), reviewed

       the autopsy and noted the lack of damage to Smith’s airway, which he thought

       inconsistent with breathing super-heated air. Based on the amount of soot in

       Smith’s airway, Dr. Sozio concluded that Smith was breathing shallowly—in

       medical terminology, having agonal respirations. Such breathing usually occurs

       only near the time of death. Therefore, Dr. Sozio believed that Smith had

       suffered injuries prior to the fire, but the amount of damage caused by the fire

       made him unable to determine the scope of any possible injuries.




       3
        Purcell owned a local auto parts business where Kincade used to work and had known Kincade since he
       was a child. The two had a close relationship. Aware that the police were looking for Kincade, and
       apparently worried that Kincade might show up at his home, Purcell had spent the night at a friend’s house.
       When he returned home, he found Kincade.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019               Page 7 of 15
[15]   On September 30, 2016, the State charged Kincade with knowing or intentional

       murder, felony murder while committing arson, and Level 4 felony arson. On

       December 11, 2017, the State filed a notice of intent to use evidence which

       might implicate Evidence Rule 404(b). The State supplemented this notice on

       January 2, 2018. A jury trial commenced on January 9, 2018. The State

       introduced into evidence the three protective orders Smith had obtained against

       Kincade, Kincade’s prior conviction for invasion of privacy for violating one of

       the protective orders, Kincade’s prior threats to harm Smith, and his claim that

       he could get away with murder. On January 13, 2018, the jury found Kincade

       guilty as charged. At a sentencing hearing held on February 22, 2018, the trial

       court vacated the felony murder conviction due to double jeopardy concerns

       and sentenced Kincade to the maximum term of sixty-five years of

       incarceration on the murder conviction and a concurrent term of ten years on

       the arson conviction. Kincade now appeals.


                            Failure to Record Bench Conferences
[16]   Kincade first contends that the trial court committed reversible error by failing

       to ensure that the bench conferences held during the trial were recorded.

       Kincade notes that the court held over forty bench conferences, none of which

       were recorded. Indiana Criminal Rule 5 provides in relevant part:


               Every trial judge exercising criminal jurisdiction of this state shall
               arrange and provide for the electronic recording or stenographic
               reporting with computer-aided transcription capability of any and
               all oral evidence and testimony given in all cases and hearings,
               including both questions and answers, all rulings of the judge in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 8 of 15
               respect to the admission and rejection of evidence and objections
               thereto, and any other oral matters occurring during the hearing
               in any proceeding. . . .


[17]   Although recording of “any and all oral evidence and testimony” is required,

       our appellate rules contemplate that failures to record such evidence may still

       occur. Specifically, Indiana Appellate Rule 31 provides in relevant part:

               A. Party’s Statement of Evidence. If no Transcript of all or part
               of the evidence is available, a party or the party’s attorney may
               prepare a verified statement of the evidence from the best
               available sources, which may include the party’s or the attorney’s
               recollection. The party shall then file a motion to certify the
               statement of evidence with the trial court or Administrative
               Agency. The statement of evidence shall be submitted with the
               motion.

               B. Response. Any party may file a verified response to the
               proposed statement of evidence within fifteen (15) days after
               service.

               C. Certification by Trial Court or Administrative Agency.
               Except as provided in Section D below, the trial court or
               Administrative Agency shall, after a hearing, if necessary, certify
               a statement of the evidence, making any necessary modifications
               to statements proposed by the parties. The certified statement of
               the evidence shall become part of the Clerk’s Record.


[18]   Here, the parties submitted their respective statements of the evidence to the

       trial court, and the trial court certified a statement of the evidence. Kincade

       claims that there are still several portions of the bench conferences that are not

       accounted for. Specifically, he claims that there are “at least thirteen (13)”

       bench conferences in the transcript relevant to his claims of evidentiary error
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 9 of 15
       that are not accounted for in the trial court’s certified statement of the evidence.

       Appellant’s Br. at 13. This, he contends, makes it impossible for us to know the

       basis for the trial court’s evidentiary decisions.


[19]   Our supreme court addressed this very issue in Ben-Yisrayl v. State, 753 N.E.2d

       649 (Ind. 2001). In that case, there were several problems with the transcript,

       including that most of the bench conferences were not recorded. The court held

       that “[t]his omission would certainly make it unreasonable to require Ben-

       Yisrayl to show that any particular allegation of error was preserved by

       objection and proper argument, and we do not do so.” Id. at 660. Still, “[i]t

       [wa]s not unreasonable . . . to require Ben-Yisrayl to articulate some plausible

       way in which he was harmed by the lack of record of bench conferences.” Id. at

       660–61. In Ben-Yisrayl, the court was able to discern the issues that triggered the

       bench conferences Id. at 661. Thus, the court concluded:


               The lack of bench conference records certainly suggests that a
               reviewing court should take an appropriately liberal approach to
               issues that might otherwise be considered waived at trial for lack
               of either objection or argument. It also justifies giving Ben-
               Yisrayl the benefit of the doubt in speculating about what may
               have been discussed during any of the unrecorded sidebars.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 10 of 15
       Id.;4 see also Kien v. State, 782 N.E.2d 398, 406–07 (Ind. Ct. App. 2003)

       (following Ben-Yisrayl and holding that appellant’s arguments would not be

       deemed waived for failure to make a contemporaneous objection given the gaps

       in the transcript), trans. denied.


[20]   The same is true here. We need not remand for a new trial. Instead we can infer

       from the transcript that Kincade objected to the admission of the evidence he

       now claims was improper based on Evidence Rule 404(b), and we give Kincade

       the benefit of the doubt and find that he has not waived any appellate argument

       regarding the admission of this evidence. This is sufficient to remedy any gaps

       in the record. Moreover, although having a record of the trial court’s reasons for

       admitting the evidence would be helpful, we may affirm the trial court’s

       evidentiary ruling if it is sustainable on any basis in the record, even if it was

       not the reason stated by the trial court. Robey v. State, 7 N.E.3d 371, 379 (Ind.

       Ct. App. 2014), trans. denied. We therefore proceed to address Kincade’s claims

       of evidentiary error on their merits.


                                           Evidence Rule 404(b)
[21]   Kincade next argues that the trial court abused its discretion when it admitted

       evidence of his and Smith’s troubled relationship. Questions regarding the

       admissibility of evidence are entrusted to the sound discretion of the trial court.




       4
         The court further held that the failure to record the bench conferences “d[id] not, however, relieve Ben-
       Yisrayl entirely of his obligation to make issue-specific claims of error.” Id. Here, Kincade adequately makes
       issue-specific claims of error, which we address infra.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019                Page 11 of 15
       Robey, 7 N.E.3d at 379. On appeal, we will reverse a trial court’s decision on

       the admissibility of evidence only upon a showing of an abuse of that

       discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court, or if

       the court has misinterpreted the law. Id.


[22]   Kincade insists that the trial court admitted evidence of his prior actions in

       contravention of Evidence Rule 404(b). This rule provides:

               (b) Crimes, Wrongs, or Other Acts.

                   (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
                   not admissible to prove a person's character in order to show
                   that on a particular occasion the person acted in accordance
                   with the character.

                   (2) Permitted Uses; Notice in a Criminal Case. This evidence may
                   be admissible for another purpose, such as proving motive,
                   opportunity, intent, preparation, plan, knowledge, identity,
                   absence of mistake, or lack of accident. On request by a
                   defendant in a criminal case, the prosecutor must:

                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and

                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       Ind. Evidence Rule 404(b).

[23]   As we summarized in Laird v. State:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 12 of 15
               Evidence Rule 404(b) is designed to prevent the jury from
               making the “forbidden inference” that prior wrongful conduct
               suggests present guilt. . . . [T]he purpose behind Evidence Rule
               404(b) is to prevent[] the State from punishing people for their
               character, and evidence of extrinsic offenses poses the danger
               that the jury will convict the defendant because . . . he has a
               tendency to commit other crimes. In assessing the admissibility
               of evidence under Evidence Rule 404(b), the trial court must first
               determine that the evidence of other crimes, wrongs, or acts is
               relevant to a matter at issue other than the defendant’s propensity
               to commit the charged act, and then balance the probative value
               of the evidence against its prejudicial effect pursuant to Evidence
               Rule 403. The effect of Rule 404(b) is that evidence is excluded
               only when it is introduced to prove the forbidden inference of
               demonstrating the defendant’s propensity to commit the charged
               crime.


       103 N.E.3d 1171, 1176–77 (Ind. Ct. App. 2018) (citations and internal

       quotation marks omitted), trans. denied.


[24]   Here, we conclude that the evidence of Kincade’s prior behavior toward Smith

       was admissible as evidence of his motive to kill Smith. It is well settled that a

       defendant’s prior violence toward the victim is admissible to establish the

       defendant’s motive. Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004)

       (citing Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997)). In fact, “[n]umerous

       cases have held 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 admitted to show the relationship between the parties

       and motive for committing the crime.” Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct.

       App. 2010) (quoting Iqbal, 805 N.E.2d at 408), trans. denied; see also 1 Edward J.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 13 of 15
       Imwinkelried, Uncharged Misconduct Evidence § 4:19 (2008) (“When the

       uncharged acts of domestic violence are directed against the same spouse or

       partner alleged in the pending charge, there is little or no need to invoke

       character reasoning in order to justify the admission of the evidence. . . . [T]he

       trial judge can readily admit the evidence on a noncharacter motive theory; the

       uncharged acts evidence hostility toward the victim, and in turn that hostility

       may be the motive for the charged act of domestic violence.”) (quoted in Embry,

       923 N.E.2d at 9).5


[25]   Accordingly, the trial court did not abuse its discretion by admitting evidence of

       Kincade’s violent relationship with Smith as evidence of Kincade’s motive to

       kill Smith. See Iqbal, 805 N.E.2d at 408 (holding that trial court did not abuse its

       discretion by admitting, in murder trial where defendant was alleged to have

       killed his wife, evidence of a prior incident during which defendant placed a

       gun at his wife’s head and threatened to kill her leading to the issuance of a

       protective order and criminal charges against defendant).




       5
         Kincade notes that our supreme court in Hicks noted that evidence of a “bad relationship between the
       defendant and another person does not bear on the defendant’s motive to harm the victim and will rarely be
       either relevant or admissible to show motive for the charged conduct.” 690 N.E.2d at 224 n.12; see also Iqbal,
       805 N.E.2d at 407 (citing Hicks). This, however, refers to a bad relationship between the defendant and a
       person other than the victim, as the Hicks court specifically held that “‘[a] defendant’s prior bad acts are . . .
       usually admissible to show the relationship between the defendant and the victim.’” Id. at 222 (quoting Ross
       v. State, 676 N.E.2d 339, 346 (Ind. 1996)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019                    Page 14 of 15
                                                 Conclusion

[26]   The trial court’s failure to record the bench conferences is concerning, but the

       remedy for such a failure is to give the defendant the benefit of the doubt

       regarding the preservation of evidentiary issues on appeal, not a retrial.

       Considering Kincade’s claim on its merits, we conclude that the trial court did

       not err by admitting evidence of the violent, combative nature of Kincade and

       Smith’s relationship.


[27]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019   Page 15 of 15
