MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Dec 31 2019, 8:39 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas C. Allen                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Deyante A. Stephens,                                     December 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-987
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Frances C. Gull, Judge
                                                         Trial Court Cause No.
                                                         02D06-1801-MR-2



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019                 Page 1 of 9
[1]   Deyante A. Stephens (“Stephens”) was convicted after a jury trial of three

      counts of murder1 and one count of using a firearm in the commission of the

      offense.2 He appeals his convictions and raises the following restated issue for

      review: whether the trial court abused its discretion when it excluded evidence

      of an alleged third-party perpetrator.


[2]   We affirm.


                                        Facts and Procedural History
[3]   On January 19, 2018, Tomeka3 Bennett (“Bennett”) lived in a house at 1239

      Lillie Street in Fort Wayne, Indiana with her children and a roommate. Tr. Vol.

      2 at 224-27, 233, 242, 247-48. Around 10:00 p.m., Bennett’s brother, Paul

      Martin (“Martin”),4 came over with Stephens to sell Bennett a puppy. Tr. Vol. 3

      at 4; Tr. Vol. 4 at 47, 53. The two men stayed about ten minutes, left together,

      and then went to the apartment of Matthew Turner (“Turner”) to hang out after

      getting some food. Tr. Vol. 4 at 48-49. Later that night, Brianna Gould

      (“Gould”), who was pregnant at the time, came to Turner’s apartment with a

      friend, Kassandra Townsley (“Townsley”), to hang out with Stephens, Martin,

      and Turner. Id. at 49-50; Tr. Vol. 2 at 214-15. While there, people were



      1
          See Ind. Code § 35-42-1-1.
      2
          See Ind. Code § 35-50-2-11.
      3
       The parties spell Bennett’s first name as “Tamika”; however, during her testimony at trial, she spelled it as
      “Tomeka.” Tr. Vol. 2 at 247.
      4
       We note that the parties refer to Bennett’s brother as Paul Mitchell; however, the transcript reflects that his
      name is actually Paul Martin. Tr. Vol. 4 at 44.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019                      Page 2 of 9
      drinking alcohol. Tr. Vol. 4 at 51. Townsley remembers that Stephens was

      wearing a gray sweatshirt and gray sweatpants and glasses that night and that

      he had a semi-automatic handgun tucked in his waistband. Tr. Vol. 2 at 216-17.

      Gould and Townsley left after about an hour. Tr. Vol. 4 at 51.


[4]   After leaving Turner’s apartment, Gould and Townsley went to pick up

      Preonda Jones (“Jones”), and Townsley, who was driving, then dropped Gould

      and Jones off at Bennett’s house on Lillie Street in the early morning hours of

      January 20, 2018. Tr. Vol. 2 at 218-19. A little bit later, Stephens, Turner, and

      Martin also went to Bennett’s house. Tr. Vol. 4 at 54, 100. Martin, Stephens,

      and Turner let themselves and Gould and Jones into the house because none of

      the inhabitants of the house were awake when they arrived. Id. at 55. Martin

      and Stephens went into the kitchen, and Turner went into one of the bedrooms

      where Bennett was. Id. at 56. Gould and Jones were in the bathroom. Id. 56,

      103.


[5]   Sometime later that morning, there were multiple gunshots inside the home.

      Tr. Vol. 2 at 228, 235, 244; Tr. Vol. 3 at 6, 29. The noise of the gunshots woke

      up Bennett and the others in the house. Tr. Vol. 2 at 228, 235, 244; Tr. Vol. 3 at

      10, 29, 67. Bennett stayed in her bedroom but could hear a woman’s voice

      asking for help and Stephens’s distinct voice talking and yelling. Tr. Vol. 3 at

      10-11, 64-68. When Bennett did leave her bedroom a short time later, Martin

      and Stephens were gone, but, inside the bathroom, she found Jones, dead on

      the floor, and Gould in the bathtub suffering from multiple gunshot wounds.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 3 of 9
      Tr. Vol. 4 at 60-61. Both Gould and her unborn baby, which was viable at the

      time, later died. Tr. Vol. 3 at 220-21.


[6]   During the ensuing police investigation, officers observed damage to the front

      door of Bennett’s house that was consistent with being kicked in, and the door

      had a smear that resembled a footprint. Id. at 94, 101, 143-44. Inside the

      bathroom, the police found multiple shell casings determined to be from a nine-

      millimeter handgun. Id. at 103-05, 145, 159. There was also a magazine for a

      handgun that still held eight rounds of ammunition found in the bathroom. Id.

      at 37, 110-13. The police also discovered blood stains on both the inside and

      outside of the back door of the house. Id. at 135-37; Tr. Vol. 4 at 22. A cigar

      was found outside of the house, which appeared to have been dropped recently.

      Tr. Vol. 3 at 99, 142-43.


[7]   Later in the morning of January 20, 2018, a man in an apartment complex

      approximately three miles from Bennett’s house had an intruder attempt to

      enter his apartment. Id. at 72-74, 179. The intruder was later identified as

      Stephens. Id. at 76. When the resident opened the apartment door to look out,

      Stephens attempted to push his way into the apartment. Id. at 74-75. The

      resident was able to push Stephens out, lock the door, and call the police. Id. at

      75. Stephens appeared to be intoxicated, had blood on his clothing, and was

      looking for someone and calling out a name. Id. at 74-75.


[8]   Fort Wayne Police Department Officer Mitchell Gearhart (“Officer Gearhart”)

      responded to the dispatch regarding the disturbance and found Stephens behind


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 4 of 9
       the apartment wearing a gray sweatshirt and sweatpants with blood on his

       clothes. Id. at 190. Initially, Stephens told Officer Gearhart to shoot him. Id.

       at 191. Stephens then told Officer Gearhart that he knew him and wanted to

       give the officer a hug. Id. at 193. Stephens also stated that he knew why the

       cops were looking for him, that they knew what he had done, that he had seen

       what was in the bathroom, and then he asked who had snitched on him. Id. at

       194, 197, 199-200. He also mentioned a gun and a bathtub. Id. at 194.

       Stephens was taken into custody. Id.


[9]    Autopsies were performed on all three victims, and the cause of death of the

       victims was determined to be multiple gunshot wounds. Id. at 207, 213, 220,

       224. Jones had been shot three times, and Gould was shot five times. Id. at

       207, 214-15. Gould’s baby sustained one gunshot wound. Id. at 223.


[10]   The blood found on Stephens’s clothes was analyzed and came back as

       belonging to Gould and Jones. Tr. Vol. 4 at 16-21. The blood stains from the

       back door of Bennett’s home were also analyzed and shown to be DNA from

       Jones, Gould, and Stephens. Id. at 22-24.


[11]   While in custody, Stephens made several telephone calls to third parties, which

       were all recorded. State’s Ex. 87. In the calls, he made statements that he

       thought that Gould and Jones were snitches. Id.; Tr. Vol. 3 at 181-82.


[12]   On January 25, 2018, the State charged Stephens with three counts of murder

       and one count of using a firearm in the commission of the offenses. Appellant’s

       App. Vol. II at 17-24. A jury trial was held, and prior to trial, the State made an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 5 of 9
       oral motion in limine to bar Stephens from presenting evidence regarding an

       alleged third-party perpetrator. Tr. Vol. 2 at 25-35. Specifically, Stephens

       wanted to admit text messages between a third party, David Lewis (“Lewis”),

       and Gould that occurred in the hours before the murders. Tr. Vol. 3 at 23. The

       trial court granted the State’s motion and determined that Stephens had failed

       to show a reasonable connection between the crimes and the alleged third-party

       perpetrator, Lewis. Tr. Vol. 2 at 35; Tr. Vol. 4 at 125. At the conclusion of the

       trial, the jury found Stephens guilty as charged. Tr. Vol. 4 at 157-58, 160. The

       trial court sentenced him to sixty years for each murder conviction and twenty

       years for his conviction of using a firearm in the commission of the offenses,

       with all of the sentences to run consecutively. Stephens now appeals.


                                      Discussion and Decision
[13]   We review the trial court’s ruling on the exclusion of evidence for an abuse of

       discretion. Tibbs v. State, 59 N.E.3d 1005, 1011 (Ind. Ct. App. 2016), trans.

       denied. “The trial court’s ruling regarding the admission of evidence will be

       upheld if it is sustainable on any legal theory supported by the record, even if

       the trial court did not use that theory.” Id. We will reverse only if the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances. Id. Generally, errors in the exclusion of evidence are

       disregarded as harmless unless they affect the substantial rights of a party.

       Friend v. State, 134 N.E.3d 441, 449 (Ind. Ct. App. 2019). However, “if error

       results from the exclusion of evidence which indicates that someone else had

       committed the crime, the error cannot be deemed harmless.” Tibbs, 59 N.E.3d

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 6 of 9
       at 1011 (citing Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct. App. 2004), trans.

       denied).


[14]   Stephens argues that the trial court abused its discretion when it excluded

       evidence of an alleged third-party perpetrator of the crimes. He contends that

       the text messages between Gould and Lewis that he proffered should have been

       admitted because they showed the communications that occurred between the

       two in close proximity to the time of the murders, and the text messages would

       have allowed the jury to “view the interactions, emotions, state of mind, and

       possible threats between the two as they progress through the morning.”

       Appellant’s Br. at 23. Further, because the evidence presented against him was

       circumstantial and because there was unknown DNA found at the crime scene,

       Stephens asserts that his proffered evidence of an alleged third-party perpetrator

       was exculpatory and would have raised substantial doubt as to his guilt.


[15]   “Evidence which tends to show that someone else committed the crime makes

       it less probable that the defendant committed the crime and is therefore relevant

       under [Indiana Evidence] Rule 401.” Dickens v. State, 754 N.E.2d 1, 5 (Ind.

       2001) (citing Joyner v. State, 678 N.E.2d 386, 389 (Ind.1997)). Such evidence,

       however, may be excluded “if its probative value is out-weighed by unfair

       prejudice, confusion of the issues, or the potential to mislead the jury.” Pelley v.

       State, 901 N.E.2d 494, 505 (Ind. 2009) (citing Ind. Evidence Rule 403). Before

       evidence of an alternative perpetrator is admissible, the defendant must show

       some connection between the alternative perpetrator and the crime. Tibbs, 59

       N.E.3d at 1011 (citing Pelley, 901 N.E.2d at 504). While a defendant may

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 7 of 9
       present alternative perpetrator evidence at trial in order to cast doubt on the

       defendant’s guilt, the defendant must first lay an evidentiary foundation to

       establish that the alternative perpetrator evidence has an inherent tendency to

       connect the alternative perpetrator to the actual commission of the charged

       crime. Pelley, 901 N.E.2d at 505.


[16]   In the present case, Stephens sought to admit into evidence text messages

       between Gould and Lewis that Stephens alleged showed that Gould and Lewis

       had a contentious, controlling relationship and were arguing just hours before

       the murders occurred. Stephens wished to admit this evidence to show that

       Lewis could have been an alleged third-party perpetrator of the murders.

       Stephens made an offer of proof that consisted of the text messages, and after

       argument by both parties, the trial court determined that Stephens had failed to

       demonstrate a connection between Lewis, the alleged third-party perpetrator,

       and the murders.


[17]   During the presentation of the State’s case, Stephens made his offer of proof

       regarding the excluded evidence. Lewis testified and Stephens’s attorney

       questioned him about whether or not he had had a romantic or sexual

       relationship with Gould. Tr. Vol. 3 at 235. Lewis denied any such relationship

       and stated that he and Gould were only close friends. Id. Stephens then put

       forward his offer of proof as to the text message conversation between Gould

       and Lewis that occurred in the hours before the murders. Id. at 237. The text

       messages between Gould and Lewis merely showed that the two had a

       conversation during the hours before the murders occurred. The text message

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 8 of 9
       conversation ended several hours before the murders happened and did not

       provide a connection to the time that the murders took place or any connection

       whatsoever to the murders themselves. In Lashbrook v. State, 762 N.E.2d 756

       (Ind. 2002), our Supreme Court determined that just because a third party was

       upset with the victim earlier that day and made a statement that the victim “was

       gonna die,” such evidence did not tend to show that the third party committed

       the murder. Id. at 757. Likewise, here, without more, Stephens’s proffered

       evidence that one of the victims and a third party engaged in a contentious text

       message conversation several hours before the murders did not tend to show

       that the third party committed the murders. The trial court did not abuse its

       discretion when it found that Stephens failed to show a connection between

       Lewis and the murders and when it excluded the evidence of the text messages.


[18]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-987 | December 31, 2019   Page 9 of 9
