Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                                FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                             Jan 09 2012, 9:07 am
collateral estoppel, or the law of the
case.
                                                                     CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

SCOTT KNIERIM                                    GREGORY F. ZOELLER
Danville, Indiana                                Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIEL FOSTER,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 53A01-1105-CR-222
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MONROE CIRCUIT COURT
                          The Honorable Marc Kellams, Judge
                             Cause No. 53C02-1004-FA-362


                                      January 9, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

         Daniel Foster appeals the trial court’s denial of his motion to correct error, which

challenged his convictions for Class A felony attempted murder and three counts of Class

C felony criminal recklessness. We affirm.

                                            Issue

         Foster raises one issue, which we restate as whether the trial court properly denied

his motion to correct error regarding affidavits from two witnesses, who claimed that they

perjured themselves during their defense testimony.

                                            Facts

         On April 12, 2010, Rebecca Baugh was pregnant with Foster’s child. Baugh and

Foster had been arguing over Foster’s relationship with another woman. Foster’s sister,

Heather Foster, and his cousin, Wendy Campbell, were with Baugh and drove to Foster’s

residence. Campbell was driving the truck, Baugh was sitting in the middle, and Heather

was sitting on the passenger side. As they approached the driveway to Foster’s residence,

Foster stepped from behind a tree, raised a gun, and shot at the truck. The bullet hit the

windshield. Campbell decided to get out of the truck, but Baugh and Heather drove away

and called the police. When the police arrived, Baugh had pieces of glass in her ear and

on her clothing. Baugh and Heather told the police officers that Foster had shot at the

truck. Campbell refused to speak with the officers. The officers were unable to locate

the bullet, but a roofer working on a nearby house reported hearing a gunshot. During an

interview with police a few days later, Baugh claimed that Foster did not shoot at the

truck.

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       The State charged Foster with three counts of Class A felony attempted murder

and three counts of Class C felony criminal recklessness. Foster and Baugh resumed

their relationship and, during a bail hearing, Baugh testified that Foster did not shoot the

truck. Heather and Campbell also testified at the bail hearing that Foster did not shoot

the truck.

       At Foster’s jury trial, Baugh testified that she lied to the police officers during the

second interview and that she lied at the bail hearing. Baugh testified that they decided to

claim that a rock damaged the windshield.             They fabricated estimates from two

windshield repair businesses, including one from Thickstun Glass Company, and the

fabricated estimates claimed that the rock was still embedded in the windshield at the

time of the estimate. John Chester, a forensic scientist with the Indiana State Police

Laboratory, testified that the hole in the windshield was caused by a high-velocity, low-

mass impact and that microscopic traces of lead, which were consistent with a bullet,

were found in the hole. Another expert, John Larsen, also testified that the windshield

was damaged by a bullet. Heather and Campbell testified for Foster, claimed that a rock

damaged the windshield, and claimed that they obtained estimates for repairing the

windshield, which allegedly still had the rock stuck in it at the time of the estimates. On

rebuttal, the State called Thomas Thickstun, the owner of a company that allegedly gave

Foster an estimate to repair the windshield. Thickstun testified that his company did not

produce Foster’s estimate to repair the windshield.

       The jury found Foster guilty of Class A felony attempted murder of Baugh and all

three counts of Class C felony criminal recklessness. The jury found Foster not guilty of

                                              3
the attempted murder of Heather and Campbell. After Foster’s March 2011 sentencing,

he filed a motion to correct error based on allegedly newly discovered evidence. Foster

submitted affidavits from Heather and Campbell.1 In her affidavit, Heather claimed that

she lied in her testimony at the trial, that Foster did shoot at the truck but that Heather,

Campbell, and Baugh were inside of the house at the time, and that she fabricated the

windshield estimates. In her affidavit, Campbell claimed that Foster probably did shoot

at the truck but that Heather, Campbell, and Baugh were inside of the house at the time

and that she lied about a rock hitting the windshield. The trial court denied Foster’s

motion to correct error. Foster now appeals.

                                               Analysis

        Foster claims that the trial court improperly denied his motion to correct error

regarding affidavits from Heather and Campbell, who claimed that they perjured

themselves during their defense testimony. “The denial of a motion predicated on newly

discovered evidence is a discretionary ruling and is reviewed deferentially.” Godby v.

State, 736 N.E.2d 252, 258 (Ind. 2000). We will reverse only for an abuse of discretion,

which exists if the judgment goes against the logic and effect of the facts or the trial court

has misinterpreted the law. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind. Ct. App.

2009), trans. denied.

        A recantation or admission of perjury does not necessarily mandate the grant of a

new trial. Id. To obtain a new trial based on newly discovered evidence, a party must


1
 Foster also claimed that Baugh had admitted to perjuring herself at the trial. However, Foster presented
no evidence to support this claim.
                                                   4
establish that: (1) the evidence was not available at 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 a retrial of the case; and (9) it will probably

produce a different result. Godby, 736 N.E.2d at 258. The moving party has the burden

of showing that the newly discovered evidence meets all nine prerequisites for a new

trial.   Id.   “We must analyze these nine factors with care, as ‘the basis for newly

discovered evidence should be received with great caution and the alleged new evidence

carefully scrutinized.’” Martinez, 917 N.E.2d at 1247 (quoting Carter v. State, 738

N.E.2d 665, 671 (Ind. 2000)).

         Although the basis for the trial court’s decision does not appear in the record, we

conclude that the trial court would have been within its discretion in deciding that the

allegedly newly discovered evidence was not worthy of credit. See Webster v. State, 699

N.E.2d 266, 269 (Ind. 1998). Neither Heather nor Campbell is a disinterested witness

here.    Both Heather and Campbell have demonstrated their willingness to perjure

themselves to protect Foster. Heather initially told police that Foster shot the windshield

while they were in the vehicle, later testified that a rock damaged the windshield, and

now claims that Foster did shoot the windshield but they were not in the vehicle at the

time. Campbell testified that a rock damaged the windshield and now claims that Foster

did shoot the windshield but they were not in the vehicle at the time.

         When their story that a rock damaged the windshield was completely discredited

at the trial, they came forward with this most recent story. However, Heather and

                                              5
Campbell’s most recent story does not correspond with the evidence that police officers

responding to Heather and Baugh’s call immediately after the shooting found glass in

Baugh’s ear and on her clothing.         Further, Heather and Campbell’s most recent

explanation conflicts with the testimony of Foster and Heather’s uncle, who testified that

he was working on a car outside Foster’s residence all afternoon and did not hear any

gunshots.

       This issue turns on credibility of witnesses. The trial court observed Heather and

Campbell at trial, was presented with evidence at the trial of their possible perjury, and

was presented with their affidavits in connection with the motion to correct error. The

trial court would have been within its discretion to find the affidavits unworthy of credit.

Because it was Foster’s burden to establish all nine elements of the aforementioned test

and he has failed to carry that burden, the trial court did not err by denying his motion for

a new trial based on this evidence.

                                        Conclusion

       The trial court properly denied Foster’s motion to correct error. We affirm.

       Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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