MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                          Feb 25 2015, 9:57 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John B. Steinhart                                         Gregory F. Zoeller
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Clay Howard,                                             February 25, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1406-CR-384
        v.                                               Appeal from the Madison Circuit
                                                         Court.
                                                         The Honorable Thomas Newman,
State of Indiana,                                        Jr., Judge.
Appellee-Plaintiff                                       Cause No. 48D03-1012-MR-893




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015     Page 1 of 14
[1]   Clay Howard appeals his conviction for Murder,1 a felony. Howard contends

      that the trial court erroneously (1) permitted the State to amend the charging

      information at trial; (2) permitted the jury to view the crime scene, which was

      his prison cell; (3) admitted into evidence a letter allegedly written by Howard;

      and (4) permitted the jury to view Howard’s Aryan Brotherhood gang tattoo.

      Finding no error, we affirm.


                                                     Facts
[2]   In April 2007, Howard was an inmate at the Pendleton Correctional Facility.

      On April 5, 2007, Howard was transferred into cell 103 in Building D, where

      inmates live two to a cell with individual doors on each cell. Howard’s new

      cellmate was Kent McDonald, a convicted child molester.


[3]   On the night of April 5, 2007, two inmates played dominos with McDonald

      and later heard McDonald and Howard arguing around 11:30 p.m. On the

      morning of April 6, 2007, a correctional officer doing a body count observed

      Howard on the top bunk and McDonald lying under the covers on the lower

      bunk with his legs sticking up at an unusual angle. Although McDonald had

      never previously missed a meal, he missed breakfast that morning. Two

      inmates later came to see if McDonald wanted to join them for lunch and

      talked with Howard, who was “shaking” and appeared “afraid.” Tr. p. 518.




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 2 of 14
      Howard blocked the door so that they could not see into the cell and told them

      that McDonald was sleeping.


[4]   Shortly after noon on April 6, correctional officers found McDonald lying on

      the bottom bunk, with his legs still in the unusual position they had been in

      earlier that morning. McDonald’s leg was cold to the touch, and when his

      blankets were removed, the officers discovered that he had a pillowcase tied

      around his head and observed a substantial amount of blood. He was not

      breathing, and medical personnel were unable to resuscitate him. Later, a

      pathologist conducting an autopsy observed that McDonald had multiple blunt

      force injuries to the head and neck, with evidence of asphyxiation.


[5]   In December 2010, the State charged Howard with McDonald’s murder,

      alleging that Howard, “acting in concert with Paul M. Rayle, did knowingly

      kill” McDonald. Appellant’s App. p. 266. Howard’s jury trial took place from

      February 18 through 26, 2014. At the beginning of trial, the State filed an

      amended information omitting the phrase “acting in concert with Paul M.

      Rayle.” Id. at 263. Howard objected that the amendment was untimely but the

      trial court overruled the objection, finding that the amendment was not

      substantive because it merely removed a surplusage of language.


[6]   During the trial, the State requested that the jury view the cell where the murder

      took place. The trial court allowed the jury to view the crime scene over

      Howard’s objection, finding that it was “beneficial” to the jury to view the

      scene. Tr. p. 274.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 3 of 14
[7]   At trial, the State introduced a letter into evidence. The State alleged that

      approximately one year after McDonald’s murder, a corrections officer

      screening outgoing mail observed a letter from Howard to his father. The

      screening officer placed the letter in a secured box for further review. The letter

      was later retrieved by a Department of Correction (DOC) investigator and sent

      to Indiana State Police officers. In relevant part, the letter stated as follows:

              I still go hunting. Just not your typical Game though. Tell Shane I
              Bagged and Tagged a [illegible]. It’s got a gamey taste but a lot like
              Beef. They tried to get me on Poaching charges because the Son Bitch
              wasn’t in season. The charges never stuck. That was 2 Birds w/one
              stone not only did he Play with kids, he Played with Boys so he was a
              F*g. How about that for earning some stripes. Thats something you
              can be Proud of. Throw this letter in the Fire Place or Burn it non-the less
              when your done reading it. Serious.
      Ex. 33 (grammatical and spelling errors original; emphasis original). Howard

      objected that the State had failed to establish a sufficient chain of custody to

      introduce the letter into evidence. The trial court overruled the objection and

      admitted the letter into evidence.


[8]   At trial, inmate Toby Hicks testified that Howard admitted to him that he had

      discovered that his cellmate was a child molester and that he was ordered by the

      prison gang Aryan Brotherhood to “take care of it.” Tr. p. 636. Howard told

      Hicks that he was in the process of joining the gang at that time. According to

      Hicks, Howard said that he had attempted to extort money from McDonald

      and McDonald refused to pay, after which Howard and another gang member

      “beat him and tortured him and left him in his bed and went to chow.” Id. at



      Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 4 of 14
       637. Howard stated that they “choked him out” until he passed out and then

       “put him on the bed and left him there.” Id. at 639.


[9]    The State sought to enter pictures of Howard’s Aryan Brotherhood tattoo into

       evidence. Howard objected because the photographs had not been disclosed to

       him prior to trial. The trial court granted the objection in part, denying the

       State’s request to admit the photographs into evidence and instead ordering

       Howard to show his tattoo to the jury. The trial court reasoned that the State

       had laid a sufficient foundation by presenting Hicks’s testimony regarding

       Howard’s membership in the Aryan Brotherhood gang. A DOC investigator

       who monitors prison gang activity testified regarding gang activity in Indiana

       prisons and the Aryan Brotherhood tattoo, and then identified Howard’s chest

       tattoo as an Aryan Brotherhood gang tattoo. The investigator also testified that

       the Aryan Brotherhood requires an act of violence to earn admission into the

       gang and that this particular gang is known for targeting and extorting child

       molesters.


[10]   At the close of trial, the jury found Howard guilty as charged. On May 5, 2014,

       the trial court sentenced Howard to sixty-five years imprisonment. Howard

       now appeals.


                                    Discussion and Decision
                      I. Amendment of Charging Information
[11]   Howard first argues that the trial court erred by permitting the State to amend

       the charging information at the start of the trial. We review a trial court’s
       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 5 of 14
       decision to allow a late amendment to a charging information for an abuse of

       discretion. Brown v. State, 912 N.E.2d 881, 892 (Ind. Ct. App. 2009). Whether

       an amendment is of form or substance is a question of law that is reviewed de

       novo. Gibbs v. State, 952 N.E.2d 214, 221 (Ind. Ct. App. 2011).


[12]   Amendments of substance must be filed before trial begins, while amendments

       of form may be made at any time. Ind. Code § 35-34-1-5. The relevant statute

       lists examples of “immaterial defect[s]” in a charging information that may be

       amended “at any time”:

               (1)      any miswriting, misspelling, or grammatical error;
               (2)      any misjoinder of parties defendant or offenses charged;
               (3)      the presence of any unnecessary repugnant allegation;
               (4)      the failure to negate any exception, excuse, or provision
                        contained in the statute defining the offense;
               (5)      the use of alternative or disjunctive allegations as to the acts,
                        means, intents, or results charged;
               (6)      any mistake in the name of the court or county in the title of the
                        action, or the statutory provision alleged to have been violated;
               (7)      the failure to state the time or place at which the offense was
                        committed where the time or place is not of the essence of the
                        offense;
               (8)      the failure to state an amount of value or price of any matter
                        where that value or price is not of the essence of the offense; or
               (9)      any other defect which does not prejudice the substantial rights
                        of the defendant.
       I.C. § 35-34-1-5(a).


[13]   To prove Howard guilty of murder, the State was merely required to prove that

       he knowingly or intentionally killed Howard. I.C. § 35-42-1-1. The additional

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 6 of 14
       language that he had acted “in concert with Paul M. Rayle” involved both

       unnecessary language and a misjoinder of another individual. Appellant’s App.

       p. 266. Facts that may be omitted from a charging information without

       affecting the sufficiency of the charge are mere surplusage. Jones v. State, 938

       N.E.2d 1248, 1252 (Ind. Ct. App. 2010); see also Erkins v. State, 13 N.E.3d 400,

       406 (Ind. 2014) (finding no error where trial court permitted amendment to

       charging information on the second day of trial to change the allegation of

       which co-conspirator committed the alleged act because the changed language

       was “not essential to making a valid conspiracy charge”).


[14]   Howard argues that this change caused a “complete shift” in the way the crime

       was to be tried. Appellant’s Br. p. 18. We disagree. The substance of the

       omitted language related to Howard’s membership in the Aryan Brotherhood

       gang and the fact that he committed the crime with another gang member to

       gain full membership in the gang. All of that evidence was presented to the jury

       via Hicks’s testimony. Therefore, the change in the charging information did

       not, in fact, substantively change the way the State tried its case. We find that

       the language in question here was mere surplusage, that the amendment was

       one of form rather than substance, and that the trial court did not abuse its

       discretion by permitting the State to amend its charging information at the

       beginning of trial.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 7 of 14
                          II. Jury Viewing of the Crime Scene
[15]   Next, Howard argues that the trial court abused its discretion in permitting the

       jury to view the crime scene, which happened to be his prison cell. It is well

       established that a jury may view the place in which any material fact of the

       crime occurred. Ind. Code § 35-37-2-5. Whether to allow the jury view is

       within the trial court’s sound discretion, and we will reverse only if the trial

       court abused that discretion. Jackson v. State, 597 N.E.2d 950, 962 (Ind. 1992).


[16]   Howard emphasizes that in this case, there was both photographic and

       videographic evidence of the prison cell at issue. He argues, therefore, that it

       was unnecessary for the jury to view the cell in person. The trial court

       disagreed, finding that “it would be beneficial to the jury to allow the view” of

       the cell. Tr. p. 274.


[17]   Initially, we note that there is no case law supporting a proposition that if there

       is photographic and/or videographic evidence available that a trial court should

       not permit a jury view. Furthermore, we note that much of the State’s evidence

       in this case was circumstantial, placing special importance on the layout of the

       cell. Specifically, evidence related to the following was presented to the jury:

       whether inmates could hear McDonald inside of the cell before the killing;

       whether Howard could have blocked the door in a way that limited the view of

       the body; and, whether the guards were able to view the scene from the control

       room or during their inspection rounds. Given the questions before the jury




       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 8 of 14
       and the relevance of the layout of the prison cell, we do not find that the trial

       court abused its discretion in permitting the jury view. 2


                                   III. Admission of Evidence
[18]   Finally, Howard argues that the trial court erred by admitting certain evidence

       proffered by the State. Specifically, he contends that the trial court should not

       have admitted the letter allegedly written by Howard or required him to show

       his gang tattoo to the jury. The decision to admit evidence is within the trial

       court’s sound discretion, and an abuse of discretion occurs only when the trial

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

       circumstances before it. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App.

       2009).


                                                     A. Letter
[19]   Howard argues that the trial court abused its discretion by admitting the letter

       allegedly written by him to his father. At trial, Howard objected that the State

       had failed to establish a sufficient chain of custody of the letter: “I don’t believe

       we have proper complete chain-of-custody as to how [the letter] got into that




       2
         Howard also argues that the jury view was impermissible because it reminded the jurors that he was an
       inmate. He did not object on this basis at trial and has therefore waived it for appeal. Regardless, the jury
       was acutely aware that Howard was an inmate, based on the testimony of nearly every witness as well as the
       photographic and videographic evidence. We agree with the State that the protections in place to ensure a
       defendant is not unfairly viewed as dangerous are qualitatively different than shielding a jury from observing
       a crime scene that happens to be in a prison. Therefore, even if the objection had been raised, it would have
       been properly overruled.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015           Page 9 of 14
       box.” Tr. p. 327. The State offered the following evidence with respect to the

       chain of custody of the letter:


            Daniel Harrison was a correctional officer at Pendleton at the relevant
             time. Among his duties was screening outgoing inmate mail, which was
             not permitted to be sealed. He noticed a sealed letter that was addressed
             to Norman Howard, Jr., with a return address from Clay Howard. He
             unsealed the letter, read it, and placed it in a box for further investigation
             by internal affairs.

            Michael Raines was a DOC investigator. He retrieved the letter from the
             box in which Howard had placed it. The box was locked and only DOC
             employees were able to access it. Raines notified Indiana State Police
             Detective Robert May about the letter.

            Detective May picked up the letter from Raines and placed it in evidence
             storage at the Indiana State Police Post. The letter remained in evidence
             storage until Detective May picked it up the day before he testified and
             brought it to court with him. It was in his possession the entire time
             between pickup from storage and bringing it to court.

[20]   It is well settled that the requirement that chain of custody be established

               is an attempt to satisfy the goal of assuring the trial court that the
               evidence submitted has not been substituted or tampered with. While
               the State is not required to exclude every possibility of tampering, the
               chain of custody must give reasonable assurances that the property
               passed through the hands of parties in an undisturbed condition.

       Johnson v. State, 580 N.E.2d 670, 671-72 (Ind. 1991). Any gaps in the chain of

       custody go to the weight of the evidence rather than its admissibility, and there

       is a presumption of regularity in the handling of exhibits by public officials.

       Culver v. State, 727 N.E.2d 1062, 1067 (Ind. 2000); Filice v. State, 886 N.E.2d 24,

       34 (Ind. Ct. App. 2008). We find that the State adequately established the

       chain of custody of the letter.
       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 10 of 14
[21]   Moreover, as the trial court observed, the letter is a nonfungible, readily

       identifiable item. In such a case, establishing a chain of custody is not

       necessary if a witness with knowledge of the item identifies it in court. Rice ex

       rel. Lopez v. Harper, 892 N.E.2d 209, 214 (Ind. Ct. App. 2008). Here, all of the

       witnesses who testified about the letter, including Harrison, who first retrieved

       it, recognized and identified it as the letter in question. Consequently, even if

       the chain of custody had been faulty, it would have been of no moment.


[22]   On appeal, Howard attempts to fold in a new argument that he did not make to

       the trial court, which is not permitted. Specifically, he now raises

       authentication questions, complaining that Howard’s handwriting was not

       identified and that there was no testimony that Harrison had actually observed

       Howard creating the document.3 Inasmuch as he did not raise this argument to

       the trial court, it is waived. Furthermore, given that the envelope in which the

       letter was sealed was addressed to Howard’s father and bore a return address

       listing Howard, with his DOC number, as the author, authentication or

       identification beyond the testimony provided by Harrison was not necessary.

       We find that the trial court did not abuse its discretion by admitting the letter

       into evidence.




       3
         Howard complains that there was no testimony about how Harrison collected the letter or how he knew it
       was written by Howard. This argument goes to the weight rather than the admissibility of this evidence, and
       these questions could have been raised to Harrison on cross-examination but were not. It is too late now to
       raise these issues. We also note that while Howard baldly states that he was prejudiced by the admission of
       this letter into evidence, he in no way expounds upon this assertion to explain why it was prejudicial.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015       Page 11 of 14
                                                   B. Tattoo
[23]   Finally, Howard argues that the trial court erred by admitting evidence of his

       Aryan Brotherhood tattoo and requiring that he show the tattoo to the jury. 4


[24]   First, Howard argues that the evidence is inadmissible because “the state

       conducted a physical examination of Howard without notifying his counsel . . .

       during the course of litigating this matter,” thereby violating his constitutional

       rights. Appellant’s Br. p. 21. Howard offers no evidence whatsoever that any

       physical examination occurred “during the course of this litigation” or at any

       other time when presence of counsel would have been required. And indeed, it

       can reasonably be assumed that a DOC inmate is frequently subjected to

       physical examinations and that the State, through DOC, had knowledge of his

       tattoo as a result. Consequently, we find no error on this basis.


[25]   Next, Howard contends that evidence of his tattoo should not have been

       admitted because the State failed to lay an adequate foundation. Specifically,

       he argues that “[n]o evidence was presented as to when it was obtained or how

       it was specifically tied to the crime at hand[.]” Id. at 23. We disagree,

       inasmuch as inmate Hicks’s testimony specifically tied the Aryan Brotherhood

       tattoo to the crime at hand. Hicks testified that Howard had joined the gang




       4
         To the extent that Howard premises his argument on the State’s failure to produce the photographs of the
       tattoo to his attorney within discovery deadlines, we note that the photographs themselves were not admitted
       into evidence. The only evidence that was admitted was evidence of which Howard had direct, personal
       knowledge: his own tattoo. Consequently, no error can be found in this regard.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015        Page 12 of 14
       and committed the murder at the direction of the gang. Therefore, a tattoo

       tending to establish that he was, in fact, a member of the gang, relates directly

       to some of the most damning evidence of the crime. As to the date on which

       the tattoo was obtained, we find that such information goes to the weight of the

       evidence rather than its admissibility. Howard’s counsel was free to highlight

       to the jury that the State did not know the date on which he had gotten the

       tattoo. But the absence of that information does not render the evidence

       inadmissible.


[26]   Finally, Howard contends that the probative value of the evidence of his tattoo

       was substantially outweighed by its prejudicial effect. See Ind. Evidence Rule

       403. We acknowledge that the act of raising his shirt and showing the tattoo to

       the jury had a prejudicial effect. But we find that the probative value of this

       evidence readily outweighed that prejudice. As noted above, Howard’s

       membership in the Aryan Brotherhood gang was directly relevant to the State’s

       theory of the case, and directly tied to Hicks’s testimony regarding Howard’s

       confession. Given the direct relevance to the matters at hand, we find that the

       trial court did not abuse its discretion by admitting evidence of Howard’s tattoo

       or requiring that he show it to the jury. See Robinson v. State, 682 N.E.2d 806,

       809-10 (Ind. Ct. App. 1997) (affirming trial court’s decision to require defendant

       to show gang tattoo to jury because, while “evidence of gang membership may

       contain some inherent prejudice, prejudice alone is not sufficient to render [the]

       evidence inadmissible”).




       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 13 of 14
[27]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1406-CR-384 | February 25, 2015   Page 14 of 14
