MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 31 2019, 10:43 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Jason Gray, Certified Legal Intern                       Attorney General of Indiana
Riley L. Parr, Certified Legal Intern
Appellate Clinic                                         Tyler G. Banks
Indiana University                                       Deputy Attorney General
Robert H. McKinney School of Law                         Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Adam Anderson,                                    July 31, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2599
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1611-MR-44184



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                       Page 1 of 26
                                                 Case Summary
[1]   Joshua Adam Anderson appeals his conviction for murder, a felony. He

      contends that the trial court abused its discretion by admitting certain evidence

      and committed fundamental error by inadvertently failing to collect an exhibit

      that was passed out to the jury and failing to give a reasonable theory of

      innocence instruction. He also asserts that the sentencing order incorrectly

      indicates that two counts with which he was charged were dismissed when the

      jury actually found him not guilty of those counts. Finding that the trial court’s

      failure to collect the exhibit did not result in fundamental error and further

      finding that the trial court committed no error in admitting evidence or

      instructing the jury, we affirm his conviction.1 However, because the

      sentencing order does not correctly reflect that the jury found Anderson not

      guilty of two counts with which he was charged, we remand for correction of

      the sentencing order.


                                    Facts and Procedural History
[2]   All relevant events occurred in 2016. In September of that year, Anderson met

      Sam Huggins. They developed an intimate relationship, and Anderson moved

      into Huggins’s Indianapolis apartment. On the night of either November 4 or

      5, Anderson introduced his friend, Edward Parr, to Huggins. Huggins picked




      1
        Anderson also asserts that the cumulative effect of the trial court’s errors resulted in fundamental error
      requiring reversal of his conviction. Given our resolution of his individual claims of error, we need not
      address his claim of cumulative error.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                        Page 2 of 26
      up Anderson and Parr in his silver 2000 Jeep Cherokee and drove them to his

      apartment where the three drank alcohol. Parr was surprised when he saw

      Huggins and Anderson kissing because he was unaware that Anderson was

      homosexual. At some point, Huggins asked Parr to leave, and Parr walked

      home.


[3]   The next day, Anderson called Parr, and they met near an Indianapolis library.

      They talked “about what happened inside [Huggins’s] apartment” the night

      before, and Anderson told Parr, “[S]ometimes you got to do what you got to do

      to get what you want.” Tr. Vol. 2 at 103-04.


[4]   On November 6 at about 5:00 a.m., Anderson called Parr and asked him if he

      wanted to “get high.” Id. at 104. Parr agreed, and Anderson picked up Parr in

      Huggins’s Jeep. Anderson explained to Parr that Huggins had left town to visit

      his sister in Florida and that Huggins had left Anderson the Jeep, some money,

      a credit card, and a debit card, and told Anderson to have fun. Over the course

      of the next few days, Anderson used Huggins’s credit and debit cards to obtain

      money to buy crack cocaine. In fact, Huggins’s bank and credit records

      revealed that between November 7 and 10, more than $1500 had been

      withdrawn or spent from Huggins’s two bank accounts and one credit card

      account. When Anderson ran out of money, he returned to Huggins’s

      apartment and took two television sets, an Xbox, and some DVDs to trade for

      drugs.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 3 of 26
[5]   Anderson and Parr did drugs in a hotel room for a day and a half and then went

      to various friends’ homes, where they continued to use drugs. Sometimes

      Anderson left Parr and drove the Jeep somewhere else to buy more drugs.

      After one of these trips, Anderson returned to Parr’s location without the Jeep

      but as a passenger in someone else’s vehicle. On the night of November 7,

      Anderson and Parr walked to Parr’s home. As they walked, Anderson started

      crying and told Parr that he “choked the life out of [Huggins] and threw him in

      the bathtub.” Id. at 109. Parr was not sure whether to believe Anderson.


[6]   On the morning of November 8, Parr sent an anonymous email tip to the police

      through Crime Stoppers. The following day, Parr called the Indianapolis

      Metropolitan Police Department and spoke to Detective Robert Flack. After

      confirming some of the information relayed by Parr, Detective Flack went to

      Huggins’s apartment. A maintenance worker opened the door to the apartment

      to allow the detective to enter. Detective Flack saw no signs of forced entry.

      He announced his presence multiple times and called out for Huggins but

      received no response. He walked through the apartment and entered the

      bedroom, where he observed an unmade bed, a single slipper on the floor next

      to the bed, and an empty space where he believed a television had been. He

      saw no signs of a struggle. As Detective Flack approached the bathroom, he

      detected “a fragrance-type odor.” Id. at 29. He entered the bathroom, pulled

      back the shower curtain, and found Huggins’s dead body in the bathtub. The

      bathtub was filled with water, in which opened bottles of cologne and

      mouthwash were floating. Huggins was wearing his underwear, his shirt was


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 4 of 26
      pulled up partway over his head, and he had on one slipper that paired with the

      one Detective Flack had seen by the bed.


[7]   A forensic pathologist performed an autopsy and determined that Huggins’s

      cause of death was asphyxia due to strangulation and drowning. Id. at 188.

      The pathologist also observed numerous injuries to Huggins’s head and body: a

      contusion on the left side of the forehead, a laceration to the right ear, a

      hemorrhage in the conjunctiva in his right eye, small abrasions on his upper

      right neck and chest area, contusions on both elbows, and multiple injuries to

      his chest caused by blunt trauma. Id. at 173-81.


[8]   On November 10, Anderson turned himself in to police. Detective Jose Torres

      interviewed Anderson. This interview was recorded on video (“the Interview”).

      State’s Ex. 102. Anderson was informed of and waived his Miranda rights.

      During the Interview, Anderson admitted that he believed that he had killed

      Huggins. Id. at 9:20–12:30. He explained that he thought he killed Huggins

      when, while the two were having sex, he was choking Huggins at Huggins’s

      request. Id. at 8:30–12:30. Anderson said that he was sorry and that it was a

      horrible accident. Anderson told Detective Torres, “[T]his is a man I loved,

      and I never had no, absolutely no intention in this world of hurting him.” Id. at

      28:30–28:36. Anderson admitted to Detective Torres that he used Huggins’s

      debit and credit cards in the days following Huggins’s death and that he had

      taken televisions and DVDs from Huggins’s apartment to trade for drugs. Id. at

      13:45–15:20.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 5 of 26
[9]    During the Interview, Anderson also discussed an October incident involving

       himself and Huggins when police were called (“the October Incident”). Id. at

       6:30–6:45; 7:17–7:59. He disclosed that one evening he wanted to buy cocaine

       while Huggins wanted to buy marijuana, and they began to argue about which

       drug to buy. During the argument, Anderson pushed Huggins into a dresser

       and, for a minute or two, kept Huggins from leaving the living room because he

       wanted Huggins to listen to him. Anderson said he was arrested that night and

       charged “with a few different things.” Id. at 7:48–7:59.


[10]   Anderson also discussed his alcohol use on the night of the October Incident

       and the night of Huggins’s death. He said that he and Huggins were in a great

       mood the night of Huggins’s death, that they were drinking, and that Anderson

       let his “drinking get out of hand.” Id. at 38:10–38:16. He explained, “I’m not

       the type of person that does this, and you can know, you can ask anybody that

       knows me. I’m, I am not a violent person, in the least bit, it’s but when you

       introduce tons of alcohol into my system, I become an a**hole.” Id. at 38:33–

       38:50. Detective Torres then asked Anderson, “Is that what happened earlier

       when, when you [were] arrested for the battery and everything with

       [Huggins]?” Id. at 38:52–38:58. Anderson replied, “[Y]eah I was drunk

       then[.]” Id. at 39:00. Detective Torres queried, “So you have the tendency to

       become a little more violent when you (inaudible).” Id. at 39:03. Anderson

       responded, “Yeah when I…. when I drink a lot yeah. …. But uh but yeah, other

       than that, I mean unless I’m extremely whacked out of my mind, I don’t put

       my hands on people. I just don’t do it.” Id. at 39:06–39:19.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 6 of 26
[11]   On November 14, the State charged Anderson with Count 1, murder; Count 2,

       murder while committing or attempting to commit robbery; and Count 3,

       robbery resulting in serious bodily injury. Prior to trial, the State filed a notice

       of intent to offer evidence about the October Incident pursuant to Indiana

       Evidence Rule 404(b), which Anderson opposed. Following a hearing, the trial

       court ruled that the evidence of the October Incident was admissible to show

       motive, absence of mistake or accident, and/or the nature and circumstances of

       the relationship between Anderson and Huggins. Also prior to trial, Anderson

       filed a motion in limine to exclude any evidence that he has a tendency to

       become violent when he is intoxicated, which the trial court denied. In

       addition, he filed a notice of proposed redactions to the Interview and

       objections to the admission of portions of the Interview that related to the

       October Incident and to his character while under the influence of alcohol,

       which the trial court also denied.


[12]   At trial, the trial court admitted, over Anderson’s objection, evidence related to

       the October Incident and to his use of alcohol and its effects on him. This

       evidence included portions of State’s Exhibit 102, the video recording of the

       Interview, and State’s Exhibit 103, the transcript of the Interview. It also

       included testimony from Officer Pepper Eldridge, the officer who responded to

       the October Incident, and photographs taken that night. However, the trial

       court granted Anderson’s request for the following admonishment to the jury,

       which was given when Exhibits 102 and 103 were admitted:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 7 of 26
               This exhibit, which is a video recording that’s going to be played
               for you here in a minute, you’ll have State’s Exhibit 103, which is
               the transcript. You’ll have a copy of that transcript. It is a
               transcript that was prepared by someone who listened to it and
               typed it up. So there could be mistakes that were made in it.
               There could be typographical errors. What you hear is the
               evidence you can consider, all right. What you see is only an aid
               for you as you listen to the video recording and watch the video
               recording, okay. So if you see something different between the
               two, the evidence you can consider is what you hear and see,
               okay.


               ….


               …. There will be evidence introduced that the defendant was
               involved in wrongful conduct other than those charged in the
               information. This evidence has been received solely on the issue
               of the defendant’s motive, nature of the relationship between
               [Anderson] and [Huggins], and/or the absence of accident. This
               evidence should be considered by you only for those limited
               purposes. This evidence should be considered by you as evidence
               of the defendant’s character.


               ….


               [T]hanks for correcting me. …. This evidence should not be
               considered by you as evidence of the defendant’s character.


       Tr. Vol. 3 at 17-18.


[13]   The Interview was played for the jury. Before it was finished, the trial court

       took a recess. The trial court informed the jurors that they could not keep

       Exhibit 103 and to leave it on their chairs. Id. at 19. There is no indication in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 8 of 26
       the record that the jurors failed to follow the trial court’s instructions during this

       recess. After the recess, the trial court finished playing the Interview, and the

       State called Officer Eldridge to testify.


[14]   Officer Eldridge testified that she responded to a request for police assistance on

       October 2 at about 9:00 p.m. She explained that police assistance was

       requested because somebody was pounding on a patio screen door and would

       not leave. When she arrived at the apartment building, a Mr. Yates approached

       her and told her that his friends “had a subject behind that residence detained,”

       whom Officer Eldridge identified as Anderson. Id. at 30. Yates and his friends

       told Officer Eldridge that they saw their neighbor, Huggins, run out of his

       apartment after Anderson, and Yates and his friends chased Anderson because

       they thought a crime was occurring. Yates told Officer Eldridge that Anderson

       was carrying a backpack that contained a bottle of alcohol and a white sock

       containing another bottle of alcohol. One of the bottles of alcohol was open,

       and Officer Eldridge testified that Anderson had been drinking it. Yates and his

       friends did not report witnessing any violence between Anderson and Huggins,

       and Detective Eldridge did not observe any violence between Anderson and

       Huggins. However, Officer Eldridge observed that Huggins had a gash several

       inches long on the inside of his right forearm and that Huggins’s front door

       frame had been kicked in. During Officer Eldridge’s testimony, photographs

       taken that night were admitted over Anderson’s objection, including a

       photograph of Anderson sitting on the curb in handcuffs, a photograph of his

       backpack and a bottle of alcohol, a photograph of the damaged door frame, and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 9 of 26
       photographs of the injury to Huggins’s forearm. State’s Exhibits 104, 105, 107,

       108, 109.


[15]   At the conclusion of Officer Eldridge’s testimony, the State rested. The trial

       court took another recess. The jurors still had Exhibit 103, but the trial court

       did not instruct them to leave the exhibit on their chairs. Before the jury

       returned, the prosecutor reminded the trial court that Exhibit 103 needed to be

       collected. The trial court responded, “Yes, we do. I think they wanted to leave

       them here but were told to take them back. And I heard him do that, but I

       didn’t think about the fact they had the transcripts and we hadn’t pulled them.”

       Id. at 40. From this comment, it appears that the jurors took Exhibit 103 with

       them into the jury room during this recess.


[16]   When the jury returned, the defense presented its case. During Anderson’s

       testimony, the jurors retained possession of Exhibit 103. Anderson testified that

       he loved Huggins, that Huggins asked him to choke him during sex, that he was

       uncomfortable doing so but agreed because he wanted Huggins to be happy,

       and that they had engaged in that sexual activity two or three times previously

       without any problem. Anderson testified that on the day of Huggins’s death, he

       had been drinking since noon and was drunk when they went to bed to engage

       in sex, and that at some point he could not remember what happened. He said

       that he was still drunk when he woke up naked and lying partially on the right

       side of the bed. He saw Huggins lying on the ground and thought Huggins

       might be unconscious. He checked Huggins’s pulse and checked to see if he

       was breathing and started “freaking out.” Id. at 59. He testified that he carried

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 10 of 26
       and dragged Huggins’s body into the bathroom and put him in the bathtub. He

       did not remember putting more water in the bathtub, so he thought the water

       must have already been there from an earlier bath. He said he took Huggins’s

       wallet, keys, and phone, and left in Huggins’s car. He explained that he wanted

       to get high to help him forget the whole night. He denied that he meant for

       what happened to Huggins to happen. He also denied that what happened to

       Huggins was because he wanted money or because he wanted something

       Huggins would not give him.


[17]   During Anderson’s testimony, the trial court took another recess. The trial

       court did not instruct the jury to leave Exhibit 103 on their chairs, but there is

       no indication in the record that the jury took the exhibit with them during this

       recess. At the conclusion of Anderson’s testimony and after defense counsel

       rested, the prosecutor reminded the trial court that Exhibit 103 had not been

       collected. The trial court then instructed the jurors to hand the exhibit to the

       bailiff. During closing argument, Anderson’s counsel conceded that Anderson

       committed reckless homicide, but argued that the State’s evidence did not

       support murder or robbery. The trial court provided final jury instructions,

       which included an instruction on reckless homicide. The jury found Anderson

       guilty on Count 1 and not guilty on Counts 2 and 3. The sentencing order

       incorrectly shows that Counts 2 and 3 were dismissed. Appellant’s App. Vol. 2

       at 16. The trial court sentenced Anderson to sixty years. This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 11 of 26
                                        Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                          admitting certain evidence.
[18]   Anderson contends that evidence regarding (1) the October Incident and (2) his

       tendency to become violent when intoxicated was improper character evidence

       inadmissible under Indiana Evidence Rule 404.2 We review evidentiary rulings

       for an abuse of discretion resulting in prejudicial error. Williams v. State, 43

       N.E.3d 578, 581 (Ind. 2015). An abuse of discretion occurs when the trial

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

       circumstances before it or the court misinterprets the law. Id. In determining

       whether improperly admitted evidence has prejudiced the defendant, we assess

       the probable impact of that evidence on the jury in light of all the other properly

       admitted evidence. Id. If independent, properly admitted evidence of guilt

       supports the conviction, the error is harmless. Id.


[19]   Turning first to the evidence Anderson challenges regarding the October

       Incident, he focuses solely on Officer Eldridge’s testimony and the

       corresponding photographic exhibits, which he contends were inadmissible

       under Indiana Evidence Rule 404(b). Rule 404(b) prohibits the admission of

       evidence of another crime, wrong, or act “to prove a person’s character in order

       to show that on a particular occasion the person acted in accordance with the




       2
         We reject Anderson’s claim that the State failed to address either of his arguments regarding the admission
       of evidence simply because the State consolidated his arguments into one issue.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                    Page 12 of 26
       character.” This rule is designed to prevent “the jury from indulging in the

       ‘forbidden inference’ that a criminal defendant’s ‘prior wrongful conduct

       suggests present guilt.’” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019)

       (quoting Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)).


[20]   Although Evidence Rule 404(b) proscribes the use of evidence of prior bad acts

       to show character, it provides that such evidence may be admissible for other

       purposes, including, but not limited to, “motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       (Emphases added.) To determine whether evidence of prior bad acts is

       admissible, the trial court must first assess whether the evidence “is relevant to a

       matter at issue other than the defendant’s propensity to commit the charged

       act.” Fairbanks, 119 N.E.3d at 568. “The test for admission is whether or not

       the evidence is so specifically and significantly related to the charged crime in

       time, place and circumstance as to be logically relevant to one of the particular

       excepted purposes.” Reeves v. State, 953 N.E.2d 665, 670 (Ind. Ct. App. 2011)

       (quoting Malone v. State, 441 N.E.2d 1339, 1346 (Ind. 1982)), trans. denied. If

       the proffered evidence meets the relevancy threshold, the trial court must then

       apply the balancing test required under Indiana Evidence Rule 403 and




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 13 of 26
       determine whether the evidence’s probative value is “substantially outweighed”

       by the danger of unfair prejudice.3


[21]   The State argues that the October Incident evidence was admissible to show

       intent and lack of accident. Anderson asserts that Officer’s Eldridge testimony

       and the photographic exhibits were not relevant to intent or lack of accident

       because the evidence showed no actual violence between the parties. We agree

       with the State.


[22]   In order for evidence of prior bad acts to be admissible to show intent to

       commit the charged crime, the defendant must place his or her intent in issue.

       Ceaser v. State, 964 N.E.2d 911, 917 (Ind. Ct. App. 2012), trans. denied. Lack of

       accident is a subset of intent. See Fairbanks, 119 N.E.3d at 570 (“[W]hen the

       State seeks to introduce other-bad-acts evidence to disprove accident, the State

       wants to show the defendant had the requisite mens rea to commit the charged

       act.”). Our supreme court has held that prior bad acts are relevant to negate a

       claim that the victim’s death was accidental. Crain v. State, 736 N.E.2d 1223,

       1235-36 (Ind. 2000).4


[23]   Here, Anderson placed his intent and lack of accident in issue. To convict

       Anderson of murder under Count 1, the State was required to prove beyond a



       3
         Evidence Rule 403 states, “The court may exclude relevant evidence if its probative value is substantially
       outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading
       the jury, undue delay, or needlessly presenting cumulative evidence.”
       4
        Contrary to Anderson’s claim, prior bad acts do not need to result in charges to be relevant under Evidence
       Rule 404(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                     Page 14 of 26
       reasonable doubt that Anderson knowingly or intentionally killed Huggins.

       Ind. Code § 35-42-1-1(1). At trial, Anderson admitted that he killed Huggins,

       but claimed it was an accident. Specifically, Anderson’s defense was that on

       the night of Huggins’s death, Anderson was extremely drunk and unknowingly

       and unintentionally killed Huggins while engaging in sexual activities by

       accidentally choking Huggins too hard.


[24]   In the Interview, Anderson admitted that on the October night when police

       were called to Huggins’s apartment, Anderson battered and confined Huggins

       during an argument and was arrested and charged with a few things. State’s

       Exhibit 102 at 6:30–7:59. He also admitted that he was drunk. Id. at 39:00.

       Anderson does not challenge the admission of this evidence on appeal.

       Anderson also admitted during the Interview that he had been drinking that

       night. Id. at 38:52–39:03. Officer Eldridge’s testimony regarding the October

       Incident and the photographic exhibits are directly connected to Anderson’s

       admission that he had battered and confined Huggins and provided additional

       information to explain what happened that night. Specifically, Officer

       Eldridge’s testimony and the photographs showed that Huggins was in fact

       injured that night, the extent of that injury and that the injury was probably not

       the result of an accident, and that Anderson was drinking alcohol that night.

       Therefore, the evidence was relevant to negate Anderson’s claim that he

       accidentally caused Huggins’s death.


[25]   As for whether the probative value of the evidence of Anderson’s prior

       wrongful conduct was substantially outweighed by the potential for unfair

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 15 of 26
       prejudice such that it was inadmissible under Rule 403, we note that his prior

       wrongful conduct and the instant crime had significant similarities, most

       notably that they involved the same victim and that Anderson was drinking

       both times. It is also significant that the October Incident occurred just a few

       weeks before the charged crime. In addition, the trial court gave a limiting

       instruction and admonished the jury that Anderson’s prior wrongful conduct

       was not admitted to demonstrate character or prove action in conformity

       therewith. Balancing the probative value on the issue of intent and lack of

       accident against the danger of unfair prejudice, we cannot say the trial court

       abused its discretion by admitting evidence of the October Incident.


[26]   Turning now to Anderson’s challenge to evidence regarding his tendency to

       become violent when intoxicated, he contends that certain portions of Exhibits

       102 and 103 were inadmissible under Evidence Rule 404(a)(1), which provides

       that “[e]vidence of a person’s character or character trait is not admissible to

       prove that on a particular occasion the person acted in accordance with the

       character or trait.”5 Specifically, Anderson challenges the admissibility of his

       statements that alcohol causes him to “become an a**hole[,]” that he has “the

       tendency to become a little more violent[,]” and that “unless I’m extremely

       whacked out of my mind, I don’t put my hands on people.” State’s Exs. 102

       and 103. Anderson argues that from this evidence the jury could have inferred




       5
         Evidence Rule 404(a)(2) provides exceptions for a defendant or victim in a criminal case that are not
       relevant in this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                     Page 16 of 26
that “because Anderson has the ‘tendency’ to get violent when he gets drunk,

and because he was drunk at the time of the victim’s death, he must have gotten

violent and murdered Huggins.” Appellant’s Br. at 38. He compares the

evidence here with character evidence that this Court concluded was

inadmissible in Oldham v. State, 779 N.E.2d 1162 (Ind. Ct. App. 2002), trans.

denied (2003). That case is distinguishable. The evidence in that case included

business cards with mafia names on them and novelty cards with Oldham’s

photograph and captions such as “Considered armed and dangerous.” Id. at

1171. On appeal from his murder conviction, Oldham argued that the

evidence gave rise to the impermissible inference that he was a person with a

dangerous and criminal character and that the murder was entirely consistent

with his character and prior bad acts. Id. at 1172. The State argued that the

business and novelty cards were admissible to show Oldham’s ownership of a

shirt because the evidence was found in close proximity to the shirt. Id. The

Oldham court rejected the State’s argument because the transcript showed that

the State did not attempt to link Oldham’s ownership of the shirt with the

location of the challenged evidence. Id. at 1172-73. Rather, when Oldham

took the stand to testify, the prosecutor showed him the business and novelty

cards and asked him such things as whether he considered himself to be armed

and dangerous. Id. at 1172. The Oldham court concluded that the prosecutor’s

questioning showed that “the prosecutor did not present the items as harmless

novelty items, but tried to use the business cards and the novelty photograph to

paint Oldham as a dangerous criminal. This evidence was obviously

inadmissible under Evidence Rule 404. Id. at 1172-73.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 17 of 26
[27]   Anderson’s argument ignores the context in which he made the challenged

       statements and the fact that he made them in an attempt to excuse his actions

       on the night of Huggins’s death and the night of the October Incident. When

       Anderson made the challenged statements in the Interview, he was asserting

       that he was “not a violent person,” but he let his “drinking get out of hand”

       when he killed Huggins and he would not have killed Huggins if he had not

       been drinking. State’s Ex. 102 at 38:10–38:16; 38:33–38:50. Thus, his

       statements were directly connected to his state of mind on the night of

       Huggins’s death. In addition, Anderson agreed in the Interview that he was in

       a similar state of mind on the night of the October Incident. Id. at 38:52-39:19.

       We have already determined that evidence of the October Incident was relevant

       to the issue of Anderson’s intent and lack of accident and admissible under

       Evidence Rule 404(b). Because the challenged statements were directly

       connected to the charged crime and the October Incident and reflected

       Anderson’s state of mind on those particular instances, we cannot say that the

       trial court abused its discretion in admitting these statements.


           Section 2 – The trial court’s failure to immediately collect
                Exhibit 103 did not result in fundamental error.
[28]   Anderson asserts that the trial court committed reversible error by allowing the

       jurors to take Exhibit 103 to the jury room during a recess, and to retain

       possession of it during Officer Eldridge’s testimony and Anderson’s testimony.

       Generally, a trial court’s decision to allow the jury to take exhibits into the jury

       room is reviewed for an abuse of discretion. Thacker v. State, 709 N.E.2d 3, 7


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 18 of 26
(Ind. 1999); Mays v. State, 907 N.E.2d 128, 132 (Ind. Ct. App. 2009), trans.

denied. Here, the trial court inadvertently allowed the jurors to take Exhibit 103

into the jury room during one trial recess. Accordingly, the trial court cannot

be said to have exercised any discretion in this matter. However, Anderson

does not assert, nor does anything in the record suggest, that defense counsel

was unaware that the jury had the exhibit during a recess, during Officer

Eldridge’s testimony, and during Anderson’s testimony. Defense counsel could

have objected that Exhibit 103 had not been collected and requested curative

measures before Officer Eldridge or Anderson testified or when the trial court

directed that the exhibit be collected after Anderson testified. If defense counsel

had done so, any error or potential prejudice resulting from the jury’s

inadvertent possession of the exhibit could have been addressed and cured

during trial. Accordingly, we conclude that Anderson waived this issue for

review.6 See Lake v. State, 565 N.E.2d 332, 335 (Ind. 1991) (concluding that

where defense counsel was present and did not call into question trial court’s

manner of handling jury, no error was preserved for appeal); see also Hennings v.

State, 532 N.E.2d 614, 616 (Ind. 1989) (applying fundamental error standard of

review where defendant failed to object when trial court permitted jury to take

evidence into jury room for deliberations).




6
  Anderson asserts that we should review this issue “on its merits ‘without insisting that the claim first be
presented to the trial judge.’” Appellant’s Br. at 27 (quoting Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind.
Ct. App. 2007), trans. denied). However, the cases Anderson relies on apply to claims of error involving
probation conditions and sentencing, and we find no principled basis to apply the standard of review in those
cases to the very different claim of error raised here.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                      Page 19 of 26
[29]   Because Anderson has waived this issue, he may win reversal of his conviction

       only by establishing that the jury’s possession of the exhibit under the

       circumstances resulted in fundamental error:


                In order to be fundamental, the error must represent a blatant
                violation of basic principles rendering the trial unfair to the
                defendant and thereby depriving the defendant of fundamental
                due process. The error must be so prejudicial to the defendant’s
                rights as to make a fair trial impossible. In considering whether a
                claimed error denied the defendant a fair trial, we determine
                whether the resulting harm or potential for harm is substantial.
                Harm is not shown by the fact that the defendant was ultimately
                convicted. Rather, harm is determined by whether the
                defendant’s right to a fair trial was detrimentally affected by the
                denial of procedural opportunities for the ascertainment of truth
                to which he would have been entitled.


       Baker v. State, 948 N.E.2d 1169, 1178-79 (Ind. 2011) (citations omitted).


[30]   Although we have decided that the abuse of discretion standard does not apply

       here because Anderson waived the issue for review, we believe that some of the

       considerations applicable when the trial court exercises its discretion in deciding

       whether to send evidence to the jury room are helpful to our fundamental error

       analysis. Under the common law,7 “the trial court should consider three factors

       in deciding whether to permit the jury to take a copy of the exhibits into the jury




       7
          The procedure for allowing jurors to review evidence and testimony is governed by both case law and
       Indiana Code Section 34-36-1-6. However, Section 34-36-1-6 applies only after the jury retires for
       deliberations and the jurors explicitly indicate a disagreement as to any part of the testimony or a desire to be
       informed as to any point of law. Hall v. State, 897 N.E.2d 979, 982 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                       Page 20 of 26
       room: (1) whether the material will aid the jury in a proper consideration of the

       case; (2) whether any party will be unduly prejudiced by submission of the

       material; and (3) whether the material may be subjected to improper use by the

       jury.” Hall v. State, 897 N.E.2d 979, 982-83 (Ind. Ct. App. 2008) (citing Thacker

       v. State, 709 N.E.2d 3, 6 (Ind. 1999)).


[31]   Anderson argues that fundamental error occurred because


               the jury had the transcript in the jury room–isolated from all
               other evidence and without guidance from the trial court–it could
               have given the transcript undue weight or considered it for some
               improper use. Moreover, rather than listen to Anderson’s
               testimony, the only witness who provided an alternative to the
               State’s narrative of murder, the jury might well have instead
               perused the transcript that contained prejudicial character
               evidence.


       Appellant’s Br. at 32-33 (citation omitted).


[32]   We are unpersuaded based on the following reasons. First, we have already

       decided that Exhibit 103 did not contain inadmissible evidence, and therefore

       the danger of prejudice or misuse is not nearly as great as Anderson asserts.

       Second, the jurors received extensive guidance from the trial court when they

       were provided with Exhibit 103. Specifically, the trial court informed them that

       the video recording of the Interview was the evidence they were to consider and

       that Exhibit 103 was only an aid to help them as Exhibit 102 was played. Tr.

       Vol. 3 at 17. The trial court also instructed the jury that Exhibits 102 and 103

       contained evidence of prior wrongful conduct, but that that evidence was not to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 21 of 26
       be considered as evidence of Anderson’s character and was only to be

       considered on the issues of Anderson’s motive, the nature of the relationship

       between Anderson and Huggins, and the absence of accident. Id. at 18. Then,

       before the trial court dismissed the jury for the next recess, the trial court

       informed the jurors that they could not keep Exhibit 103 and to leave the

       exhibit on their chairs. Id. at 19. “When the jury is properly instructed, we will

       presume they followed such instructions.” Weisheit v. State, 26 N.E.3d 3, 20

       (Ind. 2015) (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987)).

       Although the trial court did not repeat these instructions immediately before the

       following recess, when the jurors apparently brought the exhibit back to the jury

       room, there is nothing in the record to suggest that they did not adhere to the

       trial court’s instruction that Exhibit 103 was just an aid to use while they

       watched Exhibit 102. The presumption that the jurors followed the trial court’s

       instruction to treat Exhibit 103 only as an aid to Exhibit 102 is bolstered by the

       fact that during this recess, when the prosecutor reminded the trial court that

       Exhibit 103 needed to be collected, the trial court commented that the jurors

       wanted to leave the exhibit on their chairs. Tr. Vol. 3 at 40.


[33]   Third, there is nothing in the record that suggests that the jurors were reading

       Exhibit 103 rather than listening to Anderson’s testimony, and we presume that

       the jurors continued to heed the trial court’s instruction that the exhibit was just

       an aid to the video recording. And fourth, Exhibit 103 was substantially similar

       to Anderson’s trial testimony. Exhibit 103 contained Anderson’s statements

       that he loved Huggins, that he would never want to hurt him, and that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 22 of 26
       Huggins’s death was a terrible accident. Therefore, Exhibit 103, like

       Anderson’s testimony, supported Anderson’s defense that Huggins’s death was

       accidental. As such, we cannot say that the exhibit was unduly prejudicial.


[34]   Clearly, the trial court erred in failing to immediately collect Exhibit 103 after

       Exhibit 102 was finished playing, and the jurors improperly retained Exhibit

       103 during a recess and during Anderson’s testimony. However, the potential

       for Exhibit 103 to be used improperly by the jury or be given greater weight

       than other evidence was negligible given the trial court’s instructions and the

       jurors’ apparent willingness to follow the court’s instructions.8 We conclude

       that the error did not deprive Anderson of a fair trial, and therefore the error did

       not rise to the level of fundamental error.9




       8
         This case is nothing like the case of Thomas v. State, 259 Ind. 539, 539-41, 289 N.E.2d 508, 509-10 (Ind.
       1972), relied on by Anderson, in which our supreme court held that the trial court abused its discretion in
       permitting the jury to take a witness’s statements in the jury room during deliberations because the statements
       were admitted solely as prior inconsistent statements to impeach the witness and could have been improperly
       used for the truth of the matter contained therein. Likewise, Anderson’s reliance on Toohy v. Sarvis, 78 Ind.
       474 (1881), is unavailing because that case, too, is very different. In that civil case, our supreme court
       reversed the denial of the defendant’s motion for a new trial because the jury, attended by the bailiff, was left
       to deliberate in the courtroom where papers in the cause had been inadvertently left and a juror read aloud to
       the other jurors one of the letters written from the defendant to the plaintiff. Id. at 475.
       9
         Anderson also argues that the jury’s possession of Exhibit 103 in the jury room during one recess violated
       his right “to be present in the courtroom at every stage of the proceedings requiring the presence of the jury,”
       under the Indiana Constitution Article 1, Section 13. James v. State, 613 N.E.2d 15, 24 (Ind. 1993).
       Anderson’s failure to object at trial waives this issue for our review. See Long v. State, 121 N.E.3d 1085, 1088
       (Ind. Ct. App. 2019) (concluding that defendant’s failure to object at trial waived his claim that his
       constitutional right to a public trial was violated). Waiver notwithstanding, we note that even were we to
       assume that Anderson’s right to be present during trial was violated, the “mere fact that an alleged error
       implicates constitutional issues does not establish that fundamental error has occurred.” Nichols v. State, 974
       N.E.2d 531, 535 (Ind. Ct. App. 2012) (quoting Schmidt v. State, 816 N.E.2d 925, 945 (Ind. Ct. App. 2004),
       trans. denied (2005)). We have already concluded that fundamental error did not result from the jury’s
       possession of Exhibit 103 in the jury room during a recess, and the fact that this alleged error involves a
       constitutional right does not change that conclusion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                       Page 23 of 26
       Section 3 – The trial court’s failure to give a reasonable theory
        of innocence instruction does not constitute error, let alone
                              fundamental error.
[35]   Anderson asserts that the trial court committed fundamental error by failing to

       sua sponte give a reasonable theory of innocence instruction. The manner of

       instructing a jury lies largely within the discretion of the trial court, and we will

       reverse only for an abuse of discretion. Randall v. State, 115 N.E.3d 526, 529

       (Ind. Ct. App. 2015). In reviewing the trial court’s decision to refuse a

       proposed jury instruction, “we consider whether the instruction (1) correctly

       states the law, (2) is supported by the evidence, and (3) is covered in substance

       by other instructions that are given.” Id. Here, Anderson failed to tender the

       instruction he contends should have been given, and therefore he failed to

       preserve the issue for appellate review. See Ortiz v. State, 766 N.E.2d 370, 375

       (Ind. 2002) (“Failure to tender an instruction results in waiver of the issue for

       review.”). To avoid waiver, Anderson must show that the court’s failure to

       give the instruction resulted in fundamental error. Id.


[36]   In Hampton v. State, 961 N.E.2d 480 (Ind. 2012), our supreme court carefully

       considered when a reasonable theory of innocence instruction should be

       required and what the specific content of that instruction should be. The

       supreme court concluded as follows:


               [B]ecause Indiana jurisprudence recognizes the importance of [a
               reasonable theory of innocence] instruction in certain cases
               involving circumstantial evidence but our case law reveals a
               reluctance to find reversible error for failure to give the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 24 of 26
                instruction if there is substantial direct evidence of guilt, we elect
                to apply the approach taken in [Spears v. State, 272 Ind. 634, 639-
                40, 401 N.E.2d 331, 335 (1980)] and direct that the “reasonable
                theory of innocence” instruction is appropriate only where the
                trial court finds that the evidence showing that the conduct of the
                defendant constituting the commission of a charged offense, the
                actus reus, is proven exclusively by circumstantial evidence. As
                discussed above, to deny the availability of a “reasonable theory
                of innocence” instruction whenever there is any direct evidence
                of the fact that a criminal offense has occurred … could render
                the instruction unlikely ever to be used, but requiring the
                instruction whenever there is no direct evidence of any single
                element would compel its use in almost all criminal cases
                because mens rea is often shown only by circumstantial evidence.


                We thus hold that, when the trial court determines that the
                defendant’s conduct required for the commission of a charged
                offense, the jury should be instructed as follows: In determining
                whether the guilt of the accused is proven beyond a reasonable doubt, you
                should require that the proof be so conclusive and sure as to exclude every
                reasonable theory of innocence.


       Id. at 490-91.10


[37]   Anderson argues that a reasonable theory of innocence instruction should be

       required where a defendant’s mens rea is established exclusively by

       circumstantial evidence and is the central issue at trial. However, in Hampton,

       our supreme court specifically held that the instruction is appropriate only




       10
          “The Latin phrase ‘actus reus’ refers to the ‘wrongful deed that comprises the physical components of a
       crime and that generally must be coupled with the mens rea [the criminal state of mind], to establish criminal
       liability.’” Hampton, 961 N.E.2d at 487 n.5. (quoting BLACK’S LAW DICTIONARY 41-42 (9th ed. 2009)).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019                    Page 25 of 26
       where the trial court finds that the actus reus is proven exclusively by

       circumstantial evidence. See id.; see also Spears, 272 Ind. at 639-40, 401 N.E.2d

       at 335 (holding that reasonable theory of innocence instruction was not required

       on charge of assault with intent to kill where evidence of assault was direct and

       evidence of intent to kill was circumstantial). “Supreme court precedent is

       binding upon us until it is changed either by that court or by legislative

       enactment.” Stafford v. State, 83 N.E.3d 721, 725 (Ind. Ct. App. 2017) (quoting

       Dragon v. State, 774 N.E.2d 103, 107 (Ind. Ct. App. 2002), trans. denied (2003)).

       Accordingly, we find no error, let alone fundamental error.


                 Section 4 – The sentencing order needs correction.
[38]   Last, Anderson asserts, and the State concedes, that the sentencing order

       incorrectly indicates that the two counts for which Anderson was found not

       guilty were dismissed. Appellant’s App. Vol. 2 at 16. We agree, and therefore

       remand to amend the sentencing order to state that Anderson was found not

       guilty of Counts 2 and 3.


[39]   Based on the foregoing, we affirm Anderson’s conviction and remand for

       correction of the sentencing order.


[40]   Affirmed and remanded.


       Bradford, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2599| July 31, 2019   Page 26 of 26
