MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be                                   Mar 14 2018, 10:06 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Glen E. Koch II                                          Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rickey D. Haines,                                        March 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         07A01-1708-CR-1994
        v.                                               Appeal from the
                                                         Brown Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Judith A. Stewart, Judge
                                                         Trial Court Cause No.
                                                         07C01-1512-F1-373



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018            Page 1 of 24
[1]   Following a jury trial, Rickey D. Haines (“Haines”) appeals his convictions for

      Level 3 felony criminal confinement,1 Level 6 felony domestic battery,2 Class A

      misdemeanor possession of a firearm by a domestic batterer, 3 and his

      adjudication as a habitual offender.4 He raises the following restated issues:


                 I. Whether the trial court abused its discretion when it admitted
                 evidence of two prior incidents of domestic violence by Haines
                 toward the victim;


                 II. Whether the trial court erred when it denied Haines’s motion
                 to dismiss that was based on the State’s failure to preserve the
                 victim’s cell phone after it was forensically examined by the
                 State; and


                 III. Whether the trial court erred when it did not grant Haines’s
                 motion to correct error concerning the habitual offender
                 enhancement because some convictions used by the State were
                 outside the ten-year limit imposed by statute.


[2]   We affirm in part, reverse in part, and remand.




      1
          See Ind. Code § 35-42-3-3(a), (b).
      2
          See Ind. Code § 35-42-2-1.3(a), (b)(2).
      3
          See Ind. Code § 35-47-4-6.
      4
       See Ind. Code § 35-50-2-8(d). We note that Haines was also convicted of Level 6 felony strangulation,
      Indiana Code section 35-42-2-9(b), but the trial court later vacated that conviction based on double jeopardy
      grounds. Appellant’s App. Vol. 2 at 250.

      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018             Page 2 of 24
                                 Facts and Procedural History
[3]   As of December 2015, Haines and Jennifer Wagers (“Wagers”) had been in an

      on-again/off-again relationship for approximately fourteen years, and they had

      two minor children together, J.H. and G.H. (together, “Children”). On

      December 8, 2015, Wagers went to Haines’s residence to make dinner and pick

      up their Children, ages nine and five years old at the time, who would be

      getting off the school bus there. When Wagers arrived, she went inside to begin

      making dinner. At some point, Wagers went into the bathroom, and, shortly

      thereafter, Haines came in and closed the door behind him. Haines demanded

      that Wagers hand over her cell phone to him, because he wanted to search her

      phone for contact with another man, and the two argued. Wagers would not

      unlock her phone, and Haines was yelling at her. He told her to “assume the

      position,” Wagers got on the floor on her knees, and Haines tried to drown her

      in the bathtub. Tr. Vol. IV at 168. She ended up on her stomach on the floor of

      the bathroom, and he had sex with her, which she testified was non-consensual.

      G.H. knocked on the bathroom door, and Haines told him go away. Tr. Vol. IV

      at 170-71; Tr. Vol. V at 52, 65. G.H. heard his mother crying and saying “stop,”

      and he ran to summon Haines’s mother (“Grandmother”), who lived nearby.

      Tr. Vol. V at 52-53. Grandmother came to Haines’s residence and knocked on

      the closed bathroom door, and Haines opened the door. Wagers asked

      Grandmother to stay, but she left the residence.


[4]   Eventually, Wagers escaped the bathroom and ran out of the residence, and

      Haines ran out another door, still arguing about the phone. Haines cornered

      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 3 of 24
      Wagers on the porch and would not let her down the stairs to leave. He

      punched her in the face with his fist. As Wagers sat on the porch, Haines put

      Wagers in “a choke hold,” saying “good night bitch” as she struggled. Tr. Vol.

      IV at 175; Tr. Vol. V at 68. The Children came outside at some point, yelled at

      Haines “to stop,” observed Haines put their mother in a choke hold, and saw

      him throw a bicycle at Wagers. Tr. Vol. V at 68. He told the Children to go

      back into the house. Haines ripped a metal porch rail out of the porch and

      threatened to hit Wagers and break her kneecap. He then swung the metal pole

      at Wagers, striking her on the shin, ripping her pants, lacerating her leg, and

      bruising her foot. Wagers agreed to unlock her phone, and Haines looked

      through it. He saw messages to other people and was angry, and he ordered her

      to go back into the residence, which she did.


[5]   Inside, he made Wagers get his shotgun and give it to him, and he sent the

      Children to bed. He told Wagers to go to the bedroom, and he followed,

      bringing the shotgun and setting it in a corner. He told her to remove her pants

      and lay on her stomach, which she did, and he had intercourse with her, and he

      directed her to perform oral sex.5 During this time, Haines told Wagers that he

      was recording “everything” on her phone, indicating he was going to share it on

      social media “to show everyone how much of a whore [she] was and how much




      5
       Wagers testified that Haines engaged in non-consensual sexual activity with her while they were in the
      bathroom and again, later, after they returned inside the house from outside. Tr. Vol. IV at 168-70, 180-81.
      Haines acknowledged engaging in the sexual activity, but told police it was consensual. Tr. Vol. V at 135.
      The jury found Haines not guilty on the rape charge. Tr. Vol. VI at 67.

      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018             Page 4 of 24
      of a bad mother [she] was.” Tr. Vol. IV at 181-182, 218, 233, 237. Haines

      eventually went to sleep, but Wagers did not leave because she could not walk

      and was afraid he would catch her. Sometime in the morning, Wagers regained

      custody of her phone, finding it on Haines’s dresser, and after he left for work,

      Wagers called her sister, Jamie Wagers (“Jamie”) and asked her to come for

      her. After Wagers had left Haines’s residence, she called the Brown County

      Sheriff’s Department to report what Haines had done.


[6]   Deputy Joshua Stargell (“Deputy Stargell”) arrived, and Wagers told him that

      she had been battered the previous night by Haines. He observed a large

      laceration on her left shin, redness around her nose and neck. She showed the

      officer the metal pole that Haines used to batter her; it was about four feet long

      and had a bolt sticking out of it. She also told him that she was strangled and

      punched in the nose. Wagers told Chief Deputy Michael Morris (“Chief

      Deputy Morris”) that Haines had said that he was recording sex acts on her

      phone, so Chief Deputy Morris collected Wagers’s phone as evidence. Chief

      Deputy Morris arranged for the Fishers Police Department’s forensic analysis

      lab to examine the phone, advising the Fishers Police Department about the

      sexual allegations that Wagers had made against Haines and her statement to

      deputies that Haines said he was recording sex acts. An examiner in the

      Fishers forensic analysis lab conducted a forensic examination of the cell

      phone, and the examiner did not find any video recordings or photographs

      related to the case. In the process, the examiner made and kept a digital backup

      of all the phone’s content. As nothing relevant was found on the phone, Chief


      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 5 of 24
      Deputy Morris went and retrieved the phone in Fishers. After Chief Deputy

      Morris was advised that the analysis “did not recover any type of evidence of

      the alleged assault at all,” he returned the phone to Wagers, who used the

      phone for a period of time, but replaced it eventually when the screen broke.

      Tr. Vol. V at 134.


[7]   On December 11, 2015, the State charged Haines with Level 1 felony rape, and

      it subsequently amended the information to add charges of Level 3 felony

      criminal confinement, Level 6 felony domestic battery, Level 6 felony

      strangulation, and Class A misdemeanor possession of a firearm by a domestic

      batterer. The State also alleged that Haines was a habitual offender. Appellant’s

      App. Vol. 2 at 4, 12-13, 31, 116, 165.


[8]   In March 2016, the State filed notice of its intent to introduce evidence under

      Indiana Evidence Rule 404(b), specifically, evidence of: (1) a prior domestic

      battery conviction in which Wagers was the victim; (2) pending charged

      conduct of, among other things, domestic battery and criminal recklessness

      with a deadly weapon, in which Wagers was the victim; (3) prior uncharged

      acts of domestic battery against Wagers; and (4) protective orders and no

      contact orders granted in favor of Wagers against Haines. Id. at 40-41. In

      December 2016, Haines filed a motion in limine to exclude that evidence. Id. at

      96-97. On February 23, 2017, the trial court issued an order, ruling that the

      State could admit evidence of two incidents, one in 2009 and another in 2015,

      both of which had resulted in criminal charges, as this evidence was relevant to

      motive and the relationship between the parties, but that the State could not

      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 6 of 24
      admit any other evidence of uncharged acts or protective orders that had been

      obtained. Id. at 109-11.


[9]   In April 2016, Haines filed a motion to dismiss, in which he asserted that the

      charges against him should be dismissed on state and federal due process

      grounds because the State “negligently destroyed a cell phone belonging to the

      alleged victim,” that the phone was material evidence, and that he was

      irreparably and materially prejudiced because he had no ability to examine the

      phone. Id. at 45-46. The trial court conducted a hearing on May 11, 2016 on

      Haines’s motion to dismiss. At the hearing, the State argued that Haines’s

      motion should be denied, for various reasons, including that evidence was not

      destroyed as all contents on the phone were preserved and available to both

      parties. The State called as a witness Detective J.D. Floyd (“Detective Floyd”),

      a computer forensic examiner with the Fishers Police Department. Detective

      Floyd stated that the Fishers Police Department has one of six forensic

      laboratories in the state and the Fishers lab handles cases for agencies

      throughout the state. He testified that his sergeant was contacted by Chief

      Deputy Morris, who asked the Fishers lab to perform “an extraction” on the

      phone. Tr. Vol. II at 80. Using specialized cabling and software, the examiner

      extracts or “reads” data, noting that they do not and cannot “write to,” that is,

      change, the data. Id. at 81. Detective Floyd stated that each phone is different

      as far as what data can be accessed, including whether deleted information is

      capable of being recovered, and what is capable of extraction is also dependent

      on the “advancements of the software.” Id. at 84. He said, for this particular


      Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 7 of 24
       phone, “I was able to extract the file system, or do a back up of the phone,

       which allowed me to extract the logical data of the phone but not the physical

       data[,]” with logical data being the things that you can see when you look at the

       phone, whereas physical data would be a “bit for bit” copy including memory

       of the phone and any attached micro SD card. Id. He testified that the

       extracted information was retained and preserved on the forensic server.


[10]   With regard to what he was looking for, Detective Floyd stated that he was

       instructed to see if there were any pictures or videos that would be relevant to

       the alleged offense and also to look for evidence of deleted information. He

       reported that he “found no items of relevance on the phone.” Id. at 85. The

       physical phone was thereafter returned to the Brown County Sheriff’s

       Department. Detective Floyd testified that, based on his experience, anything

       that could be extracted from the phone was extracted by him and preserved. Id.

       at 85-86. On cross-examination, Detective Floyd acknowledged that his

       software program was not the only program used around the country to extract

       data. The State also called Wagers, who testified that law enforcement returned

       the phone to her after examination and that it had value to her because it still

       had unused minutes on it. She stated that at some point after it was returned to

       her, the screen cracked, and she deleted everything and gave it to her father.


[11]   In arguing for the trial court to grant Haines’s motion to dismiss, defense

       counsel urged that the phone “clearly should have been expected to play a

       significant role in [Haines]’s defense,” as the phone “may have exonerated

       [Haines] from the crimes with which he is charged[,]” but “because the phone

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 8 of 24
       itself has been effectively destroyed” it could not be independently examined by

       an expert. Id. at 90. The State’s failure to preserve the phone, Haines argued,

       prejudiced him. The State responded that a backup of the extracted data was

       preserved and remained available. The next day, the trial court issued an order

       denying Haines’s motion to dismiss. Appellant’s App. Vol. 2 at 69-71. In it, the

       trial court found that the phone was “potentially useful” evidence, but was not

       “materially exculpatory” evidence, and, further, a digital backup copy of the

       phone’s contents existed and was available to both parties or their experts. Id.

       Finding that there was no evidence of bad faith by the State and no grounds for

       dismissal of the pending charges, the trial court denied Haines’s motion.


[12]   A bifurcated jury trial was held on March 27 through March 30, 2017. The

       State called, among other witnesses, Wagers, her sister Jamie, both Children,

       and deputies. Wagers testified as to the events of the night in question, which

       began because Haines kept demanding to see the contents of her cell phone,

       which she described as “a generic prepaid phone.” Tr. Vol. IV at 168. She

       described being yelled at, punched, sexually assaulted, strangled, hit with a

       metal pole, and having Haines throw a bike at her. She stated, “When he made

       me perform oral sex, . . . he was telling me that he was recording everything[,]”

       and saying, “Everyone’s going to know how much of a whore you are.” Id. at

       181. When asked, “Do you know if he was recording or not?” she replied,

       “That’s what he was telling me.” Id. at 182, 218. She testified that she turned

       the phone over to law enforcement, and, after it had been examined, they

       returned it to her. When asked why she wanted the cell phone back, she stated,


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 9 of 24
       “I’m a single mother with two kids. I had to have my phone.” Id. at 186. She

       stated that she kept it and used it “for a long time[,]” but “[t]he screen ended up

       breaking so I had to replace it, the phone.” Id.


[13]   As is relevant to this appeal, Wagers also testified about prior acts of domestic

       violence against her by Haines. Haines objected, but the trial court stated that it

       would allow two specific acts, as they were relevant to Haines’s motive. Prior

       to Wagers’s testimony concerning prior bad acts, the trial court gave the

       following admonishment:


               Ladies and gentlemen, you are about to hear some evidence of
               acts other than those that are charged in this case. This evidence
               is being received only on the issue of motive and you should
               consider it - should be considered by you only for that limited
               purpose.


       Id. at 204. Wagers then testified that in October 2009, Haines accused her of

       sleeping with a neighbor, and during their argument about it, Haines hit

       Wagers in the face and strangled her while the Children were present. He was

       convicted for his actions. Id. at 204-05. She also testified that, in June 2015,

       Haines pushed Wagers on the floor during an argument, and as she drove

       away, he fired a shotgun at her car. Id. at 205-07.


[14]   Deputy Stargell testified to being dispatched around 11:00 a.m. on December 9,

       2015 and that Wagers told him she had been battered and sexually assaulted the

       night before by Haines. Lieutenant Michael Moore testified that he went to the

       scene to assist Deputy Stargell, and he observed that Wagers was “definitely


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 10 of 24
       distraught” and sometimes crying. Id. at 136. Nathan Tompkins, previously a

       detective with the Brown County Sheriff’s Department, testified that he was

       contacted by Deputy Stargell, came to Haines’s residence, and interviewed

       Wagers. She described sexual assaults, being punched in the face, being

       choked, and he observed injuries to her leg. He later interviewed the Children,

       separately, at their school. Pictures that authorities had taken of Wagers and

       her injuries were admitted into evidence.


[15]   Chief Deputy Morris explained that, on the night in question, he collected

       Wagers’s phone as evidence “because there were allegations that the phone had

       been used to facilitate the alleged assault in some fashion,” Tr. Vol. V at 133,

       and he contacted the Fishers Police Department and asked them to analyze the

       phone. When asked why he ultimately returned the phone to Wagers, he

       explained that (1) “[T]hey did not recover any type of evidence of the alleged

       assault,” and, therefore, Chief Deputy Morris “did not see any evidentiary

       value in it,” and (2) Wagers seemed attached to the phone and wanted it back,

       and “she’s a single mother, live[s] somewhat remotely, and . . . was of a very

       modest means, and that seemed her only mode of communicating with the []

       outside world if something were to happen. I felt, you know, prudent to give

       her the phone back.” Id. at 134-35. He estimated that he returned the phone to

       Wagers approximately one week after collecting it from her.


[16]   Jamie testified that Wagers called her on the morning of December 9, 2015,

       stating that she needed help. Jamie said that, when she arrived, Wagers was

       upset, crying and in pain, and “hobbling” due to “a big gash” in her leg. Id. at

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 11 of 24
       85. At Wagers’s request, Jamie helped to gather Wagers’s belongings and the

       Children’s belongings. They followed each other back to Wagers’s house and

       called police.


[17]   Detective Floyd testified that an investigator with the Brown County Sheriff’s

       Department contacted the Fishers Police Department to assist with a forensic

       examination of Wagers’s cell phone; Detective Floyd noted that it was not

       uncommon for other departments to request forensic examination of items. He

       conducted a forensic examination of the phone, which was a Motorola prepaid

       phone. He explained the ideal process was to “make a bit for bit copy” of the

       device in question, which means to “take every bit of memory that it has and

       copy it so we can examine it forensically[,]” but depending on the manufacturer

       and the model, sometimes a bit for bit copy is not possible, in which case he

       would attempt to get “a logical copy,” which is what you can see on the device.

       Id. at 94. Detective Floyd explained that some “track phones” are designed not

       to communicate with computers, although “this particular phone was able to

       communicate” with the computer. Id. at 95. However, Detective Floyd was

       not able to conduct a bit for bit examination of Wagers’s phone, and instead,

       his department “pull[ed] all the back up data and the shared back up data off

       the phone.” Id. at 96. He stated that he “did not find anything of evidentiary

       value” on the phone, indicating he did not find “any video that might

       demonstrate the allegation.” Id. at 97. He could not testify as to whether there

       was a video that had been deleted from Wagers’s cell phone. Detective Floyd

       testified that all the information obtained from the phone was preserved, and he


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 12 of 24
       still had it as of the date of trial. He also testified that he gave the phone and a

       CD or DVD of its contents to the Brown County investigator. The computer

       program that Detective Floyd used to extract and copy data was called

       Cellebrite, and he acknowledged the possibility that some other program

       potentially may have been able to access other information on the phone. Id. at

       102-03.


[18]   Right before the State rested its case-in-chief, counsel for Haines renewed his

       motion to dismiss “based on destruction of evidence,” stating “the phone

       should have been preserved as potential exculpatory evidence and it was not

       preserved.” Id. at 179. The State argued that the phone’s extracted data “is

       available and still stored and remains available.” Id. at 180. After it was

       confirmed that the digital copy of the phone’s contents still remained available,

       the trial court reaffirmed its denial of Haines’s motion to dismiss. Id. at 179-90,

       235-36.


[19]   The jury found Haines not guilty of the rape charge and guilty of the remaining

       counts. Haines waived a jury trial as to the habitual offender charge, and, after

       a hearing, the trial court adjudicated him to be a habitual offender. On April

       20, 2017, Haines filed a motion to correct error, relying on the recently-decided

       case of Johnson v. State, which held that “convictions from which the offender

       was released more than ten years before the current offense do not count for

       habitual purposes under [Ind. Code section 35-50-2-8(d)].” 75 N.E.3d 549, 552-

       53 (Ind. Ct. App. 2017), trans. granted. Haines argued that, in his case, two of

       the prior convictions relied upon by the State for his habitual offender

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 13 of 24
       enhancement did not count under Johnson for habitual purposes, and he asked

       the trial court to vacate the habitual offender finding. Appellant’s App. Vol. 2 at

       227-28. The State filed a response indicating that transfer would be sought and

       that the Johnson case had not yet been certified. The trial court took the matter

       under advisement.


[20]   On May 1, 2017, the trial court set the motion to correct error for hearing, and

       it imposed a nine-year sentence on the criminal confinement conviction,

       enhanced by six years for the habitual offender adjudication, two and one-half

       years on the domestic battery conviction, and one year on the firearm

       possession conviction, with the sentences to run concurrently for an aggregate

       sentence of fifteen years. Id. at 19, 245-48; Tr. Vol. VI at 151-52. The court

       subsequently vacated the conviction for Level 6 felony strangulation on double

       jeopardy grounds. Appellant’s App. Vol. 2 at 250; Tr. Vol. VI at 181. In August

       2017, the trial court denied Haines’s motion to correct error, noting that transfer

       had been granted in the Johnson case. Appellant’s App. Vol. 2 at 21; Appellant’s

       App. Vol. 3 at 10. Haines now appeals.


                                      Discussion and Decision

                                      I. Evidence Rule 404(b)
[21]   Haines asserts on appeal that the trial court erred when it admitted evidence of

       his prior bad acts, namely a prior domestic violence conviction and a pending

       charge of criminal recklessness, with Wagers being the victim in both. The trial

       court has sound discretion to admit or exclude evidence, and we will reverse


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 14 of 24
       only when an abuse of that discretion occurs. Iqbal v. State, 805 N.E.2d 401,

       406 (Ind. Ct. App. 2004). An abuse of discretion occurs when the trial court

       determines an issue in a manner that is “clearly against the logic and effect of

       the facts and circumstances.” Id.


[22]   Generally, evidence that is relevant – that is, evidence that has probative value

       as to an issue of fact in a case – is also admissible. Ind. Evidence Rules 401,

       402. Indiana Evidence Rule 403 provides that where the probative value of the

       evidence is substantially outweighed by a danger of unfair prejudice, confusion

       of the issues, misleading the jury, undue delay, or needless presentation of

       cumulative evidence, otherwise relevant evidence may be excluded. Indiana

       Evidence Rule 404(b) further limits the admissibility of otherwise relevant

       evidence and provides that while evidence of a person’s other crimes, wrongs,

       or acts may not be used to prove that a person acted in conformity with such

       other crimes, wrongs, or acts, such evidence may be admissible for other

       purposes, including proof of motive. In assessing the admissibility of Rule

       404(b) evidence, a trial court must undertake a two-step analysis: (1) determine

       whether the evidence is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act, and (2) balance the probative value of the

       evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221 (Ind.

       1997); Goldsberry v. State, 821 N.E.2d 447, 455 (Ind. Ct. App. 2005).


[23]   With regard to the first step of the inquiry, we have recognized that “where a

       relationship between parties is characterized by frequent conflict, evidence of

       the defendant’s prior assaults and confrontations with the victim may be

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 15 of 24
       admitted to show the relationship between the parties and motive for

       committing the crime.” Iqbal, 805 N.E.2d at 408. With regard to the second

       step, “‘The trial court has wide latitude, however, in weighing the probative

       value of the evidence against the possible prejudice of its admission.’”

       Goldsberry, 821 N.E.2d at 455 (quoting Evans v. State, 727 N.E.2d 1072, 1079

       (Ind. 2000)).


[24]   Here, the State offered evidence of an October 2009 incident, for which Haines

       was ultimately convicted, during which Haines accused Wagers of having slept

       with a neighbor, and he hit her in the face and strangled her, in the Children’s

       presence. The State also offered evidence of a June 2015 incident, for which

       Haines faced pending charges, when during an argument Haines pushed

       Wagers and then shot at her car as she drove away. He also shot her cell phone

       that she had left at his house. The State offered the evidence of the two prior

       bad acts to show Haines’s motive of control over the victim, and Haines

       objected that the evidence was unduly prejudicial under Indiana Evidence Rule

       403. The trial court admitted the evidence as proper motive evidence, showing

       the relationship between the parties and a motive – hostility – for the crimes.

       Prior to the State offering the evidence, the trial court admonished the jury:


               Ladies and gentlemen, you are about to hear some evidence of
               acts other than those that are charged in this case. This evidence
               is being received only on the issue of motive and you should
               consider it - should be considered by you only for that limited
               purpose.


       Tr. Vol. IV at 204.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 16 of 24
[25]   On appeal, Haines acknowledges that “[i]n . . . domestic violence trials, courts

       often allow evidence of prior domestic violence involving the same victim to

       show the motive of hostility and give context to the parties’ relationship,” but

       he contends that, “[g]iven the [S]tate’s other evidence regarding motive and the

       dissimilarities between the prior incidents and the current incident and the

       inflammatory nature of the evidence regarding the discharge of a firearm,” the

       State’s stated purpose of motive was “too attenuated to justify admission for

       that purpose.” Appellant’s Br. at 13-14. We disagree with his suggestion that the

       evidence was “too attenuated” to the present offenses to show motive. Both

       incidents present a similar factual scenario to the charged conduct in this case.

       The October 2009 incident stemmed from Haines’s suspicions and accusations

       that Wagers was involved with another man, which is what precipitated the

       argument in this case. In the 2009 argument, Haines hit Wagers in the face and

       strangled her in the presence of Children, and, in this case, he similarly hit her,

       strangled her, and then hit her in the leg with a metal post, in the Children’s

       presence. In the 2015 incident, Haines had pushed Wagers to the ground, and

       he had fired a shotgun at her car when she attempted to leave; the present case

       similarly included a battery and a shotgun, with Wagers testifying that Haines

       made her retrieve his shotgun and place it in the corner of the room and that

       she was afraid to try to leave the residence until after he had gone to work the

       next day. We find that the prior bad acts that were admitted were relevant to

       show the volatile and hostile relationship between Haines and Wagers and

       Haines’s motive for committing the crimes.



       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 17 of 24
[26]   Haines also argues that, even if the evidence was relevant to motive, “its

       prejudicial effect far outweighed its probative value.” Appellant’s Br. at 13-14.

       We disagree. The trial court did not permit all the evidence that the State had

       desired to introduce as outlined in its Notice filed before trial; that is, the trial

       court granted Haines’s motion in limine to exclude other uncharged acts of

       domestic violence as well as past protective orders that Wagers had obtained

       against Haines. Appellant’s App. Vol. 2 at 109-11. The prior bad acts that were

       permitted into evidence were limited in scope, were similar to the instant

       offenses, and involved the same victim, and the trial court gave a limiting

       instruction to the jury, directing it that the evidence should not be considered

       for anything other than Haines’s motive for engaging in the charged acts.

       “When a limiting instruction is given that certain evidence may be considered

       only for a particular purpose, the law will presume that the jury will follow the

       trial court’s admonitions.” Ware v. State, 816 N.E.2d 1167, 1176 (Ind. Ct. App.

       2004); see also Embry v. State, 923 N.E.2d 1, 10 (Ind. Ct. App. 2010) (finding that

       a court’s limiting instruction reduced any prejudice from the admission of Rule

       404(b) motive evidence of prior acts of violence between the parties), trans.

       denied. Based on the record before us, we find that the trial court did not abuse

       its discretion when it admitted the Rule 404(b) evidence.


[27]   Furthermore, even if it was error to admit the evidence, as Haines claims, it was

       harmless. That is, “Even when a trial court abuses its discretion in admitting

       evidence under Rule 404(b), ‘we will only reverse for that error if ‘the error is

       inconsistent with substantial justice’ or if ‘a substantial right of the party is


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 18 of 24
       affected.’” Stettler v. State, 70 N.E.3d 874, 881 (Ind. Ct. App. 2017) (quoting

       Iqbal, 805 N.E.2d at 406 and Timberlake v. State, 690 N.E.2d 243, 255 (Ind.

       1997)), trans. denied. Here, the jury acquitted Haines of the rape charge, and the

       evidence of Haines’s guilt on the other charges was substantial, given Wagers’s

       own consistent testimony, which was corroborated by the Children’s testimony

       about hearing the argument in the bathroom, summoning Grandmother

       because they were scared, observing Haines throw a bike at Wagers, and seeing

       him place her in a choke hold. Wagers’s testimony was also corroborated by

       her physical injuries. Haines has not shown that he was denied a fair trial by

       the trial court’s decision to admit the challenged evidence. Accordingly, we

       find no error, let alone reversible error, in the admission of the evidence.


                                        II. Motion to Dismiss
[28]   Haines claims that because the Brown County Sheriff’s Department returned

       Wagers’s cell phone to her after it had been forensically examined, and he was

       thus precluded from having another expert examine the phone, the State failed

       to preserve materially exculpatory evidence, and Haines’s due process rights

       were violated such that the trial court should have granted his motion to

       dismiss. We review a trial court’s ruling on a motion to dismiss for abuse of

       discretion. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010).


[29]   “When determining whether a defendant’s due process rights have been

       violated by the State’s failure to preserve evidence, we must first decide whether

       the evidence is potentially useful evidence or material[ly] exculpatory


       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 19 of 24
       evidence.” Id. Materially exculpatory evidence is evidence that “possesses an

       exculpatory value that was apparent before the evidence was destroyed” and

       must “be of such a nature that the defendant would be unable to obtain

       comparable evidence by other reasonably available means.” Id. (quoting Noojin

       v. State, 730 N.E.2d 672, 675-76 (Ind. 2000) and California v. Trombetta, 467 U.S.

       479, 489 (1984)). Exculpatory evidence is defined as “[e]vidence tending to

       establish a criminal defendant’s innocence.” Id. (quoting Black’s Law

       Dictionary 597 (8th ed. 2004)). The State’s duty to preserve exculpatory

       evidence is limited to evidence that might be expected to play a significant role

       in a defendant’s defense. Id. Failure to preserve material exculpatory evidence

       violates due process regardless of whether the State acted in good or bad faith.

       Id.


[30]   In contrast, potentially useful evidence is “‘evidentiary material of which no

       more can be said than that it could have been subjected to tests, the results of

       which might have exonerated the defendant.’” Blanchard v. State, 802 N.E.2d

       14, 26 (Ind. Ct. App. 2004) (quoting Arizona v. Youngblood, 488 U.S. 51, 57

       (1988)). The government’s failure to preserve potentially useful evidence does

       not constitute a denial of due process of law “unless a criminal defendant can

       show bad faith on the part of the police.” Durrett, 923 N.E.2d at 453. “Bad

       faith is defined as being ‘not simply bad judgment or negligence, but rather

       implies the conscious doing of wrong because of dishonest purpose or moral

       obliquity.’” Blanchard, 802 N.E.2d at 27-28 (citing Samek v. State, 688 N.E.2d

       1286, 1289 (Ind. Ct. App. 1997), trans. denied).

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018   Page 20 of 24
[31]   Here, the trial court determined that the phone was not materially exculpatory

       evidence and was, instead, potentially useful evidence and that the State did not

       act in bad faith. We agree with this determination. Wagers told deputies that

       Haines had told her that he was recording her, so they collected her phone as

       potential evidence. The cell phone was then forensically analyzed, and no

       relevant videos or pictures were found on it; nonetheless, the entirety of the

       phone’s contents was digitally saved and was available to both parties and their

       experts.6 Because the phone “could have been subjected to tests, the results of

       which might have exonerated the defendant” it was potentially useful evidence.

       Durrett, 923 N.E.2d at 453. For any due process violation to have occurred,

       however, Haines was required to show that the State acted in bad faith. Id. In

       this case, where (1) nothing of evidentiary value was found on the phone, (2) its

       entire contents were saved, and (3) Wagers needed the phone, the Brown

       County Sheriff’s Department returned it to her. There is no indication that the

       State attempted to hide or destroy evidence or engaged in conscious

       wrongdoing. To the extent that Haines suggests that, under the facts of this

       case, we should “presume” that the State acted in bad faith, that is not the law,




       6
        We note that, according to the record before us, the State provided a digital copy of the phone to Haines
       during the trial. Appellant’s App. Vol. 2 at 62-63; Tr. Vol. V at 183-90, 234. Haines did not thereafter seek to
       admit into evidence anything found on the phone.



       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018                Page 21 of 24
       and we reject that argument. Appellant’s Br. at 20. The trial court did not abuse

       its discretion when it denied Haines’s motion to dismiss.7


                                         III. Habitual Offender
[32]   In May 2017, the trial court imposed a nine-year sentence on the confinement

       conviction, enhanced by six years for the habitual offender adjudication, two

       and one-half years on the domestic battery conviction, and one year on the

       firearm possession conviction, to run concurrent with each other for an

       aggregate sentence of fifteen years. Appellant’s App. Vol. 2 at 19, 245-48; Tr. Vol.

       VI at 151-52. On appeal, Haines asserts, and the State concedes, that his

       habitual offender adjudication must be vacated. We agree. When Haines

       committed the present offenses, Indiana’s habitual offender statute, Indiana

       Code subsection 35-50-2-8(d), stated:


               A person convicted of a felony offense is a habitual offender if
               the state proves beyond a reasonable doubt that:


               (1) the person has been convicted of three (3) prior unrelated
               felonies; and


               (2) if the person is alleged to have committed a prior unrelated:


               (A) Level 5 felony;




       7
        We note that, at the hearing on the motion to dismiss, counsel for Haines argued, among other things, that
       “[W]e are completely unable to present a defense to count I of rape without that cell phone.” Tr. Vol. II at
       91. The jury found Haines not guilty of the rape charge.

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018          Page 22 of 24
                (B) Level 6 felony;


                (C) Class C felony; or


                (D) Class D felony;


                not more than ten (10) years have elapsed between the time the
                person was released from imprisonment, probation, or parole
                (whichever is latest) and the time the person committed the
                current offense.


[33]   As the State acknowledges, all of Haines’s prior felonies relied upon for his

       habitual offender finding were Class D felonies, and in December 2017 our

       Supreme Court in Johnson v. State interpreted Indiana Code section 35-50-2-8(d)

       and held that each prior lower-level felony used for habitual offender purposes

       must meet the statute’s ten-year requirement.8 87 N.E.3d 471, 473 (Ind. 2017).

       Here, while the State proved that Haines has three prior unrelated felonies, not

       all three met the ten-year requirement. We thus reverse the habitual offender

       enhancement and remand to the trial court for resentencing proceedings

       consistent with this decision.9




       8
         As our Supreme Court observed in Johnson v. State, “The legislature has since amended subsection 8(d),
       which now provides ‘not more than ten (10) years have elapsed between the time the person was released
       from imprisonment, probation, or parole (whichever is latest) for at least one (1) of the three (3) prior
       unrelated felonies and the time the person committed the current offense.’ I.C. § 35-50-2-8(d) (2017).” 87
       N.E.3d 471, 473 n.1 (Ind. 2017).
       9
         As the State observes, our Supreme Court in Coble v. State, 523 N.E.2d 228, 229 (Ind. 1988) held that when
       a habitual offender enhancement is vacated on appeal, the trial court has the authority on remand to
       resentence the defendant on the underlying felony to which the habitual enhancement had been attached.
       Appellant’s Br. at 27. We note that this court recently acknowledged the Coble decision and stated, “[G]iven

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018           Page 23 of 24
[34]   Affirmed in part, reversed in part, and remanded.


       Bailey, J., and Pyle, J., concur.




       the relationship between a habitual offender enhancement and the offense to which that enhancement is
       attached, the trial court does have the authority on remand to resentence the defendant on the attached
       offense.” Jackson v. State, 88 N.E.3d 1106, 1110 (Ind. Ct. App. 2017) (holding that the underlying sentence in
       Jackson’s case was not subject to change on remand because, unlike habitual enhancements that “attach” to
       a particular conviction, the vacated criminal gang enhancement did not attach to a conviction to enhance the
       sentence), trans. pending. Thus, here, the trial court may resentence Haines on the criminal confinement
       conviction, if it wishes to do so. Our Supreme Court has also held that, on remand, the State in some cases
       may retry a defendant on the habitual enhancement. See Calvin v. State, 87 N.E.3d 474, 479 (Ind. 2017)
       (reversing habitual offender enhancement as unsupported by sufficient evidence and remanding for retrial on
       that enhancement); Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012) (reversing habitual offender enhancement
       and remanding for resentencing, stating, “[R]etrial on a sentencing enhancement based on a prior conviction
       is permitted even where the enhancement is reversed because of insufficient evidence.”).

       Court of Appeals of Indiana | Memorandum Decision 07A01-1708-CR-1994 | March 14, 2018            Page 24 of 24
