                                                                                             FILED
                                                                                         Aug 14 2020, 8:51 am

                                                                                             CLERK
                                                                                         Indiana Supreme Court
                                                                                            Court of Appeals
                                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Kevin Wild                                                 Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Lancaster,                                         August 14, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2970
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Mark D. Stoner,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49G06-1802-MR-6370



Baker, Senior Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020                      Page 1 of 12
[1]   Kenneth Lancaster appeals following his convictions for three counts of

      Murder.1 He argues that the trial court erred by admitting certain evidence and

      that the evidence is insufficient to support his convictions. He also argues that

      the trial court erred by using an improper aggravator and declining to find a

      proffered mitigator. Finding no reversible error and sufficient evidence, we

      affirm.


                                                      Facts
[2]   In 2017, Lancaster was a known heroin dealer who sold heroin to his buyers

      from a rotating series of locations. He was known to carry a nine-millimeter

      semi-automatic gun with an extended clip. If buyers were low on money, they

      could purchase heroin from Lancaster by providing him with the title to an

      automobile, providing work on an automobile, or doing other odd jobs.


[3]   One of Lancaster’s buyers was Jessica Carte, who lived with her boyfriend,

      Keith Higgins, and Keith’s parents, Mark and Teresa Higgins. Jessica often

      drove Keith’s red Monte Carlo, sometimes using it to drive to heroin buys.

      Sometimes Jessica used her own cell phone and sometimes she used Keith’s cell

      phone to contact Lancaster about purchasing heroin. In the weeks leading up

      to June 1, 2017, Jessica’s phone contacted Lancaster’s sixteen times and Keith’s

      phone contacted Lancaster’s forty times.




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


      Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020      Page 2 of 12
[4]   In May 2017, Tony Leonard overheard Lancaster’s brother say to Lancaster,

      “[w]e need to smoke Jessica,” meaning to kill her. Tr. Vol. IV p. 181.

      Lancaster replied, “If we do her, we’ll have to do them all.” Id. at 182.


[5]   At some point, Lancaster had given Jessica money so that she could make

      regular car payments on one of his vehicles. On the night of May 31, 2017, the

      car was repossessed because Jessica had not made timely payments. Lancaster

      became angry and said he was going to “get a hold of this b*tch and find out

      what the f*ck is going on with this car. It’s my money.” Tr. Vol. III p. 35.

      Jessica arrived at Lancaster’s home about fifteen minutes later, driving the

      Monte Carlo. Andrew Kelley, one of Lancaster’s other heroin buyers, was

      outside the house for about half an hour. Kelley heard one of the occupants of

      the house beating Jessica. He entered the house and saw Jessica tied up with

      electrical cords. Later, Lancaster, Jessica, and two other people drove away in

      the Monte Carlo.


[6]   Kelley stayed at Lancaster’s home and slept in a vehicle outside. Sometime

      between 6:30 and 7:00 a.m. on June 1, 2017, one of the people with Lancaster

      called Kelley and told him to get some lighter fluid and bring it to them. He

      followed their directions and found the group, absent Jessica and without the

      Monte Carlo, sometime after 7:00 a.m. Kelley noticed that the group was

      unusually quiet. At some point, Lancaster’s brother told Kelley to “burn the

      car good.” Tr. Vol. II p. 48. Kelley never burned a car.




      Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020         Page 3 of 12
[7]   Earlier on the morning of June 1, the Higgins household began its morning

      routine as usual. Teresa woke up at 4:00 a.m. and left for work at 5:15 a.m.

      Mark woke up and moved his truck so that Teresa could leave. He drank his

      coffee and got ready to leave for work; he always left for work at 7:30 a.m.

      Later that morning, James Blankenship—Mark and Teresa’s son-in-law—went

      to check on Mark because he had not gone to work or called in an absence,

      which was very atypical.


[8]   When James arrived at the house, Mark’s truck was still in the driveway.

      James found the front door slightly ajar and he entered the house. In the dining

      room, he found Mark, who was face-down with a bullet hole in the back of his

      head. James found no signs of life and immediately called 911. The police

      arrived within two minutes and searched the rest of the home, finding the

      bodies of Jessica and Keith as well. All three died as a result of multiple

      gunshot wounds.2


[9]   Officers recovered numerous bullets, fragments, and fired cartridge cases. A

      firearms specialist confirmed that of the three to four weapons used, one was a

      semi-automatic nine-millimeter gun. At some point, police found the Monte

      Carlo, which had been abandoned.




      2
          Jessica had seven gunshot wounds; Keith had twelve; and Mark had two.


      Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020         Page 4 of 12
[10]   Police eventually began to focus on Lancaster. Over the course of their

       investigation, they learned of the following statements made by Lancaster in the

       days following the murders:


           • Tammy Botkins overheard Lancaster and his brother talking about the
             murders after seeing a news report. Lancaster said, “we are fine, there’s
             nothing, there was nothing mentioned about it on the news.” Tr. Vol V
             p. 29. Botkins also heard Lancaster say, “[s]he should have planned her
             funeral arrangements when she took my money.” Id. at 30.
           • Lancaster told Kelley, “I beat three M’s.” Tr. Vol. III p. 51, 58. The
             morning after the murders, Lancaster said, “[t]hat old man didn’t have
             money anyways.” Id. at 49.
           • After Wayne Curtis was hospitalized in an unrelated assault, he asked
             Lancaster what might happen to his attackers. Lancaster responded,
             “[w]e already killed three . . . motherf*ckers already.” Tr. Vol. IV p. 131.
             Lancaster later spoke again with Curtis, telling him he still remembered
             the look in Jessica’s eyes before she died and stating that he had killed
             Jessica and Keith.
           • Lancaster told Ronnie Clontz that Jessica “got what she deserved and
             that he won’t be stolen from,” telling Clontz that he shot his victims
             “execution style.” Id. at 224-25. Lancaster said that Mark and Keith
             were there and “they got what they needed too.” Id. at 225.

       Surveillance video of the abandoned Monte Carlo revealed to the police that

       they were looking for four suspects. Between all the witnesses interviewed,

       police were able to identify Lancaster as well as his three accomplices.


[11]   Law enforcement sought and obtained a search warrant for Lancaster’s DNA.

       When officers attempted to execute the warrant, the detective did not inform

       Lancaster that he was investigating the murders or that he was a homicide

       detective. But upon learning that the detective had a warrant and intended to


       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020        Page 5 of 12
       take a DNA sample, Lancaster said, “I didn’t hurt those people.” Tr. Vol. V p.

       38.


[12]   On February 23, 2018, the State charged Lancaster with three counts of

       murder. The jury trial began on October 2, 2019. At the trial, the State sought

       to present the testimony of Leonard, who had overheard Lancaster and

       Lancaster’s brother talk about killing Jessica before the murders occurred.

       Lancaster objected and the trial court overruled his objection, permitting

       Leonard to testify.


[13]   At the close of the trial, the jury found Lancaster guilty as charged. On

       November 15, 2019, the trial court sentenced Lancaster to consecutive terms of

       60, 55, and 55 years, for an aggregate sentence of 170 years. Lancaster now

       appeals.


                                     Discussion and Decision
                                    I. Admission of Evidence
[14]   Lancaster first argues that the trial court erred by permitting Leonard to testify

       about the conversation he overheard between Lancaster and Lancaster’s

       brother. The trial court has broad discretion to admit or exclude evidence, and

       we will reverse only if the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court or if the court

       misinterpreted the law. E.g., Minor v. State, 36 N.E.3d 1065, 1070 (Ind. Ct.

       App. 2015).



       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020         Page 6 of 12
[15]   The testimony in question was Leonard’s recounting of the conversation he

       overheard between Lancaster and Lancaster’s brother. Lancaster’s brother said

       to Lancaster, “[w]e need to smoke Jessica,” meaning to kill her. Tr. Vol. IV

       p. 181. Lancaster replied, “If we do her, we’ll have to do them all.” Id. at 182.


[16]   The trial court admitted the first statement, made by Lancaster’s brother,

       because it found that it constituted an adoptive admission. An adoptive

       admission, which is not hearsay, is a statement offered against an opposing

       party that “the party manifested that it adopted or believed to be true[.]” Evid.

       R. 801(d)(2)(B). This Court has noted that “Indiana law on adoptive

       admissions since the adoption of the Indiana Rules of Evidence is scarce, but

       Indiana’s rule is identical to Federal Rule of Evidence 801(d)(2)(B), and we

       may use federal cases for guidance.” Irmscher Suppliers, Inc. v. Schuler, 909

       N.E.2d 1040, 1046-47 (Ind. Ct. App. 2009). The federal rule governing

       adoptive admissions “does not require the party to specifically adopt another

       person’s statements, but a ‘manifestation of a party’s intent to adopt another’s

       statements, or evidence of the party’s belief in the truth of the statements, is all

       that is required for a finding of adoptive admission.’” Id. at 1047 (quoting

       United States v. Rollins, 862 F.2d 1282, 1296 (7th Cir. 1988)).


[17]   Here, after Lancaster’s brother stated that they needed to “smoke Jessica,”

       Lancaster did not deny, disagree with, or refute the statement, and even went a

       step further, saying that they would “have to do them all.” Tr. Vol. IV p. 181-

       82. Under these circumstances, we find that the trial court did not err by



       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020         Page 7 of 12
       finding that the statement of Lancaster’s brother was admissible as an adoptive

       admission.


[18]   The second statement, made by Lancaster, is plainly admissible. It is not

       hearsay because it was a statement made by a party opponent (Lancaster) and

       was offered by the State against that party. Ind. Evid. Rule 801(d)(2)(A).

       Therefore, the trial court did not err by admitting this portion of Leonard’s

       testimony. Bell v. State, 29 N.E.3d 137, 143 (Ind. Ct. App. 2015) (holding that it

       was not error to admit into evidence defendant’s out-of-court statement).3


                                               II. Sufficiency
[19]   Next, Lancaster argues that the evidence is insufficient to support his three

       murder convictions. In reviewing a challenge to the sufficiency of evidence

       supporting a conviction, we neither reweigh the evidence nor assess witness

       credibility and will consider only the probative evidence and reasonable

       inferences supporting the verdict. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). We will affirm if the probative evidence and reasonable inferences could

       have allowed a reasonable factfinder to find the defendant guilty beyond a

       reasonable doubt. Id.


[20]   To convict Lancaster of murder, the State was required to prove beyond a

       reasonable doubt that he knowingly or intentionally killed Jessica, Keith, and




       3
        While we find no error with respect to the admission of this evidence, we also note that even if error had
       occurred, it would have been harmless given the wealth of independent evidence supporting Lancaster’s guilt.

       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020                             Page 8 of 12
       Mark. I.C. § 35-42-1-1. Lancaster argues that the evidence does not prove

       beyond a reasonable doubt that he was involved. He emphasizes that no one

       saw him commit the crimes, no one saw him at the scene where they occurred,

       and no one saw him going to or coming from the scene. There was also no

       specific physical evidence placing Lancaster at the scene or connecting him to

       the crimes.


[21]   While Lancaster may be correct as to what was not contained in the State’s

       evidence, he ignores the evidence that was offered to support his guilt. Among

       other things, the record contains the following evidence:


           • Lancaster knew Jessica and knew where she lived. He had a motive to
             kill her—namely, his belief that she had stolen money from him by
             failing to make payments on a car. In the weeks leading up to the
             murders, there were over fifty contacts between Lancaster’s cell phone
             and the cell phones of Jessica and Keith (which Jessica used at times to
             communicate with Lancaster).
           • The night before the murders, Lancaster contacted Jessica about the
             money she had misspent, and she came to his house and was tied up
             with electrical cords and beaten. The last time she was seen alive was
             when she, Lancaster, and other individuals drove away from Lancaster’s
             house together.
           • In the days and weeks following the murders, Lancaster admitted to
             multiple people at different times that he had killed the victims.
           • When a detective executed a warrant for Lancaster’s DNA but did not
             explain that he was a homicide detective or that he was investigating
             murders, Lancaster immediately said, “I didn’t hurt those people.” Tr.
             Vol. V p. 38.
           • Firearms analysis established that at least one of the weapons used in the
             murders was a nine-millimeter semi-automatic gun. Lancaster was
             known to carry a nine-millimeter semi-automatic gun.


       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020    Page 9 of 12
       We find that this evidence, albeit circumstantial, plus the reasonable inferences

       that can be drawn from the evidence, could lead a reasonable factfinder to find

       that Lancaster was guilty of the three murders. Lancaster’s arguments amount

       to requests that we reweigh evidence and re-assess witness credibility, which we

       may not and will not do. The evidence is sufficient to support the convictions.


                                                 III. Sentencing
[22]   Finally, Lancaster argues that the trial court erred in the sentencing process by

       considering an improper aggravator and declining to consider a proffered

       mitigator.4 See Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218.


[23]   One of the aggravators considered by the trial court was Mark’s age:


                  Court:            Mr. Mark Higgins was I believe—correct me if I’m
                                    wrong, State, but I believe the evidence from the
                                    witness was that he was over, over the age of 65 at
                                    the time? 65 or older?


                  State:            Yes, Your Honor.


                  Court:        So, that’s a statutory aggravator. And Mr. Higgins
                  was killed just simply for being a witness. . . . [H]e was simply
                  wrong place, wrong time, innocent bystander . . . .




       4
           Lancaster does not argue that the sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).


       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020                               Page 10 of 12
       Tr. Vol. V p. 154. In fact, however, Mark was six months shy of turning sixty-

       five when he was murdered. Strictly speaking, therefore, Lancaster is correct

       that Mark’s age did not qualify as a statutory aggravator, which requires the

       victim to have been sixty-five years or older at the time of the offense. Ind.

       Code § 35-38-1-7.1(a)(3). Nonetheless, the trial court could properly have

       considered Mark’s age (as well as his status as an innocent bystander) as part of

       the heinous nature and circumstances of the crime, and we are confident that if

       it had done so, it would have imposed the same sentence. Therefore, we find

       that any error was harmless.


[24]   To show that a trial court erred by failing to consider a proffered mitigating

       circumstance, the defendant must show that the mitigator was both significant

       and clearly supported by the record. Anglemyer, 868 N.E.2d at 493. Lancaster

       contends that he was merely an accessory and not the principal actor in the

       murders and that this circumstance should have been found mitigating. The

       record, however, belies Lancaster’s assertion. He boasted that he killed his

       victims execution style; he said that Jessica’s family was present and “they got

       what they needed too,” Tr. Vol. IV p. 225; it was Lancaster’s money that was

       allegedly stolen by Jessica; and Lancaster told at least one person that he had

       killed all three victims. Therefore, the record does not clearly support a

       conclusion that Lancaster was merely an accomplice or accessory and the trial

       court did not err by declining to find this as a mitigator.


[25]   The judgment of the trial court is affirmed.



       Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020      Page 11 of 12
Bailey, J., and Vaidik, J., concur.




Court of Appeals of Indiana | Opinion 19A-CR-2970 | August 14, 2020   Page 12 of 12
