                                                                            FILED
                                                                       Jan 17 2019, 9:21 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Ana M. Quirk                                                Curtis T. Hill, Jr.
Muncie, Indiana                                             Attorney General of Indiana
                                                            Kelly A. Loy
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Danny L. Saintignon,                                       January 17, 2019
Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           18A-CR-279
        v.
                                                           Appeal from the Delaware
State of Indiana,                                          Circuit Court
Appellee-Plaintiff.                                        The Honorable Linda R.
                                                           Wolf, Judge
                                                           Trial Court Cause No.
                                                           18C03-1503-MR-1



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019                             Page 1 of 27
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Danny Saintignon (Saintignon), appeals his conviction

      for conspiracy to commit burglary resulting in bodily injury, a Class A felony,

      Ind. Code §§ 35-43-2-1; 35-41-5-2; murder, I.C. § 35-42-1-1(1); and robbery

      resulting in bodily injury, a Class B felony, I.C. § 35-42-5-1(1).


[2]   We affirm.


                                                     ISSUES
[3]   Saintignon presents five issues on appeal, which we consolidate and restate as

      the following three issues:


              (1) Whether the trial court abused its discretion or deprived Saintignon of

                   a defense when it excluded certain witnesses;

              (2) Whether the trial court abused its discretion when it admitted certain

                   photographic evidence; and

              (3) Whether the State produced sufficient evidence to prove beyond a

                   reasonable doubt that Saintignon committed conspiracy to commit

                   burglary resulting in bodily injury, murder, and robbery resulting in

                   bodily injury.




      Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019        Page 2 of 27
                         FACTS AND PROCEDURAL HISTORY
[4]   On December 23, 2009, Saintignon telephoned his friend Tyler Barton (Barton)

      to enlist his help in robbing Monica Brown 1 (Brown), who lived in Muncie,

      Indiana, and sold prescription pain medication. Brown had recently been to

      Florida where she had purchased a large amount of medication. Saintignon

      had a sexual relationship with Brown, who at times supplied him with

      medication without charge. Brown usually kept her medication supply in her

      purse. Saintignon proposed to Barton that Saintignon would go to Brown’s

      home, place her purse with the medication in it by the front door, and distract

      her with sex so that Barton could open the front door and grab the purse.

      Between 6:00 p.m. and 7:00 p.m. that day, Saintignon and Barton drove to

      Brown’s house so that Barton would know where it was. They planned that

      Saintignon would contact Barton later, Barton would park around the corner

      from Brown’s house, and Barton would wait for Saintignon to text him that it

      was time to grab the purse.


[5]   The two split up. On December 24, 2009, Saintignon contacted Barton around

      1:00 a.m. They drove separately to Brown’s home, with Barton following

      Saintignon’s car. Barton observed Saintignon’s car stop at Brown’s house.

      Barton drove on and parked around the corner in the pre-arranged spot. Barton

      waited for several hours for Saintignon to call or text him that it was time to




      1
          Monica Brown is also referred to as “Nikki” in the record.


      Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 3 of 27
      grab Brown’s purse, but Saintignon never contacted him. Barton eventually

      left. As he drove away, he could see Saintignon’s car still parked at Brown’s

      house.


[6]   Around 4:40 a.m., Barton received a frantic call from Saintignon that Barton

      had to meet him at Barton’s father’s house. When Barton arrived at his father’s

      house, he noted that the back door had been kicked in. Saintignon was inside

      wearing nothing but his underwear. Barton thought that he saw a red speck on

      one of Saintignon’s shoes. Saintignon told Barton that “I killed that bitch” by

      cutting her throat and stabbing her. (Transcript Vol. V, p. 162). Saintignon

      also told Barton that it had happened in a bedroom and that he had “cleaned it

      up like a professional.” (Tr. Vol. V, p. 163). Saintignon had a dark-colored

      purse with him that had an emblem in the form of an initial on it. The purse

      contained prescription pain medication, some of which Saintignon shared with

      Barton. Barton could see that the purse also contained debit and food stamp

      cards. That morning, Saintignon called the automated account for Brown’s

      Green Dot prepaid debit card and checked her balance.


[7]   Saintignon put his clothes, his shoes, and the purse in a trash bag. Barton and

      Saintignon drove out into the country to find a place to burn the contents of the

      trash bag. Saintignon instructed Barton not to talk about what had happened

      and told him that if he were ever contacted by law enforcement, that he should

      say that Saintignon had been with him all that night playing video games

      because he was fighting with his wife. Barton’s car blew a tire, and Saintignon

      contacted a friend to come and retrieve them. While they were waiting,

      Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019     Page 4 of 27
      Brown’s cell phone kept ringing, so Saintignon removed it from the trash bag

      and threw it from the car. Saintignon told Barton to burn the trash bag. Barton

      later went back to his disabled car, took the trash bag to his grandmother’s, and

      hid it. Barton eventually threw the trash bag away.


[8]   Around 11:00 a.m. on December 24, 2009, Brown’s daughters, K.B. and S.B.,

      ages seventeen and ten, respectively, went to Brown’s home, where they found

      the front door unlocked, which was unusual. Upon entering, they found their

      younger brother running around the home and their younger sister in her play

      pen, unattended. They found Brown in a bedroom covered with a sheet. Her

      throat had been slit with a cut that reached to her fifth vertebrae. She had been

      stabbed and cut approximately eighty times, with ten of those stabs puncturing

      her lungs and liver.


[9]   K.B., Brown’s ex-husband, and others initially identified Cecil Ferguson 2

      (Ferguson) as a suspect in Brown’s killing. Ferguson was interviewed in the

      days following Brown’s death but was eventually ruled out as a suspect due to

      the fact that none of his DNA was found at the crime scene, his phone records

      did not connect him to the killing, and witnesses vouched for his whereabouts.

      Starting the day after Brown’s death, Saintignon contacted Brown’s brother

      multiple times to ask him if he knew the whereabouts of the clip to Brown’s .38

      caliber handgun. Saintignon claimed to have purchased the gun from Brown.




      2
          Cecil Ferguson is also referred to as “Eric” in the record.


      Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019     Page 5 of 27
       During these conversations, Saintignon told Brown’s brother that he was

       concerned that the authorities were monitoring his telephone calls. On

       December 26, 2009, Officer Melissa Pease (Officer Pease) of the Muncie Police

       Department (the MPD) interviewed Saintignon. She noted that he had bruising

       on his right bicep, scratches on his back, and a wound on his left palm. Officer

       Pease documented these injuries with photographs. Saintignon was questioned

       and released. The MPD conducted a number of interviews, executed searches

       of several homes, and collected DNA samples of Saintignon, Ferguson, and

       others, but no arrests were made. Several weeks after Brown’s murder, Barton’s

       father, Roy, confronted Saintignon about involving Barton in trouble.

       Saintignon told Roy that, “I killed the bitch.” (Tr. Vol. 6, p. 158). Saintignon

       asked Roy if he thought Barton could be depended upon to uphold his alibi.

       Several months after Brown’s murder, Saintignon told his wife, Sandrina, that

       he had slit Brown’s throat because she had incriminating information about

       him.


[10]   The case went cold until 2011, when Roy anonymously contacted the MPD to

       report that Saintignon had killed Brown. The tip led investigators to others

       who had information, including Sandrina. On March 18, 2014, Barton gave a

       statement to the MPD and was arrested on charges of conspiracy to commit

       burglary resulting in bodily injury, attempted burglary resulting in serious

       bodily injury, and assisting a criminal. On March 30, 2015, based on the new

       information received from Barton and others, the State filed an Information,

       charging Saintignon with conspiracy to commit burglary resulting in bodily


       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 6 of 27
       injury as a Class A felony; murder; felony murder; and robbery resulting in

       serious bodily injury as a Class A felony. The trial court set an omnibus date of

       May 21, 2015.


[11]   By October of 2016, Barton had been released from jail pending resolution of

       his charges. On October 21, 2016, Barton received a direct message on a social

       media account from Jonathan Polosky (Polosky), who was unknown to Barton.

       Polosky wrote, “Hey, bro, you don’t know me, this legal shit you’ve got going

       on needs to stop. You know what I’m talking about,” which Barton took as a

       suggestion that he refrain from testifying against Saintignon. (Tr. Vol. V, pp.

       186-87). Polosky also contacted Barton’s then girlfriend, Kaylee Corn (Corn),

       with a message that her “old man” needed to “back away.” (Tr. Vol. VI, p. 48).

       Barton and Corn reported the messages to the MPD, who used Barton’s

       account to contact Polosky and ask him what he was talking about. Polosky

       responded, “[t]hat shit with [Saintignon]” and “[i]f this is who it should be, stay

       away from the courts.” (Tr. Vol. VI, p. 62). On November 9, 2016, the MPD

       interviewed Polosky, who admitted that, while they were housed together at the

       Wabash Valley Correctional Facility, Saintignon had asked him to contact

       Barton and Corn to attempt to convince Barton not to testify against

       Saintignon.


[12]   On November 16, 2016, the State filed an additional Information, charging

       Saintignon with conspiracy to commit obstruction of justice, a Level 6 felony.

       On August 16, 2017, the trial court issued an order directing the parties to file

       their final witness lists by September 1, 2017. On September 1, 2017,

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 7 of 27
       Saintignon filed a motion in limine seeking to exclude evidence of any of his

       prior bad acts, including his membership in the Aryan Brotherhood. On

       September 5, 2017, the State filed its response indicating that it did not object to

       Saintignon’s motion since it did not intend to introduce any such evidence.

       The trial court granted Saintignon’s motion in limine. Saintignon’s jury trial

       was scheduled to begin Monday, September 25, 2017.


[13]   On Friday, September 22, 2017, Saintignon filed a notice to the trial court and

       an amended witness list indicating for the first time that the defense would call

       Jeff Burton (Burton) as an alibi witness. The State filed a motion to strike

       Saintignon’s notice to the trial court on the grounds that it constituted an

       improper and untimely notice of alibi. At 10:41 p.m. on September 22, 2017,

       Saintignon filed a belated notice of alibi defense. The State also moved the trial

       court to strike that belated notice.


[14]   Saintignon’s jury trial took place from September 25, 2017, to October 10, 2017.

       On September 25, 2017, before the commencement of trial, the trial court held a

       hearing on the belated notice of alibi filings. The trial court granted the State’s

       motion to strike the belated notice of alibi, excluding Saintignon’s alibi witness.

       During the testimony of Officer Pease, the State sought to introduce the

       photographs she had taken of Saintignon when she interviewed him on

       December 24, 2009, documenting the injuries she observed on his bicep, back,

       and hand. The photograph showing the bicep injury was a frontal view of

       Saintignon nude from the waist up. Three of Saintignon’s tattoos were fully

       visible, and three tattoos were partially visible in the photograph. The defense

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019        Page 8 of 27
       objected on the basis that the photograph violated the trial court’s Order in

       Limine excluding any evidence of Saintignon’s affiliation with the Aryan

       Brotherhood. The trial court overruled Saintignon’s objection and admitted the

       photograph into evidence.


[15]   On October 4, 2017, the eighth day of trial, Saintignon sought to call Ferguson

       as a witness, but Ferguson invoked his Fifth Amendment right. The trial court

       found that Ferguson was unavailable to testify and held a hearing on

       evidentiary issues related to Ferguson, including the admissibility of statements

       by proposed witnesses Bradley Stone 3 (Stone), Johnny Hines, Jr., (Hines), and

       Robert Wine (Wine), all of whom Saintignon proposed would testify that

       Ferguson had confessed to killing Brown. In addition, Saintignon proposed

       that Tonya Ferguson (Tonya), Ferguson’s ex-wife, would testify that Ferguson

       had once held knives to her throat and threatened to cut off her head. The trial

       court excluded Stone, Hines, and Wine as witnesses because their proposed

       statements were made at least three years after Brown’s murder, were not

       unique or reliable, and had no “persuasive assurances of trustworthiness.” (Tr.

       Vol. VIII, pp. 19-20). The trial court also excluded Tonya as a witness, finding

       that the acts she would relate took place months before Brown’s murder and

       there was no evidence that Brown had been involved. However, the trial court

       ruled that evidence that Ferguson had robbed and threatened to kill Brown in




       3
         Saintignon also refers to “Ralph Stone” in this portion of his argument, but there was no Ralph Stone
       proposed as a witness at trial. (Appellant’s Br. p. 33).

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019                             Page 9 of 27
       the days before her murder and evidence that Brown had reported Ferguson’s

       threats to police were admissible.


[16]   On October 10, 2017, the jury found Saintignon guilty as charged. On January

       10, 2018, the trial court conducted a sentencing hearing. Due to double

       jeopardy concerns, the trial court vacated Saintignon’s felony murder

       conviction and entered judgment of conviction on the Class A felony robbery

       conviction as a Class B felony. The trial court entered judgment of conviction

       on Saintignon’s conspiracy to commit burglary resulting in bodily injury,

       murder, and conspiracy to commit obstruction of justice convictions. The trial

       court then sentenced Saintignon to the Indiana Department of Correction for

       fifty years for the conspiracy to commit burglary resulting in bodily injury

       conviction, sixty-five years for the murder conviction, twenty years for the

       robbery resulting in bodily injury conviction, and two and one-half years for the

       conspiracy to commit obstruction of justice conviction. The trial court ordered

       Saintignon to serve all of his sentences consecutively, for an aggregate sentence

       of 137 and one-half years.


[17]   Saintignon now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                             I. Exclusion of Witnesses

[18]   Saintignon argues that the trial court erred when it excluded some of his

       proposed witnesses, including his late-disclosed alibi witness, all of which he

       contends deprived him of a defense in derogation of his constitutional rights. A

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019     Page 10 of 27
       trial court has inherent discretionary power regarding the admission of

       evidence, and we review its decisions only for an abuse of that discretion.

       Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007). To reverse a trial court’s

       decision to exclude evidence, there must be error by the court that affects the

       defendant’s substantial rights. Id. In addition, the defense must have made an

       offer of proof, or the evidence must have been clear from the context. Id.


[19]   Whether it is rooted directly in the Due Process Clause of the Fourteenth

       Amendment or the Compulsory Process or Confrontation clauses of the Sixth

       Amendment, the Constitution guarantees criminal defendants a meaningful

       opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690

       (1986). “The right to offer the testimony of witnesses, and to compel their

       attendance, if necessary, is in plain terms the right to present a defense . . . This

       right is a fundamental element of due process of law.” Kubsch v. State, 784

       N.E.2d 905, 924 (Ind. 2003) (quoting Washington v. Texas, 388 U.S. 14, 19

       (1967)). However, although this right is fundamental and of the utmost

       importance, it is not absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind.

       2001). “[T]he accused, as is required by the State, must comply with

       established rules of procedure and evidence designed to assure both fairness and

       reliability in the ascertainment of guilt and innocence.” Id. (quoting Chambers v.

       Mississippi, 410 U.S. 284, 302 (1973)).


                                   A. Evidence Ferguson Threatened his Ex-wife

[20]   After Ferguson was declared unavailable as a witness, Saintignon sought to

       have Tonya testify that she had procured a protective order against Ferguson

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019        Page 11 of 27
       because he had once held knives to her throat and threatened to decapitate her.

       The trial court excluded this testimony based on its lack of relevance because

       the events happened months before Brown’s killing and did not involve Brown.

       Saintignon claims this was an abuse of the trial court’s discretion. However,

       apart from this bald assertion of trial court error, Saintignon offers no further

       argument for the admissibility of Tonya’s testimony, and so he has failed to

       persuade us that the trial court erred, let alone committed reversible error, when

       it excluded Tonya’s testimony. Vasquez, 868 N.E.2d at 476.


[21]   In addition, Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

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

       character.” Tonya’s testimony was offered to show that it was Ferguson, not

       Saintignon, who killed Brown. We agree with the State that Tonya’s testimony

       is the very type of evidence that Indiana Evidence Rule 404(b) is meant to

       exclude. Saintignon had a right to present a defense, but that defense was still

       required to comport with the rules of evidence. Marley, 747 N.E.2d at 1132.

       Because this proffered testimony was irrelevant and inadmissible as character

       evidence, we conclude that the trial court did not abuse its discretion in

       excluding it, nor was Saintignon impermissibly deprived of a defense thereby.




       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 12 of 27
                                              B. Third-Party Confessions

[22]   Saintignon next argues that the trial court erred and he was deprived of a

       defense when the trial court excluded his proposed witnesses Stone and Hines 4,

       both of whom he contends would have testified that Ferguson had confessed to

       killing Brown. Our Supreme Court has held that the exclusion of third-party

       confessions may constitute a reversible due process violation if the hearsay

       statements are characterized by “persuasive assurances of trustworthiness.”

       Chambers, 410 U.S. at 300-02. The facts of Chambers are as follows:


                [A] murder occurred during a barroom brawl. Four months
                afterward, Gable McDonald swore in writing that he was the
                shooter, but he later repudiated his confession. Three of
                McDonald’s acquaintances were prepared to testify that he orally
                confessed to them on separate occasions.


                At trial, Chambers’ lawyer called McDonald and introduced the
                written confession into evidence. The State then elicited
                testimony about the repudiation, plus a fresh denial by
                McDonald. Chambers was denied permission to cross-examine
                McDonald as an adverse witness based on Mississippi’s
                “voucher” rule. He was also denied the opportunity to introduce
                testimony by the three other witnesses to whom McDonald
                confessed.




       4
         Saintignon lists “Robert Wine” as one of the witnesses who he contends the trial court erred in excluding,
       but he does not develop any further argument on this witness. Saintignon has waived any argument
       pertaining to Robert Wine for failing to provide a cogent argument supported by citations to the record and
       authority. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019                             Page 13 of 27
       Giffin v. State, 763 N.E.2d 450, 451 (Ind. 2002) (citations omitted). The

       Supreme Court held that, under the specific facts and circumstances of

       Chambers’ case, “the exclusion of this critical evidence, coupled with the

       State’s refusal to permit Chambers to cross-examine McDonald, denied him . . .

       due process. Chambers, 410 U.S. at 302-03. The Court emphasized the

       “persuasive assurances of trustworthiness” of the third-party-confession hearsay

       statements in that the three confessions were made spontaneously to close

       acquaintances shortly after the murder; other corroborating evidence existed;

       the statements were against interest; and McDonald was available at trial. Id. at

       300-02.


[23]   Putting aside the State’s contention that Saintignon failed to make an adequate

       offer of proof to preserve this issue, we find that Saintignon utterly failed to

       demonstrate on appeal that Stone’s and Hines’ testimony would have borne

       persuasive assurances of trustworthiness such as those at issue in Chambers.

       His argument on this issue consists almost entirely of a statement regarding

       what Stone and Hines would have said had they been allowed to testify. He

       also briefly contends, without citation to authority, that the trial court erred

       when it excluded Stone’s and Hines’ testimony because their statements were

       made at least three years after Brown was murdered, whereas it had admitted

       evidence of his guilt generated a substantial period of time after Brown’s

       murder. However, in light of Chambers, the trial court properly considered the

       remoteness of the proposed statements to the murder when deciding whether

       the statements were admissible.


       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 14 of 27
[24]   In addition, the trial court did allow Saintignon to present evidence that

       Ferguson had lived with Brown at times in the past until they had a falling out,

       Ferguson had threatened to slit Brown’s throat just days before she was

       murdered, he had left a message on Brown’s voicemail that he would kill her in

       front of her children, Brown had reported those threats to police the day before

       she was found dead, and that at least five people had initially identified him as a

       suspect in Brown’s murder. As such, Saintignon has failed to persuade us that

       the trial court erred when it excluded the testimony of Stone and Hines or that

       he was unconstitutionally deprived of a defense thereby.


                                               C. Belated Notice of Alibi

[25]   The trial court also excluded Saintignon’s late-disclosed alibi witness, Burton,

       which Saintignon argues was an error that deprived him of a defense. Notices

       of alibi defense are governed by Indiana Code section 35-36-4-1, which requires

       that such notices be filed no later than twenty days prior to the omnibus date for

       a felony charge and that the defendant serve a notice upon the prosecutor which

       “must include specific information concerning the exact place where the

       defendant claims to have been on the date stated in the indictment or

       information.” If the defendant does not comply with the statutory

       requirements, and the defendant does not show good cause for his failure to do

       so, the trial court “shall exclude evidence offered by the defendant to establish

       an alibi.” I.C. 35-36-4-3(b). What constitutes “good cause” for a late filing is

       left to the discretion of the trial court. Washington v. State, 840 N.E.2d 873, 880

       (Ind. Ct. App. 2006), trans. denied.


       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 15 of 27
[26]   Saintignon does not contend on appeal that his notice was timely, but, rather,

       contends that he showed good cause existed for his late filing. Saintignon

       argues there was no evidence that he purposefully suppressed his alibi evidence

       because he was not charged with Brown’s murder until 2015 and he had been

       ingesting pain pills at the time of Brown’s murder which prevented him from

       remembering. Saintignon also contends that the State was not unduly

       prejudiced because it could have interviewed his late-disclosed alibi witness, as

       he was located in the Delaware County Jail.


[27]   Saintignon’s belated notice of alibi provided that “The Defendant states that he

       was at the residence of Jeff Burton for a significant portion of the night of

       December 23, and early morning of December 24, 2009.” (Appellant’s App.

       Vol. III, p. 76). Saintignon provided a summary of Burton’s statement to the

       State, but a copy of that summary is not part of the record on appeal. However,

       at the hearing on the State’s motion to strike Saintignon’s belated notice of

       alibi, the prosecutor read from the summary of Burton’s statement as follows:


               [O]n September 21st, 2017, while meeting with the Defendant,
               counsel for Defendant, Jill Gonzalez, was made aware that Jeff
               Burton possibly had information concerning State of Indiana v.
               Danny Saintignon. Specifically, that the Defendant was at Mr.
               Burton’s house, late on December 23rd, 2009, until 2:00 to 4:00
               a.m. on December 24th, 2009.


       (Tr. Vol. II, p. 7) (emphasis added).


[28]   Saintignon’s counsel represented to the trial court that she had become aware of

       Burton as a possible alibi witness through jailhouse rumors first heard on
       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 16 of 27
       Thursday, September 21, 2017. Saintignon’s counsel did not identify the source

       of those rumors. Thus, it appears that Saintignon himself was the source of the

       information about Burton. The trial court excluded Burton as a witness

       because the notice of alibi was not timely, the case had been pending since

       March 20, 2015, and Saintignon’s whereabouts were a matter that was within

       his own personal knowledge that could have been discerned within that time.

       The trial court was not required to credit Saintignon’s self-serving explanation

       that drug use prevented him from remembering Burton as an alibi witness until

       days before his trial was to begin. Saintignon has not provided us with any

       legal authority holding that a trial court abused its discretion in excluding a

       third-party alibi witness under like circumstances, and we are aware of none.

       Because we cannot conclude that the trial court abused its discretion given the

       circumstances of this case, we affirm its exclusionary ruling.


[29]   To the extent that Saintignon argues that he was deprived of a defense, “we

       must balance [a defendant’s] right to present witnesses on his behalf against the

       State and the public’s interest in maintaining the integrity of the adversary

       process.” Washington, 840 N.E.2d at 883. When a defendant willfully or

       purposefully suppresses alibi evidence to gain a tactical advantage, the trial

       court may properly exclude the proffered alibi defense without violating the

       defendant’s constitutional right to present a defense. Id.


[30]   Here, Saintignon’s explanation for not knowing about Burton as an alibi

       witness until just days before his trial was to begin was that he was using drugs

       at the time of Brown’s murder which prevented him from remembering. This

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 17 of 27
       self-serving explanation, proffered through Saintignon’s counsel, does not enjoy

       any support in the record. In addition, Saintignon was interviewed by law

       enforcement on December 26, 2009, December 4, 2014, and March 30, 2015,

       and had presumably met with his defense counsel multiple times before trial,

       yet he never remembered on any of those occasions where he had been during

       the period in question. Indeed, given that the information regarding Burton

       came from Saintignon himself, this would seem to be the very sort of willful or

       purposeful suppression of alibi evidence which a trial court may properly

       exclude. Id.


[31]   In addition, the information provided in Saintignon’s notice of alibi was vague

       about the time he was allegedly at Burton’s home, and the portion of the

       summary of Burton’s statement read into the record only covered a period of

       time from 2:00 a.m. and 4:00 a.m. Given the fact that there was evidence in the

       record that Saintignon was still in the area of Brown’s home after 4:00 a.m., we

       are unable to discern whether Burton’s testimony would have been truly

       exculpatory. Finding no abuse of discretion on the part of the trial court and

       that Saintignon was not impermissibly deprived of a defense by the exclusion of

       Burton’s testimony, we uphold the trial court’s evidentiary ruling.




       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019    Page 18 of 27
                                        II. Photograph Depicting Tattoos

[32]   Next, Saintignon contends that the trial court erred when it admitted a

       photograph 5 into evidence that showed what he contends were his Aryan

       Brotherhood tattoos because the probative value of the photograph was

       “substantially outweighed” by the prejudicial effect of the photograph on the

       jury. (Appellant’s Br. p. 35). We review a trial court’s decision to admit

       photographic evidence for an abuse of discretion. Ward v. State, 903 N.E.2d

       946, 958 (Ind. 2009). No claim of error in the admission of photographs is

       permitted unless a substantial right of the party is affected. Id.; Ind. Evidence

       Rule 103(a). “Whether an appellant’s substantial rights are affected is

       determined by examining the probable impact of that evidence upon the jury.”

       Ward, 903 N.E.2d at 958.


[33]   Relevant evidence is “evidence having the tendency to make the existence of

       any fact that is of consequence to the determination of the action more or less

       probable than it would be without the evidence.” Evid. R. 401. As a general

       rule, relevant evidence is admissible, and irrelevant evidence is inadmissible.

       Southern v. State, 878 N.E.2d 315, 321 (Ind. Ct. App. 2007), trans. denied.

       However, even relevant evidence may be excluded if its probative value is

       substantially outweighed by the danger of unfair prejudice. Evid. R. 403.




       5
         Saintignon refers to “photographs” in his Appellant’s Brief, but only one photograph of his torso showing
       his tattoos was admitted into evidence, Exhibit 79. (Appellant’s Br. p. 35).

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019                            Page 19 of 27
[34]   Here, the State had agreed prior to trial that it would not seek to admit evidence

       of Saintignon’s membership in the Aryan Brotherhood. The State offered

       Exhibit 79 to show that Saintignon had a bruise on his right bicep two days

       after Brown was murdered. Such an injury could tend to make it more

       probable that he was Brown’s killer, and, thus, it was relevant to an issue at

       trial. The State did not present any testimony identifying or explaining the

       significance of Saintignon’s tattoos, only three of which are fully visible in the

       photograph. Because none of the tattoos clearly denote the Aryan

       Brotherhood, we find that the minimal, if any, prejudice to Saintignon did not

       render the photograph inadmissible and that the impact on the jury, if any, did

       not affect his substantial rights. Ward, 903 N.E.2d at 958. As such, we

       conclude that the trial court did not abuse its discretion when it admitted the

       challenged photograph. 6


                                          III. Sufficiency of the Evidence

[35]   Saintignon challenges the evidence supporting his convictions for conspiracy to

       commit burglary resulting in bodily injury, murder, and robbery resulting in

       bodily injury. When we review the sufficiency of the evidence to support a

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not



       6
         Saintignon also makes a three-sentence argument regarding the admission of evidence that he was serving
       time in jail. Saintignon refers to “various letters and conversations” but makes no further effort to identify
       specific pieces of evidence which he contends were erroneously admitted. (Appellant’s Br. p. 35). Saintignon
       has waived this argument by failing to provide adequate citation to the record. See App. R. 46(A)(8)(a).



       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019                             Page 20 of 27
       our role as an appellate court to assess witness credibility or to weigh the

       evidence. Id. We will affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proven beyond a reasonable doubt. Id.


                           A. Conspiracy to Commit Burglary Resulting in Bodily Injury

[36]   The State charged Saintignon with conspiracy to commit burglary resulting in

       bodily injury in relevant part as follows:


               [Saintignon] did, with intent to commit the crime of Burglary,
               agree with another person or persons to commit said crime of
               Burglary and in furtherance of said agreement, [Barton],
               [Saintignon] or other unnamed person or persons did commit
               one or more of the following overt acts: 1) Obtained or retained a
               cellular phone 2) Traveled to the area of [Brown’s home] for the
               purpose of committing Burglary 3) Traveled to [Brown’s home]
               for the purpose of committing Burglary 4) Entered [Brown’s
               residence] for the purpose of committing Burglary[.]


       (Appellant’s App. Vol. II, p. 50). The offense of burglary occurs when a person

       breaks and enters the building or structure of another person with intent to

       commit a felony. I.C. § 35-43-2-1. In order to convict for a conspiracy crime,

       the State must allege and prove that either the person or the person with whom

       he agreed to commit a felony performed an overt act in furtherance of the

       agreement. I.C. § 35-41-5-2(b). It is not necessary to establish the offense of

       conspiracy that the underlying felony actually be committed or even attempted.

       Hammond v. State, 594 N.E.2d 509, 515 (Ind. Ct. App. 1992), trans. denied.


[37]   Here, Barton testified that Saintignon contacted him on December 23, 2009,

       with a plan to rob Brown of her prescription pain medication. Saintignon and
       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019          Page 21 of 27
       Barton agreed that Saintignon would go to Brown’s home, place her purse

       containing the medication by the front door, and distract her with sex so that

       Barton could open the front door and grab the purse. In furtherance of that

       plan, Saintignon and Barton went to the area of Brown’s home in the evening

       of December 23, 2009, to show Barton where Brown’s home was located and to

       decide where Barton should park his car and wait for the signal to open

       Brown’s front door and grab the purse. Early in the morning of December 24,

       2009, Barton followed Saintignon’s car to Brown’s house, where Saintignon

       parked. Barton went around the corner and parked in the spot where they had

       previously agreed. This evidence supports the jury’s reasonable conclusion that

       Saintignon and Barton agreed to commit a burglary against Brown and

       performed at least two of the acts alleged by the State in furtherance of that

       agreement, namely traveling to the area of Brown’s home to case it and

       traveling to Brown’s home to commit the burglary.


[38]   Saintignon’s challenge to this conviction is that there was no evidence that he

       texted Barton to grab the purse, went into Brown’s home, there was a breaking

       and entry, or that they had obtained cell phones to use in the burglary. These

       arguments are unavailing because it is not necessary for the State to prove that

       Saintignon actually accomplished the burglary in order to prove the offense.

       Hammond, 594 N.E.2d at 515. Inasmuch as Saintignon argues that there was

       no plan to break and enter Brown’s home as part of the burglary plot, we note

       that Barton’s planned entry through Brown’s unlocked front door to grab her

       purse would have been sufficient to fulfill the element of breaking and entering


       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 22 of 27
       for burglary. See Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002) (noting that

       opening an unlocked door constitutes a breaking for purposes of burglary). The

       fact that the State may not have proved that they obtained cell phones to use in

       the burglary does not represent a deficiency in the evidence, as the State proved

       two other overt acts in furtherance of the conspiracy. Concluding that the State

       proved beyond a reasonable doubt that Saintignon conspired to commit a

       burglary resulting in bodily injury, we affirm his conviction.


                                                          B. Murder

[39]   Saintignon argues that the State did not prove that it was he who killed Brown.

       Murder is the knowing or intentional killing of another human being. I.C. § 35-

       42-1-1(1). A defendant’s murder conviction may be sustained on circumstantial

       evidence alone. Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016); Jones v. State,

       780 N.E.2d 373, 376 (Ind. 2002).


[40]   Here, Saintignon confessed to Barton just hours after her death that he had

       murdered Brown and had cleaned it up like a professional. This was direct

       evidence of Saintignon’s guilt which sustains his conviction. See Sallee, 51

       N.E.3d at 134-35 (noting that a murder conviction can be sustained on the

       testimony of a single witness, even where the evidence is uncorroborated).

       Nevertheless, there was evidence in the record that Saintignon also confessed to

       Sandrina and Roy on separate occasions. These confessions were corroborated

       by evidence that Saintignon texted and called Brown throughout the evening of

       December 23 and December 24, 2009; Barton observed Saintignon’s car parked

       at Brown’s home for a significant period of time hours before Brown was

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 23 of 27
       discovered dead; cell phone tower records showed that Saintignon was in the

       vicinity of Brown’s home in the early morning hours of December 24, 2009;

       Saintignon was frantic and upset when Barton encountered him around 5:00

       a.m. and confessed to killing Brown; the crime scene had been wiped down,

       largely removing DNA and fingerprint evidence; Saintignon attempted to

       destroy his clothing and Brown’s purse linking him to the murder; Saintignon

       had a visible wound on his hand the same morning Brown was discovered

       dead; and Saintignon had no alibi.


[41]   Nevertheless, Saintignon draws our attention to the relative dearth of DNA,

       blood, and fingerprint evidence connecting him to the crime scene, Barton’s

       admission that he did not actually observe Saintignon enter Brown’s home, and

       his alternate explanation for the wound Officer Pease observed on his hand.

       These arguments are unavailing given our standard of review, which mandates

       that we neither reweigh the evidence nor reassess the credibility of witnesses.

       Drane, 867 N.E.2d at 146. Concluding that the State proved beyond a

       reasonable doubt that it was Saintignon who killed Brown, we affirm his

       conviction for murder.


                                         C. Robbery Resulting in Bodily Injury

[42]   Saintignon also briefly argues that the State failed to prove that he committed a

       robbery resulting in bodily injury. The State charged Saintignon with robbery,

       in relevant part, as follows:




       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019       Page 24 of 27
               [Saintignon] did knowingly take property from . . . Monica
               Brown, by using force or by threatening the use of force, said act
               resulting in [] bodily injury to Monica Brown.


       (Appellant’s App. Vol. II, p. 53). The offense of robbery may be proven by

       circumstantial evidence. See, e.g., Beasley v. State, 445 N.E.2d 1372, 1373-74

       (Ind. 1983) (sustaining a robbery conviction based on circumstantial evidence).


[43]   Saintignon’s challenge to the evidence supporting his conviction for robbery is

       that the State failed to prove that there was property missing from Brown’s

       house, that he took Brown’s property, or that he was in possession of Brown’s

       property. However, Brown’s daughter, K.B. testified that Brown kept her

       medication in a black purse with a “Chanel symbol” on it. (Tr. Vol. III, p. 70).

       K.B. also verified that Brown had a Green Dot card which she kept in her

       wallet in her purse. Brown’s brother testified that Brown possessed a .38 caliber

       handgun which she sometimes kept in her purse. However, none of these items

       were found in Brown’s home after she was killed.


[44]   Barton and Saintignon had planned to rob Brown. Barton testified that when

       he met with the frantic Saintignon around 5:00 a.m. the morning of December

       24, 2009, Saintignon was in possession of a dark colored purse that had an

       emblem in the form of an initial on it and that the purse contained pain pills.

       There was evidence in the record that Brown never left the house without her

       purse and that Saintignon wanted to burn the purse he had that morning, all of

       which supports a reasonable inference that he possessed Brown’s purse and that

       his possession of the purse was not legitimate. Saintignon was also in

       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019      Page 25 of 27
       possession of Brown’s Green Dot prepaid debit card which Brown kept in her

       wallet in her purse, which was further evidence that the purse Barton saw

       Saintignon with the morning of December 24, 2009, was Brown’s. In addition,

       after Brown’s killing, Saintignon was in possession of Brown’s .38 caliber

       handgun and contacted her brother the day after Brown’s murder to attempt to

       procure the gun’s clip. When speaking with Brown’s brother, Saintignon

       cautioned Brown’s brother that the authorities may be monitoring his calls,

       which supports a reasonable inference that Saintignon knew that his possession

       of Brown’s gun was not legitimate either. We conclude that this evidence

       supports reasonable inferences that there was property missing from Brown’s

       house, that Saintignon took Brown’s property, and that Saintignon was in

       possession of Brown’s property after her murder. As such, we affirm

       Saintignon’s conviction for robbery resulting in bodily injury.


                                              CONCLUSION
[45]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it excluded Saintignon’s proposed witnesses, nor did it deprive

       him of his right to present a defense. In addition, we conclude that the trial

       court did not abuse its discretion when it admitted a photograph that depicted

       Saintignon’s tattoos. Lastly, we conclude that the State proved beyond a

       reasonable doubt that Saintignon committed the offenses of conspiracy to

       commit burglary resulting in bodily injury, murder, and robbery resulting in

       bodily injury.


[46]   Affirmed.
       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019     Page 26 of 27
[47]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-279 | January 17, 2019   Page 27 of 27
