MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                   Mar 20 2018, 10:45 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                       CLERK
                                                                     Indiana Supreme Court
purpose of establishing the defense of res judicata,                    Court of Appeals
                                                                          and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald J. Moore                                          Curtis T. Hill, Jr.
Richmond, Indiana                                        Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Stephen A. Via,                                          March 20, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         89A05-1704-CR-931
        v.                                               Appeal from the Wayne Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Kolger,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No.
                                                         89C01-1606-MR-1




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018         Page 1 of 24
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Stephen Via (Via), appeals his conviction and sentence

      for murder, a felony, Ind. Code § 35-42-1-1.


[2]   We affirm.


                                                  ISSUES
[3]   Via presents three issues on appeal, which we restate as:

      (1) Whether the State presented sufficient evidence beyond a reasonable doubt

      to support Via’s murder conviction;


      (2) Whether the trial court abused its discretion by admitting evidence of Via’s

      prior bad acts under Ind. Evidence Rule 404(b); and


      (3) Whether Via’s sentence is inappropriate in light of the nature of the offense

      and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In October of 2014, Via and Stacy Mosier (Mosier) began dating. Shortly

      thereafter, Via moved into Mosier’s residence in Richmond, Indiana. On the

      morning of June 16, 2016, Jamie Tuttle (Tuttle) went to Mosier’s home and

      informed Mosier that he had a cleaning job lined up for Mosier. Tuttle and

      Mosier then left in Tuttle’s vehicle. Sometime that morning, Via readied

      himself and went to his grandfather’s house to pick up his daughter to spend

      time with her. At 2:21 p.m. Via texted Mosier, “So what’s up.” (State’s Exh.

      156). After having not heard back from Mosier, Via sent another text to Mosier

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 2 of 24
      at 2:55 p.m. stating, “Déjà vu guess I’ll see you when I see you.” (State’s Exh.

      155). At about 3:00 p.m., Via dropped off his daughter at his grandfather’s

      house. Via spent the rest of his day next door, at his father’s (“Father”) house.

      When Via returned home later that night, Mosier was not there.


[5]   Shortly before 8:00 a.m. on June 17, 2016, Susan Groff (Groff), Mosier’s

      neighbor, took her dogs out. Groff saw Mosier arrive at her home, and after

      Mosier went inside, Groff heard “lots of screaming and hollering.” (Tr. Vol.

      III, p. 125). Groff then heard “[l]ike a door slamming. Bam.” (Tr. Vol. III, p.

      125). Via’s cell phone call logs show that Via called Father at around 7:50 a.m.

      and the call lasted 90 seconds. Via again called Father at 8:01 a.m. and the call

      lasted 53 seconds. Via made another call at 8:02 a.m., but Father did not

      answer. At 8:04 a.m., Father texted Via, “Hurry up, we got work to do.” (Tr.

      Vol. III, p. 207). Moments later, Groff saw Mosier’s white Pontiac drive off;

      however, she could not see who was driving because of the vehicle’s tinted

      windows.


[6]   At approximately 8:30 a.m., David Stein (Stein), a neighbor to Father, was

      leaving work. Stein saw Via standing in Father’s backyard, and he was

      surprised to see Via because he knew Via was a “late sleeper.” (Tr. Vol. II, p.

      190). Stein asked Via, “[W]hat are you doing up so early?” and Via stated that

      he wanted to give “[Father] a lift.” (Tr. Vol. II, p. 190). Meanwhile at Mosier’s

      home, Groff did not see Mosier’s vehicle, nor did she see other people visit the

      home. Mosier had previously disclosed to Groff that she and Via were

      undergoing relationship problems and Mosier had hoped that going camping

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 3 of 24
      with Via might “get their relationship fixed.” (Tr. Vol. III, p. 127). Groff

      thought it was odd for Mosier and Via to go camping and leave all the windows

      to their home open. At some point, Groff walked over to Mosier’s house,

      peeked through a broken window, and called out for Mosier’s dog. Because she

      did not hear Mosier’s dog bark, Groff believed that Via and Mosier had gone

      camping.


[7]   That same day, at 11:48 a.m., Via texted Mosier’s phone saying, “WTF where

      you at? This is bullshit. You keep running around getting high and just doing

      whatever you want, wherever you want. You’re so selfish. You always blame

      everyone else for all your problems. You need to take responsibility for

      something or nothing will ever get better.” (State Exh. 154). Later that day, at

      about 4:00 p.m., Via saw his best friend, Dillion Morefield (Morefield),

      standing at a corner, and he stopped to give Morefield a ride in Mosier’s white

      Pontiac. After Morefield got inside the vehicle, he sensed that Via was nervous

      about something. Morefield inquired as to how Mosier was doing, and Via

      stated, “she’s fine.” (Tr. Vol. III, p. 47). Morefield was in the car with Via and

      Father for around ten minutes before exiting.


[8]   At approximately 4:30 p.m., Father saw his friend, Laura Turner (Turner),

      driving her car and he called Turner on her cell phone. Turner agreed to meet

      Via and Father at a Big Lots’ parking lot. Upon arriving at the agreed location,

      Father exited the vehicle being driven by Via and entered Turner’s vehicle.

      Father began crying. Turner had “never seen a grown man so out of control of

      his emotion.” (Tr. Vol. I, p. 78). Father indicated that “he needed a friend. He

      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 4 of 24
      needed somebody to help him. Something bad [had] happened.” (Tr. Vol. I, p.

      78). Because Turner had to rush to the BMV to get a “new I.D. card,” Via

      drove behind Turner. (Tr. Vol. I, p. 157). After Turner was done with the

      BMV, Via followed Turner’s vehicle to a drug house, where all three “smoked

      some crack.” (Tr. Vol. I, p. 65).


[9]   A short while later, all three left the drug house in Turner’s vehicle, and because

      Father and Via wanted a hotel room, Turner drove the pair to a Super 8.

      Turner believed that Via and Father “wanted privacy” to talk about something.

      (Tr. Vol. I, p. 84). At about 6:30 p.m., Turner had to leave for work, but she

      left with the expectation that Father and Via would disclose “whatever this

      whole thing was all about.” (Tr. Vol. I, p. 89). Turner returned to the motel

      room at about 9:30 p.m. Via then disclosed to Turner the events of the day.

      Via informed Turner that Mosier had upset him that day for staying “out all

      day and all night” with Tuttle. (Tr. Vol. I, p. 93). Via indicated that Mosier

      “knew how to push his buttons.” (Tr. Vol. I, p. 93). Via divulged that when

      Mosier arrived home, they argued and “they both went upstairs into the

      bedroom.” (Tr. Vol. I, p. 96). Via stated that he had a gun in his hand during

      the altercation and that he pointed it toward Mosier’s head. At that moment,

      Via voiced to Mosier, “I told you I’d kill you.” (Tr. Vol. I, p. 96). Via

      articulated to Turner that without his involvement, the “gun just went off” and

      killed Mosier. (Tr. Vol. I, p. 96). Turner observed that Via had “blood on [his]

      boots.” (Tr. Vol. I, p. 104). Turner observed that Via lacked any emotions

      during his narration.


      Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 5 of 24
[10]   While Via was narrating the events, all three were “[s]moking crack” and

       thereafter Via began strategizing on “what to do next.” (Tr. Vol. I, p. 102). Via

       suggested possibly framing Tuttle. Also, Via proposed to “get rid of the gun”

       by throwing it in a pond. (Tr. Vol. I, p. 103). Turner observed that after Via

       took a shower, Via remained dressed in his underwear and he handed Father all

       the clothes that he had been wearing that day. Father subsequently put Via’s

       clothes and Via’s boots in a plastic bag. At some point, Turner informed Via

       and Father that she had to go home. Father accompanied Turner. As Turner

       was driving eastbound on Interstate 70 (I-70), she “heard [her] back window go

       down and [she] heard something fly out the window.” (Tr. Vol. I, p. 108).

       Thereafter, Father instructed Turner to exit I-70 and to drive to a gas station

       which had a Salvation Army donation box in the parking lot. There, Father

       dropped a plastic bag containing Via’s clothes. Turner drove Father back to the

       hotel and thereafter went home.


[11]   Unbeknownst to Via and Father, Turner was a confidential informant. On

       June 18, 2016, Turner contacted Chief James Branum (Chief Branum) of the

       Richmond Police Department and informed him that she needed to talk to him.

       Chief Branum advised Turner to drive to the police station. On her way,

       Turner noticed a tackle box and fishing poles in the backseat of her car. When

       she arrived at the station, Turner reiterated Via’s confession, as well as Via’s

       subsequent actions and proposals of concealing any evidence relating to

       Mosier’s murder. Turner relayed to the officers that the murder weapon might

       have possibly been left inside her vehicle.


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 6 of 24
[12]   Following a search of Turner’s vehicle, the officers located a .380 semi-

       automatic gun inside the fishing tackle box. A magazine was also located in the

       tackle box. The magazine contained three .380 bullets, but there were no shell

       casings. There was blood on the barrel end of the gun, which was later

       identified as Mosier’s. The officers also went to the gas station which had a

       Salvation Army donation box to search for more evidence. Inside the box, the

       officers recovered Via’s shorts, gray belt, and a Cincinnati Reds baseball club t-

       shirt. In a trash dumpster behind the gas station, the officers found a vest

       covered in reddish-brown stains. The brown stains were later identified as

       blood belonging to Mosier. The officers also searched along I-70 and found

       Via’s boot. Mosier’s blood was found in approximately six points on Via’s

       boot. After the officers obtained a search warrant, they located Mosier’s body

       in an upstairs bedroom of her home. Mosier had been shot in the head and was

       lying in a pool of blood. There was no blood on the bed or bedding. An

       expended bullet was found next to Mosier’s body. Rafael Perez (Perez), a

       forensic firearm examiner with the Indiana State Police Laboratory Division,

       determined that the spent bullet had been fired by the gun located in the tackle

       box inside Turner’s vehicle.


[13]   On June 20, 2016, the State filed an Information, charging Via with murder, a

       felony. On February 13, 2017, the State filed notice of its intent to introduce

       evidence under Indiana Evidence Rule 404(b) consisting of Via’s previous

       batteries against Mosier, and Via’s prior death threat to Mosier. On February

       17, 2017, Via filed a motion in limine requesting the exclusion of his specific


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 7 of 24
       prior bad acts. On February 22, 2017, the State filed an amended notice

       seeking to include additional bad acts that had inadvertently been omitted in

       the initial notice. On the same day, the trial court conducted an evidentiary

       hearing. Following the parties’ arguments, the trial court issued an order,

       stating in part,

               . . . that any evidence the State of Indiana intends to introduce
               concerning “previous statements by Stacey Mosier that [Via] battered
               her, and threatened to kill her, and had injuries obtained from [Via],
               including observations of Mosier’s injuries and Mosier’s statements
               that the injuries came from [Via]” shall be considered at an evidentiary
               hearing, and/or allowing [Via] to ask preliminary questions of the
               State’s witnesses outside the presence and hearing of the jury.


       (Appellant’s App. Vol. I, p. 79).


[14]   A jury trial was conducted on February 27 through March 3, 2017. At the close

       of the evidence, the jury found Via guilty as charged. On March 30, 2017, the

       trial court conducted a sentencing hearing. After the hearing, the trial court

       sentenced Via to sixty-five years in the Department of Correction.


[15]   Via now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence


[16]   Via argues that the State failed to present sufficient evidence beyond a

       reasonable doubt to sustain his murder conviction. When reviewing the

       sufficiency of the evidence needed to support a criminal conviction, we neither

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 8 of 24
       reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,

       1005 (Ind. 2009). “We consider only the evidence supporting the judgment and

       any reasonable inferences that can be drawn from such evidence.” Id. We will

       affirm if there is substantial evidence of probative value such that a reasonable

       trier of fact could have concluded the defendant was guilty beyond a reasonable

       doubt. Id.


[17]   Indiana Code section 35-42-1-1(1) provides that “[a] person who: (1)

       knowingly or intentionally kills another human being . . . commits murder, a

       felony.” A person engages in conduct knowingly when, at the time he engages

       in the conduct, he is aware of a high probability that he is doing so. I.C. § 35-

       41-2-2(b). A murder conviction may be sustained on circumstantial evidence

       alone. Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016). Likewise, a trier of fact

       may infer that the requisite intent for a crime exists based solely on

       circumstantial evidence: “Knowledge and intent are both mental states and,

       absent an admission by the defendant, the trier of fact must resort to the

       reasonable inferences from both the direct and circumstantial evidence to

       determine whether the defendant has the requisite knowledge or intent to

       commit the offense in question.” Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct.

       App. 2010).


[18]   Via’s sole contention on appeal is that his gun was defective which made it

       possible for the gun to discharge on its own. Thus, Via maintains that he did

       not knowingly or intentionally kill Mosier. The State responds by arguing that

       “the totality of the evidence provided the reasonable inference that [Via]

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 9 of 24
       modified the gun to cover up his intentional act” of killing Mosier and he made

       “the shooting look like an accident.” (State’s Br. p. 22). We agree with the

       State.


[19]   At his trial, Via stated that he acquired the gun a month before Mosier’s murder

       through a drug sale, i.e., he sold some drugs and received the gun in return. To

       assess if the gun was properly working, Via “dry fired the gun,” but he never

       used it for target practice, nor did he disassemble or reassemble the gun. (Tr.

       Vol. IV, p. 59). Although Via owned other firearms, Via indicated that he

       “frequently” carried the gun in question. (Tr. Vol. IV, p. 60). He stated that the

       gun was “usually in my pocket. Or if it was in the car, it’d be under[] the

       frontseat (sic).” (Tr. Vol. IV, p. 60).


[20]   Via’s version of events on the day Mosier died, was that Mosier arrived home at

       around 7:00 a.m. and demanded money from him to go “get more cocaine.”

       (Tr. Vol. IV, p. 72). Via rejected Mosier’s requests, and the two began arguing.

       At some point, Via got up from his bed and dressed for the day. Via then

       gathered his “money, drugs, cigarettes” and “pistol” from the night stand, and

       he intended to leave the house. (Tr. Vol. IV, p. 73). Via claimed that Mosier

       held his arm and asked him to “quit being a dick.” (Tr. Vol. IV, p. 73). Via

       pushed Mosier away, and he told Mosier to “get the fuck off.” (Tr. Vol. IV. p.

       73). Again, Mosier grabbed his arm and in the process, they both fell on the

       bed at an “angle.” (Tr. Vol. IV, p. 73). Via then got on top of Mosier and

       pointed the gun at Mosier’s head. Via warned Mosier “not to touch [him]

       again,” and he slid the gun in an upward manner; however, the “pistol went

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 10 of 24
       off.” (Tr. Vol. IV, p. 73). Via claimed that the gun fired without him pulling

       the trigger. Upon seeing what he had done, Via immediately pulled Mosier to

       the side of the bed, and while kneeling, momentarily cradled Mosier’s head in

       his arms before she died.


[21]   Perez, the forensic firearm examiner who tested Via’s gun, explained how the

       internal parts of a gun naturally operate. Following a detailed description,

       Perez testified that when he initially inspected Via’s gun, he “didn’t notice

       anything out of the ordinary,” however, when he “put it down, [he] noticed . . .

       the retainer was slightly indented . . . into its channel.” (Tr. Vol. II, p. 113). He

       found that it was “a little too easy to push the retainer,” a feature that was

       “uncommon” for a .380 handgun. (Tr. Vol. II, p. 114). Upon further testing,

       Perez discovered that the “firearm could fire without the trigger being pulled.”

       (Tr. Vol. II, p. 114). Based on his observations, Perez disassembled the

       handgun and compared the firearm to another firearm from the State

       laboratory. Perez indicated that he mainly assessed four parts—i.e., the

       retainer, firing pin, firing pin spring, and sear. With the retainer, he noted that

       the “small little. . . locking hook” at the bottom of the retainer was bent. (Tr.

       Vol. II, p. 116). Perez stated that he had “never seen a bent retainer on . . . this

       class of firearm before.” (Tr. Vol. II, p. 129). Perez saw another flaw with the

       firing pin and he testified that the “back half of the firing” pin also known as a

       “cocking indicator,” stuck out at the back of Via’s handgun. (Tr. Vol. II, p.

       116). As for the firing pin spring, Perez determined that it had been shortened

       since some of the “coils were missing.” (Tr. Vol. II, p. 117). He attested that


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 11 of 24
       he had never seen a shortened firing pin spring, “[u]nless it was modified on

       purpose,” however, he also attributed the defect to normal “wear” and tear to

       the gun. (Tr. Vol. II, p. 129). Lastly, Perez observed that the two sears to the

       gun, which appear on either side of the gun, were “atypical.” (Tr. Vol. II, p.

       117). Specifically, Perez found that one sear was “real shortened” and the other

       sear “had a modification of some kind that was not standard.” (Tr. Vol. II, p.

       117). He testified that he had “never seen a sear that was shortened and

       modified so that the safety would not work.” (Tr. Vol. II, p. 130). Perez

       testified that the flaws he detected negatively affected the triggering mechanism

       in Via’s gun. As such, Perez determined that Via’s gun could be fired without

       pulling the trigger in three ways—a slam fire, by being dropped, or if one

       applied force to the slide of the gun in an upward manner if the gun was already

       cocked. Perez noted that under all three scenarios, however, the gun would

       “require a human being to manipulate it somehow” in order for it to discharge.

       (Tr. Vol. II, p. 127).


[22]   Notwithstanding his above discernment that the defects may have been a result

       of the gun’s normal wear, Perez testified that the shortened sear and shortened

       firing pin spring could have been altered by “metal clippers” or a “special

       cutting tool.” (Tr. Vol. II, pp. 131-32). The jury heard evidence that Via was a

       former welder and familiar with the types of tools that may have been used to

       make modifications to the gun. The State also presented evidence of Via’s

       comprehensive knowledge about guns, thereby promulgating a notion to the

       jury that Via may have altered his handgun to foster an impression that the gun


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 12 of 24
       accidentally fired and that he did not intentionally shoot Mosier. As a child,

       Via’s grandfather took Via for target practice with rifles and handguns. Via’s

       love for guns proceeded into his adult life, and he testified that he would target

       practice with his best friend Morefield using semi-automatic handguns. Via

       owned an AK-47 which he used for target practice, and he also knew how to

       clean, take apart, and reassemble. The State additionally presented evidence

       that Via was formerly in the National Guard and had completed basic training

       in firearms prior to being discharged from the Army in 2009. As part of his

       Army training, Via received a manual that had instructions on how to

       disassemble a handgun. Based on Via’s extensive knowledge about guns, the

       jury could have reasonably inferred from the evidence that Via modified the

       gun so as to make Mosier’s murder appear as an accident. Furthermore, Via

       testified that he frequently carried the gun in his pocket and under the front seat

       of his car a month prior to Mosier’s murder. Given that the gun had not

       inadvertently fired on its own in the month prior to Mosier’s murder, it is

       unlikely that the gun had any of the described defects prior to the shooting. In

       light of the foregoing facts, it was reasonable for the jury to infer that Via had

       motive, ability, skill, and opportunity to modify his gun in order to make it

       more susceptible to defective firing, and thereby make Mosier’s shooting seem

       like an accident.


[23]   Moreover, we note that a murder conviction may be sustained on

       circumstantial evidence alone. Sallee, 51 N.E.3d at 134. Via’s subsequent

       actions after shooting Mosier additionally lead us to conclude that Via


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 13 of 24
       knowingly or intentionally killed Mosier. Via’s cell phone call logs showed that

       he called Father three times between 7:50 a.m. and 8:01 a.m. At 8:04 a.m.,

       Father texted Via and stated, “Hurry up, we got work to do.” (Tr. Vol. III p.

       207). Before leaving the house to meet Father, Via used a gray sweatshirt to

       wipe away his DNA at the crime scene. The record shows that Via sent a text

       message to Mosier’s phone approximately four hours after her death to give the

       impression that he did not know she was dead. Later that evening, Via

       confessed to Turner, a confidential informant, that prior to killing Mosier, he

       pointed the gun at Mosier’s head and stated, “I told you I’d kill you.” (Tr. Vol.

       I, p. 97). Via expressed to Turner that “he was very mad and very upset” that

       Mosier had spent the previous day and night with another man, and that

       Mosier “knew how to push his buttons.” (Tr. Vol. I, p. 98). Via proposed

       framing somebody else for the murder, and getting rid of any incriminating

       evidence, including the gun which he intended to throw into a pond. Via’s gun

       was later found in Turner’s car inside a fishing tackle box. With the help of

       Father, Mosier also got rid of his shoes, and all the clothes he had worn during

       the shooting.


[24]   Via’s version of events also did not match the physical evidence, thus allowing

       the jury to reasonably infer that he was lying about Mosier’s shooting being an

       accident. Although Via claimed the gun inadvertently shot Mosier as she lay

       on the bed, no blood was found on the bedding. Via additionally claimed that

       after he and Mosier fell on the bed, Mosier was lying on her back with her head

       facing the right side. Mosier’s autopsy showed that the trajectory of the bullet


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 14 of 24
       travelled from “left to right, back to front, [] slightly upward” and exited

       through the right temple. (Tr. Vol. II, pp. 24-25). Thus, if the bullet travelled

       from left to right, it would have gone down into the bed if Mosier was lying on

       her back. Lastly, the evidence that Via and Mosier had a toxic relationship,

       and were engaged in an escalating altercation when Via pointed his gun at

       Mosier, provided a further motive for the shooting.


[25]   In the instant case, Via’s in-depth knowledge about guns and his welding skills

       created reasonable inferences that he altered his gun after killing Mosier.

       Moreover, the State presented adequate circumstantial evidence that led the

       jury to conclude that Via had the requisite mens rea for the crime of murder.

       Specifically, Via took substantial steps in concealing any incriminating evidence

       after he killed Mosier. Also, his version of events did not tie to the physical

       evidence collected at the crime scene. Lastly, Via was upset that Mosier had

       stayed out all night the night before, and the two were engaged in an altercation

       before Via shot Mosier in the head. Here, the totality of the evidence leads us

       to conclude that the State proved beyond a reasonable doubt that Via

       knowingly and intentionally killed Mosier.


                                  II. Admission of Prior Bad Act Evidence


[26]   Referencing Indiana Evidence Rule 404(b), Via contends that the trial court

       abused its discretion in admitting cumulative prior bad acts of domestic

       violence between him and Mosier.




       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 15 of 24
[27]   Our standard of review for the admissibility of evidence is well established. We

       review a trial court’s decision to admit or exclude evidence for an abuse of

       discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997), reh’g denied,

       cert. denied. An abuse of discretion occurs if a trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before the court.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. However, if a trial

       court abused its discretion by admitting the challenged evidence, we will only

       reverse for that error if “the error is inconsistent with substantial justice” or if “a

       substantial right of the party is affected.” Timberlake, 690 N.E.2d at 255. Any

       error caused by the admission of evidence is harmless error for which we will

       not reverse a conviction if the erroneously admitted evidence was cumulative of

       other evidence appropriately admitted. Stephenson v. State, 742 N.E.2d 463, 481

       (Ind. 2001), cert. denied.


[28]   Indiana Evidence Rule 404(b) provides, in pertinent part, that:

               Evidence of other crimes, wrongs, or acts is not admissible to prove the
               character of a person in order to show action in conformity therewith.
               It may, however, be admissible for other purposes, such as proof of
               motive, intent, preparation, plan, knowledge, identity, or absence of
               mistake or accident[.]


[29]   When a defendant objects to the admission of evidence on the grounds that it

       would violate Rule 404(b), the following test is applied: (1) the court must

       determine that the evidence of other crimes, wrongs, or acts is relevant to a

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

       and (2) the court must balance the probative value of the evidence against its

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 16 of 24
       prejudicial effect pursuant to Rule 403. The rule is “designed to prevent the

       jury from assessing a defendant’s present guilt on the basis of his past

       propensities, the so-called ‘forbidden inference.’” Iqbal v. State, 805 N.E.2d 401,

       406 (Ind. Ct. App. 2004), trans. denied.


[30]   In this case, during opening remarks, Via’s counsel presented a claim of a

       contrary intent, i.e., Via’s gun had a defect which caused it to accidentally

       discharge on its own. If true, this would have negated an essential element for

       the crime of murder, i.e., Via did not knowingly or intentionally kill Mosier.

       Based on that presentation, during trial, the trial court permitted the State to

       respond by offering evidence of prior crimes, wrongs, or acts to the extent

       generally relevant to prove that Mosier’s shooting was not accidental as claimed

       by Via; rather, it was intentional. See Lafayette v. State, 917 N.E.2d 660, 663

       (Ind. 2009).


[31]   During the trial, the State proffered testimony from Turner that a month prior

       to Mosier’s death, Mosier had told Turner that Via had battered her. Stein,

       Father’s neighbor and a friend to Mosier, testified that a few weeks before

       Mosier’s death, he saw Via and Mosier arguing. Following that argument and

       referring to Mosier, Via expressed to Stein, “[M]an, she’s pushing my buttons. .

       . . She’s making me crazy.” (Tr. Vol. II., p. 199). Stein further added that a

       couple of weeks before Mosier’s murder, he was fixing the brakes on Mosier’s

       car and he observed a dent to the side of the car. When Stein asked Mosier

       what had happened, Mosier reported that during an argument, Via had

       “thrown a rock or a brick or something and hit the side of the car.” (Tr. Vol.

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 17 of 24
       II., p. 170). When Stein confronted Via about the car-dent incident, Via’s

       response was that Mosier had charged at him with a baseball bat, and Via stated

       that he had to defend himself. Stein additionally testified that Via admitted to

       having “smacked [Mosier] around.” (Tr. Vol. II, p. 181). Morefield, Via’s best

       friend, testified that three weeks prior to Mosier’s murder, Mosier had informed

       him that Via had bruised her rib and given her a black eye. Mosier’s Mother,

       Connie Sawyer (Sawyer), testified that in January of 2016, she started observing

       injuries on Mosier including “black eyes, busted up ribs . . ., bruising up and

       down one leg.” (Tr. Vol. III, pp. 111-12). Sawyer stated that Via had also

       rammed Mosier’s keys into her palm during an argument, and Mosier had a

       visible “hole” in her palm. (Tr. Vol. III, p. 111). Groff, who lived across the

       street from Mosier, testified that Mosier pursued her help after the palm injury

       and that she took Mosier to the Urgent Care for medical treatment. (Tr. Vol.

       III, p. 129). On another occasion, Groff observed bruises on Mosier’s rib cage,

       and Mosier confessed to Groff that Via had hit “her with a bat.” (Tr. Vol. III,

       p. 129).


[32]   The State also argues that numerous domestic abuse incidents were properly

       admitted as relevant evidence of motive and relationship between Via and

       Mosier. We agree. As our supreme court held in Ross v. State, 676 N.E.2d 339,

       346 (Ind. 1996), “[a] defendant’s prior bad acts are . . . usually admissible to

       show the relationship between the defendant and the victim.” See also Elliott v.

       State, 630 N.E.2d 202, 204 (Ind. 1994) (prior threats of violence to ex-wife and

       victim admissible to show the relationship between the parties and defendant’s


       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 18 of 24
       motive); “Hostility is a paradigmatic motive for committing a crime.” Hicks v.

       State, 690 N.E.2d 215, 221 (Ind. 1997) (citations omitted).


[33]   Here, we find that the above domestic incidents were probative of the hostile

       relationship between Via and Mosier. Moreover, on the day Mosier died, Via

       was angry with Mosier since she had spent the previous day and night out.

       Evidence was presented that Via had suspected Mosier of having an affair at the

       time. Via confessed to Turner that prior to shooting Mosier, he pointed the gun

       at Mosier’s head and stated, “I told you I’d kill you.” (Tr. Vol. I, p. 97). Via

       expressed to Turner that prior to the shooting, “he was very mad and very

       upset” and that Mosier “knew how to push his buttons.” (Tr. Vol. I, p. 98).

       Based on the facts, we find that the evidence relating to the domestic abuse and

       discord was illustrative of Via’s relationship with Mosier, and the evidence was

       highly germane to prove Via’s motive for Mosier’s murder.


[34]   Although the evidence relating to domestic discord and abuse was relevant to

       show intent, motive, and the hostile relationship between Via and Mosier, it

       may still be inadmissible under the second prong of the 404(b) test if its

       probative value is substantially outweighed by the danger of unfair prejudice

       pursuant to Evid. R. 403. See Hicks, 690 N.E.2d at 221. When inquiring into

       relevance, the trial court “may consider any factor it would ordinarily consider

       under Rule 402.” Id. Such factors include the similarity and proximity in time

       of the prior act, as well as tying the prior act to the defendant.” Id.




       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 19 of 24
[35]   The State argues, and we agree, that the trial court properly balanced the

       evidence against its prejudicial effect by limiting the amount of admissible

       character evidence. In this case, Via affirmatively asserted in his opening

       argument that the gun accidentally shot Mosier without his intervention,

       thereby putting at issue the ‘intent’ element of the murder offense. Intent is one

       of the elements which the State must establish to prove murder under Indiana

       Code section 35-42-1-1. As such, extrinsic evidence that Via had in the six

       months prior to Mosier’s murder physically abused Mosier, was relevant to

       challenge the impression that Mosier’s murder was accidental. Further, we find

       that the domestic abuse incidents were close enough in time to maintain a

       probative force in establishing a pattern of hostility leading up to Mosier’s

       murder. Also, we find that the trial court was within its discretion in finding

       that evidence relating to domestic abuse, discord, and Via’s death threat toward

       Mosier, illustrated Via’s motive for Mosier’s murder. As such, we cannot say

       that the probative value of prior bad acts outweighed the danger of unfair

       prejudice to Via. Consequently, we conclude that the trial court did not abuse

       its discretion by admitting Via’s prior bad acts under Evid. R. 404(b).


                                                 III. Sentencing


[36]   Lastly, Via contends that the trial court abused its discretion when it imposed a

       sixty-five-year sentence for murdering Mosier. Indiana Appellate Rule 7(B)

       empowers us to independently review and revise sentences authorized by

       statute if, after due consideration, we find the trial court’s decision

       inappropriate in light of the nature of the offense and the character of the

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 20 of 24
       offender. Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007). The “nature of

       offense” compares the defendant’s actions with the required showing to sustain

       a conviction under the charged offense, while the “character of the offender”

       permits a broader consideration of the defendant’s character. Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008); Douglas v. State, 878 N.E.2d 873, 881 (Ind.

       Ct. App. 2007). An appellant bears the burden of showing that both prongs of

       the inquiry favor a revision of his sentence. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006). Whether we regard a sentence as appropriate at the end of

       the day turns on our sense of the culpability of the defendant, the severity of the

       crime, the damage done to others, and a myriad of other considerations that

       come to light in a given case. Cardwell, 895 N.E.2d at 1224. Our court focuses

       on “the length of the aggregate sentence and how it is to be served.” Id.


[37]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). A person who commits murder shall be imprisoned for a

       fixed term of between forty-five and sixty-five years, with the advisory sentence

       being fifty-five years. I.C. § 35-50-2-3. Here, the trial court imposed the

       maximum sentence under the statute.


[38]   Via concedes that the nature of his offense does not warrant a sentence revision

       under Rule 7(B). Indeed, the nature of the offense was egregious. The record

       shows that Via was upset with Mosier for spending the previous day and night

       out with another man. When Mosier finally returned home, the two argued,

       and during a heated altercation, Via pointed his gun at Mosier and he

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 21 of 24
       threatened to kill her. Via then fulfilled his promise by shooting Mosier in the

       head. Accordingly, we hold that the nature of Via’s offense does not justify a

       sentence revision.


[39]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. While a record of arrests may not be used as

       evidence of criminal history, it can be “relevant to the trial court’s assessment of

       the defendant’s character in terms of the risk that he will commit another

       crime.” Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).


[40]   At his sentencing hearing, the trial court took note of Via’s prior contacts with

       the criminal justice system. In 2000, as a minor, Via was arrested for possessing

       marijuana. Six months later, he was arrested for battery, and two weeks later,

       for intimidation. While on an informal adjustment for the battery offense, he

       was arrested for failing to attend school and being disobedient. Via’s informal

       adjustment was extended, but he was thereafter arrested for a theft and

       attempted burglary. While a delinquency petition was pending for the theft and

       burglary offenses, Via was arrested for disorderly conduct, and minor

       consuming alcoholic beverage. Via was placed on probation for a year in 2003

       for the theft and burglary offenses. In three separate incidents in 2004, Via was

       arrested for theft, minor consuming alcoholic beverage, and possession of

       paraphernalia. Via picked up his first adult conviction in 2005 for operating a

       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 22 of 24
       motor vehicle while intoxicated. In 2007, Via was convicted of minor

       consuming alcoholic beverage. In 2009, while armed with a firearm in Ohio,

       Via committed aggravated burglary and aggravated robbery. Via was

       subsequently convicted and sentenced to a term of six years.


[41]   Via’s substance abuse also reveals that he has not led a law-abiding life. Via

       admittedly stated that he began drinking alcohol at age fifteen, at which time he

       would drink on the weekends. At age fourteen, Via began smoking marijuana

       and would smoke from “time to time.” (Appellant’s App. Vol. II, p. 146).

       Via’s last reported use of marijuana was in 2016. Following his release from

       the Ohio DOC for the aggravated burglary and aggravated robbery offenses,

       Via indicated that he abstained from using marijuana while on probation

       because it stayed for a longer period in his system. Therefore, to sustain his

       drug addiction while on probation, Via “began using heroin because it only

       stayed in his system for a couple of days.” (Appellant’s App. Vol. II, p. 146).

       At his sentencing hearing, Via admittedly stated that was using cocaine at the

       time he committed the crime, and as a drug dealer, he sold heroin. The gun

       that Via used to shoot Mosier had been obtained during a drug sale. Here, we

       conclude that Via has failed to establish that his sentence is inappropriate in

       light of the nature of the offense and his character, and we affirm the trial

       court’s imposition of a sixty-five-year sentence.


                                             CONCLUSION
[42]   In sum, we conclude that the State presented sufficient evidence beyond a

       reasonable doubt to support Via’s murder conviction. Also, we conclude that
       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 23 of 24
       the trial court did not abuse its discretion in admitting evidence relating Via’s

       prior bad acts under Evid. Rule 404(b). Finally, we conclude that Via’s

       sentence is not inappropriate in light of the nature of the offense and his

       character.


[43]   Affirmed.


[44]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 89A05-1704-CR-931 | March 20, 2018   Page 24 of 24
