                                                                            FILED
                                                                        Feb 20 2020, 7:39 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                        Curtis T. Hill, Jr.
Elkhart, Indiana                                           Attorney General of Indiana

                                                           Samuel J. Dayton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Keith B. Ivory, Jr.,                                       February 20, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2575
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable John M.
Appellee-Plaintiff.                                        Marnocha, Judge
                                                           Trial Court Cause No.
                                                           71D02-1701-MR-1



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020                           Page 1 of 20
                                        Statement of the Case
                                                                                      1
[1]   Keith B. Ivory, Jr., appeals his conviction by jury of murder, a felony. We

      affirm.


                                                      Issues
[2]   Ivory raises three issues, which we restate as:


                 I.       Whether the State presented sufficient evidence to sustain
                          Ivory’s conviction.


                 II.      Whether the trial court erred in admitting DNA evidence
                          at trial.


                 III.     Whether the trial court erred while instructing the jury.


                                  Facts and Procedural History
[3]   Ivory was also known as “Kane” or “Linden Street.” Tr. Vol. II, pp. 57, 176.

      He had those names tattooed on his right shoulder and forearm, respectively.


[4]   Ivory had a grudge against Bethel Smallwood, believing that Smallwood had

      been at least partially responsible for the death of his sister in 2012 or 2013. He

      later told a friend, Ronald Nichols, that he had been waiting for “the

      opportunity” to get revenge. Id. at 169.




      1
          Ind. Code 35-42-1-1 (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020               Page 2 of 20
[5]   On the morning of June 24, 2016, Ivory arrived at the house of Verdell

      Williams and his then-fiancée, VirSarah Davis. The house was across the street

      from the Kickback Lounge (“Kickback”), a bar. Kickback had installed

      security cameras that recorded events up and down the street, including at

      Williams and Davis’ house. In addition, the house was around the corner from

      Po Boys, a barbeque restaurant. An alley ran behind the house, providing a

      more direct route to and from Po Boys.


[6]   Williams knew Ivory as Linden Street and had seen him in the neighborhood

      before. When Ivory arrived, Williams and Davis were standing under a tree

      down the block from their front yard. He approached them and spoke with

      them for a short while before Williams and Ivory walked away together. They

      briefly went into Williams and Davis’ house before getting into Williams’ car.

      During this time, the men discussed an automobile sale.


[7]   Next, they drove to a liquor store and, after purchasing some drinks, returned to

      park in front of the house for a short time before leaving to go to another store.

      As they drove to the second store, they passed Po Boys. Williams and Ivory

      returned to Williams and Davis’ home a few minutes later.


[8]   Next, Williams and Ivory entered the house, followed by Davis, who had been

      talking to someone else outside. Thirty minutes later, all three left the house.

      Williams and Davis walked down the sidewalk in the direction of Po Boys.

      Ivory followed, after stopping to talk with another person. Williams and Davis




      Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020     Page 3 of 20
       returned to their house via the same route a few minutes later, around three

       p.m., without Ivory.


[9]    Meanwhile, Bethel Smallwood and Felicia Nelson had arrived at Po Boys in a

       silver car. Smallwood remained in the car while Nelson purchased a plate of

       ribs. She brought the ribs to him and reentered the restaurant. Dorian Skipper,

       a Po Boys employee, walked past the car and briefly spoke with Smallwood as

       he ate.


[10]   Jeremy Keltner lived near Po Boys. Shortly after 3:00 p.m. that day, he looked

       out of his window toward Po Boys and saw a man approach the driver’s side

       door of a parked silver car. The man had a dark-colored shirt or jacket hanging

       from his shoulders. He also wore dark colored pants or shorts. Keltner

       watched the man raise his hand and fire three shots into the car. A nearby

       “ShotSpotter,” which is a device that pinpoints the time of gunshots in the area,

       reported that the shots occurred at “3:07 and 52 seconds in the afternoon on

       June 24, 2016.” Tr. Vol. III, p. 218.


[11]   Skipper heard the gunshots and walked around the corner of the building. He

       saw Smallwood slumped over in the car, with blood running down his shirt.

       Skipper also saw a figure standing by the driver’s side of the car, but he later

       could not remember any details about that person. Skipper went inside the

       restaurant and locked the door.




       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020     Page 4 of 20
[12]   Keltner watched the shooter run into an alley. Meanwhile, Briana Vela was in

       her kitchen when she heard gunshots, and when she looked out of her window

       toward Po Boys, she also saw a man running into an alley.


[13]   Williams and Davis were outside, down the street from their front yard, when

       Davis heard gunshots. Ivory appeared in their front yard, having walked from

       between their house and a neighboring house. He walked up to them and

       briefly spoke with them before walking back the way he had come. Ivory

       reappeared in the front yard a short time later, went to Williams and Davis’

       front porch, discarded an item, and walked away.


[14]   By that time, Vela had exited her house and was watching as people gathered

       on the street. She saw Ivory, and she noted that while many other people were

       standing outside, being “nosey” and trying to find out what happened, Ivory

       was walking away like he was “avoiding the scene.” Tr. Vol. II, p. 209. A

       different neighbor’s security camera recorded Ivory walking away from the

       area, shirtless.


[15]   Meanwhile, Davis returned to her front porch with Williams and found a black

       t-shirt. She handed the shirt to Williams, who walked around the side of their

       house and placed the shirt in a bin in their backyard.


[16]   Sergeant Charles Stokes of the South Bend Police Department was dispatched

       to Po Boys to investigate a reported shooting and found Smallwood slumped

       over in the car, deceased. Stokes and other officers secured the scene, contacted

       homicide detectives, and began questioning people in the neighborhood.

       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020   Page 5 of 20
[17]   Next, detectives and crime scene investigators arrived. They found shell

       casings on the ground near Smallwood’s car. They also examined the alley

       through which the shooter had fled. The officers opened Williams’ recycling

       bin and found the black t-shirt. Later that evening, the officers found a Taurus

       semiautomatic handgun in a gutter on the roof of Williams’ house. Williams

       had never seen the gun before. Subsequent testing revealed that the shell

       casings the officers found near Smallwood’s body had been fired from that

       handgun. The handgun had been purchased by Ivory’s wife in 2015.


[18]   A June 26, 2016 autopsy of Smallwood’s body revealed he had been shot twice

       in the neck, with an additional graze wound on the back of his scalp. The two

       shots that hit him in the neck were fired from within a few feet.


[19]   The police used buccal swabs to collect DNA samples from Williams, Davis,

       and Smallwood’s body. Shawn Stur, who is a forensic DNA analyst with the

       Indiana State Police Laboratory (“the Lab”), subjected the t-shirt to DNA

       testing. She attempted to generate a DNA profile from swabs taken from the t-

       shirt, but half of the swabs did not provide enough genetic material for testing,

       and the genetic material on the other half of the swabs had multiple

       contributors. At that time, the Lab did not have a process to effectively

       interpret DNA samples with multiple contributors.


[20]   Subsequently, the Lab adopted a new “probabilistic genotyping software”

       called “STRmix,” which was developed in Australia and New Zealand. Tr.

       Vol. III, p. 69. STRmix analyzes samples using a process of “deconvolution.”


       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020    Page 6 of 20
       Id. at 71. When a sample contains genetic material from multiple contributors,

       the program calculates possible genotype pairings in the material to identify the

       most likely genetic profiles. After that process is complete, an analyst compares

       the likely profiles to known profiles that have been collected from witnesses or

       suspects, and STRmix generates a “likelihood ratio” that the known profile, as

       opposed to the profile of an unknown person, contributed to the mix. Id. at 75.

       Stur explained that, contrary to prior DNA analysis methods, “[t]here are no

       match statements. It’s all just basically likelihoods.” Id. at 72.


[21]   The Lab has developed a “verbal scale” to help explain what STRmix’s

       likelihood ratio means in each case, as follows:


               Ours is from l to l0 is considered uninformative and that is
               because 99 percent of our false inclusions during validation
               between had a likelihood ratio between one and ten. So
               anywhere from one to ten is considered uninformative. Ten to
               one hundred is consider [sic] weak support whether it be for
               inclusion or exclusion. One hundred to a thousand is moderate
               support and over a thousand is strong support; and that’s our
               four basically [sic] divisions.


       Id. at 75-76.


[22]   Thirty-five laboratories in the United States use STRmix for casework. The

       laboratories include the FBI’s laboratory, the United States Army Criminal

       Investigation Laboratory, and the California Department of Justice.


[23]   The Lab trained Stur and other analysts on the new software program and

       asked them to reexamine prior cases to see if STRmix might deliver results

       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020   Page 7 of 20
       where prior testing had failed. In Smallwood’s case, Stur had four samples

       from the t-shirt, and each sample contained a mix of four contributors. She

       applied the STRmix program to the samples and compared the likely profiles

       generated by the program with known profiles from Smallwood, Williams,

       Davis, and Ivory, who by this time had submitted a DNA sample pursuant to a

       search warrant. Stur concluded:


               So those where [sic] the two propositions, either the profile
               originated from Keith Ivory and three unknown individuals, or
               that it originated [from] four unknown unrelated individuals.
               And on all four of those that were four person mixtures, it was at
               least a trillion times more likely if it originated from Keith Ivory
               and three unknown individuals than if it originated from four
               unknown individuals and that’s in that strong support group.


       Id. at 78. Smallwood, Davis, and Williams were all excluded as possible

       contributors to the DNA found on the t-shirt.


[24]   Stur also received swabs that were taken from the Taurus handgun that had

       been used to kill Smallwood. She applied the STRmix process to a swab that

       had collected genetic material from the trigger and compared the likely profiles

       with Ivory’s known profile, with the following results:


               [T]he swab of the trigger I interpreted it as originating from three
               individuals and the propositions were that the profile originated
               from Keith Ivory and two unknown individuals or that it
               originated from three unknown unrelated individuals. And that
               profile was 860 times more likely if it originated from Keith Ivory
               and two unknowns than if it originated from three unknowns.
               And this is in that moderate support range.

       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020      Page 8 of 20
       Id. at 79. She also analyzed genetic material found on the handgun’s grip using

       STRmix, and when compared with Ivory’s known sample, she discovered:

       “And that profile was 230 times more likely if it originated from Keith Ivory

       and one unknown than if it originated from two unknowns and this is also in

       that moderate support range.” Id. at 80.

[25]   Meanwhile, the police had obtained Ivory’s mobile phone number from

       Williams. Using a search warrant, they obtained Ivory’s call history and

       location records from his mobile phone service provider. The records showed

       that Ivory’s phone received a call at 3:10 p.m., when it was in the area of Po

       Boys, and made a call at 3:25 p.m., while it was still in the area of Po Boys.


[26]   During the summer of 2016, Ronald Nichols’ stepbrother, Jermon Gavin, spoke

       with Ivory. Ivory told Gavin “he was involved in what happened in front of Po

       Boys.” Id. at 137. Ivory further explained “[t]hat he had killed a guy. He shot

       him in the face, got it done clean, no face, no case, and that the guy had

       something to do with his sister dying.” Id. Next, Ivory told Gavin he had

       discarded a shirt and the handgun after the shooting.


[27]   On or about August 1, 2016, Ivory was staying with his friend Nichols. Ivory

       told Nichols he had killed Smallwood at Po Boys. Ivory further told Nichols

       that he had put his shirt over his head, approached Smallwood, and shot him

       multiple times before running away down an alley, disposing of the gun and his

       shirt along the way. Ivory explained “the murder weapon was in his wife’s

       name,” and he had instructed his wife to state, by way of an alibi, that the gun

       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020    Page 9 of 20
       had been “sold at a gun auction in Fort Wayne” before the murder. Tr. Vol. II,

       p. 167. Ivory further said he had been “waiting” to get Smallwood for his

       sister’s death. Id. at 169. Finally, Ivory told Nichols that if the police ever

       questioned him about the shooting, he would “tell them he was [at] a Muslim

       mass or something.” Id. at 179.


[28]   During a January 3, 2017 police interview, Ivory initially denied being in South

       Bend on the day of the shooting, claiming he had been in Michigan attending

       religious gatherings for the month of Ramadan. After being told there was

       video of him at Williams and Davis’ house on the day of the shooting, he

       agreed he could have been in the area on that day. When asked about the

       handgun, he told the officers he believed his wife had sold it at a gun show in

       Fort Wayne.


[29]   On January 5, 2017, the State charged Ivory with murder. During a January 7,

       2017 phone call from jail, Ivory told a person he was not going to “beat this.”

       Tr. Ex. Vol., State’s Ex. 300 at 1:40. He also told the person “guess you can’t

       get away with everything.” Id. at 2:53.


[30]   In early 2017, Anthony Huey was incarcerated with Ivory in the St. Joseph

       County Jail. Ivory told Huey “about the guy Bethel who apparently had killed

       his sister a few years back and he retaliated for it.” Tr. Vol. III, p. 199. Ivory

       further explained, “Bethel parked outside of Po Boys. That’s when [Ivory] ran

       up and shot him” with a “40 caliber Taurus.” Id. at 200. Ivory further said that

       he ran away from the scene and “threw the gun on top of a roof.” Id. Ivory


       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020     Page 10 of 20
       also told Huey that when he learned the police had found the gun, he was

       worried “because the gun was registered to his wife’s name.” Id. at 201. Ivory

       explained that he told his wife to tell officers “that she sold the gun at a gun and

       knife convention.” Id. Finally, Ivory mentioned to Huey that the police

       discovered he may have been involved in the shooting only after his mother

       reported him to the police after she had an altercation with Ivory’s wife.


[31]   Gavin and Ivory were also both incarcerated in the St. Joseph County Jail in

       2017. On one occasion, Ivory approached Gavin and told him to tell Nichols

       “to keep his mouth closed” about Ivory having guns. Id. at 139. Ivory also said,

       “the guy had something to do with his sister dying so he got his lick back

       something [sic].” Id. On another occasion, Ivory was angry at a person who

       was in Gavin’s cellblock, or pod. Ivory told Gavin, “[Y]ou need to tell him that

       I don’t play no games. I’m GD Elite and that I can get in touch, and did you

       see what I did in front of Po Boy?” Id. at 141.


[32]   During a March 23, 2017 call from jail, Ivory discussed with his wife the

       importance of encouraging witnesses to avoid subpoenas to testify. He

       explained that they would need to abandon their usual routines to avoid being

       found by the police and forced to appear to testify.


[33]   In June to August of 2017, Daniel Mallett was incarcerated in the same

       cellblock as Ivory. Ivory told Mallett that he had ambushed a man sitting in a

       car and shot him, and then threw the handgun on a roof. Ivory explained that




       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020     Page 11 of 20
       “the guy that got shot was dating his sister and that he used to beat on his

       sister.” Id. at 163.


[34]   Prior to trial, Ivory moved to exclude the State’s DNA evidence. The court

       held an evidentiary hearing and denied Ivory’s motion.


[35]   The court presided over a jury trial beginning on September 20, 2017, but that

       proceeding ended in a mistrial. The court presided over a second trial on

       August 27 through 31, 2018. The jury determined Ivory was guilty as charged.

       The court subsequently imposed a sentence, and this appeal followed.


                                     Discussion and Decision
                                   I. Sufficiency of the Evidence
[36]   Ivory does not dispute that Smallwood was murdered. He instead claims the

       State failed to prove beyond a reasonable doubt that he was the shooter.


[37]   In reviewing a sufficiency of the evidence claim, this Court neither reweighs the

       evidence nor assesses the credibility of the witnesses. Bruno v. State, 774 N.E.2d

       880, 882 (Ind. 2002). We instead look to the evidence and reasonable

       inferences drawn therefrom that support the verdict and will affirm the

       conviction if there is probative evidence from which a reasonable jury could

       have found the defendant guilty beyond a reasonable doubt. Ferrell v. State, 746

       N.E.2d 48, 50 (Ind. 2001). To convict Ivory of murder as charged, the State

       was required to prove beyond a reasonable doubt that (1) Ivory (2) knowingly

       or intentionally (3) killed Smallwood. Ind. Code § 35-42-1-1.


       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020   Page 12 of 20
[38]   Although motive is not a necessary element of the offense of murder, Ivory had

       a strong motive to kill Smallwood: he believed Smallwood was to some degree

       responsible for his sister’s death. Next, although Ivory initially told police that

       he was in Michigan when Smallwood was shot, at trial he conceded that he was

       in the neighborhood, within a block of Po Boys, at the time of the murder. His

       mobile phone data also revealed that he was in the area.


[39]   According to a ShotSpotter device, the shooting occurred just after 3:07 p.m. A

       security camera recording shows Ivory emerging from between two houses,

       down the alley from Po Boys, near that time. He approached Williams and

       Davis and briefly spoke with them before going back between the houses for a

       short time. When Ivory reemerged, he left an item on Williams and Davis’

       porch before leaving the area, shirtless. When Williams and Davis approached

       their house, Davis found a t-shirt on the porch, which Williams placed in the

       trash. Later, officers found a handgun in the gutter of the house. The handgun

       had been used to kill Smallwood.


[40]   Subsequent testing of the t-shirt and the handgun revealed that Ivory

       contributed genetic material to the DNA that was found on those items. The

       handgun was registered to Ivory’s wife, who claimed she had sold it at a gun

       show in Fort Wayne before the murder. At trial, Ivory admitted that it was “a

       pretty big coincidence” that his wife had owned the same gun that was used to

       kill Smallwood and had been discovered in the gutter of a house that Ivory had

       walked by right after the shooting. Tr. Vol. IV, p. 114.



       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020     Page 13 of 20
[41]   Nichols, Gavin, Huey, and Mallett testified that Ivory had confessed to

       shooting Smallwood. Finally, during phone calls from jail, Ivory had stated,

       “guess you can’t get away with everything.” Tr. Ex. Vol., State’s Ex. 300. In

       another call, he asked his wife to encourage witnesses to hide from the police so

       that they would not have to testify.


[42]   Ivory points to other evidence to argue: (1) he had stopped believing

       Smallwood was responsible for his sister’s death prior to the murder; (2) none of

       the witnesses in the neighborhood identified him as the shooter; (3) all of the

       witnesses who said he confessed to them had credibility problems; (4) the

       STRmix DNA testing program is unreliable; and (5) another person was the

       shooter. These arguments are requests to reweigh the evidence, which our

       standard of review forbids. The State presented sufficient evidence to sustain

       Ivory’s murder conviction.


                                 II. Admission of DNA Evidence
[43]   Ivory argues the trial court erred by admitting into evidence DNA test results

       related to the t-shirt and handgun, as described by forensic DNA analyst Shawn

       Stur. He claims the evidence was “confusing and misleading,” in violation of

       Indiana Evidence Rule 403. Appellant’s Br. p. 20. That rule provides: “[t]he

       court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,

       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.” Ind. Evid. R. 403.


       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020   Page 14 of 20
[44]   During trial, Ivory did not object to the DNA evidence under Rule 403. A

       failure to object when the evidence is introduced at trial waives the issue for

       appeal. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). A claim waived by a

       defendant’s failure to raise a contemporaneous objection can be addressed on

       appeal if the reviewing court determines that a fundamental error occurred. Id.


[45]   The fundamental error exception to the waiver rule is “extremely narrow.”

       Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). It applies only to “errors that

       are so blatant that the trial judge should have taken action sua sponte.” Knapp

       v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). Stated differently, “[t]he doctrine of

       fundamental error is available only in egregious circumstances.” Brown v. State,

       799 N.E.2d 1064, 1068 (Ind. 2003).


[46]   Ivory notes that the STRmix software program is relatively new, and he further

       claims the results in this case were of low statistical value and would confuse

       the jury. We disagree. The age of a DNA analytical procedure is not, itself, a

       reason to exclude evidence. See, e.g., Alcantar v. State, 70 N.E.3d 353, 358 (Ind.

       Ct. App. 2016) (no error in admitting evidence of DNA analysis used since

       1996; State presented evidence that analysis was scientifically reliable).


[47]   Further, Stur explained for the jury the basic steps of the DNA profiling process

       and how the STRmix program works within that process. She also described

       how the Lab educated and trained analysts on the program, and the steps she

       takes to avoid contaminating samples during the comparison process. Finally,

       Stur explained the Lab’s verbal scale to help jurors understand the Lab’s level of


       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020    Page 15 of 20
       confidence in the test results. There is ample evidence to support a conclusion

       that the probative value of DNA evidence outweighed any confusion or undue

       prejudice.


[48]   In any event, even if the DNA evidence should not have been admitted, the

       error was at worst harmless rather than fundamental. The improper admission

       of evidence is harmless error when the conviction is supported by substantial

       independent evidence of guilt sufficient to satisfy the reviewing court that there

       is no substantial likelihood that the questioned evidence contributed to the

       conviction. Bonner v. State, 650 N.E.2d 1139, 1141 (Ind. 1995).


[49]   The State presented ample evidence of Ivory’s guilt above and beyond the DNA

       results. Four people testified that Ivory admitted to killing Smallwood. There

       is no dispute that Ivory was within a block of Po Boys at the time of the

       shooting, and he had a deep grudge against Smallwood. The murder weapon

       was last registered in his wife’s name, and the police found it in a gutter near

       where Ivory had walked just after the shooting. In addition, a security camera

       recorded Ivory walking away from the scene, shirtless, after discarding his shirt

       on Williams and Davis’ front porch. Finally, during recorded telephone calls

       from jail he made incriminating remarks and asked his wife to encourage

       witnesses not to testify. This is substantial independent evidence sufficient to

       sustain a murder conviction beyond a reasonable doubt, and there is not a

       substantial likelihood that the admission of the DNA evidence, if erroneous,

       contributed to the guilty verdict.



       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020    Page 16 of 20
                                          III. Jury Instructions
[50]   Ivory argues the trial court committed several errors in the course of instructing

       the jury. He concedes that he did not object at trial to any of the jury

       instructions he challenges on appeal. As a result, his claims are waived on

       appeal unless he establishes that the trial court’s decisions “constituted

       fundamental error.” Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998); see also

       Indiana Rule of Criminal Procedure 8(B) (“No error with respect to the giving

       of instructions shall be available . . . on appeal, except upon the specific

       objections made . . . .”). The standard for fundamental error is set forth above.


[51]   Ivory first challenges the following final jury instruction:


               Direct evidence means evidence that directly proves a fact,
               without an inference, and which in itself, if true, conclusively
               establishes that fact.


               Circumstantial evidence means evidence that proves a fact from
               which an inference of the existence of another fact may be
               drawn.


               It is not necessary that facts be proved by direct evidence. Both
               direct evidence and circumstantial evidence are acceptable as a
               means of proof. A conviction may be based solely on
               circumstantial evidence.


       Appellant’s App. Vol. III, p. 9.


[52]   Ivory notes the instruction deviates from Indiana’s pattern jury instruction,

       which provides:

       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020       Page 17 of 20
               The parties in this case may prove a fact by one of two types of
               evidence—direct evidence or circumstantial evidence.


               Direct evidence is direct proof of a fact. Circumstantial evidence
               is indirect proof of a fact.


               For example, direct evidence that an animal ran in the snow
               might be the testimony of someone who actually saw the animal
               run in the snow. On the other hand, circumstantial evidence that
               an animal ran in the snow might be the testimony of someone
               who only saw the animal’s tracks in the snow.


               It is not necessary that any fact be proved by direct evidence.
               You may consider both direct evidence and circumstantial
               evidence as proof.


       2. Ind. Judges Ass’n, Ind. Pattern Jury Instructions-Criminal 12.01 (Matthew

       Bender 2019).


[53]   The preferred practice is to use pattern jury instructions. Gravens v. State, 836

       N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied. But “pattern jury

       instructions are not always upheld as correct statements of law.” Boney v. State,

       880 N.E.2d 279, 294 (Ind. Ct. App. 2008). trans. denied. Ivory does not argue

       that the trial court’s instruction, standing alone, misstated the law. The

       instruction in this case defines direct and circumstantial evidence similarly to

       the pattern instruction. We decline to find fundamental error in the giving of

       the instruction.


[54]   Next, Ivory argues the trial court erred in failing to instruct the jury on the

       doctrine of the “reasonable theory of innocence.” Appellant’s Br. p. 26. He
       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020      Page 18 of 20
       cites the Indiana pattern jury instruction on burden of proof, which provides, in

       relevant part: “In determining whether the guilt of the accused is proven

       beyond a reasonable doubt, you should require that the proof be so conclusive

       and sure as to exclude every reasonable theory of innocence.” 2 Ind. Judges

       Ass’n, Ind. Pattern Jury Instructions-Criminal 13.1.


[55]   The Indiana Supreme Court has determined that the jury should be instructed

       on the “reasonable theory of innocence” when the “defendant’s conduct

       required for the commission of a charged offense . . . is established exclusively

       by circumstantial evidence.” Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012).

       “Distinguishing between direct and circumstantial evidence as proof of a

       particular fact is a legal determination appropriate for judicial evaluation. It

       may require intricate legal analysis.” Id. at 489. A defendant’s confession of

       guilt to another person is direct evidence. Carr v. State, 728 N.E.2d 125, 131

       (Ind. 2000).


[56]   In this case, the State did not present a purely circumstantial case. Instead, the

       State provided testimony from Gavin, Nichols, Huey, and Mallett, all of whom

       stated that Ivory had confessed that he had shot a man outside Po Boys. As a

       result, the trial court was not obligated to instruct the jury on the “reasonable

       theory of evidence,” and Ivory has failed to establish fundamental error.


                                                  Conclusion
[57]   For the reasons stated above, we affirm the judgment of the trial court.


[58]   Affirmed.
       Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020    Page 19 of 20
Bradford, C.J., and Riley, J., concur.




Court of Appeals of Indiana | Opinion 18A-CR-2575 | February 20, 2020   Page 20 of 20
