MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 07 2020, 6:11 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Marielena Duerring                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE

    COURT OF APPEALS OF INDIANA

Dwight Neal,                                            May 7, 2020
Appellant/Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2296
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Hon. John M. Marnocha,
                                                        Judge
Appellee/Plaintiff.
                                                        The Hon. Julie Verheye,
                                                        Magistrate
                                                        Trial Court Cause Nos.
                                                        71D02-1812-F3-87
                                                        71D02-1107-FB-101



Bradford, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020                        Page 1 of 7
                                          Case Summary
[1]   In December of 2018, Dwight Neal and Shawn Fox discussed robbing a bank,

      which they subsequently did. The State charged Neal with two counts of

      robbery, and Fox testified at Neal’s jury trial that he had robbed the bank with

      Neal as his accomplice. Fox admitted that, by testifying against Neal, he was

      hoping to benefit in a federal case in which he was accused of committing other

      bank robberies. The trial court prevented Neal from questioning Fox regarding

      the details of the other alleged bank robberies. The trial court, however, did

      allow Neal to elicit testimony from Fox that he was generally aware of others

      testifying in exchange for benefits and that Fox himself had received such

      benefits in the past in exchange for cooperation with authorities.

[2]   The jury found Neal guilty of Level 5 felony robbery, and the trial court

      sentenced Neal to six years of incarceration for robbery, found that Neal had

      violated the terms of his probation in another case, imposed the twelve-year

      balance of Neal’s suspended sentence in the other case, and ordered the

      sentences to be served consecutively. Neal argues that the trial court denied

      him his constitutional rights to present a defense and confront the witnesses

      against him. Because we disagree, we affirm.


                            Facts and Procedural History
[3]   Sometime prior to December 18, 2018, Fox and Neal discussed robbing the

      Flagstar Bank in South Bend. On December 18, 2018, Neal and Fox went to

      the bank, and Neal waited in the vehicle while Fox entered the bank,



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 2 of 7
      approached a teller, displayed a gun, and demanded money. The teller gave

      Fox approximately $1300 from her drawer.

[4]   On December 26, 2018, the State charged Neal with Level 5 felony robbery and

      Level 3 felony armed robbery in cause number 71D02-1812-F3-87 (“Cause No.

      87”). On January 9, 2019, the State alleged that Neal had violated the terms of

      the probation imposed in cause number 71D03-1107-FB-101 (“Cause No. 101”)

      by, inter alia, committing the crimes charged in Cause No. 87.

[5]   Neal’s jury trial in Cause No. 87 was held on June 26 and 27, 2019. During

      direct examination by the State, Fox testified as to Neal’s participation in the

      robbery of the Flagstar Bank and acknowledged that he was hoping to receive a

      benefit in a pending federal case in exchange for his testimony. On cross-

      examination, Neal’s trial counsel asked Fox about the federal case, in which he

      was facing charges related to multiple other bank robberies. Neal attempted to

      question Fox about an interview Fox had had with a detective: “During the

      course of that interview he confronted you with information about a robbery

      that you committed at First Source Bank; is that correct?” Tr. Vol. IV p. 14

      The State objected on relevance grounds, and the trial court sustained the

      objection, disallowing further questioning about Fox’s participation in other

      bank robberies then being investigated. Neal made no offer of proof regarding

      the details of the alleged robbery of First Source Bank or any other alleged

      robbery. Neal did, however, establish that Fox hoped to get “a better plea

      [relating to] the periods of time [he was] facing” in that case by testifying

      against Neal. Tr. Vol. IV p. 17.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 3 of 7
[6]   Later, Neal’s trial counsel asked the trial court for permission to ask Fox if this

      was the first time Fox had testified against other persons. The State objected

      again on relevance grounds, which objection the trial court initially sustained.

      Neal’s trial counsel asked Fox if he was aware of other prisoners who had

      cooperated in trials against fellow prisoners in exchange for some kind of

      benefit and if this was the type of consideration he was hoping to achieve here,

      and Fox replied in affirmative. Neal’s trial counsel then asked Fox, “Is that

      based on any direct experience on your part?” Tr. Vol. IV p. 22. The State

      objected again, on the same relevance grounds, but this time, the trial court

      overruled the objection. Neal’s trial counsel proceeded to ask Fox if he had

      ever personally received benefits in the past in exchange for his testimony, and

      Fox acknowledged that he had received, in exchange for past cooperation, a

      reduction in the class of felony for which he was being charged in one case and

      a reduced sentence in more than one case. The jury found Neal guilty of Level

      5 felony robbery, and, on August 14, 2019, the trial court sentenced Neal to six

      years of incarceration for robbery in Cause No. 87, found that Neal had

      violated the terms of his probation in Cause No. 101 by committing robbery in

      Cause No. 87, imposed the twelve-year balance of Neal’s suspended sentence in

      Cause No. 101, and ordered the sentences to be served consecutively.


                                Discussion and Decision
[7]   Neal contends that the trial abused its discretion in disallowing cross-

      examination of Fox regarding the details of the robberies he was charged with

      committing in his federal case and his history of testifying in other criminal


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 4 of 7
      trials in exchange for benefits. “Whether rooted directly in the Due Process

      Clause of the Fourteenth Amendment or in the Compulsory Process or

      Confrontation clauses of the Sixth Amendment, the Constitution guarantees

      criminal defendants ‘a meaningful opportunity to present a complete defense.’”

      Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003) (quoting Crane v. Kentucky, 476

      U.S. 683, 690 (1986) (citation omitted)).

[8]   A defendant’s right to present a defense, while of the utmost importance, is not

      absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “[T]he accused,

      as is required of 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.” Chambers v. Miss., 410 U.S. 284, 302 (1973). Moreover,

      “the trial court has wide discretion to determine the scope of cross-examination,

      and only an abuse of discretion warrants reversal.” Seketa v. State, 817 N.E.2d

      690, 693 (Ind. Ct. App. 2004). An abuse of discretion occurs only where the

      trial court’s discretion is clearly against the logic and effect of the facts and

      circumstances before it, or if the court has misinterpreted the law. Wells v. State,

      904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. We view the

      circumstances in their totality and, without reweighing evidence and

      considering conflicting evidence most favorable to the trial court’s ruling,

      determine if there was substantial evidence of probative value to support the

      trial court’s ruling. Griffith v. State, 788 N.E.2d 835, 839 (Ind. 2003).

[9]   It is well-settled that “[t]here is always a question of the credibility of a witness

      when the testimony of that witness is relevant to the question of guilt.” Simpson


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 5 of 7
       v. State, 169 Ind. App. 619, 622, 333 N.E.2d 303, 304 (1975). Neal argues that

       the trial court abused its discretion in preventing him from exploring more fully

       the details of the charges in Fox’s federal case and his history of testifying in

       exchange for benefits. The State argues that the trial court’s rulings did not

       prevent Neal from adequately impeaching Fox. We agree with the State.

[10]   We conclude that Neal was able to adequately present the defense that Fox

       should not be believed because he hoped to benefit from his testimony against

       Neal and had received similar benefits in the past. During direct examination,

       the State established that Fox hoped to receive a benefit in his federal case by

       testifying against Neal. On cross-examination, Neal confirmed this, asking Fox

       if he was testifying in expectation of a benefit, to which Fox replied, “Yes.” Tr.

       Vol. IV 22. Neal was also able to introduce evidence regarding Fox’s

       experience that prisoners often testify against other prisoners in exchange for

       some kind of benefit. Finally, when Neal sought to introduce evidence related

       to Fox’s personal history as a witness in other cases—and the benefits he had

       received in exchange—the trial court also allowed this line of questioning after

       an initial denial. The jury had more than enough information to consider the

       possibility that Fox was fabricating his testimony against Neal in the hopes of

       reaping a benefit thereby, even though it ultimately rejected that possibility.

[11]   Neal unconvincingly focuses on two rulings by the trial court: the ruling that

       Neal could not question Fox about the specifics of other bank robberies for

       which he was then facing charges and the initial ruling that he could not be

       questioned about benefits received in exchange for prior cooperation in other



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 6 of 7
       cases. Neal does not explain how the details of other bank robberies might

       have helped him, and, in any event, he failed to make an offer of proof

       regarding those details, preventing any appellate review of the claim. “It is well

       settled that an offer of proof is required to preserve an error in the exclusion of a

       witness’ testimony.” Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). “An

       offer of proof allows the trial and appellate courts to determine the admissibility

       of the testimony and the potential for prejudice if it is excluded.” See id. Neal

       has waived any challenge to this first ruling for failure to make an offer of proof.

       See id. (“Dowdell’s failure to make an offer of proof waives any error in the

       exclusion of these witnesses.”). As for the second ruling that Neal could not

       question Fox about past cases in which he had received a benefit from

       cooperating with authorities, that initial ruling was reversed, and Neal was then

       allowed to explore the topic, which he did. Neal has failed to establish that the

       trial court denied him his due process rights to present a defense and/or

       confront the witnesses against him.

[12]   We affirm the judgment of the trial court.

       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2296 | May 7, 2020   Page 7 of 7
