MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                 Jun 17 2019, 8:54 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 APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven E. Ingalls, Jr.,                                  June 17, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1751
        v.                                               Appeal from the Morgan Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew G.
Appellee-Plaintiff.                                      Hanson, Judge
                                                         Trial Court Cause No.
                                                         55C01-1706-F1-1252



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019                      Page 1 of 24
                                             Case Summary
[1]   Following the homicide of his girlfriend’s five-year-old son, B.P., a jury found

      Steven E. Ingalls, Jr. guilty of Level 1 felony conspiracy to commit murder,

      Level 1 felony neglect of a dependent resulting in death, and Level 3 felony

      neglect of a dependent. He argues on appeal that, with regard to the conspiracy

      to commit murder conviction, the State failed to present sufficient evidence that

      he and his girlfriend, Meghan Price, had an agreement to kill B.P. He also

      claims that the trial court abused its discretion when it denied his request for a

      mistrial after the State failed to properly redact one of his recorded statements

      to police.


[2]   We affirm and remand.


                                   Facts & Procedural History
[3]   B.P. was born in June 2011 and suffered from a number of medical issues

      including a genetic condition called Fragile X chromosome syndrome, autism,

      impulse control disorder, anxiety, and obsessive-compulsive disorder. He

      experienced developmental delays, had limited vocabulary for a child his age,

      and sometimes exhibited self-harming behavior. B.P. also suffered from

      pulmonary aspirations, reflux, pediatric pulmonology, and gastrointestinal

      issues. B.P. was prescribed several psychotropic medications, which Price

      administered to him, including Sertraline, Clonidine, and Risperidone.


[4]   Ingalls and Price had been in a relationship since at least 2013, and Ingalls often

      stayed at Price’s apartment with her and B.P. Ingalls and Price have one child

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 2 of 24
      together, S.I., who was born in 2014. The record reflects that Ingalls had great

      disdain for B.P., viewing him as a burden and an annoyance. He also felt that

      B.P. interfered with his relationship with Price. On different occasions during

      B.P.’s life, he had injuries to his body including bumps, bruises, abrasions, a

      broken arm, and a broken leg. On several occasions, the principal where B.P.

      attended preschool reported the injuries to the Indiana Department of Child

      Services, who investigated but did not substantiate abuse. In November 2015,

      B.P was admitted to the hospital with headaches, congestion, extreme

      drowsiness, and a slow heart rate. About a year later, in November 2016, B.P.

      underwent a surgical procedure for an upper lip laceration, and that same

      month he went to the emergency room with breathing issues and was diagnosed

      with croup and possibly asthma.


[5]   Sometime after B.P. went to bed on November 22, 2016, he suffered trauma at

      the hands of one or more other individuals and died in his bedroom. On the

      morning of November 23, B.P. had blood and other bodily fluid around his

      mouth, and his upper lip, for which he had undergone surgery, was split open.

      At 10:13 a.m., Ingalls called 911 from Price’s apartment reporting an

      unconscious and unresponsive child that was not breathing. Emergency

      personnel arrived in less than two minutes. They found B.P. and Price on the

      stairs in the entryway to the apartment building. B.P. had no pulse and was not

      breathing. His skin was mottled, and his body was cold and already in a state

      of rigor mortis, indicating he had been deceased for some time.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 3 of 24
[6]   Ingalls was present at the scene when the first responders arrived. He was

      standing outside of the apartment building holding two-year-old S.I. As

      described by one emergency responder, Ingalls was “just kind of walking

      around, or standing there” and appeared as though “he might have been one of

      the neighborhood people.” Transcript Vol. IV at 228. Ingalls “didn’t really seem

      upset . . . he was just kind of there.” Id.


[7]   B.P. was transported by ambulance to the hospital as paramedics attempted to

      resuscitate him. Mooresville Police Department (MPD) Captain Brad Yarnell

      was going to transport Price to the hospital, but Price asked to return to her

      apartment first to get some shoes. MPD Detective Chad Richhart and Price’s

      neighbor, Tiffany Hall, accompanied Price back to the apartment. Detective

      Richhart stood in the doorway to her apartment and saw Price “running around

      the apartment” and heard “a lot of movement” in the back of the apartment.

      Transcript Vol. VII at 151-52. Hall went with Price to B.P.’s bedroom, where

      she saw Price climb up onto the top bunk of B.P.’s bed and “mov[e] things

      around.” Transcript Vol. VIII at 76. Hall saw a green pillow on top of the bunk

      bed and a wall-mounted camera above the bed. With regard to the camera,

      Hall saw Price “jostle it around, like she was getting something.” Id.


[8]   Once Price got her shoes, Captain Yarnell transported Price to the hospital and

      accompanied her inside. Detective Richhart transported Ingalls and S.I. to the

      hospital, but just dropped them off and returned to the apartment, where

      Detective Richhart conducted a “quick walkthrough” because, he explained,

      police did not know at that point “if there’s any other children in the home, any

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 4 of 24
       other people in the home” or “if this is a result of an injury, an illness” and had

       “no idea” what the situation was in the apartment. Transcript Vol. VII at 153-

       54. Inside B.P.’s bedroom, Detective Richhart observed an area on the floor

       saturated with blood, some blood along the top bedrail and on bedding, and

       blood on a floor rug. Captain Yarnell, still at the hospital, contacted Detective

       Richhart to confirm that B.P. was in fact deceased, and the two decided to open

       an investigation into B.P.’s death.


[9]    At Ingalls’s request, Detective Yarnell drove Ingalls from the hospital back to

       the apartment, where police were executing a search warrant on the residence.

       When Ingalls arrived back at the apartment, Detective Richhart asked Ingalls if

       he would agree to accompany him to the police station for an interview. Ingalls

       consented, and, in the interview, Ingalls described being in the apartment the

       night before, saying that B.P. went to bed as normal, but was found dead in the

       morning by Price. He indicated that he had no knowledge as to how B.P. died.


[10]   Meanwhile, during their search of the apartment, police found medications

       prescribed to B.P. In B.P.’s bedroom, they found red liquid stains that

       appeared to be blood spatter on the railing of the bunk bed and on some of the

       stuffed animals inside of a bin next to the bed. The presence and patterns of the

       blood spatter indicated to officers that the bleeding had been caused by some

       kind of trauma. Police saw what appeared to be blood stains on a blue rug and

       on the carpet. Police also found a green pillow, shaped as a character from the

       children’s television show Yo Gabba Gabba, on the ground in B.P.’s closet,

       propped up against a toy bin. The pillow had a red stain, which appeared to be

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 5 of 24
       blood, as well as a white stain. Police saw the wall-mounted video camera in

       B.P.’s bedroom and, at some point that day, Detective Richhart learned that the

       camera may have recorded video or sent information to an app on Price’s

       phone.


[11]   Price arrived back at the apartment about the same time as police were finishing

       their search. Detective Richhart approached Price in the parking lot and told

       her that police had found the video camera by B.P.’s bed and understood that it

       may have recorded information to an app on Price’s phone. He asked if he

       could have her permission to search her phone in order to view the footage

       from B.P.’s room. Price told him that she did not have her phone nor did she

       know where it was. Detective Richhart and another officer found it in her

       bedroom between the bed and the wall, although the phone’s battery was dead.


[12]   Detective Richhart took the phone to Price, who identified it as hers. The

       phone was charged in a car in which Price was sitting, and once it powered up,

       text messages and notifications began arriving. Richhart asked Price to give the

       phone to him, but Price told Richhart that she needed to check her text

       messages. Detective Richhart had “a great deal of difficulty getting the phone

       from [Price]” and she “was frantically doing stuff on her phone” for

       approximately twenty seconds, as he asked for her phone. Transcript Vol. VIII at

       88. Believing that Price may have been destroying evidence, Detective Richhart

       leaned in through the open passenger window and took Price’s phone from her.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 6 of 24
[13]   Shortly thereafter, police obtained a search warrant for Price’s phone. Data

       showed that on November 16, 2016, Price had conducted several internet

       searches for “risperidone overdose.” State’s Exhibit 155. Data analysis also

       revealed that at 2:10 p.m. on November 23, which was about the same time

       that Detective Richhart watched Price pressing the screen of her phone before

       handing it over to police, she had opened the app on her phone that was used to

       access surveillance video for the camera over B.P.’s bed.


[14]   An initial autopsy was conducted on November 23. The forensic pathologist

       observed that B.P. was “very thin and frail” and there were areas of blunt force

       trauma, including contusions to his face, mouth, and oral cavity. Transcript Vol.

       V at 148. B.P. had two black eyes, a hemorrhage near his nose, and injury to

       his lips. The presence of injuries to B.P.’s nostrils, the septum of his nose, and

       injuries to his upper and lower lip areas indicated that B.P. had been smothered

       by another individual and had died of asphyxiation. The forensic pathologist

       also found a secondary cause of death: “acute Sertraline, Clonidine, and

       Risperidone intoxication.” Id. at 173. Testing showed that the drugs Sertraline

       and Clonidine were present in B.P.’s blood at levels higher than the normal

       therapeutic level. The drug Risperidone was also found in B.P.’s blood, though

       at levels lower than the therapeutic level, but which could have been near the

       therapeutic range prior to his death.


[15]   Detective Richhart conducted a second interview with Ingalls on November 23.

       Ingalls confirmed that Price had given B.P. his medications on the night he

       died. Detective Richhart informed Ingalls that the preliminary results of B.P.’s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 7 of 24
       autopsy indicated that B.P. had died as a result of being suffocated. Ingalls

       denied harming B.P. After the interview, Detective Richhart obtained a

       warrant to search Ingalls’s phone, which revealed the following texts to Price in

       the days and weeks before B.P.’s death. In the early morning hours of October

       1, 2016, Ingalls sent a text to Price that stated, in part:


               [B.P.] needs a foot broken off in his ass to make up for his lack of
               basic intelligence. . . . No, he’s just a spoiled little retard running
               around disobeying the f*uck out of you and everybody else whos
               [sic] dumb enough to play into his games. . . . Put your foot up
               his ass and make him grow up a few years and stop sh*tting and
               bleeding on himself and then ill [sic] think about the slight
               possibility of not putting him down and beating him to the edge
               of his life.


       State’s Exhibit 136. Later in that evening, Ingalls sent Price a text message that

       stated, in part:


               Im [sic] sorry for getting so upset and going after [B.P.] I dont
               know how to handle him, maybe its [sic] for the better I stay
               away from him but that’s what makes me hate him. He’s always
               coming between me and you. Even when Im [sic] not around
               hes [sic] always causing stress and I have really low patience with
               it bc I just want it to end and it only gets worse as he gets older.
               Idk.


       State’s Exhibit 156. On October 15, 2016, Ingalls texted Price that “instead of an

       asswhooping[,]” B.P. gets “babied” and uses “his condition to take advantage”

       of Price but she is “too blind” to see it. Id.


[16]   On November 12, 2016, Ingalls sent the following text message to Price:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 8 of 24
        I hate your son, he is nothing but a troublemaking worthless
        excuse for a retarded [sic] down to his DNA core malnutritioned
        ugly shouldve [sic] been cum stain that needs to rot in a mental
        institution playing with his own feces and pissing on himself
        while the nursing staff beats him until he’s deaf dumb and
        motionless. I want to buy a ticket to the moment he takes his last
        breath, so I can be the last thing he sees as i [sic] rip his jawbone
        off of his face and personally cut his brainstem in half just to
        make sure not one more stupid f*cking thought processes in his
        two-celled f*cking brain. He’ll never have a dad [because] no
        one in their right f*cking mind will ever stay around more than
        5minutes [sic] around that f*cked up kid that cant [sic] go 2 days
        without bashing his own face into hamburger against whatever
        he can so mommy will love on him. Lol, kill him while he’s
        young and do something with your life before he robs you of any
        chance of ever being happy or being anything other than a stay at
        home retard caretaker.


Id. A few minutes later, Ingalls texted the following to Price:


        He’s not ruining my life, Ill [sic] run for the f*cking hills before i
        [sic] stay stressed my entire life or kill him in such a violent way
        that the news cant [sic] even describe the scene without throwing
        up. Im [sic] not going to prison over that little scrawny hand-
        flapper.


State’s Exhibit 136. A couple hours later, he texted Price:


        This is exactly why I hate him and want him gone. If it wasnt
        [sic] for him there would just be [S.I.], life would be happy and
        you wouldnt [sic] be stuck at home your whole life going nuts
        and to the doctor twice a day. And I wouldn’t have to hear him
        screaming all day and night and looking at a kid whos [sic]
        bashing his face in onna [sic] daily basis for attention with blood
        and meat hanging from his f*cking face.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 9 of 24
       Id.


[17]   The search of Ingalls’s phone also showed that he had conducted the following

       internet searches between October 17 and November 16, 2016: “kill my

       mentally retarded step son” (October 17); “what’s the highest fall a human can

       survive” (October 18); “beat child fragile x abuse” (October 18); “most painful

       ways to die” (October 19); “most painful torture” (October 19); “I want to kill

       my autistic child” (October 21); “untraceable poison” (October 22); “can get

       brain damage from suffocation” (October 27); “injuries that cause long term

       excruciating pain” (November 1); “why do I violently beat my autistic child”

       (November 3); “homicide by disease” (November 9); “why do I hate my

       disabled child” (November 12); “can I rip the jaw off a human?” (November

       12); “autistic son shot” (November 12); “risperidone overdose difficulty

       breathing” (November 16). State’s Exhibit 141; Transcript Vol. VI at 102.


[18]   Ingalls was interviewed by police again on December 2. Ingalls brought with

       him a typed timeline of events measured “down to the minute,” which

       Detective Richhart said he did not ordinarily see during interviews. Transcript

       Vol. VIII at 175. Ingalls stated in the interview that Price knew about the above-

       mentioned internet searches. Ingalls was interviewed again on December 4,

       after Ingalls contacted Detective Richhart and asked to meet with him. Ingalls

       told Detective Richhart that, at some point after B.P. died, he learned from

       Price that she had moved the Yo Gabba Gabba green pillow from B.P.’s top

       bunk to the closet, which she did when she went into the apartment to get her

       shoes before going to the hospital. He also said that Price told him she was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 10 of 24
       “scared” about what toxicology testing would reveal because she may have

       “overdosed [B.P.] with Clonidine.” State’s Exhibit 188B at 11.


[19]   The investigation into B.P.’s death continued through early 2017, and included

       a series of interviews with neighbors, family, school personnel, and medical

       providers. Detective Richhart received a final autopsy report on February 1,

       2017, which confirmed that B.P.’s manner of death was a homicide and that his

       cause of death was asphyxiation. The placement of the stains on the Yo Gabba

       Gabba pillow, when compared to the trauma around B.P.’s nose and mouth,

       suggested to police that he was smothered with that pillow.


[20]   In late June 2017, police arrested Ingalls for the murder of B.P. The arrest

       occurred at Price’s apartment, and Price was present at the time. As Ingalls was

       being taken into custody, Detective Richhart saw Ingalls make eye contact with

       Price and say to her, “[S]tick to the plan.” Transcript Vol. VIII at 185.


[21]   On June 23, 2017, the State charged Ingalls with Level 1 felony conspiracy to

       commit murder (Count I); Level 1 felony neglect of a dependent resulting in

       death (Count II); and Level 3 felony neglect of a defendant resulting in serious

       bodily injury (Count III). 1 Ingalls filed a motion in limine pursuant to Ind. Rule




       1
         Price was charged with Level 1 felony conspiracy to commit murder, Level 1 felony neglect of a dependent
       resulting in death, and Level 3 felony neglect of dependent resulting in serious bodily injury. Prior to trial,
       the State dismissed the conspiracy charge. A jury found Price guilty of the remaining charges. The trial
       court merged the Level 3 felony neglect conviction into the Level 1 felony neglect conviction and sentenced
       Price to a term of thirty-six years in the DOC. This court affirmed her conviction. Price v. State, 119 N.E.3d
       212 (Ind. Ct. App. 2019).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019                     Page 11 of 24
       Evid. 404(b), asking for exclusion of evidence of Ingalls’s “involvement with

       and/or use of drugs including but not limited to the fact that he was undergoing

       Methadone treatment at the time of the offense[.]” Appellant’s Appendix Vol. 2 at

       118. On April 19, 2018, the trial court entered an order instructing the State to

       redact certain references to prior bad acts committed by Ingalls under Evid. R.

       404(b), including references to the word “methadone” contained in his

       statement to Detective Richhart. Id. at 239.


[22]   The two-week jury trial began on May 14, 2018. The State presented evidence

       as discussed above. During Detective Richhart’s testimony, the State played

       the video recording of Ingalls’s first interview with Detective Richhart, which

       occurred about 11:30 a.m. on November 23. In it, Ingalls described that he got

       up at 6:30 a.m. or so, left the home in the morning to visit a health clinic, where

       he goes every day at 7:30 a.m., returned about 8:30 a.m. and got breakfast for

       S.I., and that later, closer to 10:00 a.m., Price woke up and, when she went to

       wake B.P., found him dead in bed. Ingalls said that he came into the room and

       did see some blood on B.P.’s face, but that that was not unusual because B.P.

       sometimes hit his head or face. Ingalls said he picked up B.P., who was cold

       and stiff, and brought him to the floor, where he said he and Price attempted

       CPR. He then called 911, and Price carried B.P. to the entryway of apartment

       building. Referring to B.P., Ingalls stated, “I love the kid. I always have. I

       always accepted him.” State’s Exhibit 152A at 66. After the interview

       concluded, Detective Richhart drove Ingalls back to the apartment. He recalled

       at trial that, while in the car, Ingalls stated, “I always wondered what life would


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 12 of 24
       be like if something like this happened[,]” which statement struck Detective

       Richhart as “very odd.” Transcript Vol. VIII at 85.


[23]   Regarding the “health clinic” that Ingalls had gone to that morning, the

       discussion with Detective Ingalls included the following:


               INGALLS: I go to the health clinic every morning.


               DETECTIVE: Uh-huh.


               INGALLS: Um, I got to be there at 7:30 to 8:15. So I went there
               and came back, um, I got there about 8:35. [REDACTED].


               DETECTIVE: Gotcha. You get to go every day?


               INGALLS: Yeah, pretty much every day, um, unless I don’t
               want to that day, but usually I, that’s where I get my medication.


               DETECTIVE: Gotcha. Is it methadone?


               INGALLS: Methadone, yeah. So I’ve been on that for about
               two years.


       State’s Exhibit 152 at 00:27:13-00:27:39. Thereafter, out of the jury’s presence,

       Ingalls moved for a mistrial because the references to “methadone” were

       admitted over the trial court’s prior order in limine. The trial court expressed

       its frustration with the State for its failure to follow the order, but after taking

       the matter under advisement, the court denied Ingalls’s motion, stating:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 13 of 24
               I had to go back and do research, and obviously, my interns
               helped me out on this. And it’s close. And it’s something out
               there now that there .. the .. the State has thrown out there,
               which could easily be appealable. . . . It is pretty large. With
               that being said, there are remedies, over objection obviously.
               The mistrial (inaudible), the Court is going to deny that at this
               point in time. However, I want you to give [an] in limine
               instruction initially that basically reads, ladies and gentlemen,
               before our lunch break the word was discussed in the video [that]
               should not have been included. This Court has ordered a redact
               [sic] to that. Any discussion or use of the word methadone, the
               State negligently and irresponsibly failed to redact the video
               outside of this Court’s order. This discussion of methadone is
               not admissible evidence. You will not make any reference to this
               word or have any discussion about this word from this point
               forward. Mr. Lidy [counsel for Ingalls], I’m going to give you
               the absolute right to tell me you want more, you want less. I
               have to give [an] in limine instruction. That’s the only possible
               way to “remedy” this the best I can at this point over your
               objection.


       Transcript Vol. VII at 178-79. While Ingalls’s counsel disagreed that an

       instruction could cure the problem, he declined the court’s offer to provide any

       further limiting instructions. The trial court confirmed, “so I’m going to read

       the instruction[,]” but again offered, “I know you don’t agree with it, but it is

       what it is. And if you want me to say something different, you let me know.”

       Id. at 182.


[24]   The court then gave the following admonishment to the jury with regard to

       Exhibit 152:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 14 of 24
                I need to read an instruction that has been put together by the
                Court. So please listen closely. Ladies and gentlemen, before our
                lunch break, a word was discussed in the video that should not
                have been included. This Court had ordered to redact any
                discussion or use of the word methadone. The State negligently
                and irresponsibly failed to redact the video to coincide with this
                Court’s orders. This discussion of methadone is not admissible
                evidence. You will not make any reference to this word or have
                any discussion about this word from this point forward.


       Id. at 184-85.


[25]   Following the State’s presentation of evidence, Ingalls moved for a directed

       verdict on all three counts, which the trial court denied. Ingalls presented his

       witnesses and evidence, and the jury thereafter found Ingalls guilty as charged.

       The trial court sentenced Ingalls to thirty-nine years in the Indiana Department

       of Correction on Count I, conspiracy to commit murder. 2 Ingalls now appeals.




       2
         The State notes, and we acknowledge, some discrepancy between the trial court’s sentencing order and the
       abstract of judgment. The trial court’s written sentencing order, as well as its oral statements at the
       sentencing hearing, reflect that the trial court intended to merge the two neglect convictions (Counts II and
       III) into the conspiracy conviction (Count I), and the court sentenced Ingalls to thirty-nine years on Count I.
       Transcript Vol. X at 18; Appellant’s Appendix Vol. III at 221. The abstract of judgment, however, reflects
       convictions on Counts I, II, and III and concurrent sentences of thirty-nine years for each. Appellant’s
       Appendix Vol. III at 222. We remand to the trial court with instructions to correct the abstract of judgment
       and vacate Counts II and III.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019                     Page 15 of 24
                                          Discussion & Decision

                                   I. Sufficiency of the Evidence
[26]   Ingalls claims that the evidence was insufficient to support his conviction for

       conspiracy to commit murder. 3 Our standard of review for sufficiency claims is

       well settled. Dickenson v. State, 835 N.E.2d 542, 551 (Ind. Ct. App. 2005), trans.

       denied. We do not reweigh the evidence or assess the credibility of witnesses.

       Id. We look to the evidence and the reasonable inferences to be drawn

       therefrom that support the verdict. Id. We will affirm the convictions if there is

       sufficient probative evidence from which a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Id. at 552.


[27]   To convict Ingalls of conspiracy to commit murder, the State had to prove that

       (1) with intent to commit murder, (2) Ingalls and Price entered into an

       agreement to commit murder, and (3) either Ingalls or Price performed an overt

       act in furtherance of the agreement. Ind. Code § 35-41-5-2. Ingalls challenges

       only the second element, contending that “[t]he State failed to prove that [he]

       and Price had an agreement to kill B.P.” Appellant’s Brief at 14. We disagree.


[28]   The State is not required to establish the existence of a formal express

       agreement to prove a conspiracy. Dickenson, 835 N.E.2d at 552. It is sufficient




       3
        Ingalls also challenges the sufficiency of the evidence for the neglect of a dependent convictions. Because
       we find that the trial court merged the neglect of a dependent convictions into the conspiracy to commit
       murder convictions, after finding that they were “all the same event,” we do not reach Ingalls’s arguments
       concerning the neglect convictions. Transcript Vol. X at 17.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019                    Page 16 of 24
       if the minds of the parties meet understandingly to bring about an intelligent

       and deliberate agreement to commit the offense. Weida v. State, 778 N.E.2d

       843, 847 (Ind. Ct. App. 2002). “‘The agreement as well as the requisite guilty

       knowledge and intent may be inferred from circumstantial evidence alone,

       including overt acts of the parties in pursuance of the criminal act.’” Erkins v.

       State, 13 N.E.3d 400, 407 (Ind. 2014) (quoting Survance v. State, 465 N.E.2d

       1076, 1080 (Ind. 1984)).


[29]   Here, the State presented evidence that Ingalls had great disdain for B.P. and

       resented the attention that B.P. required due to his health issues and special

       needs. In the weeks prior to B.P.’s death, Ingalls texted Price that he “hate[d]”

       B.P. and wanted him “gone” so that B.P. would no longer come between them.

       State’s Exhibit 136. Ingalls suggested the following to Price: “[K]ill [B.P.] while

       he’s young and do something with your life before he robs you of any chance of

       ever being happy or being anything other than a stay at home retard caretaker.”

       State’s Exhibit 156. Ingalls advised Price that “[B.P.]’s not ruining my life” and,

       instead, Ingalls would either “run for the f*cking hills” or “kill [B.P.] in such a

       violent way that the news cant [sic] even describe the scene without throwing

       up.” State’s Exhibit 136. Ten days before B.P.’s death, Ingalls texted Price that

       he wanted to “buy a ticket” to the moment when B.P. “takes his last breath” so

       that Ingalls would be the last thing that B.P. would see “as [Ingalls] rip[s]

       [B.P.s’] jawbone off of his face and personally cut his brainstem in half just to

       make sure not one more stupid f*cking thought processes in his two-celled

       f*cking brain.” State’s Exhibit 156. Despite receiving these messages from


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 17 of 24
       Ingalls, directly stating that he wanted to violently kill B.P., Price neither ended

       her relationship with Ingalls, nor contacted police.


[30]   The State also presented evidence that, on November 16, which was just days

       before B.P. died, Price and Ingalls each conducted a “risperidone overdose”

       search on their respective cell phone. State’s Exhibits 141, 155. In addition,

       Ingalls conducted a number of searches on his phone, including the following

       between October 17 and November 16, 2016: “kill my mentally retarded step

       son”; “beat child fragile x abuse”; “I want to kill my autistic child”; “can get

       brain damage from suffocation”; “can I rip the jaw off a human?” State’s

       Exhibit 141; Transcript Vol. VI at 102. Ingalls told police that Price knew about

       those searches.


[31]   When emergency personnel were taking B.P. away in an ambulance and

       attempting to resuscitate him, Price went back into the apartment to get her

       shoes. However, Price did not just run into the apartment for her shoes; she

       was observed by her neighbor, Hall, climbing on the top bunk, where B.P. slept,

       rummaging around in the bedding, and handling the camera that was

       positioned over B.P.’s bed. The camera recorded or was capable of recording

       footage to an app on Price’s phone. Later that day when police asked Price for

       her phone, she was reluctant to turn it over, and instead she checked messages

       and accessed the app with the possible video footage of B.P.’s bed. According

       to Ingalls, Price moved the green Yo Gabba Gabba pillow, which police

       believed was used to smother B.P., from B.P.’s bed to the closet. Toxicology

       testing revealed that a secondary cause of death was intoxication from

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 18 of 24
       Sertraline, Clonidine, and Risperidone, and Price was the person who had

       administered the medications to B.P. before he went to bed on November 22.


[32]   The State argues, and we agree, “The jury was not required to accept the timing

       of these events as mere coincidence.” Appellee’s Brief at 29. Rather, the jury

       “could infer from Ingalls’[s] and Price’s concerted actions that the two had

       entered into an agreement to kill Price’s young son.” Id. Notably, as Ingalls

       was being arrested months later, Ingalls told Price to “stick to the plan.”

       Transcript Vol. VIII at 185. From the evidence presented at trial, the jury could

       have inferred that Ingalls and Price entered into an agreement to murder B.P.


                                       II. Request for Mistrial
[33]   Ingalls claims that the trial court should have granted his request for a mistrial,

       which he made after the State failed to redact the word methadone from

       Ingalls’s first interview with Detective Richhart, as it had been ordered to do

       prior to trial. “A mistrial is an ‘extreme remedy in a criminal case which

       should be granted only when nothing else can rectify a situation.’” Suding v.

       State, 945 N.E.2d 731, 737 (Ind. Ct. App. 2011) (quoting Francis v. State, 758

       N.E.2d 528, 532 (Ind. 2001)), trans. denied. To prevail in seeking a mistrial, the

       defendant must show he was placed in a position of grave peril to which he

       should not have been subjected. Id. The gravity of the peril is determined by

       the likely persuasive effect the error had on the jury’s decision. Id. “A timely

       and accurate admonition is presumed to cure any error in the admission of

       evidence, . . . so reversible error will seldom be found if the trial court has


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 19 of 24
       admonished the jury to disregard a statement made during the proceedings.”

       Id. (citing Owens v. State, 937 N.E.2d 880, 895 (Ind. Ct. App. 2010) and Warren

       v. State, 757 N.E.2d 995, 999 (Ind. 2001)).


[34]   This Court reviews the denial of a motion for mistrial for an abuse of discretion.

       Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). “A trial court is in the best

       position to evaluate whether a mistrial is warranted because it can assess first-

       hand all relevant facts and circumstances and their impact on the jury.” Id.; see

       also Suding, 945 N.E.2d at 737 (trial court’s decision “is afforded great deference

       because the judge is in the best position to gauge the surrounding circumstances

       of an event and its impact on the jury”).


[35]   Here, Ingalls had filed a motion in limine to exclude evidence of Ingalls’s use of

       drugs “including but not limited to the fact that he was undergoing Methadone

       treatment at the time of the offense[.]” Appellant’s Appendix Vol. 2 at 118. The

       trial court granted the request and ordered the State to redact any reference to

       the word methadone. However, when the State played the videotape of

       Detective Richhart’s first interview with Ingalls to the jury, Exhibit 152, the

       word had not been redacted. Specifically, after Ingalls stated that he had been

       to a health clinic on the morning B.P. was found deceased, the following

       exchange occurred:


               DETECTIVE: Gotcha. You get to go every day?


               INGALLS: Yeah, pretty much every day, um, unless I don’t
               want to that day, but usually I, that’s where I get my medication.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 20 of 24
                DETECTIVE: Gotcha. Is it methadone?


                INGALLS: Methadone, yeah. So I’ve been on that for about
                two years.


       State’s Exhibit 152. 4


[36]   After the video concluded, and out of the jury’s presence, Ingalls requested a

       mistrial. The trial court expressed its frustration and displeasure with the

       State’s inadvertent inclusion of the word in the video recording, but following

       argument, discussion, and a recess, it denied Ingalls’s motion. The court then

       gave the following admonition to the jury:


                I need to read an instruction that has been put together by the
                Court. So please listen closely. Ladies and gentlemen, before
                our lunch break, a word was discussed in the video that should
                not have been included. This Court had ordered to redact any
                discussion or use of the word methadone. The State negligently
                and irresponsibly failed to redact the video to coincide with this
                Court’s orders. This discussion of methadone is not admissible
                evidence. You will not make any reference to this word or have any
                discussion about this word from this point forward.




       4
        We note that State’s Exhibit 152A was a transcript of the video, a copy of which the jurors received as the
       video was being played. The transcript was properly redacted and did not include the word methadone.
       State’s Exhibit 152A at 42.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019                   Page 21 of 24
       Transcript Vol. VII at 184-85 (emphasis added). Prior to giving the admonition,

       the trial court gave Ingalls the opportunity to review it and, further, repeatedly

       asked if Ingalls wanted to add or change anything. Ingalls declined.


[37]   Ingalls acknowledges that a timely and accurate admonition is presumed to

       cure any error in the admission of evidence, but argues that the court’s

       admonition did not do so here for a couple of reasons. Initially, he argues that

       “[e]ven though the jury heard only a single mention of the methadone clinic,

       Ingalls talked about going to the clinic in several of his statements to police”

       and “[t]he jury would have known precisely what clinic he was referring to and

       why he was going there for treatment[,]” and this “placed Ingalls in grave

       peril.” Appellant’s Brief at 19-20. We disagree that the mention of methadone in

       the recorded interview placed Ingalls in grave peril.


[38]   As stated, the gravity of the peril is assessed by considering the likely persuasive

       effect the error had on the jury’s decision. West, 758 N.E.2d at 56. Here, there

       was considerable evidence implicating Ingalls in B.P.’s death and

       demonstrating that he and Price conspired to get rid of her son. The jury

       viewed Ingalls’s four interviews with police, they saw his disturbing texts from

       Ingalls to Price about violently killing B.P., they saw the many internet searches

       in the weeks prior to B.P.’s death, which included death by suffocation and

       risperidone overdose. By the time that Exhibit 152 was played, the jury had

       already heard from over twenty-five witnesses, including the medical examiner

       who testified that B.P., while in his bed, had been smothered by another person

       and that a secondary cause of death was intoxication from his prescription

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 22 of 24
       medications. The jury thereafter heard testimony from an additional fifteen

       State’s witnesses and over a dozen defense witnesses. The reference to

       methadone in Exhibit 152 was minimal in the context of the entire trial, and the

       evidence of guilt was substantial. The reference to methadone did not render

       Ingalls’s trial fundamentally unfair.


[39]   Ingalls also argues that the court’s admonition to the jury did not cure the error

       because it “only stated that the jury could not ‘make any reference to

       [methadone] or have any discussion about this word from this point forward’”

       but did not instruct the jury “that it could not consider evidence of Ingalls’[s]

       treatment for a drug addiction.” Appellant’s Brief at 19 (quoting court’s

       admonition read to jury at Transcript Vol. VII at 185). To the extent that this

       argument is asserting that the language of the admonition should have been

       different, we reject his claim. As an initial matter, we find that effectively there

       is little distinction between what the admonishment said and what Ingalls now

       wants because, if the jurors were precluded from having “any discussion about”

       Ingalls’s use of methadone during deliberations, then the jury as a group

       necessarily could not “consider” it. Appellant’s Brief at 19. However, even if the

       admonishment was deficient, Ingalls invited the error. That is, if Ingalls was

       not satisfied with the admonishment as written, and wanted it to say that the

       jury “may not consider” the reference to methadone, he had multiple

       opportunities to request that change, but declined. A party may not take

       advantage of an error that he invites. Brewington v. State, 7 N.E.3d 946, 975

       (Ind. 2014).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 23 of 24
[40]   We conclude that here, where the trial court promptly admonished the jury that

       the State had erroneously failed to redact the word methadone from the video,

       that anything about methadone was not admissible evidence and that the jury

       was not to discuss methadone going forward, the trial court cured the improper

       evidence with its admonition. Accordingly, the trial court did not abuse its

       discretion by denying Ingalls’s motion for mistrial.


[41]   We affirm Ingalls’s conviction for conspiracy to commit murder and remand

       with instructions to correct the abstract of judgment.


[42]   Judgment affirmed and remanded.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1751 | June 17, 2019   Page 24 of 24
