      MEMORANDUM DECISION                                                     FILED
                                                                          Jul 12 2016, 8:25 am
      Pursuant to Ind. Appellate Rule 65(D), this
                                                                              CLERK
      Memorandum Decision shall not be regarded as                        Indiana Supreme Court
                                                                             Court of Appeals
      precedent or cited before any court except for the                       and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Brandon E. Murphy                                      Gregory F. Zoeller
      Public Defender’s Office                               Attorney General of Indiana
      Muncie, Indiana
                                                             Eric P. Babbs
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Regina N. Miller,                                          July 12, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A02-1511-CR-1938

              v.                                                 Appeal from the Delaware Circuit
                                                                 Court
      State of Indiana,                                          The Hon. Linda Ralu Wolf, Judge
                                                                 Trial Court Cause No. 18C03-1112-
      Appellee-Plaintiff.
                                                                 FC-41




      Bradford, Judge.



                                            Case Summary
[1]   In early December of 2011, Appellant-Defendant Regina Miller was in a

      relationship with Terry Rutledge. On the morning of December 2, 2011,

      Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016        Page 1 of 21
      Rutledge met up with Tonia Ingram, and the duo were later videotaped

      together on a city bus, at a Walmart store, and at a Target store, with the last

      recording occurring at around 1:00 p.m. Meanwhile, Miller had gone to work

      and, at around 3:30 p.m., received a text message from Rutledge indicating that

      he needed help and wanted Miller to secure a truck.


[2]   That evening, Rutledge, Miller, and Miller’s friend Erin Harman went out.

      During the early morning of December 3, 2011, Antowyn Warren met

      Rutledge at a bar in Muncie. A little after 3:00 a.m., Rutledge, Miller, and

      Warren returned to Miller’s house, where Ingram’s dead body lay in the

      basement. Ingram had died of asphyxia from neck compression. The trio

      moved Ingram’s body upstairs.


[3]   At approximately 7:45 a.m., Muncie Police were dispatched to the scene of

      Ingram’s body on fire alongside the road. At approximately 10:00 a.m., Miller

      sent a text message to Kayleigh Rowe, her son’s girlfriend who had spent the

      night at Miller’s, telling her to leave and come to Miller’s friend’s house. Miller

      told Rowe when she arrived that Rutledge and three other men had killed a

      woman in Miller’s basement. At approximately 11:00 a.m., Miller arrived at

      Muncie City Hall and spoke with police. Miller admitted to police that she had

      helped Rutledge transport, dispose of, and burn Ingram’s body.


[4]   Appellee-Plaintiff the State of Indiana charged Miller with Class C felony

      assisting a criminal and Class D felony obstruction of justice. Over the next

      couple of years, both the State and Miller moved for several continuances. In


      Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 2 of 21
      November of 2014, Miller moved for discharge pursuant to Indiana Rule of

      Criminal Procedure 4, which the trial court denied. This court declined to

      accept jurisdiction over Miller’s interlocutory appeal. In September of 2015, a

      jury trial was held. During trial, the trial court admitted several text messages

      sent or received by mobile telephones connected with Miller. After the trial

      court quashed Miller’s subpoena of Rutledge, Miller offered a police officer’s

      testimony that Rutledge had told him that he had threatened to harm Miller if

      she did not help dispose of Ingram’s body. The trial court instructed the jury on

      Miller’s defenses of duress and necessity, which nonetheless found Miller guilty

      as charged. Miller contends that the trial court erred in denying her motion for

      discharge, failed to comply with relevant statutes in quashing her subpoena of

      Rutledge, and abused its discretion in admitting certain text messages. Miller

      also contends that her convictions for assisting a criminal and obstruction of

      justice violate prohibitions against double jeopardy. Because we find Miller’s

      double jeopardy argument to have merit, we affirm in part, reverse in part, and

      remand with instructions.



                            Facts and Procedural History
                                      I. Facts of the Crimes
[5]   In the fall of 2011, Miller rented a house on North Hackely Street in Muncie

      and was involved in a relationship with Rutledge. Miller’s son was in a

      relationship with Rowe. On the morning of December 2, 2011, Rutledge met

      up with Ingram, and the duo were videotaped together on a city bus, at a

      Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 3 of 21
      Walmart store, and at a Target store, with the last recording occurring at 1:11

      p.m. Meanwhile, Miller had gone to work at a diner and was expecting to

      leave work around 6:00 p.m.


[6]   At approximately 7:00 to 7:30 p.m., Miller, Harman, and Rutledge were at

      Miller’s house, planning on going out for the evening. During the early

      morning hours of December 3, 2011, Warren met Rutledge at a Muncie bar,

      where an employee also saw Miller at approximately 2:45 a.m. At

      approximately 3:00 a.m., Harman saw Miller getting into her vehicle with

      Rutledge.


[7]   Miller, Rutledge, and Warren ended up back at Miller’s house. The trio went

      downstairs to the basement, where Ingram’s dead body lay, and moved it

      upstairs. Miller helped Rutledge to clip Ingram’s fingernails, partially strip

      Ingram’s body, wrap it in plastic, load it into an SUV that Miller had borrowed,

      and drive around in search of a place to dispose of the body. At approximately

      7:45 a.m., Muncie Police were dispatched to the intersection of Gavin and

      Bunch Roads, where Ingram’s body was on fire. It was determined that Ingram

      had suffered some trauma to her head but had died of asphyxiation due to neck

      compression.


[8]   At approximately 10:00 a.m., Miller sent a text message to Rowe, who had

      spent the night at Miller’s house, demanding that she leave and come over to

      Miller’s friend’s house. When Rowe arrived at the friend’s house, Miller told

      her that Rutledge and three other men had killed a women in her basement.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 4 of 21
       Miller also told Rowe that Rutledge had told her, “this is what happens when

       b****** talk[.]” Tr. p. 431.


[9]    At approximately 11:00 a.m., Miller arrived at City Hall to speak with police.

       Miller admitted to police that she had helped Rutledge clip Ingram’s fingernails,

       partially strip Ingram’s body, wrap it in plastic, load it into the SUV, drive

       around in search of a place to dispose of the body, and drive Rutledge to the

       BMW Club to dispose of some bloody clothing. Police collected from Miller a

       pair of rubber gloves and a sweatshirt with blood on the sleeves. DNA

       collected from the items matched Ingram’s or had a major profile which

       matched that of Ingram’s. Fingernail clippings found in the basement of

       Miller’s home and material collected from a rubber glove found in the kitchen

       matched Ingram’s DNA profile. A purse found in a trash tote in front of

       Miller’s house contained personal belongings of Ingram, including an

       identification card.


                                      II. Procedural History
[10]   On December 9, 2011, the State charged Miller with Class C felony assisting a

       criminal and Class D felony obstruction of justice. On March 2, 2012, the State

       moved for a continuance on the ground that certain evidence was not yet

       available, and the trial court rescheduled the jury trial for August 6, 2012. On

       July 19, 2012, the State moved for a continuance on the ground that the deputy

       prosecutor was unavailable on August 6, 2012, and the trial court rescheduled

       trial for November 13, 2012.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 5 of 21
[11]   On November 1, 2012, Miller moved for a continuance, and trial was

       rescheduled for March 18, 2013. On January 16, 2013, Miller moved for a

       continuance, and trial was rescheduled for June 3, 2013. On May 14, 2013,

       Miller moved for a continuance, and trial was rescheduled for November 18,

       2013. On August 30, 2013, Miller moved for a continuance, and trial was

       rescheduled for January 6, 2014. On November 20, 2013, Miller moved for a

       continuance, and trial was rescheduled for April 21, 2014. On March 31, 2014,

       Miller moved for a continuance, and trial was rescheduled for June 9, 2014.

       On May 19, 2014, Miller moved for a continuance, and trial was rescheduled

       for October 15, 2014. On September 16, 2014, Milled moved for a

       continuance, and trial was rescheduled for October 27, 2014.


[12]   On October 27, 2014, the date of the latest trial setting, the State moved for a

       continuance on the ground of newly-discovered evidence, to which Miller

       objected. Specifically, the State averred that it had received new and previously

       unknown information regarding a potential witness on October 24, 2014.

       When the trial court granted the State’s motion and set a new trial date of

       February 9, 2015, Miller also objected. On November 26, 2014, Miller moved

       for discharge pursuant to Criminal Rule 4. On December 15, 2014, the trial

       court held a hearing on Miller’s discharge motion. During the hearing, it

       became apparent that the State had sought a continuance to investigate the

       potential testimony of Jami Holland. The investigator for the Delaware County

       Public Defender’s office testified that he had contacted Holland the week before

       the hearing and that she indicated she would have been available to testify on


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 6 of 21
       October 27, 2014. The prosecutor argued that, regardless of Holland’s

       availability, the State did not learn of her potential as a witness until two days

       before the latest trial setting, or October 25, 2014.


[13]   On December 29, 2014, the trial court issued an order denying Miller’s

       discharge motion. Inter alia, the trial court found in its order that the State did

       not learn of Holland until on or about October 24, 2014, the State did not have

       time to procure the evidence at issue, and Miller did not have time to prepare to

       meet it. The trial court certified the issue for interlocutory appeal, but this court

       declined to accept jurisdiction. On March 2, 2015, the trial court scheduled

       trial for April 13, 2015. On April 1, 2015, Miller moved for a continuance, and

       trial was rescheduled for September 21, 2015.


                                                  III. Trial
[14]   At trial, the trial court, over Miller’s objection, admitted certain text messages

       sent from or received by mobile telephones connected to Miller. The text

       messages fell into two categories: (1) messages sent by Rutledge to Miller and

       (2) messages sent by Miller to other persons or received by Miller from other

       persons. State’s Exhibits 95 and 96 related to messages sent by Rutledge to

       Miller. At 3:29 p.m. on December 2, 2011, Rutledge sent the following text

       message to one of Miller’s telephones: “I need u to help me with something

       asap can u get the truc what time u going home im with griff[.]” State’s Ex. 95.

       At 4:42 p.m., Rutledge texted Miller, “Ur house so hurry we got to get out of

       town[.]” State’s Ex. 96.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 7 of 21
[15]   State’s Exhibits 102 and 103 related to messages sent between Miller and an

       unidentified person. At 7:06 a.m., the person texted Miller, “RE: |K, r u

       frontin em to me till I clear up this mess ---------- Pain pills \n[.]” State’s Ex.

       102. At 7:51 a.m., Miller responded, “How many you want[?]” State’s Ex.

       102. Miller and her correspondent exchanged several more text messages until

       9:18 a.m., with the seeming object of arranging a purchase of “pain pills” from

       Miller. State’s Exhibit 94 contains a text message to Miller which said, “Why

       did u not tell me what went on and on top of it all u told my son not to tell me

       \nerin blake\n[.]”


[16]   On September 24, 2015, the fourth day of trial, the trial court issued an order

       quashing Miller’s subpoena of Rutledge, which Rutledge had requested based

       on his Fifth Amendment privilege against self-incrimination. Miller offered

       testimony from a police officer, which was admitted, that Rutledge had made

       statements to the officer indicating that he had threatened Miller with harm if

       she refused to help him dispose of Ingram’s body. The jury was instructed on

       Miller’s defenses of duress and necessity. After trial, the jury found Miller

       guilty as charged, and the trial court sentenced her to six years of incarceration

       for assisting a criminal and eighteen months for obstruction of justice, both

       sentences to be served concurrently.


                                  Discussion and Decision
                                             I. Speedy Trial
[17]   Indiana Rule of Criminal Procedure 4(C) provides in relevant part:

       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 8 of 21
               No person shall be held on recognizance or otherwise to answer
               a criminal charge for a period in aggregate embracing more than
               one year from the date the criminal charge against such
               defendant is filed, or from the date of his arrest on such charge,
               whichever is later; except where a continuance was had on his
               motion, or the delay was caused by his act, or where there was
               not sufficient time to try him during such period because of
               congestion of the court calendar.
[18]   Miller was not brought to trial within the aggregate one-year time period.

       However,


               If when application is made for discharge of a defendant under
               this rule, the court be satisfied that there is evidence for the state,
               which cannot then be had, that reasonable effort has been made
               to procure the same and there is just ground to believe that such
               evidence can be had within ninety (90) days, the cause may be
               continued, and the prisoner remanded or admitted to bail; and if
               he be not brought to trial by the state within such additional
               ninety (90) days, he shall then be discharged.
       Ind. Crim. Rule 4(D).

               Criminal Rule 4(D) provides that a trial court may grant the State
               a continuance when it is satisfied that (1) there is evidence for the
               State that cannot then be had; (2) reasonable effort has been
               made by the State to procure the evidence; and (3) there is just
               ground to believe that such evidence can be had within ninety
               days. [Chambers v. State, 848 N.E.2d 298, 301 (Ind. Ct. App.
               2006), trans. denied.] This court has previously stated that any
               exigent circumstances may warrant a reasonable delay beyond
               the limitations of Criminal Rule 4. Id. “‘The reasonableness of
               such delay must be judged in the context of the particular
               case[.]’” Id. (quoting Smith v. State, 802 N.E.2d 948, 951 (Ind.
               Ct. App. 2004)). In reviewing Criminal Rule 4 appeals, we
               employ two standards of review: we review the trial court’s legal
               conclusions de novo but exercise deference with respect to its

       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 9 of 21
               factual findings. See Feuston v. State, 953 N.E.2d 545, 548 (Ind.
               Ct. App. 2011) (resolving differing standards of review in
               Criminal Rule 4 cases).
       Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App. 2012), trans. denied. “The

       reasonableness of such delay must be judged in the context of the particular

       case, and the decision of the trial judge will not be disturbed except for an abuse

       of discretion.” Chambers, 848 N.E.2d at 304 (citation and quotation marks

       omitted).


[19]   Under the circumstances of this case, we cannot conclude that the trial court

       abused its discretion in granting the State’s continuance request pursuant to

       Criminal Rule 4(D). Indeed, when looked at in the context of the case, the

       State did not seem to have a reasonable alternative available to it. The State

       learned of Holland’s potential as a witness two or three days before trial on a

       weekend. After the prosecutor’s office “tracked down” Holland’s telephone

       number, she was contacted and the general nature of her possible testimony

       ascertained. Tr. p. 70. The prosecutor’s office then contacted defense counsel

       and the trial court. We find no fault in the trial court’s conclusion that two or

       three days was simply not enough time for either side to reasonably evaluate

       Holland’s potential as a witness. Miller has failed to establish an abuse of

       discretion in this regard.


[20]   Miller would have us conclude that if it is physically possible to produce a

       witness for trial, the State cannot receive a continuance pursuant to Criminal

       Rule 4(D), regardless of when the witness was discovered. Put another way,

       even though Miller seems to concede that neither the State nor she would have
       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 10 of 21
       had time to properly evaluate Holland, she essentially argues that that should

       not matter. We do not believe that the Rule should be read so rigidly,

       especially in light of the Indiana Supreme Court’s holding “that any exigent

       circumstances may warrant a reasonable delay beyond the limitations of Ind. R.

       Crim. P. 4[.]” Loyd v. State, 398 N.E.2d 1260, 1265 (Ind. 1980) (emphasis

       added). Moreover, as the State notes, it is safe to assume that Miller would

       have strenuously objected had the State attempted to have Holland testify on

       two or three days’ notice, which Miller suggests the State should have been

       required to do. We will not read Criminal Rule 4(D) in a way that leaves the

       State with such an unreasonable choice.


[21]   Finally, Miller argues that Criminal Rule 4(D) does not apply in this case

       because the State ultimately did not call Holland to testify against Miller.

       Miller argues that Rule 4(D) extensions should only apply to evidence that the

       State turns out to need. Such a conclusion would be unreasonable in light of

       the trial court’s finding that there was simply not enough time for either side to

       evaluate Holland before the scheduled start of trial.


                            II. Miller’s Subpoena of Rutledge
[22]   Miller requested that the trial court issue a subpoena for Rutledge, presumably

       for the purpose of bolstering her claim that to the extent that she assisted

       Rutledge or obstructed justice, she did so under duress. The trial court quashed

       Miller’s subpoena, relying on Rutledge’s Fifth Amendment right against

       compelled self-incrimination. Miller contends that, because Rutledge had


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 11 of 21
       already been tried and convicted for his part in Ingram’s death, he no longer

       retained a right against self-incrimination relevant to this case. Miller also

       contends that the trial court erroneously failed to hold a hearing pursuant to

       Indiana Code section 35-37-3-11 before quashing her subpoena.


[23]   We conclude that any error the trial court may have committed in this regard

       can only be considered harmless. “Errors in the admission of evidence are to be

       disregarded as harmless unless they affect the substantial rights of the

       defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “Where

       wrongfully excluded testimony is merely cumulative of other evidence

       presented, its exclusion is harmless error.” Spaulding v. Harris, 914 N.E.2d 820,

       830 (Ind. Ct. App. 2009), trans. denied.


[24]   Miller was able to, and did, introduce evidence that Rutledge had, in fact,

       threatened Miller with harm, through the testimony of Muncie Police Officer

       George Hopper, who testified that he interviewed Rutledge on December 5,

       2011. (Tr. 609). Inter alia, Officer Hopper also testified that Rutledge told him




       1
           Indiana Code section 35-37-3-1 provides as follows:

                 (a) If a witness, in any hearing or trial occurring after an indictment or information has
                 been filed, refuses to answer any question or produce any item, the court shall remove the
                 jury, if one is present, and immediately conduct a hearing on the witness’s refusal. After
                 such a hearing, the court shall decide whether the witness is required to answer the
                 question or produce the item.
                 (b) If the prosecuting attorney has reason to believe that a witness will refuse to answer a
                 question or produce an item during any criminal trial, the prosecuting attorney may
                 submit the question or request to the trial court. The court shall hold a hearing to
                 determine if the witness may refuse to answer the question or produce the item.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016                Page 12 of 21
       that he had threatened Miller and also threatened to kill her children if Miller

       did not help him dispose of Ingram’s body. This evidence, if believed, would

       have been sufficient to establish Miller’s defenses to the charges against her.

       Testimony from Rutledge to this effect, even assuming that it would have been

       consistent with his statements to Officer Hopper, would have been merely

       cumulative. Any error the trial court may have made in quashing Miller’s

       subpoena of Rutledge can only be considered harmless.


                                         III. Text Messages
[25]   Miller contends that the trial court abused its discretion in admitting certain text

       messages to her from Rutledge and between her and unidentified third persons.

       We will only reverse a trial court’s decision on the admissibility of evidence

       upon a showing of an abuse of that discretion. Curley v. State, 777 N.E.2d 58,

       60 (Ind. Ct. App. 2002). An abuse of discretion may occur if the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances

       before the court, or if the court has misinterpreted the law. Id. The Court of

       Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis

       in the record, even though it was not the reason enunciated by the trial court.

       Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005). We do not reweigh

       the evidence and consider the evidence most favorable to the trial court’s ruling.

       Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006).




       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 13 of 21
                                  A. State’s Exhibits 95 and 96
[26]   Miller challenges the admission of State’s Exhibits 95 and 96, which are

       messages sent by Rutledge to Miller on December 2, 2011: “I need u to help

       me with something asap can u get the truc what time u going home im with

       griff[,]” State’s Ex. 95, and, “Ur house so hurry we got to get out of town[.]”

       State’s Ex. 96. Miller argues that these text messages are inadmissible hearsay

       and are irrelevant in any event, see Ind. Evidence Rules 801(a); 403, while the

       State argues that they are admissible as statements of Rutledge’s then-existing

       state of mind or as present-sense impressions. See Evid. Rs. 803(3); 803(1).


[27]   We need not address the admissibility of the evidence in question, as any error

       in admitting it can only be considered harmless. “Errors in the admission of

       evidence are to be disregarded as harmless unless they affect the substantial

       rights of the defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997).

       “[A]n error in the admission of evidence is harmless if the erroneously admitted

       evidence is cumulative of other evidence appropriately admitted.” Collins v.

       State, 826 N.E.2d 671, 679 (Ind. Ct. App. 2005), trans. denied.


[28]   For one thing, the text messages are marginally prejudicial, at worst. The State

       argues that the messages are relevant to show Miller’s knowledge of Rutledge’s

       requests for assistance. However, even if this is true, the messages, which were

       not responded to, certainly do not show Miller’s assent. In any event, there is

       no dispute that Miller assisted Rutledge and attempted to help him conceal or

       destroy evidence of Ingram’s murder. The key question at trial was whether


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 14 of 21
       Miller was under duress when she assisted Rutledge, and the text messages

       from Rutledge do not touch on that question one way or the other. Any error

       the trial court may have committed in admitting State’s Exhibits 95 and 96 can

       only be considered harmless.


                                B. State’s Exhibits 102 and 103
[29]   State’s Exhibits 102 and 103 are text messages sent between Miller and an

       unidentified person on the morning of December 3: at 7:06 a.m., the person

       texted Miller, “RE: |K, r u frontin em to me till I clear up this mess ----------

       Pain pills \n[,]” and at 7:51 a.m., Miller responded, “How many you want[?]”

       State’s Ex. 102. Miller and her correspondent exchanged several more text

       messages until 9:18 a.m., with the seeming object of arranging a purchase of

       “pain pills” from Miller. Miller argues that any marginal probative value of the

       text messages is substantially outweighed by their prejudicial effect, while the

       State argues that are admissible to undercut Miller’s claim that she assisted

       Rutledge under duress.


[30]   We agree with the State. Evidence Rule 403 provides: “Although relevant,

       evidence may be excluded if its probative value is substantially outweighed by

       the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

       by considerations of undue delay, or needless presentation of cumulative

       evidence.” The text message exchange, with Miller’s participation beginning at

       around the time Ingram’s body was discovered aflame, tends to strongly

       undercut her claim that she assisted Rutledge under duress. It is a reasonable

       inference that Miller would not have exhibited such “business-as-usual”
       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 15 of 21
       behavior had she just been forced to assist in the disposal of Ingram’s body

       through the threat of force to herself and her children. Instead of taking steps to

       seek protection for herself and her children, Miller arranged to sell pain pills to

       an unidentified third person.


[31]   Moreover, although evidence that Miller was selling “pain pills” is somewhat

       prejudicial, we cannot say that the danger of unfair prejudice substantially

       outweighs the evidence’s probative value. There is no apparent connection

       between any crime that could be committed by selling “pain pills” and the

       crimes Miller was charged with here. In other words, we believe that any risk

       that the jury might have been inclined to convict Miller due to evidence of other

       bad acts is very low. Moreover, given the conflicting evidence concerning the

       duress issue, the text messages had a particularly high probative value in this

       case. Miller has failed to establish an abuse of discretion in this regard.


                                         C. State’s Exhibit 94
[32]   State’s Exhibit 94 contains a text message sent to Miller at 10:34 p.m. on

       December 3, 2011, while Miller was already in custody, which said, “Why did

       u not tell me what went on and on top of it all u told my son not to tell me

       \nerin blake\n[.]” While Miller asserts that this text message is “perhaps the

       most prejudicial” of the challenged messages, Appellant’s Br. 25, we do not see

       how it prejudiced her. Even if one accepts that Miller did not, in fact, tell the

       recipient “what went on” and also told the recipient’s son not to tell, we fail to

       see how this casts Miller in a negative light or tends to establish her guilt of the

       charged crimes. The text message at issue gives no indication of just what the
       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 16 of 21
       recipient knows about what occurred and indicates that she did not get that

       knowledge from Miller in any event. The admission of State’s Exhibit 94, even

       if erroneous, can only be considered harmless.


                                       IV. Double Jeopardy
[33]   Finally, Miller contends that her convictions for Class C felony assisting a

       criminal and Class D felony obstruction of justice violate Indiana constitutional

       prohibitions against double jeopardy. In Richardson v. State, 717 N.E.2d 32

       (Ind. 1999), the Indiana Supreme Court held “that two or more offenses are the

       ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution,

       if, with respect to … the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Id. at 49-50.


               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one
               offense may also have been used to establish the essential
               elements of a second challenged offense.
       Id. at 53. “In determining the facts used by the fact-finder to establish the

       elements of each offense, it is appropriate to consider the charging information,

       jury instructions, and arguments of counsel.” Lee v. State, 892 N.E.2d 1231,

       1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832 (Ind. 2002);

       Richardson, 717 N.E.2d at 54 n.48).




       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 17 of 21
[34]   In order to convict Miller of Class C felony assisting a criminal, the State was

       required to prove that she,


               not standing in the relation of parent, child, or spouse to another
               person who has committed a crime or is a fugitive from justice
               who, with intent to hinder the apprehension or punishment of the
               other person, harbor[ed], conceal[ed], or otherwise assist[ed] the
               person commits assisting a criminal, … a Class C felony if the
               person assisted has committed murder[.]
       Ind. Code § 35-44-3-2(2) (2011). In order to convict Miller of Class D felony

       obstruction of justice, the State was required to establish that she “alter[ed],

       damage[ed], or remove[ed] any record, document, or thing, with intent to

       prevent it from being produced or used as evidence in any official proceeding or

       investigation[.]” Ind. Code § 35-44-3-4 (2011).


[35]   We conclude that Miller’s conviction for obstruction of justice cannot stand, as

       it violates the same actual evidence test. While it is true that the charging

       information and the trial court’s instructions to the jury laid out the distinct

       elements of the two crimes with which Miller was charged, the charges and

       instructions were merely recitations of the statutory language and did not

       specify which specific allegations supported the charges.


[36]   Even more compelling are the evidence presented and arguments made by the

       State. Regarding the assisting a criminal charge, there was no dispute that

       Miller was not Rutledge’s spouse, parent, or child or that the crime Rutledge

       committed was murder. For the remainder of the required proof, the State

       presented evidence that Miller helped to move Ingram’s body, clipped her


       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 18 of 21
       fingernails, drove Rutledge around looking for a place to dispose of the body,

       and took Rutledge to the BMW Club where he disposed of bloody clothes. To

       support the obstruction of justice charge, the State presented evidence that

       Miller altered and removed Ingram’s body, including clipping her nails, loading

       her body into the vehicle she had borrowed, and driving her body to a remote

       location, much the same evidence used to support some of the essential

       elements of the assisting a criminal conviction.


[37]   Moreover, the State emphasized essentially the same body of evidence to argue

       that it had proved assisting a criminal and obstruction of justice:

               First, we have the Assisting a Criminal. Now we know that the
               defendant is not the parent, child, or spouse of Terry Rutledge.
               And we know that Terry Rutledge, at the very least, helped carry
               out the murder of Tonia Ingram. That has not been disputed one
               bit in all the evidence in this trial. We know that this defendant
               absolutely assisted Terry Rutledge. She admitted that to the
               police. She admitted to helping to move Tonia’s body. She
               admitted to cutting Tonia’s fingernails. She admitted to driving
               Rutledge around looking for that spot to dump the body. She
               admitted to taking Rutledge to the BMW Club. Where he tried
               to dispose of those bloody clothes. And we know all of that was
               done, all those acts were carried out to try to avoid or hinder at
               least Rutledge’s arrest and punishment.
       Tr. pp. 703-04.


               Next we have the [obstruction] of justice. Again, the defendant’s
               statement by itself tells us that the defendant altered, damaged, or
               moved a record, document or thing. And again, our common
               sense tells us there was only one reason why that was done.
               Why Tonia’s fingernails were clipped. Why Tonia’s body was
               moved. Why Tonia’s body was set on fire and why those bloody
       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 19 of 21
               clothes were disposed of. It was to keep that evidence from being
               discovered.
       Tr. p. 704.


[38]   To summarize, there does not seem to be any significant proof produced and

       relied on to convict Miller of obstruction of justice that was not also used to

       convict her of assisting a criminal. We conclude that Miller has established a

       reasonable possibility that the jury relied on the same actual evidence to find

       her guilty of both assisting a criminal and obstruction of justice. See, e.g.,

       Alexander v. State, 768 N.E.2d 971, 978 (Ind. Ct. App. 2002) (finding violation of

       the Richardson same actual evidence test where evidence that defendant

       constructively possessed one handgun “was used to prove both an essential

       element of the unlawful possession of a firearm by a serious violent felon, i.e.

       that Alexander possessed a firearm, and all of the essential elements of carrying

       a handgun without a license[,]” case was argued non-specifically, and

       defendant was charged generally), trans. denied.


[39]   We therefore remand with instructions to vacate Miller’s conviction for Class D

       felony obstruction of justice. See Richardson, 717 N.E.2d at 54 (“When two

       convictions are found to contravene double jeopardy principles, a reviewing

       court may remedy the violation by reducing either conviction to a less serious

       form of the same offense if doing so will eliminate the violation. If it will not,

       one of the convictions must be vacated.”) (citation omitted).


[40]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1511-CR-1938 | July 12, 2016   Page 20 of 21
Bailey, J., and Altice, J., concur.




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