MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jun 23 2020, 9:21 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Elbert Briggs,                                           June 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1884
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Elizabeth C. Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1811-MR-08



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020                    Page 1 of 13
                                             Case Summary
[1]   Elbert Briggs appeals his conviction for murder, arguing that the trial court

      erred by denying his motion for mistrial and by admitting certain evidence. We

      disagree and affirm.



                              Facts and Procedural History
[2]   Around 3:40 a.m. on June 23, 2018, Eric Phillips pulled into the parking lot of

      the Notre Dame boathouse on the St. Joseph River in South Bend. He was

      accompanied by Tastacia Parker—Briggs’s on-again/off-again girlfriend.

      Shortly after Phillips and Parker arrived, two men approached on foot. After a

      brief interaction, one of those two men drew a gun and shot Phillips twice—

      once in the chest and once in the arm. Phillips fell in the parking lot and died.

      Parker and the other men ran off.


[3]   Several months later, the State charged Briggs and Parker with murder. The

      State’s theory was that Briggs and Parker wanted to rob Phillips, that Parker got

      Phillips to the river for that purpose, and that Briggs was the shooter. Briggs’s

      case proceeded to a jury trial in June 2019.1 The State’s evidence was largely

      circumstantial but substantial.




      1
        Parker was charged and prosecuted separately from Briggs. After Briggs was convicted and sentenced, the
      State dropped the murder charge against Parker in exchange for her plea of guilty to Level 5 felony assisting a
      criminal and Level 6 felony perjury. She was sentenced to four years in prison and two years of community
      corrections. See State v. Parker, No. 71D01-1901-MR-1.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020                     Page 2 of 13
[4]   A little over two months before the shooting, on April 12, 2018, Phillips

      contacted Parker on Facebook. A few hours later, Parker was messaging with

      Briggs and said, “we could poke dude[.]” Ex. 87c. According to Parker, “poke”

      means rob. Tr. Vol. II p. 167. Briggs asked, “Who[?]” Ex. 87c. Parker

      answered, “He pulled up on me ima drop top and super thirsty he old too . . .

      Like 35 I think he said[.]” Id. (Phillips was 37, and Parker testified that “thirsty”

      means gullible. Tr. Vol. II p. 166.) Briggs responded, “Ok do that[.]” Ex. 87c.

      Parker then asked, “You with me on it[?]” Id. Briggs answered, “Yeah[.]” Id.


[5]   Then, on the night of June 22—about eight hours before the shooting—Parker

      received the following Facebook message from a friend:


              You a grown woman... and you have two kids. We do alot of
              stupid sh*t but we are NOT RATCHET… that’s bummy af. You
              22 years old, if you have to rob anybody while you have a whole
              ni**a you OBVIOUSLY need to reevaluate your life and the
              people in it. And any real ni**a would NEVER out his bi*ch in
              that predicament. He is using you. Kaylin and butter slid in SO
              MANY ni**as. He never even let me know his moves cause he
              said that’s not my place period!! You got babies you need to be
              around for. And you talented af and finished Ross. You can be
              doing so much more. That’s why I be saying f*** these ni**as.
              He either gone build you or be yo downfall …aint no in between.


      Ex. 87a (emphasis added). Apparently unpersuaded by that message, Parker

      started a Facebook conversation with Phillips shortly after midnight. Phillips

      said that he was on his way to South Bend, and Parker said, “Let me know

      when u make it we can link I’m bored[.]” Ex. 87b. Around 1:00 a.m., Parker

      asked Phillips if he wanted to walk by the river and “Smoke n sip[.]” Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 3 of 13
[6]   At some point Phillips picked Parker up in his car. Cell-phone location records

      show that Phillips’s phone, Parker’s phone, and Briggs’s phone were near each

      other in the Edison Park area, east of the boathouse, around 3:35 a.m. As

      Phillips’s phone approached the boathouse around 3:40 a.m., so did Briggs’s

      phone (the location information for Parker’s phone is more limited, but there is

      no dispute that she was with Phillips). Phillips was shot just before 3:45 a.m.

      Within thirty minutes of the shooting, Briggs’s phone and Parker’s phone were

      traveling southeast out of South Bend, toward Fort Wayne. The phones arrived

      in Fort Wayne around 6:00 a.m. and were in close proximity to each other at

      several points between 6:30 a.m. and 8:00 a.m. Both phones were active in Fort

      Wayne for the rest of the day. In the days that followed, the phones traveled

      together to West Palm Beach, Florida, where Parker’s father lives. Late on June

      24, Briggs sent the following Facebook messages to someone named Quan

      Briggs: “I’m gone bro to Florida don’t say sh*t but all I can say is remember the

      last place we seen tay bd right hand mans at look that up”; “I love you gone call

      when I can”; “That’s why I didn’t come back”; “Bruh real sh*t u got to come

      this way when sh*t get right I’m gone be gone until a week[.]” Ex. 203B.


[7]   In addition to the Facebook and phone records, the State collected some

      physical evidence. Most relevant here, surveillance video from the boathouse

      showed the shooting (from a distance—the faces of the participants are not

      identifiable), a footprint was found in the mud near Phillips’s car, and a bullet

      was lodged in Phillips’s arm.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 4 of 13
[8]    Detective Timothy Wiley, the lead investigator, testified about the surveillance

       video and three photographs that Parker sent to Briggs via Facebook

       approximately nine hours before the shooting. Two of the photographs show

       Briggs by himself, wearing a white shirt, dark jeans, and white shoes with

       orange or brown soles. See Exs. 88d, 88e. The third photograph show Briggs,

       wearing the same outfit, with Parker. See Ex. 88f. Detective Wiley believed the

       outfit Briggs was wearing in the photographs “seemed to be the same” as the

       outfit the shooter was wearing in the surveillance video. Tr. Vol. III p. 80.


[9]    Detective Wiley also testified that after seeing the footprint at the scene and the

       Facebook photographs that show Briggs wearing white shoes with orange or

       brown soles, he did internet research and found a Fila F-13 shoe, which was

       white with an orange sole. Photographs of the Fila shoe and its sole, along with

       photographs of the footprint at the scene, were admitted into evidence. Exs. 25,

       25a, 25b, 25c, 25d. Detective Wiley testified that he saw “similarities between

       the Fila and the footprint,” specifically, a “scalloped edge,” a circle “very close

       to that scalloped edge,” another circle on the “other side,” and a “waffle”

       pattern “in the middle[.]” Tr. Vol. III pp. 158-59.


[10]   Ray Wolfenbarger, a firearm and tool-mark examiner, testified about the

       markings on the bullet found in Phillips’s arm. He said that SCCY Industries is

       the only firearm manufacturer he knew that could have made the gun that left

       those markings. The State also presented a photograph posted on Facebook on

       June 8, 2018—fifteen days before the shooting—showing Briggs with a

       handgun tucked into his pants. See Ex. 88a. Part of the gun, including the grip,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 5 of 13
       is visible in the photograph. Detective Wiley testified that he is familiar with

       SCCY firearms, that he zoomed in on the handgun in the photograph, and that

       he saw “characteristics” of an SCCY. Tr. Vol. III p. 161. Specifically, he said

       that he could see the “finger grooves” on the front of the grip, “at least

       shadows” of holes on the back of the grip, a silver “slide,” and a black

       “extractor.” Id. at 161-62.


[11]   The jury found Briggs guilty, and the court sentenced him to sixty-five years in

       prison. Briggs now appeals.



                                  Discussion and Decision
[12]   Briggs contends that the trial court erred by denying a motion for mistrial he

       made based on a question that the prosecutor asked. He also argues that the

       trial court erred by allowing Detective Wiley to testify about the footprint found

       at the scene and by admitting the photograph of Briggs with a gun.


                              I. Denial of Motion for Mistrial
[13]   Briggs’s motion for a mistrial related back to a recorded interview of Parker by

       Detective Gery Mullins. During that interview, Parker did not say that Briggs

       was involved in the shooting, but she made the following statement: “Whatever

       they had going on it wasn’t, like, intentionally.” Supp. Tr. p. 3; Ex. 204. (The

       record does not disclose the question Parker was responding to or provide any

       other context for her statement.) Parker was asked about that statement at trial,

       where the State called her as a witness under a grant of use immunity. She

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 6 of 13
       testified that she didn’t remember making the statement and that she was “not

       sure” whether the shooting was intentional. Tr. Vol. II p. 156.


[14]   Later, the prosecutor sought to impeach Parker by asking Detective Mullins the

       following question about the interview: “[W]hen you talked to Ms. Parker, did

       she indicate to you whether or not she thought the shooting by the defendant

       was intentional?” Tr. Vol. III p. 68 (emphasis added). Detective Mullins

       answered, “She indicated that she didn’t think it was intentional.” Id. Briggs

       immediately objected and moved for a mistrial, arguing that the prosecutor’s

       reference to “the shooting by the defendant” had “left the jury with the

       impression that [Parker] said something about [Briggs] actually being there.” Id.

       at 69. The trial court sustained Briggs’s objection but declined to order a

       mistrial, instead giving the jury the following admonishment:


               I’m striking from the record that question that was asked and the
               answer that was given, and so you are -- if you recall the
               instruction that I gave at the start of the trial, when I strike things
               from the record, you are to treat it as though you had never heard
               it, and it can’t be part of your consideration.


       Id. at 70. After the admonishment, the prosecutor asked Detective Mullins the

       same question without the reference to Briggs: “In interviewing Ms. Parker, did

       she indicate she didn’t believe the shooting was intentional?” Id. Detective

       Mullins answered, “She did indicate that it wasn’t intentional.” Id. The State

       then played a recording of Parker telling Detective Mullins, “Whatever they

       had going on it wasn’t, like, intentionally.”


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 7 of 13
[15]   Briggs argues that the trial court should have granted his request for a mistrial.2

       As Briggs acknowledges, “a mistrial is an extreme remedy that is only justified

       when other remedial measures are insufficient to rectify the situation.” Mickens

       v. State, 742 N.E.2d 927 (Ind. 2001). Because the trial court is in the best

       position to gauge the circumstances surrounding an event and its impact on the

       jury, we afford great deference to its decision on a motion for mistrial. Id. “We

       therefore review the trial court’s decision solely for abuse of discretion.” Id.


[16]   “A mistrial is appropriate only when the questioned conduct is so prejudicial

       and inflammatory that the defendant was placed in a position of grave peril to

       which he should not have been subjected.” Pittman v. State, 885 N.E.2d 1246,

       1255 (Ind. 2008) (formatting altered). Briggs contends that he was placed in

       grave peril because the prosecutor’s question “improperly suggest[ed] that the

       shooting was actually by the defendant” and “ma[de] the jury think that Parker

       had given a pretrial statement to Mullins where she had admitted that Briggs

       was the shooter but that she didn’t think that it was an intentional shooting.”

       Appellant’s Br. p. 19. He also argues that, because Parker testified at trial that

       Briggs was not involved in the shooting, the prosecutor’s question implying that




       2
        The State contends that Briggs waived this issue by failing to renew his request for a mistrial after the trial
       court denied his original request and instead admonished the jury to disregard the question and answer. The
       State argues that to preserve the issue for appeal, Briggs was required to “request a mistrial following the
       admonishment or indicate to the court that the admonishment was not satisfactory.” Appellee’s Br. pp. 10-
       11. We disagree. By immediately moving for a mistrial, Briggs made clear his position that no admonishment
       would adequately remedy the issue.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020                      Page 8 of 13
       Parker said something different before trial “likely had a devastating effect on

       her credibility.” Id. at 21.


[17]   There are two problems with Briggs’s argument. First, he does not acknowledge

       or address the well-established presumption that an admonishment by the court

       cures any harm caused by a prosecutor’s improper statement. Jones v. State, 101

       N.E.3d 249, 258 (Ind. Ct. App. 2018), trans. denied. Here, shortly after the

       prosecutor asked the erroneous question, the trial court told the jury that it was

       striking the question from the record and admonished the jury “to treat it as

       though you had never heard it, and it can’t be part of your consideration.” We

       presume the jury heeded that instruction and disregarded the prosecutor’s

       question.


[18]   Second, Briggs does not acknowledge or address the fact that after the

       prosecutor’s question and the court’s admonishment, the recording of Parker’s

       statement about the shooting being unintentional was played for the jury. As

       noted by the State, this allowed the jury to “hear for themselves that Parker

       never stated the shooting was by Defendant.” Appellee’s Br. p. 15. Even if the

       prosecutor’s question led any jurors to believe that Parker identified Briggs as

       the shooter, the recording revealed that she did not.


[19]   For these reasons, we cannot say that the trial court abused its broad discretion

       in denying Briggs’s request for a mistrial.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 9 of 13
                                   II. Admission of Evidence
[20]   When a party challenges a trial court’s discretionary decision to admit evidence,

       we review that decision only for an abuse of discretion. Fairbanks v. State, 119

       N.E.3d 564, 567 (Ind. 2019), cert. denied. The admission of evidence constitutes

       an abuse of discretion when it is clearly against the logic and effect of the facts

       and circumstances. Id. at 568.


                A. Detective Wiley’s testimony about the footprint
[21]   Briggs contends that the trial court abused its discretion by allowing Detective

       Wiley to “give testimony regarding [the] footprint found in the mud in the boat

       house parking lot.” Appellant’s Br. p. 21. He acknowledges that a witness is

       generally allowed to give their opinion that a footprint and the sole of a shoe are

       similar, provided they base their conclusion “‘on measurements or peculiarities

       of the footprints.’” McNary v. State, 460 N.E.2d 145, 147 (Ind. 1984) (quoting

       Johnson v. State, 177 Ind. App. 501, 505, 380 N.E.2d 566, 569 (1978)). However,

       he argues that Detective Wiley “didn’t testify about any measurements which

       he performed nor did he give specifics about peculiarities of the footprints.”

       Appellant’s Br. p. 22. He is right about measurements but wrong about

       peculiarities. As detailed above, Detective Wiley testified that he saw

       “similarities” between the footprint and the sole of the Fila F-13 shoe he found

       on the internet, including a “scalloped edge,” a circle “very close to that

       scalloped edge,” another circle on the “other side,” and a “waffle” pattern “in

       the middle[.]”


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 10 of 13
[22]   It is true that the State did not have an actual shoe from Briggs and that

       Detective Wiley was not able to say definitively that Briggs was wearing Fila F-

       13 shoes in the Facebook photographs. However, having reviewed the

       photographs of the F-13 shoe and the Facebook photographs of Briggs, we

       agree with the State that the F-13 shoe is “very similar” to the shoes Briggs was

       wearing in the Facebook photographs. Appellee’s Br. p. 17. And though it

       could not be said with certainty that Briggs was wearing F-13 shoes in the

       Facebook photographs, this was not an issue of the admissibility of Detective

       Wiley’s testimony but rather, as the trial court explained, “a weight issue” that

       “can be cross examined on.” Tr. Vol. III pp. 137-38. Ultimately, the jury had all

       of the photographs—of the footprint at the scene, of the F-13 shoe, and of

       Briggs wearing white shoes with orange or brown soles—and was able to decide

       for itself how much weight, if any, to accord to Detective Wiley’s testimony.

       But the trial court had discretion to decide whether to admit that testimony in

       the first place, and Briggs has not convinced us that the court abused that

       discretion.


                             B. Photograph of Briggs with a gun
[23]   Briggs also argues that the trial court erred by allowing the State to present the

       photograph of him with a handgun tucked into his pants. See Ex. 88a. He

       asserts that “[s]imple examination of the photograph demonstrates the

       weakness [of] the State’s argument that the type of gun can be determined by an

       examination of that photograph.” Appellant’s Br. p. 25. Briggs is correct that

       not much detail is visible on the copy of the photograph in the record. In fact,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 11 of 13
       Detective Wiley acknowledged as much. Tr. Vol. III p. 161 (“It’s very hard to

       see here in this photograph[.]”). However, he also testified that he zoomed in

       on the photograph and that it was “clear enough” for him to see characteristics

       of an SCCY firearm. Id. In light of that testimony, the limited detail in the

       handgun photograph goes to the weight of the evidence, not its admissibility.

       As with the footprint photographs, the jury had the handgun photograph and

       could decide how much weight to assign to it.


[24]   Briggs contends that this case is like Wilson v. State, 770 N.E.2d 799 (Ind. 2002),

       where our Supreme Court held that the trial court erred by admitting into

       evidence a photograph showing the murder defendant with a handgun two

       months before the shooting at issue. In that case, however, the only fact

       supporting the admission of the photograph was that “two shell casings

       recovered from the crime scene were fired from a 9-millimeter handgun, a

       weapon similar to the type of weapon that Wilson was brandishing in the

       photograph.” Id. at 801. There was “no link between the shell casings recovered

       at the crime scene and the photograph the State introduced at trial.” Id. at 802.

       Here, on the other hand, a firearm examiner testified that the bullet found in

       Phillips’s arm was likely fired from an SCCY, and Detective Wiley testified that

       the handgun in the photograph of Briggs had characteristics of an SCCY. That

       testimony established at least some link between the photograph and the

       shooting. Cf. Pickens v. State, 764 N.E.2d 295, 299 (Ind. Ct. App. 2002)

       (“Evidence that a defendant had access to a weapon of the type used in a crime




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 12 of 13
       is relevant to a matter at issue other than the defendant’s propensity to commit

       the charged act.”), trans. denied.


[25]   Finally, Briggs asserts that the photograph “was not probative of whether or not

       Briggs was involved in the shooting of Eric Phillips” and that it “should have

       been deemed inadmissible under [Evidence] Rule 403, as its probative value

       was outweighed by undue prejudice, confusion of the issues and misleading the

       jury.” Appellant’s Br. p. 25. We disagree. First, for the reasons already stated,

       evidence that Briggs possessed an SCCY firearm two weeks before the shooting

       was probative of whether he was involved in the shooting. Second, beyond

       simply noting that the photograph shows him “shirtless, flexing his muscles,”

       id., Briggs does not offer any reasoning or cite any caselaw in support of his

       claim that there was a danger of “undue prejudice, confusion of the issues and

       misleading the jury.” If there was no evidence linking the gun in the photograph

       to the shooting, we would probably agree with Briggs. But there was such

       evidence, so we fail to see how the jury would have been confused or misled by

       the photograph or how the prejudice was “undue.”


[26]   The trial court did not abuse its discretion by admitting the photograph.


[27]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1884 | June 23, 2020   Page 13 of 13
