MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Apr 01 2020, 10:31 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                                    ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                             Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rahim Brumfield,                                          April 1, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1581
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey L.
Appellee-Plaintiff.                                       Sandford, Judge
                                                          Trial Court Cause No.
                                                          71D03-1802-MR-2



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020                    Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Rahim Brumfield (Brumfield), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-1-1, and the jury’s determination that he

      was eligible for a firearm sentencing enhancement, I.C. § 35-50-2-11.


[2]   We affirm.


                                                   ISSUES
[3]   Brumfield presents this court with three issues on appeal, which we consolidate

      and restate as the following two issues:


              (1) Whether the trial court abused its discretion by admitting certain

              evidence; and


              (2) Whether the trial court improperly instructed the jury.


                      FACTS AND PROCEDURAL HISTORY
[4]   In January 2018, Brumfield and seventeen-year-old T.C. had been in a romantic

      relationship for about four years. On the night of January 17, 2018, leading

      into the early morning of January 18, 2018, Brumfield and T.C. exchanged text

      messages via Facebook Messenger. Brumfield accused T.C. of being unfaithful,

      and T.C. wanted to terminate the relationship. At some point, T.C. asked

      Brumfield to stop contacting her and to leave her alone.


[5]   Later that day, T.C. was at her best friend’s, D.K., house. At approximately

      5:30 p.m., T.C. left D.K.’s house; however, they both intended to get together


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 2 of 21
      again later that evening to go to Walmart. At approximately 8:00 p.m., T.C.

      called D.K., and T.C. seemed upset about something. At around the same

      time, Michael Onax (Onax) was driving home from work. Onax observed a red

      vehicle parked in the middle of Clover Street in South Bend, and he “only saw

      one person in[side] the vehicle. It was a woman.” (Transcript Vol. II, p. 99).

      As he drove closer, he saw a man who was wearing a red hooded sweatshirt

      trying to open the front passenger door. Onax then saw the man with the red

      hooded sweatshirt grab onto the “passenger’s side mirror” and hold on as the

      red car sped off. (Tr. Vol. II, p. 99). Since there was snow on the ground, the

      man was “just slipping and sliding . . . down the street.” (Tr. Vol. II, p. 99).

      Onax then saw the man with the red hooded sweatshirt “lift up his hand” and

      heard “gunshots fire rapidly.” (Tr. Vol. II, p. 100).


[6]   Aaron Maurer (Maurer), who lived on Clover Street, was rocking his baby by

      the window. Maurer first heard somebody yelling, and then he saw a man with

      a “red hoodie [with his] arm inside the car being pulled along the street. The

      car was accelerating and taking him with it.” (Tr. Vol. II, p. 108). Once the red

      vehicle was out of his view, Maurer heard “about nine or ten shots.” (Tr. Vol.

      II, p. 108). Also, around the same time, Maria Santos (Santos), who also

      resided on Clover Street, was in her bedroom sleeping. Santos was awakened

      by the sound of gunshots. When she looked out of the window, Santos saw

      that a red vehicle had crashed into a house and flipped on its side. Santos saw a

      man with a hooded sweatshirt attempt to pull the vehicle down. When that

      failed, the man stated, “[s]hit, I need to find a fucking car,” and the man ran


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 3 of 21
      toward an alley. (Tr. Vol. II, p. 140). Another neighbor who heard the

      gunshots called 911.


[7]   When South Bend Police Department officers arrived at the scene, they found

      T.C. inside the red vehicle. She was unconscious and had no pulse. T.C.’s

      cause of death was later determined to be from a “gunshot wound to the back of

      her head.” (Tr. Vol. III, p. 19). The police recovered seventeen casings at the

      scene of the shooting.


[8]   On January 19, 2018, Brumfield’s mother contacted Detective Timothy Wiley

      (Detective Wiley), and stated that she was bringing Brumfield to the police

      station. After Brumfield was given his Miranda warnings, Brumfield stated that

      he had been with T.C. earlier that day, but he denied arguing with T.C. and

      having any involvement in her killing. During questioning, Brumfield gave

      Detective Wiley his phone number. Shortly thereafter, Brumfield stated that he

      did not want to talk, but the questioning continued. 1 After the interview,

      Brumfield was released.


[9]   Using Brumfield’s cellphone number, Detective Wiley discovered Brumfield’s

      Facebook account under an alias, Gunna Hardaway, and he obtained a warrant

      to search that account. The Facebook messages between Brumfield and T.C.,

      which were exchanged a day before she was murdered, indicated that the two




      1
        The trial court ultimately excluded all of Brumfield’s statements after he stated that he no longer wished to
      continue with Detective Wiley’s questioning.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020                      Page 4 of 21
       were having relationship problems. The messages further showed that when

       T.C. ended her four-year romantic relationship with Brumfield, Brumfield was

       upset and he threatened to kill T.C. Some of Brumfield’s messages to T.C.

       stated: “When I pop yo ass don’t say nun . . . I’ll kill yo [] anybody [] think we

       over . . . When I say ima kill [] yu I mean that . . . I’m not letting go unless its

       from putting inna dirt.” (State’s Exh. Vol. 5, pp.118, 125, 137) (mistakes

       throughout).


[10]   Based on Brumfield’s death threats to T.C., Detective Wiley obtained a warrant

       for Brumfield’s cellphone location which revealed that on January 18, 2019, at

       approximately 8:12 p.m., Brumfield was at the murder scene and he had moved

       away from the area by 8:16 p.m.


[11]   On February 7, 2018, the State filed an Information, charging Brumfield with

       murder. The State further claimed that Brumfield was eligible for a sentencing

       enhancement because he had used a firearm in the course of committing the

       murder. A warrant was issued for Brumfield’s arrest. On February 24, 2018,

       Brumfield turned himself in and spoke with Detective Wiley. At the start of the

       interview, Brumfield was given his Miranda warnings. Brumfield denied being

       involved in T.C.’s murder, indicated that he knew who killed T.C., but stated

       he did not want to be a “snitch.” (State’s Exh. Vol. VI, p. 184). When

       Detective Wiley pressed Brumfield to identify T.C.’s killer, Brumfield began

       floating an idea that T.C. was killed by a gang. When asked to identify the

       gang, Brumfield declined to answer the question, instead, he stated that he

       would “just rather have a lawyer.” (State’s Exh. Vol. VI, p. 184). No

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 5 of 21
       additional questions were asked; instead, Detective Wiley sought to clarify

       Brumfield’s request for an attorney. Rather than persisting with his request for

       an attorney, Brumfield stated that he wished to continue with the interview.

       Brumfield then resumed explaining his theory that T.C.’s killing was gang

       related, and he identified the gang as “Four Corner Hustlers.” (State’s Exh.

       Vol. II, p. 185). Detective Wiley proceeded to ask Brumfield whether he and

       T.C. had a verbal altercation on the day before she was murdered. Brumfield

       admitted arguing with T.C., and he also admitted that he regularly messaged

       T.C. on Facebook. When Detective Wiley indicated that he had not “even

       got[ten] to the hard questions yet,” Brumfield stated that he wanted to stop the

       interview. (State’s Exh. Vol. VI, p. 192). Based on the request, Detective

       Wiley concluded the interview, and Brumfield was remanded into custody.


[12]   On January 27, 2019, pursuant to Indiana Rule of Evidence 404(b), Brumfield

       filed a motion in limine, requesting the exclusion of any evidence of him making

       any threats to kill T.C. and past physical abuse toward T.C.


[13]   On May 9, 2019, at the start of his bifurcated jury trial, Brumfield requested,

       but was denied, the suppression of the transcript and recording of his February

       24, 2018, interview conducted by Detective Wiley. Also, the parties litigated

       Brumfield’s motion in limine. The State argued that Brumfield’s prior bad acts,

       i.e., his Facebook messages to T.C. in which he threatened to kill T.C., were

       admissible to prove motive and intent pursuant to Indiana Evidence Rule

       404(b). Brumfield argued that the State had not provided him with pretrial

       notice of its intent to use those Facebook messages for that purpose. Excusing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 6 of 21
       the lack of pretrial notice, the State argued that Brumfield had notice, “a long

       time ago” since Brumfield’s death threats to T.C. had been referenced in the

       probable cause affidavit. (Tr. Vol. II, p. 4). At the close of the parties’

       arguments, the trial court granted Brumfield’s motion, in part, by stating that it

       was “going to let all threats [] come in under the basis of motive but not to show

       intent.” (Tr. Vol. II, p. 10). The trial court indicated that it would issue a

       limiting instruction pursuant to that ruling.


[14]   During the first phase of Brumfield’s trial, Jermon Gavin (Gavin), an inmate

       who was confined about the same time with Brumfield at the St. Joseph County

       Jail, testified that Brumfield had disclosed to him that on the day of the

       shooting, Brumfield had seen T.C. in the car with “J-Dot,” a man that T.C.

       “was messing with.” (Tr. Vol. III, p. 161). Brumfield further divulged to Gavin

       that he “got mad and began shooting.” (Tr. Vol. III, p. 161). Gavin added that

       Brumfield told him that “he wasn’t trying to hit [T.C.], . . . he was just trying to

       scare [T.C.]. But it is what it is.” (Tr. Vol. III, p. 161). Brumfield indicated to

       Gavin that he had “shot over twelve times.” (Tr. Vol. III, p. 161).


[15]   After the parties’ arguments, a jury instruction conference was held. Based on

       Gavin’s testimony that Brumfield fired many shots toward a vehicle occupied

       by J-Dot and T.C. and that the shots were not intended for T.C., the State

       offered an instruction on transferred intent. Over Brumfield’s objection, the

       trial court issued that instruction to the jury. The jury consequently found

       Brumfield guilty of murder. During the second phase of Brumfield’s trial, the

       jury found Brumfield guilty of using a firearm during the commission of the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 7 of 21
       murder. On June 14, 2019, the trial court sentenced Brumfield to fifty-five

       years for his murder conviction, and it enhanced that sentence by five years

       based on the use of a firearm, resulting in an aggregate term of sixty years.


[16]   Brumfield now appeals. Additional information will be provided as necessary.


                               DISCUSSION AND DECISION
                                         I. Admission of the Evidence

                                            A. Standard of Review

[17]   Trial courts are vested with broad discretion in determining whether to admit or

       exclude evidence. Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). A trial

       court’s decision to admit or exclude certain evidence is subject to review only

       for an abuse of discretion. Id. On appeal, “[w]e consider all the facts and

       circumstances surrounding the trial court’s decision to determine whether it is

       ‘clearly against the logic and effect’ of what those facts and circumstances

       dictate.” Id. (quoting Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)). We

       “‘may affirm a trial court’s judgment on any theory supported by the

       evidence.’” Id. (quoting Clark v. State, 808 N.E.2d 1183, 1188 (Ind. 2004)).

       Even if we find that the trial court abused its discretion by excluding evidence,

       such error will be “disregarded as harmless error” unless it “affect[s] the

       substantial rights of a party.” Hubbell v. State, 754 N.E.2d 884, 890 (Ind. 2001).


[18]   Brumfield first asserts that during his second recorded interview with Detective

       Wiley, he invoked his right to counsel and that request was ignored. As such,

       Brumfield contends that the trial court abused its discretion by admitting into

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 8 of 21
       evidence the statements he made at that interview following his request.

       Furthermore, Brumfield claims that the trial court abused its discretion by

       admitting into evidence his Facebook messages to T.C. pursuant to Indiana

       Evidence Rule 404(b). We will address each contention in turn.


                                          B. Request for an Attorney

[19]   “The right to have counsel present during [custodial] interrogation ‘is

       indispensable’ to the protection of the Fifth Amendment privilege against self-

       incrimination.” Jolley v. State, 684 N.E.2d 491, 492 (Ind. 1997) (quoting

       Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).

       “When a suspect asserts his right to counsel during custodial questioning, the

       police must stop until counsel is present or the suspect reinitiates

       communication with the police and waives his right to counsel.” Id. at 492

       (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378

       (1981)). Importantly, “the prosecution may not use statements stemming from

       that interrogation unless it demonstrates the use of procedural safeguards

       effective to secure [the suspect’s] privilege [.]” Davies v. State, 730 N.E.2d 726,

       733 (Ind. Ct. App. 2000) (citing Miranda, 384 U.S. at 444, 86 S.Ct. at 1602),

       trans. denied.


[20]   “Invocation of the Miranda right to counsel requires, at a minimum, some

       statement that can reasonably be construed to be an expression of a desire for

       the assistance of an attorney.” Davis v. United States, 512 U.S. 452, 459, 114

       S.Ct. 2350, 129 L.Ed.2d 362 (1994). While the suspect need not invoke any

       magic words, “[t]he cessation of police questioning is not required ‘if a suspect
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 9 of 21
       makes a reference to an attorney that is ambiguous or equivocal[.]’” Carr v.

       State, 934 N.E.2d 1096, 1102 (Ind. 2010) (quoting Davis, 512 U.S. at 459). A

       statement is considered ambiguous or equivocal when “‘a reasonable officer in

       light of the circumstances would have understood only that the suspect might

       be invoking the right to counsel.’” Id. (quoting Davis, 512 U.S. at 459).


[21]   After Brumfield was charged with the instant offenses, a warrant for his arrest

       was issued, and he turned himself in. On February 24, 2018, Detective Wiley

       conducted a recorded interview, and after Brumfield was given his Miranda

       warnings, he denied any involvement in T.C.’s murder but stated that he had

       heard that a gang was responsible. When Detective Wiley pressed Brumfield to

       identify the gang, the following exchange occurred:


               [Detective Wiley]: So . . . you know the group[?]


               [Brumfield]: I don’t know the group, . . . I heard . . . what the
               streets told me. If you go . . . to the streets, the streets tell you the
               same thing[.] I’m just not gonna tell you what everybody tell me
               because it’s like that’s gonna make me a snitch at the end of the
               day. They’re gonna classify me as a snitch []. I’m not no snitch.


               ****


               [Detective Wiley]: So you’re not gonna tell us what group you
               think killed your girlfriend?


               [Brumfield]: I don’t think, I know.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 10 of 21
        [Detective Wiley]: You’re not gonna tell us what group you
        know did it?


        [Brumfield]: No, I don’t, I’d just rather have a lawyer.


        [Detective Wiley]: You don’t . . .


        [Brumfield]: You know, for my lawyer can do ‘cuz at the end of
        the day y’all just keep on. And . . . I just came in here. . .


        [Detective Wiley]: Okay.


        [Brumfield]: . . .to let y’all know . . .


        [Detective Wiley]: [Brumfield]


        [Brumfield]: . . . that I did not do this.


        [Detective Wiley]: . . . you just said you wanted a lawyer. Do
        you want a lawyer and you wanna stop? Is that what I’m
        hearin[g]?


        [Brumfield]: I mean if . . . at the end of the day I’m gonna have
        to get a lawyer anyway ‘cuz y’all are not gonna . . . .


        [Detective Wiley]: That, that’s not what I asked.


        [Brumfield]: . . . go by my. . .


        [Detective Wiley]: What I, what I asked was do you want us to
        stop now so you can have a lawyer. Is that what I’m hearing?


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 11 of 21
               [Brumfield]: No.


               [Detective Wiley]: Is that what you’re saying . . . .


               [Brumfield]: No, I’m, I’m. . . .


               [Detective Wiley]: Okay.


               [Brumfield]: . . . .that’s not what I came here for.


               [Detective Wiley]: So we can continue?


               [Brumfield]: Yeah, I came here to cut . . . [T]o talk. . . . so y’all
               can . . . get the right understandin[g,] so y’all can go do y’all job.


       (State’s Exh. Vol. II, pp. 184-85). Brumfield argues that his statement, “I’d just

       rather have a lawyer” was a “plain, simple, and straight forward” request and

       that Detective Wiley did not honor his request for a lawyer, and he improperly

       engaged in “further discussion to change [his] mind about it.” (State’s Exh.

       Vol. II, p. 184; Appellant’s Br. p. 20). We disagree.


[22]   When Brumfield was asked whether he was going to identify the gang that

       actually killed T.C., he responded that he was not going to identify the gang

       and “[he]’d just rather have a lawyer.” (State’s Exh. Vol. II, p. 184).

       Brumfield’s comment, “I’d just rather have a lawyer” only hinted at a potential

       desire for an attorney, not a clear and unequivocal request for one. See Powell v.

       State, 898 N.E.2d 328, 336-37 (Ind. Ct. App. 2008). Nonetheless, Detective

       Wiley asked Brumfield no other questions about the case, and he immediately

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 12 of 21
       asked some follow-up questions geared toward clarifying Brumfield’s request

       for an attorney. See Jackson v. State, 597 N.E.2d 950, 959 (Ind. 1992) (holding

       that “[I]f a suspect’s request for counsel is perceived to be inherently

       ambiguous, or equivocal in light of the preceding events, any further

       questioning should be narrowly limited to clarifying whether the suspect

       actually wished to have counsel present.” (quoting Sleek, 499 N.E.2d at 754)).

       When Brumfield stated that he did not wish to have an attorney, Detective

       Wiley continued with the questioning. Thus, we conclude that any statements

       derived after Brumfield’s equivocal request for an attorney were properly

       admitted at his jury trial and were not in violation of his Fifth Amendment

       right.


[23]   The State further argues that even if it had been error, the admission of any

       subsequent statements made after Brumfield invoked his right to counsel as

       harmless. We agree. Statements obtained in violation of the federal

       constitution and erroneously admitted are subject to harmless error analysis.

       Storey v. State, 830 N.E.2d 1011, 1021 (Ind. Ct. App. 2005). We review a claim

       of federal constitutional error de novo, and the error must be harmless beyond a

       reasonable doubt. Id. The State has the burden to demonstrate that the

       improper admission of a defendant’s statement did not contribute to the

       conviction. Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998) (citation and

       quotation marks omitted). “‘To say that an error did not contribute to the

       verdict is . . . to find that error unimportant in relation to everything else the

       jury considered on the issue in question, as revealed in the record.’” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 13 of 21
       (quoting Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432

       (1991), disapproved on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct.

       475, 116 L.Ed.2d 385 (1991)). In other words, if the State has presented other

       overwhelming evidence of the defendant’s guilt, then an erroneously admitted

       statement may be deemed harmless. Storey, 830 N.E.2d at 1021.


[24]   At no point during the interview did Brumfield admit to killing T.C., rather,

       Brumfield maintained his theory that a gang was responsible for T.C.’s murder.

       Brumfield’s other statements related to the dynamics of his relationship with

       T.C. The only possible incriminating statement that Brumfield made at the

       interview was him confirming his Facebook username as Gunna Hardaway and

       that he regularly messaged T.C. from that Facebook account. Moreover, we

       find that Brumfield’s confirmation of his Facebook username and use of that

       account was of no consequence because the record reveals that, two days prior

       to the interview, Detective Wiley had applied and received a warrant for

       Brumfield’s Facebook account.


[25]   Further, the record reveals that Brumfield’s statements at the interview were

       unnecessary for his murder conviction. The State presented evidence that

       Brumfield argued and threatened to kill T.C. via Facebook Messenger a day

       before she was murdered; Brumfield’s cellphone was traced to the location of

       the crime scene; and Gavin, an inmate who was confined at around the same

       time with Brumfield at the county jail, testified that Brumfield professed to him

       that he fired about twelve shots toward a vehicle occupied by T.C. At the crime

       scene, the police recovered seventeen bullet casings. Thus, Brumfield’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 14 of 21
       statements at the interview following his request for an attorney were

       unnecessary for his murder conviction, and the admission of his statements was

       harmless at best.


                                      C. Indiana Evidence Rule 404(b)

[26]   Brumfield challenges the admission of his Facebook messages to T.C., arguing

       that he was given insufficient notice that they would be admitted at his jury

       trial. Indiana Evidence Rule 404(b) provides:


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
               not admissible to prove a person’s character in order to show that
               on a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       The purpose of this notice provision is to reduce surprise to the defendant and

       promote the early resolution of questions of admissibility. Abdul-Musawwir v.

       State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied. The notice

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 15 of 21
       provision is a prerequisite to the admissibility of evidence of a crime, wrong, or

       other act. Id. Failure to comply with the requirements of the rule generally

       results in the evidence being inadmissible. Id.


[27]   Brumfield contends that the State failed to provide him with proper pretrial

       notice of its intent to offer into evidence the death threats he made to T.C. via

       Facebook Messenger as prior bad acts pursuant to Indiana Evidence Rule

       404(b).


[28]   The record reveals that the State did not offer its notice of intent to use

       Brumfield’s Facebook messages as evidence of prior bad acts pursuant to

       Evidence Rule 404(b), nor is there any evidence in the record that Brumfield

       made a specific discovery request for such information. However, the record

       reveals that following discovery, Brumfield filed a motion in limine seeking to

       thwart the State from producing his Facebook messages as evidence of his prior

       bad acts. Ahead of his jury trial, the parties litigated Brumfield’s motion in

       limine. The State argued that its lack of pretrial notice should be excused

       because Brumfield had notice, “a long time ago” since Brumfield’s Facebook

       threats to kill T.C. had been referenced in the probable cause affidavit. (Tr.

       Vol. II, p. 4). Brumfield’s counsel subsequently admitted that inasmuch as

       there was no formal notice by the State, Brumfield was aware of the State’s

       intention to use Brumfield’s Facebook messages as evidence, and that fact

       prompted him to file the motion in limine. Consequently, the trial court denied

       Brumfield’s motion.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 16 of 21
[29]   Notably, at his trial, Brumfield did not object to the State’s presentation of his

       Facebook messages pursuant to Evidence Rule 404(b), neither did he argue that

       the State did not provide him with reasonable notice, or argue that he was

       prejudiced by the State’s lack of pretrial notice. Failure to object to the

       admission of evidence at trial normally results in waiver and precludes appellate

       review unless its admission constitutes fundamental error. Whatley v. State, 908

       N.E.2d 276, 280 (Ind. Ct. App. 2009), trans. denied. The fundamental error

       doctrine is extremely narrow. To qualify as fundamental error, the error must

       be so prejudicial to the rights of the defendant as to make a fair trial impossible.

       Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999). To be fundamental error,

       the error must constitute a blatant violation of basic principles, the harm or

       potential for harm must be substantial, and the resulting error must deny the

       defendant fundamental due process. Wilson v. State, 514 N.E.2d 282, 284 (Ind.

       1987). In the present case, the State did not offer Brumfield’s Facebook death

       threats to T.C. to show that Brumfield had a propensity to commit murder or

       that his behavior was in conformity with this character trait. Instead, the State

       offered the evidence to establish that he had a motive to commit T.C.’s murder,

       an acceptable use under Rule 404(b)(2). Consequently, we conclude that

       Brumfield has failed to demonstrate the admission of his Facebook threats to

       T.C. constituted fundamental error.


                                II. Jury Instruction on Transferred Intent

[30]   The manner of instructing the jury lies within the sound discretion of the trial

       court and will be reviewed only for an abuse of discretion. Snell v. State, 866

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 17 of 21
       N.E.2d 392, 395 (Ind. Ct. App. 2007). In reviewing a trial court’s decision to

       give or refuse tendered jury instructions, the appellate court considers: (1)

       whether the instruction correctly states the law; (2) whether there is evidence in

       the record to support the giving of the instruction; and (3) whether the

       substance of the tendered instruction is covered by other instructions that are

       given. Corbett v. State, 764 N.E.2d 622, 629 (Ind. 2002).


[31]   Over Brumfield’s objection, the trial court gave the State’s tendered instruction

       on the doctrine of transferred intent, stating:


               The crime of murder is defined by law as follows: a person who
               knowingly kills another human being.


               When a person intends to kill another person and instead kills a
               different person, his intent is transferred from the person to
               whom it was directed to the person actually killed, and he may be
               found guilty of murder of the person who was killed.


       (Appellant’s App. Vol. II, p. 44). Brumfield concedes that the transferred-intent

       instruction is a correct statement of law and he does not argue that its substance

       was covered by other instructions. His sole argument is that there was no

       evidence to support the giving of the instruction.


[32]   First, he directs us to Onax’s testimony that on the day of the shooting, Onax

       observed only a woman inside the vehicle and a man with a red hooded

       sweatshirt holding on to the passenger’s side mirror as the vehicle sped off.

       Brumfield then directs us to other neighbors who testified about the shooting,

       and he argues that there was conflicting evidence about T.C. being the only

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 18 of 21
       person inside the vehicle. He additionally claims that “none of the other

       witnesses from the neighborhood said they saw or heard anything other than

       two (2) people being involved.” (Appellant’s Br. p. 26). Dismissing the State’s

       claim that there was another person on the scene of the crime, Brumfield

       contends


               Although [Gavin,] the jail house informant, indicated that
               Brumfield told him about J-Dot being there, the [S]tate quickly
               dispelled that argument through Jeramiah Moore’s (J-Dot)
               testimony by showing that J-Dot had been in California from
               January 14, 2018 through February l, 2018 and therefore could
               not have been present at the scene as testified by [] Gavin.


       (Appellant’s Br. p. 26). He further directs us to the fact that the State

       impeached J-Dot on the stand through his testimony that he was in California

       visiting his father from January 14, 2018, through February 1, 2018, therefore

       implying that J-Dot was not present when T.C. was murdered. As such,

       Brumfield contends that there was no evidence to support an inference that his

       intent to kill J-Dot was transferred to T.C. The State posits, “[I]f the jury had

       accepted Gavin’s testimony about Brumfield’s statements regarding J-Dot”

       being present, “it needed to be instructed that Brumfield could still be guilty of

       T.C.’s murder even if he were trying to kill J-Dot instead.” (Appellee’s Br. p.

       23).


[33]   Each party to an action is entitled to have the jury instructed on his particular

       theory of complaint or defense. Collins v. Rambo, 831 N.E.2d 241, 245 (Ind. Ct.

       App. 2005). Notwithstanding the fact that the State impeached Gavin by

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 19 of 21
       having J-Dot testify that he was in California when T.C.’s murder occurred,

       Gavin unequivocally testified that Brumfield had informed him that J-Dot was

       inside the vehicle with T.C. on the day of the shooting; Brumfield was upset

       with T.C. because she was with J-Dot; Brumfield fired about twelve shots in a

       vehicle occupied by J-Dot and T.C.; and Brumfield stated that his shots were

       not intended for T.C.


[34]   While there was conflicting evidence as to whether T.C. was the only occupant

       inside the red vehicle, Gavin’s testimony, although weak and inconsistent as

       compared to J-Dot’s testimony, supported the jury instruction on transferred

       intent. See Snell, 866 N.E.2d at 396 (stating that evidence that has some

       probative value is sufficient to support the giving of an instruction, even if the

       evidence is weak or inconsistent).


[35]   Further, we find that even if it had been error to issue the instruction, it was

       harmless. “Generally, errors in the giving or refusing of instructions are

       harmless where a conviction is clearly sustained by the evidence and the jury

       could not properly have found otherwise.” Matheny v. State, 983 N.E.2d 672,

       681 (Ind. Ct. App. 2013) (quotation omitted), trans. denied. We find that any

       error from giving the instruction was harmless since the State presented strong

       evidence of Brumfield’s guilt: Brumfield’s Facebook death threats were strong

       evidence to prove Brumfield’s motive to commit T.C.’s murder; Brumfield’s

       cellphone location placed him at the scene of the crime; Gavin testified that

       Brumfield informed him that he fired about twelve shots toward a vehicle



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 20 of 21
       occupied by T.C.; and the police recovered seventeen shell casings at the scene

       of the crime.


[36]   Furthermore, we find that the instruction unlikely impacted the jury’s verdict.

       Final Instruction 6B advised the jury that they were the exclusive judges of the

       evidence, that they were the judges of the credibility of the witnesses and the

       weight to be given to their testimony, and that they should not disregard the

       testimony of any witness without due consideration and without just cause, but

       that they were to decide who to believe and who to disbelieve. Thus, even if it

       was error to give the transferred intent instruction, the instruction did not assist

       the jury in its factfinding role. We assume a jury follows the instructions it is

       given. See Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015). Therefore, we

       conclude that the giving of the transferred intent instruction was harmless.


                                             CONCLUSION
[37]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by admitting the statements Brumfield made at the interview, or the

       Facebook threats he made to T.C. Further, we hold the trial court did not err in

       giving the transferred intent instruction.


[38]   Affirmed.


[39]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1581 | April 1, 2020   Page 21 of 21
