                                                                         Feb 08 2016, 8:19 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                          Gregory F. Zoeller
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Antonio Miles,                                            February 8, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A01-1412-CR-509
        v.                                                Appeal from the Hendricks
                                                          Superior Court;
State of Indiana,                                         The Honorable Mark A. Smith,
Appellee-Plaintiff.                                       Judge;
                                                          Trial Court Cause No.
                                                          32D04-1310-MR-1



May, Judge.




Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016                      Page 1 of 14
[1]   Antonio Miles appeals his conviction of murder, a felony. He raises four issues

      for our consideration: (1) whether the court abused its discretion by admitting

      text messages he sent to the victim; (2) whether the court abused its discretion

      by instructing the jury that use of a deadly weapon in a way likely to cause

      death could support an inference that a killing occurred knowingly; (3) whether

      the prosecutor committed reversible misconduct in closing argument by

      suggesting Miles’ was obliged to present evidence; and (4) whether the evidence

      was insufficient to support Miles’ conviction.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On June 8, 2013, Miles argued with Trinity Johnson, the mother of his infant

      daughter, in Johnson’s mother’s driveway. Miles was in Johnson’s car, and

      Johnson was angrily yelling for Miles to “get the f*ck out” of the car. (Tr. at

      330.) Keenan Smith, a contractor who was across the street, saw the argument.

      Fifteen to twenty minutes later, one of Smith’s workers yelled for him to call

      911. Smith ran to the house. When he entered the garage, he saw Miles next to

      Johnson, who was sitting against a wall. She was “gargling blood,” (id. at 335),

      and making uncontrolled movements. Miles told Smith that Johnson had been

      “playing with the gun” and shot herself in the mouth. (Id. at 332.) Smith called

      911. By the time police and paramedics arrived, Johnson was dead.


[4]   On October 1, 2013, the State charged Miles with murder. At his jury trial, the

      State offered a thirty-six page exhibit of the text messages between Miles and

      Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 2 of 14
      Johnson during the eight days before Johnson’s death. (See State’s Ex. 76.)

      The texts included Miles telling Johnson what kind of gun to buy for him; Miles

      calling Johnson a “Dumb a** b*tch,” (id. at 8), and other names; Johnson

      accusing Miles of being with other women, threatening to keep their daughter

      from him, calling him names, and asking when he will be home to take care of

      their daughter; Miles apologizing for choking Johnson; Johnson telling Miles

      that her mother accused them of taking money from her bank account, and

      Miles responding that if her mother confronted him with an allegation “sh*t is

      gon [sic] get ugly,” (id. at 33); and, when Miles was home with their daughter,

      Miles told Johnson to “Get here b4 I throw her a**,” (id. at 36). The court

      ruled the text messages were admissible, and it also overruled Miles’ objection

      to a jury instruction about when a “knowing” killing could be inferred. During

      the State’s closing argument, the court interrupted the State to prevent

      discussion of a slide suggesting Miles had not presented any evidence and the

      court sua sponte instructed the jury that a defendant never has a burden to

      present evidence or prove anything. The jury found Miles guilty.


                                      Discussion and Decision
                                            Sufficiency of Evidence

[5]   When reviewing sufficiency of evidence, we consider “only the probative

      evidence and reasonable inferences supporting the verdict without weighing the

      evidence or assessing witness credibility.” Lewis v. State, 34 N.E.3d 240, 245

      (Ind. 2015). We affirm if “a reasonable trier of fact could conclude that the

      defendant was guilty beyond a reasonable doubt.” Id.

      Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 3 of 14
[6]   To convict Miles of murder, the State had to prove he knowingly killed

      Johnson. See Ind. Code § 35-42-1-1(1) (defining murder as the knowing or

      intentional killing of a human). There is no doubt that Johnson died of a

      gunshot wound to the face that was inflicted when she, Miles, and their infant

      daughter were the only people in the house. The only question was whether

      Johnson shot herself or Miles shot her.


[7]   An autopsy revealed the bullet that killed Johnson entered her face just above

      her upper lip and to the left of her mouth. The bullet was on a downward

      trajectory and travelling from her left to right. After shattering her jaw it

      severed her spinal cord. A pathologist testified the bullet would not have

      changed direction after hitting her jaw. From the downward trajectory of the

      bullet, the pathologist opined Johnson was upright and looking forward when

      she was shot. Because the gun had to be above Johnson’s face when it fired, the

      evidence does not support an inference that Johnson accidentally shot herself

      when she dropped the gun. Also countering Miles’ explanation of the shooting

      is the fact that the gun did not misfire when it was struck more than 200 times

      with a rubber mallet in a laboratory testing.


[8]   Additional laboratory testing revealed the gun produced stippling 1 up to twenty-

      four inches from the muzzle. By subtracting the length of the gun barrel from




      1
        Stippling is a “puck marking” that occurs around a gunshot wound. Wallace v. State, 725 N.E.2d 837, 839
      (Ind. 2000). The effect is produced by “unburned gun powder flakes” that exit the muzzle and land on the
      skin of the victim. (Tr. at 1268.)

      Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016                     Page 4 of 14
      the length of Johnson’s arms, the pathologist determined that if Johnson shot

      herself, the gun muzzle could not have been more than fourteen inches from her

      face. Yet, the pathologist found no stippling on Johnson’s face. Johnson did

      not have soot near or on the wound, nor did she have charring, burning, or

      searing around the wound. These facts preclude a reasonable inference that

      Johnson shot herself while holding the gun. (See, e.g., Tr. at 1273) (Forensic

      pathologist answered, “No,” when asked, “Doctor, to a reasonable degree of

      scientific certainty, did Trinity Johnson shoot herself?”).


[9]   Miles provided multiple explanations of the shooting, but in none of them was

      he holding the gun. He told the first person to the scene, construction-worker

      Smith, that Johnson “was playing with the gun, the safety was off and she shot

      herself in the mouth.” (Tr. at 332.) The 9-1-1 operator recorded Miles giving

      the following explanation:

              DISPATCH: Did you find her like this or did you see this happen?
              [MILES]:          Well, I came home and she was putting the gun up,
                                cause she was sitting here with the gun – she was putting
                                the gun up –
              DISPATCH: (Interposing) And you saw her do it?
              [MILES]:          She was looking down the barrel like a dumba** – I – I
                                don’t even want to call her that right now (inaudible) –
      (Id. at 338.) When the responding officer, Sergeant Brett Clark, arrived and

      asked what was happening, Miles again said Johnson had been “looking down

      the barrel of the f*cking gun.” (Id. at 342.) A few minutes later, Sergeant

      Clark’s body camera recorded Miles saying: “I don’t know what the f*ck she

      was doing – she looked down the barrel of the gun and f*ck and she – I said

      Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016           Page 5 of 14
       what the f*ck. She had to pull the trigger. No gun goes off without the f*cking

       trigger being pulled.” (Id. at 375.) A few minutes later Miles said he heard the

       gunshot because “I was right here” and “saw her do the sh*t.” (Id. at 380.) He

       explained she had not put the gun in her mouth, “it was from the outside of her

       mouth like – like she looked down the barrel . . . .” (Id.)


[10]   When the lead detective, Scott Larsen, arrived, Miles’ story began to change.

       At the scene, Miles told Detective Larsen that he did not actually see the gun go

       off, because he had walked into the kitchen. Then, in a recorded statement

       given to Detective Larsen that evening at the Sheriff’s Department, Miles first

       said he was walking the baby outside when he “heard a pop.” (Id. at 600.)

       Next, he said he heard the “pop [and] turned around.” (Id. at 601.) When

       asked whether he was “actually looking at her when the shot went off,” (id. at

       618), Miles said “No, I didn’t – I didn’t look at her when the shot went off.

       Well, as soon as it went off, I turned around . . . .” (Id.) A bit later he said he

       did not know how she had the gun because he was “outside.” (Id. at 650.)


[11]   Five months later when Miles was arrested, Detective Larsen told Miles that

       the forensic testing indicated Johnson had not been holding the gun when it

       was fired. Then this exchange occurred:

               [Miles]:          I wasn’t in the f*cking house when the gun went off.
               [Detective]:      You weren’t even in the house?
               [Miles]:          No, I wasn’t –
               [Detective]:      Okay.
               [Miles]:          --even in the house when the gun went off.


       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016       Page 6 of 14
               [Detective]:      Okay, that’s not what you told me. You actually told
                                 two different stories, at least two different stories on the
                                 day that it happened and both times you were actually in
                                 the house.
               [Miles]:          I was not inside the house when it went off. I was
                                 putting stuff in the car for my daughter. We were going
                                 to the hospital.
[12]   (Id. at 674.) After Miles was booked, Detective Larsen again interviewed him:

               [Detective]:      . . . You’ve not given a plausible explanation of what
                                 happened.
               [Miles]:          Because I can’t. I wasn’t – I – I didn’t see it.
               [Detective]:      When-
               [Miles]:          How will I give – I didn’t see the sh*t happen.


       (Id. at 682.)


[13]   Not only did Miles’ explanation of the shooting change, he made claims that

       the pathologist said were impossible. On at least two occasions, Miles said

       Johnson talked to him after the shooting: “I said, can you breathe baby? Can

       you breathe? And she nodded her head, no. . . . She was talking to me for a

       little bit. And then she just quit talking.” (id. at 621); “I said, are you all right?

       I said, can you breathe? She said, no. . . . I was just talking, trying to keep her

       talking.” (Id. at 651.) The pathologist explained that after her spine was

       severed Johnson may have made noises as air left her lungs, but she would not

       have been “talking.” (Id. at 1263.)


[14]   In light of the improbability that Johnson knowingly or intentionally shot

       herself and the contradictions between Miles explanations at various times, the

       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016          Page 7 of 14
       record contained abundant evidence to support the jury’s inference that Miles

       knowingly killed Johnson. See, e.g., Fry v. State, 25 N.E.3d 237, 249 (Ind. Ct.

       App. 2015) (circumstantial evidence sufficient to permit jury to conclude Fry

       shot victim in the head), trans. denied.


                                         Admission of Text Messages

[15]   We review rulings on the admission of evidence for an abuse of discretion.

       Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An

       abuse of discretion occurred if the trial court misinterpreted the law or if its

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

       before it. Id.


[16]   Miles challenges the admission of text messages between him and Johnson

       because they “paint[ed] Miles as a disrespectful, abusive, manipulative thug,

       and the jury would almost certainly assume that he had acted in conformity

       with his reprehensible character and shot Johnson in a flash of anger . . . .” (Br.

       of Appellant at 16.) This argument is based on Evidence Rule 404(b), which

       prohibits admission of evidence to “prove a person’s character in order to show

       that on a particular occasion the person acted in accordance with the

       character.”


[17]   However, Miles did not object at trial to the text messages on that basis.

       Rather, defense counsel explicitly stated he “didn’t make the – the – the highly

       prejudicial 404(B) argument which I think is a much stronger argument than the

       argument that I made . . . .” (Tr. at 821.) Accordingly, to demonstrate he is


       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 8 of 14
       entitled to a reversal on the basis of Rule 404(b), Miles must demonstrate

       fundamental error. See Stephenson v. State, 29 N.E.3d 111, 121 (Ind. 2015)

       (“defendant may not here claim error based on grounds not asserted at trial”

       unless he demonstrates “fundamental error such as to override the procedural

       default”).

               Fundamental error is an extremely narrow exception to the waiver rule
               where the defendant faces the heavy burden of showing that the
               alleged errors are so prejudicial to the defendant’s rights as to “make a
               fair trial impossible.” In evaluating the issue of fundamental error, our
               task is to look at the alleged misconduct in the context of all that
               happened and all relevant information given to the jury - including
               evidence admitted at trial, closing argument, and jury instructions - to
               determine whether the misconduct had “such an undeniable and
               substantial effect on the jury’s decision that a fair trial was impossible.”
               Fundamental error is meant to permit appellate courts “a means to
               correct the most egregious and blatant trial errors that otherwise would
               have been procedurally barred, not to provide a second bite at the
               apple for defense counsel . . . .”
       Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015) (internal citations

       omitted) (emphasis in original). Miles has not met that heavy burden.


[18]   Under Rule 404(b), evidence of bad acts may not be admitted to show “the

       person acted in accordance with the character,” Evid. R. 404(b)(1), but it may

       be admitted to prove “motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Evid. R.

       404(b)(2). The text messages demonstrate Miles and Johnson had a strained

       relationship and called one another names. She threatened to stop dating him

       and to keep their daughter from him. He threatened violence. One text

       included Miles’ apology for choking Johnson. (State’s Ex. 76 at 9.) Because

       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016        Page 9 of 14
       those facts about the nature of their relationship are relevant to motive and

       absence of mistake, they were admissible under 404(b)(2). See Witham v. State, -

       -- N.E.3d ---, 2015 WL 9586984 (Ind. Ct. App. 2015) (holding court did not

       abuse its discretion in admitting evidence of prior hostility between victim and

       defendant, as hostility is a motive for violence).


[19]   Even if the admission had been erroneous, the error could not be fundamental

       in light of the overwhelming evidence that Johnson did not shoot herself. See

       Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013) (“Where evidence of guilt

       is overwhelming any error in the admission of evidence is not fundamental.”).


                                                 Jury Instruction

[20]   “Instructing a jury is left to the sound discretion of the trial court and we review

       its decision only for an abuse of discretion.” Washington v. State, 997 N.E.2d

       342, 345 (Ind. 2013). We consider jury instructions in reference to each other,

       and we will “not reverse unless the instructions as a whole mislead the jury as

       to the law in the case.” Simmons v. State, 999 N.E.2d 1005, 1011 (Ind. Ct. App.

       2013), reh’g denied, trans. denied.


[21]   Miles challenges a final instruction that stated: “A knowing killing may be

       inferred from the use of a deadly weapon in a way likely to cause death.” (App.

       at 35.) Miles claims the language of that instruction, while correct as a matter

       of law, was inappropriate for a jury instruction.


[22]   Miles is right that the instruction is a correct statement of the law. See Barker v.

       State, 695 N.E.2d 925, 931 (Ind. 1998) (“To support a conviction of murder,

       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 10 of 14
       knowing killing may be inferred from a defendant’s use of a deadly weapon in a

       manner likely to cause death.”), reh’g denied. Miles is also correct that not all

       language from judicial opinions is appropriate for jury instructions.

       (Appellant’s Br. at 19) (citing Gravens v. State, 836 N.E.2d 490, 494 (Ind. Ct.

       App. 2005), trans. denied); see also Keller v. State, No. 88S04-1506-CR-354, slip

       op. at 4 (Ind. Jan. 25, 2016) (holding language from appellate opinion that

       emphasized certain facts was improper for jury instruction and invaded the

       province of the jury, requiring reversal of conviction).


[23]   However, Miles is incorrect when he asserts the language at issue was

       inappropriate for a jury instruction. In Bethel v. State, 730 N.E.2d 1242, 1246

       (Ind. 2000), the trial court instructed the jury that it could “infer intent to

       commit murder from the use of a deadly weapon in a manner likely to cause

       death or great bodily injury.” There was no error, “fundamental or otherwise,”

       in the giving of that instruction. Id. We accordingly decline to hold any error

       occurred when a similar instruction was given herein.


                                           Prosecutorial Misconduct

[24]   During closing arguments, the deputy prosecutor discussed the evidence

       supporting the conviction and had an accompanying slide presentation. During

       his argument, the court interrupted and the following side bar occurred:




       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 11 of 14
               [Court]:          . . . Have a problem with that last slide. 2
               [Defense]:        I was about to object to it, Judge.
               [Court]:          The last slide (inaudible) defendant hasn’t given you
                                 any-defendant’s not required to give them anything.
               [State]:          Well, (inaudible) he said . . . the gun was dropped.
               [Court]:          (Inaudible) That’s what she said in her closing; but your
                                 slide suggests that he has some burden to give them,
                                 some other alternative and obviously they don’t.
                                                       *****
               [Court]:          (Inaudible) admonish the jury.
               [State]:          (Inaudible) in the instructions.
               [Defense]:        That’s not enough (Inaudible)[.]
               [Court]:          I’ll remind them that the defense is not required to
                                 present evidence to prove his innocence or explain
                                 anything.


       (Tr. at 1389-90) (footnote added). The court then admonished the jury: “Folks,

       just as a reminder, the defendant is not required to present evidence; uh, present

       any evidence to prove his innocence or to prove or explain anything.” (Id. at

       1390.) The defense did not thereafter request a mistrial or additional

       admonition.


[25]   On appeal, Miles argues the deputy prosecutor’s inclusion of words on a slide

       suggesting Miles had a burden to explain what happened was prosecutorial




       2
         We note that our review of this issue has been hampered by the defendant’s failure to make the content of
       the slide part of the record at trial so that on appeal we might know what the jury may have read from the
       allegedly prejudicial slide.

       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016                      Page 12 of 14
       misconduct that “denied full due process protection for Miles, entitling him to a

       new trial.” (Br. of Appellant at 25.)

               To preserve a claim of prosecutorial misconduct, the defendant must --
               at the time the alleged misconduct occurs -- request an admonishment
               to the jury, and if further relief is desired, move for a mistrial. Failure
               to do so results in waiver. Our standard of review is different where a
               claim of prosecutorial misconduct has been waived for a failure to
               preserve the claim of error. In such a case, the defendant must
               establish not only the grounds for prosecutorial misconduct but also
               that the prosecutorial misconduct constituted fundamental error.
       Jerden, 37 N.E.3d at 498 (internal citations omitted). Miles did not move for

       mistrial after the trial court admonished the jury, and he therefore has a burden

       on appeal to demonstrate fundamental error.


[26]   The trial court stopped the deputy prosecutor’s presentation when it noticed the

       content of the slide. The deputy prosecutor did not read the slide to the jury or

       vocalize a suggestion that Miles had a burden to prove any fact or to prove his

       innocence. Nevertheless, some of the jurors may have read the content of the

       slide. The trial court discussed its concerns with counsel at a sidebar and then

       admonished the jury that Miles had no burden to prove or explain anything.

       The final jury instructions included this instruction regarding the presumption

       of innocence:

               Under the law of this State, a person charged with a crime is presumed
               to be innocent. To overcome the presumption of innocence, the State
               must prove the Defendant guilty of each element of the crime charged,
               beyond a reasonable doubt.
               The Defendant is not required to present any evidence to prove his
               innocence or to prove or explain anything.


       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016       Page 13 of 14
       (App. at 70.) In light of the jury instructions, the admonition, and the abundant

       evidence of guilt, Miles has not demonstrated “such an undeniable and

       substantial effect on the jury’s decision that a fair trial was impossible.” Jerden,

       37 N.E.3d at 498; and see id. at 500 (in light of facts and jury instructions, no

       fundamental error occurred).


                                                  Conclusion
[27]   We find no reversible error in the challenged jury instruction, the admission of

       text messages, or the prosecutor’s slide that allegedly referenced Miles’ decision

       to not present any evidence. In light of the abundant evidence of Miles’ guilt,

       we affirm.


[28]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1412-CR-509 | February 8, 2016   Page 14 of 14
