Opinion
24A-CR-281
10-18-2024
Brandon C. Hodge, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Ana M. Quirk Muncie, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Delaware Circuit Court The Honorable Douglas K. Mawhorr, Judge Trial Court Cause No. 18C03-2103-MR-1
Attorney for Appellant Ana M. Quirk Muncie, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Following a four-day jury trial, Brandon Hodge was convicted of murder, conspiracy to commit murder, and obstruction of justice, and he was found to be subject to an enhanced penalty for use of a firearm during commission of the murder. On appeal, Hodge presents several issues, which we restate as follows:
1. Did the trial court abuse its discretion in excluding testimony and admitting text messages?
2. Is the evidence sufficient to support his conviction for conspiracy to commit murder?
[¶2] We affirm.
Facts & Procedural History
[¶3] Hodge and Morgan Bell have known each other for most of their lives. Their mothers are best friends. For nearly a year, Morgan was in an abusive relationship with Robert "Trey" Scott. The two had lived together on and off at Trey's house until Morgan moved out for the last time on February 13, 2021.
Trey was being evicted from his house and, according to his mother, had to be out of his house by March 4, 2021.
[¶4] During the early morning hours of February 28, 2021, Hodge and Morgan were in a silver PT Cruiser and drove to Trey's home. They circled Trey's house several times before Morgan got out of the car and went inside. Hodge parked the car in an alley that ran next to Trey's house. When Morgan exited the house, Trey followed. Hodge, using the rearview mirror, watched them walk toward the car he was sitting in. Hodge told police that Trey was yelling and hit Morgan with what he thought was a gun. Hodge then opened the car door and immediately fired his shotgun at Trey. As Trey ran around the car, Hodge fired three more shots at Trey. Hodge and Morgan then left the scene in the PT Cruiser.
[¶5] Austin Kiser, Trey's neighbor, was getting ready for work when he heard what he believed to be two shotgun blasts close to his house. His mother was also awake, and she too heard what she thought was gunfire. Austin immediately looked out the window and saw a silver PT Cruiser driving down the alley. Austin ran to the alley and saw Trey lying on the ground. Austin rendered aid until police arrived. Trey was eventually transported to the hospital where he died.
[¶6] During their investigation, detectives located a silver PT Cruiser on South Jersey Street at a house where Morgan's mother lived. They set up surveillance at that address and observed Morgan arrive at the house, go inside, and then leave and walk between nearby houses. Morgan returned five to ten minutes later with another individual. They both went inside the Jersey Street home and soon exited with a plastic tub of cleaning supplies. At that point, Morgan was taken into custody. Later that day, Hodge turned himself in to police.
[¶7] In his video-recorded statement to police, Hodge, while motioning as if he was firing a shotgun, explained: "As soon as . . . the door opened that's when I, 'boom'". State's Exhibit 171 at 8:15-8:20. Hodge told the detective that he was aiming for the "centerfold" and that after Trey ran around the car and seemed to go over a fence, he fired three more times, leaving one round in his shotgun. Id. at 7:50-8:05. Hodge also stated to the detective, "As soon as I seen him, I took his life." Id. at 27:50-28:00. Hodge admitted to the detective that prior to the shooting, he knew about a bounty on Trey's head, having heard about it on the street, and had asked Morgan, "Is there really $45k on the table?" to which Morgan responded affirmatively "multiple times." Id. at 26:35-26:45. A couple hours after the shooting, Hodge stated that Morgan called Troy and told him, "He's done." Id. at 40:25. In a jailhouse call to his mother, and when discussing hiring an attorney, Hodge asked, "Where's that money from Troy? . . . Tell you what, if I did this shit for nothing, I'll smoke his ass when I get out." State's Exhibit 174 at 3:10-3:30.
[¶8] On March 5, 2021, the State charged Hodge with murder, conspiracy to commit murder, a Level 1 felony, and obstruction of justice as a Level 6 felony. The State also filed a firearm enhancement. A four-day jury trial commenced on December 4, 2023. At the beginning of the trial, Hodge's counsel requested a separation of witnesses, which the trial court granted. At the conclusion of the evidence, the jury found Hodge guilty as charged. The jury also determined that Hodge used a firearm in the commission of the murder. On January 5, 2024, the trial court sentenced Hodge to an aggregate term of 112 years in the Indiana Department of Correction. Hodge now appeals. Additional facts will be provided as necessary.
Discussion & Decision
1. Admission of Evidence
[¶9] A trial court has inherent discretionary power regarding the admission of evidence, and we will review its evidentiary decisions only for an abuse of discretion. Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007). An abuse of discretion occurs if a trial court's decision to admit or exclude evidence is clearly against the logic of the facts and circumstances before it. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). To reverse a trial court's decision to exclude evidence, there must be error that affects the defendant's substantial rights. Vasquez, 868 N.E.2d at 473.
[¶10] Hodge first argues that the trial court abused its discretion by not permitting him to call Troy Bell as a witness. On the third day of the trial, Hodge's counsel informed the court that Troy had been sitting in the gallery for approximately forty-five minutes and that, although Troy was not on his witness list, he wanted to call him as a witness. Hodge's counsel explained that he did not know how to locate Troy and that he had not spoken with him prior to that day. The State objected on grounds of the witness separation order. The trial court denied Hodge's request to call Troy as a witness due to the separation of witness order. Hodge did not make an offer of proof.
The State also objected on grounds that Troy had not been included on Hodge's witness list.
[¶11] Indiana Evidence Rule 615, which governs separation of witnesses, requires a trial court to grant a request for witness separation, subject to certain exceptions not applicable here. See Tavake v. State, 131 N.E.2d 696, 704-05 (Ind.Ct.App. 2019), trans. denied. We review the exclusion of evidence based on a violation of a separation order for abuse of discretion. Jiosa v. State, 755 N.E.2d 605, 607 (Ind. 2001). We further note that to preserve an issue for appeal with respect to the exclusion of evidence, a defendant must make an offer of proof at trial regarding the excluded evidence, or the evidence must have been clear from the context. Harman v. State, 4 N.E.3d 209, 215 (Ind.Ct.App. 2014), trans. denied. That is, a defendant's offer of proof must include what the substance of the evidence would be, as well as an explanation for its admissibility. Id. Failure to make an offer of proof results in waiver of the claim. King v. State, 799 N.E.2d 42, 48 (Ind.Ct.App. 2003), trans. denied.
[¶12] Here, Hodge did not make an offer of proof indicating the substance of the testimony he intended to solicit from Troy Bell. He has therefore waived this claim for review.
[¶13] Waiver notwithstanding, we cannot say the trial court abused its discretion in excluding Troy as a witness for Hodge. Our Supreme Court has provided factors helpful in determining whether to exclude a witness including when the parties first knew of the witness and the importance of the witness's testimony. Vasquez, 868 N.E.2d at 476.
[¶14] From the beginning of the case, Hodge was aware of Troy's possible involvement in Trey's death due to his offer of a bounty and yet, Hodge did not include Troy on his witness list. From this, it can be inferred that Hodge did not consider Troy's testimony to be important to his defense until the third day of the trial when Troy appeared in the courtroom. Further, to the extent Hodge wanted to elicit testimony from Troy about a possible bounty on Trey's head, we note that such evidence was before the jury through the admission of Hodge's recorded interview with police. Under these circumstances, we cannot say the trial court abused its discretion in excluding Troy's testimony.
[¶15] Hodge also argues that the trial court abused its discretion in admitting photographs of Morgan's cell phone that showed messages between Morgan and Kyler Musick, with one message written by Morgan stating that she was "thinking about killing Trey." State's Exhibit 100. Hodge objected to the admission of these texts on grounds of improper foundation, hearsay, relevance, and the fact that the defense was unable to cross-examine Musick.
[¶16] Even assuming error in the admission of this evidence, we find any such error would have been harmless. As our Supreme Court has recently clarified, for non-constitutional errors, like the one here, our harmless-error analysis is found in Appellate Rule 66(A):
No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023). Under this "probable impact test," Hodge bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below. See id. at 492.
[¶17] Here, in light of all the evidence presented, as we set out in further detail below, we conclude that even assuming error in the admission of this challenged evidence, the probable impact of any such error was sufficiently minor so as not to undermine our confidence in the jury's verdicts.
2. Sufficiency
[¶18] Hodge argues that the evidence is insufficient to support his conviction for conspiracy to commit murder. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016). Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. "We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence." Id. Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[¶19] In order to convict Hodge of Level 1 felony conspiracy to commit murder, the State was required to prove that he, with the intent to commit murder, agreed with another person or persons to commit murder and committed one or more overt acts in furtherance of that agreement. Ind. Code § 35-42-1-1(1); I.C. § 35-41-5-2(a)(2). In challenging his conviction, Hodge argues that the State's evidence did not establish that there was an agreement between Morgan and him to murder Trey.
[¶20] The State is not required to establish the existence of a formal express agreement to prove a conspiracy. Cockrell v. State, 743 N.E.2d 799, 804 (Ind.Ct.App. 2001). "'It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense.'" Weida v. State, 778 N.E.2d 843, 847 (Ind.Ct.App. 2002) (quoting Porter v. State, 715 N.E.2d 868, 871 (Ind. 1999)). An agreement can be inferred from circumstantial evidence, which may include the overt acts of the parties in furtherance of the criminal act. Id.
[¶21] Here, the jury heard that Hodge and Morgan were lifelong friends and had grown up together as their mothers were best friends. The jury was also presented with a video recording of Hodge's own statements made during an interview with police. In that recording, Hodge admitted to hearing on the street about a possible bounty Troy had placed on Trey's head. Before Hodge and Morgan went to Trey's house during the early morning hours of that February night, Hodge asked Morgan about the possible bounty and she confirmed it was true. They then drove to Trey's house and Morgan went inside while Hodge waited in the car in the alley. When Morgan came out of the house, Trey followed her. Hodge stated that he shot him "as soon as [he] seen him." State's Exhibit 171 at 27:55-27:58. After they left the scene, Morgan called Troy and told him, "He's done." Id. at 40:20-40:25.00. Hodge also stated in the interview that he and Morgan had planned to go to Florida because they believed that they could not be extradited back to Indiana. Further, the jury heard a jail call in which Hodge, while talking to his mother about hiring an attorney, asked "Where's that money from Troy? . . . If I did this shit for nothing, I'll smoke his ass when I get out." State's Exhibit 174 at 3:10-3:25. From this evidence and the reasonable inferences that can be drawn therefrom, the jury could have concluded beyond a reasonable doubt that Hodge and Morgan had an agreement to murder Trey. The evidence is sufficient to support Hodge's conviction for conspiracy to commit murder.
[¶22] Judgment affirmed.
Bailey, J. and Mathias, J., concur.