MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Sep 16 2016, 7:36 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David A. Shircliff                                       Gregory F. Zoeller
Bedford, Indiana                                         Attorney General of Indiana

Jennifer G. Schlegelmilch                                James B. Martin
Anderson, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaaz Alexander Jones,                                    September 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1512-CR-2273
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1402-FA-11



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 1 of 10
                                       Statement of the Case
[1]   Jaaz Alexander Jones appeals his convictions after a jury found him guilty of

      burglary, as a Class A felony, and robbery, as a Class B felony. Jones raises the

      following three issues for our review:

               1.     Whether the trial court erred when it denied Jones’ motion
                      to dismiss, which he had premised on his theory that the
                      State had failed to preserve materially exculpatory, or at
                      least potentially useful, evidence.


               2.     Whether the trial court erred when it instructed the jury.


               3.     Whether the State failed to present sufficient evidence to
                      support Jones’ convictions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In the overnight hours of February 12 to 13, 2014, Alexis Daniels, Cortez

      Collins, and Lawrence Anderson planned to break into the apartment of Tim

      Mounts in Lafayette to rob him. At Collins’ insistence, the group waited for

      another associate of Collins’, Jones, to arrive from Indianapolis to accompany

      them. Once Jones arrived, he and Anderson drove to Mounts’ apartment in

      Jones’ white Chevy Impala. The others went in Collins’ black Chevy Monte

      Carlo.


[4]   Jessica Wise, Mounts’ girlfriend, lived at Mounts’ apartment and was watching

      a DVD of Jurassic Park on a PlayStation 3 when Daniels knocked on the

      Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 2 of 10
      apartment door. Although Mounts was not home at the time, Wise recognized

      Daniels, and, upon opening the door, Daniels entered the apartment with three

      African-American men who had their faces covered and were armed with

      firearms. One of the men severely beat Wise while the other two searched the

      apartment. The intruders eventually left with a safe and the PlayStation 3.


[5]   Wise contacted law enforcement shortly thereafter and identified Daniels.

      Lafayette Police Department (“LPD”) Officer Nathan Lamar went to nearby

      Cambridge Estates, where Daniels lived, to find her. Upon pulling into

      Cambridge Estates, Officer Lamar observed two black males. Officer Lamar

      stopped the two men, one of whom was Jones, and asked if they lived there.

      Jones responded that he did not. Jones then informed the officer that he had a

      firearm, and Officer Lamar safely disarmed Jones. Jones further informed

      Officer Lamar that he had arrived in Lafayette about twenty minutes

      beforehand in his nearby Chevy Impala. Officer Lamar walked over to the

      Impala and observed a PlayStation 3 in the back seat. He removed the

      PlayStation 3 from the Impala and powered it on from his own vehicle, at

      which time he was able to eject a DVD of Jurassic Park from the machine.

      Officer Lamar then arrested Jones. Officers arrested Jones’ confederates a short

      time later. The State charged Jones with numerous offenses, including

      burglary, as a Class A felony, and robbery, as a Class B felony.


[6]   Officers impounded Jones’ Impala and searched it. In their search, the officers

      found a ski mask, which one of the intruders at Mounts’ apartment had worn.

      While the vehicle was in the LPD’s possession, Jones’ counsel did not

      Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 3 of 10
      investigate the vehicle or place an evidentiary hold it. Thereafter, the LPD

      notified Jones that he could retake possession of the Impala from Jim’s Garage,

      where it had been impounded. On March 18, 2014, Jim’s Garage sent a notice,

      by way of certified mail, to Jones stating that the Impala would be sold at public

      auction as an abandoned vehicle if not claimed. The vehicle went unclaimed,

      and Jim’s Garage sold it on May 8.


[7]   On July 22, Jones moved to dismiss the State’s charges against him on the

      theory that the Impala was materially exculpatory, or at least potentially useful,

      evidence, and the sale of the Impala denied him a fair trial. The trial court held

      its ruling on Jones’ motion in abeyance pending trial. At his ensuing jury trial,

      Jones renewed his motion to dismiss, at which time the court denied the

      motion.


[8]   At trial, Daniels testified against Jones. During closing, Jones argued to the

      jury that it should draw a negative inference against the State from the sale of

      the Impala because the State had asserted that Anderson, while wearing a

      bloody shirt following the intrusion into Mounts’ apartment, had ridden in the

      Impala, and that the absence of any blood evidence inside the Impala would

      have exonerated Jones of the State’s allegations. Jones also asserted that the

      Impala had unique features, such as unusual headlights, that would have made

      it recognizable by witnesses who did not describe any such characteristics.

      Jones further requested the court to instruct the jury that it may draw a negative

      inference against the State from the sale of the Impala, but the trial court denied

      Jones’ request.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 4 of 10
[9]    The jury found Jones guilty as charged. The trial court entered judgment of

       conviction on burglary, as a Class A felony, and robbery, as a Class B felony.

       This appeal ensued.


                                      Discussion and Decision
                                       Issue One: Motion to Dismiss

[10]   Jones first asserts that the trial court erred when it denied his motion to dismiss

       because the Impala was materially exculpatory, or at least potentially useful,

       evidence. Generally, we review the trial court’s ruling on a motion to dismiss

       for an abuse of discretion. Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App.

       2014), trans. denied. An abuse of discretion occurs if the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before it, or if

       the court’s judgment is contrary to law. See id.


[11]   Jones asserts that the State denied him his due process rights when it failed to

       preserve the Impala. In such cases, “we must first decide whether the evidence

       is potentially useful evidence or material[ly] exculpatory evidence.” State v.

       Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010).


               Evidence is materially exculpatory if it “possess[es] an
               exculpatory value that was apparent before the evidence was
               destroyed, and [it is] of such a nature that the defendant would be
               unable to obtain comparable evidence by other reasonably
               available means.” Noojin v. State, 730 N.E.2d 672, 675-76 (Ind.
               2000) (quoting California v. Trombetta, 467 U.S. 479, 489 (1984)).
               Exculpatory evidence is defined as “[e]vidence tending to
               establish a criminal defendant’s innocence.” Black’s Law
               Dictionary 597 (8th ed. 2004). A prosecutor’s duty to preserve

       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 5 of 10
               exculpatory evidence is limited to evidence that might be
               expected to play a significant role in the defendant’s defense.
               Noojin, 730 N.E.2d at 675 (quoting Trombetta, 467 U.S. at 488).
               Failure to preserve material[ly] exculpatory evidence violates due
               process regardless of whether the State acted in good or bad faith.
               Blanchard v. State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004) (citing
               Arizona v. Youngblood, 488 U.S. 51, 57 (1988)).


               Evidence is merely potentially useful if “no more can be said
               than that it could have been subjected to tests, the results of
               which might have exonerated the defendant.” Id. at 26 (citing
               Youngblood, 488 U.S. at 57). The State’s failure to preserve
               potentially useful evidence does not constitute a violation of due
               process rights unless the defendant shows bad faith on the part of
               the police. Id. at 26-27.


       Id. (alterations original).


[12]   Here, Jones asserts that his white Chevy Impala was not the same white Chevy

       Impala identified by witnesses as one of the two vehicles that transported the

       intruders to and from Mounts’ apartment. According to Jones, had the State

       preserved his Impala, he would have been able to demonstrate that there was

       no blood inside the vehicle, which, he alleges, would have been relevant to

       discount the State’s assertion that Anderson was wearing a bloody shirt when

       he rode in the vehicle. Jones further argues that his vehicle had unique

       characteristics, which the witnesses who had observed the Impala did not

       suggest they had noticed.


[13]   Accordingly, Jones first contends that his Impala was materially exculpatory

       evidence. We cannot agree. Daniels testified that she entered Mounts’

       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 6 of 10
       apartment with Jones and that she observed Jones inside the apartment. She

       testified that Jones drove a white Chevy Impala. And officers found a

       PlayStation 3 inside Jones’ Impala that matched the machine stolen from

       Mounts’ apartment.


[14]   At best, had the State preserved Jones’ Impala he could have impeached

       Daniels’ description of his car. And he could have, as he did anyway, cast

       doubt on the presence of Anderson in his car because no blood evidence had

       been discovered. But that does not place the Impala at a level that it “tend[s] to

       establish a criminal defendant’s innocence.” Durrett, 923 N.E.2d at 453-54.

       And neither did the Impala possess “an exculpatory value that was apparent”

       before it was sold. Id. (quotation marks omitted). Thus, the Impala was not

       materially exculpatory evidence.


[15]   In the alternative, Jones asserts that the Impala was at least potentially useful.

       To demonstrate that he is entitled to have the charges against him dismissed

       based on the State’s failure to preserve potentially useful evidence, Jones must

       demonstrate that the State’s failure to preserve that evidence was in bad faith.

       See id. “Bad faith is defined as being not simply bad judgment or negligence[]

       but rather implies the conscious doing of wrong because of dishonest purpose or

       moral obliquity.” Wade v. State, 718 N.E.2d 1162, 1166 (Ind. Ct. App. 1999)

       (quotation marks omitted), trans. denied. Simply, Jones has presented no

       evidence of bad faith on the part of the State. Accordingly, we affirm the trial

       court’s denial of Jones’ motion to dismiss.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 7 of 10
                                       Issue Two: Jury Instructions

[16]   Jones next contends that the trial court abused its discretion when it declined to

       give one of his proffered jury instructions. As our supreme court has explained:


               Because instructing the jury is a matter within the sound
               discretion of the trial court, we will reverse a trial court’s decision
               to tender or reject a jury instruction only if there is an abuse of
               that discretion. We determine whether the instruction states the
               law correctly, whether it is supported by record evidence, and
               whether its substance is covered by other instructions. Jury
               instructions are to be considered as a whole and in reference to
               each other; error in a particular instruction will not result in
               reversal unless the entire jury charge misleads the jury as to the
               law in the case.


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (citations and quotation marks

       omitted).


[17]   Here, Jones proffered a jury instruction regarding the State’s purported failure

       to preserve the Impala. But Jones’ argument on this issue is premised on his

       assertion that the evidence demonstrated that the Impala was either materially

       exculpatory or potentially useful evidence. See Appellant’s Br. at 21-22. As

       explained above, the evidence does not support those conclusions. Moreover,

       the trial court did instruct the jury that it could find reasonable doubt based on a

       lack of evidence. Accordingly, Jones’ proffered jury instruction was not

       supported by the evidence, and the jury instructions as a whole did not

       “mislead[] the jury as to the law in the case.” Pattison, 54 N.E.3d at 365. Thus,




       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 8 of 10
       the trial court did not abuse its discretion when it rejected Jones’ proffered jury

       instruction.


                                     Issue Three: Sufficient Evidence

[18]   Finally, Jones asserts that the State failed to present sufficient evidence to

       support his convictions. Our standard for reviewing the sufficiency of the

       evidence needed to support a criminal conviction is as follows:


               First, we neither reweigh the evidence nor judge the credibility of
               witnesses. Second, we only consider the evidence supporting the
               [verdict] and any reasonable inferences that can be drawn from
               such evidence. A conviction will be affirmed if there is
               substantial evidence of probative value supporting each element
               of the offense such that a reasonable trier of fact could have
               found the defendant guilty beyond a reasonable doubt. It is the
               job of the fact-finder to determine whether the evidence in a
               particular case sufficiently proves each element of an offense, and
               we consider conflicting evidence most favorably to the trial
               court’s ruling.


       Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation

       marks omitted).


[19]   In essence, Jones’ entire argument on this issue is that the State failed to present

       sufficient evidence to support his conviction because certain portions of

       Daniels’ testimony were not properly supported by independent evidence

       showing the existence of a conspiracy with Jones. See, e.g., Lott v. State, 690
N.E.2d 204, 209 (Ind. 1997) (holding that, to admit a statement of a co-

       conspirator as nonhearsay, the State must “provide other evidence . . . the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016   Page 9 of 10
       conspiracy existed as a precondition to admitting” the out-of-court statements).

       While the trial court did not enter a judgment of conviction against Jones on

       the conspiracy charges, nonetheless Daniels’ testimony was substantive

       evidence against Jones on all allegations.


[20]   Assuming for the sake of argument that Daniels’ testimony regarding out-of-

       court statements made by her confederates was inadmissible, the State still

       presented sufficient independent evidence to support Jones’ convictions.

       Daniels testified that she personally saw Jones enter Mounts’ apartment,

       participate in the intrusion, and drive a white Chevy Impala. Tr. at 296-97.

       Wise testified that Daniels entered the apartment with three armed, African-

       American men. Officer Lamar observed Jones near Daniels’ apartment shortly

       after the intrusion. Officer Lamar found a firearm on Jones and, in Jones’

       white Chevy Impala, a PlayStation 3 with a DVD of Jurassic Park inside it,

       which matched the PlayStation that had been stolen from Mounts’ apartment.

       A reasonable fact-finder could conclude from that evidence alone that Jones

       committed burglary, as a Class A felony, and robbery, as a Class B felony. See

       Meehan v. State, 7 N.E.3d 255, 258-59 (Ind. 2014). Thus, we affirm Jones’

       convictions.


[21]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1512-CR-2273 | September 16, 2016 Page 10 of 10