Dennis Matthew Howard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Dennis Howard appeals his convictions, following a jury trial, of Level 4 felony escape and Class A misdemeanor resisting law enforcement. He claims that the trial court erred when it denied his motion to dismiss based on unsaved police body camera footage. He also contends that the State presented insufficient evidence to convict him of escape as a Level 4 felony and that the court erred when it denied his proposed jury instruction.

[2] We affirm.

Facts & Procedural History

[3] At a June 22, 2021 hearing in the Pulaski Superior Court, the trial court remanded Howard to the custody of the jail after first submitting to a drug screen. After the proceedings had concluded, Probation Officer (PO) Christine Allen administered an oral swab test to Howard in the courtroom; the only other person present was the court reporter. During the few minutes that PO Allen was administering the screen, uniformed Correctional Officer Steven Sewell entered the courtroom to take Howard into custody and escort him to the jail, located in a lower level of the building. Howard initially cooperated but then tried to grab the test tube from PO Allen's hand and began moving toward the courtroom door. Officer Sewell stepped forward and, while reaching for his handcuffs, advised Howard, “We got to go downstairs,” but Howard kept heading toward the door. Transcript Vol. 2 at 221. Officer Sewell tried to stop and handcuff Howard, but Howard refused to cooperate, and the two scuffled out the door and into a vestibule area, where Howard “shoulder check[ed]” Officer Sewell, knocking him off balance. Id. at 222, 236. Officer Sewell fell into a desk, injuring his arm. The scuffle continued and spilled into the public hallway. Howard got away from Officer Sewell, ran down a set of stairs, and, although Officer Sewell was chasing Howard and commanding him to stop, exited the building. Responding officers apprehended Howard about forty minutes later hiding in a large trash receptacle on a nearby construction site.

[4] On June 24, 2021, the State charged Howard with Level 4 felony escape resulting in bodily injury (Count 1), Level 5 felony battery resulting in bodily injury to a public safety official (Count 2), Level 6 felony attempted obstruction of justice (Count 3), and Class A misdemeanor resisting law enforcement (Count 4).

[5] After multiple delays, the trial was scheduled for March 2024. In January 2024, Howard filed a motion to dismiss on the basis that Officer Sewell's body camera footage “contained potentially exculpatory evidence” and was not preserved such that his due process rights were violated. Appendix at 45. He argued that, due to the destruction or loss of the video footage, he was unfairly prejudiced in his ability to present his defense because, to refute law enforcement's claims, he would be “virtually forced” to waive his right to remain silent and testify. Id.

[6] The motion was heard later that month. The State called Sergeant Fred Rogers of the Pulaski County Sheriff's Department (PCSD), who testified about the procedures pertaining to preservation of body cam footage.¹ He explained: after body camera footage was obtained, the officer would place the camera in a docking station, where the footage was automatically uploaded to cloud storage and saved for 184 days, at which time it was purged. To save it for a longer time, the officer would need to, after docking it, separately go to a laptop, desktop, or phone app and label the footage with an identifying case number and mark it to be secured and saved. Sgt. Rogers testified that, in this case, Officer Sewell's footage was not marked to be preserved. Sgt. Rogers acknowledged that the jail commander would have reviewed Officer Sewell's report, in which he indicated that he had body cam footage of the incident, and that the commander could have taken steps for up to 184 days after the incident to mark the footage to be saved. Sgt. Rogers agreed that, as marking and saving was not done in this case, jail personnel failed to follow protocol.

[7] After taking the motion under advisement, the trial court issued an order on February 6, 2024, denying Howard's motion to dismiss. The court observed that, although the State had reported in open court on multiple occasions that the footage was not available, Howard had not filed any motion regarding the matter “[in] the almost 3 years this Case has been pending,” nor had he presented anything at the hearing about “what could conceivably be seen in the video.” Appendix at 47, 50. The trial court determined that the video was not materially exculpatory evidence and was “at best, potentially useful evidence” and that Howard had not alleged the failure to preserve the video was in bad faith. Id. at 50.

[8] At the March 2024 jury trial, PO Allen testified that she observed Howard “wrestling” with Officer Sewell as he tried to stop and handcuff Howard and that, at some point, Officer Sewell was on the ground. Transcript Vol. 2 at 193. The court reporter testified that, although she could not see them once they were in the vestibule, she could still hear Officer Sewell giving Howard loud commands to stop. Another employee with the probation department testified that she was walking toward the courtroom when she saw Howard and Officer Sewell burst out into the hallway and that Howard was “actively fighting” Officer Sewell. Id. at 210.

[9] Officer Sewell testified that he and Howard “kind of fell through [the] door into the vestibule area.” Id. at 222. Officer Sewell described the incident as “a pretty violent interaction” particularly in the vestibule area, where it was “two grown men in a fairly small, compact area with furniture” in an “active fighting situation.” Transcript Vol. 3 at 83. Officer Sewell testified that “it hurt” when his elbow and forearm hit the desk in the vestibule area and that he had two bruises, one on his elbow and another on his forearm. Transcript Vol. 2 at 222, 238.

[10] Officer Sewell testified that he activated his body camera as he entered the courtroom and that, after the incident and pursuant to policy, he placed it on a docking station, where he knew that the footage would be automatically uploaded to online storage. Officer Sewell could not recall if he marked the footage with any incident identifiers or a case number. When asked if the recording was preserved or saved beyond the initial period, Officer Sewell testified that he did not know but that he had completed an incident report, in which he outlined what had occurred and included the fact that his body camera was activated during the incident.

[11] Sgt. Rogers testified that, after taking Howard into custody, he spoke to Officer Sewell and observed “a laceration and redness” to Officer's Sewell's elbow. Transcript Vol. 3 at 50. Consistent with his testimony at the pretrial hearing, Sgt. Rogers explained the system that was then being used to store body camera footage, which, if not marked to be saved, would have been purged from the cloud at 184 days. Sgt. Rogers testified that, in this case, the PCSD had instructed the jail commander to save the footage from Officer Sewell's body camera, but “[i]t was not done” and that policy was not followed. Id. at 46.

[12] Following the presentation of evidence, the court and counsel discussed Howard's proposed jury instructions, including Proposed Instruction No. 1. That instruction directed the jury that, if it found that the State had lost, destroyed, or failed to preserve evidence “important to the issues of this case,” then the jury should weigh the State's explanation, and if the jury found that explanation to be “inadequate,” then the jury “may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the Defendant's guilt.” Appendix at 57. The State objected, arguing that there had been no evidence that the video evidence was material or that the contents of the video would have been anything other than cumulative of the witnesses’ testimonies. The trial court denied the tendered instruction.

[13] The jury found Howard guilty of Counts 1 and 4, and not guilty on Counts 2 and 3. Following a sentencing hearing, the trial court sentenced him to nine years in the Indiana Department of Correction on Count 1 and a consecutive one year in the county jail on Count 4. Howard now appeals. Additional facts will be provided below as needed.

Discussion & Decision

1. Denial of Motion to Dismiss

[14] Howard asserts that Pulaski County officials, whether PCSD or jail personnel, failed to maintain “critical evidence” that would have shown what occurred between Howard and Officer Sewell without any issue of bias or memory and that the trial court erred in denying his motion to dismiss “for what amounted to a Brady violation.” Appellant's Brief at 14, 15. The decision to deny a motion to dismiss is within the sound discretion of the trial court. Pimentel v. State, 181 N.E.3d 474, 479 (Ind. Ct. App. 2022), trans. denied. An abuse of discretion occurs when denial of the defendant's motion to dismiss is contrary to the facts and circumstances before the trial court. Ko v. State, 243 N.E.3d 1153, 1159 (Ind. Ct. App. 2024), trans. denied.

[15] Brady v. Maryland, 373 U.S. 83 (1963) and its progeny apply to the State's failure to disclose favorable evidence that is material to the accused's guilt or punishment. Bates v. State, 77 N.E.3d 1223, 1226 (Ind. Ct. App. 2017). To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense, either because it was exculpatory or impeaching; and (3) that the evidence was material to an issue at trial. Id. Evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Fox v. State, 997 N.E.2d 384, 392 (Ind. Ct. App. 2013), trans. denied.

[16] Recently, in Taylor v. State, 236 N.E.3d 700 (Ind. Ct. App. 2024), where a defendant asserted that destroyed police body camera footage was a Brady violation, this court confirmed that “Brady has no application ․ where the alleged exculpatory evidence no longer exists but its content was nonetheless revealed through testimony at trial.” Id. at 712 (citing to Albrecht v. State, 737 N.E.2d 719, 724 n.2 (Ind. 2000) and Noojin v. State, 730 N.-E.2d 672, 676 n.1 (Ind. 2000)). Such is the case here, where Officer Sewell testified that he activated his body camera when he entered the courtroom, and he described the ensuing altercation with Howard. Other witnesses’ testimony, although less specific, was consistent with Officer Sewell's description of the incident. Because there was trial testimony as to the content of the missing video footage, Brady is inapplicable. That said, criminal defendants have the right to examine physical evidence in the hands of the State, and the failure of the State to preserve such evidence may present grounds for reversal based on denial of due process. Pimentel, 181 N.E.3d at 479.

[17] To determine whether a defendant's due process rights were violated by the State's failure to preserve evidence, we must determine whether the evidence was “materially exculpatory” or “potentially useful.” Id. Exculpatory evidence is evidence “tending to establish a [ ] defendant's innocence.” Ko, 243 N.E.3d at 1159. Evidence is materially exculpatory if it “possesses an exculpatory value that was apparent before the evidence was destroyed” and is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Pimentel, 181 N.E.3d at 479 (cleaned up). Potentially useful evidence, in contrast, is defined as “ ‘evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ ” Alexander v. State, 197 N.E.3d 367, 370 (Ind. Ct. App. 2022) (quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988)).

[18] While a defendant is not required to prove conclusively that the evidence was exculpatory, there must be some indication in the record that the evidence was exculpatory. Pimentel, 181 N.E.3d at 479-80. That is, we cannot assume that the destroyed evidence contained exculpatory material when the record is devoid of such indication. Taylor, 236 N.E.3d at 713.

[19] Here, Howard urges that his two convictions should be vacated “based upon the State's fail[ure] to provide the exculpatory evidence.” Appellant's Brief at 15. However, Howard gives us no reason to believe that the missing video footage was favorable to him, either because it was exculpatory or impeaching. Merely stating that the footage was exculpatory does not make it so. That is, there is no indication that the body camera video had exculpatory value that was apparent before it was lost or destroyed, i.e., that it was materially exculpatory evidence. We agree with the trial court that, at most, it may have been potentially useful evidence.

[20] The State's failure to preserve potentially useful evidence does not constitute a denial of due process unless the defendant can show that the State acted in bad faith. Pimentel, 181 N.E.3d at 480. Here, Howard has neither alleged nor established that the jail acted in bad faith. Accordingly, Howard was not denied due process by the failure to preserve the body camera footage, and the trial court did not err when it denied Howard's motion to dismiss.

2. Sufficiency of Evidence

[21] Howard argues that the evidence was not sufficient to convict him of Level 4 felony escape. When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses. Giden v. State, 150 N.E.3d 654, 662 (Ind. Ct. App. 2020), trans. denied. In conducting our review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). We will affirm unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Giden, 150 N.E.3d at 662.

[22] To convict Howard of Level 4 felony escape the State was required to prove that he “intentionally fle[d] from lawful detention in the Pulaski Superior Court” and while doing so “inflicted bodily injury” on Officer Sewell. Appendix at 42; see also Ind. Code § 35-44.1-3-4(a). Bodily injury is defined as any impairment of any physical condition, including physical pain. Ind. Code § 35-31.5-2-29.

[23] Howard does not dispute that he fled from lawful detention. His argument is that Officer Sewell gave conflicting testimony as to which arm was injured thereby giving rise to “adequate reasonable doubt as to whether [Howard] inflicted any injury at all.” Appellant's Brief at 13. This argument fails for several reasons. First, it is a request to reweigh the evidence, which we cannot do on appeal. Giden, 150 N.E.3d at 662. Second, Officer Sewell's trial testimony was consistent that his left arm was injured in the scuffle and, when presented with deposition testimony where he had identified the injury as being to his right arm, Officer Sewell testified that he was mistaken in his deposition. Third, regardless of which arm, Officer Sewell testified that he suffered injury during the “pretty intense struggle” with Howard and that the injury caused him pain and subsequent bruising. Transcript Vol. 3 at 83. And Sgt. Rogers testified that, after he took Howard into custody, he observed redness and an injury to Officer Sewell's elbow. The State presented sufficient evidence to convict Howard of Level 4 felony escape.²

3. Denial of Proposed Instruction No. 1

[24] The manner of instructing a jury is left to the sound discretion of the trial court. Evans v. State, 81 N.E.3d 634, 637 (Ind. Ct. App. 2017). When reviewing jury instructions, we consider them as a whole and in reference to each other. Id. On review of a trial court's decision to give or refuse a jury instruction, the reviewing court considers whether the instruction is a correct statement of law, whether the substance of the instruction is covered by the other instructions, and whether there is evidence in the record to support the giving of the instruction. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied.

[25] Here, Howard challenges the trial court's decision to deny his Proposed Instruction No. 1:

If you find that the State has intentionally, knowingly, recklessly, or negligently lost, destroyed, or failed to preserve evidence whose contents or quality are important to the issues of this case, then you should weigh the explanation if any given for the loss or unavailability of the evidence. If you find that such explanation is inadequate, then you may draw an inference unfavorable to the State, which in itself may create a reasonable doubt as to the Defendant's guilt.

Appendix at 57. In denying the instruction, the trial court found that Howard had not provided any cases to support what was being proposed and that the instruction “goes beyond what is allowed” and was not written in a way that the jury could understand it. Transcript Vol. 3 at 114.

[26] As authority for Proposed Instruction No. 1, Howard cited to, among other cases, Jewell v. State, 672 N.E.2d 417 (Ind. Ct. App. 1996), trans. denied, where a defendant convicted of burglary and battery asserted on appeal that the failure of police to preserve evidence from the crime scene, including bloody sheets, violated his due process rights. The defendant in Jewell tendered an instruction identical to Howard's Proposed Instruction No. 1, which the trial court denied.

[27] In affirming the trial court's rejection of the instruction, the Jewell court first recognized that the instruction did not represent an affirmative defense and, rather, “merely invited the jury to find reasonable doubt based on the failure to preserve the evidence.” Id. at 425. The court next found that, given the circumstances of the offense – where Jewell beat the unarmed victim, while asleep, with a board and then attacked him with a knife to such an extent that the police had not considered the possibility that the blood at the crime scene could have come from anyone else – “it does not follow logically that the failure of police to preserve evidence ․ would give rise to an inference adverse to the State.” Id. Rather, the court noted, “[f]urther preservation and testing of evidence from the crime scene may well have produced additional evidence against Jewell.” Id. Lastly, the Jewell court observed that, although the failure to preserve potentially useful evidence may constitute a denial of due process where a defendant can show bad faith, Jewell “never seriously argued that the police exercised bad faith” in failing to preserve evidence from the scene. Id. The Jewell court concluded that the instruction was not supported by the evidence and was properly refused.

[28] On appeal, Howard does not explain how the present case is distinguishable from Jewell. Rather, he focuses on other cases that he cited to the trial court in support of his instruction where, if there was evidence that a defendant had destroyed evidence or attempted to procure the absence of a witness, then such evidence was admissible to show guilty knowledge or as an admission of guilt. Howard argues that “the same should be true of the State's conduct in destroying or interfering with evidence, i.e., that such evidence would have been unfavorable to the [S]tate and beneficial to the accused.” Appellant's Brief at 16. Howard has provided us no legal authority for that proposition.

[29] Moreover, as the State points out, Proposed Instruction No. 1 focuses on the absence of the body camera footage, and Indiana courts have disfavored instructions that focus on a single piece of evidence. See Ludy v State, 784 N.E.2d 459, 461 (Ind. 2003) (recognizing that “[i]nstructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved.”).

[30] To the extent that Howard argues “nor is there any dispute that sufficient evidence was presented to support this instruction,” the State disagrees and so do we. Appellant's Brief at 17. First, Proposed Instruction No. 1 required that the contents of the missing evidence be “important to the issues of this case,” and while it was not disputed that the State had failed to preserve the video footage, the materiality of that footage was disputed, with the State maintaining that there was no indication that it would have revealed anything contrary to Officer Sewell's testimony. Appendix at 57. Second, there was no evidence that the failure to preserve the body camera footage was due to bad faith and, given the circumstances here – where there was a witnessed physical altercation with Officer Sewell – the contents of the missing footage may have revealed additional evidence against Howard. Accordingly, as in Jewell, we find that the record did not support giving Proposed Instruction No. 1.

[31] We will not reverse the ruling of the trial court unless the jury instructions, taken as a whole, misstate the law or mislead the jury. Evans, 81 N.E.3d at 637. We are unpersuaded that such is the case here. The trial court did not abuse its discretion when it denied Proposed Instruction No. 1.

[32] Judgment affirmed.

FOOTNOTES

1.   Sgt. Rogers testified that, while the PCSD and the jail were separate entities, the deputies and correctional officers followed the same body camera storage procedures at that time.

2.   Howard suggests that “[h]aving been found not guilty of committing a battery on the same individual, it is reasonable to question how it could have been found that [Howard] inflicted an injury on Officer Sewell.” Appellant's Brief at 13. Howard provides no citation to authority or further argument beyond that singular sentence. Thus, his argument is waived. Ind. Appellate Rule 46(A)(8). Regardless, as the State points out, a battery requires a knowing and intentional touching, Ind. Code § 35-42-2-1, whereas to convict Howard of Level 4 felony escape, the State was required to demonstrate that Howard, while intentionally fleeing from lawful detention, inflicted bodily injury on another person. I.C. § 35-44.1-3-4. The not guilty verdict on the battery count did not preclude the jury from finding Howard guilty on the escape charge.

Altice, Chief Judge.

Judges Vaidik and Scheele concur. Vaidik, J. and Scheele, J., concur.