David A. Howell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In challenging his conviction for Level 6 felony criminal recklessness, David Howell contends that the trial court abused its discretion in admitting audio recordings of several telephone calls (“the Recordings”) that he made to Brooke Allison from the Delaware County Jail (“the Jail”). Specifically, Howell argues that the Recordings should not have been admitted into evidence because they contained references to prior instances of violent and harassing conduct by Howell in violation of Indiana Rule of Evidence 404(b). Because the record does not support this argument, we affirm.

Facts and Procedural History

[2] In early 2024, Howell and Allison were involved in a romantic relationship and lived together in Muncie. The relationship ended “[t]oward the end of March.” Tr. Vol. p. 78. The pair's split was not “agreeable[.]” Tr. Vol. II p. 78.

[3] On May 6, 2024, Allison stopped by a Muncie gas station to purchase cigarettes and a soft drink for her uncle. After Allison arrived at the gas station, she observed that Howell was standing in the entryway. Allison returned to her vehicle and began “fumbling for [her] keys to leave.” Tr. Vol. II p. 79. Howell approached Allison and lifted up his shirt to show Allison that he had a handgun in his waistband. Allison was frightened by Howell and left the gas station quickly, driving toward her uncle's home at a high rate of speed.

[4] At some point, Allison realized that Howell was following her. Howell followed her all the way to her uncle's home. When Allison pulled into her uncle's driveway, she “frantically jump[ed] out of the [vehicle]” and ran inside. Tr. Vol. II p. 81. Once inside, she screamed “[c]all the cops! He's like following me! There's a gun!” Tr. Vol. II p. 81. Moments later, Allison heard five gunshots. Allison's uncle's home was struck and damaged by three of the bullets.

[5] On May 28, 2024, the State charged Howell with Level 6 felony criminal recklessness. While being held in the Jail prior to trial, Howell made several calls to Allison. At the beginning of these calls, an automated message indicated that Allison was receiving a call from an inmate in the Jail and notified the participants that their conversations were subject to monitoring and recording.¹

[6] On July 5, 2024, Howell called Allison, who told him that she had been trying to add money to his account at the Jail. After some discussion about the money, Howell told Allison that he would not even be incarcerated if she would go talk to the prosecutor and recant her allegations. Howell instructed Allison to tell the prosecutor that “it was all a lie.” State's Ex. 7 at 4:55–5:05. Howell reiterated numerous times that Allison should tell the prosecutor that she would not testify against him.

[7] After a brief interruption for an accidentally disconnected call, Howell again instructed Allison to contact the prosecutor. After Allison indicated that she would have to do it on the following Monday, Howell instructed her to send a message right away and not to wait. Howell indicated that he was sorry about a misunderstanding they had had while they were together and blamed it on his supposed drug use. Howell then returned to the subject of Allison refusing to testify against him, stating “as long as you don't come to court, then everything's gonna be fine. I'll be out.” State's Ex. 8 at 9:00–9:10. He then again instructed Allison to contact the prosecutor.

[8] On July 12, 2024, Allison told Howell that she had scheduled a time to meet with the prosecutor, and Howell said, “good” and reminded her to “just tell them it was all a lie.” St. Ex. 9 at 0:51–0:54. Howell again instructed Allison to tell the prosecutor that she did not want to press charges and assured her that she “won't get in any trouble.” State's Ex. 9 at 0:58–1:00. Howell called Allison again later that same day. During the second call, Allison told Howell that someone had reported her to the Indiana Department of Child Services (“DCS”) and that someone from DCS would be reaching out to ask him whether she had been in communication with him. Howell instructed Allison to tell DCS that they had not talked and indicated that he would do the same. Howell reiterated that Allison should not tell anyone that they had been talking. Howell again instructed Allison to tell the prosecutor that everything she had said about Howell's conduct was a lie. Howell reiterated that she would not get in trouble and claimed that he would then be released from the Jail. Howell promised Allison that he would be the man he had been before he had used drugs and let them “take control.” State's Ex. 10 at 6:32–6:47. He claimed to have gone to a “very deep, dark place” after Allison left him and that he loved her. State's Ex. 10 at 7:22–7:24.

[9] On July 14, 2024, Howell called Allison and again instructed her to tell the prosecutor that she was not going to testify, even if the prosecutor told her that she could get in trouble. Allison questioned whether she could really get in trouble for recanting her allegations, and Howell assured her that “[i]f they try telling you that, you can't.” State's Ex. 11 at 3:32–3:36.

[10] During a call on July 16, 2024, Howell instructed Allison that “whatever you do, whatever they say, just tell them it's a lie and you're not gonna testify.” State's Ex. 12 at 1:08–1:15. Later that day, Howell again called Allison to say, “just no matter what they say, tell them it's a lie and you're not going to testify.” State's Ex. 13 at 0:14–0:20. When Allison asked if she would “get in trouble[,]” Howell responded “[y]ou can't.” State's Ex. 13 at 0:21–0:24, 0:28–0:30. Howell told Allison that the prosecutor's office was going to try to “scare [her]” and that she should just not go to the meeting with the prosecutor if she felt like she could not tell the prosecutor what he wanted her to tell them. State's Ex. 14 at 0:55–1:10. Alternatively, Howell suggested that Allison contact his attorney and tell him that she wanted to recant her original allegations and would not testify against Howell.

[11] At trial, the State moved to admit the Recordings. Howell objected, alleging, inter alia, that the admission of the Recordings would violate Evidence Rule 404(b) because they contained references to prior instances of violent and harassing conduct by Howell. The trial court reviewed the Recordings and found that while they did contain two references to Howell having previously used drugs, there was “nothing on [the Recordings] about anything to do with their relationship or prior issues in the relationship, nothing like that.” Tr. Vol. II p. 90. The trial court overruled Howell's objection, noting that there had been no references to prior bad conduct apart from the two references to drug use by Howell, which were merely “general statement[s]. It wasn't anything specific.” Tr. Vol. II p. 91. The jury ultimately found Howell guilty as charged, after which the trial court sentenced him to two and one-half years of incarceration.

Discussion and Decision

[12] Howell contends that the trial court abused its discretion by admitting the Recordings. The “admission of evidence at trial is a matter we leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259–60 (Ind. 2013) (internal citation omitted). “We review these determinations for abuse of that discretion and reverse only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.” Id. at 260 (internal citation omitted). “We may affirm a trial court's judgment if it is sustainable on any basis in the record.” Estrada v. State, 969 N.E.2d 1032, 1038 (Ind. Ct. App. 2012) (internal citation omitted), trans. denied.

[13] Evidence Rule 404(b)(1) provides that “[e]vidence 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.” However, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evidence Rule 404(b)(2). Evidence Rule 404(b) was “designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities, the so called ‘forbidden inference.’ ” Hicks v. State, 690 N.E.2d 215, 218–19 (Ind. 1997).

[T]he standard for assessing the admissibility of 404(b) evidence in Indiana is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403. When inquiring into relevance, the court may consider any factor it would ordinarily consider under Rule 402.

Id. at 221 (footnote omitted).

[14] Howell claims that “[t]he statements contained in the jail calls should not have been admitted because they contained improper character evidence under Indiana Rule of Evidence 404(b). In the calls, [Howell] and [Allison] make several statements reference prior instances of violence and harassment by [Howell].” Appellant's Br. pp. 8–9. Howell further claims that

the statements made in the jail calls have no relevance other than [Howell's] propensity to commit the charged act. That there had been prior instances of violent and harassing conduct by [Howell] is irrelevant to the issue of whether or not he fired gunshots at the alleged victim's residence. However, evidence of such prior conduct produces a strong prejudicial effect on the jury while having no probative value.

Appellant's Br. p. 9. Howell raised substantially the same claim in objecting to the admission of the recordings at trial. After reviewing the recordings, the trial court overruled Howell's objection, stating that there was nothing in the Recordings “about anything to do with their relationship or prior issues in the relationship, nothing like that.” Tr. Vol. II p. 90. Upon review, we also determine that there was nothing in the Recordings that detailed prior instances of violence or harassment by Howell.²

[15] The overwhelming focus of Howell's statements during the calls was his repeated attempts to pressure Allison to recant her allegations against him. “Any testimony tending to show an accused's attempt to conceal implicating evidence or to manufacture exculpatory evidence may be considered by the trier of fact as relevant since revealing a consciousness of guilt.” Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983). We applied this holding in Cobb v. State, 222 N.E.3d 373, 387 (Ind. Ct. App. 2023), trans. denied, in which we concluded that jail telephone calls from the defendant to a potential witness in his trial were relevant as they supported the inference that defendant was attempting to influence the witness's testimony.

[16] During the eight calls, Howell repeatedly instructed Allison to contact the prosecutor and to say that her prior allegations had been a lie. Howell also repeatedly told Allison that he loved her, he would be released, and everything would be fine if she simply refused to testify. Howell also suggested the alternative approach of Allison contacting his attorney if she felt that she was unable to recant her statements to the prosecutor directly. The jury, acting as the trier-of-fact, could have interpreted Howell's attempts to convince Allison to recant her prior statements as an attempt by Howell to conceal damaging evidence. Such evidence was relevant as it showed a consciousness of guilt. See Grimes, 450 N.E.2d at 521; Cobb, 222 N.E.3d at 387. Relevant evidence is generally admissible, see Evid. R. 402, and based on our review of the record, we cannot say that the trial court abused its discretion in admitting the Recordings into evidence.

[17] The judgment of the trial court is affirmed.

FOOTNOTES

1.   After the first few calls, Allison accepted the call before the automated introductory message had finished.

2.   To the extent that the recordings do contain two vague references to prior drug use by Howell, Howell does not make an argument on appeal that the trial court abused its discretion for admitting the references into evidence at trial or that he was prejudiced by the vague references. He has therefore waived any claim that the trial court abused its discretion in admitting the challenged recordings for this reason. See Davidson v. State, 211 N.E.3d 914, 925 (Ind. 2023) (providing that appellant waived argument by failing to raise it in her opening brief).

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.