Elizabeth Joanne Fox-Doerr, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] On February 26, 2019, Robert Doerr was shot and killed while standing in his driveway. In August of 2022, Doerr's wife, Elizabeth Fox-Doerr, was charged with aiding, inducing, or causing murder (“murder”) and Level 1 felony conspiracy to commit murder. A jury found Fox-Doerr guilty as charged, and the trial court sentenced her to an aggregate, ninety-year term of incarceration. Fox-Doerr challenges her convictions on appeal, raising numerous evidentiary claims. Fox-Doerr also challenges the sufficiency of the evidence to sustain her convictions. We affirm.

Facts and Procedural History

[2] In February of 2019, Fox-Doerr and Robert, a longtime Evansville firefighter, had been married for approximately six months and were living in a home on Oakley Street in Evansville. Fox-Doerr had been married “[t]hree or four times” prior to marrying Robert. Tr. Vol. IV p. 13. At the time, Fox-Doerr's sister, Amanda (“Mandy”) Fillmore, was engaged to Larry Ali Richmond, Sr. (“Richmond”). Mandy had told Fox-Doerr that Richmond “had a past” and had “been in jail for 20 years for killing a man.” Tr. Vol. IV p. 36. While dating Mandy, Richmond had also dated a number of other women, including Laura Riggle, who had given him an ANS telephone that had belonged to her.

[3] Robert, Fox-Doerr, Mandy, and Richmond had spent time together socially at family functions and had gone on some double dates. On one of their double dates, Richmond had stated “it only takes a couple of pops to get rid of somebody[,]” allegedly making Robert and Fox-Doerr uncomfortable because they believed he was referring to shooting someone. Tr. Vol. IV p. 201. Between December 26, 2018, and February 26, 2019, Richmond's iPhone called Fox-Doerr's cellular telephone fifteen times. Fox-Doerr's contact information was saved in Richmond's telephone under the name “Becky.” Tr. Vol. V. p. 34. Richmond's contact information was saved in Fox-Doerr's telephone under the name “Larry Ali.” Tr. Vol. V p. 80.

[4] At some point prior to February of 2019, Richmond's son Larry Richmond, Jr. (“Junior”) had observed Richmond and Fox-Doerr kissing. In February of 2019, Junior was working in a pawn shop and, at Richmond's request, stole a Taurus Judge handgun from the pawn shop and gave it to him. A Taurus Judge handgun is one of the very few firearms made that is capable of firing both standard projectiles and shotgun shells.

[5] On February 26, 2019, Robert worked a partial shift at the firehouse. Despite the fact that Richmond had told Mandy that he was at his mother's home, starting at approximately 6:35 p.m., Richmond's iPhone was located in close proximity to Robert and Fox-Doerr's home.¹ At 6:46 p.m., Richmond called Fox-Doerr and they spoke for several minutes. During that call, Fox-Doerr told Richmond that Robert would be home soon. Afterwards, Fox-Doerr deleted the call from her telephone call log; it was the only call she had received that day that she deleted.

[6] Robert arrived home at 7:04 p.m. As Robert walked up his driveway towards his home, he was shot three times in the upper back or lower neck. One of the gunshot wounds was caused by a shotgun while the other two were caused by handgun projectiles. Robert died as a result of his wounds. Given the nature of Robert's wounds, it was determined that the individual who had shot Robert had used a Taurus Judge handgun. Shortly after the shooting, Richmond had been captured on surveillance video from a Circle K gas station a few blocks north of Robert and Fox-Doerr's home.

[7] The day after Robert had been killed, Fox-Doerr visited the firehouse and inquired about Robert's pension. Mandy and Richmond brought a sympathy card to Fox-Doerr at Robert's funeral. Inside was a handwritten note from Richmond indicating that he and Fox-Doerr needed to talk. The note provided a telephone number, which was for the telephone that Riggle had given to Richmond. Fox-Doerr was interviewed by law enforcement twice after Robert's funeral; she initially lied about having spoken to Richmond on the day of Robert's murder but eventually admitted that she had.

[8] The State convened a grand jury (“the Grand Jury”) to investigate the matter. Fox-Doerr testified before the Grand Jury. In her testimony, Fox-Doerr admitted that her and Robert's “sex life” had fallen “off a little bit” since they had gotten married. Tr. Vol. VI p. 162. She claimed to have not known Richmond's last name and that she had only spoken to him on the telephone two or three times. Fox-Doerr admitted to having lied to law enforcement about talking to Richmond on the telephone on the day of Robert's murder and to have deleted the call from her call log. Fox-Doerr further admitted to having told Richmond that Robert would be home soon minutes before Robert's murder. Fox-Doerr claimed to have no explanation for why Richmond would have been near her home on the night of Robert's murder. Fox-Doerr also claimed to have not recognized her own telephone number, claimed to have not known that Richmond had been in prison for murder, and had no explanation for why Richmond had hidden a note in the sympathy card indicating that they needed to talk. Fox-Doerr also claimed that she “didn't realize” that she had told law enforcement that she “didn't intend for this to happen, I didn't intend for anybody to kill him, I didn't intend for him to get hurt.” Tr. Vol. VI p. 180.

[9] On August 18, 2022, the State charged Fox-Doerr with aiding, inducing, or causing murder and Level 1 felony conspiracy to commit murder. While Richmond and Fox-Doerr were both incarcerated in the Vanderburgh County Jail prior to their respective criminal trials, Richmond attempted to pass a letter (“the ‘Hello Barbie’ letter”) to Fox-Doerr through the laundry services. The “Hello Barbie” letter read as follows:

Hello Barbie

Just wanted to drop you a line or two. Hope your [sic] holding up ok. The State is going to keep resetting your trial date hoping to get you to take a plea deal, don't fall for that. As of today the State do not [sic] have enough to take you to trial, they are hoping you say something to one of the girls or your sister's ex help [sic] them. He already told them he don't know anything so don't let them try to ․ trick you. Ask to see all statements and you will see for yourself that he didn't give one. They will bring plea after plea, don't fall for it. Keep your head up and go to trial. Your lawyer need [sic] to file a motion to suppress all cellphone infor[mation] the Judge can't give a [sic] open warrant for cell site location. [T]he warrants for all the phones were open warrants so that can't be used. If your lawyer do [sic] his job you will beat this case and come home. Stay safe Barbie.

You know who

Ex. Vol. VIII p. 117.

[10] A jury trial was held on May 6–14, 2024. At the conclusion of trial, the jury found Fox-Doerr guilty as charged. On June 17, 2024, the trial court imposed an aggregate, ninety-year-sentence.

Discussion and Decision

I. Evidentiary Claims

A. Admission of Evidence

[11] The admission of evidence is a matter that we generally “leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d 252, 259–60 (Ind. 2013). “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). “[W]e will not reverse the decision to admit or exclude evidence if that decision is sustainable on any ground.” Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied. Furthermore, a trial court's error in admitting or excluding evidence “does not require reversal if the error was harmless.” Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023); see also Ind. R. App. P. 66 (“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.”).

1. Transcript of Fox-Doerr's Grand Jury Testimony

i. Indiana Code section 35-34-2-10(b)

[12] Fox-Doerr argues that the trial court abused its discretion in admitting the transcript of her Grand Jury testimony because the State failed to prove a particularized need for the transcript which she claims was required by Indiana Code section 35-34-2-10(b). However, Fox-Doerr misreads Indiana Code section 35-34-2-10(b), which provides that

[t]he transcript of testimony of a witness before a grand jury may be produced only:

(1) for the official use of the prosecuting attorney; or

(2) upon order of:

(A) the court which impaneled the grand jury;

(B) the court trying a case upon an indictment of the grand jury; or

(C) a court trying a prosecution for perjury;

but only after a showing of particularized need for the transcript.

Ind. Code § 35-34-2-10(b) (emphasis added). Discussing the legislative history of Indiana Code section 35-34-2-10 and its predecessor statutes, the Indiana Supreme Court has noted that the statutes allow for two possible acceptable uses of transcripts of Grand Jury testimony: (1) official prosecutorial use or (2) court order after a showing of particularized need. See Hinojosa v. State, 781 N.E.2d 677, 680–81 (Ind. 2003). Specifically, the Indiana Supreme Court has explained that “the particularized need exception provides only a limited opportunity for non-prosecutorial use of grand jury transcripts in those instances where the inability to do so would result in injustice.” Id. at 681 (emphasis added). The transcript of Fox-Doerr's Grand Jury testimony was used by the prosecutor for official prosecutorial purposes, during Fox-Doerr's jury trial. Pursuant to the plain language of Indiana Code section 35-34-2-10(b), the State was not required to make any showing of particularized need before using the transcript for official purposes. See id.

ii. Hearsay

[13] “ ‘Hearsay’ means a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). “Hearsay is not admissible unless these rules or other law provides otherwise.” Evid. R. 802. Indiana Evidence Rule 803(8) provides that a public record is “not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness[.]” However, the following “are not excepted from” the hearsay rule:

(i) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case;

(ii) investigative reports prepared by or for a public office, when offered by it in a case in which it is a party;

(iii) factual findings offered by the government in a criminal case; and

(iv) factual findings resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

Evid. R. 803(8)(B). A statement is not hearsay, however, if it “is offered against an opposing party and ․ was made by the party in an individual or representative capacity[.]” Evid. R. 801(d)(2).

[14] Fox-Doerr argues that the trial court abused its discretion in admitting the transcript of her Grand Jury testimony because the transcript “was an investigative report compiled by police for an investigative purpose.” Appellant's Br. p. 18. In support, Fox-Doerr points to the fact that the Grand Jury had been functioning as an investigative grand jury. For its part, the State asserts that the transcript of Fox-Doerr's Grand Jury testimony “was not admitted under the public records exception” but rather as a statement of a party opponent. Appellee's Br. p. 25.

[15] The United States Court of Appeals for the Seventh Circuit has interpreted the federal counterpart to Indiana Evidence Rule 801(d)(2)(A)² to allow admission of the defendant's prior testimony to be admitted into trial as an admission of a party opponent under Federal Rule of Evidence 801(d)(2)(A). See U.S. v. Reed, 227 F.3d 763, 769–70 (7th Cir. 2000). In Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999), the Indiana Supreme Court considered whether the trial court abused its discretion in admitting the transcript of another witness's testimony at a prior bond hearing, during which Ingram had spoken out of turn and had interjected statements into the transcript in an apparent attempt to shape the witness's testimony. In rejecting Ingram's challenge to the admission of the transcript, the Indiana Supreme Court cited Indiana Evidence Rule 801(d)(2)(A) and stated “[t]o the extent Ingram argues that he was prejudiced by the transcript it is due to statements by Ingram himself. As to those, hearsay is not a valid objection.” Ingram, 715 N.E.2d at 407. Similarly, because the transcript at issue here merely evidenced prior statements made under oath by Fox-Doerr herself, hearsay was not a valid objection to the admission of the transcript. See id.

[16] Fox-Doerr additionally challenges the admissibility of the transcript of her Grand Jury testimony, claiming that it contained hearsay within hearsay. During her Grand Jury testimony, Fox-Doerr was questioned about a letter that Robert had written to her before he died. The letter was not admitted as an exhibit or read into the record during the testimony. Fox-Doerr was merely questioned about the letter. Fox-Doerr asserts on appeal that the deputy prosecutor's statements in questioning her were inadmissible hearsay.

[17] The Indiana Supreme Court has previously rejected a similar claim, holding that statements made by a questioning officer during a police interview “were not inadmissible hearsay because they were not offered as proof of the facts asserted therein.” Strong v. State, 538 N.E.2d 924, 928 (Ind. 1989). Like the statements at issue in Strong, the deputy prosecutor's statements here were only admitted to provide context for Fox-Doerr's answers. The jury was instructed of such, with the trial court instructing the jury as follows:

This is a grand jury testimony.․ It's the Defendant's answers that are the evidence, not the questions being asked by the questioners, okay? So it's the Defendant's answers that are the evidence you are to consider. Those questions are admitted to give context so that there's meaning. If we just read a bunch of answers, that wouldn't make much sense. So it's -- it's to give context to those answers, but it's only the answers that are actual evidence in the case[.]

Tr. Vol. VI pp. 150–51. The trial court clearly instructed the jury that it was not to consider the questioner's statements as evidence. Given the trial court's clear instruction that the jury was only to consider Fox-Doerr's statements, which again were not hearsay but rather were statements of a party opponent, we cannot say that the trial court abused its discretion in admitting the transcript of Fox-Doerr's statements as recorded in the Grand Jury transcript.

2. Cellular Telephone Records

[18] Fox-Doerr next argues that the trial court abused its discretion in admitting certain cellular telephone records, claiming that the records were not properly authenticated, trustworthy, or reliable. Business records, such as cellular telephone call logs, are not excluded by the rule against hearsay if:

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; [and]

(C) making the record was a regular practice of that activity[.]

Evid. R. 803(6).

[19] With regard to the business-records exemption, the Indiana Supreme Court has stated that

[t]he hearsay rule is designed to forbid unreliable out of court statements offered to prove the truth of the matter asserted. The business records exception permits records of business activity to be admitted in circumstances when the recorded information will be trustworthy. The reliability of business records stems from the fact that the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, from the precision engendered by the repetition, and from the fact that the person furnishing the information has a duty to do it correctly.

Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997).

[20] “To admit business records pursuant to Rule 803(6), the proponent of the exhibit must authenticate it.” Speybroeck v. State, 875 N.E.2d 813, 819 (Ind. Ct. App. 2007).

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Without being required to provide absolute proof of authenticity, the proponent must present evidence that establishes a reasonable probability that the document is what it is claimed to be. Records found to be business records under Indiana Evidence Rule 803(6) ․ may be self-authenticating and an exception to the rule against hearsay, if they are accompanied by a certification under oath of the custodian. However, for the self-authentication to be valid, the records must be shown to be trustworthy.

Walters v. State, 120 N.E.3d 1145, 1154–55 (Ind. Ct. App. 2019) (internal quotations, citations, and brackets omitted, ellipses added). Once a record has been authenticated, the burden shifts to the opposing party to prove the unreliability of the records. Speybroeck, 875 N.E.2d at 819. On appeal, Fox-Doerr challenges the admission of three exhibits that had been admitted pursuant to the business-records exemption.

i. Exhibit 300

[21] Fox-Doerr first challenges the admissibility of Exhibit 300, arguing that the exhibit was not “self-authenticating, reliable, [or] trustworthy.” Appellant's Br. p. 24. Exhibit 300 is the AT&T call-log data for Richmond's iPhone.³ In addition to numerous pages of call-log data, Exhibit 300 contained a certificate of authenticity, signed by an AT&T employee under the penalties of perjury, which read as follows:

I am qualified to authenticate the records attached hereto because I am familiar with how the records were created, managed, stored, and retrieved. I state that the records attached hereto are true duplicates of the original records in the custody of AT&T. I further state that:

a. All records attached to this certificate were made at or near the time of the occurrence of the matter set forth by, or from information transmitted by, a person with knowledge of those matters, they were kept in the ordinary course of the regularly conducted business activity of AT&T, and they were made by AT&T as a regular practice; and

b. Such records were generated by AT&T's electronic process or system that produces an accurate result, to wit:

1. The records were copied from electronic device(s), storage medium(s), or file(s) in the custody of AT&T in a manner to ensure that they are true duplicates of the original records; and

2. The process or system is regularly verified by AT&T, and at all times pertinent to the records certified here the process and system functioned properly and normally.

Ex. Vol. VIII p. 129.

[22] Fox-Doerr challenges the certificate of authenticity, claiming that it is untrustworthy because it is merely a boilerplate recitation that does not demonstrate any connection to the underlying documents. We acknowledge that we have previously found a boilerplate affidavit, which had sought to authenticate documents but had not demonstrated any connection to the underlying account, to be untrustworthy. See Speybroeck, 875 N.E.2d at 817, 820. Fox-Doerr argues that like in Speybroeck, the certificate of authenticity for Exhibit 300 is insufficient because it did not indicate how many pages of records were attached or specify the exact records included. As the State points out, however, Speybroeck does not stand for the proposition that those two factors alone render a certificate of authenticity untrustworthy.

[23] In Speybroeck, “the Affidavit was signed and dated October 23, 2006, but the computer printouts were not created until October 24, 2006.” Id. at 820. The affidavit also failed to identify the documents it purported to authenticate. Id. Additionally, the records at issue had not been created by the authenticating business in the course of its own business activities but rather had been received by the authenticating business from other entities. Id. at 821–22. In finding the affidavit to be untrustworthy, we focused heavily on the fact that the affidavit was not signed on the same date that the records had been generated and that the records had not been created by the authenticating business but rather provided to it from other entities. Id. at 820–22.

[24] In this case, the certificate of authenticity established that the records were true duplicates of the original records in the custody of AT&T, that the records were copied from the electronic device at issue, and that the process for retrieving the documents had been regularly verified by AT&T. Unlike the records at issue in Speybroeck, the records at issue here had been created by AT&T, not received from some other entity. The documents were dated the same day as the certificate of authenticity, suggesting a connection between the certificate and the documents.⁴ We conclude that these statements were sufficient to tie the certificate of authenticity to the records at issue. We are therefore unconvinced by Fox-Doerr's claim that Exhibit 300 is untrustworthy merely because large portions of the certificate of authenticity appear to be boilerplate language used by AT&T to authenticate records for cellular telephones using AT&T's servers.

[25] Fox-Doerr also asserts that Exhibit 300 is untrustworthy because it is an incomplete record. In proffering Exhibit 300 at trial, the State explained that Exhibit 300, as tendered, “is the full cell phone record, at least the relevant parts that we're putting into evidence that are relevant to this case.” Tr. Vol. V p. 238. The trial court was therefore aware that irrelevant portions of the record were omitted before it admitted Exhibit 300 into evidence. On appeal, the State asserts that

pages were not missing from the records when they were sent by AT&T. But the State had received hundreds of pages of phone records from AT&T, and most of those pages did not contain any information relevant to this case. Rather than confuse the jury with hundreds of pages of irrelevant information, the State had selected the 15 pages that contained evidence of a phone call or text from Richmond to [Fox-Doerr] and presented only those select pages in Exhibit 300. [Fox-Doerr] cites to no authority that says a party must submit the entire record attached to a business record certification at trial to satisfy the authentication requirements of Evidence Rule 902(11).

Appellee's Br. p. 31. The State's explanations at trial and on appeal indicate that it had reviewed Exhibit 300 in its entirety and that the omitted pages had been included in the records from AT&T but omitted from the tendered exhibit because of their irrelevance. Fox-Doerr has failed to convince us that the State's approach rendered Exhibit 300 untrustworthy.

ii. Exhibits 301 and 302

[26] Fox-Doerr next challenges the admissibility of Exhibits 301 and 302, again arguing that the exhibits were not “self-authenticating, reliable, [or] trustworthy.” Appellant's Br. p. 24. Exhibit 301 is the Sprint call-log data for Fox-Doerr's Samsung Galaxy telephone.⁵ Exhibit 302 is the Sprint call-log data for an ANS telephone that was owned by Laura Riggle had been given to Richmond in 2019. Fox-Doerr again cites to Speybroeck for support of her claim that the trial court abused its discretion in admitting Exhibits 301 and 302.

[27] In addition to numerous pages of call-log data, Exhibits 301 and 302 contained affidavits, signed by a T-Mobile employee ⁶ under the penalties of perjury. The affidavit for Exhibit 301 read as follows:

3. Attached to this Affidavit are copies of records provided to me by Aaron McCormick with the Evansville Police Department for Sprint Case number 2019-054486 with target 8124566751 previously serviced by Sprint.

4. The attached records related to Sprint case number 2019-054486 with target 8124566751 appear to be in the same format as, and contain data consistent with, records that were maintained and produced by Sprint in around 2019.

5. Based on the regular practices of Sprint in 2019, records like these were:

a. Made at or near the time of each act, event condition, opinion, or diagnosis set forth in the records;

b. Made by or from information transmitted by Sprint systems;

c. Would have been kept in the course of regularly conducted business activity.

6. It was the regular practice of Sprint to make these records.

Ex. Vol. VIII p. 169. The affidavit for Exhibit 302 was identical, except that it indicated “Sprint case number 2019-050969 with target 8125895238[.]” Ex. Vol. IX p. 13.

[28] In challenging the trustworthiness of these affidavits, Fox-Doerr asserts that the affidavits do not “contain sufficient language to constitute verification of a proper oath by the custodian of records under Evid. R. 902(11).” Appellant's Br. p. 25. Fox-Doerr points out that the affiant merely stated that she had “read the foregoing Affidavit and declare[d] that it is true and correct to the best of my knowledge.” Ex. Vol. VIII p. 169, Ex. Vol. IX p. 13. Fox-Doerr claims this statement falls short of certifying under oath that the affiant was qualified to provide the statements contained therein. Fox-Doerr, however, did not object to the admission of the Exhibits by challenging the sufficiency of the oath at trial. Consequently, her argument in this regard is waived. See Zuniga v. State, 237 N.E.3d 1168, 1172 (Ind. Ct. App. 2024) (providing that an argument is waived if the argument on appeal is predicated on grounds substantially different from those raised at trial), trans. denied.

[29] Fox-Doerr also asserts that the records were not trustworthy as the affidavits indicated that the records had been submitted to T-Mobile by Detective McCormick, with no proof that T-Mobile (or Sprint at the time) had ever sent the records to Detective McCormick. The State acknowledges that “[t]he circumstances of the certification in this case are, perhaps, unusual, but not in a manner that significantly calls into question the authenticity of the records.” Appellee's Br. p. 33. The State, as the proponent of the Exhibits, bore the responsibility of producing “evidence sufficient to support a finding” that the Exhibits were what the State claimed they were. See Evid. R. 901(a). Again, “the proponent of the evidence must establish only a reasonable probability that the evidence is what it is claimed to be.” Parker v. State, 151 N.E.3d 1269, 1272 (Ind. Ct. App. 2020) (emphasis added). “Additionally, authentication of an exhibit can be established by either direct or circumstantial evidence.” Id. at 1272–73.

[30] We conclude that the State established a reasonable probability that Exhibits 301 and 302 were what it claimed them to be. The affiant, who had been employed by Sprint at the time the records were alleged to have been generated, acknowledged that the records in question had been provided to her by Detective McCormick but stated that the records “appear to be in the same format as, and contain data consistent with, records that were maintained and produced by Sprint in around 2019.” Ex. Vol. VIII p. 169, Ex. Vol. IX p. 13. The authenticating affidavits contained cause numbers specific to each request and the telephone number associated with each request. The affiant further indicated that it had been a regular practice of Sprint to make similar records, the records requested would have been made at or near the time of any request from information transmitted by Sprint's systems, and such information would have been kept in the course of Sprint's regularly-conducted business. While the authenticating affidavits do not provide absolute proof of authenticity, they create a reasonable probability of such.

[31] Once a “reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility.” Parker, 151 N.E.3d at 1272. In addressing potential inconclusiveness of the Exhibits’ connection to this case, Detective McCormick was questioned about some inconsistencies in the records, including the fact that the affidavits were dated on different dates than the records. Detective McCormick explained that

as we were preparing for trial, I noticed that the original Sprint records did not have a certified records affidavit attached to them. Sprint, at the time, did not send those with the initial records. Knowing that I would need a certified records affidavit, I sent a request to now T-Mobile, who had taken over for Sprint, and they requested that I send all the records that we had for that to them for their analysis. And then they -- they re-sent the records and with the records affidavit.

Tr. Vol. VI p. 58. Detective McCormick confirmed that the proffered records had been certified by T-Mobile as appearing to be accurate. Given our conclusion that the State sufficiently proved that there was a reasonable probability that Exhibits 301 and 302 were what the State had purported them to be, we further conclude that any remaining questions regarding the Exhibits’ connection to the case went to their weight, not their admissibility. The trial court did not abuse its discretion in admitting Exhibits 300, 301, and 302.

3. Handwriting Exemplars

[32] Fox-Doerr argues that the trial court abused its discretion in admitting two letters, which were admitted as examples of Richmond's handwriting, claiming that the letters had not been properly authenticated. “A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation” may be used to authenticate a piece of evidence. Evid. R. 901(b)(2). Again, “[a]bsolute proof of authenticity is not required[ ]” and “authentication can be proven by direct or circumstantial evidence.” Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996). “Evidence showing a reasonable probability that the exhibit is what it purports to be and that its condition is substantially unchanged as to any material feature is sufficient.” Id.

[33] In Newman, we considered whether the trial court had abused its discretion in admitting a handwriting exemplar. 675 N.E.2d at 1110–12. Concluding that the authentication had been adequate, we stated that

the exemplar was authenticated by Newman's co-worker who testified that he received the note in the course of conducting work-related communication. Fergusson testified as to his familiarity with Newman's handwriting and his non-expert opinion that the exemplar was written by Newman. The trial court did not abuse its discretion in admitting the standard pursuant to Evid. R. 901.

Id. at 1111.

[34] In this case, the State introduced two letters that it purported had been written by Richmond as handwriting exemplars to be compared with other evidence. Junior testified that he was familiar with his father's handwriting and identified the two letters as having been written by Richmond. Junior was competent, as a nonexpert, to give an opinion as to whether Richmond had written the letters. See Evid. R. 901(b)(2). The trial court, therefore, did not abuse its discretion in this regard.

4. The “Hello Barbie” Letter

[35] Fox-Doerr makes three arguments relating to the admission of the “Hello Barbie” letter. First, Fox-Doerr argues that the State failed to properly authenticate it. Next, she argues that the State failed to prove a proper chain-of-custody. Finally, she argues that the trial court erred in finding that a conspiracy existed between her and Richmond.

i. Authentication

[36] Fox-Doerr argues that the State had failed to properly authenticate the “Hello Barbie” letter. Again, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Evid. R. 901(a). “Absolute proof of authenticity is not required.” Parker, 151 N.E.3d at 1272. “Rather, the proponent of the evidence must establish only a reasonable probability that the evidence is what it is claimed to be.” Id. The following is a non-exclusive list of examples of the types of evidence that can authenticate other evidence: “[t]estimony that an item is what it is claimed to be, by a witness with knowledge[;]” “[a] nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation[;]” “[a] comparison with an authenticated specimen by an expert witness or the trier of fact[;]” and “[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Evid. R. 901(b)(1)-(b)(4). The State used each of the above-mentioned means to authenticate the “Hello Barbie” letter to be what it was purported to be, i.e., a letter written by Richmond to Fox-Doerr while both were in pre-trial custody in the Vanderburgh County Jail.

[37] Two jail officers identified the “Hello Barbie” letter and the envelope that Richmond was alleged to have put the letter in as the letter and envelope that had been turned in by two laundry workers in the A pod of the Vanderburgh County Jail. One of the officers indicated that the “Hello Barbie” letter had been attached to a package of ramen noodles, which he explained are commonly “used as currency in the facility.” Tr. Vol. IV p. 182. The “Hello Barbie” letter had been written on the back of a Vanderburgh County Jail “Sick Call Request Slip[,]” suggesting that it had been written by an inmate in the facility. Ex. Vol. VIII pp. 117–18. The envelope had been addressed to “Becky Doerr A4-G2[,]” i.e., the name Fox-Doerr went by and the area where she was being housed in the facility. Ex. Vol VIII p. 119. The “Hello Barbie” letter was reported as having come from the B3 pod, i.e., the area where Richmond was being housed at the facility. This evidence supports the inference that the letter had been sent by Richmond and that Fox-Doerr had been the intended recipient.

[38] In addition, Junior testified that he was familiar with his father's handwriting and identified the handwriting exemplars as having been written by Richmond. A handwriting expert then determined that it was “highly probable[,]” i.e., the highest level of identification, that the individual who had written the handwriting exemplars had also written the “Hello Barbie” letter. Tr. Vol. V p. 152. This evidence supported the inference that Richmond had written the “Hello Barbie” letter.

[39] Finally, the substance of the letter contained authenticating evidence. The letter mentioned that “Barbie's” sister's ex, i.e., Richmond, had not provided any statements to police and had suggested that “Barbie's” attorney should challenge the admission of the cellular telephone records, i.e., records showing communication between Fox-Doerr and Richmond prior to Robert's murder. Ex. Vol. VIII p. 117. These statements referred to facts relevant to this case, suggesting that Richmond had both written and attempted to send the letter to Fox-Doerr. The State sufficiently authenticated the “Hello Barbie” letter, establishing a reasonable probability that the “Hello Barbie” letter was what the State purported it to be, i.e., a letter from Richmond to Fox-Doerr.

ii. Chain-of-Custody

[40] Fox-Doerr next argues that the State had failed to establish a proper chain-of-custody for the “Hello Barbie” letter. With respect to chain-of-custody,

the law requires that an adequate foundation be laid showing the continuous whereabouts of the exhibits beginning with the time they came into the possession of police. The State must only present evidence which strongly suggests the whereabouts of the exhibits at all times. The prosecutor need not provide evidence excluding all possibility of mishap or tampering, but need provide only reasonable assurance that the exhibits passed through various hands in an undisturbed condition. Also, a proper chain-of-custody can be established without the testimony of every person who handled the exhibits.

Obviously, the purpose of the rule is to avoid any claims of substitution, tampering or mistake. If a defendant's argument does no more than raise the possibility of such occurring, then it is without merit.

Evans v. State, 566 N.E.2d 1037, 1040–41 (Ind. Ct. App. 1991) (internal quotation and citations omitted, emphasis added). “The extent of foundation the State must lay depends on whether the item to be admitted is fungible or nonfungible.” K.W. v. State, 216 N.E.3d 505, 516 (Ind. Ct. App. 2023), trans. denied. For nonfungible items like the “Hello Barbie” letter, “the State need only show that the item is what it is purported to be and that it is in a substantially unchanged state from when it was initially collected by police.” Id. (internal quotation omitted).

[41] In challenging the chain-of-custody of the “Hello Barbie” letter, Fox-Doerr does not argue that its condition had been modified or altered in any way after it had been collected by the police. Likewise, Fox-Doerr does not challenge the chain-of-custody once the “Hello Barbie” letter had come into law enforcement's possession. Fox-Doerr merely argues that before that time, the “Hello Barbie” letter had been handled by unknown inmates. Given the lack of any assertion that there had been a break in the chain-of-custody of the “Hello Barbie” letter after it had come into law enforcement's possession coupled with the lack of any assertion that its condition had been changed in any way, Fox-Doerr's chain-of-custody argument fails.

iii. Proof of Conspiracy

[42] Fox-Doerr also argues that the trial court abused its discretion in admitting the “Hello Barbie” letter, as well as the note in the sympathy card indicating that she and Richmond needed to talk, because there was no evidence to support the finding of a conspiracy between her and Richmond. Evidence Rule 801(d)(2)(E) provides that a statement is not hearsay if, the statement is offered against an opposing party and “was made by the party's coconspirator during and in furtherance of the conspiracy.”

For a statement to be admitted under this rule, there must be independent evidence of a conspiracy; that is, the State must establish a conspiracy exists without using the statement at issue. If the trial court determines by a preponderance of the evidence that the declarant and the defendant were involved in a conspiracy and the statement was made during and in furtherance of that conspiracy, it is admissible under the firmly-established co-conspirator exception. Statements that occur during the course of and in furtherance of the conspiracy can take many forms.

The existence of a conspiracy may be shown by direct or circumstantial evidence and the evidence need not be strong. The State does not have to prove the existence of an express formal agreement; it is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense. Evidence of a mere relationship or association with the alleged co-conspirator is insufficient standing alone to establish a conspiracy, but a conspiracy may be inferred from acts of the parties in pursuance of an apparent criminal purpose they have in common.

Jackson v. State, 222 N.E.3d 321, 333 (Ind. Ct. App. 2023), (internal brackets, citations, and quotations omitted), trans. denied.

[43] The evidence in this case was sufficient to meet the low bar of proving that a conspiracy existed between Fox-Doerr and Richmond by a preponderance of the evidence. Fox-Doerr knew that Richmond had previously killed a man and, on one occasion in her presence, had said that “it only takes a couple of pops to get rid of somebody.” Tr. Vol. IV p. 201. Richmond and Fox-Doerr had been seen kissing in or around January of 2019. Additionally, Richmond and Fox-Doerr had exchanged fifteen telephone calls between December 26, 2018, and February 26, 2019, i.e., the day of Robert's murder. Most significantly Richmond had called Fox-Doerr at 6:46 p.m. on February 26, 2019, and they had spoken for a little over four minutes. Approximately fifteen minutes later, Robert was ambushed and murdered as he stood in his driveway. The overwhelming evidence indicated that Richmond had shot and killed Robert. Fox-Doerr deleted the February 26 call with Richmond from her call log and repeatedly lied about having spoken to him just prior to the murder. We agree with the State that this is “more than sufficient evidence to meet the low bar necessary to constitute the requisite independent showing of the existence of a conspiracy.” Appellee's Br. p. 58. Thus, the trial court did not abuse its discretion in admitting the “Hello Barbie” letter or the note in the sympathy card into evidence.⁷

5. Detective Keen's Testimony

[44] Fox-Doerr next argues that the trial court abused its discretion in admitting Detective Keen's testimony that, in his opinion, she was guilty of the charged offenses. “Testimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue.” Evid. R. 704(a). Evidence Rule 704(b) provides, however, that a witness “may not testify to opinions concerning intent, guilt, or innocence in a criminal case[.]”

[45] While Evidence Rule 704(b) generally prohibits evidence concerning guilt, the Indiana Supreme Court has held that “[o]therwise inadmissible evidence may be admitted where the defendant opens the door to questioning on that evidence.” Clark v. State, 915 N.E.2d 126, 130 (Ind. 2009). “Opening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence otherwise would have been inadmissible.” Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). “Evidence which opens the door must leave the trier of fact with a false or misleading impression of the facts related.” Garcia-Berrios v. State, 147 N.E.3d 339, 343 (Ind. Ct. App. 2020), trans. denied. “When that happens, the State may introduce otherwise inadmissible evidence if it is a fair response to evidence elicited by the defendant.” Id.

[46] On cross-examination, Fox-Doerr's counsel asked Detective Keen if he had previously indicated that he had “doubts about this case?”. Tr. Vol. III p. 218. Detective Keen answered, “[y]es.” Tr. Vol. III p. 218. Fox-Doerr's counsel further asked Detective Keen whether he had previously indicated that he had “a reasonable doubt” about the case. Tr. Vol. III p. 219. Again, Detective Keen answered, “[y]es.” Tr. Vol. III p. 219. In response to these questions, on redirect, the State engaged in the following exchange with Detective Keen:

Q Now, on cross-examination you said that there was no direct evidence to prove beyond a reasonable doubt what conversation took place about their agreeing to commit this murder. Do you recall saying that?

A Yes.

Q Do you believe that there is circumstantial evidence to prove beyond a reasonable doubt that the conversation took place that the two of them agreed to commit the murder?

A Absolutely.

****

Q Officer Keen, based upon the totality of the circumstances and based upon your investigation, do you believe beyond a reasonable doubt that [Fox-Doerr] is guilty of conspiring to commit murder and agreeing to commit murder?

A Absolutely. Yes.

Tr. Vol. IV pp. 15–16. Fox-Doerr's objection to Detective Keen's opinion testimony was overruled with the trial court indicating that Fox-Doerr had opened the door to the testimony.

[47] Fox-Doerr's questions to Detective Keen created a misleading impression of the evidence, i.e., that one of the lead investigators did not believe that Fox-Doerr had committed the charged offenses. We agree with the State that Fox-Doerr's “questioning was clearly intended to create the impression that [Detective Keen] did not think there was sufficient evidence to convict [Fox-Doerr.]” Appellee's Br. p. 45. Fox-Doerr's questions opened the door to otherwise inadmissible 704(b) evidence, so long as the evidence was “a fair response to the evidence elicited by” Fox-Doerr. See Garcia-Berrios, 147 N.E.3d at 343. In overruling Fox-Doerr's objection to the State's evidence the trial court effectively found that the evidence proffered by the State in response to Fox-Doerr's evidence was fair. The trial court did not abuse its discretion in this regard.

B. Exclusion of Fox-Doerr's Interview with Detective Turpin

[48] Fox-Doerr contends that the trial court abused its discretion by excluding her interview with Detective Turpin from evidence, arguing that the exclusion of the interview violated the doctrine of completeness. Evidence Rule 106 provides that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.” This rule, known as the doctrine of completeness, “is designed to avoid misleading impressions caused by taking a statement out of its proper context or otherwise conveying a distorted picture by the introduction of only selective parts.” Lieberenz v. State, 717 N.E.2d 1242, 1248 (Ind. Ct. App. 1999), trans. denied. It “may be invoked to admit omitted portions of a statement in order to (1) explain the admitted portion; (2) place the admitted portion in context; (3) avoid misleading the trier of fact; or (4) insure a fair and impartial understanding of the admitted portion.” Id. “However, a court need not admit the remainder of the statement, or portions thereof, that are neither explanatory of nor relevant to the portions already introduced.” Id.

[49] In Hawkins v. State, 884 N.E.2d 939 (Ind. Ct. App. 2008), trans. denied, we considered whether the doctrine of completeness required admission of certain excluded telephone conversations. Hawkins argued that the trial court had “erred when it prohibited her from admitting phone calls made while in prison when the State had been permitted to admit other phone calls between the defendant and her father and mother[,]” citing the doctrine of completeness. Hawkins, 884 N.E.2d at 947. Upon review, we concluded that the doctrine of completeness did not apply because “[t]he State did not exclude portions of the admitted conversation but rather chose not to seek admission of other, separate conversations.” Id. at 948. In reaching this conclusion we noted that “[w]hile the doctrine of completeness does allow for self-serving hearsay, that determination should be and is left to the trial court's discretion.” Id.

[50] Fox-Doerr sought to introduce her interview with Detective Turpin, arguing that it should have been admitted pursuant to the doctrine of completeness. In support, Fox-Doerr argues that admission of her interview with Detective Turpin was necessary to avoid “a misleading and incomplete picture of [her] statements to be presented to the jury.” Appellant's Br. p. 28. Fox-Doerr points to the fact that her initial two interviews with police and her Grand Jury testimony were admitted into evidence, claiming that admission of her interview with Detective Turpin was necessary to give a complete picture of all of her statements to police. The interview, however, was not a continuation of or connected to any other statement or evidence admitted at trial. It was a completely separate interview, which had been conducted more than a year after Fox-Doerr's initial police interviews and approximately two years prior to her Grand Jury testimony.

[51] The fact that Fox-Doerr believed that the Turpin interview contained statements that could have possibly been interpreted as being more sympathetic towards her does not mean that admission of her other, unrelated statements on the record created confusion or was misleading. Fox-Doerr does not point to any of the admitted statements that would have taken on a different meaning if read in conjunction with something she had said to Detective Turpin. We cannot say that the trial court abused its discretion in excluding Fox-Doerr's interview with Detective Turpin. See Lieberenz, 717 N.E.2d at 1248 (providing that the trial court had not abused its discretion in excluding a separate police interview when the admitted police statement had neither created confusion nor misled the jury).

C. Cumulative Effect of Claimed Errors

[52] Fox-Doerr argues that the cumulative effect of the erroneously admitted and excluded evidence was prejudicial and therefore not harmless error. Given that we have rejected each of Fox-Doerr's evidentiary claims of error, finding no abuse of discretion in either the inclusion or exclusion of the challenged evidence, we likewise reject her argument that the cumulative effect of said alleged errors was unfairly prejudicial to her.

II. Sufficiency Claims

[53] Finally, Fox-Doerr contends that the evidence is insufficient to sustain her convictions.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[54] To convict Fox-Doerr of murder as an accomplice, the State was required to prove that she had knowingly or intentionally aided, induced, or caused Richmond to commit murder, i.e., to knowingly or intentionally kill Robert. Ind. Code §§ 35-41-2-4; 35-42-1-1(1).

It is well established that a person who aids another in committing a crime is just as guilty as the actual perpetrator. To be convicted as an accomplice, it is not necessary for a defendant to have participated in every element of the crime. While mere presence at the scene of the crime is insufficient to establish accomplice liability, presence may be considered along with the defendant's relation to the one engaged in the crime and the defendant's actions before, during, and after the commission of the crime.

Green v. State, 937 N.E.2d 923, 927 (Ind. Ct. App. 2010) (internal citations omitted), trans. denied. “A conviction for murder may be sustained on circumstantial evidence alone if that circumstantial evidence supports a reasonable inference of guilt.” Fry v. State, 25 N.E.3d 237, 248 (Ind. Ct. App. 2015), trans. denied.

[55] To convict Fox-Doerr of conspiracy to commit murder, the State had to prove that, with the intent to commit murder, Fox-Doerr had agreed with Richmond to commit a murder and that one of them had performed an overt act in furtherance of that agreement. Ind. Code § 35-41-5-2. The State was “not required to establish the existence of a formal express agreement to prove a conspiracy.” Dickenson v. State, 835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans. denied.

It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense. An agreement can be inferred from circumstantial evidence, which may include the overt acts of the parties in furtherance of the criminal act. Likewise, to determine whether the defendant had the requisite intent to commit the crime alleged, the trier of fact must usually resort to circumstantial evidence or reasonable inferences drawn from examination of the circumstances surrounding the crime.

Id. (internal brackets, citations, and quotations omitted). “[A] conspiracy conviction may rest on circumstantial evidence alone, but evidence of a mere relationship or association is not sufficient.” Kirk v. State, 974 N.E.2d 1059, 1076 (Ind. Ct. App. 2012) (internal quotation omitted), trans. denied.

[56] Fox-Doerr claims that “[t]he evidence most favorable to the verdict failed to establish [that] Fox-Doerr entered into an agreement with someone to kill Robert, and then aided, induced, or caused Robert to be killed.” Appellant's Br. p. 49. Specifically, Fox-Doerr asserts that “only speculation could allow the jury to conclude beyond a reasonable doubt” that she had been involved in Robert's murder. Appellant's Br. p. 45. We disagree.

[57] Fox-Doerr's convictions are supported by sufficient evidence. The State introduced sufficient evidence to establish that Richmond had shot and killed Robert. Junior, at Richmond's request, had stolen a Taurus Judge firearm and given it to Richmond shortly before the murder, and the ballistics evidence from the scene established that a Taurus Judge firearm had been used to shoot Robert. Richmond's cellular-telephone-location records had placed him in the immediate area of Robert's home around the time of the murder. Richmond had spoken to Fox-Doerr just prior to the murder. In addition, on the night of Robert's murder, Richmond had searched for news about the shooting but had failed to mention it to Mandy. The evidence supported the reasonable inference that Richmond had shot and killed Robert.

[58] The State further presented evidence from which the jury could reasonably infer that Fox-Doerr had conspired with Richmond to commit the murder and that she had aided him in the commission of that murder. Fox-Doerr knew that Richmond had previously been incarcerated for killing someone and had heard Richmond say that “it only takes a couple of pops to get rid of somebody.” Tr. Vol. IV p. 201. Richmond and Fox-Doerr had engaged in fifteen telephone conversations in the months prior to Robert's murder and Junior testified that he had observed Richmond and Fox-Doerr kissing. After Robert's murder, Richmond had hidden a note in a condolence card that he and Mandy had given to Fox-Doerr indicating that he and Fox-Doerr needed to talk and providing a telephone number other than his iPhone number. Richmond later attempted to instruct Fox-Doerr via the “Hello Barbie” letter how to proceed prior to trial. Importantly, Fox-Doerr and Richmond had a several-minute telephone conversation shortly before Robert's murder. Fox-Doerr attempted to conceal proof of this conversation by deleting the call from her call log and repeatedly denied having spoken to Richmond. “Attempts to conceal evidence may be considered by the jury as revealing consciousness of guilt.” Stone v. State, 555 N.E.2d 475, 477 (Ind. 1990).

[59] Fox-Doerr's actions also suggested two possible motives. First, she claimed to have lied about speaking to Richmond on the day of Robert's murder because she did not want anyone to think that they had been having an affair and admitted that Robert had previously accused her of having an affair. Second, she visited the Fire Department on the day after the murder and inquired about Robert's pension benefits. The evidence supports the inference that Richmond and Fox-Doerr had conspired to kill Robert; that Fox-Doerr had aided, induced, or caused Richmond to commit the murder; and that the two had engaged in a collaborative relationship prior to and after Robert's murder. In challenging the sufficiency of the evidence, Fox-Doerr effectively requests this court to reweigh the evidence, which we will not do. Griffith, 59 N.E.3d at 958.

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

FOOTNOTES

1.   While the iPhone appeared to move around over the course of the next hour, it remained in close proximity to Robert and Fox-Doerr's home.

2.   Federal Evidence Rule 801(d)(2)(A) is nearly identical to Indiana Evidence Rule 801(d)(2)(A).

3.   Exhibit 300A is an identical copy of the AT&T records with the relevant calls highlighted.

4.   To the extent that Fox-Doerr cites to Walters in support of her challenge to the admissibility of Exhibit 300, we note that the facts at issue in Walters are also distinguishable from this case given that the certificate of authenticity of the records at issue in Walters “was issued approximately eighteen months after the records were obtained.” 120 N.E.3d at 1155. Again, in this case, the certificate of authenticity was dated for the same date as the records and was provided with the records.

5.   Exhibit 301A is an identical copy of the Sprint records with relevant calls highlighted.

6.   Sprint and T-Mobile merged in 2020. Prior to the companies’ merger, the employee had been employed by Sprint.

7.   The State alternately asserts that the evidence was admissible because “[t]he letter and note primarily contain commands and requests, not factual assertions capable of being true or false, and to the extent that they contain factual assertions, the statements were not being offered for the truth of those factual assertions but for a purpose entirely independent of their truth.” Appellee's Br. pp. 53–54. The Indiana Supreme Court has held that statements “in the nature of a command rather than an assertion of fact” are not subject to exclusion as they are not hearsay. Mayhew v. State, 537 N.E.2d 1188, 1191 (Ind. 1989). Thus, the commands and requests stated in the “Hello Barbie” letter and the note in the sympathy card were not inadmissible hearsay.

Bradford, Judge.

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