Devonte Johnson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] While handcuffed on a curb, Devonte Johnson repeatedly told a police officer that he would beat and kill him—statements that soon would lead to a charge of Level 6 felony intimidation. The officer's body-worn camera (body cam) captured the entire 45-minute encounter, including an officer's suggestion that Johnson had committed an additional offense that was never charged. Before his trial for intimidation began, Johnson and the State agreed that the jury would see only seven short clips from that body cam recording. The record reveals that the jury viewed only those seven clips, although the trial court admitted the entire 45-minute recording.

[2] Johnson argues that the trial court abused its discretion by admitting the complete recording, which he alleges contains inadmissible hearsay and reveals the uncharged offense. He also argues that the prosecutor committed misconduct by describing the exhibit in a way that led him to forgo an objection to the unredacted recording. Both arguments share a single premise: that because the complete recording was admitted into evidence as State's Exhibit 1A, it must have been viewed by the jury. Because nothing in the record shows that the jury ever saw, heard, or received the portions of Exhibit 1A that Johnson challenges, he cannot establish the prejudice necessary to prevail on either of his claims. We affirm.

Facts

[3] Indianapolis Metropolitan Police Officer Charles Ward responded to a 911 call and found Johnson and three other men in the street. Johnson approached Ward “visibly aggressive, amped up, [and] excited,” and the encounter thereafter escalated. Tr. Vol. II, p. 68. Ward handcuffed Johnson and sat him on a curb. During the next 45 minutes, while Ward's body cam was recording, Johnson told Ward repeatedly that he would beat and kill him. As a result, the State charged Johnson with Level 6 felony intimidation.

[4] Before trial, the parties agreed that seven brief clips from the recording would be played for the jury. But the parties did not share the same understanding of how this agreement would be implemented. The State believed the entire unredacted recording would be admitted into evidence, with only the seven clips published to the jury. Johnson, on the other hand, believed only the clips would be admitted and published.

[5] That misunderstanding surfaced in stages. When the State moved to admit “State's Exhibit 1” during Ward's testimony, defense counsel indicated she did not object “as long as it's what we've already talked about.” Id. at 71. The prosecutor stated, “That's it,” and the trial court thereafter admitted State's Exhibit 1 “without objection.” Id. The disk received at that point contained the complete 45-minute recording, but only the seven agreed clips were played to the jury.

[6] After the State rested, the trial court asked the State to clarify whether Exhibit 1 was the full recording or only the seven clips so that the court could “clean the record up.” Id. at 106-07. The State answered that it sought admission of the full recording. The court then stated:

So that's the entirety that has been admitted. However, only seven clips have been published [to the jury].

Id. at 106.

[7] Johnson objected, explaining that he had understood that only the clips were admitted. The trial court resolved this dispute by creating two separate exhibits: State's Exhibit 1A containing the complete recording and State's Exhibit 1B containing the seven clips from the full recording that were published to the jury. The court admitted State's Exhibit 1A over Johnson's objection and received the seven-clip version alongside it. Id. at 111. The court also told the parties that the jury was “only going to have heard the seven snippets.” Id. at 109. Johnson maintained his objection but said he understood the court's solution. Id. at 111.

[8] The jury found Johnson guilty of intimidation. After entering judgment of conviction, the court sentenced Johnson to 545 days imprisonment, with 333 days suspended. Johnson appeals.

Discussion and Decision

[9] Johnson raises two claims on appeal. First, he argues that the trial court abused its discretion by admitting Exhibit 1A because the complete recording contained inadmissible hearsay and references to an uncharged offense. Second, he argues that the prosecutor committed misconduct by describing the body cam exhibit in a way that led defense counsel to believe only the seven clips were being offered. Both of Johnson's claims assume that the jury was exposed to the challenged portions of Exhibit 1A—in other words, that the jury viewed the entire 45-minute body cam recording. As that assumption is unproven, any error resulting from its admission is harmless, given that Johnson was not prejudiced by material the jury never saw or considered.

I. The Evidentiary Claim Fails Because the Record Does Not Show the Jury Saw the Challenged Footage

[10] “We typically review a trial court's evidentiary rulings for abuse of discretion, which occurs when a ruling is ‘clearly against the logic and effect of the facts and circumstances’ before the court.” Barbee v. State, 269 N.E.3d 888, 894 (Ind. Ct. App. 2025) (quoting McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022)). “However, we generally disregard errors in the admission of evidence unless they affected a party's ‘substantial rights.’ ” Id.

[11] When determining whether an error is harmless, the party seeking relief on appeal “bears the burden of showing how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023); Ind. Appellate Rule 66(A) (“No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.”).

[12] Johnson treats the admission of Exhibit 1A as proof that the jury received and could rely on the complete recording. But admission and receipt by the jury are distinct, albeit related, events. Admission establishes the trial court's ruling and fixes the material available for appellate review; it does not, by itself, place an exhibit before the jury. Our Supreme Court made that distinction in Wolfe v. State, 426 N.E.2d 647, 653 (Ind. 1981). The Wolfe Court found that the trial court used incorrect terminology by “admitt[ing] into evidence” a full recording when the jury only viewed part of it. Id. The Court determined that the full exhibit “was only made a part of the record” and was not in evidence because it was not presented to the jury. Id.

[13] Even if the trial court erroneously admitted the full body cam recording here, the record does not reveal the jury's exposure to it. Only the redacted version of the recording was published to the jury during the trial. Although jurors may review exhibits again during deliberations under certain circumstances, the record does not reveal that occurred here.

[14] For instance, Indiana Code § 34-36-1-6 permits a deliberating jury to review an exhibit admitted at trial, but only when “there is disagreement among the jurors.” Even then, the jury must be brought into court to view the disputed exhibit. Ind. Code § 34-36-1-6. The record reveals no such event.

[15] When Indiana Code § 34-36-1-6 does not apply, the trial court has discretion to allow jurors to review exhibits in their deliberation room, but such review must be monitored. Mays v. State, 907 N.E.2d 128, 132-33 (Ind. Ct. App. 2009) (finding trial court erred in allowing deliberating jurors to review videotaped exhibit without ensuring that review was monitored). Again, the record reveals no such occurrence.

[16] And while juror trial books “may contain” copies of admitted exhibits, these books are permitted but never required. Ind. Jury Rule 23 (“Juror trial books may contain: (a) all given instructions; (b) information regarding the anticipated trial schedule; (c) witness lists; and (d) copies of exhibits admitted for trial”). Juror trial books were provided to the jury in Johnson's case at the beginning of trial. The books contained preliminary instructions, but the record does not reveal their other contents, if any. Notably, the exhibit in question here was a video recording provided to the court on a disc without any apparent transcript—not a document that could be viewed directly in a juror book.

[17] In summary, nothing shows that Indiana Code § 34-36-1-6 ever was invoked or even applicable. Nothing shows the trial court exercised its discretion to send Exhibit 1A to the jury room. In fact, the trial court, near the end of trial, specifically stated that the jury would only have viewed Exhibit 1B. The record shows only the seven clips were played during Ward's testimony and that the court later separated the complete recording from those clips only for purposes of preserving an appropriate record. Johnson points to no request, ruling, or reference to the complete recording after the jury was empaneled.

[18] If the jury did somehow receive and view Exhibit 1A, it was Johnson's burden to make that fact part of the record on appeal. Indiana Appellate Rule 31 supplies the mechanism. Under that rule, when the transcript does not capture particular events, a party may prepare and move to certify a statement of the evidence. Johnson did not invoke Rule 31. We therefore must decide his claim on the record before us, and that record does not show that the jury saw, heard, received, or relied on the challenged portions of Exhibit 1A. See Banks v. Banks, 980 N.E.2d 423, 426 (Ind. Ct. App. 2012) (“Ordinarily, this court may not consider evidence outside the record presented to the trial court.”).

[19] As the record does not reveal any jury exposure to the challenged portions of Exhibit 1A, any error by the trial court in admitting Exhibit 1A was harmless. The jury could not be impacted by challenged portions of an exhibit it never saw. See App. R. 66(A); Wolfe, 426 N.E.2d at 653.

II. The Prosecutorial-Misconduct Claim Fails for the Same Reason

[20] We evaluate a claim of prosecutorial misconduct in two steps, first determining whether misconduct occurred, and if so, then assessing whether the misconduct placed the defendant in a position of grave peril. Akins v. State, 276 N.E.3d 111, 123 (Ind. Ct. App. 2026). “Peril is measured not by the impropriety of the misconduct but by the probable persuasive effect on the jury's decision.” Id. Accordingly, a finding of prosecutorial misconduct does not, by itself, require reversal; the defendant must still show that the misconduct placed the defendant in grave peril. Id.

[21] Johnson contends that the prosecutor committed misconduct by misleading defense counsel into believing that only the seven clips were being offered—not the entire unredacted recording. Johnson focuses on the prosecutor's response—“That's it”—to Johnson's request for assurance that the proffered body cam recording exhibit was “what we've already talked about.” Tr. Vol. II, p. 71.

[22] Even assuming the prosecutor's statement constituted misconduct, Johnson cannot prevail because he has not shown that he was placed in grave peril. Statements on a recording that the jury never heard could not have had a probable persuasive effect on the verdict, as is required to prevail on a prosecutorial misconduct claim. See Akins, 276 N.E.3d at 123. Because Johnson cannot supply that critical link, his prosecutorial misconduct claim fails.

Conclusion

[23] Johnson has not shown that the jury was ever exposed to the portions of State's Exhibit 1A that he claims were inadmissible. Without that showing, the admission of the exhibit and the prosecutor's description of it could not be deemed to have prejudiced him or placed him in gravel peril, as was required for reversal. We therefore affirm the trial court's judgment.

Weissmann, Judge.

Bailey, J., and Brown, J., concur.