Brandon M. Ashby, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] During his trial on a domestic battery charge, Brandon M. Ashby objected to several witness statements, arguing they violated the court's order in limine prohibiting testimony about his prior conviction. Ashby ultimately moved for a mistrial, which the court denied. Later, the State renewed its request to admit evidence regarding Ashby's prior conviction, arguing that Ashby opened the door to the evidence. The trial court granted the State's request and permitted testimony about Ashby's prior conviction.

[2] The jury found Ashby guilty of Class A misdemeanor domestic battery. In the second phase of his trial, Ashby admitted he had a prior conviction for domestic battery, and the trial court enhanced his conviction to a Level 6 felony. Ashby appeals, alleging that the trial court erred in denying his motion for a mistrial and in later admitting testimony about his prior conviction. We affirm.

Facts and Procedural History

[3] In August 2023, Ashby and Dreama Blane (a.k.a. Dreama Mayes) met online. Blane moved into Ashby's Franklin County residence in February 2024. On June 28, Ashby and Blane went to dinner and had a few drinks. During dinner, Blane confronted Ashby after he saw another woman and began “checking her out.” Tr. Vol. III p. 190. Ashby suggested that they go home, and Blane agreed.

[4] An argument ensued in Ashby's truck. At one point, Ashby parked on the side of the road, exited the vehicle, walked to the passenger side, then “drag[ged Blane] out of that truck like [she was] a ragdoll.” Id. at 193. Ashby shoved Blane toward a cornfield and told her to get into the truck and drive them home. Blane refused and returned to the passenger seat; Ashby walked off. Then, a neighbor who was driving by stopped and spoke to Ashby. Ashby returned to the truck and drove himself and Blane home. During the drive, Ashby told Blane that he was going to get on his motorcycle and go back to the restaurant to “pick up that girl.” Id. at 196. Once home, Ashby got on his motorcycle to leave. Blane took Ashby's hat off his head and threw it at him. Ashby left, and Blane went to bed.

[5] Later, Ashby returned home and entered the bedroom. Blane was lying in bed “playing possum” because she was nervous. Id. at 202. Ashby flipped the mattress Blane was lying on, causing her to roll into the wall and out of the bed. Blane's knee was bruised in the process. Wanting to go to sleep and be left alone, Blane returned to the bed. Ashby removed the sheets and pillows, got into the bed, and put his arms and legs on Blane. She asked him, “Please just get off me[,]” but he persisted, so she pinched him. Id. at 205. Then, Ashby “jumped” at her and “wrap[ped] his arm around [her] neck.” Id. at 205, 206. Ashby squeezed Blane's neck tightly, and she was “having a hard time breathing[.]” Id. at 207. Blane's vision started to blur, and she thought she was going to die before Ashby let go.

[6] Blane grabbed her phone and called her brother to ask him to pick her up. She then walked to a neighbor's house. The neighbors called the police. When police arrived, Blane “looked like she had been crying” and was “animated [and] upset.” Tr. Vol. IV p. 75. Franklin County Sheriff's Deputy Dakota Huntsman talked to Blane and observed red marks on her neck.

[7] Police then entered Ashby's house and found him “asleep” or “unconscious” underneath a bed. Id. at 86. After pulling Ashby from under the bed, Deputy Huntsman observed that Ashby smelled of alcohol and had glossy eyes. He did not initially observe any injuries, such as a black eye, on Ashby. Ashby seemed angry and was yelling at Deputy Huntsman as he placed Ashby in the back of his police vehicle. As Deputy Huntsman drove Ashby to jail, Ashby told Deputy Huntsman that the deputy forgot to secure Ashby's seatbelt. Deputy Huntsman pulled over to put on the seatbelt, and Ashby said he had just “bashed his head” in the backseat. Id. at 107.

[8] The State charged Ashby with Level 6 felony domestic battery with a prior unrelated conviction.¹ Before trial, the State filed a motion in limine and a notice of intent to offer Evidence Rule 404(b) evidence. Ashby filed a motion in limine and an objection to the State's notice. Following a hearing and offer of proof by the State, the court denied the State's request. The court granted portions of Ashby's motion in limine, which provided, in relevant part, that testimony about the following would be excluded:

11. That [Ashby] has committed any other crimes, wrongs, or acts, other than those permitted by Indiana Rule of Evidence 404(b) and pursuant to this Court's Order on 404(b) evidence previously entered in this matter. This would specifically include any reference to or comments regarding the prior conviction used by the State in its charging information, except for the second phase of the bifurcated proceeding.

App. Vol. II p. 85.

[9] Following an October 2025 trial, a jury found Ashby guilty of Class A misdemeanor domestic battery. In the second phase of his trial, Ashby admitted to having a previous conviction, and the instant conviction was enhanced to a Level 6 felony. The trial court sentenced Ashby to thirty months executed in the Indiana Department of Correction. Ashby appeals. Additional facts are provided as necessary.

Discussion and Decision

I. Motion for Mistrial

[10] Ashby first contends the trial court erred in denying his motion for a mistrial. Our standard of review is well settled.

The trial court is in the best position to assess the impact of a particular event upon the jury. Thus, the decision of whether to grant or deny a motion for mistrial is committed to the sound discretion of the trial court and will be reversed only upon an abuse of that discretion. The denial of a motion for mistrial will be reversed only upon a showing that the defendant was placed in a position of grave peril to which he should not have been subjected. The declaration of a mistrial is an extreme action and is warranted only when no other action can be expected to remedy the situation. The burden on appeal is upon the defendant to show that he was placed in grave peril by the denial of the mistrial motion. The defendant on appeal also has the burden to show that no other action could have remedied the perilous situation into which he was placed.

Wilson v. State, 865 N.E.2d 1024, 1027-28 (Ind. Ct. App. 2007) (citation omitted). And gravity of peril is measured by the conduct's probable persuasive effect on the jury. Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008).

A. Evidentiary Harpoon

[11] Ashby alleges he was placed in such grave peril when Blane and the State launched an evidentiary harpoon through Blane “testifying in oblique terms to Ashby's prior conviction for domestic battery[.]”² Appellant's Br. p. 8. “An evidentiary harpoon involves the deliberate use of improper evidence to prejudice the defendant in the eyes of the jury.” Blattert v. State, 241 N.E.3d 29, 38 (Ind. Ct. App. 2024) (quoting Lucio v. State, 907 N.E.2d 1008, 1010 n.2 (Ind. 2009)), trans. denied.

Our case law has recognized two ways in which an evidentiary harpoon may occur. First, an evidentiary harpoon occurs when the prosecution places inadmissible evidence before the jury for the deliberate purpose of prejudicing the jury against the defendant and his defense. Second, an evidentiary harpoon occurs where a government witness uses an unrelated question to inject[ ] ․ inadmissible evidence ․ deliberately ․ to incite prejudice against the defendant.

Id. (citations and quotations omitted).

[12] Neither of those scenarios occurred here. Ashby challenges the following questions by the State and Blane's responses.

[State:] How did you -- tell me about what you first perceived or saw with [Ashby] like when you first met him online?

[Blane:] He seemed like a nice guy. He was honest about his -- a little bit of his background and I thought that was very big of him to be honest about that, so I -- I took that as like he must be an honest person. He just all around seemed nice. I had a very good reason for his background.

Tr. Vol. III p. 171.

[State:] [Blane], what was going through your head while this was happening?

[Blane:] A lot was going through my head. I felt -- one, I felt really stupid that I even allowed myself into this situation. And I thought that this was going to be it. Honestly.

[State:] When you say that this is going to be it, do you mean --

[Blane:] I thought I was going to die. I mean considering stories. You know, you start to put everything together, you see things happening in front of you and unraveling and so then you're taking in things that you've heard before that you probably should have -- it should have been warnings.

Id. at 209-10.

[State:] And I think you said you felt foolish and the reason you didn't call the cops or you didn't call your brother, you didn't go get medical, was because you felt foolish. Explain that to me. Explain how you felt foolish and why you didn't go through those avenues.

[Blane:] Because I think deep down inside I kind of knew. I mean I did say that he was honest about his background. I wanted --

Tr. Vol. IV p. 32. Ashby's counsel requested a sidebar after each of these statements, arguing that Blane's responses were “dangerously close” to mentioning Ashby's prior conviction, Tr. Vol. III p. 172, and that they were improper character evidence or actual references to Ashby's prior conviction, see id. at 210, Tr. Vol. IV p. 33.

[13] Even assuming for the moment that Blane's statements were inadmissible, we are not persuaded that these questions by the State demonstrate an intention to introduce inadmissible evidence. See Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007) (considering the State's intent in questioning a witness to determine whether inadmissible evidence was introduced to deliberately prejudice the jury). Each of the above questions focuses on the relationship between Blane and Ashby or Blane's recollections and sensory impressions about the instant offense. The State was in bounds when questioning Blane about her perceptions of Ashby leading up to the events on June 28. Ashby has not demonstrated that any of the above questions were intended to elicit inadmissible testimony about Ashby's prior conviction.

[14] Further, we are not convinced that Blane's answers are unrelated to the questions posed. Each of Blane's responses related directly to the question asked, either providing her general feelings about Ashby as a partner or her feelings in the moment during the instant offense. Thus, there was no evidentiary harpoon. Because Ashby cannot have been placed in grave peril by an evidentiary harpoon where one was not launched, the trial court did not abuse its discretion in denying his motion for a mistrial.

B. Admissibility

[15] Turning to admissibility, Ashby contends that “Blane's testimony was clearly inadmissible as it violated Rule 404(b).” Appellant's Br. p. 14. But Ashby's argument fails. Initially, he states that “[t]hroughout Ms. Blane's testimony and the subsequent objections and sidebars, the trial court acknowledged that the testimony was coming close to violating the safeguards put in place through Rule 404(b).” Id. Ashby continues, alleging that the State acknowledged the testimony was close to forbidden character evidence, recounting the State's arguments below, and noting that the trial court ultimately admitted Blane's testimony. Id. at 15. But Ashby never explains how Blane's testimony—which was close to disclosing his prior conviction, but not quite—was actual evidence of his prior conviction, let alone how it was used to show he acted in conformity therewith in the instant offense. See Ind. Evidence Rule 404(b) (prohibiting the admission of evidence of a “crime, wrong, or other act” to prove the defendant's character “in order to show that on a particular occasion the person acted in accordance with the character”). He stops short and simply concludes that the “close to forbidden” testimony was inadmissible on its own merits. Appellant's Br. p. 15. Thus, Ashby has arguably waived review of this issue. See Burnell v. State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018) (we will not review undeveloped arguments).

[16] In any event, as the trial court noted, Blane never testified directly about Ashby's prior conviction. Indeed, Blane indicated that she had warnings about Ashby, but she was not “describing what those warnings were about ․ [a]nd the jury doesn't know that either.” Tr. Vol. III p. 210. As the trial court observed, Blane's testimony that Ashby “was open with his past and his history ․ could be anything[.]” Tr. Vol. IV p. 34. Thus, the challenged statements were not inadmissible because they were not statements of Ashby's prior bad act. Because Blane's statements were admissible, the court did not err in denying Ashby's mistrial motion.

II. Subsequent Admission of 404(b) Evidence

[17] Several times during his trial, Ashby discussed and questioned witnesses about a black eye that he said he obtained on June 28. Well after Ashby's motion for mistrial was denied, and after Ashby questioned multiple witnesses about his black eye, the State renewed its motion to admit evidence of Ashby's prior conviction. The State argued that Ashby introduced a theory of contrary intent by repeatedly discussing his black eye, thus permitting the State to admit the prior conviction evidence to prove Ashby's intent during the instant offense. The court agreed and granted the State's motion. Ashby argues this was an error.

[18] “We generally review a trial court's decision on the admissibility of evidence for an abuse of discretion.” Perry v. State, 267 N.E.3d 20, 32 (Ind. Ct. App. 2025), trans. denied. “Under this standard, reversal is ‘warranted only if the trial court's ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.’ ” Id. (quoting McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022)).

[19] Indiana Evidence Rule 404(b) prohibits the admission of evidence of a “crime, wrong, or other act” to prove the defendant's character “in order to show that on a particular occasion the person acted in accordance with the character.” But such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2).

The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State's witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant's intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Evid. R. 403.

Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993).

[20] Ashby repeatedly discussed his black eye during his trial. During his opening statement, he told the jurors that they would not see photographic evidence of injury to Blane, but that they “will see that [Ashby] got a black eye that day, that night.” Tr. Vol. III p. 164. He continued, stating:

You'll hear testimony from a neighbor, Jeff Roth, when he passes by these individuals when the truck is stopped. You will see and hear no testimony that there was a domestic incident occurring when he drove by. And as [Blane] and [Ashby] are going back home, you will see in her testimony that [Ashby] didn't have a black eye at that time. He doesn't get that until he goes back home with [Blane].

The evidence will show a clear and obvious injury to [Ashby] and minor redness to the neck of [Blane]. The evidence will show that someone was physically violent, but it was not [Ashby] ․ but he was forced to defend himself because the officers relied on assumptions and not evidence.

Id. at 164-65.

[21] Ashby also questioned multiple witnesses about his black eye. During his cross-examination of Blane, Ashby asked Blane whether she'd ever punched Ashby in the face or given him a black eye. He then asked Blane about a conversation she had with a friend, wherein the friend asked Blane if she had given Ashby a black eye. Later, Ashby cross-examined Deputy Huntsman about the same. Specifically, Ashby introduced his booking photograph and asked Deputy Huntsman if he saw “any sort of black eye there[.]” Tr. Vol. IV p. 115. Deputy Huntsman acknowledged what looked like “a small red mark, and maybe the beginnings of some bruising there on the right side of [Ashby's] face.” Id. Finally, Ashby called a witness, James Estepa, and asked him if Blane admitted to giving Ashby a black eye; Estepa testified that he thought Blane did admit as much.

[22] After the State renewed its motion to introduce evidence of Ashby's prior conviction, Ashby objected, asserting that he offered the black eye evidence to show weakness in the investigation, not to show contrary intent. In making its determination, the trial court considered Ashby's opening statement and his repeated questioning of witnesses about his black eye during cross-examination and in presentation of his case-in-chief. The court noted that, “while Defense counsel has not openly said that there's self-defense, [the court doesn't] see any other way that the evidence could point[.]” Id. at 131. The court continued, reasoning that the “only way that the continuously harping on the black eye can be relevant in this phase is to show that something happened and somebody caused a black eye to [Ashby], which would have been [Blane], in order to allow him and to justify his actions further down the road.” Id. at 132.

[23] Thus, the court found Ashby opened the door to evidence about his prior crime by presenting a contrary intent during his opening statement, cross-examination, and case-in-chief.³ See Wickizer, 626 N.E.2d at 799 (providing the procedural junctures at which a defendant may present contrary intent, opening the door to State's request to respond with Rule 404(b) evidence to prove intent); see also, e.g., Evans v. State, 727 N.E.2d 1072 (Ind. 2000) (Rule 404(b) evidence to prove intent was properly admitted where defendant impliedly asserted contrary intent of self-defense by soliciting testimony that the victim was the initial aggressor), reh'g denied. And after considering the State's arguments, the court reasonably concluded that Ashby's implicit claim of self-defense was subject to rebuttal by evidence that he previously battered a partner who herself bore a black eye. The court therefore reasonably concluded the evidence was genuinely relevant to prove Ashby's intent during the present offense. See Wickizer, 626 N.E.2d at 799 (State may respond by introducing evidence genuinely relevant to prove the defendant's intent at the time of the charged offense). Ashby has not shown that the court erred in determining that he opened the door to Rule 404(b) evidence of his prior conviction. That determination, however, does not end the inquiry.

[24] Turning to the Rule 403 prong, the court needed to weigh the risk of unfair prejudice against the probative value of the evidence. See Wickizer, 626 N.E.2d at 799. As our Supreme Court has noted, “all relevant evidence is ‘inherently prejudicial’ in a criminal prosecution, so the inquiry boils down to a balance of probative value against the likely unfair prejudicial impact the evidence may have on the jury.” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002) (quoting Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)). Even a showing that the approximate weight of probative value and unfair prejudice is equal is insufficient; instead, “the danger of unfair prejudice [must] substantially outweigh the probative value before evidence must be excluded[.]” Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996); see Evid. R. 403. “When determining likely unfair prejudicial impact, ‘courts will look for the dangers that the jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury.’ ” Carter, 766 N.E.2d at 382 (citing Evans v. State, 643 N.E.2d 877, 880 (Ind. 1994)).

[25] Ashby seems to claim the former—that the jury substantially overestimated the value of the prior-conviction evidence. Here, the State called a single, final witness, Reserve Deputy Jeremy Noah, to testify to Ashby's prior conviction. Deputy Noah's testimony was brief: he identified Ashby as the defendant in his prior case and identified Ashby's ex-wife as the victim; he indicated that the victim had a black eye when he first encountered her; and he stated that Ashby was later convicted of domestic battery. Deputy Noah did not elaborate, and, in closing argument, the State did not rely on Ashby's prior conviction.⁴

[26] But before the court admitted Deputy Noah's testimony, the jury heard extensive testimony about the instant offense. They heard that Ashby and Blane had a disagreement at dinner and decided to head home. On that drive, Ashby dragged Blane out of his truck like a “ragdoll.” Tr. Vol. III p. 193. Upon returning home later that evening, Ashby flipped a mattress Blane was lying on, forcing her to roll into a wall. When Blane tried to get back in bed and disengage, Ashby wrapped his arm around her neck until her vision blurred and she thought she was going to die. Responding officers saw red marks on Blane's neck and observed her in a state of distress. Considering all the evidence, the risk that the jury overly relied on Ashby's prior conviction to convict him of domestic battery in the instant case is minimal. See, e.g., Carter, 766 N.E.2d at 382 (where independent evidence was sufficient to sustain a defendant's conviction, the risk that the jury overly relied on prejudicial evidence was minuscule, and the court's decision to admit such evidence was affirmed).

[27] The trial court heard extensive argument from both parties before determining that the prior-conviction evidence was admissible to show intent and that it passed muster under Evidence Rule 403. See Ingram v. State, 715 N.E.2d 405, 408 (Ind. 1999) (where the probative value of evidence was dubious and the potential prejudicial effect was not insignificant, the evidence remained admissible where trial court extensively questioned counsel, exercising its discretion appropriately). Trial courts are given wide latitude to make such determinations. Id.; Tompkins, 669 N.E.2d at 398. Given the trial court's careful consideration of Ashby's contrary intent claim and the State's request to admit Rule 404(b) evidence to rebut it, the court could have reasonably found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See id. And Ashby has failed to show that the court's decision was clearly against the logic and effect of the facts and circumstances. See Perry, 267 N.E.3d at 32. As such, we cannot say that the trial court abused its discretion in admitting evidence of Ashby's prior conviction under these circumstances.

Conclusion

[28] Because neither the State nor Blane launched an evidentiary harpoon and because the challenged portions of Blane's testimony were admissible, the trial court did not err in denying Ashby's motion for a mistrial. Further, the court's subsequent decision to admit evidence of Ashby's prior conviction was not an abuse of discretion. Accordingly, we affirm.

[29] Affirmed.

FOOTNOTES

1.   In 2025, the State amended the charging information to add a count of Level 6 felony strangulation. A jury later found Ashby not guilty of the strangulation charge.

2.   After introducing this issue, Ashby spends four and a half pages of argument reciting procedural history and testimony from his trial. Included in the testimony that he quotes are several statements by Blane referring to Ashby's alcohol use during their relationship, and one statement about his use of marijuana. Upon returning to his evidentiary harpoon analysis, see Appellant's Br. p. 13, Ashby never asserts that the references to alcohol or drugs are also an evidentiary harpoon. Instead, he notes the trial court's instructions to Blane to “avoid mention of Ashby's prior conviction” and contends the prejudice remained despite the court's instruction. Id. As such, we limit our review for an evidentiary harpoon to the testimony about his background generally, which he asserts was about his “prior conviction for domestic battery[.]” Id. at 8.

3.   Ultimately, Ashby explicitly asserted self-defense in his closing argument, and the jury was instructed on the same. Regardless, Ashby's assertions before the court's ruling on the State's renewed Rule 404(b) motion were sufficient for the court to determine that Ashby, indeed, raised a contrary intent. Because we need not consider Ashby's subsequent, explicit assertion of self-defense to reach our conclusion, we do not do so.

4.   The State responded to Ashby's self-defense claim on rebuttal, but, still, it did not rely on Ashby's prior conviction to do so.

Scheele, Judge.

May, J., and Pyle, J., concur.