Rashad Lamar Thompson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

[1] Rashad Lamar Thompson (“Thompson”) was convicted after a jury trial of murder ¹ and sentenced to sixty years executed in the Indiana Department of Correction (“the DOC”). Thompson appeals and raises several issues that we consolidate and restate as:

I. Whether the trial court abused its discretion in admitting certain evidence;

II. Whether the State presented sufficient evidence to support Thompson's conviction for murder; and

III. Whether the trial court abused its discretion in its instruction of the jury.

[2] We affirm.

Facts and Procedural History

[3] On April 2, 2024, around 6:50 p.m., Thompson drove a silver Jeep Commander (“the Jeep”) that was registered to his father, Arthur Thompson, to the Citgo gas station (“the Citgo”) located on 5th Avenue in Gary, Indiana. Thompson parked the Jeep in front of the Citgo and went inside the store. The Citgo surveillance video shows Thompson walking in and out of the store and socializing while wearing a green Nike hooded sweatshirt and matching sweatpants, a black baseball cap, and black sneakers with white soles. At approximately 7:07 p.m., Leroy McCambry (“McCambry”) walked up to the Jeep, entered it, and drove off. The surveillance video showed Thompson exit the store and watch the Jeep drive away.

[4] A few minutes later, around 7:10 p.m., a dark-colored Chevy Equinox (“the Equinox”) arrived in front of the store and parked. The Equinox was being driven by a black man who was bald and wearing a black jacket, blue jeans, and black sneakers. It was later determined that the Equinox was registered to Toni Buck (“Buck”). Thompson got into the front passenger seat of the Equinox, which then left the parking lot and headed in the direction that the Jeep had. Surveillance cameras from businesses and Flock traffic cameras captured video and images of the Equinox following the Jeep. At one point, an image captured the Equinox driving right next to the Jeep at approximately 7:15 p.m. However, there were no images for a distance of approximately 1.6 miles prior to the Jeep hitting an electric pole near the corner of 4th Avenue and Hayes Street, flipping several times, and ultimately slamming into a garage. Surveillance video from a neighboring house showed the crash. Almost immediately after the crash, the Equinox stopped in the street next to the garage. Thompson and the male driver exited the Equinox, holding guns. Thompson ran around the area of the garage, yelling, “[w]here he at?” and that his “car was tooken [sic].” Tr. Vol. 4 pp. 5, 19.²

[5] After the crash occurred, three 911 calls were received by Lake County dispatch. Nalida DeJesus (“DeJesus”) first called at 7:17 p.m. and told the 911 operator that she saw a car crash and that a light-colored SUV flipped multiple times. She told the operator that, when she went outside, she could not find the SUV that crashed, but she saw a black man wearing an all-green Nike track suit walking down the alley near the garage and saying that someone took his car. DeJesus called back a second time at approximately 7:22 p.m. and told the dispatcher that she noticed that the garage involved in the crash was smoking, and she discovered that the SUV that crashed was inside of the garage.

[6] A third call came from an unidentified female caller at approximately 7:18 p.m. The caller reported the accident that occurred at 4th and Hayes but also stated that a shooting had occurred. She stated that she heard gunshots and then “saw a [silver] Jeep just flying down 4th Avenue” with what she described as a brown Equinox following right after the Jeep. State's Ex. 41 at 00:41–00:48. She stated that there were at least “four or five” gunshots. Id. at 03:35–03:36. The caller then observed the Jeep hit a light pole and saw a black man exit the Equinox with a gun. The man then got back into the Equinox, which left the area. The caller told the dispatcher that she was no longer at the scene of the accident and was at home when she called. At the conclusion of the call, the dispatcher told the caller that officers were on the way to the accident scene.

[7] Emergency responders arrived at the scene and discovered McCambry's body in the wreckage of the Jeep. Several bullet holes were observed in the driver's side door, and it was determined that McCambry had suffered a single gunshot wound that entered his body on the left side of his chest and traveled through his body, injuring his internal organs, and ultimately lodging in his heart. The pathologist later determined that McCambry probably died “instantly or within minutes” due to this heart injury. Tr. Vol. 5 p. 93. As the police investigated the Jeep, they discovered that there were twelve total bullet holes in the Jeep. Several projectiles were discovered at the scene including three spent bullet jackets and a bullet fragment that were all consistent with being fired from a .40 caliber gun and two spent bullet jackets and a bullet fragment consistent with being fired from a .35 caliber gun. The bullet recovered from McCambry's body was determined to be consistent with being shot from a .35 caliber gun. Police later found a nine-millimeter Taurus handgun, which is in the .35 caliber family, during a search of the residence of the registered owner of the Equinox, Buck. Testing on that handgun was inconclusive as to whether it was the handgun that fired the recovered .35 caliber projectiles.

[8] Around 7:52 p.m., Thompson returned to the Citgo in a different Equinox. He was wearing different clothing, a different black baseball hat, and what “appeared” to be “the same shoes[.]” Tr. Vol. 4 p. 224. The surveillance video from inside the store shows Thompson and another man go into the bathroom together with a bottle of bleach, and shortly thereafter, the black male that had previously picked Thompson up in the Equinox also entered the bathroom. Thompson exited the bathroom a short time later and was wiping his hands on his pants.

[9] At approximately 8:00 p.m., Thompson called 911 to report that someone had stolen his father's truck that Thompson had been driving from the Citgo. He told the dispatcher that he did not call to make the report right away because he “thought it was one of [his] friends playing” a joke on him. State's Ex. 42 at 02:21–02:22. Thompson met the police at the Citgo to make the report.

[10] During the investigation, police obtained cell phone information from Thompson. The information revealed that Thompson received a text message at 7:27 p.m., which was after the Jeep collision, which stated, “Babe be careful please” with three heart emojis, followed by, “find them . . [.] but be so careful[.]” Ex. Vol. 1 p. 107. Later, around 8:06 p.m., Thompson received a text message from a different number that stated, “Did u [sic] find the” with two car emojis. Id. at 106.

[11] Police spoke with DeJesus to determine if she could identify the suspect she observed at the scene. When they showed her a photo lineup, DeJesus initially identified two of the six men as looking like the suspect, and later, she identified three of the six men as looking like the suspect. Only when she was shown a photograph of Thompson from the Citgo surveillance video, and wearing all green, was she able to identify Thompson as the person she observed at the scene.

[12] On May 1, 2024, the State charged Thompson with murder, Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony unlawful carrying of a handgun, Level 5 felony dealing in marijuana, Level 6 felony dealing in marijuana, and Class A misdemeanor dealing in marijuana. The State also filed an enhancement to Thompson's murder charge for the use of a firearm in the commission of the offense. Prior to trial, Thompson filed a motion to suppress DeJesus's identification. A hearing was held on the motion, and the trial court granted the motion to suppress her identification of Thompson from the single still photo taken from the surveillance video due to the identification being “impermissibly suggestive[.]” Appellant's App. Vol. II p. 113.

[13] A bifurcated jury trial was held on May 5–8, 2025. When DeJesus testified, she initially testified that the man she observed at the scene was “an African American gentleman in all green with a handgun.” Tr. Vol. 4 p. 18. She stated that he came from the alley area and said that “his car was tooken [sic].” Id. at 19. DeJesus further stated that she “knew what he was wearing and ․ knew the handgun he had.” Id. at 26. She also testified that the man had a hat on and had “facial hair.” Id. at 42. On cross-examination, Thompson asked DeJesus about her two failed attempts to identify the person she saw from the photo arrays. He also inquired as to whether she agreed that “the color green is not ․ anything distinctive.” Id. at 44. He further asked her to agree that “the fact that someone is wearing green is not any meaningful identification.” Id. at 45. After this line of questioning, the State informed the trial court that the defense had opened the door to the State asking about DeJesus's identification of Thompson from the photo and “about him wearing green.” Id. at 49. The State requested that it be able to present DeJesus with the photo that the police had shown her and allow her to say, “that is the man she saw [i]n the street running with the gun.” Id. at 50. The trial court granted that request in part, finding that Thompson opened the door to allowing the State to show DeJesus the photograph from the Citgo and to ask her the “color of the clothing” worn in the photo. Id. at 58. Testimony resumed, and when shown the photo, DeJesus merely acknowledged that “Yes, there is” an individual wearing green in the photo and that it was “[a] whole outfit with ․ a hat.” Id. at 66.

[14] The State moved to admit State's Exhibit 41, which was the 911 call from the unidentified caller, and established through an employee of Lake County emergency communications that the recording was “a clear and accurate representation of the 911 call[.]” Id. at 122. Thompson objected to the admission of State's Exhibit 41 based on hearsay and a violation of his right to confrontation because the caller was unknown and unable to be questioned. The trial court overruled Thompson's objection on the basis that 911 calls are non-testimonial.

[15] Gary Police Department (“GPD”) Corporal Eric Green (“Corporal Green”) testified regarding the admission of the surveillance videos from local businesses that were utilized by the police in their investigation of this crime. Corporal Green stated that he was a detective in the real time crime center in the GPD and testified regarding the training he received in retrieving and compiling surveillance videos to present in court. The program utilized for these tasks by the GPD was called Operation Safe Zone and it provided access to cameras from various locations in Gary. The program has access to cameras at ninety locations across the city, which were operated on a platform called FUSUS. The police department met with the business owners and had them “sign a memorandum of understanding[,]” which allowed access to their DVR systems, and then a “core” was installed into the system that provided the department remote access to the video “through a network feed.” Id. at 141–42. The police can pull video from those FUSUS cores, and when the cores are set up, the installer makes sure that the date and time are accurate, and the timestamps on the DVR and FUSUS systems can later be compared.

[16] Thompson objected to the admission of the video from the Citgo, which was State's Exhibit 47, arguing that there had been an “insufficient foundation” set out, that the State had not proven that there was “any consent by the [Citgo] ․ to be able to have this footage[,]” and “there's nothing to indicate that the video footage can't be tampered with ․ by the owner.” Id. at 163. Upon voir dire examination by Thompson, Corporal Green testified that, when the FUSUS cores are installed, the owner of the property still has full access and control over the video footage on their own DVR system, but they do not have the ability to go into the FUSUS system and alter the video. “Whatever is saved on the FUSUS system, ․ no business owner has access to it[,]” and it “is stored on [the] memory card that is ․ stored within that FUSUS core that is at that location.” Id. at 166 –67. The trial court overruled Thompson's objection as to the video from the Citgo. Thompson entered a standing objection to all of the subsequent surveillance videos, which were all admitted over Thompson's objections.

[17] Corporal Green testified that he looked at and viewed all of the relevant videos for this case from the FUSUS platform, and using his training, he compiled the relevant portions from the different videos and created a chronological video for use in the trial to allow for a better understanding of the videos with the addition of text boxes naming the locations of the individual videos. Corporal Green testified that, as to all of the videos sought to be admitted, the timestamps were accurate except for the one from Handy Spot Liquors, which was determined by Corporal Green to be one hour off. Thompson objected to this video compilation, which was State's Exhibit 56, arguing that the compilation had not been authenticated because it had been altered, and the trial court overruled the objection.

[18] Before the trial concluded, the parties submitted proposed jury instructions. The State requested instructions on accomplice liability, and Thompson objected, asserting that the State “never presented [this] as a case of accomplice liability” and claimed there needed to be “another identifiable person and some culpable conduct by that person” to say there was an accomplice. Tr. Vol. 6 p. 58. The trial court found an accomplice liability instruction was supported by the evidence and that it would give a modified version of what the State tendered. Thompson proposed an instruction regarding circumstantial evidence that defined that term and further provided that, “Where proof of guilt[ ] is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence.” Appellant's App. Vol. II p. 135. The trial court denied that instruction, stating that it was instead giving “the pattern jury instruction on direct and circumstantial [evidence].” Tr. Vol. 6 p. 51.

[19] At the close of evidence, the State moved to dismiss the charges related to marijuana dealing, and the trial court granted the motion. After deliberating, the jury found Thompson guilty of murder. In the second phase of the trial, the State moved to dismiss the counts regarding the unlawful possession of a firearm by a serious violent felon and unlawful carrying of a handgun, and the trial court granted the motion. The jury then found Thompson not guilty of the firearm enhancement. On July 1, 2025, the trial court sentenced Thompson to sixty years in the DOC. Thompson now appeals.

Discussion and Decision

I. Admission of Evidence

[20] Thompson argues that the trial court abused its discretion when it admitted several items of evidence at trial. The trial court is afforded wide discretion in ruling on the admissibility of evidence. Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017) (citing Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012)). On appeal, evidentiary decisions are reviewed for abuse of discretion and are reversed only when the decision is clearly against the logic and effect of the facts and circumstances. Id. at 842–43. “Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party.” Housand v. State, 162 N.E.3d 508, 513 (Ind. Ct. App. 2020), trans. denied. “To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury.” Id. We will affirm a ruling on the admissibility of evidence on any reasonable basis apparent in the record regardless of whether it was relied on by the parties or the trial court. Turner v. State, 183 N.E.3d 346, 353 (Ind. Ct. App. 2022), trans. denied.

A. Video Evidence

[21] Thompson contends that the trial court abused its discretion when it admitted several items of photographic and video evidence that consisted of surveillance videos from businesses, State's Exhibits 45–50, and the compilation video that was prepared by Corporal Green, State's Exhibit 56. Thompson asserts that these exhibits should not have been admitted because the videos acted as a “silent witness,” and the State did not meet the heightened foundation requirements required for such evidence to be admitted. Appellant's Br. pp. 31–32. He argues that the State failed to lay an adequate foundation to establish how the FUSUS system worked and that there was a lack of testimony about the systems at the individual businesses that collected the videos stored on the FUSUS system.

[22] Generally, a party authenticates an exhibit by “produc[ing] evidence sufficient to support a finding that the item is what the proponent claims it is.” Ind. Evidence Rule 901(a). Videos and photographs are often offered as demonstrative evidence, but when offered under the silent-witness theory, they are offered as substantive evidence. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014), cert. denied. Such evidence offered for substantive purposes acts as a silent witness as to what activity is being depicted. Kirby v. State, 217 N.E.3d 575, 583 (Ind. Ct. App. 2023), trans. denied. For videos and photographs to be admitted as substantive evidence, “there must be a strong showing of authenticity and competency, including proof that the evidence was not altered.” McCallister v. State, 91 N.E.3d 554, 561–62 (Ind. 2018) (citing Knapp, 9 N.E.3d at 1282). Proper authentication of surveillance video footage may be accomplished “under the silent-witness theory when the proponent presents ‘testimony from someone with knowledge on the security system that produced the video or image, on the integrity of the system's process, and on whether [the] video or image was altered.’ ” Irwin v. State, 229 N.E.3d 567, 571 (Ind. Ct. App. 2024) (quoting Stott v. State, 174 N.E.3d 236, 246 (Ind. Ct. App. 2021)), trans. denied.

[23] Here, all of the challenged evidence was admitted through the testimony of Corporal Green, who was a detective in the GPD real time crime center. He testified that he had received training in retrieving and compiling surveillance videos for presentation in court and that the GPD utilized a program that provided access to cameras at ninety locations across the city. He stated that the cameras were operated on a platform called FUSUS and that GPD met with the participating business owners and had them “sign a memorandum of understanding[,]” allowing GPD access to the businesses’ DVR systems. Tr. Vol. 4 p. 141. Once this access was granted, GPD installed a “core” into the system that provided the department remote access to the video “through a network feed.” Id. at 141–42. GPD was then able to pull video from those FUSUS cores, and although the business owner still had full access and control over the video footage on their own DVR system, they did not have the ability to go into the FUSUS system and alter the video footage that was stored on the memory card “within that FUSUS core” at the business location. Id. at 167. When the cores are installed, a GPD officer ensures that the date and time are accurate and synchronizes the timestamps between the business's DVR system and the FUSUS system, and the timestamps on the two systems can later be compared. Corporal Green testified that, as to all of the challenged videos, the timestamps were accurate except for the one from Handy Spot Liquors, which was determined by Corporal Green to be one hour off.

[24] This testimony established that Corporal Green was familiar with the FUSUS system and was knowledgeable in how the agreements between GPD and the businesses worked and the process by which the videos were saved on the cores placed in the businesses’ systems. He testified regarding how the timestamps were synchronized between the systems and how they can later be compared to ensure accuracy. The testimony also established that the video footage stored on the FUSUS cores could not be altered by the business owners as it was saved on a separate memory card from that contained in the business's DVR system. This was sufficient to establish authenticity and competency of the video evidence and lay a proper foundation. We, therefore, conclude that the trial court did not abuse its discretion in admitting the challenged evidence.

B. 911 Call from Unidentified Caller

[25] Thompson challenges the admission of the recording of the 911 call from an unidentified caller, State's Exhibit 41. He argues that the recording was inadmissible hearsay as it was admitted for the truth of the matters asserted therein. He further contends that the admission of the recording violated his right of confrontation because the statements in the recording were testimonial and, therefore, inadmissible because the caller was unidentified and unable to be cross-examined by Thompson. Thompson acknowledges that 911 calls can be nontestimonial when they are made to enable police assistance in an ongoing emergency but maintains that the challenged 911 call was testimonial in nature because he asserts that the primary purpose of the questioning by the dispatcher here was to establish past events potentially relevant to later criminal prosecution.

1. Hearsay

[26] Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind. Evidence Rule 801; Evid. R. 802. An excited utterance is “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” and is not excluded by the hearsay rule. Evid. R. 803(2). To prove the excited utterance exception, three elements must be present: (1) a startling event; (2) a statement made while the declarant was under the stress of excitement caused by the event; and (3) that the statement relates to the event. Wallace v. State, 79 N.E.3d 992, 997 (Ind. Ct. App. 2017). This test is not a mechanical test, and admissibility turns on whether the statement was inherently reliable because the witness was under the stress of the event and unlikely to make deliberate falsifications. Sandefur v. State, 945 N.E.2d 785, 788 (Ind. Ct. App. 2011).

[27] In the present case, the 911 caller reported that she had witnessed a shooting and that she heard at least four or five gunshots and then saw a silver Jeep hit a light pole. Although the caller was no longer at the scene of the accident when she called 911, the call was made very near in time to the shooting and accident as the dispatcher told the caller that officers were still enroute to the scene at the time of the call. Additionally, the call came in at 7:18 p.m., which was only one minute after the first 911 call was received and less than three minutes after the shooting. The last image of the Jeep prior to the shooting was captured at approximately 7:15 p.m. and was taken about 1.6 miles from the crash site. A shooting and a subsequent vehicle accident was undoubtedly a startling event, and the call clearly related to the shooting and accident. Because the call was made within mere minutes of the shooting and crash and while first responders were still on the way to the scene, it is reasonable to infer that the caller was under the stress of witnessing the shooting and the subsequent crash. The circumstances of the 911 call established that the statements contained therein were inherently reliable as the stress of the shooting and the crash made it unlikely that the caller was making deliberate falsifications. We, therefore, conclude that State's Exhibit 41 constituted an excited utterance and was therefore admissible under that exception to the hearsay rule.

2. Right of Confrontation

[28] “Although a trial court generally has broad discretion in ruling on the admissibility of evidence, when a defendant challenges the admission as a constitutional violation of his rights, we review the issue de novo.” Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019). The Confrontation Clause of the Sixth Amendment to the United States Constitution, which is made applicable to the States by the Fourteenth Amendment, provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, the United States Supreme Court concluded that the Sixth Amendment prohibits the admission of “testimonial statements by a non-testifying witness, unless the witness is ‘unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Ward v. State, 50 N.E.3d 752, 757 (Ind. 2016) (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). Whether a statement is testimonial is a question of law that we review de novo. Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013).

[29] To determine whether a statement is testimonial, we must decide whether it has “a primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 358 (2011). “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006). However, statements “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. (footnote omitted). In deciding whether a statement is testimonial or nontestimonial, we must consider:

(1) whether the declarant is describing present or past events; (2) whether there is an ongoing emergency at the time that the statements are made; (3) whether the nature of the questions asked and the responses given were made in an effort to resolve a present emergency; and (4) the degree of formality during the course of the police questioning.

Isom v. State, 31 N.E.3d 469, 483 (Ind. 2015) (citing Davis, 547 U.S. at 827), cert. denied.

[30] Here, although State's Exhibit 41 contained statements about past events, the statements in the 911 call were made very soon after the shooting and the Jeep accident. Indeed, the dispatcher told the caller that emergency responders were still in route at the end of the call. Further, although the 911 caller was no longer at the scene, the primary purpose of the call was to relay information to emergency responders to meet the ongoing emergency of a shooting and car accident. At the time the call was made, the shooter had not been apprehended, and thus, the information provided by the 911 caller was relevant to address an ongoing threat that the shooter posed to the public. Further, the questioning by the dispatcher in the call was not in the nature of a formal interrogation and was, instead, an informal gathering of information to get emergency responders to the scene and to ensure that any ongoing threat to the public was addressed. We, therefore, conclude that the statements in State's Exhibit 41 were nontestimonial, and the trial court did not abuse its discretion in admitting the exhibit.

C. Identification Questions

[31] Thompson next asserts that the trial court abused its discretion when it allowed the State to ask DeJesus several questions regarding a photo of Thompson. The photo had been shown to her prior to the trial. While being shown the photo, DeJesus testified that the person in the photo was wearing an all-green outfit. He argues that this line of questioning was improper because it “communicated to the jury that DeJesus had identified [Thompson] from the Citgo photographs during a tainted, impermissibly suggestive identification procedure[.]” Appellant's Br. p. 41. And contrary to the trial court's ruling, Thompson contends that defense counsel did not open the door to the line of questioning. He claims that the trial court's decision to allow the State to ask questions about DeJesus's pretrial identification of him was a due process violation.

[32] The Due Process Clause of the Fourteenth Amendment prohibits the admission of testimony “concerning a pre-trial identification when the procedure employed is impermissibly suggestive.” Williams v. State, 774 N.E.2d 889, 890 (Ind. 2002) (citing Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999)). However, otherwise 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) (citing Jackson v. State, 728 N.E.2d 147, 152 (Ind. 2000)). “The door may be opened when the trier of fact has been left with a false or misleading impression of the facts.” Id.

[33] Here, prior to the trial, the trial court ruled that DeJesus's pretrial identification of Thompson from a still photo taken from the Citgo footage was inadmissible because the identification was “impermissibly suggestive[.]” Appellant's App. Vol. II p. 113. At trial, DeJesus initially testified that, at the scene, she saw “an African American gentleman in all green with a handgun” and that she “knew what he was wearing and ․ knew the handgun he had.” Tr. Vol. 4 pp. 18, 26. On cross-examination, defense counsel asked DeJesus about her two failed attempts to identify Thompson from a photo array and then questioned her about her testimony that she had seen a man wearing green. Specifically, defense counsel asked DeJesus whether the color green was distinctive, whether she would agree that most people had green in their wardrobe, and whether stating that someone was wearing green was a “meaningful identification.” Id. at 45.

[34] After cross-examination concluded, the State told the trial court that it believed that defense counsel had opened the door to “asking about the photo and about him wearing green” because the questioning on cross-examination misled the jury into thinking that DeJesus could not identify anything when in fact she could identify “what he had on.” Id. at 49, 50. The trial court granted the State's request in part, finding that defense counsel opened the door to allowing the State to show DeJesus a photo from the Citgo and asking her the color of the clothing the person in the photo was wearing. The State then proceeded to engage in the following dialog with DeJesus:

Q. Okay. Now, Ms. DeJesus, previously you were shown photos by Detective McCall from a Citgo gas station in Gary, Lake County, Indiana, right?

A. Yes.

Q. And that was one of the meetings that you had with him, right?

A. Yes.

Q. Okay. State is passing you ․ State[’s] Exhibit 57—just one photo—a photo from the Citgo gas station․ Is that one of the photos that McCall showed you?

A. Yes.

Q. And in this photo do you see—or can you tell me if there's any individual wearing green in that photo?

A. Yes, there is.

Q. And how much green does he have on in that photo?

A. A whole outfit with that—a hat (indicating).

Id. at 65–66.

[35] As previously stated, due process generally prohibits the admission of testimony concerning a pre-trial identification when the procedure employed is impermissibly suggestive. See Williams, 774 N.E.2d at 890. However, here, there was no testimony at trial that DeJesus actually identified Thompson from the photo taken from the Citgo. Instead, the challenged testimony established that she had been shown a photo taken from the Citgo by police that depicted an individual wearing green and that the individual was wearing a whole green outfit with a hat. Such testimony was elicited to demonstrate that DeJesus was able to recognize the color green and when an individual is wearing an all-green outfit. Defense counsel had extensively questioned DeJesus about her ability to recognize green and green clothing and had pointed out that DeJesus had failed to make an identification when shown photo arrays. Because defense counsel's questioning created a misleading impression that DeJesus was unable to recognize green clothing as being distinctive, the door was opened to allow the State to establish that DeJesus was able to do so. See Clark, 915 N.E.2d at 130. We, therefore, conclude that the trial court did not abuse its discretion in allowing this limited questioning.

II. Sufficiency of the Evidence

[36] Thompson argues that the State failed to present sufficient evidence to support his conviction for murder. When there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. “We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence.” Id. Further, “[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[37] To convict Thompson of murder, the State was required to show that he “did knowingly or intentionally kill” McCambry. See Ind. Code § 35-42-1-1(1); Appellant's App. Vol. II p. 93. It is well-settled that circumstantial evidence alone can sustain a murder conviction. Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). In a case based on circumstantial evidence, “no single piece of evidence in isolation—no ‘smoking gun’—is offered to persuade the jury to convict.” Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). “Yet a jury may be convinced, beyond a reasonable doubt, by looking at ‘a web of facts in which no single strand may be dispositive.’ ” Id. (quoting Kriner v. State, 699 N.E.2d 659, 664 (Ind. 1998)). Additionally, under Indiana Code section 35-41-2-4, a defendant can be found guilty as an accomplice when the defendant “knowingly or intentionally aids, induces, or causes another person to commit an offense.” It is not necessary that the evidence establishes the accomplice personally participated in the commission of each element of the offense. Jackson v. State, 222 N.E.3d 321, 336–37 (Ind. Ct. App. 2023), trans. denied. A person who aids another in committing a crime is just as guilty as the actual perpetrator. Madden v. State, 162 N.E.3d 549, 557 (Ind. Ct. App. 2021).

[38] Contrary to Thompson's arguments, there was sufficient evidence presented at the trial to support the jury's verdict. The record reflected that McCambry died of a single gunshot wound, and bullets and fragments were recovered from two different calibers of firearm. Thompson had a motive to kill McCambry as McCambry had stolen the Jeep from the Citgo just minutes before being shot. The evidence established that, as McCambry drove away in the Jeep, Thompson watched the Jeep leave the parking lot. At that time, Thompson was wearing a green hoodie sweatshirt, green sweatpants, and a black hat. Just a few minutes later, the Equinox arrived, and Thompson got inside as a passenger, and the Equinox left the Citgo, traveling in the same direction that the Jeep had taken. Text messages presented at trial indicated that Thompson was looking for the Jeep. Surveillance cameras and Flock Cameras then caught images of both the Jeep and the Equinox traveling in the same direction. At one point, an image captured the Equinox driving right next to the Jeep. Prior to the Jeep colliding with the light pole and rolling until it crashed into the garage, the 911 caller stated that a shooting occurred. She heard multiple gunshots, and the Jeep sustained twelve gunshots, including the one that entered McCambry's body and lodged in his heart.

[39] After the collision occurred, a dark colored Equinox stopped at the scene, and two men holding handguns exited and walked around the garage area looking for someone. One of these men was wearing all green and a black hat just as Thompson had been in the earlier surveillance video from the Citgo. This man was heard yelling, “[w]here he at?” and that his car had been taken. Tr. Vol. 4 p. 5. A nine-millimeter handgun that was consistent with the one that killed McCambry was found in the house of the owner of the Equinox. The two men left the scene in the Equinox. After leaving the scene, Thompson engaged in actions that suggested an attempt to conceal his involvement in the shooting, including changing his clothing and car before returning to the Citgo, going into the bathroom of the Citgo with bleach and apparently washing his hands, and reporting the Jeep stolen without mentioning the crash. Evidence of an accused's attempt to conceal inculpatory evidence is relevant to establish consciousness of guilt. Cobb v. State, 222 N.E.3d 373, 387 (Ind. Ct. App. 2023) (citing Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983)), trans. denied.

[40] From this evidence, the jury could reasonably infer that, after realizing that the Jeep had been stolen, Thompson called someone to pick him up to look for the Jeep. They then traveled in the same direction as the Jeep until they found it. When Thompson and his acquaintance located the Jeep, they fired multiple shots at it, one of which hit McCambry, killing him. Even if the driver of the Equinox fired the fatal shot instead of Thompson, there was sufficient evidence from which the jury could convict him under a theory of accomplice liability. Based on all of this evidence, we conclude that sufficient evidence was presented to support Thompson's conviction for murder.

III. Jury Instructions

[41] Thompson asserts that the trial court abused its discretion in instructing the jury because it failed to give an instruction he proffered on the reasonable theory of innocence and because it gave an instruction on accomplice liability. “The purpose of an instruction is ‘to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’ ” Morales v. State, 227 N.E.3d 183, 190 (Ind. Ct. App. 2024) (quoting Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied), trans. denied. The instruction of the jury lies within the trial court's sound discretion, and we review the trial court's decisions regarding jury instructions only for an abuse of that discretion. Harrison v. State, 32 N.E.3d 240, 251 (Ind. Ct. App. 2015), trans. denied. When a defendant seeks reversal based on instructional error, he must demonstrate a reasonable probability that his substantial rights have been adversely affected. Id.

A. Reasonable Theory of Innocence Instruction

[42] Thompson first argues that the trial court abused its discretion when it refused to give his proffered instruction on the reasonable theory of innocence. A trial court erroneously refuses to give a tendered instruction if: “(1) the instruction correctly sets out the law; (2) evidence supports the giving of the instruction; and (3) the substance of the tendered instruction is not covered by the other instructions given.” Morales, 227 N.E.3d at 190. Thompson contends that his proffered instruction was a correct statement of the law and was supported by the evidence because, when the case against a defendant is entirely circumstantial as it was here, a defendant is entitled to an instruction on the reasonable theory of innocence. He further asserts that the trial court abused its discretion because no other instruction given covered the substance of his proffered instruction.

[43] In Hampton v. State, 961 N.E.2d 480 (Ind. 2012), our Supreme Court held that when the defendant's conduct constituting the charged offense, the actus reus, is established exclusively by circumstantial evidence, “the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.” Id. at 491 (emphasis in original). This “reasonable theory of innocence instruction” provides “a safeguard urging jurors to carefully examine the inferences they draw from the evidence presented, thereby helping to assure that the jury's reasoning is sound.” Id. at 486. It “informs the jury that if a reasonable theory of innocence can be made of the circumstantial evidence, then there exists a reasonable doubt, and the defendant is entitled to the benefit of that doubt.” Id. (emphasis in original).

[44] Thompson's proposed instruction provided in pertinent part:

It is not necessary that facts be proved by direct evidence. Both direct evidence and circumstantial evidence are acceptable as means of proof. A conviction may be based solely on circumstantial evidence. Where proof of guilt[ ] is by circumstantial evidence only, it must be so conclusive and point so convincingly to the guilt of the accused that the evidence excludes every reasonable theory of innocence.

Appellant's App. Vol. II p. 135 (emphasis added). The trial court instead gave Indiana Pattern Jury Instruction 12.01, which defines direct and circumstantial evidence and informs the jury that it can consider both types of evidence and that a conviction may be based solely on circumstantial evidence. Id. at 172. That instruction did not include any language like the italicized language that the Supreme Court held should be given. In denying Thompson's proposed jury instruction, the trial court stated that it believed that the “reasonable theory of innocence” language was “part of another instruction.” Tr. Vol. 6 pp. 50–51. However, the language was not contained in any of the instructions given. See Appellant's App. Vol. II pp. 160–79.

[45] This case was entirely based on circumstantial evidence as there was no direct evidence that established that Thompson was the person who actually shot McCambry. See Hampton, 961 N.E.2d at 489–90 (explaining that “footprints or fingerprints that place an accused at the scene of a crime may be direct evidence of the accused's presence at some point in time but only circumstantial proof that the accused committed the charged offense”). Further, the proposed instruction was not covered by any other instruction as the proposed language was not contained in any of the instructions given. As to whether it was a correct statement of law, the instruction offered by Thompson was not identical to the language of the instruction approved by the Hampton Court but was instead almost identical to the challenged language from the case. The Supreme Court found the challenged instruction language in Hampton “potentially confusing” and although it did not explicitly find it to be an incorrect statement of the law, it nonetheless found that other language would alleviate the confusion possibly caused by the challenged language. See 961 N.E.2d at 487–91. Thus, to the extent that Thompson's proposed instruction was a correct statement of law, it was error for the trial court to not give the instruction. However, any such error was harmless.

[46] We will not reverse Thompson's conviction if the trial court's error in instructing the jury was harmless. Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App. 2014), trans. denied. An error is to be disregarded as harmless unless it affects the substantial rights of a party. Oatts v. State, 899 N.E.2d 714, 727 (Ind. Ct. App. 2009); Ind. Appellate Rule 66(A). And an error is harmless where the probable impact of the error, in light of the totality of the record, would not have produced a different result at trial. App. R. 66(A).

[47] The State presented ample evidence proving that Thompson murdered McCambry. The evidence established that Thompson witnessed McCambry steal his car and then followed him for several minutes, at one point, driving right beside the Jeep. At least twelve shots from two separate guns were fired at the Jeep, killing McCambry and causing the Jeep to crash into the garage. The evidence further established that, immediately after the crash, Thompson and the driver of the Equinox stopped and walked around the area of the crash holding guns and looking for McCambry. After the murder, Thompson changed his clothes, washed his hands with bleach, and called the police to report the Jeep as stolen without mentioning the crash. The evidence was so conclusive of Thompson's guilt beyond a reasonable doubt such that the evidence excluded every reasonable theory of innocence. Therefore, the trial court's error in refusing to give Thompson's proposed instruction to the jury was harmless.

B. Accomplice Liability Instructions

[48] Thompson contends that the trial court abused its discretion when it gave accomplice liability instructions to the jury over his objection. For the trial court to abuse its discretion, an instruction that is given to the jury must be erroneous, and the instructions viewed as a whole must misstate the law or otherwise mislead the jury. Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct. App. 2014), trans. denied. When a defendant seeks reversal based on instructional error, he must demonstrate a reasonable probability that his substantial rights have been adversely affected. Harrison, 32 N.E.3d at 251.

[49] At the conclusion of evidence, the State tendered a proposed instruction regarding accomplice liability. Thompson objected, arguing that, throughout the trial, the case had not been presented as an accomplice liability case and that the evidence did not support giving the instructions. After argument, the trial court gave the following instructions regarding accomplice liability:

Instruction No. 6: Where two or more persons engage in the commission of an unlawful act, each person may be criminally responsible for the actions of each other person which were a probable and natural consequence of their common plan even though not intended as part of the original plan.

Instruction No. 7: The mere presence of a person where a crime is being committed, even coupled with knowledge by the person that a crime is being committed, or the mere acquiescence by a person in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding, inducing, or causing a crime.

You must not convict the Accused of aiding, inducing, or causing an offense unless you find beyond a reasonable doubt that the Accused knowingly or intentionally participated in some conduct of an affirmative nature.

Appellant's App. Vol II pp. 165–66.

[50] Thompson initially argues that the evidence did not support giving the instructions on accomplice liability because he contends that, throughout the trial, the State did not pursue a case based on the theory of accomplice liability. He also maintains that the State's evidence never identified the driver of the Equinox, the alleged accomplice, which Thompson claims was an abandonment of the State's accomplice liability theory of the case. The Indiana Supreme Court has held that “where the circumstances of the case raise a reasonable inference that the defendant acted as an accomplice, it is appropriate to instruct the jury on accomplice liability even where the defendant was charged as a principal.” Brooks v. State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008). Indeed, the State can change its theory of the case during the trial. See Whitener v. State, 696 N.E.2d 40, 42, 44 (Ind. 1998) (finding no error where the State argued during opening statements that it would prove defendant was the individual who shot into the car, but during closing statements, argued that, the jury could still convict under a theory of accomplice liability even if it could not find that defendant was the shooter because he had aided or induced in the commission of the crime).

[51] Here, the evidence supported giving an accomplice liability instruction as the evidence revealed that Thompson acted with another man. It established that Thompson was picked up by another man at the Citgo and that the two men left in the Equinox, which was shown following the Jeep. After numerous gunshots were fired by two different guns, the Jeep crashed into the garage, and Thompson and another man were observed getting out of the Equinox brandishing firearms and looking for McCambry. After failing to locate McCambry, both men got back into the Equinox with the other man driving away from the scene. From this evidence, a jury could reasonably infer that Thompson acted as an accomplice.

[52] Thompson next argues, for the first time on appeal, that the trial court erred in giving the instructions on accomplice liability because they were an incomplete statement of the law. Generally, a party waives an issue not presented to the trial court. See Hitch v. State, 51 N.E.3d 216, 219 (Ind. 2016). To avoid procedural default, Thompson argues that, because the instructions given omitted an essential element, the trial court committed fundamental error. The fundamental error exception is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Id. (citing Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). Thompson asserts that the trial court committed fundamental error because the instructions given “allowed the jury to convict [Thompson] of being an accomplice without any evidence that he knowingly or intentionally induced, aided, or caused another person to commit the charged offense.” Appellant's Br. p. 54.

[53] Viewed as a whole, the instructions informed the jury that it could only convict Thompson as an accomplice if the jury found beyond a reasonable doubt that he knowingly or intentionally participated in affirmative conduct and that mere presence at the scene of the crime was insufficient. Additionally, an instruction was given defining intentionally and knowingly. It stated that to prove intentional conduct, the State was “required to prove beyond a reasonable doubt that it must have been [the defendant's ] conscious objective not only to engage in the conduct but to also cause the result.” Appellant's App. Vol. II p. 163. As to knowing conduct, it stated that the State was “required to prove beyond a reasonable doubt that [the defendant] must have been aware of a high probability that his conduct would cause the result.” Id. Thus, the instructions as a whole informed the jury that, in order to find Thompson guilty as an accomplice, it had to find that he knowingly or intentionally participated in affirmative conduct with either the conscious objective that a murder would occur or being aware of a high probability that a murder would occur. We, therefore, conclude that the trial court did not commit fundamental error in giving the accomplice liability instruction based on an incomplete statement of the law.

Conclusion

[54] The trial court did not abuse its discretion in the admission of the challenged evidence, and sufficient evidence was presented to support Thompson's conviction for murder. The trial court did not abuse its discretion in its instruction of the jury, and to the extent that it erred in failing to give a reasonable theory of innocence instruction, such error was harmless.

[55] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1).

2.   We note that the electronic page numbers do not match the actual page numbers in the transcript volumes. We, therefore, refer to the electronic page numbers for ease of reference.

Foley, Judge.

Tavitas, C.J., and Weissmann, J., concur.