Garth v. State

182 N.E.3d 905

Ashley N. GARTH, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-1415

Court of Appeals of Indiana.

FILED January 31, 2022

Attorney for Appellant: Lori S. James, Law Office of Lori S. James, P.C., Rensselaer, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Ashley N. Garth appeals her convictions for murder and conspiracy to commit murder. She asserts that the trial court committed reversible error by making certain evidentiary rulings and by denying her motion for mistrial. She also asserts that her convictions are unsupported by sufficient evidence and violate Indiana's prohibition against double jeopardy. We conclude that the trial court did not abuse its discretion in its evidentiary and mistrial rulings and that her convictions are supported by sufficient evidence and do not violate double jeopardy. Therefore, we affirm.

Facts and Procedural History¹

[2] In March 2019, Garth was in an intimate relationship with Garett Kirts. Kirts had also been in an "intimate relationship with [Nicole Bowen] for a few months." Tr. Vol. 3 at 24. Over the course of two months, Garth, Kirts, and Kirts's friend Jason Palladino had "a couple" of conversations about "getting rid" of Bowen.

Id. at 30, 44. On March 29, 2019, Kirts, Bowen, and Talitha Beckley were at Palladino's house. Id. at 26. Palladino told Kirts that they had "to make a decision" that Bowen "has to go" and that "it's got to be done." Id. At that point, Kirts drove Bowen and Beckley in Bowen's car to a trailer in Kentland where Garth was. Id. at 26, 197.

[3] Once at the trailer, Bowen and Kirts sat on the couch and used methamphetamine. Id. at 27. Garth came out of a bedroom and "exchanged words" with Bowen, which escalated "into a fist fight." Id. Kirts stood up and "wrapped [Bowen] into a chokehold from behind until [she] collapsed." Id. Kirts yelled at Garth to hand him an extension cord, which she did. Id. Kirts tied the cord around Bowen's neck and handed it back to Garth. "[Garth] pulled on it so tight that the extension cord broke." Id. Garth helped Kirts lift up the couch, and Kirts tied the extension cord under it. Id. Kirts also then tied a scarf around Bowen's neck. Id. Kirts got a roll of tape and trash bags and taped Bowen up in a trash bag. Id. at 28. Kirts took the body to Bowen's car, drove the car to pick up a friend, and continued to drive around with his friend looking for a spot to dispose of Bowen's body. They saw an empty semitrailer and placed the body inside. Id. They then returned to the trailer and got high with Garth. Id.

[4] On March 30, 2019, the owner of the property on which the semitrailer was located visited his property. He saw a body inside the semitrailer and called 911. Police discovered Bowen's body wrapped in a blanket and secured with different types of tape. When the police removed the blanket the following day, they found a plastic bag over Bowen's head, her wrists taped together behind her back, and a scarf tied around her neck. Under the scarf, an electrical cord was tied around her neck. After the electrical cord was removed, ligature marks on Bowen's neck were visible. An autopsy indicated that the cause of death was neck compression and ligature strangulation. DNA testing indicated strong support for the proposition that Garth was a contributor to the DNA profile found on a cardboard tube discovered with Bowen's body, very strong support for the proposition that Garth was a contributor to the DNA on Bowen's fingernail scrapings, and limited support for the proposition that Garth was a contributor to the DNA profile found on the scarf tied around Bowen's neck. Id. at 107-09. DNA testing was also performed on the electrical cord but was inconclusive. Id. at 106.

[5] In December 2019, the State charged Garth with murder, level 1 felony conspiracy to commit murder, and level 5 felony assisting a criminal. The State later amended the charging information to add level 5 felony involuntary manslaughter. A jury trial was held from May 17 to 21, 2021. Kirts testified for the State. During cross-examination, Garth sought to admit a letter Kirts wrote to her, which the trial court denied. As part of the State's case-in-chief, the State offered State's Exhibit 44, a videotaped police interview with Garth. The trial court admitted the exhibit over Garth's objection. After publication of Exhibit 44, the jury informed the trial court that they had difficulty hearing it. The trial court replayed Exhibit 44 over Garth's objection.

[6] During Garth's case-in-chief, she sought to call Beckley as a witness. Beckley had been subpoenaed, but she was not present. Garth read Beckley's deposition into the record. In rebuttal, the State sought to admit State's Exhibit 56, a videotaped police interview with Beckley. The trial court admitted Exhibit 56 over Garth's objection. After the exhibit was played for the jury, the prosecutor informed the trial court that Beckley had arrived while Exhibit 56 was being played. Garth moved to strike Beckley's deposition and Exhibit 56. The trial court denied the motion to strike but permitted Garth to call Beckley as a live witness. After Beckley testified, Garth moved for mistrial, which the trial court denied.

[7] The jury found Garth guilty of murder, conspiracy to commit murder, and assisting a criminal, and not guilty of involuntary manslaughter. The trial court sentenced Garth to concurrent terms of forty-eight years for her murder conviction, thirty years for her conspiracy conviction, and three years for her assisting a criminal conviction. This appeal ensued. Additional facts will be provided below.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in ruling on the admissibility of certain evidence.

[8] "Our standard of review for the admissibility of evidence is well established." Whiteside v. State , 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006).

The admission or exclusion of evidence lies within the sound discretion of the trial court and is afforded great deference on appeal. We will reverse the trial court's ruling on the admissibility of evidence only for an abuse of discretion. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party. 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. (citations omitted).

Section 1.1 – The trial court did not abuse its discretion by excluding Kirts's letter to Garth.

[9] During Garth's cross-examination of Kirts, she sought to admit a letter that he wrote to her while they were incarcerated following their arrests. Tr. Vol. 3 at 36. The State objected, arguing that the letter was extrinsic evidence not admissible to impeach Kirts. Id. at 37. Garth asserted that the letter was admissible as a present sense impression under Indiana Evidence Rule 803(3), as a recorded recollection under Evidence Rule 803(5), or for impeachment of an adverse party under Evidence Rule 609. Id. During her offer to prove, Garth also asserted that the letter was admissible as a prior inconsistent statement regarding motive because it contradicted Kirts's earlier testimony as to motive. Id. at 39. The State continued to object to the admissibility of the letter. The trial court excluded the letter but permitted Garth to question Kirts about statements in the letter regarding motive. Id. at 40. Garth asked Kirts whether he had written a statement in the letter expressing that he killed Bowen to protect Garth and because his relationship with Bowen made Garth jealous. Id. at 41. Kirts admitted that he wrote that statement. Id. Garth also asked Kirts if he killed Bowen, but he testified repeatedly that both he and Garth killed Bowen. Id.

[10] On appeal, Garth contends that the trial court abused its discretion by excluding Kirts's letter because it was admissible under an exception to the hearsay rule. Hearsay is a statement not made by the declarant while testifying at trial that is offered to provide the truth of the matter asserted. Ind. Evidence Rule 801(c).

Hearsay is not admissible unless rules of evidence or other law provides otherwise. Ind. Evidence Rule 802.

[11] Specifically, Garth asserts that the letter was admissible as a recorded recollection pursuant to Evidence Rule 803(5). That rule allows admission of a record that "is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately[,] was made or adopted by the witness when the matter was fresh in the witness's memory[,] and accurately reflects the witness's knowledge." Garth maintains that Kirts did not recall the letter well enough to testify fully and accurately about it because, although he testified that it was a letter he wrote, he also testified that he could not recall the letter.

[12] Garth's focus on Kirts's memory of the letter is misplaced. Garth's expressed intent in seeking to admit the letter was to contradict Kirts's previous testimony regarding his motive for killing Bowen. Thus, it is not the letter itself, but the subject matter of the letter that is the relevant focus for purposes of Evidence Rule 803(5). Garth does not direct us to any testimony that Kirts did not recall his motive. In fact, Kirts testified in detail about the murder, and therefore his letter is not admissible as a recorded recollection. See Marcum v. State , 772 N.E.2d 998, 1002 (Ind. Ct. App. 2002) (explaining...