Court of Appeals of Indiana | Memorandum Decision 18A-CR-655 | September 12, 2019 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Linda L. Harris

Kentland, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Scottie M. Kincade,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 12, 2019

Court of Appeals Case No.

18A-CR-655

Appeal from the Warren Circuit 

Court

The Honorable Hunter J. Reece, 

Judge

Trial Court Cause No.

86C01-1609-MR-32

Mathias, Judge.

[1] Following a jury trial in Warren Circuit Court, Scottie M. Kincade (“Kincade”) 

was convicted of murder and Level 4 felony arson. Kincade appeals and 
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presents two issues, which we restate as: (1) whether the trial court committed 

reversible error by failing to ensure that bench conferences were recorded, and 

(2) whether the trial court abused its discretion by admitting evidence of 

Kincade’s violent relationship with the victim. 

[2] We affirm. 

Facts and Procedural History

[3] Kincade had been in an “on again/off again” romantic relationship with the 

victim in this case, Heather Smith (“Smith”), for approximately twenty years. 

Tr. Vol. 4, p. 123. The couple had three children together: S.M.K., E.J.K., and 

M.N.K, who were respectively twelve, ten, and five years old at the time of 

their mother’s death. Smith and Kincade’s relationship was violent and 

combative. Smith went to her mother’s house “beat up” several times. Tr. Vol. 

4, p. 98. In 2011, Kincade threatened to burn down Smith’s grandmother’s 

house when Smith was temporarily residing there. He also once told a friend 

that he “could get away with murder in this county.” Tr. Vol. 3, p. 135. Smith 

and Kincade’s oldest child, S.M.K., stated that his parents’ relationship was 

“horrible,” and that they constantly fought and struck each other. Disturbingly, 

Kincade told S.M.K. that the child would “never be able to see her again so 

[S.M.K.] needed to tell [Smith] goodbye,” because Kincade was going to “put 

[Smith] in a box and throw her in the river.” Tr. Vol. 5, p. 231. He also told a 

friend shortly before the murder that he was going to “kill that bitch someday,” 

referring to Smith. Tr. Vol. 3, p. 188. 
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[4] Smith obtained three different protective orders against Kincade over the years, 

and Kincade had been previously convicted of invasion of privacy for violating 

one of these protective orders. The most recent protective order was still in 

effect at the time of Smith’s death in September 2016. The police responded to

several domestic violence reports at the couple’s home, including one in March 

2016, at which time Smith appeared with a swollen lip and redness to her neck 

and chest. Kincade was arrested and charged with domestic battery as a result. 

In April 2016, Smith went to church with two black eyes and a busted lip. And 

the police responded to four additional reports of domestic violence at Smith’s 

home within thirty days in the late summer of 2016. 

[5] In August 2016, Smith was with a friend when Kincade called her over fifty 

times in less than one hour. Around that time, Smith also reported to her 

therapist that she was anxious because she was ending her relationship with 

Kincade and because she was scheduled to appear in court as a witness in the 

domestic battery case against Kincade. 

[6] Also in the late summer of 2016, Smith contacted Bryant Ledbetter 

(“Ledbetter”), a man both she and Kincade had grown up with. Smith spoke 

with Ledbetter about visiting him in Kansas in December of that year. Shortly 

thereafter, Kincade and one of his children contacted Ledbetter and threatened 

him with harm if he continued to pursue a relationship with Smith. Ledbetter 

then told Smith that he did not want to have a relationship with her. Still, Smith 

filed a notice of her intent to relocate to Kansas with her and Kincade’s 
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children.1 After ending her relationship with Kincade,2 Smith started dating 

other men. One of these men used the alias “Zach Stevens,” and Smith planned 

to see him on September 27, 2016. 

[7] Shortly after 8:00 a.m. in the morning of September 27, 2016, the SIM card in 

Kincade’s phone was removed from the phone he typically used and placed in 

another phone. At approximately 12:45 p.m., the SIM card was put back into 

Kincade’s phone. That morning, Kincade called Smith thirty-five times and 

sent her thirty text messages. Kincade made no calls to Smith after noon. 

[8] At 12:19 p.m. that day, the Warren County Sheriff’s Office received a call that 

there was a fire at Smith’s home on Jackson Street in Williamsport, Indiana. A 

volunteer fireman for the Williamsport Fire Department heard the dispatch 

while at home near the location of the fire. He looked outside his window and 

saw smoke coming from Smith’s house. He immediately drove to Smith’s 

house and met Kincade’s sister, Sandy, who informed him that Smith was 

inside the home. The volunteer determined that he was unable to safely enter 

the burning home without protective gear, so he left the scene to go to the fire 

station. 

[9] Another neighbor, Richard Howe (“Howe”), saw black smoke coming from 

Smith’s house as he returned home. Howe telephoned Kincade to let him know 

1 See Ind. Code § 31-17-2.2-1. 

2 S.M.K. testified that Smith had kicked Kincade out of the home in the weeks prior to her death. 
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that the house was on fire, and Kincade responded by saying that he was on his 

way to the house. When Kincade did not arrive, Howe telephoned him again, 

but Kincade never came to the scene of the fire. Sandy called Kincade to ask 

where he and Smith were. Kincade responded sarcastically, “[a]sk Zach,” 

referring to the man Smith had planned to meet that day. Tr. Vol. 3, p. 240.

[10] Firefighters arrived on the scene and put out the fire. Arson investigator 

Timothy Murray (“Murray”) from the Indiana State Fire Marshall’s Office 

investigated the fire. Near a bedroom of the house, Murray found Smith’s body

lying supine on the floor. Smith’s body was burned in most areas, except for 

parts of her shoulder blades and buttocks, which had been lying against the 

floor. The bedframe in the bedroom suffered from severe heat damage, and the 

burn pattern on the bedroom floor suggested that a flammable liquid had been 

used. Murray concluded that a fire accelerant had been poured on Smith’s 

body, as the area of the wall next to her left thigh was unburned even though 

Smith’s thigh had sustained severe burn injuries. Based on the portions of 

Smith’s body that were not burned, which indicated that she had not moved 

during the fire, Murray concluded that Smith’s body did not move when the 

accelerant was poured. 

[11] Shortly after noon on the day of the fire, Kincade telephoned his brother, Steve 

Kincade (“Steve”), and told him that the house was on fire and that “[t]he bitch 

is in it.” Tr. Vol. 4, p. 28. Kincade asked his brother to go to the school and 

speak to Kincade’s children. Steve attempted to speak with the children at the 

school but was unable to do so. He then went to his family’s home and found 
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shotgun shells strewn about the floor. One of Kincade’s friends saw Kincade

driving Smith’s car shortly after noon on the day of the fire. Later that 

afternoon, Amanda Fields (“Fields”), who knew Smith, saw Kincade driving 

Smith’s car in an erratic manner and at speeds upwards of eighty miles per 

hour. She telephoned the police to report Kincade’s location.

[12] Indiana State Trooper Joshua Edwards (“Trooper Edwards”), who had been 

searching for Kincade in order to speak with him about Smith’s death, 

responded to the report and located Kincade driving Smith’s car. When 

Trooper Edwards activated his lights and siren, Kincade lost control of the car 

and sideswiped a truck. He then drove along the side of the road in a cornfield, 

turned into the cornfield for over one hundred yards, and came to a stop. 

Trooper Edwards approached the car, but Kincade had fled. Inside the car the 

police found a new lighter, a partially full can of gasoline, and shotgun shells. 

None of these items had been in Smith’s car when she dropped her children off 

at school earlier in the day. The police searched the cornfield for Kincade but 

were unable to find him. 

[13] At approximately 10:00 p.m. that night, local resident John Anderson 

(“Anderson”) was on property belonging to his grandparents when he heard 

Kincade call his name. Anderson spoke to Kincade, and Kincade asked him to 

call someone to come pick him up. Anderson obliged and telephoned Kincade’s 

sister. The next morning, Timothy Purcell (“Purcell”) found Kincade sitting in 
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a chair at Purcell’s home.3 Purcell called the police and told them that Kincade 

was at his home. When the police arrived, Kincade attempted to leave out the 

back door. The police ordered Kincade to show his hands, but he ignored the 

order and went back inside. When the police entered through the back door, 

Kincade was holding a knife and had cut his wrists. The police then took 

Kincade into custody. 

[14] A subsequent autopsy of Smith’s body conducted by Dr. E. Allan Griggs (“Dr. 

Griggs”) revealed that the cause of death was breathing super-heated air and the 

resulting lack of oxygen. Dr. Griggs had difficulty determining if Smith had 

suffered from any injuries before being burned, as the fire had damaged her 

body so severely. Another doctor, Dr. Thomas Sozio (“Dr. Sozio”), reviewed 

the autopsy and noted the lack of damage to Smith’s airway, which he thought

inconsistent with breathing super-heated air. Based on the amount of soot in 

Smith’s airway, Dr. Sozio concluded that Smith was breathing shallowly—in 

medical terminology, having agonal respirations. Such breathing usually occurs 

only near the time of death. Therefore, Dr. Sozio believed that Smith had 

suffered injuries prior to the fire, but the amount of damage caused by the fire 

made him unable to determine the scope of any possible injuries. 

3 Purcell owned a local auto parts business where Kincade used to work and had known Kincade since he 

was a child. The two had a close relationship. Aware that the police were looking for Kincade, and 

apparently worried that Kincade might show up at his home, Purcell had spent the night at a friend’s house. 

When he returned home, he found Kincade.
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[15] On September 30, 2016, the State charged Kincade with knowing or intentional 

murder, felony murder while committing arson, and Level 4 felony arson. On 

December 11, 2017, the State filed a notice of intent to use evidence which 

might implicate Evidence Rule 404(b). The State supplemented this notice on 

January 2, 2018. A jury trial commenced on January 9, 2018. The State 

introduced into evidence the three protective orders Smith had obtained against 

Kincade, Kincade’s prior conviction for invasion of privacy for violating one of 

the protective orders, Kincade’s prior threats to harm Smith, and his claim that 

he could get away with murder. On January 13, 2018, the jury found Kincade 

guilty as charged. At a sentencing hearing held on February 22, 2018, the trial 

court vacated the felony murder conviction due to double jeopardy concerns

and sentenced Kincade to the maximum term of sixty-five years of 

incarceration on the murder conviction and a concurrent term of ten years on 

the arson conviction. Kincade now appeals. 

Failure to Record Bench Conferences

[16] Kincade first contends that the trial court committed reversible error by failing 

to ensure that the bench conferences held during the trial were recorded. 

Kincade notes that the court held over forty bench conferences, none of which 

were recorded. Indiana Criminal Rule 5 provides in relevant part: 

Every trial judge exercising criminal jurisdiction of this state shall 

arrange and provide for the electronic recording or stenographic 

reporting with computer-aided transcription capability of any and 

all oral evidence and testimony given in all cases and hearings, 

including both questions and answers, all rulings of the judge in 
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respect to the admission and rejection of evidence and objections 

thereto, and any other oral matters occurring during the hearing 

in any proceeding. . . .

[17] Although recording of “any and all oral evidence and testimony” is required, 

our appellate rules contemplate that failures to record such evidence may still 

occur. Specifically, Indiana Appellate Rule 31 provides in relevant part: 

A. Party’s Statement of Evidence. If no Transcript of all or part 

of the evidence is available, a party or the party’s attorney may 

prepare a verified statement of the evidence from the best 

available sources, which may include the party’s or the attorney’s 

recollection. The party shall then file a motion to certify the 

statement of evidence with the trial court or Administrative 

Agency. The statement of evidence shall be submitted with the 

motion.

B. Response. Any party may file a verified response to the 

proposed statement of evidence within fifteen (15) days after 

service.

C. Certification by Trial Court or Administrative Agency.

Except as provided in Section D below, the trial court or 

Administrative Agency shall, after a hearing, if necessary, certify 

a statement of the evidence, making any necessary modifications 

to statements proposed by the parties. The certified statement of 

the evidence shall become part of the Clerk’s Record.

[18] Here, the parties submitted their respective statements of the evidence to the 

trial court, and the trial court certified a statement of the evidence. Kincade 

claims that there are still several portions of the bench conferences that are not 

accounted for. Specifically, he claims that there are “at least thirteen (13)” 

bench conferences in the transcript relevant to his claims of evidentiary error 
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that are not accounted for in the trial court’s certified statement of the evidence. 

Appellant’s Br. at 13. This, he contends, makes it impossible for us to know the 

basis for the trial court’s evidentiary decisions. 

[19] Our supreme court addressed this very issue in Ben-Yisrayl v. State, 753 N.E.2d 

649 (Ind. 2001). In that case, there were several problems with the transcript, 

including that most of the bench conferences were not recorded. The court held 

that “[t]his omission would certainly make it unreasonable to require BenYisrayl to show that any particular allegation of error was preserved by 

objection and proper argument, and we do not do so.” Id. at 660. Still, “[i]t 

[wa]s not unreasonable . . . to require Ben-Yisrayl to articulate some plausible 

way in which he was harmed by the lack of record of bench conferences.” Id. at 

660–61. In Ben-Yisrayl, the court was able to discern the issues that triggered the 

bench conferences Id. at 661. Thus, the court concluded: 

The lack of bench conference records certainly suggests that a 

reviewing court should take an appropriately liberal approach to 

issues that might otherwise be considered waived at trial for lack 

of either objection or argument. It also justifies giving BenYisrayl the benefit of the doubt in speculating about what may 

have been discussed during any of the unrecorded sidebars. 
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Id.;

4 see also Kien v. State, 782 N.E.2d 398, 406–07 (Ind. Ct. App. 2003) 

(following Ben-Yisrayl and holding that appellant’s arguments would not be 

deemed waived for failure to make a contemporaneous objection given the gaps 

in the transcript), trans. denied.

[20] The same is true here. We need not remand for a new trial. Instead we can infer 

from the transcript that Kincade objected to the admission of the evidence he 

now claims was improper based on Evidence Rule 404(b), and we give Kincade 

the benefit of the doubt and find that he has not waived any appellate argument 

regarding the admission of this evidence. This is sufficient to remedy any gaps 

in the record. Moreover, although having a record of the trial court’s reasons for 

admitting the evidence would be helpful, we may affirm the trial court’s 

evidentiary ruling if it is sustainable on any basis in the record, even if it was 

not the reason stated by the trial court. Robey v. State, 7 N.E.3d 371, 379 (Ind. 

Ct. App. 2014), trans. denied. We therefore proceed to address Kincade’s claims 

of evidentiary error on their merits. 

Evidence Rule 404(b)

[21] Kincade next argues that the trial court abused its discretion when it admitted 

evidence of his and Smith’s troubled relationship. Questions regarding the 

admissibility of evidence are entrusted to the sound discretion of the trial court. 

4 The court further held that the failure to record the bench conferences “d[id] not, however, relieve BenYisrayl entirely of his obligation to make issue-specific claims of error.” Id. Here, Kincade adequately makes 

issue-specific claims of error, which we address infra. 
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Robey, 7 N.E.3d at 379. On appeal, we will reverse a trial court’s decision on 

the admissibility of evidence only upon a showing of an abuse of that 

discretion. Id. An abuse of discretion occurs if the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before the court, or if 

the court has misinterpreted the law. Id. 

[22] Kincade insists that the trial court admitted evidence of his prior actions in 

contravention of Evidence Rule 404(b). This rule provides: 

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person's character in order to show 

that on a particular occasion the person acted in accordance 

with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may 

be admissible for another purpose, such as proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident. On request by a 

defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any 

such evidence that the prosecutor intends to offer at trial; 

and

(B) do so before trial—or during trial if the court, for good 

cause, excuses lack of pretrial notice.

Ind. Evidence Rule 404(b). 

[23] As we summarized in Laird v. State: 
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Evidence Rule 404(b) is designed to prevent the jury from 

making the “forbidden inference” that prior wrongful conduct 

suggests present guilt. . . . [T]he purpose behind Evidence Rule 

404(b) is to prevent[] the State from punishing people for their 

character, and evidence of extrinsic offenses poses the danger 

that the jury will convict the defendant because . . . he has a 

tendency to commit other crimes. In assessing the admissibility 

of evidence under Evidence Rule 404(b), the trial court must first 

determine that the evidence of other crimes, wrongs, or acts is 

relevant to a matter at issue other than the defendant’s propensity 

to commit the charged act, and then balance the probative value 

of the evidence against its prejudicial effect pursuant to Evidence 

Rule 403. The effect of Rule 404(b) is that evidence is excluded 

only when it is introduced to prove the forbidden inference of 

demonstrating the defendant’s propensity to commit the charged 

crime.

103 N.E.3d 1171, 1176–77 (Ind. Ct. App. 2018) (citations and internal 

quotation marks omitted), trans. denied. 

[24] Here, we conclude that the evidence of Kincade’s prior behavior toward Smith 

was admissible as evidence of his motive to kill Smith. It is well settled that a

defendant’s prior violence toward the victim is admissible to establish the 

defendant’s motive. Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004)

(citing Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997)). In fact, “[n]umerous 

cases have held that where a relationship between parties is characterized by 

frequent conflict, evidence of the defendant’s prior assaults and confrontations 

with the victim may be admitted to show the relationship between the parties 

and motive for committing the crime.” Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. 

App. 2010) (quoting Iqbal, 805 N.E.2d at 408), trans. denied; see also 1 Edward J. 
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Imwinkelried, Uncharged Misconduct Evidence § 4:19 (2008) (“When the 

uncharged acts of domestic violence are directed against the same spouse or 

partner alleged in the pending charge, there is little or no need to invoke 

character reasoning in order to justify the admission of the evidence. . . . [T]he 

trial judge can readily admit the evidence on a noncharacter motive theory; the 

uncharged acts evidence hostility toward the victim, and in turn that hostility 

may be the motive for the charged act of domestic violence.”) (quoted in Embry, 

923 N.E.2d at 9).5

[25] Accordingly, the trial court did not abuse its discretion by admitting evidence of 

Kincade’s violent relationship with Smith as evidence of Kincade’s motive to 

kill Smith. See Iqbal, 805 N.E.2d at 408 (holding that trial court did not abuse its 

discretion by admitting, in murder trial where defendant was alleged to have 

killed his wife, evidence of a prior incident during which defendant placed a 

gun at his wife’s head and threatened to kill her leading to the issuance of a 

protective order and criminal charges against defendant). 

5 Kincade notes that our supreme court in Hicks noted that evidence of a “bad relationship between the 

defendant and another person does not bear on the defendant’s motive to harm the victim and will rarely be 

either relevant or admissible to show motive for the charged conduct.” 690 N.E.2d at 224 n.12; see also Iqbal, 

805 N.E.2d at 407 (citing Hicks). This, however, refers to a bad relationship between the defendant and a 

person other than the victim, as the Hicks court specifically held that “‘[a] defendant’s prior bad acts are . . . 

usually admissible to show the relationship between the defendant and the victim.’” Id. at 222 (quoting Ross 

v. State, 676 N.E.2d 339, 346 (Ind. 1996)). 
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Conclusion

[26] The trial court’s failure to record the bench conferences is concerning, but the 

remedy for such a failure is to give the defendant the benefit of the doubt 

regarding the preservation of evidentiary issues on appeal, not a retrial. 

Considering Kincade’s claim on its merits, we conclude that the trial court did 

not err by admitting evidence of the violent, combative nature of Kincade and 

Smith’s relationship.

[27] Affirmed. 

May, J., and Brown, J., concur.