Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 1 of 8

IN THE

Court of Appeals of Indiana

Lindsay E. Willoughby,

Appellant-Defendant

v.

State of Indiana,

Appellee-Plaintiff

October 2, 2024

Court of Appeals Case No.

24A-CR-736

Appeal from the Henry Circuit Court

The Honorable Bob A. Witham, Judge

Trial Court Cause No.

33C01-2309-F4-26

Opinion by Judge Mathias

Chief Judge Altice and Judge Bailey concur.
Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 2 of 8

Mathias, Judge.

[1] Lindsay E. Willoughby appeals his convictions for four counts of Level 4 felony 

unlawful possession of a firearm by a serious violent felon (the “SVF counts”) 

and one count of Level 5 felony assisting a criminal. He also appeals his 

adjudication as a habitual offender. Willoughby raises a single issue for our 

review, namely, whether the trial court committed fundamental error when it 

did not sua sponte bifurcate his trial between the SVF counts and the Level 5 

felony assisting a criminal count.

[2] Our Supreme Court has made clear that, if the trial court can imagine any

viable reason for defense counsel to not object or otherwise to proceed in a 

certain manner at trial, the trial court has no obligation under the fundamental 

error doctrine to interject itself into the proceedings on the defendant’s behalf. 

Indeed, to do so would jeopardize fundamental due process, not protect it, by 

asking our trial courts to cease being impartial. The actual reasonableness of 

defense counsel’s decision-making and any resulting prejudice from 

unreasonable actions or omissions of counsel are questions best left to the postconviction process, where a record of counsel’s thought-process may be 

properly developed and assessed; attempting to assess any such thought-process 

on a silent direct-appeal record under the fundamental error doctrine is outside 

the scope of that doctrine.

[3] Our case law has likewise made clear that defense counsel may in at least some 

circumstances have a viable reason for not requesting severance of SVF counts 
Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 3 of 8

from non-SVF counts. Accordingly, we conclude that Willoughby is unable to 

show fundamental error, and we affirm his convictions and his adjudication as 

a habitual offender.

Facts and Procedural History

[4] In November 2018, Willoughby pleaded guilty to Level 5 felony trafficking with 

an inmate, which is defined by statute as a serious violent felony. See Ind. Code 

§ 35-47-4-5(b)(23)(B) (2023). In late 2022 to early 2023, New Castle Drug Task 

Force officers came to suspect Willoughby of being in possession of firearms, 

and officers conducted two controlled buys of firearms from Willoughby. Those 

controlled buys resulted in officers taking possession of both a handgun and a 

rifle from Willoughby.

[5] On May 2, 2023, a group of juveniles shot Ernest Thornsberry in New Castle 

with a handgun. The juveniles then fled the scene and went to Willoughby’s 

residence, where they told Willoughby and others what had happened. 

Willoughby told the juveniles to “wash[] their hands with bleach and to change 

their clothes,” and he helped them hide the handgun “underneath the shed” 

outside. Tr. Vol. 2, p. 69. 

[6] Investigating officers eventually made their way to Willoughby’s residence. 

There, they located and seized the handgun that had been used to shoot 

Thornsberry. And, while executing a later search warrant, officers found and 

seized yet another handgun from Willoughby’s bedroom.
Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 4 of 8

[7] The State charged Willoughby with the four SVF counts and with Level 5 

felony assisting a criminal. The State also alleged Willoughby to be a habitual 

offender. The four SVF counts were each premised on Willoughby’s prior 

conviction for Level 5 felony trafficking with an inmate.

[8] At no point during his ensuing trial proceedings did Willoughby ask the court 

to sever the charges against him or otherwise to bifurcate the proceedings 

between the SVF counts and the Level 5 felony assisting a criminal count. The 

preliminary and final jury instructions informed the jury that the State was 

required to demonstrate that Willoughby had previously been convicted of 

Level 5 felony trafficking with an inmate in support of each SVF count. 

Willoughby did not object to either the preliminary or final jury instructions. 

And, during his trial, the State offered into evidence, again, without objection, 

Willoughby’s judgment of conviction and sentencing order (which was a single 

document) on the Level 5 felony trafficking with an inmate offense.

[9] Following his trial, the jury found Willoughby guilty of the four SVF counts as 

well as the Level 5 felony assisting a criminal count. Willoughby then admitted 

to being a habitual offender. After a sentencing hearing, the court entered its 

judgment of conviction against Willoughby and ordered him to serve an 

aggregate term of thirty-nine years in the Department of Correction.

[10] This appeal ensued.
Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 5 of 8

Discussion and Decision

[11] On appeal, Willoughby contends that the trial court committed fundamental 

error when it did not sua sponte bifurcate his trial between the SVF counts and 

the Level 5 felony assisting a criminal count. According to Willoughby, 

evidence of a defendant’s criminal history is generally so prejudicial as to 

require its exclusion. Yet, for offenses such as the SVF counts, the existence of a 

certain criminal history is an essential element of the offense. Thus, he 

continues, where, as here, the State alleges SVF counts along with other nonSVF offenses, bifurcation is mandatory in order to ensure that the defendant’s 

fundamental due process rights are protected.

[12] As Willoughby did not object to these issues in the trial court, he must 

demonstrate fundamental error on appeal. Fundamental error is an essential 

safety-valve doctrine that permits appellate courts to order relief due to an 

undeniable and substantial error that unfortunately slipped past the trial court; 

it is not a doctrine that exists to simply give appellants a chance to argue that 

some unpreserved error should nonetheless be reviewable on direct appeal. As 

our Supreme Court has made clear, “[a]n error is fundamental, and thus 

reviewable on appeal, if it made a fair trial impossible or constituted a clearly 

blatant violation of basic and elementary principles of due process presenting an 

undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 

652 (Ind. 2004). Thus, fundamental error

is extremely narrow and encompasses only errors so blatant that 

the trial judge should have acted independently to correct the 
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situation. At the same time, if the judge could recognize a viable 

reason why an effective attorney might not object, the error is not blatant 

enough to constitute fundamental error.

Id. (emphasis added; quotation marks and citations omitted). 

[13] Our case law has repeatedly rejected attempts by appellants to elevate run-ofthe-mill trial decisions or omissions to “a challenge to the integrity of the 

judicial process” under the fundamental error doctrine. Brown v. State, 929 

N.E.2d 204, 207 (Ind. 2010). For example, we have recognized that “[a]n 

attorney’s decision not to object to certain evidence or lines of questioning is 

often a tactical decision, and our trial courts can readily imagine any number of 

viable reasons why attorneys might not object.” Nix v. State, 158 N.E.3d 795, 

801 (Ind. Ct. App. 2020), trans. denied; see also Merritt v. State, 99 N.E.3d 706, 

710 (Ind. Ct. App. 2018) (“The risk calculus inherent in a request for an 

admonishment is an assessment that is nearly always best made by the parties 

and their attorneys and not sua sponte by our trial courts.”), trans. denied. 

Decisions where multiple viable paths forward exist may or may not create

Sixth Amendment issues with respect to effective counsel, but they do not result 

in Fifth Amendment process issues. See Durden, 99 N.E.3d at 652.

[14] That legal foundation resolves Willoughby’s appeal. Our courts have 

recognized viable reasons why a defendant might not insist on bifurcating a 

proceeding between SVF counts and non-SVF counts. For example, in Talley v. 

State, 51 N.E.3d 300 (Ind. Ct. App. 2016), trans. denied, the defendant was 

convicted of an SVF count along with two counts of resisting law enforcement 
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following a non-bifurcated trial. We held that the post-conviction court 

correctly found that defense counsel acted reasonably in not requesting 

bifurcation in part because “the facts related to the various offenses were 

interconnected.” Id. at 304. We further recognized various reasonable strategies 

defense counsel had in mind in choosing not to request bifurcation, namely, 

counsel’s conclusion that the prior conviction could be properly admitted either 

as evidence of motive or to argue that the defendant “would never carry a gun 

because he was a convicted felon.” Id.

[15] Whether Talley is demonstrative of the thought-process of Willoughby’s counsel 

is not a question for us on direct appeal. Indeed, the posture of this appeal 

necessarily leaves us with no record of any thought-process Willoughby’s

counsel may have had in not seeking bifurcation or otherwise objecting to the 

manner of the proceedings in the trial court. What matters for fundamental 

error review is simply that the question of whether to request bifurcation can be

a viable or tactical decision of counsel. Durden, 99 N.E.3d at 652; Nix, 158 

N.E.3d at 801. In such circumstances, it is affirmatively not the obligation of 

our trial courts to interject themselves on a party’s behalf. Durden, 99 N.E.3d at 

652.

[16] For all of these reasons, the trial court did not commit fundamental error when 

it did not sua sponte bifurcate Willoughby’s trial. We affirm his convictions and 

his adjudication as a habitual offender.

[17] Affirmed.
Court of Appeals of Indiana | Opinion 24A-CR-736 | October 2, 2024 Page 8 of 8

Altice, C.J., and Bailey, J., concur.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana