Court of Appeals of Indiana |Opinion 20A-CR-690 | January 14, 2021 Page 1 of 31

ATTORNEYS FOR APPELLANT

Marietto V. Massillamany

Erica L.S. Guernsey

Massillamany Jeter & Carson LLP

Fishers, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Sierra A. Murray

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Daveon L. Hendricks,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 14, 2021

Court of Appeals Case No.

20A-CR-690

Appeal from the Delaware County 

Circuit Court

The Honorable Marianne L. 

Vorhees, Judge

Trial Court Cause No.

18C01-1708-MR-6

Sharpnack, Senior Judge.

Statement of the Case

[1] Daveon L. Hendricks agreed to join his cousin and several friends in robbing

two acquaintances who dealt in marijuana. One of the victims was fatally shot
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during the attempted robbery. Hendricks appeals his convictions of murder, a 

felony,1and conspiracy to commit robbery resulting in serious bodily injury, a 

Level 2 felony.2 We affirm in part, reverse in part, and remand.

Issues

[2] Hendricks raises four issues, which we expand and restate as:

I. Whether the trial court erred in allowing a witness to 

testify about a co-conspirator’s confession.

II. Whether the trial court erred in admitting into evidence 

recordings of Hendricks’ jail telephone conversations.

III. Whether the trial court erred in admitting into evidence 

witness identifications of Hendricks.

IV. Whether there is sufficient evidence to sustain Hendricks’

convictions.

V. Whether Hendricks’ convictions violate Indiana’s 

constitutional prohibition of double jeopardy.

1

Ind. Code § 35-42-1-1 (2014).

2

Ind. Code §§ 35-42-5-1 (2014) (robbery), 35-41-5-2 (2014) (conspiracy).
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Facts and Procedural History

[3] C.O. and S.J. were longtime friends,3and in the summer of 2015 they lived

together in a house in Muncie, Indiana. A mutual friend, Andre Wells, slept in 

the house’s garage. C.O. and S.J. both sold marijuana at the house.

[4] S.J. knew Hendricks, William Balfour, Darius Covington, and Artie Thomas

from school and from encountering them in Muncie on several different 

occasions.

4

 Hendricks and Balfour were cousins.

[5] In June 2015, Hendricks purchased marijuana from C.O. at C.O. and S.J.’s

house. During the last week of June 2015, Balfour went to the house on a 

separate occasion, as part of a group that sold a rifle to C.O. Balfour had jointly 

owned the rifle with Jonathan Kerr and another person, and C.O. paid $300 to 

Balfour for his share of the rifle. A few days later, Balfour called Kerr to 

express dissatisfaction with the amount of money C.O. had paid him.

[6] On June 30, 2015, Balfour texted C.O. to ask if he had any marijuana, to which 

C.O. responded that he did not. On July 1, 2015, Balfour texted C.O. to say 

that he needed “some licks.” Tr. Ex. Vol., State’s Ex. 51. A “lick” is slang for 

3 Both were under the age of eighteen, which is why we refer to them using initials. See Ind. Code § 35-40-5-

12 (2019) (in court documents open to the public, child victims of violent crimes shall be identified by means 

other than their names).

4 Hendricks was fifteen years old, and Balfour, Covington, and Thomas were under eighteen years of age.
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a robbery. Balfour further stated he was interested in “[a]nything that got [sic] 

money involved.” Id.

[7] On July 2, 2015, at around 6 p.m., Thomas, Covington, and Jamel Barnes (who 

was also under the age of eighteen) were playing basketball at a Muncie 

apartment complex when Hendricks and Balfour arrived. Hendricks is 

approximately six feet tall, and on that day he styled his hair in dreadlocks. 

The five young men stayed at the basketball court until nightfall, when they left 

in Barnes’ car.

[8] Hendricks and Balfour suggested going to C.O. and S.J.’s house to buy 

marijuana. At some point during the drive, Covington borrowed Thomas’ 

phone and kept it. Also, the group discussed robbing C.O. instead of buying 

drugs.

[9] Upon arriving at the house at around 10:30 p.m., Covington, Thomas, 

Hendricks, and Balfour agreed that Covington and Thomas would go into the 

house while Hendricks, Balfour, and Barnes stayed in the car. Covington and 

Thomas rarely smoked marijuana, and, unlike Hendricks and Balfour, neither 

of them had been to C.O. and S.J.’s house before. Covington later testified that 

as he approached the house, he believed that he and some or all of his 

companions had agreed to rob the occupants.
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[10] C.O. allowed Covington and Thomas to enter. S.J. was present, but Wells was 

absent. Covington went with C.O. to C.O.’s bedroom to look at a rifle and a 

handgun while S.J. and Thomas discussed a marijuana deal in the living room.

[11] Next, Covington went to the restroom, leaving C.O., S.J., and Thomas in the 

living room. Telephone company records for Thomas’ phone, which was in 

Covington’s possession during this time, demonstrate that a person using 

Barnes’ phone called Thomas’ phone at 10:40 p.m., and the call lasted until 

approximately 10:51 p.m. After the call ended, two men entered the house, 

wearing hooded jackets with the hoods up, and wielding handguns. One of the

intruders was about six feet tall, and his hair was in dreadlocks. S.J. later 

stated:

I’d say [Hendricks] entered the house. I didn’t know who it was. 

Whenever someone came into the house, I thought it was – like I 

didn’t know who it was. I just said someone with dreads, about 

5’11, black. But I’d say [Hendricks] entered the house.

Tr. Vol. 2, p. 98. Thomas also later identified Hendricks as one of the intruders

and further stated Balfour was his companion.

[12] One of the intruders pointed his gun at S.J. and ordered everyone to get on the 

floor. S.J. jumped into his bedroom and heard a gunshot. Similarly, Thomas 

jumped into C.O.’s bedroom and heard a gunshot. Covington, still in the 

restroom, also heard a gunshot.
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[13] Meanwhile, Hendricks and Balfour had left Barnes’ car. When they returned

after ten minutes, Barnes asked about Covington and Thomas. Hendricks and 

Balfour indicated Covington and Thomas were at the same place they had 

come from. Barnes drove off with Hendricks and Balfour, leaving Covington 

and Thomas behind.

[14] Next, Covington left the restroom and did not see anyone in the living room, so 

he ran out of the house. Thomas exited C.O.’s bedroom and also left the 

house.

[15] S.J. texted Wells at 10:53 p.m. to say that he was being robbed. In response, 

Wells called S.J. who, after staying on the floor of his bedroom for several 

minutes, got up and walked through the house as he spoke with Wells. No one 

else was there, but S.J. found C.O. in a utility room at the back of the house. 

C.O. was on the ground, nonresponsive and bleeding from a gunshot wound. 

S.J. hung up on Wells and called 911.

[16] 911 records show S.J.’s call was received at 10:57 p.m. Officers from the

Muncie Police Department arrived within minutes. They determined no one 

other than S.J. was in the house. C.O. did not appear to be breathing and was 

later pronounced dead.

[17] Meanwhile, upon leaving the house, Covington saw that Barnes’ car was gone, 

so he ran away, traveling several miles on foot. He still had Thomas’ phone, 

and he eventually called his sister’s boyfriend to pick him up and take him 
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home. During this time period, Covington also called Hendricks, and Barnes 

called Covington.

[18] When Thomas exited the house, he also saw that Barnes’ car was gone. He 

went to a nearby bar to use the phone, but he was denied service because he 

was underage. Next, Thomas went to a nearby house and used the resident’s 

phone to call Barnes. Barnes came back and picked him up. Hendricks and 

Balfour were in the car with Barnes.

[19] Barnes drove to Hendricks and Balfour’s grandfather’s house. On the way 

there, Barnes heard Balfour ask Hendricks “why [C.O.] ran.” Tr. Vol. 4, p. 85. 

He also heard Balfour ask Hendricks if “they got anything from the house.” Id.

at 86. Balfour and Hendricks got out of the car at their grandfather’s house. 

Barnes and Thomas then went to Covington’s home, where Thomas retrieved 

his phone. Thomas discovered that his phone’s call logs and text logs had been 

deleted.

[20] A crime scene technician examined C.O. and S.J.’s house. He found a .9 mm 

shell casing on the living room floor, near the front door. The technician also 

discovered a bullet on the floor in the kitchen in a doorway to the utility room

where C.O.’s body was found. A subsequent autopsy revealed C.O. had died 

from a gunshot wound to the back. The round went through his spine, aorta, 

and heart before exiting his chest.
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[21] On July 4, Barnes encountered Hendricks, Balfour, and Covington at a 

fireworks event. Balfour stated that he had heard Thomas had talked to the 

police, and he threatened to kill anyone else who talked to the police.

[22] In 2017, the State charged Hendricks with murder, a felony, alleging that 

Hendricks and/or Balfour robbed or attempted to rob C.O. and that C.O. was 

killed in the commission of the robbery or attempted robbery. The State also 

charged Hendricks with conspiracy to commit robbery resulting in serious 

bodily injury, a Level 3 felony, alleging that C.O. suffered serious bodily injury 

as a result of the conspiracy.5

[23] In early 2019, Hendricks asked Covington to contact Balfour. Balfour was in 

jail, so Covington used a jail-managed app to speak with him. Covington was 

aware the calls were recorded, so when he set up an account on the app, he 

used a false name to hinder the authorities from finding the recordings of the 

calls in the app’s database. Covington and Balfour talked about Thomas, 

Barnes, and other people using code names to hinder any attempts to decipher 

their conversations.

5 The State also charged Hendricks with attempted robbery resulting in serious bodily injury, a Level 2 

felony, but dismissed that charge prior to trial. In addition, the State later charged Hendricks with conspiracy 

to commit obstruction of justice, a Level 6 felony, but that charge was severed from the others prior to trial, 

and it is not part of this appeal.
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[24] In May and June of 2019, Hendricks had three recorded calls with Balfour. 

They discussed other people using code names such as “J.B.,” “D.C.,” and 

“Lacy.” Tr. Ex. Vol., State’s Ex. 86, 92. Balfour told Hendricks he had 

contacted various people. Balfour urged him to keep speaking with an 

unidentified person to keep him “on the team.” Id. at State’s Ex. 92. On 

another call, Hendricks said he had spoken with someone about an unspecified 

task Hendricks and Balfour had apparently discussed in the past, but Hendricks 

refused to provide details on the phone, saying: “he doing [sic] it. You feel me? 

It still ain’t got to be explained.” Id. at State’s Ex. 90.

[25] The trial court presided over a jury trial on October 28 through 31, 2019. The 

jury determined Hendricks was guilty of murder and conspiracy to commit 

robbery resulting in serious bodily injury. The trial court imposed concurrent 

sentences of fifty-five years and seventeen and one-half years, respectively, and 

this appeal followed.

Discussion and Decision

I. Admission of Witness Testimony About a Co-Conspirator’s 

Confession

[26] During trial, the State presented testimony from Darius Covington’s sister, 

Brionna Covington (“Brionna”). She told the jury, over Hendricks’ objection, 

that Balfour had told her he was involved in C.O.’s shooting. Hendricks argues

that allowing Brionna to testify as to what Balfour told her violated his right to 
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confront witnesses under the federal and state constitutions. He further claims 

her statement was inadmissible because it was irrelevant, unduly prejudicial, 

and hearsay.

[27] The State claims Hendricks has waived most of his challenges to the admission 

of Brionna’s testimony. A contemporaneous objection at the time evidence is 

introduced at trial is required to preserve an issue for appeal. Brown v. State, 929 

N.E.2d 204, 207 (Ind. 2010). Further, a defendant may not raise one ground 

for objection at trial and argue a different ground on appeal. Willsey v. State, 

698 N.E.2d 784, 793 (Ind. 1998).

[28] At trial, Hendricks’ only objection to Brionna Covington’s statement was on 

grounds of hearsay. His other challenges to the admission of the statement are 

procedurally defaulted, but we will address Hendricks’ hearsay claim.

[29] We review a trial court’s evidentiary rulings for an abuse of discretion. 

Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019). Under that standard, we 

reverse only when the admission is clearly against the logic and effect of the 

facts and circumstances. Id. at 568.

[30] Hearsay is a “statement that . . . is not made by the declarant while testifying at 

the trial court hearing . . . and is offered in evidence to prove the truth of the 

matter asserted.” Ind. Evid. R. 801(c). In general, hearsay is inadmissible. 

Ind. Evid. R. 802. Brionna’s testimony about Balfour’s statement, which was 

admitted for the truth of the matter asserted, qualifies as hearsay.
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[31] Our analysis is not yet complete because the Indiana Rules of Evidence provide

exceptions to the rule that hearsay is inadmissible. One exception is for a 

statement against interest, which is defined in relevant part as: “[a] statement 

that a reasonable person in the declarant’s position would have made only if the 

person believed it to be true because, when made, . . . [it] expose[d] the 

declarant to civil or criminal liability.”

6

 Ind. Evid. R. 804(b)(3). A statement 

against interest must be incriminating on its face to be admissible under this

exception. Webb v. State, 149 N.E.3d 1234, 1240 (Ind. Ct. App. 2020). 

Balfour’s admission to Brionna that he was involved in C.O.’s fatal shooting 

meets the definition of this exception. See Beasley v. State, 46 N.E.3d 1232, 1237 

(Ind. 2016) (trial court did not err in admitting witness’s testimony that another 

person had told him he shot someone; the person’s statement exposed him to 

criminal liability).

[32] Hendricks notes that the exception that permits the admission of statements 

against interest also contains a limitation: “A statement or confession offered 

against the accused in a criminal case, made by a codefendant or other person 

implicating both the declarant and the accused, is not within this exception.” 

Ind. Evid. Rule 804(b)(3). The key question is whether Balfour’s statement to 

6 This exception applies only when the declarant, in this case Balfour, is unavailable to testify at trial. Ind. 

Evid. Rule 804. Neither of the parties appears to dispute that Balfour was unavailable.
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Brionna about his misconduct also implicates Hendricks, even though Balfour’s 

statement did not refer to Hendricks.

[33] In Payne v. State, 854 N.E.2d 7, 11 (Ind. Ct. App. 2006), Payne allegedly told 

several men how they could circumvent the security system of a specific house, 

enabling them to enter it without detection. When the men arrived at the house

(without Payne), they encountered three workmen, and they murdered them 

before entering the house via the method Payne described. Payne was 

convicted of three counts of murder.

[34] On appeal, Payne claimed the trial court should not have admitted into 

evidence a video recording of one of the shooters, in which he demonstrated for 

police officers how he and three companions committed the murders and then 

entered the house. Payne argued that the shooter’s statements and acts in the 

recording implicated her in wrongdoing, even though the shooter did not 

mention her. The Court, considering all the evidence presented at trial, 

concluded: (1) the jury had already heard, through other evidence, how the 

men entered the house; (2) the only purpose for admitting the recording was to 

implicate Payne by showing the burglary occurred in accordance with her 

instructions. As a result, the recording was inadmissible under Rule 804(b)(3).

[35] In this case, the jury heard other evidence establishing that Balfour was 

involved in the conspiracy to rob C.O. and S.J., as well as C.O.’s death. 

Further, other evidence demonstrated that Hendricks and Balfour were together 
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throughout the night of July 2. As a result, the only purpose in admitting 

Brionna’s testimony was to implicate Hendricks along with Balfour. We 

conclude, as the Court did in Payne, that her statement was inadmissible under 

Indiana Evidence Rule 804(b)(3).

[36] Although admitting Brionna’s testimony was erroneous, Indiana Appellate 

Rule 66(A) provides:

[n]o error or defect in any ruling or order or in anything done or 

omitted by the trial court or by any of the parties is ground for 

granting relief or reversal on appeal where its probable impact, in 

light of all of the evidence in this case, is sufficiently minor so as 

not to affect the substantial rights of the parties.

[37] After reviewing the evidence presented, which we discuss in more detail below, 

we conclude the erroneous admission of Balfour’s hearsay statement did not 

affect Hendricks’ substantial rights. Balfour’s statement to Brionna 

incriminated Hendricks only by implication, not directly. Further, at trial 

Barnes described other statements by Balfour that put him (and by implication, 

Hendricks) in an incriminating light, including asking why C.O. ran and 

whether Hendricks took anything from the house. Finally, other witnesses 

identified Hendricks as one of the armed intruders who entered the house. The 

admission of Brionna’s statement was harmless error that does not require 

reversal.
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II. Admission of Recorded Telephone Calls

[38] Hendricks argues the trial court erred in admitting three recordings of jail 

telephone calls between himself and Balfour from May and June of 2019. He 

argues the recordings were irrelevant, were more unfairly prejudicial than

probative, and were hearsay. Hendricks further claims that admission of the 

recordings violated his right to confront witnesses under the federal and state 

constitutions.

[39] As noted, we review a trial court’s evidentiary rulings for an abuse of discretion. 

Fairbanks, 119 N.E.3d at 567. We start with Hendricks’ challenge to the 

relevance of the recorded calls. “Evidence is relevant if . . . it has any tendency 

to make a fact more or less probable than it would be without the evidence; and 

. . . the fact is of consequence in determining the action.” Ind. Evid. Rule 401. 

In general, relevant evidence is admissible, and irrelevant evidence is 

inadmissible. Ind. Evid. Rule 402. “A court’s discretion is wide on issues of 

relevance and unfair prejudice.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).

[40] The State argues the recordings of Balfour and Hendricks’ conversations were 

relevant as evidence of Hendricks’ guilt in the attempted robbery and death of 

C.O. Specifically, the State claims the recordings show that Hendricks and 

Balfour were attempting to conceal their wrongdoing by reaching out to 

witnesses about their potential trial testimony. We agree. When the calls took 

place in May and June 2019, it was clear Hendricks’ case was going to trial. In 
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one recording, Hendricks and Balfour discussed different people using code 

names, including “J.B.,” “D.C.,” and “Lacy.” Tr. Ex. Vol., State’s Ex. 86, 92. 

In a different call, Hendricks told Balfour that he had spoken to an unidentified 

person and convinced him to do something that he would not discuss on the 

call, saying “It still ain’t got to be explained.” Id. at State’s Ex. 90. In another

call, Hendricks and Balfour also discussed the importance of keeping people 

“on the team.” Id. at State’s Ex. 92.

[41] Hendricks and Balfour’s discussions are relevant because, during trial, the State 

confronted several witnesses who had given statements to the police but later 

presented a different version of events. For example, Artie Thomas gave a 

statement to the police on July 8, 2015, identifying Hendricks and Balfour as 

the gunmen, and he repeated his identification during a July 14, 2017 

deposition. But at trial, Thomas claimed he had not seen the gunmen’s faces, 

and the prosecutor had to remind him of his prior statements.

[42] Similarly, on July 9, 2015, Jamel Barnes gave a statement to the police in which 

he said that he heard Balfour ask Hendricks, “Why did he run?” and further

asked if Hendricks took anything from the house. Tr. Vol. 4, p. 86. Barnes also

claimed in the statement that he encountered Hendricks, Balfour, and 

Covington on July 4, 2015, and Balfour threatened to kill anyone who spoke to 

the police. But at trial, months after Hendricks and Balfour had their recorded 

conversations about persons including a “J.B.,” Barnes claimed he could not 

remember the events of July 2, and the prosecutor read his statement into 
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evidence. The recordings of the video calls are relevant to prove Hendricks’ 

guilt because they establish he and Balfour were attempting to conceal their 

crimes.

[43] Hendricks next argues that even if the recorded video calls are relevant, they are 

confusing and unduly prejudicial. “The court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue 

delay, or needlessly presenting cumulative evidence.” Ind. Evid. R. 403. “All 

evidence that is relevant to a criminal prosecution is inherently prejudicial, and 

thus the Evidence Rule 403 inquiry boils down to a balance of the probative 

value of the proffered evidence against the likely unfair prejudicial value of that 

evidence.” Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. 

denied. The balancing of the probative value against the danger of unfair 

prejudice must be determined with reference to the issue to be proved by the 

evidence. Ward v. State, 138 N.E.3d 268, 273 (Ind. Ct. App. 2019).

[44] At trial, and on appeal, the State claims the recorded calls had probative value 

because they showed Hendricks and Balfour were attempting to convince 

witnesses to change their stories about the attempted robbery and murder of 

C.O., which the State further claims is proof of Hendricks’ guilt. Hendricks 

responds that the recordings were hard to understand and inflammatory 

because Hendricks and Balfour used a great deal of foul language. The 

recordings contain much profanity, but Hendricks and Balfour do clearly 
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discuss other people using code words, and the importance of talking to those 

persons and getting them “on the team.” They do not discuss other crimes or 

misconduct. Under these circumstances, any prejudice to Hendricks from the 

recordings did not outweigh the probative value relevant to the question of 

whether Hendricks was attempting to conceal his wrongdoing.

[45] Next, Hendricks claims the recorded calls between him and Balfour are 

inadmissible because they contain hearsay. We disagree. The definition of 

hearsay is set forth above, but we further note that an out-of-court statement 

admitted for the truth of the matter asserted is not hearsay if “[t]he statement is 

offered against an opposing party and . . . was made by the party in an 

individual or representative capacity.” Ind. Evid. Rule 801(d). Thus, 

Hendricks’ statements in the recordings are not hearsay. See Harrison v. State, 32 

N.E.3d 240, 255 (Ind. Ct. App. 2015) (admission of recording of jail phone call 

to which Harrison was a party was not erroneous; Harrison’s own statements 

were not hearsay), trans. denied.

[46] As for Balfour’s statements, the trial court instructed the jury as follows before 

the recorded calls were played:

The officers testified that one [of the people on the recording] is 

the Defendant, and the other is William Balfour. The statements 

that are by Mr. Balfour are actually hearsay. They’re not being 

offered for the truth of the matter asserted. They’re being offered 

to show context because obviously you can’t really have one side 

of a telephone conversation and make any sense out of it. So it’s 
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just being offered to you to help you make sense out of the 

conversations. But what Mr. Balfour says is not to be used by 

[sic] any evidence in support of the State’s case in chief. It’s just 

being used for context.

Tr. Vol. 5, p. 23. Balfour’s statements do not fall under Rule 801’s definition of 

hearsay because they were not admitted for the truth of the statements, but 

rather to allow the jury to make sense of Hendricks’ side of the conversations. 

See Eastwood v. State, 984 N.E.2d 637, 642 (Ind. Ct. App. 2012) (no prejudice in 

admittance of a witness’s testimony about a person’s statement; the trial court 

instructed the jury not to consider the testimony for the truth of the matter 

asserted but rather as an explanation for what the witness did next), trans. 

denied. We presume that a jury follows the trial judge’s instructions.7 Thrash v. 

State, 88 N.E.3d 198, 205 (Ind. Ct. App. 2017).

[47] Next, we turn to Hendricks’ constitutional claims. Constitutional claims raise 

questions of law, which we review de novo. Tiplick v. State, 43 N.E.3d 1259, 

1262 (Ind. 2015). On appeal, Hendricks challenges the admission of the 

recordings under the federal and state constitutions, but during trial he objected 

only on grounds of the “confrontation clause.” Tr. Vol. 5, pp. 21-22. We 

presume he was raising a claim under the Confrontation Clause of the United 

7 Hendricks claims that the trial court’s instruction was “insufficient,” Appellant’s Br. p. 13, but does not 

provide any evidence nor cite any authority in support of his claim.
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States Constitution, and he has procedurally defaulted a similar claim under the 

Indiana Constitution by failing to separately argue it at trial. See Redfield v. 

State, 78 N.E.3d 1104, 1108 (Ind. Ct. App. 2017) (Indiana constitutional claim 

waived; Redfield failed to present an argument to the trial court under the 

Indiana Constitution that was separate from his federal constitutional claim), 

trans. denied.

[48] The Confrontation Clause, as set forth in the Sixth Amendment, provides: “in 

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” The Supreme Court of the United States has 

determined, “[t]estimonial statements of witnesses absent from trial have been 

admitted only where the declarant is unavailable, and only where the defendant 

had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 

59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177 (2004).

[49] In Williams v. State, 930 N.E.2d 602, 605 (Ind. Ct. App. 2010), trans. denied, the 

State presented recordings of drug transactions in which Williams had 

participated. Williams objected to the recordings, arguing he could not crossexamine the confidential informant who also spoke on the recordings. The trial 

court admitted the recordings into evidence, instructing the jury that they 

should consider the informant’s statements only as context for the entire 

conversation, not for the truth of matters discussed by the informant.
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[50] On appeal, Williams claimed the admission of the informant’s statements 

violated the Confrontation Clause. The Court rejected Williams’ claim, stating: 

“the Confrontation Clause does not apply to nonhearsay statements, even if 

those statements are testimonial.” Id. at 609. The informant’s statements were 

not admitted for the truth of the matter asserted, but merely to give context to 

Williams’ statements, and were not hearsay.

[51] In Hendricks’ case, as in Williams’ case, the trial court instructed the jury that 

Balfour’s statements in the recordings were not to be considered for the truth of 

the matter asserted. As a result, the statements were not hearsay, and 

admission of the recordings did not violate the Confrontation Clause. In 

summary, the trial court did not err in admitting the recordings into evidence.

III. Admission of Witness Identifications of Hendricks

[52] Hendricks argues that the trial court should have excluded S.J. and Thomas’ 

testimony that identified him as one of the intruders. He further claims that S.J. 

and Thomas’ identifications of him were the result of the police’s 

“impermissibly suggestive” pre-trial processes for identifying the intruders and 

that their in-court identifications were too uncertain to be credited. Appellant’s 

Br. p. 15. 

[53] Hendricks did not object at trial to S.J. or Thomas’ testimony identifying him as 

the gunman. As a result, he has procedurally defaulted this claim for appellate 

review. See Neukam v. State, 934 N.E.2d 198, 201 (Ind. Ct. App. 2010)
Court of Appeals of Indiana |Opinion 20A-CR-690 | January 14, 2021 Page 21 of 31

(Neukam waived appellate challenge to identification evidence by failing to 

contemporaneously object at trial).

IV. Sufficiency of the Evidence

[54] Hendricks claims the State failed to present sufficient evidence to sustain his 

convictions. In reviewing a claim of insufficient evidence, we will affirm the 

conviction unless, considering only the evidence and reasonable inferences 

favorable to the judgment and neither reweighing the evidence nor judging the 

credibility of the witnesses, we conclude that no reasonable factfinder could find 

the elements of the crime proven beyond a reasonable doubt. Jenkins v. State, 

726 N.E.2d 268, 270 (Ind. 2000).

[55] To obtain a conviction of conspiracy to commit robbery as charged, the State 

was required to prove beyond a reasonable doubt that (1) Hendricks (2) with the 

intent to commit robbery (3) agreed with Balfour and/or Covington to commit 

robbery (4) and Hendricks or one of the persons with whom he agreed (5) took 

an overt act in furtherance of the agreement, (6) resulting in serious bodily 

injury to C.O. See Ind. Code §§ 35-42-5-1, 35-41-5-2. The State further alleged, 

and the jury was instructed, that the overt act at issue was one or more of the 

following: (1) obtaining a firearm; (2) arranging the purchase of marijuana

from C.O. or S.J.; (3) calling Darius Covington; or (4) traveling to C.O. and 

S.J.’s home.
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[56] Hendricks claims there is insufficient evidence of his intent to commit robbery. 

We disagree. Intent is a mental function and, absent an admission by the 

defendant, the trier of fact “must resort to the reasonable inferences from both 

the direct and circumstantial evidence to determine whether the defendant” had 

the requisite intent to commit the offense. Stokes v. State, 922 N.E.2d 758, 764 

(Ind. Ct. App. 2010), trans. denied.

[57] Hendricks’ cousin, Balfour, was unhappy with C.O. about a gun sale that had 

occurred a week prior to the shooting, believing that C.O. had underpaid him. 

Further, Balfour had expressed an interest in obtaining money through robbery. 

On the evening of July 2, 2015, as Barnes drove Hendricks, Balfour, Covington, 

and Thomas to C.O. and S.J.’s house, purportedly to buy marijuana, the group 

discussed the idea of robbing C.O.

[58] When they arrived at C.O. and S.J.’s house, Hendricks, Balfour, Covington,

and Thomas agreed that Covington and Thomas, who had never been to the 

house before and did not regularly smoke marijuana, would go into the house. 

As Covington approached the house, he believed an agreement had been struck 

to rob the house’s occupants. While Covington was in the bathroom, someone 

using Barnes’ phone called Thomas’ phone, which was in Covington’s 

possession, and a ten-minute conversation took place. Hendricks and Balfour

entered the house minutes after the call ended.
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[59] Hendricks never objected to the idea of robbing C.O., traveled with the group to 

the house, agreed that Covington and Thomas would initially go into the 

house, and entered the house with Balfour after a phone call between Thomas’ 

phone and Barnes’ phone. This evidence is sufficient to establish beyond a 

reasonable doubt that Hendricks intended to participate in robbing C.O. and 

S.J. See Wieland v. State, 736 N.E.2d 1198, 1203 (Ind. 2000) (affirming 

conviction of conspiracy to commit robbery; Wieland accompanied a friend, 

who he knew to be armed and had expressed an intent to rob a convenience 

store, into the convenience store and did not leave the friend at any point prior 

to the robbery). Hendricks’ arguments to the contrary amount to a request to 

reweigh the evidence, which our standard of review forbids.

[60] As for the offense of felony murder, the State alleged that Hendricks was guilty 

as either a principal or an accomplice to the offense. The General Assembly 

has defined accomplice liability as follows: “[a] person who knowingly or 

intentionally aids, induces, or causes another person to commit an offense 

commits that offense . . . .” Ind. Code § 35-41-2-4 (1977). Thus, to obtain a 

conviction of felony murder as charged, the State was required to prove beyond 

a reasonable doubt that (1) Hendricks, or someone who Hendricks had aided,

(2) killed C.O. (2) while committing or attempting to commit robbery of C.O. 

and S.J. See Ind. Code 35-42-1-1.

[61] Hendricks argues that his felony murder conviction must be reversed because 

there is insufficient evidence that he committed the underlying felony, a robbery
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or attempted robbery. We disagree. Balfour needed money, was angry at C.O. 

over a gun sale, and had expressed interest in robbing someone. Covington 

agreed with some or all of the people in Barnes’ car to rob C.O. and S.J. under 

the guise of a marijuana transaction.

[62] Shortly after Covington entered the bathroom and someone used Barnes’ 

telephone to call Thomas’ phone (which was in Covington’s possession), two 

intruders brandishing handguns entered C.O. and S.J.’s house and ordered S.J. 

to get on the floor. Next, one of the intruders fatally shot C.O. in the back as he 

attempted to escape. Thomas identified the intruders as Hendricks and Balfour, 

and S.J. thought that one of the gunmen resembled Hendricks.

[63] Afterwards, Barnes heard Balfour ask Hendricks why C.O. ran, and if

Hendricks took anything from the house. Several days later, Barnes 

encountered Hendricks, Balfour, and Covington at a fireworks display, and 

Balfour threatened to kill anyone who talked to the police. This is ample 

evidence that Hendricks, as a principal or an accomplice, knowingly or 

intentionally attempted to rob C.O. and S.J., and C.O. was fatally shot during 

the commission of the attempted robbery. This evidence is sufficient to sustain 

his conviction. See Wieland, 736 N.E.2d at 1203 (affirming conviction of felony 

murder as an accomplice; Wieland joined with a friend to rob a convenience 

store, and the friend fatally shot a person on the way out of the store).
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V. Double Jeopardy

[64] Hendricks claims his convictions violate article 1, section 14 of the Indiana 

Constitution, which provides, in relevant part: “no person shall be put in 

jeopardy twice for the same offense.” Specifically, he argues his convictions of 

felony murder and conspiracy to commit robbery amount to double punishment 

for one criminal act. A double jeopardy claim is a question of law, which we 

review de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020).

[65] In Wadle, the Indiana Supreme Court overruled prior precedent, Richardson v. 

State, 717 N.E.2d 32 (Ind. 1999), and established a new framework to resolve 

claims of unfair multiple punishments arising from a single proceeding. The 

Wadle Court stated:

when multiple convictions for a single act or transaction 

implicate two or more statutes, we first look to the statutes 

themselves. If either statute clearly permits multiple punishment, 

whether expressly or by unmistakable implication, the court’s 

inquiry comes to an end and there is no violation of substantive 

double jeopardy. But if the statutory language is not clear, then a 

court must apply our included-offense statutes to determine 

whether the charged offenses are the same. If neither offense is 

included in the other (either inherently or as charged), there is no 

violation of double jeopardy. But if one offense is included in the 

other (either inherently or as charged), then the court must 

examine the facts underlying those offenses, as presented in the 

charging instrument and as adduced at trial. If, based on these 

facts, the defendant’s actions were “so compressed in terms of 

time, place, singleness of purpose, and continuity of action as to 

constitute a single transaction,” then the prosecutor may charge 
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the offenses as alternative sanctions only. But if the defendant’s 

actions prove otherwise, a court may convict on each charged 

offense.

Id. at 253 (citation omitted).

[66] Under the first step of the Wadle analysis, we turn to the statutes that govern 

Hendricks’ convictions and consider whether they permit multiple 

punishments. At the time Hendricks committed his offenses, Indiana Code 

section 35-42-1-1, which governs felony murder, provided in relevant part:

A person who . . . kills another human being while committing 

or attempting to commit arson, burglary, child molesting, 

consumer product tampering, criminal deviate conduct (under IC 

35-42-4-2 before its repeal), kidnapping, rape, robbery, human 

trafficking, promotion of human trafficking, sexual trafficking of 

a minor, or carjacking (before its repeal) . . . commits murder, a 

felony.

[67] Indiana Code section 35-42-5-1, which governs robbery, provided in relevant 

part:

A person who knowingly or intentionally takes property from 

another person or from the presence of another person . . . by 

using or threatening the use of force on any person . . . or by 

putting any person in fear . . . commits robbery, a Level 5 felony. 

However, the offense is a Level 3 felony if it is committed while 

armed with a deadly weapon or results in bodily injury to any 

person other than a defendant, and a Level 2 felony if it results in 

serious bodily injury to any person other than a defendant.
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[68] The State charged Hendricks with conspiracy to commit robbery. At the time 

Hendricks committed his offenses, the statute that governs conspiracy provided:

(a) A person conspires to commit a felony when, with intent to 

commit the felony, the person agrees with another person to 

commit the felony. A conspiracy to commit a felony is a felony 

of the same level as the underlying felony.

* * * * *

(b) The state must allege and prove that either the person or the 

person with whom he or she agreed performed an overt act in 

furtherance of the agreement.

Ind. Code § 35-41-5-2. None of these statutes clearly permit multiple 

punishments.

[69] We now turn to the next step: applying the included offense statutes to 

determine whether one offense is included in the other, either inherently or as 

charged. Indiana Code section 35-38-1-6 (1983) provides: “Whenever . . . a 

defendant is charged with an offense and an included offense in separate 

counts; and . . . the defendant is found guilty of both counts; judgment and 

sentence may not be entered against the defendant for the included offense.” 

The General Assembly has defined an included offense as:

an offense that:
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(1) is established by proof of the same material elements or less 

than all the material elements required to establish the 

commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an 

offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less 

serious harm or risk of harm to the same person, property, or 

public interest, or a lesser kind of culpability, is required to 

establish its commission.

Ind. Code § 35-31.5-2-168 (2012).

[70] Based on the charging information, Indiana Code section 35-31.5-2-168 is 

implicated in this case. The information alleges Hendricks committed felony 

murder by robbing or attempting to rob C.O. and S.J., resulting in C.O.’s death. 

The charging information further alleges Hendricks committed conspiracy to 

commit robbery resulting in serious bodily injury by agreeing with others to 

commit robbery, and he or one of his co-conspirators took an overt act in 

furtherance of the agreement, resulting in serious bodily injury to C.O. The 

offense of conspiracy to commit robbery could be an included offense of the 

felony murder, as charged in this case, because they differ only in the respect 

that a less serious harm to C.O. is required to establish conspiracy to commit 

robbery.
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[71] Having determined that one of the offenses may be an included offense of the 

other as charged, we turn to the final step of the Wadle analysis: examining the 

facts underlying the offenses to determine whether Hendricks’ actions were “so 

compressed in terms of time, place, singleness of purpose, and continuity of 

action as to constitute a single transaction.” 151 N.E.3d at 253.

[72] In Hendricks’ case, his acts were compressed in time, place, and continuity of 

action. Hendricks, Balfour, Barnes, Thomas, and Covington arrived at C.O. 

and S.J.’s house at approximately 10:30 p.m. After a brief discussion, it was 

agreed that Thomas and Covington would enter the house for the purported 

drug buy, even though neither of them regularly smoked marijuana, and neither 

of them had been to the house before. After looking at C.O.’s guns, Covington 

went to the restroom and, using Thomas’ phone, had a ten-minute phone call 

with someone using Barnes’ phone. Immediately after the call ended, 

Hendricks and Balfour entered the house, brandishing handguns, and ordered 

S.J. to get on the floor. One of the two intruders fatally shot C.O. as he 

attempted to flee. At 10:53 p.m., S.J. texted his friend Wells to say he had been 

robbed. The crucial events occurred in a span of minutes.

[73] Further, in closing arguments to the jury, the prosecutor summarized the 

evidence leading up to C.O.’s shooting supporting as a seamless series of 

events:

So let us look one last time at that mountain of evidence that has 

been presented. The sale of the AR-15 leading to Balfour having 
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seller’s remorse. Balfour looking for licks. Both the Defendant 

and Balfour knowing where C.O. lives and what he has in his 

house while Darius, Jamel, and Artie have never been there 

before. Balfour casing the location. All five of them at The 

Grove. The Defendant and Balfour wanting to be – are the ones 

wanting to go get weed, with Balfour directing the way to 

[C.O.’s] house. Darius and Artie however being the ones to go 

get the weed. The 11-minute phone call linking what is 

happening inside the house to those people outside. Artie’s 

identification of the Defendant and Balfour coming in with the 

guns. S.J.’s identification lining up with Artie’s. Again, putting 

the Defendant coming through the door first shouting get down 

on the ground. Then the one gunshot in [C.O.’s] back.

Tr. Vol. 5, pp. 93-94.

[74] To be sure, with respect to the charge of conspiracy to commit robbery resulting 

in serious bodily injury, the State had identified several overt acts that could 

have occurred well in advance of Hendricks’ arrival at C.O. and S.J.’s house, 

specifically: (1) obtaining a firearm; (2) arranging the purchase of marijuana 

from C.O. or S.J.; or (3) traveling to C.O. and S.J.’s home. But at trial, the 

State did not present any evidence demonstrating when Hendricks obtained his 

firearm or if Hendricks or any of his companions contacted C.O. or S.J. prior to 

the group’s arrival at the house at 10:30 p.m. Further, the evidence presented at 

trial indicated that the group in Barnes’ car did not decide to rob C.O. until they 

were already en route to the house. Instead, the facts as presented at trial 

focused on Hendricks and his companions’ acts upon arriving at the house, and 

a key element of the conspiracy offense – serious bodily injury to C.O. –
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occurred at the same time as the murder in the felony murder charge. Under 

these facts, we conclude Hendricks’ criminal acts were a single transaction not 

subject to multiple punishments. See Thurman v. State, 158 N.E.3d 372, 380

(Ind. Ct. App. Oct. 7, 2020) (convictions of pointing a firearm, criminal 

recklessness, and attempted murder arose from the same transaction involving 

the same victim based on evidence presented at trial and argued by prosecutor, 

and the included offenses could not stand).

[75] Under these circumstances, the appropriate remedy is to vacate Hendricks’ 

conviction of the included offense, conspiracy to commit robbery. See Wadle, 

151 N.E.3d at 255-56 (ordering vacatur of the lesser offense, operating while 

intoxicated). Vacatur will not alter Hendricks’ overall sentence, because the 

trial court ordered Hendricks to serve his sentences concurrently.

Conclusion

[76] For the reasons stated above, we affirm in part, reverse in part, and remand 

with instructions for the trial court to vacate Hendricks’ conviction of 

conspiracy to commit robbery.

[77] Affirmed in part, reversed in part, and remanded with instructions.

Bailey, J., and Crone, J., concur.