Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 1 of 12

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

David W. Stone, IV 

Anderson, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Ian McLean 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA 

Kraig Von Reese Brown, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

March 29, 2017 

Court of Appeals Case No. 

48A04-1606-CR-1368 

Appeal from the Madison Circuit 

Court 

The Honorable Mark Dudley, Jr., 

Judge 

Trial Court Cause No. 

48C06-1401-FB-147 

Vaidik, Chief Judge. 
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Case Summary 

[1] At Kraig Brown’s trial for dealing in cocaine, a person who was in jail with 

Brown at the time was called to testify on Brown’s behalf. Under the advice of 

counsel and with the trial court’s approval, the witness invoked his Fifth 

Amendment privilege against self-incrimination. The jury convicted Brown. 

Brown now appeals, arguing that the trial court erred when it accepted the 

witness’s invocation of the privilege against self-incrimination and that, in any 

event, the evidence is insufficient to support his conviction. Finding no error 

and that there is sufficient evidence, we affirm. 

Facts and Procedural History 

[2] On April 21, 2011, Jerrett Scott purchased cocaine and was later arrested for 

possession of cocaine by the Madison County Drug Task Force. In lieu of 

pressing charges, the Drug Task Force offered Scott a deal to work as a 

Confidential Informant (CI). The CI provided the Drug Task Force with 

Brown’s name and phone number and referred to Brown by his street name, 

“Manman.” Tr. p. 308. The CI stated that Brown was the dealer who had sold 

to him earlier that day. The Drug Task Force had the CI call Brown to set up 

another buy. 

[3] Before conducting a “controlled buy,” Drug Task Force officers conduct a prebuy interview—they search the CI for any drugs, money, or weapons and 

explain the buying process. After the buy is completed, Drug Task Force 
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officers conduct a post-buy interview—they search the CI for any additional 

drugs, money, or weapons and ask questions about the buy. On April 21, Drug 

Task Force Officer Mark Naselroad conducted the CI’s pre-buy and post-buy 

interviews and provided him with funds to purchase cocaine from Brown. 

During the buy, Drug Task Force officers lost sight of the CI and did not see 

Brown at the buy location. After purchasing the drugs, the CI immediately 

returned to Officer Naselroad’s undercover car and went through the post-buy 

interview. 

[4] The CI performed similar buys for the Drug Task Force on May 5 and May 18, 

going through the pre-buy and post-buy processes for each transaction with 

Officer Naselroad. At the May 5 buy, the CI met with Brown at a Motel 6. 

Officer Naselroad was positioned roughly one block from the motel and could 

not see the drug deal. Drug Task Force Officer Shaun Williams, however, 

provided additional surveillance from an undercover car parked in the motel’s 

parking lot. Officer Williams witnessed the CI walk into room 206 and exit the 

room a short time later. He watched the CI proceed directly from the motel 

room to Officer Naselroad’s car. The CI then gave Officer Naselroad the drugs 

he had just purchased. Officer Williams remained at the motel for a few 

minutes after the CI left and witnessed Brown also exit room 206.1

 

 

1

 Brown maintains that Officer Williams testified that Brown came out of room 212 and not room 206. 

Appellant’s Br. pp. 14-15. Officer Williams testified that he witnessed an unidentified man walk through the 

motel’s parking lot and enter room 212. The man later opened his motel room door and stared at Officer 

Williams, who was still in his car. The unidentified man walked back into room 212 and was not seen again, 

nor was he present in the courtroom. See Tr. pp. 329-30. After Officer Williams testified that he saw Brown 
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[5] At the May 18 buy, the CI met with Brown in a parking lot. The CI entered a 

van and exited a few minutes later. He proceeded directly from the van to 

Officer Naselroad’s undercover car and handed over the drugs he had just 

purchased. Drug Task Force officers conducting surveillance on the buy did 

not see Brown. After the buy, two officers followed the van and witnessed a 

male and female exit the van. The officers were not able to identify either 

individual. 

[6] After completing the third buy on May 18, Officer Naselroad presented the CI 

with a photo array of pictures of six different individuals, including Brown. 

Officer Naselroad asked the CI if the man who sold him drugs on April 21, 

May 5, and May 18 was in the photo array. The CI identified Brown as the 

dealer on all three dates, circled Brown’s picture, and placed his initials next to 

Brown’s photo. State’s Ex. 7. Brown was later arrested and charged with three 

felony counts of dealing in cocaine. Brown was housed in the Madison County 

Jail while awaiting his trial. 

[7] Before the start of Brown’s jury trial, the CI was transferred from the 

Department of Correction to the Madison County Jail. At the first day of trial, 

the CI testified that he knew Brown, referred to Brown as Manman, and 

identified Brown in the courtroom. The CI further stated that Brown was the 

 

and the CI leave room 206, the State asked, “Did you see anybody else come out of room 212?” Id. at 332. 

Officer Williams did not correct the prosecutor and answered, “[A]fter the CI came out I sat there like I said 

for approximately five (5) minutes or so before I observed Mr. Brown come out of the room.” Id. at 332-33. 

Read in context, it is clear that Officer Williams was testifying that Brown exited room 206 and not 212. 
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individual who had sold him cocaine on April 21, May 5, and May 18. He also 

confirmed that he had identified Brown in the photo array provided to him by 

Officer Naselroad. 

[8] At the start of the second day of the trial, Brown presented his attorney with a 

handwritten note from Howard Jones, another inmate at the Madison County 

Jail. The note stated: 

When [the CI] came into E-Block he told me he had been 

incarcerated for 5 years (since 2010/2011). He also said he 

didn’t know you but you looked familiar, thinking he’d shot dice 

with you before. He spoke to me about how the detectives had 

brought him to MCJ to possibly testify against someone. He 

stated that when he was called by the detectives he would tell 

them to “Eat sh*t.” Once he came back from questioning he 

talked about possibly modifying or having his sentence amended 

for an early release. I’m not sure if he really is from Anderson or 

Michigan like he told me. After he was called down to sign some 

papers on 3-21-16, he got on the phone and told the recipient he 

would be getting out within 2 to 6 months. I believe he cut a deal 

for early release to testify against you. 

Def. Ex. A (tendered during offer of proof but not admitted). Defense counsel 

alerted the trial court to the existence of the note and requested that Jones be 

called as a witness. Outside the presence of the jury, Jones was deposed and 

answered questions from both defense counsel and the State. Jones stated that 

he wrote the note for Brown, who he referred to as Manman. He wrote the 

note because, after his purported conversation with the CI, he talked to an 

inmate named “Sticky” (Jones did not know Sticky’s real name), who told 

Jones that the CI was there to testify against Brown. Jones then got ahold of 
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Brown and told him about his alleged conversation with the CI and wrote the 

note for Brown to give to his attorney. See Tr. pp. 419-20, 424-26, 435-37. 

[9] The jury reconvened in the courtroom, and defense counsel recalled the CI to 

testify. The CI denied ever speaking with anyone about Brown’s case or saying 

that he did not recognize Brown. The CI stated that he did not know anyone 

named Howard Jones and had never met with Jones while in the Madison 

County Jail. He also explained, contrary to Jones’s note, that he had actually 

recognized Brown in the Madison County Jail and, as a result, requested a 

transfer to a different block to ensure that he and Brown would not cross paths. 

[10] Defense counsel then called Jones to testify, but before he could take the stand 

an attorney present on his behalf objected: 

I am representing defense’s next witness Howard Jones 

downstairs in two separate criminal causes. One of those causes 

involves charges substantially similar to this case. Basically a, a 

drug possession with, with potential intent to distribute. . . . I am 

instructing him to take the fifth in regard to this case in fear that 

somehow a door could be opened in which would result [sic] in 

him being examined with regard to the criminal charges pending 

against him and his involvement with those charges and our 

burden is merely to show that there is the risk of that some piece 

[sic] of testimony being elicited from him that would supply a 

link in the chain to his future prosecution. . . . [S]o we believe 

that that is a realistic if not fanciful [sic] based on the charges 

pending against him that they could probe into drug dealing 

activity, kidnapping activity revolved around drug dealing type 

allegations and extortion of another drug dealer. 

Id. at 495-96. 
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[11] Based on Jones’s deposition and his attorney’s objection, the trial court found 

that Jones had met his burden to invoke his Fifth Amendment privilege against 

self-incrimination. Jones responded to defense counsel’s first question by 

saying, “Based upon advice of counsel I respectfully decline to answer your 

questions and assert my Fifth Amendment.” Id. at 504. He was then dismissed 

as a witness. 

[12] Later, outside the presence of the jury, defense counsel made an offer of proof 

that had Jones testified, his testimony would have been consistent with his 

deposition testimony and the note that he wrote to Brown. The trial court 

accepted the offer, stating, “Court will also show the offer of proof that if 

[Jones] had not invoked the Fifth Amendment privilege his testimony would be 

consistent with [the note] and what he testified to earlier.” Id. at 513. 

[13] After the conclusion of the trial, the jury returned a verdict of not guilty on 

counts I and III (the April 21 and May 18 buys), but it found Brown guilty on 

count II (the May 5 buy). Brown now appeals. 

Discussion and Decision 

[14] Brown argues that the trial court erred when it granted Jones’s invocation of his 

Fifth Amendment privilege against self-incrimination and that the evidence is 

insufficient to support his conviction for dealing in cocaine on May 5. 
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I. Fifth Amendment 

[15] The Fifth Amendment to the United States Constitution extends to the States 

through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689 

(1993). The Fifth Amendment provides that no person “shall be compelled in 

any criminal case to be a witness against himself.” U.S. Const. amend. V. This 

protection not only applies to a criminal defendant in his own trial but also 

allows any witness “not to answer official questions put to him in any other 

proceeding, civil or criminal, formal or informal, where the answer might 

incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 

70, 77 (1973). The Fifth Amendment, however, does not create an unqualified 

privilege for a witness to remain silent. Salinas v. Texas, 133 S. Ct. 2174, 2182-

83 (2013). “A witness’ constitutional right to refuse to answer questions 

depends on his reason for doing so, and courts need to know those reasons to 

evaluate the merits of a Fifth Amendment claim.” Id. at 2183 (citing Hoffman v. 

United States, 341 U.S. 479, 486-87 (1951)). “When confronted with a witness’s 

assertion of Fifth Amendment rights, the trial court must hold a hearing outside 

the presence of the jury.” Duso v. State, 866 N.E.2d 321, 325 (Ind. Ct. App. 

2007) (citing Ind. Code § 35-37-3-1). 

[16] We review a trial court’s acceptance of a witness’s invocation of the Fifth 

Amendment privilege against self-incrimination for an abuse of discretion. Id. 

“An abuse of discretion occurs when the trial court’s decision is against the 

logic and effect of the facts and circumstances before it.” Montgomery v. State, 

14 N.E.3d 76, 78 (Ind. Ct. App. 2014). “We do not reweigh the evidence, and 
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we consider only the evidence most favorable to the judgment and the 

reasonable inferences drawn therefrom.” Hale v. State, 992 N.E.2d 848, 852 

(Ind. Ct. App. 2013). 

[17] Brown specifically argues that the risk that Jones would be prosecuted based on 

his testimony is “purely fanciful.” Appellant’s Br. p. 13. In other words, the 

court should not have granted Jones’s invocation of the self-incrimination 

privilege because the threat of Jones’s testimony being linked to his pending 

charges is virtually non-existent. This Court set forth in Duso the standard for 

assessing a witness’s assertion of the self-incrimination privilege: 

[I]n determining whether the answer might so incriminate the 

witness, the court is bound by the statement of the witness as to 

its effect unless it clearly appears from the examination and the 

circumstances before the court that the witness is mistaken in his 

conclusion that the answer will incriminate him, or that the 

witness’ refusal is purely contumacious. A witness is excused 

from answering if the answer would tend to furnish one link in 

the chain of evidence necessary to convict him of a criminal 

charge. The witness is not under any obligation to explain how 

the answer might tend to incriminate him as this would defeat 

the very object of the constitutional provision. 

866 N.E.2d at 325 (quoting Northside Sanitary Landfill, Inc. v. Bradley, 462 

N.E.2d 1321, 1325 (Ind. Ct. App. 1984)). In appraising the witness’s claim, the 

trial court “must be governed as much by [its] personal perception of 

peculiarities of the case as by the facts actually in evidence.” Northside Sanitary 

Landfill, 462 N.E.2d at 1326. 
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[18] Here, had Jones testified, the State and defense attorney would have been 

allowed to inquire into Jones’s criminal history, including the charges pending 

against him. One of Jones’s charges was “substantially similar” to Brown’s 

charges for dealing in cocaine. Tr. p. 495; see Duso, 866 N.E.2d at 325. During 

his deposition, Jones referred to Brown as Manman, Brown’s street name. The 

State and the defense attorney would have been allowed to inquire into Jones’s 

relationships with both Brown and Sticky, see Ind. Evidence Rule 616, which 

could have opened a door to Jones’s pending charges. Based on the testimony 

Jones provided outside the presence of the jury and the reasons for invoking the 

Fifth Amendment privilege against self-incrimination, it was not clearly 

apparent that Jones’s attorney was mistaken in his conclusion that his answers 

could reasonably incriminate him. The trial court did not abuse its discretion 

when it accepted Jones’s invocation of his Fifth Amendment privilege against 

self-incrimination.2

 

[19] We also agree with the State that even if the trial court had erred when it 

accepted Jones’s invocation of his Fifth Amendment privilege, the error would 

have been harmless. Error is harmless when, in light of all the evidence in the 

case, it is sufficiently minor so as not to affect the substantial rights of a party. 

Ind. Appellate Rule 66(A); see Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015). 

 

2

 After the trial court granted Jones’s invocation of his Fifth Amendment privilege, Brown’s attorney argued 

that Jones’s deposition testimony should be admitted into the record for the jury, but defense counsel did not 

pursue the issue after the State gave its rebuttal argument for not admitting the deposition. Defense counsel 

did not seek a ruling from the trial court, no ruling was issued, and this argument was not raised on appeal. 
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Jones’s testimony outside the presence of the jury was that the CI told him that 

he did not know Brown but they had maybe shot dice together. This testimony, 

on its face would be hearsay, see Ind. Evidence Rule 801, but it could be 

admitted to impeach the CI, see Ind. Evidence Rule 608. In other words, 

Jones’s statement would have been admissible not for its truth but rather to 

create doubt regarding the truthfulness of the CI’s prior testimony that he knew 

Brown. However, the CI’s testimony that he knew Brown was further 

supported by Officer Naselroad’s testimony that the CI identified Brown in a 

photo array, provided the Drug Task Force with Brown’s name and contact 

information, and knew Brown’s street name. Additionally, Officer Williams 

testified that on May 5 he witnessed Brown exit motel room 206 mere minutes 

after the CI exited the room. Given the additional evidence to corroborate the 

CI’s testimony that he knew Brown, any error in allowing Jones not to testify 

would have been harmless. 

II. Sufficiency of the Evidence 

[20] Brown further contends that even if the trial court properly allowed Jones to 

invoke the Fifth Amendment, the evidence is insufficient to support his 

conviction. When reviewing the sufficiency of the evidence, we neither reweigh 

the evidence nor determine the credibility of the witnesses; that role is reserved 

for the factfinder. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The 

evidence—even if conflicting—and all reasonable inferences drawn from it are 

viewed in a light most favorable to the conviction.” Id. A conviction will be 

affirmed “if there is substantial evidence of probative value supporting each 
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element of the crime from which a reasonable trier of fact could have found the 

defendant guilty beyond a reasonable doubt.” Id. 

[21] Specifically, Brown argues that “other than the testimony of [the CI] whom the 

jury did not find credible with respect to the other two buys, there is nothing to 

uphold the conviction beyond the fact that the defendant was at the motel.” 

Appellant’s Br. pp. 14-15. There is sufficient evidence to support the CI’s 

testimony that Brown had sold him cocaine on May 5. Officer Naselroad 

testified about the pre-buy and post-buy interview process and that he 

conducted these interviews with the CI on May 5. When the CI left Officer 

Naselroad’s car his only possession was the money the Drug Task Force had 

provided for him to purchase cocaine. The CI then entered room 206, as stated 

by Officer Williams, and left a few minutes later. The CI proceeded directly 

from room 206 to Officer Naselroad’s car, and his only possession upon arrival 

was cocaine. Officer Williams also testified that he witnessed Brown leave 

room 206 minutes after the CI exited. There is sufficient evidence beyond the 

CI’s testimony to support Brown’s conviction for dealing in cocaine on May 5. 

[22] Affirmed. 

Bradford, J., and Brown, J., concur.