Camm v. State

The defendant, David R. Camm, appeals his three convictions and sentence of life imprisonment without parole for murdering his wife and two children. We reverse and remand for a new trial.

This was the defendant's second trial. In 2002 a jury convicted him of Murder for the shooting deaths of his wife, their seven-year-old son, and their five-year-old daughter at the family home in Georgetown, Indiana. In that trial, the jury rejected the defendant's alibi that he had been playing basketball at a nearby church at the time his family was killed, and "[the key physical evidence ... was the purported high velocity blood spatter on [the defendant's] t-shirt." Camm v. State, 812 N.E.2d 1127, 1129-30 (Ind.Ct.App.2004), trans denied. The Court of Appeals reversed, finding that the defendant was prejudiced by the State's introduction of evidence regarding his poor character-ie., his extramarital conduct-in violation of Indiana Evidence Rule 404(b). Id. at 1142.

The State reinvestigated the killings and soon connected a man named Charles Boney. The State discovered Boney's DNA on a sweatshirt that had been tucked under the son's body. Because Boney had not figured in the first trial, this marked a major development in the case. Police questioned Boney, and he admitted having owned the sweatshirt but claimed to have donated it to the Salvation Army. Later, police definitively matched him to a palm print found at the seene. After his arrest, Boney provided inconsistent stories but ultimately asserted that he had provided a gun for the defendant and was present when the three victims were shot and killed.

Following the reversal and remand, the parties agreed to change venue from the Floyd Superior Court to Warrick Superior Court No. 2, and that court assumed jurisdiction over the case. The State later dismissed the charges without prejudice and recharged the defendant in Floyd Circuit Court with the three counts of Murder while adding a charge of Conspiracy to Commit Murder. The defendant contested this procedure by filing an original action in this Court, and we ordered venue transferred back to Warrick Superior Court No. 2. The case was transferred, and the State sought a sentence of life without the possibility of parole.

The defendant's second trial in Warrick County began on January 16, 2006. The State's evidence at the second trial substantially mirrored that at the first: forensic evidence, expert testimony, and cireum-stantial evidence pointed to the defendant as the perpetrator, as well as the defendant's alleged confession to three inmates. *220Added, however, was evidence regarding Boney as a co-conspirator, and more evidence regarding the defendant's alleged molestation of his daughter. As to motive, the State's theory was that the defendant had molested his daughter, the daughter either had reported or would report the abuse to her mother, and the defendant killed his family to conceal the molestation. To advance this theory, the State introduced autopsy evidence revealing blunt force trauma to the daughter's external genital region and expert testimony opining that the daughter had been sexually molested within the twenty-four hours preceding her death.

At trial, Boney's presence at the scene was undisputed.1 The defense maintained that Boney was the sole perpetrator. In furtherance of this theory, the defense offered evidence of Boney's prior assaults on women and sexual compulsion for feet, his alleged reputation for dishonesty, his failed stipulated polygraph test, and certain in-eulpatory out-of-court ' statements. The trial court excluded all of this evidence. The defense also presented testimony that supported the defendant's alibi that he had been playing basketball at the time of the killings and which attacked the State's experts' analysis of the bloodstain patterns on the defendant's clothing.

At the close of the State's case-in-chief, the trial court entered judgment on the evidence in favor of the defendant on the Conspiracy charge. Tr. 108 (w.6, vol.l); Appellant's App'x at 147. At the close of trial, the jury convicted the defendant on all three Murder counts. The trial court entered judgment on the convictions and sentenced the defendant to a term of life without parole. Following an unsuccessful motion to correct error, the defendant filed this appeal. Because the defendant was sentenced to life without the possibility of parole, this Court has jurisdiction under Indiana Appellate Rule 4(A)(1)(a).

The defendant challenges his conviction on four general grounds: (1) the trial court committed reversible error by allowing the State to strike a female juror without a gender neutral reason; (2) evidence was both improperly admitted and excluded, prejudicing the defendant and impinging upon his right to present a defense under the Sixth Amendment to the United States Constitution; (8) the State committed misconduct in charging the defendant with conspiracy in order to frame logically exculpating evidence as inculpating evidence; and (4) the evidence is insufficient to support his conviction. Two particular claims independently require reversal. Specifically, the trial court committed reversible error in allowing speculative evidence and argument that the defendant molested his daughter and in admitting an out-of-court statement that the defendant's wife made to a friend regarding the time she expected to see the defendant at home on the night of the murders. But because sufficient evidence supports the convictions,2 the defendant may be retried, and so we ad*221dress the other raised issues that are likely to arise on retrial.

1. Speculation regarding whether the defendant molested his daughter

The first ground requiring reversal is the State's repeated emphasis upon speculation that the defendant molested his daughter.

At trial, the State introduced autopsy evidence revealing blunt force trauma to the daughter's external genital region.3 Dr. Corey, a medical examiner, testified for the State that these injuries were consistent with either sexual molestation or a "straddle fall." Tr. 665, 695 (w.5, vol.Ill). Drs. Spivack and Merk, both pediatricians, also testified for the State and opined that these injuries were inflicted "no more than a couple of days at most and probably somewhat less than that," and were "most likely ... the result of sexual abuse." Tr. 21, 70-71 (w.6, vol. I). In addition, on redirect Dr. Spivack agreed with the State's hypothetical that the daughter, if she had been molested, likely would have told her mother of the source of her injury. Id. at 48-44. Later, the State's closing argument was premised on this hypothesis and culminated with this statement: "He killed the witnesses. He couldn't tell his ... buddies why he was getting divoreed because he molested his five-year-old daughter and he watched them die and watched his son die." Tr. 1-5, 96, 197 (w.8, vol.I). Although the State was permitted to emphasize its molestation allegation, the trial court balked several times at the lack of any evidence implicating the defendant. See Appellant's App'x at 627 (before trial: "the record currently before the court shows no more than suggestion and suspicion, at best"); id. at 761 ("(Until adequate connecting evidence to the defendant is established outside the presence of the jury, any alleged evidence with regard to the defendant Camm is not admissible and shall not be offered to the jury hearing this case."); Tr. 2283 (w.8, vol.I) (repeating this admonition).

The defendant argues that the trial court abused its discretion by allowing the State to stack inference upon inference of molestation to build its case. As he puts it: "The fact that [the daughter] had nonspecific trauma descended into opinions that [the daughter] was painfully molested which, in turn, descended into the State's argument that [the defendant] molested [the daughter], who told her mother, who decided to leave [the defendant]." Br. of Appellant at 20-21. The State counters that the defendant waived his arguments by failing to object at trial and that, under Evidence Rule 404(b), the daughter's alleged molestation was relevant to show the defendant's motive.

With regard to waiver, the State argues that the defendant did not object when Dr. Corey testified that the daughter's injuries were likely cause by sexual molestation, and only objected to Drs. Spi-vack and Merk's testimony on cumulative grounds. Although the defendant filed a motion in limine specifically objecting to this molestation line of inquiry, "[oluly trial objections, not motions in limine, are effective to preserve claims of error for appellate review." Raess v. Doescher, 883 *222N.E.2d 790, 796 (Ind.2008). The trial objection must "statlel the specific ground for objection, if [it is] not apparent from the context," so that "[al mere general objection, or an objection on grounds other than those raised on appeal, is ineffective to preserve an argument for appellate review." Id. at 797 (internal quotation marks omitted). This specificity argument serves "to alert the trial judge fully of the legal issue." Id. (internal quotation marks omitted).

To show preservation of the issue, the defendant speaks to specific objections made during trial. First, the record shows that before Dr. Spivack's testimony, defense counsel made inaudible objections at a bench conference. Although the State claims this objection was based solely on the cumulative nature of Dr. Spivack's testimony, the trial court's transeribed ruling shows otherwise: "I'll grant the motion with regard to that. I think clearly speculation on her part that they may or may not have occurred, or could have possibly occurred. IIl let her testify as to any findings she may have made, but I'll grant the order with regard to that issue." Tr. 1 (w.6, voll) (emphasis added). Second, when the State asked Dr. Spivack whether the daughter would likely have reported her injuries to her mother, the defendant again objected on grounds that the answer called for speculation. Third, when Dr. Merk took the witness stand, defense counsel objected on grounds that this additional testimony was cumulative. Fourth, the defendant, both before closing arguments (anticipating that the State would reference molestation) and after (when the State in fact did so) made a continuing objection: "I just want to make sure that the Court recognizes as a continuing objection to what we believe is an improper argument of any-to argue that [the defendant] molested [the daughter] in any way ... the 404(b) objection." Tr. 96 (w.8, vol.I). The trial court acknowledged this objection. Id.

This is not a clear case of preservation. The trial court, for example, while acknowledging that defense counsel lodged several objections, held that they came too late, finding that the "fact that [the daughter} may have been abused at or very near the time she was killed had been admitted into evidence on one or more occasions, without objection." Appellant's Supp. App'x at 67 (Certified Statement of Evidence). To be sure, the record shows that at times both the State and defendant acted as if evidence of the daughter's injuries was relevant to establish the killer's motive. See, eg., Tr. 22, 45 (w.2, vol.I); Tr. 690-94 (w.5, vol.IIl); Tr. 86 (w.6, vol. I); Tr. 74-77, 108 (w.7, vol.l); Tv. 148-44, 146-50, 171, 181-82 (w.8, vol.D). In addition, the defendant opened the door to some of Dr. Spivack's redirect testimony by suggesting that the daughter had not reported her injuries and that Dr. Spivack lacked a concrete basis for her assessment that there was a "high degree of probability" that the daughter had been molested. See, e.g., Kubsch v. State, 784 N.E.2d 905, 919 n. 6 (Ind.2008) ("Otherwise inadmissible evidence may become admissible where the defendant 'opens the door' to questioning on that evidence."). Nor did the defendant request an admonishment and mistrial during the State's closing argument. See Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006) ("When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. If the party is not satisfied with the admonish ment, then he or she should move for mistrial. Failure to request an admonishment or to move for mistrial results in waiver." (internal citations omitted)).

But, for at least two reasons, to apply the waiver rule with unyielding ri*223gidity in this case risks absurdity. First, the defendant consistently objected to the speculation of these experts and the hypothesis that he was the molester-before, during, and after trial-and the trial court was well aware of the issue. The overriding purpose of the requirement for a specific and timely objection is to alert the trial court so that it may avoid error or promptly minimize harm from an error that might otherwise require reversal, result in a miscarriage of justice, or waste time and resources. See Godby v. State, 736 N.E.2d 252, 255 (Ind.2000). And see-ond, while the defendant made arguments from this evidence, the thrust of the defendant's argument appears to have been that Boney acted alone and sexually attacked the wife, not the daughter. See Tr. 148-44 (w.8, voll). It was the State that first filed a notice of intent to offer the molestation allegation as Rule 404(b) evidence, Appellant's App'x at 341, while the defendant fought to exclude the argument, id. at 481-82 (motion in limine); id. 598-604 (memorandum challenging pediatricians' argument). It was the State that first brought up the topic at trial in their opening statement: "And you'll hear also from Drs. Merk and Spivack that within 24 hours of little Jill's death, from her blood being sprayed upon her dad's shirt, that she was sexually molested." Tr. 11 (w.2, vol.I). If anything, the defendant's trial tactics were merely an attempt to defend himself against this allegation, and it is axiomatic that "the State cannot bootstrap . evidence into admissibility by putting it in, forcing a denial, and then claiming it was put in issue by the defendant." Bassett v. State, 795 N.E.2d 1050, 1052 (Ind.2003) (internal citations omitted). If this rule is to have any force, a defendant must be able vigorously to challenge erroneously admitted evidence without conceding the issue on appeal. We find the issue properly preserved for appeal.

Rule 404(b) provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but may "be admissible for other purposes, such as proof of motive." The law governing the admissibility of specific acts evidence for "other purposes" requires a trial court to make three findings. First, the court must "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." Wilson v. State, 765 N.E.2d 1265, 1270 (Ind.2002) (internal citation omitted). Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. Clemens v. State, 610 N.E.2d 286, 242 (Ind.1993). And third, the court must "balance the probative value of the evidence against its prejudicial effect pursuant to Rule 408." Wilson, 765 N.E.2d at 1270. The evidence adduced at trial failed to satisfy two of these three prongs.

As an initial matter, "[elvidence of motive is always relevant in the proof of a crime," id. -and it was in this case. For the State, evidence that the defendant molested his daughter within hours of her death would be highly relevant under Rule 404(b) as non-character proof of his motive. Nevertheless, on this record the State failed sufficiently to connect the daughter's injuries to the defendant. When conflicting evidence persists about a person's involvement in Rule 404(b) specific acts, the question is one of conditional relevance, which is governed by Rule 104(b). Under Rule 104(b), "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to sup*224port a finding of the fulfillment of the condition." There must be sufficient proof from which a reasonable jury could find the uncharged conduct proven by a preponderance of the evidence. Clemens, 610 N.E.2d at 242 (adopting Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988)). If the trial court finds this threshold showing met (or likely to be met), it properly admits the offered items and leaves to the jury the task of assessing their persuasive value.

In this case, relevance of the molestation as motive was conditioned upon proof of two premises: (1) the daughter's groin injuries resulted from molestation, and (2) the defendant was the molester. See Br. of Amicus at 4-6. As explained, the State introduced expert testimony that the daughter's groin injuries were consistent with sexual abuse, and although some testimony suggested otherwise, Tr. 108 (w.7, vol.I) (Dr. Nichols: very low possibility of molestation), the record evidence adequately supported an inference that the daughter was molested. Yet that expressed opinion makes it no more likely that the defendant was blameworthy. Missing from this record is any competent evidence of the premise that the defendant molested the child, a hole in proof the State admits. Br. of Appellee at 28. Rather, the State seems to reason that the temporal proximity (probably less than twenty-four hours) between the daughter's injuries (probably from molestation) and her murder (probably at the defendant's hands) is highly probative of motive. As persuasively explained by amicus curiae F. Thomas Schornhorst, the circularity of this reasoning is apparent: the defendant probably was the killer, so he probably was the molester, so he probably was the killer. See Br. of Amicus at 10-11.

The value of specific acts evidence to prove motive rests on the strength of proof that the defendant in fact committed that other act. With no evidence connecting the defendant to the injuries, the inquiry lacked purpose. See Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501, 99 L.Ed.2d at 782 ("[Slimilar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor."); Howell v. State, 274 Ind. 490, 413 N.E.2d 225, 226 (1980) ("[I]t goes without saying that there must be evidence of probative value showing that the defendant actually engaged in those acts."). In Wells v. State, for example, we held that it was error in a murder trial to admit evidence that bullets fired during an unrelated shooting at the defendant's workplace came from the same weapon as the bullet that killed the victim where the only evidence linking the defendant to the other shooting was a security guard's testimony that he had received an anonymous tip 441 N.E.2d inculpating the defendant. 458, 462-63 (Ind.1982).

But even if the minimum standards of Rules 404(b) and 104(b) were met, the risk of unfair prejudice substantially outweighed its modest probative value. See Ind. R. Evid. 408. "Unfair prejudice ... looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis." Ingram v. State, 715 N.E.2d 405, 407 (Ind.1999) (internal quotation marks omitted). The allegation was volatile, something the Court of Appeals foreshadowed in its 2004 opinion vacating the defendant's first set of convictions. At the first trial, the State introduced evidence that the daughter possibly had been molested hours before her death, that the defendant was the most likely perpetrator, and that he had killed his family to *225cover up his crime. Camm, 812 N.E.2d at 1140. The Court of Appeals did not address whether the evidence should have been excluded had a proper objection been lodged, but it did observe: "Given the arguments made on appeal, we anticipate in the event of a retrial that [the defendant] will object to the introduction of this evidence. If that is the case, the trial court will need to carefully consider whether the highty inflammatory nature of this evidence substantially outweighs the probative value of any evidence that [the defendant] molested [his daughter]." Id. (emphasis added). That apprehension was fulfilled in the defendant's second tri al: the evidence and argument presented regarding whether he molested his daughter was speculative at best and far more prejudicial than probative.

The State urges that the admission of this evidence and argument was harmless error. We disagree. "Harmless error is error that does not affect the substantial rights of a party given the error's likely impact on the jury in light of other evidence presented at trial." Raess, 883 N.E.2d at 801. Here the prejudicial impact is vividly evident. The State's theory, that the defendant murdered his family to conceal the molestation, pervaded the trial from the State's opening statement to its closing argument. Reports of juror statements after announcing their verdict also strongly indicate the jury impact of the molestation claim.4 See, e.g., Krumm v. State, 793 N.E.2d 1170, 1182-83 (Ind.Ct.App.2003) ("We have often concluded pursuant to Ind. Evidence Rule 404(b) that the admission of evidence of prior acts of child molesting or sexual assault are so prejudicial as to be reversible error." (collecting cases)).

The erroneous admission of speculative evidence and argument that the defendant molested his daughter, combined with the State's use of this evidence as the foundation of its case, requires that the convie-tions be reversed.

2. The statement that the wife expected the defendant home between 7:00-7:30 p.m.

Another ground that would independently require reversal is the defendant's contention that the trial court erred in allowing his wife's friend, Cindy Mat-tingly, to testify concerning an out-of-court statement made by his wife. On the day of the murders, the two women spoke during their daughters' dance class. And "during a normal, every day-type conversation about how busy life was, and in response to [her friend's] statement as to when she expected her husband home," Appellant's Br. at 30, the defendant's wife told the friend that "she was expecting her husband home between 7:00 and 7:30, around that time," Tr. 288 (w.5, vol.ID. This testimony was received at trial over the defendant's hearsay objection.

A trial court exercises broad discretion in ruling on the admissibility of evidence, and an appellate court should disturb its rulings only where it is shown that the court abused its discretion. (Griffith v. State, 788 N.E.2d 885, 839 (Ind. *2262008). In deciding whether to admit an out-of-court statement, a trial court must answer two preliminary questions: Is the statement hearsay, and, if so, does an exception apply? As to the first question, the State, defendant, and trial court agreed that the wife's statement is hearsay. What divided the parties was whether the statement properly fell within a hearsay exception. Supporting the trial court's decision, the State insists that Eivi-dence Rule 803(8) allowed the friend's testimony as a state-of mind declaration. The defendant, on the other hand, argues that his wife's statement of belief as to his future actions, when offered to prove those actions, falls outside Rule 808@)'s purview.

Rule 80838) creates a hearsay exception for statements of the declarant's then-existing state of mind at the time the statement was made. State of mind, as that term is defined, may include emotion, sensation, physical condition, intent, plan, motive, design, mental feeling, pain, and bodily health.

In criminal eases involving out-of-court statements of a victim's state of mind, this Court has identified three "instances where such statements may be admissible." Ford v. State, 704 N.E.2d 457, 459-60 (Ind.1998). The first is to respond "when the defendant puts the vie-tim's state of mind in issue." Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind.2000); see, e.g., Ford, 704 N.E.2d at 459-60 (vie-tim's statement to witness that "she was unhappy and that she wanted to leave but she was afraid that if she left [the defendant] again he would kill her" was admissible as indicative of her state of mind). The defendant did not put his wife's state of mind in issue in this case, and the State does not argue that this theory should apply. The second-'"to explain physical injuries suffered by the victim," Hatcher, 735 N.E.2d at 1161-this Court applied in Nicks v. State, 598 N.E.2d 520, 525 (Ind.1992), to admit remarks of a murder victim "to demonstrate the victim's explanation of prior injuries inflicted by the defendant." This is likewise inapplicable. The third is presented in this case: "[Tlo show the intent of the victim to act in a particular way." Hatcher, 735 N.E.2d at 1161.

Regarding this theory, such declarations may be admitted not only as proof of the declarant's then-existing state of mind, but also as circumstantial evidence of the de-clarant's future conduct. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892). A jury may infer from the declarant's past state of mind that the declarant held the same mental state at a future time and acted on it. Courts permit this sub-category of evidence because it lacks many of the dangers traditionally associated with hearsay: a jury's connecting a declarant's expressed mental state to their actions requires inferring only that one generally does what they intend, with no need to appraise memory, perception, or testimonial qualities. See Ronald J. Allen, Richard B. Kuhns & Eleanor Swift, Evidence: Text, Problems, and Cases 572-78 (8d ed.2002). This Court's cases have repeatedly permitted such use under Rule 808(8). Seq, eg., Taylor v. State, 659 N.E.2d 535, 543 (Ind.1995); Carter v. State, 501 N.E.2d 439, 441-42 (Ind.1986) (co-defendant's statement, during a conversation about drugs, that he would "check with [the defendant] to see if it was available," explained the declarant's later phone call to the defendant (citing Hillmon )); Dunaway v. State, 440 N.E.2d 682, 686 (Ind.1982) ("The statements indicate a fearful state of mind which would cireumstantially explain her later action of attempting to hit defendant.").

But the wife did not say, "I plan to be home between 7:00 and 7:80 p.m." Rather, *227her statement more directly relayed a belief about the defendant's future act of returning home. (Indeed, this is apparently the interpretation the friend gave the statement. Tr. 275 (w.5, vol.II).) And the State repeatedly manipulated her expectation as to the defendant's arrival time into evidence of her intent to meet the defendant at 7:30 p.m. When examining the friend, the State repeated the statement and asked her if she was positive. Id. at 289. The State asked a medical expert, over the defendant's objection, if she was "aware that Kim Camm was supposed to meet [the defendant] at 7:30 the night of the murders." Tr. 48 (w.6, vol.I). During a basketball player's eross-examination, the State asked if the defendant talked to him "about meeting his wife at 7:30." Tr. 577 (w.7, volIllD). In closing, the State asserted that the wife said "she was going to meet [the defendant] between 7:00 and 7:30," Tr. 181 (w.8, voll), and that the defendant told his wife "to meet him at that house," id. at 196. Finally, the State used the statement to speculate that the wife was meeting the defendant to confront him about molesting his daughter. Id. at 181.

When admitted as cireumstantial proof of the fact believed, as here, the evidence ceased to be a statement of the declarant's state of mind but rather was a statement of her expectation of the defendant's actions, and one which lacked a foundation about the basis for that expectation. The relevance of the wife's expectation necessarily depended on her accurate perception and memory: she could not know the defendant's plans without perceiving and remembering some past fact-something the defendant (or some other person) said or did to indicate that he would arrive home at that time. The wife's statement is thus no more reliable than any other classic form of hearsay, and this unreliability erodes the basis for admitting state-of-mind declarations in the first place. See 2 McCormick on Evidence § 275 (6th ed. 2006) ("The danger of unreliability is greatly increased when the action sought to be proved is not one that the declarant could have performed alone, but rather is one that required the cooperation of another person.").

Indeed, had the wife's statement explicitly related the basis for her knowledge of the defendant's intent (e.g., that the defendant had phoned her), arguably making the statement more reliable, a trial court could not admit that additional fact because it would be a statement of memory or belief, offered to prove the fact believed. See, e.g., United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir.1980) ("[The state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind."). The logic that compels excluding explicit references applies even more forcefully to implication: It necessarily depends on the wife's accurate knowledge of some past fact about the defendant, without which her statement amounted to irrelevant speculation, and which was impossible for the defendant to cross-examine.

These concerns were highlighted in the Committee Notes accompanying Indiana's own Rule 808(3),5 and several *228states, either by rule6 or through case law,7 disallow the use of state-of-mind declarations to prove a third party's conduct. We agree, and hold that, while state-of-mind declarations are admissible under Rule 808(8) when offered to prove or explain acts or conduct of the declarant, they are not admissible when offered to prove a third party's conduct. Because the wife's statement expressed a belief about the defendant's future plans, and was used as evidence of what the defendant in fact did, the admission of the wife's hearsay statement was an abuse of discretion.

And while the State suggests that the statement is probative of whether the defendant's wife actually arrived home at those times, Br. of Appellee at 32, this rationale finds little support in this case. The wife's being at home at 7:80 p.m. was not contested-yet even if relevant for that narrow purpose, common sense shows too high a risk that the jury would misuse the statement to infer the defendant's act. Cf. Carter, 490 N.E.2d at 291-92 (relying in part on "[tlhe trial court [having] properly admonished the jury"). We hold that it was error to admit the friend's testimony that she heard the defendant's wife state the time she was expecting her husband home.

Errors in the admission of evidence, however, will be disregard as harmless unless they affect a party's substantial rights. Ind. Trial R. 61. Stated another way, "an error will be found harmless if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties." Fleener v. State, 656 N.E.2d 1140, 1142 (Ind.1995).

In view of conflicting evidence concerning the defendant's alibi, we cannot conclude that the error in admitting this evidence was harmless. At trial, it was undisputed that the murders occurred around 7:80 p.ma. It was also largely undisputed that the defendant was playing basket ball at a nearby gym from around 7:00 p.m. to 9:22 p.m. Tr. 1088-34, 1041-42 (w.7, vol.V). The State's theory was that the defendant snuck out of the game, murdered his family, and returned to the gym. Br. of Appellee at 3; Tr. 165 (w.3, vol.D); Tr. 822 (w.3, vol.IV). The defendant notes several witnesses-others playing basketball that evening-who testified that the defendant sat out only one game and who observed him on the sidelines. Tr. 848 (w.5, volIV); Tr. 512-18 (w.7, volIIl). The wife's hearsay statement was thus critical evidence placing the defendant at the seene at the key time, and its admission was reversible error.

*2293. Sufficiency of the evidence

The defendant also argues that insufficient evidence supported the jury's verdict that he murdered his wife and two children, requiring not just reversal of his convictions but outright dismissal of the charges. Perkins v. State, 542 N.E.2d 549, 550-51 (Ind.1989); see Burks v. United States, 437 U.S. 1, 10-11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1, 9 (1978).

An appellate court evaluating the sufficiency of the evidence presented at trial "will not weigh conflicting evidence or judge the credibility of witnesses." Wright v. State, 690 N.E.2d 1098, 1106 (Ind.1997). The court should uphold a conviction so long as the evidence, when viewed in the light most favorable to the judgment, could justify a reasonable jury in finding the elements of the crime charged proven beyond a reasonable doubt. Tobar v. State, 740 N.E.2d 109, 111-12 (Ind.2000). Moreover, cireumstan-tial evidence alone may be sufficient to sustain a conviction, Rohr v. State, 866 N.E.2d 242, 249 (Ind.2007); it is "not nee-essary that the evidence overcome every reasonable hypothesis of innocence," Drane v. State, 867 N.E.2d 144, 147 (Ind.2007) (internal quotation marks omitted); and the reviewing court considers the evidence as presented at trial, including that which may have been erroneously admitted, Joyner, 678 N.E.2d at 390; see also Lockhart v. Nelson, 488 U.S. 33, 40-41, 109 S.Ct. 285, 291, 102 L.Ed.2d 265, 274 (1988).

In order to obtain convictions for the murders, the State had to prove, beyond a reasonable doubt, that the defendant knowingly or intentionally killed his wife and children. Ind.Code § 35-42-1-1(1). Sufficient evidence supported the jury's verdict.

The evidence at trial showed, among other things, that the defendant owned a handgun consistent with the type and caliber used to commit the murders-a Lorein .38 caliber hammerless semi-automatic handgun. An inmate testified that the defendant told him that he had used a .38 caliber hammerless pistol that could not be traced to him to commit the murders. The defendant made inculpatory admissions to two other inmates. The State also presented blood spatter evidence consistent with a close-range attack and consisting of the wife's blood on the defendant's shirt and shoes. The defendant's clothing contained gunshot residue, brass and lead particles, biological tissue particle and contact stains of blood from the victims. Evidence, although erroneously admitted, placed the defendant at the home at the time of the murders. A reasonable jury could convict by crediting this evidence.

The defendant's counter-arguments-that Boney's involvement and his alibi evidence constituted reasonable doubt, that the evidence regarding the trace amounts of gun shot residue and brass shavings on his clothing was not probative, and that the State's jailhouse informants and experts were not trustworthy-merely urge this Court to accept his version of events over the version presented by the State. But it was the jury's job to determine whose evidence was more credible, and they chose the State's. It is not the appellate court's province to reweigh the evidence, assess the credibility of witnesses, or substitute its judgment for the jury's. Drane, 867 N.E.2d at 146-47.

4. Other issues

Because we remand for new trial, we address the following issues raised by the defendant in this appeal, which are likely to resurface on retrial.

(a) Evidence relating to Charles Boney

First, the defendant contends that the trial court committed reversible error *230when it allowed State witness Mala Singh Mattingly, Charles Boney's former girlfriend, to testify, over the defendant's hearsay objection, that a few hours before the murders Boney said to her "he was going to go help a buddy." Tr. 528 (w.5, vol.III). The State takes the position that the trial court properly admitted the girlfriend's testimony under Rule 808(8) as a statement illustrating Boney's plan or intent to act. (The exception to the hearsay rule provided by Evid. R. 8088) is discussed in the preceding section of this opinion.) On appeal, the defendant does not contend that her testimony was inadmissible under Rule 8088), but argues instead that the admissibility of this testimony must be evaluated under Rule 801(d)(2)(E). Appellant's Br. at 38-34.

Evidence Rule 801(d)(2)(E) provides that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay. The defendant's argument is that, because the State argued that he and Boney were co-conspirators, the use of the girlfriend's testimony was subject to the requirements of Rule 801(d)(@2)(E), one of which, he maintains, is that there be "independent evidence of a conspiracy prior to admission." Appellant's Br. at 34. We find it unnecessary to parse the defendant's Rule 801(d)(2)(E) argument because Rule 802, which provides that hearsay is "not admissible except as provided by law or by these rules," entitled the State to rely on the exception provided by Rule 8088) here.

The defendant further argues that even if the statement was admissible under the hearsay rules, it was inadmissible under Rule 403 because its minimal probative value was substantially outweighed by its prejudicial impact on his defense. We see no unfairness in the jury having the opportunity to weigh the girlfriend's testimony against the defendant's arguments that Boney acted alone. In addition, the defendant contends that the trial court improperly limited his ability to cross-examine her in certain respects, but we find that the trial court acted within its discretion in this regard.

The defendant also contends that the trial court improperly prevented him from presenting evidence that Boney was the perpetrator of the crimes charged in this case. While this Court is solicitous of a criminal defendant's right to present evidence that the charged erime was committed by another, that right is not without limits. See Joyner, 678 N.E.2d at 389-90.

At trial, the defendant unsuccessfully sought to introduce Boney's "four felony convictions for robbery in which women's shoes were the target and that [Boney had] an admitted foot fetish and shoe fetish," Tr. 788 (w.8, vol.III), as evidence of Boney's (1) motive to commit the murders and (2) identity as the murderer. There was no evidence in this case that any robbery was perpetrated in connection with the killing of the wife, son, or daughter. There was, as discussed earlier, evidence suggesting that the daughter had been sexually molested at some point in time close to that of the killings. And while there was no evidence that the wife had been sexually assaulted in any way, when her body was discovered, her pants were pulled down, her shoes were off, and her feet were bruised.

We begin our inquiry as to the admissibility of Boney's eriminal history and alleged foot and shoe fetish with Rule 404(b) and this Court's decision in Garland v. State, 788 N.E.2d 425 (Ind.2003). In Garland, the defendant contended that testimony about a third party's prior bad acts was admissible for the sa