Anthony Cobb v. State of Indiana

FILED
Oct 26 2023, 8:35 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell W. Brown, Jr. Theodore E. Rokita
The Region Lawyers, Inc. Attorney General of Indiana
Merrillville, Indiana Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Anthony Cobb, October 26, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CR-2085
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Salvador Vasquez, Judge
Trial Court Cause No.
45G01-2109-F4-168

Opinion by Judge Foley
Chief Judge Altice and Judge May concur.

Foley, Judge.

[1] A jury convicted Anthony Cobb (“Cobb”) of three offenses stemming from a

traffic stop and a warrantless vehicle search: (1) Class C misdemeanor operating

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 a vehicle while intoxicated, 1 (2) Class A misdemeanor resisting law

enforcement, 2 and (3) Level 4 felony unlawful possession of a firearm by a

serious violent felon. 3 Cobb appeals, presenting the following restated issues:

I. Whether the United States Constitution and Article 1,
Section 11 of the Indiana Constitution prohibited
admitting evidence from a warrantless vehicle search;

II. Whether the trial court abused its discretion in admitting
two recorded phone calls;

III. Whether, by failing to ensure that Defendant’s Exhibit 4
was transmitted on appeal, Cobb waived his claim that the
trial court erred in excluding this exhibit; and

IV. Whether the trial court abused its discretion in declining to
give the “reasonable theory of innocence” jury instruction.

[2] We affirm.

Facts and Procedural History
[3] On September 13, 2021, the State brought several charges against Cobb. As

amended, the information alleged that Cobb committed Class C misdemeanor

operating a vehicle while intoxicated, Class A misdemeanor resisting law

1
Ind. Code § 9-30-5-2(a).
2
I.C. § 35-44.1-3-1(a)(1).
3
I.C. § 35-47-4-5(c).

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 enforcement, and Level 4 felony unlawful possession of a firearm by a serious

violent felon. The charges stemmed from a traffic stop that led to a warrantless

search of a vehicle Cobb had been driving, with the search revealing a firearm

under the driver’s seat. Ahead of a jury trial, Cobb moved to suppress evidence

from the search, alleging that the search was unconstitutional under both the

state and federal constitutions. Following a hearing, the trial court denied the

motion to suppress. Cobb did not pursue an interlocutory appeal, and the case

proceeded to a bifurcated jury trial held on July 5, 2022, and July 6, 2022.

[4] During the first phase of the jury trial, there was evidence that, around 3:30

a.m. on September 12, 2021, Officer George Fields Jr. of the Lake Station

Police Department (“Officer Fields”) was on patrol when his vehicle’s radar

system clocked a vehicle speeding. Officer Fields began following the vehicle,

and saw the vehicle cross the center line three or four times. Officer Fields then

initiated a traffic stop, and the vehicle pulled over to the shoulder of the road.

[5] As Officer Fields walked up to the passenger side of the vehicle, he smelled the

odor of alcohol emanating from the vehicle. He also saw an open bottle of

tequila on the “passenger seat floorboard.” Tr. Vol. IV p. 21. Cobb—the

driver—was the only person in the vehicle. Officer Fields smelled alcohol on

Cobb’s breath, and he noticed the odor of alcohol emanating from Cobb’s

person. Officer Fields also noticed that Cobb’s speech was slurred, his eyes

were “glossy,” and his face was flushed. Id. at 23. Officer Fields called for a

backup officer. While waiting for the officer to arrive, Officer Fields directed

Cobb to keep his hands on the steering wheel. However, Cobb did not comply.

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 At first, Cobb was “[j]ust not showing his hands[.]” Id. at 25. Once Cobb

showed his hands, he “kept moving them around” and “became fidgety.” Id.

Officer Fields thought Cobb was “showing signs of nervousness,” which

concerned Officer Fields. Id.

[6] Before long, Officer David Wright of the Lake Station Police Department

(“Officer Wright”) arrived. At that point, Officer Fields asked Cobb to step out

of the vehicle. Cobb did not immediately do so, complying only after Officer

Fields asked “more than two or three times.” Id. When Cobb stepped out of

the vehicle, he “kept saying hold on, hold on[.]” Id. at 26. He reached into the

center console of the vehicle and retrieved a cellphone, telling Officer Fields: “I

got to record this.” Id. Cobb began recording the encounter on his cellphone.

[7] Officer Fields asked if Cobb “had been drinking that night,” and Cobb said he

had consumed “[a] few” or “a couple” of alcoholic beverages. Id. Officer

Fields then asked Cobb to perform field sobriety tests. Cobb refused, saying:

“[I]f it’s going to put me in jail, I’m not going to do it.” Id. at 28. Officer Fields

also asked Cobb to take a portable breath test, and Cobb refused. Officer Fields

then handcuffed Cobb, arresting him for operating while intoxicated. At that

point, Officer Fields stood near Cobb with his hand on Cobb’s wrists.

[8] Because Cobb was arrested, and there was “nobody else . . . in the vehicle to

take possession of it,” Officer Wright called for a tow truck. Id. at 29. Officer

Wright then opened the driver’s door of the vehicle to “perform an inventory

and search incident to arrest search on the vehicle.” Id. at 93. As soon as

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 Officer Wright opened the door, Cobb “began to start pulling away” from

Officer Fields. Id. at 30. Cobb managed to break free from Officer Fields’s

grip. When Cobb broke free, he lunged in the direction of the driver’s door.

Officer Fields regained control over Cobb and instructed him several times to

stop pulling away. Cobb continued to pull away. To maintain control over

Cobb, Officer Fields had to “physically bend [Cobb] over the hood of the

car . . . so he could not move.” Id. at 35. Officer Wright came to the front of

the vehicle to help restrain Cobb, who was flailing his arms, shoulders, and legs

“as much as he could,” to the point that the officers “knew keeping [Cobb] on

the front of the vehicle was not the safe option.” Id. at 111. The two officers

“took [Cobb] to the grassy area next to the vehicle” and held Cobb on the

ground. Id. at 94. Officer Wright called dispatch to request backup. When

backup arrived, Cobb was moved into a police vehicle while Officer Wright

observed him nearby.

[9] Officer Fields then “conducted his inventory and search incident to arrest”

search of the vehicle Cobb had been driving. Id. at 95. Officer Fields testified

that he found a firearm under the driver’s seat of the vehicle. He testified that

the firearm was loaded and positioned so that the driver “could just reach down

and grab it if need be,” with “the handle of the gun . . . kind of flush with the

driver’s seat[.]” Id. at 34. He added: “The barrel was pointed toward the back,

and the handle . . . was facing outward to where it was pretty easily able to be

grabbed.” Id. at 83. The vehicle Cobb was driving was registered to a person

named Yvonne Cobb (“Yvonne”), who had a valid permit to carry a firearm.

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 The firearm seized from the vehicle was purchased by a male person other than

Cobb, and the firearm had not been reported stolen.

[10] At trial, Cobb timely objected to the admission of all evidence obtained from

the vehicle search, including the firearm seized during the search. Cobb also

moved to “[i]ncorporate the previous arguments” he had made when litigating

the pretrial motion to suppress. Id. at 31. The trial court said it would

incorporate the arguments. The court then overruled the objection. Cobb

asked the trial court to recognize a continuing objection, which it did. The

court then summarized its recent rulings, stating as follows: “Incorporated by

reference, a hearing conducted outside the jury’s presence, the objection is

noted. It will be [a] continuing objection consistent with the rules.” Id.

[11] The State sought to admit recordings of two phone calls Cobb made from jail

on June 29, 2023, the day after the trial court denied the motion to suppress,

and June 30, 2023. In each call, Cobb spoke with Yvonne.4

[12] Cobb objected to the admission of the recordings, asserting the evidence was

not relevant and unfairly prejudicial. The State responded that the evidence

was relevant and highly probative of Cobb’s consciousness of guilt, arguing that

“the gist” of the evidence was that Cobb told Yvonne: “[Y]ou need to come in

here and take responsibility for the gun that’s in your car.” Id. at 140. Cobb

4
On appeal, Cobb admits that the calls were “between [him] and Yvonne[.]” Appellant’s Br. p. 9. At one
point, Cobb asserts that Yvonne is his sister. See id. at 8.

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 argued that the recorded statements were not as “explicit” as the State

represented, with the State “trying to interpret and make that argument [as to]

what [Cobb] [wa]s talking about[.]” Id. at 141. Although the State agreed that

the recorded statements were “not explicit,” the State claimed that “the whole

call” indicates that Cobb wanted Yvonne to take responsibility for the firearm.

Id. As to relevance, Cobb contended that the recordings “would be relevant if

[Yvonne] were to come in and testify to show her motive, her bias of the reason

why she’s testifying[.]” Id. at 139. However, Cobb asserted that Yvonne would

not be testifying.

[13] Before making its evidentiary ruling, the trial court listened to each recording.

The court ultimately admitted the recordings over Cobb’s objection, noting:

[I]f he’s making comments about having a witness come in his
case and making . . . even these generalities, I think that’s
sufficient and it really goes more to the weight that the jury
would give it and not the admissibility. I think this information
is relevant. I think it’s certainly probative [of] the defendant’s
state of mind.

Id. at 145. As to whether the evidence was unfairly prejudicial, the trial court

decided that “the prejudice is not so substantial that it should keep the

information out” under Indiana Evidence Rule 403. Id. at 146.

[14] After the State rested, Cobb called Officer Fields as a witness. At one point,

Cobb moved to introduce Defendant’s Exhibit 4, which consisted of a video

clip assembled from Cobb’s cellphone recording of the traffic stop. The State

objected, alleging that the video clip contained inadmissible hearsay. During an
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 ensuing sidebar discussion, Cobb asserted that the evidence was not being used

for the truth of the matter asserted, but to prove that Cobb did not have slurred

speech. The State again argued the evidence contained inadmissible hearsay.

The State also argued: “We are just getting this certain section they want to

play.” Id. at 179. The State expressed concern that the video footage contained

in Defendant’s Exhibit 4 “could have been cherrypicked out and chosen for

today,” and asserted the State was also objecting on that basis. Id. at 180.

[15] The trial court concluded that the clip contained inadmissible hearsay and

sustained the State’s objection. After further discussion, Cobb asked the trial

court “to allow Defendant’s Exhibit 4 . . . for an offer of proof,” and the trial

court agreed to retain the proffered exhibit for that purpose. Id. at 186.

[16] Once the defense rested, the trial court addressed final jury instructions. Cobb

said he “would re-tender and re-request the burden of proof instruction,”

seeking an instruction containing language “that the evidence must be so

convincing to overcome every reasonable theory of innocence.” Id. at 193.

According to Cobb, this instruction was proper under the circumstances

because the State had a “purely . . . circumstantial case” for the count of

operating a vehicle while intoxicated and the firearm-related count. Id. Cobb

“concede[d] that there [was] direct evidence” for the count of resisting law

enforcement. Id. The trial court ultimately declined to give the instruction,

reasoning that, because there was direct evidence as to at least one of the

charges, “[i]t is clearly a mix,” and the instruction was improper. Id. at 196.

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[17] After the initial phase, the jury determined that Cobb was guilty of Class A

misdemeanor resisting law enforcement and Class C misdemeanor operating a

vehicle while intoxicated, and that Cobb had possessed a firearm. The jury trial

proceeded to the next phase, and the jury returned a guilty verdict for Level 4

felony unlawful possession of a firearm by a serious violent felon. The trial

court later held a sentencing hearing, imposing concurrent sentences for an

aggregate term of five years in the Department of Correction. Cobb appeals.

Discussion and Decision
I. Evidence from the Warrantless Vehicle Search
[18] On appeal, Cobb presents several evidentiary challenges, among them, a

challenge to the trial court’s decision to admit evidence stemming from the

search of the vehicle, including the firearm seized during the search. According

to Cobb, the search violated the Fourth Amendment to the United States

Constitution and Article 1, Section 11 of the Indiana Constitution.

[19] In general, a trial court has “broad discretion to admit or exclude evidence[.]”

Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015). Whenever the trial court

makes an evidentiary ruling, the court generally considers “the foundational

evidence presented at trial.” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).

However, “[i]n ruling on admissibility following the denial of a motion to

suppress,” the trial court “also considers the evidence from the suppression

hearing that is favorable to the defendant”—but the trial court considers this

additional evidence “only to the extent it is uncontradicted at trial.” Id.
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[20] Our role is not to reweigh the evidence presented to the trial court. See id.

Rather, “[b]ecause the trial court is best able to weigh the evidence and assess

witness credibility, we review its rulings on admissibility for abuse of

discretion,” reversing “only if a ruling is ‘clearly against the logic and effect of

the facts and circumstances and the error affects a party’s substantial rights.’”

Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)). However, to the

extent the trial court’s evidentiary ruling turns on the constitutionality of a

search or seizure, “the ultimate determination of the constitutionality of a

search or seizure is a question of law that we consider de novo.” Id.

A. Fourth Amendment

[21] The Fourth Amendment generally requires that law enforcement obtain a

warrant before conducting a search or seizure, specifying that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated[.]” This text “makes

clear” that the ultimate touchstone of the Fourth Amendment is

reasonableness. Lange v. California, 141 S. Ct. 2011, 2017 (2021) (citing Brigham

City v. Stuart, 547 U.S. 398, 403 (2006)). As the United States Supreme Court

has explained, warrantless searches—i.e., “searches conducted outside the

judicial process, without prior approval by [a] judge or magistrate[—]are per se

unreasonable under the Fourth Amendment[.]” Arizona v. Gant, 556 U.S. 332,

338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). However,

there are “a few specifically established and well-delineated exceptions” to the

warrant requirement. Katz, 389 U.S. at 357. “Among the exceptions . . . is a

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 search incident to a lawful arrest.” Gant, 556 U.S. at 338. There is also an

exception for an inventory search of a vehicle conducted “pursuant to standard

police procedures[.]” South Dakota v. Opperman, 428 U.S. 364, 372 (1976).

[22] On appeal, Cobb argues that the firearm was seized pursuant to an invalid

inventory search. Although the State contends that the search satisfied this

exception, the State also examines whether the search was justified under a

different exception. In his Reply Brief, Cobb argues that, because the State

focused on the inventory exception at trial, principles of waiver preclude the

State from presenting an alternative appellate justification for the search. In so

arguing, Cobb acknowledges there is caselaw stating that an appellate court

may “uphold a correct legal ruling even if based upon incorrect or absent legal

reasoning below[.]” Reply Br. p. 7. However, he argues that the State

exclusively relied upon caselaw “applying the rules of evidence and not

evidentiary rulings based upon constitutional questions.” Id. According to

Cobb, because there was a constitutional dimension to the instant evidentiary

ruling, we should limit our analysis and focus only on the inventory exception.

[23] In affirming an evidentiary ruling—even a ruling involving a constitutional

question—this Court is not bound by any legal theory for admitting or

excluding the evidence. See Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002)

(affirming on different constitutional grounds the decision to admit evidence

from a search); Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App. 2012)

(same), trans. denied. Rather, “[a]s an appellate court, we may affirm a trial

court’s judgment on any theory supported by the evidence.” Ratliff, 770 N.E.2d

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 at 809. In other words, so long as the record provides a proper basis for the trial

court’s ruling, the ruling itself is not erroneous. See id. Thus, if there is a “legal

ground apparent in the record” that supports the evidentiary ruling, id., we may

discuss that legal ground without addressing any other potential ground, see id.

[24] In this case, we accept the State’s invitation to consider whether the warrantless

search satisfied an exception other than the inventory exception. We proceed

to examine whether the search satisfied the exception for a search incident to a

lawful arrest. This exception generally “authorizes police to search a vehicle

incident to a recent occupant’s arrest[.]” Gant, 556 U.S. at 343. The exception

applies in two scenarios: (1) “when the arrestee is unsecured and within

reaching distance of the passenger compartment at the time of the search,” id.,

and (2) “when it is reasonable to believe that evidence of the offense of arrest

might be found in the vehicle,” id. at 335. As to this latter scenario, “[i]n many

cases, [such] as when a recent occupant is arrested for a traffic violation, there

will be no reasonable basis to believe the vehicle contains relevant evidence.”

Id. at 343. For example, when a defendant “was arrested for driving with a

suspended license, officers could not expect to find evidence of this crime in the

vehicle.” Meister v. State, 933 N.E.2d 875, 878 (Ind. 2010). However, under

certain circumstances, “the offense of arrest will supply a basis for searching the

passenger compartment of an arrestee’s vehicle and any containers therein.”

Gant, 556 U.S. at 344. The Indiana Supreme Court has explained that, in these

instances, the warrantless vehicle search is justified by law enforcement’s need

to preserve evidence. See State v. Hobbs, 933 N.E.2d 1281, 1285 (Ind. 2010).

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[25] When the United States Supreme Court articulated the scope of this exception,

the Court collected cases where it was reasonable for officers to believe that

evidence of the offense might be in the vehicle. See Gant, 556 U.S. at 344. One

such case was New York v. Belton, where a police officer conducted a warrantless

search of a vehicle after arresting the occupants for possession of marijuana.

453 U.S. 454, 456 (1981). Before conducting the search, the officer “had

smelled burnt mari[j]uana and had seen on the floor of the car an envelope

marked ‘Supergold’ that he associated with mari[j]uana.” Id. at 455–56.

[26] Similar to the circumstances in Belton, here, Officer Fields arrested Cobb for

operating a vehicle while intoxicated after (a) seeing Cobb weaving on the

roadway; (b) observing Cobb’s flushed face, glossy eyes, and slurred speech; (c)

smelling alcohol on Cobb’s breath; (d) noticing the odor of alcohol emanating

from Cobb’s person; and (e) seeing an open bottle of tequila on the passenger

side floorboard of the vehicle. Under these circumstances, it was reasonable to

believe that evidence of operating while intoxicated may be found under the

driver’s seat. We therefore conclude that the search was justified as a search

incident to arrest. See Gant, 556 U.S. at 335 (“[C]ircumstances unique to the

vehicle context . . . justify a search incident to a lawful arrest when it is

‘reasonable to believe evidence relevant to the crime of arrest might be found in

the vehicle.’” (quoting Thornton v. United States, 541 U.S. 615, 632 (2004)

(Scalia, J., concurring))); compare Meister, 933 N.E.2d at 878 (vehicle search was

not justified under this exception when the offense of arrest was driving with a

suspended license) with Belton, 453 U.S. at 456 (vehicle search was justified

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 when the offense of arrest was possession of marijuana, the officer smelled

marijuana, and the officer saw an envelope in the vehicle with writing on it

associated with marijuana (discussed with approval in Gant, 556 U.S. at 344)).

B. Article 1, Section 11

[27] Cobb also argues that evidence from the search was subject to exclusion

because the search violated Article 1, Section 11 of the Indiana Constitution.

[28] The language in Article 1, Section 11 of the Indiana Constitution is nearly

identical to the language in the Fourth Amendment, with both constitutional

provisions authorizing only reasonable searches. Compare Ind. Const. art. 1, §

11 with U.S. Const. amend. IV. However, we “interpret Article 1, Section 11

independently.” Hardin v. State, 148 N.E.3d 932, 942 (Ind. 2020). When we

determine whether a search was reasonable under Article 1, Section 11, we look

to “the totality of the circumstances,” applying the framework from Litchfield v.

State, 824 N.E.2d 356, 361 (Ind. 2005). Hardin, 148 N.E.3d at 942. As to that

framework, although a case could present “other relevant considerations,” the

reasonableness of a search generally turns on a balancing of “1) the degree of

concern, suspicion, or knowledge that a violation has occurred, 2) the degree of

intrusion the method of the search or seizure imposes on the citizen’s ordinary

activities, and 3) the extent of law enforcement needs.” Litchfield, 824 N.E.2d at

361. When weighing these factors—known as the Litchfield factors—we

consider “the full context in which the search . . . occurs.” Hardin, 148 N.E.3d

at 943. And we consider these factors whether or not there was a warrant. Id.

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[29] In challenging the constitutionality of his search under Article 1, Section 11,

Cobb directs us to his Fourth Amendment analysis and asserts that “the State

failed to present any evidence that Officers Fields’[s] search of [the] vehicle was

reasonable.” Appellant’s Br. p. 14. As to the Litchfield factors, Cobb contends

that (1) “[t]here was no evidence presented . . . that Officer Fields had any

degree of concern, suspicion or knowledge that a violation occurred”; (2)

“[t]here was no evidence presented to establish what, if any, law enforcement

needs Officer Fields was satisfying”; and (3) “Officer Fields’s actions

constituted a significant degree of intrusion of Mr. Cobb’s rights.” Id. Cobb

also seems to suggest that, at trial, the State failed to present any foundational

evidence supporting the constitutionality of the search. That is, he asserts that

the State presented foundational evidence at the hearing on the motion to

suppress, but this foundational evidence cannot be relied upon because “the

State never asked the trial court to incorporate the evidence previously

presented.” Id. at 15.

[30] Irrespective of evidence presented at the pre-trial hearing, by the time Cobb

objected to the admission of evidence from the search, the State had presented

trial testimony from Officer Fields setting forth why Officer Fields conducted

the traffic stop (he observed speeding and weaving), what he observed as he

approached the vehicle (an odor of alcohol and an open bottle of tequila in the

passenger compartment), and what he observed while interacting with Cobb (an

odor of alcohol on Cobb’s breath and other indicia of intoxication, including

Cobb’s flushed face and glossy eyes). By then, Officer Fields had also testified

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 that, before the vehicle search, he arrested Cobb for operating while intoxicated.

We therefore disagree with Cobb’s suggestion that, at trial, the State failed to

present any foundational evidence regarding the reasonableness of the search.

[31] Turning to the first Litchfield factor, in examining law enforcement’s degree of

concern, suspicion, or knowledge that a violation has occurred, “we consider all

‘the information available to them at the time’ of the search or seizure.” Hardin

v. State, 148 N.E.3d 932, 946 (Ind. 2020) (quoting Duran v. State, 930 N.E.2d 10,

18 (Ind. 2010)). Information supporting a vehicle search includes “very recent

information indicating that evidence of criminal activity would be in the

vehicle.” Id. at 944. In this case, there was evidence Officer Fields saw Cobb

driving the vehicle, noticed Cobb displaying signs of intoxication, smelled the

odor of alcohol emanating from Cobb, and observed an open bottle of liquor on

the floorboard of the passenger seat. Based on these observations, law

enforcement had an extremely high degree of suspicion that (1) Cobb operated

a vehicle while intoxicated and (2) evidence of this crime was inside the vehicle.

Moreover, because of Cobb’s conduct during the roadside encounter, law

enforcement had additional suspicion that the vehicle contained contraband.

That is, Cobb initially refused to exit the vehicle. Once Cobb was arrested and

Officer Wright opened the driver’s door to begin a search, Cobb broke free from

Officer Fields and lunged toward the driver’s door, seemingly trying to thwart

the search of the vehicle. Even after the two officers regained control over

Cobb, he continued to pull away from them, necessitating a call for backup.

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[32] Regarding the intrusiveness of the search, “we consider the degree of intrusion

from the defendant’s point of view.” Id. We also consider the extent to which

the search intruded into “both the citizen’s physical movements and the

citizen’s privacy.” Id. Generally, a vehicle search constitutes an “obvious

intrusion into [a person’s] privacy.” Id. at 946. Still, the degree of intrusion can

be “lessened by the way officers conducted the search.” Id. In other words,

“how officers conduct a search . . . matters.” Id. at 945 (emphasis removed).

[33] Here, the vehicle search did not intrude into Cobb’s freedom of movement

because Cobb was already in police custody. See id. at 946 (identifying no

intrusion into physical movements under similar circumstances). And although

the vehicle search constituted an intrusion of privacy, here—as in the Indiana

Supreme Court’s Hardin decision—the search “appears to have been no more

extensive than a visual inspection of the interior of the vehicle—something

someone might do to find a credit card or french fry dropped between a seat

and the center console.” Id. Indeed, it is not as though Cobb is arguing that

law enforcement “searched his vehicle in an egregious manner as could’ve been

the case if officers had torn apart his seats or ripped out his dashboard looking

for hidden compartments.” Id. Under these circumstances, we conclude that

the search resulted in a moderate degree of intrusion. See id. (concluding that

there was a moderate degree of intrusion under similar circumstances).

[34] As to the extent of law enforcement needs, we consider both (1) the general

needs of law enforcement and (2) the specific needs of the officers under the

circumstances of the search. Id. at 946–47. Put differently, “we look to the

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 needs of the officers to act in a general way”—e.g., to combat drunk driving—

and “we also look to the needs of the officers to act in the particular way and at

the particular time they did.” Id. In considering law enforcement needs in a

more specific way, “we take a practical approach and do not require officers to

undertake duplicative tasks.” Id. at 947 (giving the example of requiring officers

to obtain an independent warrant to test evidence they already lawfully seized).

[35] In this case, law enforcement needed to preserve evidence to help combat drunk

driving. Of course, because Cobb—the sole vehicle occupant—was in police

custody, there was not an especially high risk of someone driving off with the

evidence. Cf. Myers v. State, 839 N.E.2d 1146, 1153–54 (Ind. 2005) (upholding a

search of a vehicle based in part on elevated law enforcement needs when the

vehicle’s owner was not under arrest and might have driven the vehicle away).

Thus, under the circumstances at hand, law enforcement did not have a

considerable need to conduct a warrantless roadside search of the vehicle.

[36] Balancing the three Litchfield factors based on the totality of the circumstances,

we conclude that the vehicle search was reasonable—especially in light of the

extremely high degree of suspicion that evidence of a crime was in the vehicle.

II. Recorded Calls
[37] Cobb argues that the trial court erred in admitting the recorded phone calls

because the evidence was not relevant and, even if the evidence was relevant,

the evidence was subject to exclusion because it was unfairly prejudicial.

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[38] As to relevance, Indiana Evidence Rule 402 provides that “[i]rrelevant evidence

is not admissible.” Moreover, under Rule 401, “[e]vidence is relevant if: (a) it

has any tendency to make a fact more or less probable than it would be without

the evidence; and (b) the fact is of consequence in determining the action.”

[39] Here, the challenged evidence indicated that on June 29, 2022—the day after

the trial court denied Cobb’s motion to suppress—Cobb called Yvonne and the

two spoke about the ruling. Cobb said he “got the ruling on the gun yesterday”

and would soon be going to trial. State’s Ex. 4A at 1:05–1:22. Cobb said that

someone suggested to “holler at” Yvonne. Id. at 2:45–3:00. Cobb told Yvonne:

“I told him you had a lot going on, but I guess I’ll try.” Id. at 2:59–3:04.

[40] The challenged evidence also indicates that Cobb called Yvonne the next day.

At the beginning of the call, an automated message stated that the call was from

an inmate at Lake County Jail. State’s Ex. 4 at :02–:05. Cobb told Yvonne that

he was “going to be frank and very direct” and choose his words “correctly.”

Id. at :38–:48. Cobb said he spoke with his lawyer and “tried to have this

matter resolved differently,” but he “was unable to.” Id. at :50–1:12. Cobb

said: “This was the time I needed you.” Id. at 3:00–3:04. He also said: “I was

really done with goofy shit; I was done.” Id. at 5:02–5:07. Cobb went on to

say: “That’s your right. You decided to do what you want, but man, if there

was ever a time I needed you. . . . This is it. This is it.” Id. at 5:56–6:22.

[41] On appeal, Cobb asserts that his statements in the calls “were generalities” and

that at no point “did [he] ask Yvonne . . . to come and testify or ask her to take

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 responsibility of the firearm.” Appellant’s Br. p. 17. Cobb also argues that, to

the extent the State claimed the statements were relevant to Cobb’s “‘mental

state’ of how he is thinking and feeling,” “what [he] was thinking on June 29

and June 30, 2022, nearly ten months from the date of the incident, has . . . no

relevance on whether he knowingly or intentionally possessed a firearm.” Id.

[42] The State responds that the testimony was relevant because “[t]hese calls

supported an inference that Cobb was attempting to influence Yvonne’s

testimony, if she chose to testify.” Appellee’s Br. p. 26. For this proposition,

the State directs us to Grimes v. State, wherein the Indiana Supreme Court

stated: “Any testimony tending to show an accused’s attempt to conceal

implicating evidence or to manufacture exculpatory evidence may be

considered by the trier of fact as relevant[.]” 450 N.E.2d 512, 521 (Ind. 1983).

The Indiana Supreme Court explained that this type of evidence is relevant in a

criminal matter because the evidence “reveal[s] a consciousness of guilt.” Id.

[43] In his Reply Brief, Cobb cursorily states that “[t]he phone calls did not tend to

prove any material fact more or less probable[.]” Reply Br. p. 4. Yet, Cobb

makes no attempt to distinguish Grimes. See id. In light of the Indiana Supreme

Court’s analysis in Grimes, we conclude that the challenged evidence has at least

some tendency to indicate that Cobb was conscious of his guilt and trying to

manufacture exculpatory testimony. We therefore conclude that the trial court

did not abuse its discretion in determining that the recorded phone calls were

relevant. See Ind. Evidence Rule 401 (“Evidence is relevant if: (a) it has any

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 tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.”).

[44] We turn to Cobb’s contention that, despite being relevant, the recorded phone

calls were subject to exclusion because the evidence was unfairly prejudicial.

Under Indiana Evidence Rule 403: “The court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of . . . unfair

prejudice[.]” The risk of unfair prejudice relates to “the capacity of the

evidence to persuade by illegitimate means, or the tendency of the evidence to

suggest [making a] decision on an improper basis.” Hall v. State, 177 N.E.3d

1183, 1193 (Ind. 2021) (quoting D.R.C. v. State, 908 N.E.2d 215, 224 (Ind.

2009)). Because “all relevant evidence is ‘inherently prejudicial’ in a criminal

prosecution,” the weighing test under Evidence Rule 403 “boils down to a

balance of probative value against the likely unfair prejudicial impact . . . the

evidence may have on the jury.” Id. at 1194 (quoting Richmond v. State, 685

N.E.2d 54, 55–56 (Ind. 1997)). Furthermore, we afford our “[t]rial courts . . .

wide latitude in weighing probative value against the danger of unfair

prejudice.” Id. at 1193.

[45] As to the probative value of the evidence, as earlier noted, the challenged

evidence reasonably indicates that Cobb was conscious of his guilt and trying to

manufacture exculpatory testimony. Turning to the risk of unfair prejudice,

Cobb points out that, because of the evidence, the jury was aware Cobb had

been incarcerated. Yet, Cobb directs us to no caselaw regarding the risk of

prejudice arising from the jury’s awareness that the accused was at one point

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 incarcerated. Regarding prejudice, Cobb also asserts that the challenged

evidence contains his statement that he was “done with this goofy shit,” State’s

Ex. 4A at 5:02–5:07—a statement Cobb claims was unfairly prejudicial because

it “referred to [his] lifestyle,” Appellant’s Br. p. 17. However, we conclude that

the trial court was well within its discretion to regard this brief, vague statement

as presenting a relatively low risk of unfair prejudice under the circumstances.

[46] Ultimately, in light of a trial court’s wide latitude in weighing the probative

value of the proffered evidence against the danger of prejudice, we cannot say

the trial court erred in declining to exclude these phone calls under Rule 403.

III. Video Clip
[47] Cobb argues that the trial court erred by excluding Defendant’s Exhibit 4, a

video clip that showed part of his roadside encounter with law enforcement.

Cobb claims that, despite the State’s hearsay objection, the evidence should

have been admitted because the evidence “was not offered for the truth of the

matter asserted[.]” Appellant’s Br. p. 18. Rather, Cobb claims that the

evidence was offered to help the jury “determine whether [his] speech was

slurred as Officer Fields had . . . described.” Id.

[48] Whenever the trial court’s evidentiary ruling excludes evidence, a party

preserves a challenge to that ruling only if the party “informs the court of [the]

substance [of the evidence] by an offer of proof, unless the substance was

apparent from the context.” Evid. R. 103(a)(2). Here, Cobb made an offer of

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 proof, and the court said it would retain Cobb’s exhibit for that purpose. Tr.

Vol. IV p. 186. Thus, Cobb preserved a claim of error at the trial court level.

[49] Despite properly preserving his claim of error before the trial court, Cobb failed

to ensure that a copy of Defendant’s Exhibit 4 was transmitted on appeal. As

this court recently noted, “it is the appellant’s burden to provide us with an

adequate record to permit meaningful appellate review.” Martinez v. State, 82

N.E.3d 261, 263 (Ind. Ct. App. 2017), trans. denied. Here, we acknowledge that

Cobb requested the trial exhibits in his Notice of Appeal. However, when the

exhibit volumes prepared for this appeal ultimately did not contain Defendant’s

Exhibit 4, it was Cobb’s obligation to seek supplementation of the record. See

id. (discussing the appellant’s burden to obtain the record, which—whenever

necessary—includes preparing a statement of evidence under Appellate Rule

31). And to the extent Cobb did not discover the omission of the exhibit until

his briefing deadline loomed, Cobb could have sought an extension of time. See

Ind. Appellate Rule 35(A) (“Any motion for an extension of time shall be filed

at least seven (7) days before the expiration of time unless the movant was not then

aware of the facts on which the motion is based.” (emphasis added)).

[50] Because Cobb failed to provide Defendant’s Exhibit 4 or otherwise address the

omission of this exhibit from the appellate exhibit volumes, we conclude that

Cobb waived his claim that the trial court erred in excluding the exhibit. See

Martinez, 82 N.E.3d at 263 (identifying appellate waiver due to a failure to

obtain part of the record “integral to our review of [the] arguments”).

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 IV. Proposed Jury Instruction
[51] Cobb claims the trial court erred by failing to give his proposed “reasonable

theory of innocence” jury instruction regarding the burden of proof. According

to Cobb, the nature of the State’s evidence supported giving this instruction.

[52] “Trial courts generally enjoy considerable discretion when instructing a jury.”

Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020). When the appellant

claims the evidence supported giving a particular jury instruction, we generally

review the court’s decision for an abuse of discretion. Id.; see Hampton v. State,

961 N.E.2d 480, 490 (Ind. 2012). However, to the extent the decision turned

on a question of law, our review is de novo. See Humphrey, 151 N.E.3d at 1207.

[53] Here, Cobb asked the trial court to include the following jury instruction known

as the “reasonable theory of innocence” instruction: “In determining whether

the guilt of the accused is proven beyond a reasonable doubt, you should

require that the proof be so conclusive and sure as to exclude every reasonable

theory of innocence.” Ind. Pattern Crim. Jury Inst. 13.1000. This instruction is

proper only “[w]hen the trial court determines that the defendant’s conduct

required for the commission of a charged offense, the actus reus, is established

exclusively by circumstantial evidence[.]” Lewis v. State, 34 N.E.3d 240, 246

(Ind. 2015) (emphasis added) (quoting Hampton, 961 N.E.2d at 491).

[54] Circumstantial evidence is evidence “based on inference and not on personal

knowledge or observation.” Hampton, 961 N.E.2d at 489 (quoting Black’s Law

Dictionary 636 (9th ed. 2009)). In contrast, direct evidence is evidence “based

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 on personal knowledge or observation and that, if true, proves a fact without

inference or presumption.” Id. Put differently: “Direct evidence means

evidence that directly proves a fact, without an inference, and which in itself, if

true, conclusively establishes that fact. Circumstantial evidence means

evidence that proves a fact from which an inference of the existence of another

fact may be drawn.” Id. (quoting Gambill v. State, 675 N.E.2d 668, 675 (Ind.

1996)). For example, “footprints or fingerprints that place an accused at the

scene of a crime may be direct evidence of the accused’s presence at some point

in time but only circumstantial proof that the accused committed the charged

offense.” Id. at 489–90; see also id. at 490 n.8 (providing additional examples

and explanation, noting that “[t]he complexities of distinguishing direct from

circumstantial evidence have received considerable academic attention”).

[55] In arguing that the trial court erred in refusing to give the “reasonable theory of

innocence” instruction, Cobb focuses only on the firearm-related offense. As to

this offense, he claims the instruction was proper because the State proved the

actus reus—possession of the firearm—exclusively by circumstantial evidence.

[56] “‘[P]ossession’ . . . can be either actual or constructive.” Sargent v. State, 27

N.E.3d 729, 732–33 (Ind. 2015). “Actual possession occurs when a person has

direct physical control over the item.” Id. at 733. Constructive possession

occurs “when the person has (1) the capability to maintain dominion and

control over the item; and (2) the intent to maintain dominion and control over

it.” Id. (quoting Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011)).

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[57] Cobb asserts that the State pursued a theory that he constructively possessed the

firearm. He suggests that, whenever the State pursues a theory of constructive

possession, the State necessarily relies exclusively on circumstantial evidence to

prove possession. Yet, as the State points out on appeal, among the evidence of

Cobb’s constructive possession of the firearm was testimony from Officer Fields

about the location of the firearm in the vehicle Cobb was driving. That is,

Officer Fields testified that he saw the firearm positioned such that it was

“pretty easily able to be grabbed” from the driver’s seat. Tr. Vol. IV p. 83.

Officer Fields also testified that Cobb had occupied the driver’s seat, and there

were no other occupants in the vehicle. The testimony from Officer Fields was

direct evidence that Cobb had the capability to maintain dominion and control

over the firearm—a matter the State was trying to prove. See, e.g., Sargent, 27

N.E.3d at 733 (noting there are two types of possession and one occurs when a

person has the capability and the intent to maintain dominion and control over

an item). Thus, the State did not exclusively rely on circumstantial evidence in

proving that Cobb possessed the firearm.

[58] Because the State did not exclusively rely on circumstantial evidence to prove

the actus reus of the firearm-related offense, we cannot say the trial court

abused its discretion in declining to give the proposed jury instruction.

Conclusion
[59] The trial court did not abuse its discretion in admitting evidence from the

warrantless search of Cobb’s vehicle, nor did the trial court abuse its discretion

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 in admitting the recorded phone calls. As to the exclusion of the video clip,

Cobb waived his appellate challenge by failing to ensure the proffered evidence

was transmitted on appeal. Finally, the trial court did not abuse its discretion in

declining to give the proposed “reasonable theory of innocence” jury instruction

when there was direct evidence to prove Cobb’s possession of the firearm.

[60] Affirmed.

Altice, C.J., and May, J., concur.

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