Full Opinion

IN THE Court of Appeals of Indiana Tremain Vanness Cabell, Appellant-Defendant FILED Oct 01 2026, 8:55 am CLERK v. Indiana Supreme Court Court of Appeals and Tax Court State of Indiana, Appellee-Plaintiff October 1, 2026 Court of Appeals Case No. 25A-CR-2719 Appeal from the Vanderburgh Circuit Court The Honorable Ryan Reed, Magistrate Judge Trial Court Cause No. 82C01-2312-F3-7830 Opinion by Judge May Judges Mathias and Felix concur. Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 1 of 14 May, Judge. [1] Tremain Vanness Cabell appeals following his conviction of Level 3 felony neglect of a dependent1 and an adjudication as a habitual offender.2 Cabell raises three issues for our review, but we find one dispositive: whether Cabell’s rights to be present at his trial and to confront the witnesses against him were violated when he was not transported from the jail on the morning of the third day of his trial. We reverse and remand. Facts and Procedural History [2] M.H. was born in 2018, and Cabell is his father. M.H. “is a medically fragile child[.]” (Tr. Vol. 3 at 57.) His medical ailments include osteopenia, a disease characterized by weak bones, and spastic cerebral palsy. M.H. requires a tracheostomy tube to breathe and a feeding tube for nutrition. He is wheelchair dependent and has “developmental delays that are fairly profound such that he functions more in an infantile state.” (Id.) [3] M.H. lived with Cabell intermittently between January 2020 and April 2022, and he was repeatedly hospitalized because of injuries he received while in Cabell’s care. These injuries included broken bones, significant bruising, and the removal of M.H.’s surgically installed feeding tube. Dr. Cortney Demetris, a pediatric hospitalist and child abuse pediatrician at the Peyton Manning 1 Ind. Code § 35-46-1-4(a), (b)(2) (2021). 2 Ind. Code § 35-50-2-8 (2017). Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 2 of 14 Children’s Hospital, repeatedly examined and monitored M.H. during that period, and she concluded that some of the injuries M.H. received, including a subdural hematoma, were intentionally inflicted. She also suspected M.H. was the victim of medical neglect because Cabell “presented to the hospital without standard lifesaving medical equipment that would be necessary for a child who has the trach tube” and was not able to provide basic medical information regarding M.H. (Id. at 61.) In-home nursing staff observed Cabell lose his temper and become frustrated with M.H., and one nurse witnessed Cabell hit M.H.’s hands while changing M.H.’s diaper. In addition, the pharmacy was often unable to deliver medicine to M.H. because no one would answer the door when the pharmacy’s delivery driver went to the house. In April 2022, M.H. was removed from Cabell’s care for the final time and placed in foster care. M.H.’s foster parents eventually adopted him. [4] The State charged Cabell with Level 3 felony neglect of a dependent and Level 3 felony domestic battery with serious bodily injury to a person under 14 years old3 and alleged that Cabell was a habitual offender. Cabell’s jury trial began on August 25, 2025. Cabell was incarcerated in the Vanderburgh County Jail at the time of his trial, and the Vanderburgh County Sheriff’s Office transported Cabell from the jail to the courthouse for the first two days of his trial. Cabell was present and nondisruptive during those two days. 3 Ind. Code § 35-42-2-1.3(a)(1), (e) (2021). Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 3 of 14 [5] At the jail on the morning of the third day of Cabell’s trial, he asked a jailer for time to get ready before being transported to court, and the jailer’s response was “[m]ore or less no and he didn’t care about the trial.” (Id. at 221.) The jailer then “grabbed [Cabell], throws [Cabell’s] hand behind [his] back and cuffed [Cabell] and just proceeding with aggression. [Cabell] didn’t want to go down them steps with cuffs on so [he] was like just put me in my cell[.]” (Id.) (errors in original). The jailer put Cabell back in his cell. At some point, a jailer came to Cabell’s cell and asked him if he intended to go to court, and Cabell “was like I would still have to get out, I mean I’m in a two-man, so I mean he has the key.” (Id. at 222.) Cabell was not released from his cell, and the jailer did not inform Cabell of the potential consequences of his failure to appear at trial. The sheriff’s office did not transport Cabell from the jail to the courthouse. [6] At the beginning of the third day of trial and outside the presence of the jury, the trial court explained: [W]e are here day three of the jury trial that commenced on Monday, the sheriff’s deputy this morning when I first got here notified me that Mr. Cabell was not wanting to be transported down to the courthouse to participate in the proceedings, at that point I asked the deputy to send a message out to the jail staff to let Mr. Cabell know that the trial would proceed, he has the right to be here and I’m encouraging him to be here, and the trial would proceed if he chose not to be here. [Cabell’s counsel] was obviously notified that he had not been transported. After that message was sent out there Mr. Cabell again refused to transport down to the courthouse to participate in the proceedings. [Cabell’s counsel] at that point asked to try to talk to him privately on the phone so we coordinated a phone call out at the Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 4 of 14 Vanderburgh County Jail and we were notified by the Vanderburgh County Jail staff that Mr. Cabell was not willing to talk on the phone and notified that he would talk but only if [Cabell’s counsel] went physically out to the jail. (Id. at 131.) Cabell’s counsel stated that he had not had the opportunity to speak with Cabell that morning and asked to be allowed to drive to the jail so that he could meet with Cabell and advise him regarding his right to be present at trial. Cabell’s counsel explained he did not know how the jail staff relayed the message from the court to Cabell and he did not believe Cabell adequately understood “how that constitutional right will apply or how it could be used against him or for him[.]” (Id. at 132.) The trial court denied Cabell’s counsel’s request for a brief continuance to drive to the jail and meet with Cabell, but the trial court did allow for a brief recess to attempt to facilitate a video conference between Cabell and his counsel. However, a video conference between Cabell and his counsel did not occur. [7] After the recess, the trial court made an additional record: Back on the record, still outside the presence of the jurors, we’ve had an opportunity here for the deputy in the courtroom to reach out to the jail to try to coordinate a private video visit or go into the video courtroom to go into the private telephone conference room at that point to talk to [Cabell’s counsel], he’s refusing to leave the housing unit and not cooperating with trying to get that together. (Id. at 135.) Cabell’s counsel argued that it was still not clear Cabell understood “what his constitutional rights are and how it would be, how we would proceed Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 5 of 14 without him if he chooses to continue this position.” (Id.) Cabell’s counsel asked again that he be allowed to go to the jail to meet with Cabell or that the trial court require some sort of written acknowledgement from Cabell that he intended to waive his right to be present before continuing with Cabell’s trial. The trial court denied Cabell’s counsel’s requests and ruled the third day of trial would proceed in Cabell’s absence. [8] When the jury was seated inside the courtroom, the trial court advised the jury regarding Cabell’s absence: Members of the jury, a defendant has the right obviously to be at a jury trial, they also have the right not to participate in a jury trial okay, Mr. Cabell has chosen not to participate and so I wanted to let you know that you cannot comment on that in any way, it doesn’t change anything about the burden or anything like that, we’re going to proceed with the trial and then you’ll obviously receive instructions and final instructions but you’re not to comment on that during your breaks or during deliberations; okay. (Id. at 138.) The State then presented testimony from three witnesses before the lunch recess. Cabell’s counsel went to the jail over the lunch recess and met with Cabell, and Cabell was transported to the courthouse for the afternoon session of his trial. Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 6 of 14 [9] Before the afternoon session began, Cabell testified regarding his absence during the morning session4 and moved for a mistrial. Cabell explained that the jail staff did not allow him to leave his cell to go to court or to speak with his attorney. The State did not cross-examine Cabell or present any witnesses, but it argued that the trial court should deny Cabell’s motion. The State asserted: [W]e’ve got no evidence of anything other than what Mr. Cabell is saying because earlier this morning I don’t know if all of this was on record but there were several phone calls where the information relayed was that Mr. Cabell was the problem, that he was causing the issues, so that he was being aggressive and I would add that further we’ve had multiple witnesses during this trial state that he can be aggressive and he can be difficult to deal with[.] (Id. at 224-25.) [10] The trial court denied Cabell’s motion for a mistrial and explained: This morning before we got started the Court did make a record regarding the efforts that I personally asked our staff to complete to attempt to get Mr. Cabell here, obviously I’m going to rely on our staff and that they did that, I was not the one that did it, but the Court is going to take that into consideration, obviously take Mr. Cabell’s statements that he’s made here today this afternoon into consideration. Weighing all of it the Court is going to deny the request for a mistrial on that basis and proceed with the defense’s case in chief. 4 The substance of Cabell’s testimony has been presented above in Paragraph 5. Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 7 of 14 (Id. at 225-26.) Cabell’s trial proceeded, and the jury returned a verdict finding Cabell guilty of both Level 3 felony neglect of a dependent and Level 3 felony domestic battery. Cabell then admitted he was a habitual offender. The trial court vacated Cabell’s Level 3 felony domestic battery conviction to avoid double jeopardy and sentenced Cabell to nine years with respect to the Level 3 felony neglect of a dependent conviction and enhanced that sentence by an additional eight years because of the habitual offender finding, for an aggregate sentence of seventeen years. Discussion and Decision [11] Cabell asserts that his constitutional rights were violated when he was not transported to the courthouse on the third day of trial, and therefore, the trial court erred in denying his motion for a mistrial. Trial courts enjoy considerable discretion when ruling on a motion for a mistrial, and we generally review a trial court’s denial of a motion for a mistrial for an abuse of discretion. Jarrett v. State, 160 N.E.3d 526, 534-35 (Ind. Ct. App. 2020), trans. denied. Nonetheless, we review claims of constitutional error de novo. Wilson v. State, 280 N.E.3d 1280, 1284 (Ind. 2026). [12] Both the Sixth Amendment to the United States Constitution and Article 1, section 13 of the Indiana Constitution guarantee criminal defendants the right to be present at all stages of their trials. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). These constitutional provisions also grant criminal defendants the right to confront the witnesses against them. Galloway v. State, 188 N.E.3d 493, Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 8 of 14 498 (Ind. Ct. App. 2022), trans. denied. The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .” Likewise, Article 1, section 13 of the Indiana Constitution provides: “In all criminal prosecutions, the accused shall have the right . . . to meet the witnesses face to face . . .” The confrontation rights provided in the Indiana and federal constitutions “are co-extensive to a considerable degree.” Galloway, 188 N.E.3d at 498. However, “[t]he Indiana Constitution’s confrontation right ‘has a special concreteness and is more detailed’ than the federal right. ‘A face-to-face meeting occurs when persons are positioned in the presence of one another so as to permit each to see and recognize the other.’” Johnson v. State, 275 N.E.3d 1, 6 (Ind. Ct. App. 2025) (quoting Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991)), trans. denied. [13] “Denial of a defendant’s substantive right to be present and heard at trial is fundamental error and, if not rectified, constitutes denial of fundamental due process.” Ellis v. State, 525 N.E.2d 610, 611 (Ind. Ct. App. 1987). “A defendant may, however, lose the right to be present at trial by consent or misconduct.” Partee v. State, 184 N.E.3d 1225, 1234 (Ind. Ct. App. 2022), trans. denied. If the defendant chooses to waive his right to be present at trial, “the waiver must be voluntarily, knowingly, and intelligently made.” Ellis, 525 N.E.2d at 611. The trial court may infer that a defendant has knowingly and voluntarily waived his right to be present if the defendant is not present for his scheduled trial date and there is evidence the defendant knew of the scheduled trial date and failed to notify the court or provide an explanation for his Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 9 of 14 absence. McGraw v. State, 241 N.E.3d 1175, 1184 (Ind. Ct. App. 2024), trans. denied. Nonetheless, if a defendant later appears after being tried in absentia and wishes to explain his absence, “the trial court must afford [the] defendant the opportunity to present evidence that his absence was not voluntary[.]” Holtz v. State, 858 N.E.2d 1059, 1062-63 (Ind. Ct. App. 2006), trans. denied. [14] Cabell asserts that the “undisputed” evidence before the trial court was that his absence during the morning session of the third day of his trial was involuntary “because the jail did not transport him.” (Appellant’s Br. at 12.) In Wells v. State, Wells appeared intoxicated when he arrived at court on the day of his initial trial setting. 176 N.E.3d 977, 979 (Ind. Ct. App. 2021). Wells took a drug test, and the test revealed a high level of marijuana in Wells’ system. Id. The trial court vacated the initial jury trial setting and reset the trial for a later date. Id. at 979-80. The trial court warned Wells that if he tested positive for drugs on the day of his second jury trial setting, the court would hold the trial in his absence. Id. at 980. Wells tested positive for marijuana the morning of his rescheduled trial, and the trial court excluded him from his trial. Id. at 980-81. The jury convicted Wells of Class A misdemeanor invasion of privacy 5 in his absence, but we reversed the conviction. Id. at 986. Wells was present on the day of his rescheduled trial, and he did not forfeit his right to be present through his conduct because there was “no evidence that Wells engaged in any 5 Ind. Code § 35-46-1-15.1 (2017). Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 10 of 14 disruptive conduct on the day of his rescheduled trial; and the trial court entered no such findings.” Id. at 985. In addition, “the trial court failed to identify Wells’ behavior that would indicate that Wells did not have the ability to behave on the day of his trial.” Id. at 986. By simply excluding Wells from trial following the positive drug test, the trial court failed to “employ available measures to protect Wells’ fundamental right to be present.” Id. at 985. Therefore, we held that excluding Wells from his trial violated his rights under the Sixth Amendment and Article 1, section 13 of the Indiana Constitution. Id. at 986. [15] Like the defendant in Wells, the evidence in the record indicates Cabell was not voluntarily absent on the third day of trial. Cabell testified that he asked to be returned to his cell to avoid injury following an unprovoked assault by a jailer and that jail staff did not allow him out of his cell to go to court or to communicate with his attorney. The State presented no evidence countering Cabell’s account. Rather, the State simply directed the trial court to information relayed to the court through off-the-record phone conversations. However, there is no record of who specifically relayed the information, what exactly those individuals said, or whether they had firsthand knowledge of the events they were relaying. In addition, those statements were not made under oath or subject to cross-examination. See Ind. Evid. R. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”); Ind. Evid. R. 802 (“Hearsay is not admissible unless these rules or other law provides Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 11 of 14 otherwise.”); & Ind. Evid. Rule 603 (“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.”). [16] In Shabazz v. State, our Indiana Supreme Court held the trial court abused its discretion when it overruled Shabazz’s objection and allowed a witness to testify remotely pursuant to Interim Administrative Rule 14(C).6 274 N.E.3d 114, 117 (Ind. 2026). In that case, the State requested that the witness be allowed to testify virtually because the witness was incarcerated in a prison four hours away from the courthouse and “the county jail lacked ‘the resources’ to transport him to trial[.]” Id. at 118. However, the Court concluded that the mere assertion by counsel of a lack of resources to transport the witness was insufficient to establish good cause for the witness to testify remotely under the Administrative Rule. Id. at 122. The Court explained that good cause under Rule 14(C) requires the State to “present case-specific evidence that allowing a particular witness to testify remotely is necessary to prevent a concrete and substantial harm that would otherwise likely occur and that could not be adequately addressed if the witness were to testify in person.” Id. at 120. Without case-specific evidence, “the defendant is left with little meaningful opportunity to test the factual basis for the claimed necessity. And without 6 Interim Administrative Rule 14(C) states: “A court must conduct all testimonial proceedings in person except that a court may conduct the proceedings remotely for all or some of the case participants for good cause shown or by agreement of the parties. Remote proceedings must comply with constitutional and statutory guidelines.” Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 12 of 14 adversarial testing of that necessity, the trial court lacks the factual context required to determine whether remote testimony is truly necessary.” Id. at 121. Likewise, the State failed to produce case-specific evidence, and Cabell was left without an opportunity to meaningfully contest the factual basis underlying the State’s assertion that he refused to be transported to court. Because the only testimony before the trial court was that jail staff prevented Cabell from attending the third day of his trial, it was a violation of Cabell’s constitutional rights to try him in absentia. See, e.g., Wells, 176 N.E.3d at 986 (Ind. Ct. App. 2021) (holding trial court committed fundamental error when it excluded defendant from his trial). [17] The State does not argue that such error was harmless, and we do not need to analyze whether the error was harmless. In addition, the trial court’s statement to the jury the morning of the third day of trial that Cabell chose not to participate in his trial—when there was no proof on the record that his absence was voluntary—deepened the prejudice already caused by his absence. Therefore, we reverse Cabell’s conviction. Because we reverse for a reason other than the sufficiency of the evidence supporting Cabell’s conviction, double jeopardy does not bar retrial, and we remand for further proceedings consistent with this opinion. See, e.g., Hogg v. State, 231 N.E.3d 884, 893 (Ind. Ct. App. 2024) (holding double jeopardy did not bar retrial after appellate court reversed defendant’s conviction because of material variance between the charging information and the evidence presented at trial). Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 13 of 14 Conclusion [18] Cabell’s constitutional rights were violated when the trial court tried him in absentia after jail staff prevented him from attending his trial. Therefore, we reverse Cabell’s conviction and remand for further proceedings consistent with this opinion. [19] Reversed and remanded. Mathias, J., and Felix, J., concur. ATTORNEY FOR APPELLANT Yvette M. LaPlante LaPlante Legal, LLC Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana Court of Appeals of Indiana | Opinion 25A-CR-2719| October 1, 2026 Page 14 of 14