Jacob Fuller v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be Jul 10 2013, 5:32 am

regarded as precedent or cited before

any court except for the purpose of

establishing the defense of res judicata,

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DAVID W. STONE, IV GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JACOB FULLER, )

)

Appellant-Defendant, )

)

vs. ) No. 48A02-1210-CR-848

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable David A. Happe, Judge

Cause No. 48C01-1103-MR-434

July 10, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge

Case Summary

Jacob Fuller (“Fuller”) appeals his convictions and sentences for two counts of

Murder, a felony,1 and one count of Robbery, as a Class A felony.2 We affirm.

Issues

Fuller presents five issues for review:

I. Whether there was a fatal variance between the charging information

and the evidence presented at trial;

II. Whether the trial court abused its discretion in admitting evidence not

timely disclosed by the State in discovery;

III. Whether the prosecutor committed misconduct by calling a witness for

the sole purpose of impeaching his testimony;

IV. Whether improper closing argument constituted fundamental error; and

V. Whether Fuller’s sentence is a product of an abuse of discretion or is

inappropriate.

Facts and Procedural History

In November of 2010, Keya Prince (“Prince”) and Stephen Streeter (“Streeter”) lived

on Menifee Street in Anderson, Indiana. When a neighbor approached the residence on

November 29, 2010, she detected a foul odor emanating from an open window. Police were

summoned to conduct a welfare check. After entering the residence, they found the bodies of

Prince and Streeter. Prince had died of a gunshot through her torso, piercing her heart.

Streeter had died of a gunshot to his head. Televisions and electronic equipment were

missing from the house. Also missing was a large amount of cash that Streeter had recently

possessed.

1

Ind. Code § 35-42-1-1. This section has since been re-codified. We refer to the statute in effect at the time of

the offense.

2

I.C. § 35-42-5-1. This section has since been re-codified. We refer to the statute in effect at the time of the

offense.

2

In the very early morning of the next day, Anderson Police Officer Ian Spearman

(“Officer Spearman”) was patrolling a neighborhood when he stopped Fuller and his

companion, Na-son Smith (“Smith”) on suspicion of a curfew violation. Smith initially

provided a false name. Meanwhile, Anderson Police Officer Brandon Grant (“Officer

Grant”) had been advised of a 9-1-1 call from the same neighborhood. A citizen had

reported seeing a young man toss away a gun as Officer Spearman approached. Officer

Grant radioed Officer Spearman to use extreme caution. He also advised as to the correct

identity of Fuller’s companion. Fuller and Smith were placed under arrest.

During the ensuing police investigation, Fuller was identified as the individual who

had been observed tossing a gun. The tossed gun was located, examined and determined to

have been the weapon that had fired a bullet into Prince’s body. Several witnesses reported

that Fuller, Smith, Martez Brown (“Brown”), and a fourth young man had been seen in

possession of large amounts of cash and had gone on a shopping spree. Eventually, Brown

gave a statement to police wherein he claimed that he had gone with Fuller and Smith to the

Prince-Streeter residence, where Fuller had shot Prince and Smith had shot Streeter.

The State alleged that Fuller, then fifteen years old, was a juvenile delinquent.

Jurisdiction was waived from the juvenile court and Fuller was charged with Murder,

Burglary,3 Robbery, and Theft.4 He was brought to trial on July 17, 2012. A jury acquitted

Fuller of Burglary and convicted him of the remaining charges. Due to double jeopardy

3

I.C. § 35-43-2-1. This statute has since been re-codified. We refer to the statute in effect at the time of the

offense.

4

I.C. § 35-43-4-2. This statute has since been re-codified. We refer to the statute in effect at the time of the

offense.

3

concerns, the trial court did not enter a judgment upon the Theft conviction and entered

judgment upon the Robbery conviction as a Class B felony. Fuller was then given

consecutive sentences of sixty-five years imprisonment for each of the Murder convictions

and twenty years imprisonment for the Robbery conviction, providing for an aggregate

sentence of one hundred fifty years. He now appeals.

Discussion and Decision

Variance Between Charging Information and Proof

The State first alleged that the crimes at issue were committed on or about November

27, 2010. Fuller filed a notice of alibi, giving notice that he “was at several locations on

November 27, 2010” and requesting greater specificity from the State. (App. 42.) On April

28, 2011, Fuller filed an amended notice of alibi stating that “he was at his home on the date

and at the time of the alleged offenses” and requesting a more specific statement of the

alleged time, date, and location. The State did not respond to the alibi notice or amended

alibi notice. However, in May of 2011, the information was amended to allege that the

crimes were committed “on or about November 29, 2010.” (App. 53.) The trial court denied

a final motion by the State to amend the charging information to allege that the crimes were

committed “on or between November 26, 2010 and November 29, 2010.” (App. 68.)

Indiana Code section 35-36-4-2 provides in relevant part:

When a defendant files a notice of alibi, the prosecuting attorney shall file with

the court and serve upon the defendant, or upon his counsel, a specific

statement containing:

(1) the date the defendant was alleged to have committed the crime; and

(2) the exact place where the defendant was alleged to have committed the

crime;

4

that he intends to present at trial. However, the prosecuting attorney need not

comply with this requirement if he intends to present at trial the date and place

listed in the indictment or information as the date and place of the crime.

Indiana Code section 35-36-4-3(b) concerns the consequences of the State’s lack of

response:

If at the trial it appears that the prosecuting attorney has failed to file and serve

his statement in accordance with section 2(a) of this chapter, and if the

prosecuting attorney does not show good cause for his failure, then the court

shall exclude evidence offered by the prosecuting attorney to show:

(1) that the defendant was at a place other than the place stated in the

information or indictment; and

(2) that the date was other than the date stated in the information or

indictment.

At trial, Fuller unsuccessfully objected to evidence relative to dates other than

November 29, 2010. He also moved for a mistrial and for directed verdicts, claiming that the

State should have been confined to offer proof of crimes occurring only on that specific date.

He now argues that the trial court abused its discretion by admitting all evidence of events

occurring outside November 29, 2010 and that he is entitled to a reversal of his convictions

on this basis. In essence, Fuller alleges a fatal variance between the proof at trial and the

charging information.

A variance is an essential difference between proof and pleading. Reinhardt v. State,

881 N.E.2d 15, 17 (Ind. Ct. App. 2008). When time is not an element of the crime charged,

or of the essence of the offense, the State is only required to prove that the offense was

committed during the statutory period of limitations; as such, the State is not required to

prove the offense occurred on the particular date alleged. Poe v. State, 775 N.E.2d 681, 686

(Ind. Ct. App. 2002), trans. denied. “[A]lthough time becomes of the essence when the alibi

5

statute has been invoked, it is also well settled that a variance, in order to be fatal, must be of

such substantial nature as to mislead the accused in preparing and maintaining his defense or

be of such a degree as is likely to place him in second jeopardy for the same offense.”

Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979).

In Sangsland v. State, 715 N.E.2d 875, 879 (Ind. Ct. App. 1999), trans. denied, a panel

of this Court explained that the mere filing of an alibi notice does not require the State to

prove, as an element of the offense, that the crimes occurred on a specific date:

Although our supreme court has stated that the filing of a notice of alibi

defense makes the time of the offense critical or ‘of the essence,’ it has also

made clear that the mere filing of an alibi defense does not impose a greater

burden of proof on the State than would be otherwise required absent such a

filing. . . . [T]he mere fact that a defendant raises an alibi defense does not

necessarily make time an essential element of an offense. However, where the

State’s answer to the notice of alibi and evidence points exclusively to a

specific date, and the defendant presents a defense based on that date, the

jury’s consideration of the defendant’s guilt should be restricted to that date.

Here, Fuller filed alibi notices to which the State filed no response. The charging

information, as finally amended, alleged that Fuller had committed crimes “on or about”

November 29, 2010 as opposed to one specific date. (App. 53.)

The State’s evidence at trial was not inconsistent with this allegation. The victims

were found on November 29, 2010, and had evidently been dead for a few days, based upon

the condition of the bodies, the last known communications with the victims, and the timing

of Fuller’s shopping spree. Because the challenged evidence concerned events that occurred

“on or about” November 29, 2010 – that is, they occurred in the preceding days – there was

no variance between the charging information and the proof at trial. See Poe, 775 N.E.2d at

6

686-87 (charging information that alleged a crime occurred on or about June 23, 2000 did not

limit the State to only the events of June 23, 2000). See also Sisson v. State, 985 N.E.2d 1,

12 (Ind. Ct. App. 2012) (State’s failure to narrow the time frame – the entire month of June –

in response to an alibi notice was not fundamental error), trans. denied.

We also observe that Fuller’s alibi notice and amended alibi notice did not reference

November 29, 2010. In those notices, Fuller claimed to have an alibi for November 27,

2010. However, the defense testimony produced at trial was directed toward events of

November 29, 2010. Fuller’s mother, Doris Fuller, testified that she awoke at 5:00 a.m. and

checked on Fuller. When she left for work at 5:30 to 6:00 a.m., Fuller was still home.

According to Doris, when she returned at 3:30 to 4:00 p.m., she saw Fuller walking down the

street near her house. She lacked knowledge of his whereabouts just prior to that encounter.

This testimony would, at best, comprise a partial alibi for November 29, 2010, a date

different from that referenced in Fuller’s notices.

As such, the admission of the State’s evidence at trial as to dates other than November

29, 2010 did not contravene statutory authority; nor did it circumvent Fuller’s opportunity to

present an alibi defense. We find no reversible error in this regard.

Alleged Discovery Violations

Fuller contends that the trial court abused its discretion by admitting evidence that the

State had failed to timely and fully disclose to the defense pursuant to the trial court’s

discovery order. In particular, he claims that photographs obtained from his cellular

7

telephone should have been excluded and that one of the State’s witnesses, Wal-Mart loss

prevention employee Dottie Hart (“Hart”), should not have been permitted to testify.

A trial court exercises broad discretion in ruling on the admissibility of evidence, and

an appellate court should disturb its ruling only where it is shown that the court abused its

discretion. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009). Generally, the admission or

exclusion of evidence will not result in a reversal on appeal absent a manifest abuse of

discretion that results in the denial of a fair trial. Dorsey v. State, 802 N.E.2d 991, 993 (Ind.

Ct. App. 2004). The primary factors that a trial court should consider when it addresses a

claimed discovery violation are whether the breach was intentional or in bad faith and

whether substantial prejudice has resulted. Cain v. State, 955 N.E.2d 714, 718 (Ind. 2011).

When Fuller was arrested, his cellular telephone was confiscated. At the beginning of

the trial, the State disclosed that a video had been retrieved from the telephone. On the final

day of the State’s case-in-chief, the prosecutor expressed an intention to offer photographs

derived from that video. The photographs, which had been taken in the afternoon of

November 27, 2010, depicted Fuller and two companions flashing large amounts of cash.

Fuller objected and requested exclusion of the photographs, claiming a discovery

violation.5 According to Fuller’s counsel, he had been shown a video clip at the outset of the

trial, but had not anticipated photographs from the video and was unable to investigate

5

This is not a circumstance in which the prosecutor failed entirely to disclose material and mitigating evidence,

and thus Fuller is not claiming a constitutional violation under Brady v. Maryland, 373 U.S. 83 (1963).

Fuller’s counsel advised the trial court that only a discovery violation was being alleged.

8

adequately.6 The trial court inquired of counsel whether he wanted to contact the cellular

service provider but counsel did not directly respond to the inquiry. Nor did counsel request

a continuance.

The State now argues that Fuller’s substantial rights were not prejudiced because he

had to have known what was in his own cellular telephone database and he did not avail

himself of the opportunity for further investigation during a continuance. Even assuming a

discovery violation, “the preferred remedy for a discovery violation is a continuance” and

“exclusion of evidence is only appropriate if the defendant show that the State’s actions were

deliberate or otherwise reprehensible, and this conduct prevented the defendant from

receiving a fair trial.” Cain, 955 N.E.2d at 718.

Here, there is no indication that the State engaged in deliberate or reprehensible action

denying Fuller a fair trial. It appears that, from argument presented to the trial court, Fuller

and his defense counsel were aware that the cellular telephone was in the State’s possession

since Fuller’s arrest. The defense made no request to examine it, even after the State

indicated that a video with evidentiary value had been discovered. We fail to discern how the

photographs derived from the video were potentially more prejudicial than the video. Indeed,

Fuller’s counsel did not accept the trial court’s offer to allow further investigation through

the cellular service provider. Fuller was not blind-sided by the State’s proffer of evidence or

6

It appears that the State obtained a search warrant to search Fuller’s cellular telephone for data around the

time that the trial commenced and advised Fuller of the video upon discovering it. There is no error when the

State provides a defendant with evidence as soon as the State is in possession of the evidence. Warren v. State,

725 N.E.2d 828, 832 (Ind. 2000). Accordingly, Fuller does not allege a discovery violation with respect to the

video in particular.

9

deprived of recourse. As such, he has failed to demonstrate that the trial court abused its

discretion by admitting the photographs.

Fuller also complains that the State was allowed to present Hart as a surprise witness.

At trial, Fuller requested a bench conference in anticipation of the State calling Hart as a

witness. Counsel stated that he had been able to “briefly talk with” Hart that morning, but

indicated he “would object as to the fact the witness was not disclosed prior to trial.” (Tr.

386.) The State responded that the supplemental witness list had included an entry for a Wal-

Mart loss-prevention employee, but at the time of disclosure the State was “still trying to

figure out what her last name was.” (Tr. 387.)

Over Fuller’s objection, Hart was permitted to testify. According to Hart, while she

was taking her lunch break on November 27, 2010 at a Subway restaurant inside Wal-Mart,

she encountered three “loud and obnoxious” teenagers with $100 bills. (Tr. 392.) She

identified Fuller as one of the group.

We are inclined to agree with Fuller that he could not have learned Hart’s identity and

conducted a pre-trial interview based upon generic notations in the supplemental witness list

of March 2011. She was in essence a surprise witness. Nonetheless, “[w]here a party fails to

timely disclose a witness, courts generally remedy the situation by providing a continuance

rather than disallowing the testimony.” Barber v. State, 911 N.E.2d 641, 646 (Ind. Ct. App.

2009). Here, no continuance was requested. Moreover, Fuller’s counsel was able to confer

with Hart just prior to her testimony. The testimony was brief and cumulative of other

10

testimony that Fuller and his companions had been in possession of a large amount of cash on

November 27, 2010. We cannot conclude that Fuller sustained substantial prejudice.

Mistrial for Improper Witness Impeachment

Brown was also charged with the murder of Prince and Streeter, but was to be tried

separately from Fuller. At Fuller’s trial, Brown was called as a witness for the State. In

anticipation of Brown’s testimony, Fuller objected that Brown would likely be asserting his

rights under the Fifth Amendment of the United States Constitution and the State was simply

calling him as a witness to impeach him. After a hearing outside the presence of the jury,

Brown was permitted to testify. In so doing, he repeatedly acknowledged but contradicted

his prior police statement. Fuller requested a mistrial, claiming that the prosecutor had

engaged in misconduct by calling Brown as a witness for the purpose of improper

impeachment and that a jury admonishment would be inadequate.

In reviewing a claim of prosecutorial misconduct, we determine (1) whether there was

misconduct by the prosecutor; and (2) whether that misconduct, under the circumstances,

placed the defendant in a position of grave peril to which the defendant should not have been

subjected. Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996). The gravity of peril turns on the

probable persuasive effect of the misconduct on the jury’s decision, not on the degree of

impropriety of the conduct. Id.

“[I]t is improper for the prosecutor to call as a witness a codefendant when the

prosecutor knows in advance that the witness will invoke the Fifth Amendment and refuse to

testify.” Borders v. State, 688 N.E.2d 874, 879 (Ind. 1997). Too, it is improper to call a

11

witness when the prosecutor knows that useful evidence will not be elicited. Although

Indiana Rule of Evidence 607 authorizes a party to impeach the credibility of its own witness,

“the rule is abused if the party is permitted to call a co-defendant as a witness, when the party

knows that the co-defendant will not give useful evidence, just so the party can introduce

otherwise inadmissible hearsay evidence against the defendant, ‘in the hope that the jury

would miss the subtle distinction between impeachment and substantive evidence – or, if it

didn’t miss it, would ignore it.’” Julian v. State, 811 N.E.2d 392, 397 (Ind. Ct. App. 2004)

(quoting U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984), trans. denied.

To determine whether the State has abused the rule, this Court considers whether the

prosecutor examined the witness for the primary purpose of placing before the jury

inadmissible evidence. Id. However, otherwise inadmissible evidence that is placed before

the jury when the State has a legitimate basis to call the witness will not be considered

improper. Id.

Here, the trial court conducted a hearing outside the presence of the jury, and the

following exchange took place:

Prosecutor: Are you planning to testify in this case today?

Brown: Yes, sir.

Prosecutor: Are you requesting, are you gonna take the Fifth Amendment if I

call you?

Brown: No, sir.

Prosecutor: You’re gonna testify without a grant of immunity? Meaning, if I

grant, if the State of Indiana grants you immunity, nothing can be used against

you ah, in your own trial because you’re a defendant in this case as well, right?

12

Brown: Yes, sir.

Prosecutor: Okay. You’ve decided that you do not want immunity for your

testimony, is that correct?

Brown: Yes, sir.

(Tr. 410-11.) The jury was recalled and Brown declined to seek Fifth Amendment

protection. Instead, he acknowledged that he had been charged with the murders of Streeter

and Prince, and that he was “here to testify about [his knowledge of] that case.” (Tr. 412.)

Brown testified that he had given information to Detective Brooks about the murders.

However, when asked if he was involved, Brown responded, “No, sir.” (Tr. 414.) He agreed

that he had told Detective Brooks of his involvement.

Ultimately, Brown admitted having told Detective Brooks: he, Smith, and Fuller had

robbed Streeter of $7,000, electronics, and marijuana; Fuller had killed Prince with a forty-

caliber handgun while Brown waited in the living room; Fuller had admitted to that killing;

and Smith had shot Streeter in the head. Nonetheless, Brown testified that he did not

participate in a robbery or murder and Fuller had not confessed to Brown that he had shot

Prince. He maintained, during cross-examination, that he was testifying truthfully and had

falsified his statement to Detective Brooks.

Chronologically, Brown admitted making various statements to Detective Brooks

before he denied their veracity and insisted that he had decided to tell the truth. Nonetheless,

the cumulative effect was that Brown’s trial testimony was effectively impeached with his

13

prior statements. Even so, there is no indication of record that the prosecutor anticipated this

development before calling Brown as a witness.

Outside the presence of the jury, Brown expressed his intention to testify without

invoking his Fifth Amendment rights and without immunity. Once he was called as a

witness, Brown stated that his lawyer was present and he had consulted with him. Brown

acknowledged that he had given a statement to Detective Brooks, and the prosecutor asked

Brown “what did you tell him happened?” (Tr. 414.) After a bench conference, the

prosecutor re-phrased his question as: “were you involved in the murder of Kaya Prince and

Stephen Streeter?” and Brown inexplicably answered, “No, sir.” (Tr. 414.)

Although the prosecutor then questioned Brown regarding his prior statement, as

could be expected under the circumstances, it does not appear that the prosecutor called

Brown as a witness knowing that he would not provide useful information. There is no

indication of record that the prosecutor had any reason to believe that, as the testimony

developed, Brown would ultimately claim the falsity of each incriminating statement he had

made to police. Fuller has made no showing that the prosecutor called a witness who was

expected to either seek Fifth Amendment protection or decline to provide useful information.

And while he asserts that “no curative action was taken,” Appellant’s Brief at 21, Fuller

requested no curative measure. He has demonstrated no prosecutorial misconduct placing

him in grave peril.7

7

Fuller also claims that a mistrial was warranted because a witness handed a recording to the prosecutor during

his examination of Brown, and the prosecutor then conducted “a theatrical performance” by waving the

recording in front of the jury. Appellant’s Brief at 22. According to Fuller, this had an intended effect of

14

Prosecutorial Misconduct in Closing Argument

Fuller contends that he was deprived of a fair trial by improper closing argument.

When a defendant alleges that a prosecutor has made an improper argument at the guilt or

penalty phase of a trial, the defendant should request an admonishment from the trial court.

Cain, 955 N.E.2d at 721. If he or she believes the admonishment to be insufficient, a mistrial

should be requested. Id. When a claim of prosecutorial misconduct has thus been properly

preserved, we examine it pursuant to a two-step process. Id. We determine whether the

prosecutor engaged in misconduct, and if so, whether the misconduct, under all the

circumstances, placed the defendant in a position of grave peril to which he or she should not

have been subjected. Id.

Here, Fuller neither objected nor requested an admonishment. He did not move for a

mistrial based upon any allegedly improper argument. As such, he may obtain relief only if

his claim is one of fundamental error, that is, a clearly blatant violation of basic and

elementary principles that would deny him fundamental due process if left uncorrected. Id.

The prosecutor’s remarks are to be considered in the context of the argument as a

whole. Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007). It is proper for a

prosecutor to argue both law and fact during final argument and to propound conclusions

threatening Brown that he needed to respond appropriately or the recording would be played. To the extent

that Fuller may be said to have raised a separate issue regarding this matter, he has failed to show his

entitlement to a mistrial. Following Brown’s testimony, Fuller sought a mistrial on alternate grounds that

Brown had been improperly impeached and that the prosecutor had raised a “spectacle” by waving something

around in front of the jury. (Tr. 437.) The prosecutor responded that he did not realize he had been holding a

recording of a jail call. The trial court offered to instruct the jury “the DVD is not in evidence” and the jury

was instructed accordingly. (Tr. 440.) We are not persuaded from this record that Fuller was placed in grave

peril, particularly where Fuller made no offer of proof at trial and has not advised this Court of the substance of

the allegedly threatening material.

15

based upon his or her analysis of the evidence. Id. Additionally, a prosecutor is entitled to

respond to allegations and inferences raised by the defense even if the prosecutor’s response

would otherwise be objectionable. Id.

First, Fuller challenges the following portion of the prosecutor’s closing argument:

Senseless crime. Senseless. But, he wants you to walk him on a technicality.

He wants you to walk him out of here on a technicality. . . . Ladies and

gentlemen, don’t let him sell you with [sic] oceanfront property in Kansas.

Don’t let him do it.

(Tr. 744-45.) According to Fuller, this is akin to suggesting that he had been trying to trick

the jury. He directs our attention to Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004)

(wherein a panel of this Court observed that it was improper for the prosecutor to comment

that the defendant’s argument was a smoke screen and a tactic used by defense counsel to

distort facts). We find the reference to a “senseless” crime to be fair commentary upon the

evidence that the sole motive for two murders was financial gain. See Cooper v. State, 854

N.E.2d 831, 837 (Ind. 2006) (discussing use of unflattering and accusatory terms and re-

affirming prosecutor’s right to comment upon the evidence). Too, we are not persuaded that

the prosecutor’s comment on oceanfront property in Kansas – albeit suggesting deceit on the

part of the defense – rises to the level of a blatant violation of elementary principles denying

Fuller due process.

Fuller also asserts that the prosecutor did not limit his discussion to the facts in

evidence when he argued:

Well, one of the things that’s really funny about this case, really unusual, is

usually when you find people that are coming in here, who are inmates and in

the system, they ain’t helping the police, “I’m not coming to testify,” they’re

16

not helping nobody over here. When you’ve got criminals coming in here like

Rashawn Ross and Antoine Skinner testifying against guys like this is cause

they know this shouldn’t have happened. You don’t go up into people’s house

like that and murder them. These are people that were well liked in this

community and they’re not gonna stand for that kind of nonsense. When

you’ve got people that have been in the system doing, what, twenty-five years,

that Antoine was doing, coming in and testifying against guys like this cause

this ain’t right. They came in here to testify cause this kind of stuff should not

be happening. You don’t go up in somebody’s house, shoot them in the back

of the head, shoot this woman who had nothing to do with anything. You have

hardcore criminals coming in to testify in cases like that.

(Tr. 720.) According to Fuller, there was no evidence as to reluctance or willingness of

criminals to testify and the prosecutor enhanced their credibility by his commentary. It is true

that “argument of counsel should not invite the jury to consider matters not in evidence as a

basis for their decision.” Craig v. State, 267 Ind. 359, 366, 370 N.E.2d 880, 883 (1977). We

are not persuaded, however, that the jury was invited to base their decision on the alleged

rarity of convicted persons giving trial testimony. Nor did the prosecutor vouch for the

credibility of the two witnesses he mentioned by name.

Fuller also takes issue with commentary about the propensity of drug users to rent out

cars:

And then run down Diana Farris, who it came from, through her daughter-in-

law who’s got the drug problem and her husband, Diana’s son, and they rent

this out. That’s what, that’s what happens all the time, they rent out cars. In

the drug world, they rent out cars. You get geeked out and you need drugs,

you’ve got a car, you rent it to people, they give you money or they give you

drugs and you let them have your car for a while, and that’s what happened

right here. These guys are out driving that car around on their shopping spree.

(Tr. 723-24.) The State presented evidence that Fuller and his companions exchanged crack

cocaine for the use of a van owned by Diana Farris, to which Amanda Dean had access. The

17

evidence suggests that they used the van to go shopping and spend some of the proceeds

from robbing Streeter and Prince. To the extent that the argument goes beyond a reference to

this specific instance and suggests it is a common practice to loan a vehicle for drugs, we do

not find such to be fundamental error.

Fuller also takes issue with the prosecutor’s references to a jail call. The prosecutor

reminded the jury that Fuller had talked about beating the charge, acknowledged that the

State had a gun and then admitted “that’s some pretty hard shit.” (Tr. 733.) The prosecutor

went on to say: “He knows he’s got a problem with that gun cause there is no explanation for

it. He’s got the murder weapon and there’s no explanation for why he has it.” (Tr. 733.)

Fuller argues that this constitutes an improper comment upon his failure to testify.

In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme Court held

that the Fifth Amendment prohibits the prosecution from commenting on a defendant’s

decision not to testify at trial. A comment on the refusal to testify would amount to a penalty

imposed by courts for exercising a constitutional privilege against self-incrimination. Id. at

614. However, our supreme court has explained that if the prosecutor’s comment in its

totality is addressed to other evidence rather than the defendant’s failure to testify, it is not

grounds for reversal. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). “The

prosecutor may in fact comment on the uncontradicted nature of the State’s evidence without

running afoul of the Fifth Amendment.” Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App.

2010), trans. denied. There is no reversible error if the comment, in its totality, focuses on

evidence other than the defendant’s failure to testify. Hand, 863 N.E.2d at 396.

18

Here, the prosecutor did not directly mention Fuller’s decision not to testify when he

reminded the jury that Fuller had verbally acknowledged “that’s some pretty hard shit” with

reference to his possession of a gun. When the prosecutor went on to comment that the

unexplained possession was a problem for Fuller, he directed the jury’s attention to the

pretrial event of a telephone call as opposed to trial testimony or omission. In the context of

discussing Fuller’s jail conversation, the prosecutor referred to Fuller’s presumed recognition

– at that point in time – that there was no innocent explanation for his possession of the

weapon that killed Prince. We do not consider this to be a direct or indirect comment upon

Fuller’s eventual failure to testify. The prosecutor offered no “invitation to draw an adverse

inference from a defendant’s silence.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004).

Fuller also asserts that the prosecutor played upon the fears of the jury by emphasizing

that, although Fuller appeared in court clean cut and well dressed, he was much more

intimidating as an armed intruder confronting Streeter and Prince. However, Fuller develops

no corresponding argument with regard to this alleged prosecutorial misconduct.

Finally, Fuller claims that the prosecutor invited a conviction because of the interest of

the surrounding minority community. More specifically, he challenges the following

argument:

Stuff like this in the, on the westside in the African American community,

word goes around quick. Word goes around quick. People start hearing about

this, talking about this. You saw those people that were out at the scene, the

word is flying. You saw many people in this courtroom. They’re interested

because this crime should not have happened and he should not have

committed that murder. And they’re here because they know what’s happened

and they want to make sure justice is served. People are interested and the

word is spreading across the community. . . . You came in here, you all took

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an oath to try this case and do justice and do the right thing for this community.

. . . Do your job, do justice, be just, stand up for this community, stand up for

these people out here that are looking forward to justice being served.

(Tr. 721, 733-34.) Fuller claims that the prosecutor thereby asked the jury “to convict the

defendant to please a segment of the community.” Appellant’s Brief at 27. We find the

prosecutor’s comments akin to those in Hand, 863 N.E.2d at 395, where the prosecutor told

the jury that they were the “moral conscience of the community and must take into account

all of the facts and circumstances in this case.” The jury was further urged to convict Hand

for the sake of his wife (the victim), the couple’s children, and the community as a whole.

Id. The Hand Court concluded that “the gravamen of those comments was that the evidence

presented at trial supported the State’s charges and, therefore, Hand should be held

accountable for his actions and convicted.” Id. at 396. Here, when the prosecutor stated that

the community had great interest in justice and urged the jury to “do justice,” he essentially

claimed that the State had met its burden of proof and “justice” would be accomplished by

convicting Fuller. (Tr. 734.)

In sum, Fuller has not persuaded us that there was prosecutorial misconduct in the

delivery of closing argument, much less fundamental error.

Sentence

A person who commits Murder faces a sentencing range of between forty-five years

and sixty-five years with the advisory sentence being fifty-five years. See I.C. § 35-50-2-3.

The sentencing range for a Class B felony is from five years to twenty years imprisonment,

with an advisory sentence of ten years. See I.C. § 35-50-2-5. For his convictions of two

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counts of Murder and one Class B felony, Fuller received an aggregate sentence of one

hundred and fifty years, the maximum sentence.

In imposing this sentence, the trial court found five aggravators: Fuller’s history of

juvenile offenses, his pending unrelated criminal charges, his conspiracy with others to

commit the robbery and murders, the offenses were committed in the presence of a person

under age eighteen, and there were multiple deaths. His young age was found to be a

mitigating circumstance. Fuller contends that the trial court abused its discretion and that his

sentence is inappropriate.

In arguing that the trial court abused its discretion, Fuller claims that none of the

aggravators were proper. “So long as the sentence is within the statutory range, it is subject

to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the finding of

an aggravating circumstance and the omission to find a proffered mitigating circumstance.

Id. at 490-91. When imposing a sentence for a felony, the trial court must enter “a sentencing

statement that includes a reasonably detailed recitation of its reasons for imposing a

particular sentence.” Id. at 491.

The trial court’s reasons must be supported by the record and must not be improper as

a matter of law. Id. However, a trial court’s sentencing order may no longer be challenged

as reflecting an improper weighing of sentencing factors. Id. A trial court abuses its

discretion if its reasons and circumstances for imposing a particular sentence are clearly

against the logic and effect of the facts and circumstances before the court, or the reasonable,

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probable, and actual deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464

(Ind. 2007).

A defendant’s history of juvenile adjudications is a proper aggravating circumstance

for sentencing purposes. Haas v. State, 849 N.E.2d 550, 555 (Ind. 2006). As to this

aggravator, Fuller claims that “unrelated juvenile offenses do not justify the maximum

sentence which was imposed.” Appellant’s Brief at 28. This argument presents an invitation

to reweigh sentencing factors and accord less significance to this aggravator. We may not do

so. Anglemyer, 868 N.E.2d at 491.

At the time of sentencing, Fuller was facing charges for burglary and armed robbery.

The charges were based upon events occurring several days before the murders. Fuller

directs our attention to the language of Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005): “A

record of arrest, without more, does not establish the historical fact that a defendant

committed a criminal offense and may not be properly considered as evidence of criminal

history.” Nonetheless, a record of arrests and charges may reveal that a defendant has not

been deterred from criminal activity even after having been subject to the police authority of

the State. Id. A sentencing court may consider the charges as evidence of the defendant’s

character and the risk that he will reoffend. Tunstill v. State, 568 N.E.2d 539, 545 (Ind.

1991).

Although he alleges that the trial court should not have considered his conspiracy with

Brown and Smith to be an aggravator, Fuller makes no specific argument in this regard.

With respect to the finding that the crimes were committed in the presence of an individual

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under age eighteen, Indiana Code section 35-38-1-7.1(4) includes as a specific aggravating

circumstance the commission of a crime of violence in the presence or within hearing of an

individual who was less than eighteen years of age and is not the victim of the offense. The

best evidence of legislative intent is the text of the statute. Adams v. State, 960 N.E.2d 793,

798 (Ind. 2012). Although Fuller suggests that we read into the statute an exception for a co-

actor under age eighteen, there is no such statutory exclusion in the language chosen by the

legislature.

Finally, quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007), Fuller argues that

the trial court should not have considered the fact that there were multiple murders because

“It is true that a material element of a crime may not be used as an aggravating factor to

support an enhanced sentence.” In McElroy, the Court had examined a sentence imposed

under the presumptive sentencing scheme. Subsequently, our supreme court has explained

that, “[b]ased on the 2005 statutory changes [enacting an advisory scheme], this is no longer

an inappropriate double enhancement.” Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008). If,

however, a trial court imposed a maximum sentence while explaining only that an element

was the reason, the trial court would have provided an unconvincing reason that might

warrant revision of the sentence on appeal. Id. (emphasis in original). Such is not the

situation here. The trial court properly focused upon the commission of multiple crimes with

multiple victims and also identified other valid circumstances to ultimately support the

maximum sentence.

Fuller also claims that his sentence is inappropriate. The authority granted to this

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Court by Article 7, § 6 of the Indiana Constitution permitting appellate review and revision

of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The

Court may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, and as interpreted by case law,

appellate courts may revise sentences after due consideration of the trial court’s decision, if

the sentence is found to be inappropriate in light of the nature of the offense and the character

of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

798 N.E.2d 852, 856-7 (Ind. 2003). The principal role of such review is to attempt to leaven

the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, we find no abuse of discretion in the trial court’s finding

of aggravators, we conclude that the trial court did not impose an inappropriate sentence

under Appellate Rule 7(B), and the sentence does not warrant appellate revision.

Accordingly, we decline to disturb the sentence imposed by the trial court.

Conclusion

We find no fatal variance between the charging information and the evidence

presented at trial. Fuller has demonstrated no abuse of discretion in the admission of

evidence; nor has he established prosecutorial misconduct. The trial court did not abuse its

discretion in sentencing Fuller and his maximum sentence is not inappropriate.

Affirmed.

NAJAM, J., and BARNES, J., concur.

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