The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 08 2015, 10:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Katyun Marsh, April 8, 2015
Appellant-Defendant, Court of Appeals Case No.
82A01-1405-CR-233
v. Appeal from the Vanderburgh
Circuit Court.
The Honorable David D. Kiely,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 82C01-1306-MR-638
Baker, Judge.
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[1] Katyun Marsh appeals his conviction for Murder, a felony.1 Marsh argues that
the trial court erred by admitting into evidence a video of his interview with
police that Marsh believes contained inadmissible hearsay. Marsh also argues
that his sentence is inappropriate in light of the nature of the offense and his
character. Finding no error, we affirm.
Facts 2
[2] In 2013, Angela Dixon lived in an apartment in Evansville with her seventeen-
year-old daughter, J.D. On June 5, 2013, Melinda Welborn and her daughter,
Carrie Burton, were visiting Dixon at the apartment. Dixon and Welborn had
been dating but had broken up a few days prior to this incident. Dixon,
Welborn, and Burton got into an argument, after which Burton threatened
Dixon. J.D. left the apartment at 9 p.m. and spent the night with a friend
because of the argument.
[3] At around 2 a.m. the following morning, Dixon, concerned that Burton would
carry out her threat, texted her friend Brandi Phillips and asked if she would
come over. At the time, Phillips was with Blake Fisher and Marsh. Phillips
agreed to come over and left in a taxi along with Fisher and Marsh.
1
Ind. Code § 35-42-1-1.
2
We held oral argument on March 12, 2015, at Culver Academies in Culver, Indiana. We wish to thank
Culver Academies for the wonderful hospitality as well as counsel for their exceptional oral advocacy.
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[4] The three arrived at Dixon’s apartment around 4 a.m. Phillips and Fisher went
inside, but Dixon asked that Marsh remain outside because she did not know
him. Marsh eventually entered the apartment about thirty minutes later. After
about two hours, Phillips decided that it was time to leave. Dixon did not want
Phillips to leave, but Phillips replied that it was getting late.
[5] When the three exited Dixon’s apartment, Marsh stated that Dixon owed him
five dollars for marijuana and that he was going to get it. He re-entered the
apartment along with Phillips and Fisher. Marsh approached Dixon, pulled a
gun from his pants, and ordered her to give him all the money she had. When
Dixon responded that she didn’t have any, Marsh shot Dixon in the face, killing
her.
[6] The three left the apartment and walked across the street. Marsh threatened to
shoot Phillips if she stopped walking. Once across the street, they waited for a
taxi outside of a WalMart. The same taxi that had taken them to Dixon’s
arrived and took them to Phillips’s apartment. Phillips was in hysterics while in
the taxi. At the apartment, Marsh told Fisher that he wanted to kill Phillips
because he was afraid that she would give information to the police.
[7] On June 6, 2013, at around 10 a.m., J.D. returned home to find her mother
dead. One of J.D.’s friends called the police. Later that day, Detective Mike
Sloat interviewed Phillips. Although Phillips did not initially implicate Marsh,
she eventually said that she had seen Marsh shoot Dixon. Fisher eventually
said the same thing.
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[8] Marsh was apprehended on June 7, 2013. Detective Brent Melton interviewed
him that same day. During the interview, Detective Melton told Marsh that
Marsh’s cousin, Alisha Robinson, spoke to an investigator and said that on
June 6, 2013, Marsh had broken down in front of her and told her that he had
gotten involved in something he shouldn’t have. Marsh explained that he had
called Robinson and that he became emotional because of other drama in his
life.
[9] Later that day, Marsh was charged with murder, felony murder, robbery
resulting in serious bodily injury, armed robbery, and conspiracy to commit
armed robbery. A jury trial was held, during which the jury was shown a video
of Detective Melton’s interview with Marsh. On April 4, 2014, Marsh was
found guilty of murder and not guilty of all other counts. On May 1, 2014, the
trial court sentenced Marsh to sixty years executed. Marsh now appeals.
Discussion and Decision
I. Hearsay
[10] Marsh first argues that the trial court erred in admitting into evidence a portion
of the videotaped interview in which Detective Melton questioned Marsh about
his conversation with Robinson. We review a trial court’s decision to admit
evidence for an abuse of discretion. Teague v. State, 978 N.E.2d 1183, 1187
(Ind. Ct. App. 2012). An abuse of discretion occurs if the trial court’s decision
is clearly against the logic and effects of the facts and circumstances before the
court or if the court misinterprets the law. Id.
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[11] Marsh contends that Detective Melton’s statements about Robinson telling an
investigator that Marsh broke down in front of her constituted inadmissible
hearsay. Hearsay is an out-of-court statement used to prove the truth of the
matter asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it
falls under a hearsay exception.3 Teague, 978 N.E.2d at 1187. However, “[a]
statement is not hearsay if it is not used to prove the truth of the matter
asserted.” Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999).
[12] At trial, the State requested a hearing outside the presence of the jury. The
State had produced two redacted videos of Detective Melton’s interview with
Marsh, one of which redacted the portion in which Detective Melton
questioned Marsh about his conversation with Robinson. Marsh objected to
the admission of this portion, but the trial court overruled his objection. The
relevant portion of the video contains the following exchange:
Melton: . . . let’s back up a minute. Who is Alisha Robinson? Is
that a cousin?
Marsh: Yeah, that’s my cousin.
Melton: I want to hear about this conversation you had where
you were upset and crying and you told her that you got
involved in something you shouldn’t have got involved
in, and you (unintelligible) and you fell down, and you
curled up crying like into a ball, and just very upset.
Marsh: (Unintelligible)
3
Here, Marsh claims that Detective Melton’s statement is actually hearsay within hearsay, because Detective
Melton’s out-of-court statement relayed an out-of-court statement made by Robinson. “If a statement
involves hearsay within hearsay . . . the statement may still be admitted if each layer of hearsay qualifies
under an exception to the hearsay rule.” Teague, 978 N.E.2d at 1187 (quotations omitted).
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Melton: I’m just telling you what she told one of the
investigators. Want to tell me about the conversation?
***
Marsh: Mid-day yesterday, I called my cousin up, I asked
her . . .
Melton: This is Alisha Robinson?
Marsh: Yeah, I was like I gotta go cause, I can’t take it no more
here in Evansville, I don’t like it no more, I gotta go,
and I started (unintelligible).
Melton: Crying and that stuff?
Marsh: I am an emotional person. If I gotta cry I’m gonna cry,
I’m not gonna hide it, I mean . . .
Melton: But, and that’s . . . I know I’ve broken down. I’ve had
traumatic things happen in my life, and I’m asking, what
made you break down?
Marsh: What made me break down? Cause I’m tired of all this
drama.
Melton: What drama?
Marsh: The drama in my life. I mean, the little stuff counts
man, and I’m talking about people robbing me, people
putting my name in situations that it don’t belong, me
being in the wrong places at the wrong time, people
using me. . . .
Tr. p. 750-53.
[13] Marsh contends that the State introduced these statements to prove that Marsh
had broken down in front of Robinson, claiming that he had been involved in
something he shouldn’t have been. He argues that the State used this evidence
to show that he had effectively admitted to Robinson that he committed the
murder. The State maintains that Detective Melton’s statements were merely
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“question[s] designed to elicit a response about Marsh’s interactions with his
cousin after the murder.” Appellee’s Br. p. 13.
[14] Our Supreme Court has noted that “police questions and comments in an
interview may be designed to elicit responses from the defendant and if so, are
‘not offered as proof of the facts asserted therein.’” Smith, 721 N.E.2d at 216
(quoting Strong v. State, 538 N.E.2d 924, 928 (Ind. 1989)). The Court has
reasoned that, because such statements are “largely designed to prompt” the
defendant to speak, it is not the statement itself, but rather the defendant’s
response to it “that really constitute[s] the evidentiary weight of the
conversation.” Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996). Therefore,
such prompting statements are not hearsay.
[15] For instance, in Strong, the State offered a video of Strong’s interview with
police officers as evidence. Strong objected to the following portion on hearsay
grounds:
Q: Okay. There’s a lot of things, [Strong], I want to caution you
on one thing. Physical evidence proof, stuff that Lt. Loy saw
and found in your house on that night.
A: Yes and I told him everything about that.
Q: Doesn’t match stuff that you tell us. . . .
Strong, 538 N.E.2d at 928. Our Supreme Court found that “[t]hese statements
by the police officer were not inadmissible hearsay because they were not
offered as proof of the facts asserted therein.” Id. The Court further noted that
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the jury had been admonished to not consider the officer’s statements as
evidence. Id.
[16] However, the Court reached the opposite conclusion in Smith. 721 N.E.2d 213.
In that case, the State once again sought to introduce a video of the defendant’s
interview with an officer. During the interview, the officer made the following
statements:
[H]alf of the people at the jail’s [sic] called me wanting to tell me that
you did it[.]
[Lampley] said you did it because it was over him [Riggs] ripping you
off your dope, your stash.
Id. at 216. The Court found that, “the lack of an admonishment in this case
combined with the fact that the statements appear to be assertions of fact by the
detective, not mere questions, renders their admission error.” Id.
[17] In this case, we find that Detective Melton’s statements were largely designed to
prompt a response from Marsh. Although Detective Melton’s statements
contained assertions of fact to the extent that they referenced Robinson’s
statements, they functioned primarily as questions, and are therefore
distinguishable from the bald accusations at issue in Smith. Id. Furthermore,
the statements did indeed prompt a response. Following Detective Melton’s
statements, Marsh spoke at relative length about his conversation with
Robinson, and Detective Melton did not contradict Marsh’s version of the
events.
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[18] We acknowledge that the jury was not admonished in this case. We note,
however, that Marsh did not request such an admonishment and “a trial court
has no affirmative duty to consider giving an admonishment absent a party’s
request to do so.” Id. While we believe our decision would have been easier
had such an admonishment been given, we do not find that, under the
circumstances presented here, the lack of an admonishment rendered the
admission of Detective Melton’s statements error. In short, we find that the
trial court did not err in determining that Detective Melton’s statements were
largely designed to prompt a response from Marsh and, therefore, not hearsay. 4
[19] Moreover, even if the trial court erred in admitting Detective Melton’s
statements, we believe that such error was harmless. “Generally, errors in the
admission of evidence are to be disregarded as harmless unless they affect the
substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012). In determining whether a defendant’s substantial rights were affected,
we look to the probable impact of the evidence on the fact finder. Id. The
improper admission of evidence is harmless error when the conviction is
supported by substantial independent evidence of guilt that satisfies the
reviewing court that there is no substantial likelihood that the challenged
evidence contributed to the conviction. Id.
4
Because we find that this evidence is not hearsay, we need not consider Marsh’s claim that it is testimonial
hearsay, the admission of which would have violated Marsh’s right to confrontation under the Sixth
Amendment. “[I]f a statement is either nontestimonial or nonhearsay, the federal Confrontation Clause will
not bar its admissibility at trial.” Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014), trans. denied.
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[20] Here, Marsh’s conviction was supported by the eyewitness testimony of Fisher
and Phillips. Both witnesses testified that Marsh shot and killed Dixon.
However, Marsh argues that, because “there was no physical evidence to
eliminate [Fisher] or [Phillips] as the murderers,” each had a compelling reason
to lie. Appellant’s Br. p. 16. Marsh concludes that Detective Melton’s
statement regarding what Robinson told an investigator was “the only
testimony directly implicating Marsh that did not come from a witness with a
powerful reason to falsely implicate Marsh.” Id. at 17.
[21] We fail to see how Detective Melton’s statements about Marsh’s conversation
with Robinson directly implicated Marsh in the murder. After being prompted
by Detective Melton, Marsh gave his version of the conversation he had with
Robinson. As previously noted, Detective Melton did not contradict Marsh’s
characterization of his conversation with Robinson. Because all of Marsh’s
statements in the interview would have been admissible,5 Detective Melton’s
statements primarily serve to give context to Marsh’s statements. As such, we
do not find it likely that these statements had a significant impact on the jury’s
decision.
5
Statements made by an opposing party in an individual or representative capacity are not hearsay. Evid. R.
801(d)(2).
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II. Appropriateness of Sentence
[22] Marsh next challenges the appropriateness of his sentence. Under Indiana
Appellate Rule 7(B), “[t]he 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.” The burden is on the defendant to persuade us that his
sentence is inappropriate. Teague, 978 N.E.2d at 1189.
[23] In this case, the jury found Marsh guilty of murder. “A person who commits
murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-
five (65) years, with the advisory sentence being fifty-five (55) years.” Ind.
Code § 35-50-2-3. After a hearing, the trial court sentenced Marsh to an
executed term of sixty years.
[24] Regarding the nature of his offense, Marsh argues that the offense “was not
committed with any brutality not already inherent in the crime of murder.”
Appellant’s Br. p. 20. Regarding his character, Marsh points out that he was
only nineteen at the time of the offense and notes that “[a] defendant’s young
age is to be given considerable weight as a mitigating circumstance.” Brown v.
State, 720 N.E.2d 1157, 1159 (Ind. 1999). Marsh also notes that his only prior
adult conviction was for misdemeanor criminal conversion. Appellant’s Br. p.
19. All of Marsh’s other criminal history involves juvenile adjudications. Id.
Finally, Marsh notes that he had a difficult upbringing as his father has been
incarcerated for nearly all of his life. Id.
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[25] However, the trial court considered all of these points prior to sentencing
Marsh. Sent. Tr. p. 13-15. As to the nature of the offense, the trial court noted
that Marsh shot Dixon over a small amount of money.6 The court further noted
that Marsh had never met Dixon and that he was a guest in Dixon’s home at
the time. In light of this, the court concluded that this murder was particularly
senseless.
[26] As to Marsh’s character, the court noted his young age and difficult upbringing.
However, the court weighed this against Marsh’s three previous juvenile
adjudications. In the end, the trial court determined that the senselessness of
the murder combined with Marsh’s significant juvenile history were substantial
aggravating factors, outweighing the mitigating factors of his age, difficult
upbringing, and his relatively insignificant adult criminal history.7
[27] We note that the principal role of appellate review of sentences should be to
attempt to leaven the outliers rather than to achieve a perceived “correct” result
6
Marsh contends that this is an improper aggravating factor. Marsh notes that he was charged with robbery
resulting in bodily injury and armed robbery—for taking money from Dixon—and was acquitted on both
counts. Therefore, Marsh argues that the trial court improperly considered charges on which he had been
acquitted as aggravating factors. However, the trial court did not determine that Marsh committed robbery,
but merely noted that he likely killed Dixon over a small amount of money. As substantial evidence
indicated that this was the case, the trial court did not err in considering this as an aggravating factor.
7
In this case, the trial court issued an oral sentencing statement during the sentencing hearing. Sent. Tr. p.
13-15. Marsh argues that it is not clear from the trial court’s sentencing statement whether it considered
particular factors as aggravators or mitigators. However, we believe that Marsh’s argument elevates form
over substance. It is perfectly clear which factors the trial court considered mitigating and which factors it
considered aggravating. We believe the trial court’s sentencing statement adequately serves its purpose of
protecting against arbitrary sentencing and facilitating appellate review of sentences. Anglemyer v. State, 868
N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
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in each case. Teague, 978 N.E.2d at 1189. “We must give deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Id.
(quotations omitted). With this in mind, we do not find Marsh’s sixty-year
sentence inappropriate in light of the nature of the offense and his character.
[28] The judgment of the trial court is affirmed.
Riley, J., and Robb, J., concur.
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