Deandre Moore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be Jul 29 2016, 8:16 am

regarded as precedent or cited before any

CLERK

court except for the purpose of establishing Indiana Supreme Court

Court of Appeals

the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Yvette M. LaPlante Gregory F. Zoeller

Keating & LaPlante, LLP Attorney General of Indiana

Evansville, Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Deandre Moore, July 29, 2016

Appellant-Defendant, Court of Appeals Case No.

82A04-1511-CR-1922

v. Appeal from the Vanderburgh

Circuit Court

State of Indiana, The Honorable Michael J. Cox,

Appellee-Plaintiff. Magistrate

Trial Court Cause No.

82C01-1509-F3-5620

Robb, Judge.

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Case Summary and Issues

[1] Following a jury trial, Deandre Moore was convicted of armed robbery,

criminal confinement while armed with a deadly weapon, attempted armed

robbery, attempted battery by means of a deadly weapon, and pointing a

firearm at another person. The trial court sentenced Moore to an aggregate

sentence of twenty years in the Indiana Department of Correction. Moore

appeals his convictions, raising two issues for our review, which we restate as:

(1) whether the trial court erred in admitting certain evidence, and (2) whether

the trial court erred in not giving a discrete answer to two questions from the

jury during deliberations. Concluding the trial court did not err in admitting

evidence and in not providing a discrete answer to the jury’s questions, we

affirm.

Facts and Procedural History

[2] Around 7:00 p.m. on December 22, 2014, an individual, with part of his face

masked, entered a St. Vincent de Paul thrift store in Evansville, pointed a gun at

store employee Asuncion Gibson, and ordered Gibson to open the cash register.

When Gibson was unable to open the register, the individual attempted to

discharge his weapon, but it jammed. The individual immediately fled the

scene. Sandra Lohman, another store employee, described the individual as

5’7” or 5’8” tall, noting he had pretty eyes, but Gibson described the

individual’s eyes as “mean” and “dark.” Transcript at 716, 725.

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[3] Seven hours later, an individual, with part of his face masked, entered a

Kangaroo Express gas station in Evansville, pointed a gun at store employee

Amy Webster, forced her to the back of the gas station, and demanded money.

The individual also pointed his weapon at Donald Wineinger, another store

employee. Webster gave the individual approximately $350 from the cash

register. After a customer threatened to call police, the individual fled the

scene. Webster described the individual as 5’3” or 5’4” with “pretty” and

“dark” eyes. Id. at 313, 318. Wineinger described the individual as 5’10” tall.

Reid Craig, a customer present during the robbery, believed the individual

stood between 5’5” and 5’9”.

[4] On January 11, 2015, Webster recognized the individual who robbed the gas

station, later identified as Moore, at a plasma donation center based on Moore’s

eyes, voice, and build. Webster immediately called police and Moore was

detained. The following exchange occurred between Moore and an investigator

regarding Webster’s claim Moore was the individual who robbed the gas

station:

[Investigator:] Well, like I told you, when you were at the

Plasma Center while you was in there she said that you were the

one that robbed her back on December the 23rd.

[Moore:] Well, that’s not possible.

[Investigator:] Well, that’s what, that’s what she is saying.

[Moore:] Did I rob her barefaced?

[Investigator:] Huh?

[Moore:] Did I rob her barefaced, did she see my face?

***

[Moore:] Did she see my face, that’s what you should ask her.

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[Investigator:] She said she looked you in the face.

[Moore:] She looked me, I was barefaced when I robbed her?

[Investigator:] She said she looked you in the face.

[Moore:] Well, you should watch the video and see.

Id.at 536, 547-48; State’s Exhibit 37. Later, Lohman “immediately” identified

Moore as the would-be robber of the thrift store from a photo array. Tr. at 637.

[5] In addition, Moore called his mother while in jail and the following exchange

occurred between Moore, his mother, and an unidentified individual:

[Unidentified Voice:] Well you know, they ain’t got no, they

ain’t got no cameras nothing for (inaudible).

[Moore:] Yes it does, they say they got, they said (inaudible)

camera so I said (inaudible), I was like she wanted to see my face

or something, I mean, did you ever ask me, did you look at the

camera, he said yeah I looked at the camera and I said okay so,

what did you think, (inaudible) I know she ain’t got x-ray vision

now do she.

Id. at 605; State’s Ex. 38. At this point in time, investigators had not released

any details of the gas station robbery to the media or to Moore, including

whether the suspect obscured his face.

[6] As part of the investigation, Detective Tony Walker worked to estimate the

robber’s height by reviewing the surveillance video from the gas station. That

surveillance video captured images of the robber standing next to a calendar

screwed into a wall. Detective Walker measured the height of the calendar

from the floor and made markings indicating certain heights. He then used the

same surveillance video to capture images of himself standing in the same spot

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as the robber. After comparing the images and taking into consideration his

own height, Detective Walker estimated the robber’s height was between 5’4”

and 5’7”. Moore is 5’6”.

[7] The State charged Moore with armed robbery, a Level 3 felony (“Count 1”);

criminal confinement while armed with a deadly weapon, a Level 3 felony

(“Count 2”);1 attempted armed robbery, a Level 3 felony (“Count 3”);

attempted battery by means of a deadly weapon, a Level 5 felony (“Count 4”);

and pointing a firearm at another person, a Level 6 felony (“Count 5”).2 Moore

proceeded pro se.

[8] At trial, Webster and Craig identified Moore as the robber of the gas station;

Gibson and Lohman identified Moore as the robber of the thrift store. In

addition, Detective Walker testified as to the process he used to estimate the

robber’s height, and in conjunction with his testimony, the State admitted—for

demonstrative purposes—surveillance video images from the gas station,

images of the measurements taken by Detective Walker, and other exhibits

relevant to the robber’s height. The State did not call Detective Walker to

testify as an expert witness. Moore did not object to Detective Walker’s

testimony or to the admission of the exhibits.

1

Counts 1 and 2 were with respect to the robbery at the gas station.

2

Counts 3, 4, and 5 were with respect to the attempted robbery at the thrift store.

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[9] At the close of evidence, the trial court instructed the jury as to the attempt

crimes, in relevant part:

COURT’S INSTRUCTION NO. 4

***

Before you may convict the Defendant in Count 3, the State must

have proved each of the following beyond a reasonable doubt:

1. The Defendant, Deandre Blanchez Moore

2. acting with the culpability required to commit the crime of

Armed Robbery, which is defined as:

a) knowingly or intentionally

b) taking property from another person

c) by using force or threatening the use of force on that

other person

d) and while the Defendant was armed with a deadly

weapon;

3. by knowingly entering St. Vincent Depaul [sic],

displaying/and or [sic]pointing a firearm or handgun, and

demanding money from St. Vincent Depaul employee Asuncion

Gibson and/or Sandra Lohman,

4. which was conduct constituting a substantial step toward the

commission of the crime of Armed Robbery.

***

COURT’S INSTRUCTION NO. 5

***

Before you may convict the Defendant in Count 4, the State must

have proved each of the following beyond a reasonable doubt:

1. The Defendant, Deandre Blanchez Moore

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2. acting with the culpability required to commit the crime of

Attempted Battery by Means of a Deadly Weapon, which is

defined as:

a) knowingly or intentionally

b) touching another person

c) in a rude, insolent or angry manner

d) and while the Defendant was armed with a deadly

weapon;

3. by knowingly pointing a firearm and/or handgun at Asuncion

Gibson and/or Sandra Lohman, and pulling the trigger to said

firearm and/or handgun,

4. which was conduct constituting a substantial step toward the

commission of the crime of Attempted Battery by Means of a

Deadly Weapon.

Appellant’s Appendix at 55-58.

[10] The instructions did not provide a definition of the term “culpability” 3 and

Moore did not object to the instructions. During deliberations, the jury sent

two questions to the trial court. The transcript does not include the ensuing

discussion between the parties and the trial court; the only information in the

record regarding the jury’s questions is located in the Chronological Case

Summary. There, it indicates the jury sought the definition of “culpability,” to

which the trial court responded, over Moore’s unspecified objection, “You have

received all of the Court’s instructions regarding the law.” Id. at 6. The jury

also asked, “Do all subpoints under element 2 need to be proved in order for

deft. to be found guilty in counts 3 & 4?” Id. Over Moore’s unspecified

3

The trial court’s remaining instructions did not include the term “culpability.”

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objection, the trial court responded, “You have been given all of the Court’s

instructions regarding the law and they are your best resource.” Id. The jury

returned guilty verdicts on all counts. Moore, with counsel, now appeals.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

[11] Moore contends Detective Walker’s testimony describing the process he used to

estimate the robber’s height—given in conjunction with the State’s admission of

certain exhibits—and his ultimate opinion as to the robber’s height, constituted

inadmissible opinion evidence. A trial court has broad discretion in ruling on

the admissibility of evidence. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.

2011). Although we generally review the trial court’s rulings for abuse of

discretion, id., a defendant’s failure to raise a contemporaneous objection at

trial waives the issue for appeal, Delarosa v. State, 938 N.E.2d 690, 694 (Ind.

2010). Moore concedes he failed to object to Detective Walker’s testimony and

the State’s exhibits, but argues the admission of the testimony and exhibits

constitutes fundamental error. See Appellant’s Brief at 13. A claim waived by a

defendant’s failure to object can be reviewed on appeal if the reviewing court

determines fundamental error occurred. Delarosa, 938 N.E.2d at 694. “The

fundamental error exception is extremely narrow, and applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental

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due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quotation

marks omitted). The exception is “available only in egregious

circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).

B. Detective Walker’s Testimony

[12] Moore challenges the admission of Detective Walker’s testimony regarding the

height of the robber, including the admission of demonstrative exhibits used to

illustrate his testimony. A “skilled” witness is defined as “a person with a

degree of knowledge short of that sufficient to be declared an expert under

Indiana Rule of Evidence 702,[4] but somewhat beyond that possessed by the

ordinary jurors.” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003)

(citation omitted), trans. denied. Under Rule 701, a skilled witness may testify to

an opinion or inference in those instances where the opinion is “rationally

based on the witness’s perception” and “helpful to a clear understanding of the

witness’s testimony or to a determination of a fact in issue.” See id. Here,

Detective Walker testified as to his extensive history as a police officer and

investigator. He fully explained the method he used to estimate the robber’s

height and the State’s exhibits helped illustrate that process. In addition, such

evidence was relevant to identifying the robber, which was the central issue at

trial. We therefore find no error.

4

Rule 702(a) provides, “[a] witness qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise . . . .”

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[13] However, even assuming the trial court erred in admitting such evidence, such

error was not fundamental. Multiple eyewitnesses identified Moore as the

individual who robbed the gas station and thrift store: Webster spontaneously

identified Moore as the robber of the gas station after seeing Moore at the

plasma donation center; Craig identified Moore as the robber of the gas station

based on Moore’s eyes; Gibson identified Moore as the robber of the thrift store

based on Moore’s voice; and Lohman, after being shown a photo array,

identified Moore as the robber of the thrift store. As Moore concedes, evidence

of his exact height was not made available to the jury, see Appellant’s Br. at 25

n.3, and our review of the record indicates that none of the eyewitnesses who

identified Moore relied upon his height in identifying him. In addition, many

witnesses testified as to their own opinion of the robber’s height, meaning

Detective Walker’s testimony amounted to cumulative evidence of the robber’s

alleged height. Further, Moore made incriminating statements pertaining to the

fact it would be impossible for Lohman to identify him as the robber of the gas

station because “she ain’t got x-ray vision.” Tr. at 605. We therefore conclude

the trial court did not commit fundamental error in admitting Detective

Walker’s testimony and demonstrative exhibits regarding the robber’s estimated

height. See Halliburton v. State, 1 N.E.3d 670, 683 n. 7 (Ind.2013) (“Where

evidence of guilt is overwhelming any error in the admission of evidence is not

fundamental.”).

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III. Jury Questions

A. Standard of Review

[14] Moore also argues the trial court erred in not providing discrete answers to two

questions from the jury during deliberations, a claim which we review for an

abuse of discretion. See Inman v. State, 4 N.E.3d 190, 201 (Ind. 2014). An

abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before it. Turner, 953 N.E.2d at

1045.

B. Discrete Answers

[15] Generally, a trial court should not give any additional jury instructions once

deliberations commence. Fields v. State, 972 N.E.2d 977, 980 (Ind. Ct. App.

2012), trans. denied. “This rule precludes the trial court from giving any special

emphasis, inadvertent or otherwise, to a particular issue in the case, and thus

avoids the possibility that the additional instruction(s) may tell the jury what it

ought to do concerning that issue.” Id. (citation omitted). However, if a jury

desires to be informed as to “any point of law arising in the case” after retiring

for deliberations, “the jury may request the officer to conduct them into court,

where the information required shall be given in the presence of, or after notice

to, the parties or the attorneys representing the parties.” Ind. Code § 34-36-1-6.

“The statutory phrase ‘any point of law arising in the case’ is construed

narrowly and mandates that the trial court inform counsel and provide a

discrete answer only when the jury question points up an error or legal lacuna

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[i.e. gap] in the final instructions.” Fields, 972 N.E.2d at 980 (emphasis added)

(citation and some internal quotation marks omitted).

[16] At the outset, we note the final instructions on Counts 3 and 4 tracked the

language of Indiana’s attempt statute verbatim, and in such cases, we presume

the instructions are correct. See Campbell v. State, 19 N.E.3d 271, 277 (Ind.

2014) (“[A]n instruction which tracks verbatim the language of a statute is

presumptively correct.”). Also, the final instructions on Counts 3 and 4

followed, verbatim, Indiana’s pattern jury instructions for attempt crimes. See

Ind. Pattern Jury Instruction (Criminal) 2.0100.

[17] The jury’s first question requested the definition of the term “culpability.”

Contrary to Moore’s assertion in his brief, see Appellant’s Br. at 12,

“culpability” is not defined by statute, see Ind. Code § 35-41-2-2 (though titled

“Culpability,” the statute only defines the terms “intentionally,” “knowingly,”

and “recklessly”). Given that there is no statutory definition of “culpability,” it

would be a risky endeavor for the trial court to attempt to define the term. The

jury’s second question asked, “Do all subpoints under element 2 need to be

proved in order for deft. to be found guilty in counts 3 & 4?” Appellant’s App.

at 6. Moore does not argue how this question points to an error or legal lacuna

in the final instructions, and as noted above, both instructions followed the

pattern jury instructions verbatim. Therefore, we are not persuaded the jury’s

questions point to an error or legal lacuna in the final instructions.

Accordingly, we conclude the trial court did not abuse its discretion in not

giving a discrete answer to the jury’s questions.

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Conclusion

[18] The trial court did not commit fundamental error in admitting certain evidence

or abuse its discretion in not providing a discrete answer to the jury’s questions.

Accordingly, we affirm Moore’s convictions.

[19] Affirmed.

Najam, J., and Crone, J., concur.

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