MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                  FILED
regarded as precedent or cited before any                     Nov 04 2016, 8:47 am

court except for the purpose of establishing                      CLERK
                                                              Indiana Supreme Court
the defense of res judicata, collateral                          Court of Appeals
                                                                   and Tax Court
estoppel, or the law of the case.




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mary Beth Mock                                          Gregory F. Zoeller
Law Office of Mary Beth Mock                            Attorney General of Indiana
Madison, Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jody Michael Brooks,                                    November 4, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        40A04-1512-CR-2373
        v.                                              Appeal from the Jennings Circuit
                                                        Court
State of Indiana,                                       The Honorable Jon W. Webster,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        40C01-1410-MR-5



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 1 of 30
                                          Case Summary
[1]   In October of 2014, Appellant-Defendant Jody Brooks and Jovannie Mays

      murdered Richard Smith. Brooks and Mays subsequently fled the murder

      scene. During the course of their flight, Brooks and Mays stole two trucks.

      Brooks was subsequently charged with and convicted of murder, robbery

      resulting in serious bodily injury, and two counts of auto theft. He was

      subsequently sentenced to an aggregate term of sixty-two years. On appeal,

      Brooks challenges his convictions and sentence by asserting that (1) his murder

      and robbery convictions should be reversed because the trial court committed

      fundamental error, (2) the trial court abused its discretion by excluding certain

      evidence and by admitting certain other evidence, (3) his sentence is

      inappropriate in light of the nature of his offenses and his character, and (4) the

      trial court erred by failing to advise him of certain possible release dates from

      incarceration. We affirm.



                            Facts and Procedural History
[2]   At some point during the late-evening hours on October 16, 2014 or early-

      morning hours on October 17, 2014, Brooks and Mays came upon Smith who

      had passed out in the common hallway of the Hatton Carpet apartment

      complex in North Vernon. Brooks and Mays initially walked by Smith before

      entering the apartment of a friend. When they entered the apartment, Brooks

      indicated that he had taken the knit cap he was wearing from the man passed

      out in the hallway. Eventually, Brooks and Mays were asked by Nicole

      Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 2 of 30
      Spurlock to leave the apartment because they were intoxicated and loud and

      there were children sleeping in the apartment. When Brooks and Mays left the

      apartment, they tripped over Smith, who was still passed out in the hallway.

      Spurlock observed Mays kick Smith’s head after which she said, “don’t hurt

      him, don’t kick him just try to wake him up.” Tr. p. 1125. While Spurlock,

      Mays, and another individual who had been in the apartment remained near

      the door to the apartment, Brooks took hold of Smith and dragged Smith down

      the hallway, through the hallway door. Brooks continued to drag Smith

      outside, over two concrete steps, to an area near the apartment building’s trash

      collection spot.


[3]   Smith’s nude body was discovered later in the day on October 17, 2014, when a

      resident of the apartment complex took out his trash. Upon discovering

      Smith’s body, the resident called 911 to report the discovery. As the North

      Vernon Police Department (“NVPD”) investigated the discovery of Smith’s

      body, it became apparent that Smith had been murdered. Brooks and Mays

      soon became suspects in Smith’s murder and were quickly located in Harrison

      County, near Corydon. When a representative of the NVPD reached out to the

      Harrison County Sheriff’s Department to ask for assistance, the representative

      learned that Officer Duane Avis of the Corydon Police Department had already

      made contact with Brooks and Mays.


[4]   Officer Avis first encountered Brooks and Mays on the evening of October 17,

      2014, after having been dispatched to investigate a report of an accident. In

      responding to the dispatch, Officer Avis observed Brooks and Mays walking

      Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 3 of 30
      along the same road as the reported accident. Officer Avis knew Brooks and

      questioned the men. Officer Avis then inspected the reported scene of the

      accident, discovering that a truck had been driven off the road and into a ravine

      where it struck a tree. The truck had been left in gear and its engine was still

      running. The license plate, however, was missing. Additional officers

      responding to the scene located the missing license plate in Brooks’s clothing.

      Officer Avis subsequently determined that the truck had been reported stolen in

      Jennings County earlier that morning by Kenny Maschino.


[5]   Also on October 17, 2014, Jennings County officers found a second abandoned

      truck a few miles from Maschino’s residence. The second truck had also been

      left in a ditch. Its front end was covered with soybean plants, indicating it had

      been driven through a soybean field. Officers later determined that this truck

      had been stolen from Levi Horton. Mays subsequently explained that after

      murdering Smith, he and Brooks had hitch-hiked to the apartment complex

      where Horton lived and had stolen the truck. Mays also explained that he and

      Brooks had taken a nap at Brooks’s girlfriend’s residence in Corydon in the

      time between stealing the second truck from Maschino and intentionally

      wrecking it in the ravine.


[6]   Brooks was interviewed by investigating authorities and, after being read his

      Miranda1 rights, admitted that he and Mays had been drinking and that they had




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

      Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 4 of 30
      dragged Smith down the hallway and out to the apartment complex’s trash

      collection area. Brooks further admitted to rifling Smith’s pockets before

      helping Mays “flip” Smith into the trash area. Tr. p. 1411. Brooks indicated

      that he had “blacked out” and could not recall what happened after he and

      Mays dragged Smith to the trash area. Tr. p. 1410.


[7]   An autopsy later determined that Smith had suffered over fifty wounds. These

      wounds included numerous cuts and bruises; long excoriations to his back that

      were consistent with dragging; bruising and hemorrhaging of Smith’s brain;

      multiple fractures to his nose, face, and eye socket; a fractured left hyoid bone;2

      two fractures in his neck; factures of the ribs in five areas together with a

      punctured lung; hemorrhaging to Smith’s left testes; and a tear in Smith’s aorta

      which was “absolutely lethal” and had been the immediate cause of his death.

      Tr. p. 1325. A sample from the steel-toed boots which Brooks was wearing at

      the time of his encounter with Smith were subjected to forensic DNA analysis

      and were found to bear Smith’s DNA profile, which would be present only

      once in eight trillion unrelated individuals.


[8]   On October 22, 2014, Appellee-Plaintiff the State of Indiana (“the State”)

      charged Brooks with murder, robbery resulting in serious bodily injury, and two

      counts of auto theft. The trial court conducted a jury trial between August 24,




      2
        The hyoid bone is a u-shaped bone found in the neck. Its primary function is to serve as an anchoring
      structure for the tongue. See https://www.britannica.com/science/human-skeletal-system/Interior-of-
      the-cranium#ref470803 (last visited October 20, 2016).

      Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016    Page 5 of 30
       and August 31, 2015 (“the first trial”). At the conclusion of the first trial, the

       jury found Brooks guilty of the two counts of auto theft but was unable to reach

       a unanimous verdict on the murder or robbery charges. The trial court

       thereafter declared a mistrial as to the murder and robbery charges and entered

       judgment of conviction on the auto theft counts. The trial court conducted

       Brooks’s second trial (“the murder trial”) on November 12, through November

       19, 2015. At the conclusion of the murder trial, the jury found Brooks guilty of

       both the murder and robbery charges. On December 7, 2015, the trial court

       sentenced Brooks for all of the related charges to an aggregate sixty-two-year

       term of imprisonment. This appeal follows.



                                 Discussion and Decision
[9]    On appeal, Brooks raises the following contentions: (1) whether the trial court

       committed fundamental error, (2) whether the trial court abused its discretion in

       admitting and excluding certain evidence, (3) whether his sentence is

       inappropriate, and (4) whether the trial court erred by failing to advise him of

       his earliest possible release date.


                                      I. Fundamental Error
[10]   In challenging his murder and robbery convictions, Brooks contends that the

       trial court committed fundamental error.

               Fundamental error is an extremely narrow exception to the
               waiver rule where the defendant faces the heavy burden of
               showing that the alleged errors are so prejudicial to the

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 6 of 30
        defendant’s rights as to “make a fair trial impossible.” Benson v.
        State, 762 N.E.2d 748, 756 (Ind. 2002), quoted in [Castillo v. State,
        974 N.E.2d 458, 468 (Ind. 2012)] and [Cooper v. State, 854 N.E.2d
        831, 835 (Ind. 2006)]. In other words, to establish fundamental
        error, the defendant must show that, under the circumstances,
        the trial judge erred in not sua sponte raising the issue because
        alleged errors (a) “constitute clearly blatant violations of basic
        and elementary principles of due process” and (b) “present an
        undeniable and substantial potential for harm.” Id. The element
        of such harm is not established by the fact of ultimate conviction
        but rather “depends upon whether [the defendant’s] right to a fair
        trial was detrimentally affected by the denial of procedural
        opportunities for the ascertainment of truth to which he
        otherwise would have been entitled.” Townsend v. State, 632
        N.E.2d 727, 730 (Ind. 1994) (quoting Hart v. State, 578 N.E.2d
        336, 338 (Ind. 1991)). In evaluating the issue of fundamental
        error, our task in this case is to look at the alleged misconduct in
        the context of all that happened and all relevant information
        given to the jury—including evidence admitted at trial, closing
        argument, and jury instructions—to determine whether the
        misconduct had such an undeniable and substantial effect on the
        jury’s decision that a fair trial was impossible. See Boesch v. State,
        778 N.E.2d 1276, 1279 (Ind. 2002); Townsend, 632 N.E.2d at 730;
        see, e.g., Castillo, 974 N.E.2d at 469 n.11 (noting closing
        arguments are perceived as partisan advocacy).

        We stress that “[a] finding of fundamental error essentially
        means that the trial judge erred ... by not acting when he or she
        should have....” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).
        Fundamental error is meant to permit appellate courts a means to
        correct the most egregious and blatant trial errors that otherwise
        would have been procedurally barred, not to provide a second
        bite at the apple for defense counsel who ignorantly, carelessly,
        or strategically fail to preserve an error.




Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 7 of 30
       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (internal citation omitted, emphasis

       to sua sponte and third set of brackets in original).


[11]   Brooks argues that the trial court committed fundamental error in three ways:

       (1) by mentioning the first trial during his murder trial, (2) by admitting

       evidence relating to the theft of two vehicles, and (3) by allowing his probation

       officer to testify regarding self-incriminating statements made by Brooks.

       Brooks further argues that these errors were such that would require reversal of

       his murder and robbery convictions. For its part, the State argues that Brooks’s

       convictions should be affirmed because Brooks has failed to establish that any

       alleged error of the trial court constituted fundamental error.


                                  A. Mention of the First Trial
[12]   Brooks argues that the trial court committed fundamental error by mentioning

       the first trial during the murder trial. The record demonstrates that during the

       murder trial, the following exchange occurred between NVPD Detective Ivory

       Sandefur, the prosecuting attorney, and the trial court:


               [The State]: This is a copy of State’s Exhibit #6 the dumpster
               one is that correct?
               [Witness]:           That is correct.
               [The State]: Is that how it was when you first saw it other than
               the crime scene tape, I mean was the door closed like it is there?
               [Witness]:           Yes.
               [The Court]: Officer Sandefur this came up during the first trial,
               is there actually a dumpster in there or is it just trash throw [sic]
               in loose?
               [Witness]:           It’s just trash thrown in loose.


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 8 of 30
       Tr. p. 1162. Questioning then continued with no additional reference to the

       first trial.


[13]   Review of the record indicates that the trial court did not make any other

       mention of the first trial or discuss the first trial in any detail before the jury. 3

       Brooks’s counsel acknowledges that he did not object to the trial court’s

       statement because “to do so would have only highlighted the trial court judge’s

       statement and would have created more prejudice to him.” Appellant’s Br. p.

       14. Brooks’s counsel also conceded that the trial court merely misspoke and did

       not intend to discuss the first trial in any significant fashion. Brooks does not

       establish, and the record does not support, a finding that the trial court’s single

       reference to the first trial, without more, made it impossible for Brooks to

       receive a fair trial in the murder trial. As such, we conclude that the trial

       court’s brief mention of the first trial did not constitute fundamental error.4 See




       3
         During a conference held outside of the presence of the jury, the trial court noted that with respect to
       evidence relating to the auto thefts, “there was never a mention of a conviction never a mention that it
       was discussed in the first trial, and I have prepared an instruction which will admonish the jury that
       they are to consider it only for the purposes of identifying the Defendant and flight.” Tr. p. 1378. To
       the extent that Brooks contends that this statement shows that his first trial was mentioned a second
       time, we cannot see how Brooks could have been prejudiced by this conversation as it occurred outside
       of the presence of the jury.


       4
          Brooks also argues that by mentioning the first trial, the trial court violated its order on his oral
       motion in limine. During a conference prior to the beginning of Brooks’s murder trial, Brooks made an
       oral motion in limine. This motion concerned the testimony of two particular witnesses, neither of
       which was Detective Sandefur. In ruling on this motion, the trial court ordered that the two particular
       witnesses could not discuss the first trial or Brooks’s convictions for auto theft. The trial court’s order
       concerned only the two particular witnesses, and was not a general order relating to all other witnesses,
       the parties, or the court itself. Given the limited nature of the trial court’s order, we cannot say that the
       trial court violated its prior order by inadvertently mentioning the first trial one time during Detective
       Sandefur’s testimony at the murder trial.

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016          Page 9 of 30
       generally, Emmons v. State, 542 N.E.2d 544, 545-46 (Ind. 1989) (finding that a

       passing reference to defendant’s prior trial without any indication of the

       outcome of said trial did not give rise to error).


                            B. Evidence Relating to Auto Theft
[14]   The Indiana Supreme Court has held that a claim relating to admission of

       evidence at trial “that has been waived by a defendant’s failure to raise a

       contemporaneous objection can be reviewed on appeal if the reviewing court

       determines that a fundamental error occurred.” Brown v. State, 929 N.E.2d 204,

       207 (Ind. 2010). In this case, Brooks concedes that he did not object to the

       admission of the challenged evidence at trial, instead arguing that admission of

       evidence relating to the theft of the two trucks constituted fundamental error.

       Specifically, Brooks claims that the evidence should not have been admitted

       because it was “evidence of prior bad acts pursuant to Ind. Evidence Rule

       404(b).” Appellant’s Br. pp. 16-17. Brooks also claims that the evidence should

       have been excluded because it was “more prejudicial to him than its probative

       value.” Appellant’s Br. p. 20.


[15]   Indiana Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.”

       However, “[t]his evidence may be admissible for another purpose, such as

       proving motive, opportunity, intent, preparation, plan, knowledge, identity,

       absence of mistake, or lack of accident.” Ind. Evid. R. 404(b).


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 10 of 30
        The rationale behind Rule 404(b) is that the jury is precluded
        from making the forbidden inference that the defendant had a
        criminal propensity and therefore engaged in the charged
        conduct. Cowan v. State, 783 N.E.2d 1270, 1275 (Ind. Ct. App.
        2003). However, [the Indiana Supreme Court] has determined
        that Rule 404(b) does not bar the admission of evidence of
        uncharged criminal acts that are “intrinsic” to the charged
        offense. Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997).
        “Intrinsic,” in this context, refers to those offenses occurring at
        the same time and under the same circumstances as the crimes
        charged. Cowan, 783 N.E.2d at 1275; cf. United States v. Barnes, 49
        F.3d 1144, 1149 (6th Cir. 1995) (“When the other crimes or
        wrongs occurred at different times and under different
        circumstances from the offense charged, the deeds are termed
        ‘extrinsic.’”) Evidence of such conduct is admissible because it
        does not concern “other” crimes, wrongs, or acts, and it is not
        offered for the purpose of creating an inference as to the
        accused’s character or propensity. See Evid. R. 404(b); Lee, 689
        N.E.2d at 439; Weyls v. State, 598 N.E.2d 610, 613-14 (Ind. Ct.
        App. 1992), trans. denied. Notably, acts by persons other than the
        defendant may be relevant and admissible as intrinsic acts.
        Blankenship v. State, 462 N.E.2d 1311, 1313 (Ind. 1984).


Kyle v. State, 54 N.E.3d 439, 444 (Ind. Ct. App. 2016). “‘Evidence of

happenings near in time and place that complete the story of the crime is

admissible even if it tends to establish the commission of other crimes not

included among those being prosecuted.’” Wages v. State, 863 N.E.2d 408, 411

(Ind. Ct. App. 2007) (quoting Bocko v. State, 769 N.E.2d 658, 664-65 (Ind. Ct.

App. 2002), trans. denied). Admissibility of all intrinsic evidence depends solely

on the balance between the probative value of the evidence and the risk of

unfair prejudice. Kyle, 54 N.E.3d at 444 (citing Ware v. State, 816 N.E.2d 1167,

1175 (Ind. Ct. App. 2004)).
Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 11 of 30
[16]   Review of the record demonstrates that the challenged evidence was presented

       to show that Brooks and his accomplice, Mays, fled the scene of the murder by

       stealing two trucks. The thefts and resulting flight occurred soon after the

       murder. The thefts also occurred within a few miles of each other and the

       murder scene. Law enforcement officials subsequently encountered Brooks and

       Mays in Corydon near the scene where one of the stolen trucks had been driven

       off the road and into a ravine where it struck a tree. Upon review, we conclude

       that the theft of the trucks was intrinsic to the murder as it completed the story

       of how Brooks and Mays got from the scene of the murder to Corydon. Their

       flight from the murder scene was also relevant to show consciousness of guilt.

       See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (providing that evidence of

       flight may be considered as circumstantial evidence of consciousness of guilt).

       The challenged evidence was not offered as evidence of Brooks’s character or

       propensity but was necessary to complete the story of the crime, namely how

       Brooks got from the spot of the murder to Corydon. Thus, the challenged

       evidence was admissible under Indiana Evidence Rule 404(b).


[17]   We have held that “[e]ven if relevant under 404(b), the evidence may

       nevertheless be excluded if its probative value is substantially outweighed by its

       prejudicial effect.” Cadiz v. State, 683 N.E.2d 597, 600 (Ind. Ct. App. 1997)

       (citing Evid. R. 403; Forrest v. State, 655 N.E.2d 584, 587 (Ind. Ct. App. 1995),

       trans. denied). Indiana Evidence Rule 403 provides that “[t]he court may

       exclude relevant evidence if its probative value is substantially outweighed by a

       danger of one or more of the following: unfair prejudice, confusing the issues,


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 12 of 30
       misleading the jury, undue delay, or needlessly presenting cumulative

       evidence.” The Indiana Supreme Court has held that “[t]rial courts are given

       wide latitude in weighing probative value against the danger of unfair prejudice,

       and we review that determination for abuse of discretion.” Houston v. State, 730

       N.E.2d 1247, 1251 (Ind. 2000).

               We acknowledge the potential for prejudice, however our inquiry
               is not whether the evidence is prejudicial. Rather, the inquiry is
               whether the evidence is unfairly prejudicial since all relevant
               evidence in a criminal proceeding is inherently prejudicial.
               Richmond v. State, 685 N.E.2d 54, 55 (Ind. 1997); [Cadiz, 683
               N.E.2d at 600].


       Giles v. State, 699 N.E.2d 294, 300 (Ind. Ct. App. 1998). As such, in considering

       whether admission of the challenged evidence amounted to fundamental error,

       we must next consider whether the probative value of the evidence outweighed

       the risk that its admission would cause unfair prejudice to Brooks.


[18]   In arguing that the risk of prejudice outweighed the probative value of the

       challenged evidence, Brooks claims that the challenged evidence was not

       probative because Mays testified that they had not stolen the trucks as a means

       to escape Jennings County but rather that in taking the trucks, they were merely

       “joy riding” and “goofing around.” Tr. p. 1482. However, the jury was under

       no obligation to believe Mays’s explanation for why he and Brooks stole the

       trucks. See Roberson v. State, 430 N.E.2d 1173, 1175 (Ind. 1982) (providing that

       it “is the prerogative of the trier of fact to believe the witnesses or disbelieve

       them, and to disregard the testimony of a witness they do not believe”).

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 13 of 30
       Further, with respect to the challenged evidence, the trial court gave the

       following limiting instruction to the jury:


               Evidence regarding the Defendant’s involvement in the theft of
               two (2) motor vehicles is to be considered by you only for the
               purpose of identifying the Defendant and to show his actions at
               or near the time of the events in this case, and you are to consider
               it only for that purpose.


       Tr. p. 1650. Nothing in the record indicates that the jury disregarded the trial

       court’s instruction.


[19]   Upon review, we conclude that Brooks has failed to prove that the probative

       value of the challenged evidence was unfairly prejudicial. We therefore further

       conclude that Brooks has failed to establish error, much less fundamental error,

       with regard to the admission of the challenged evidence at trial.


                             C. Testimony of Probation Officer
[20]   Brooks last challenges the trial court’s decision to allow his probation officer to

       testify about a conversation which Brooks had engaged her in while housed in

       the Jennings County Jail prior to the murder trial. Brooks again concedes that

       he did not object to the admission of his probation officer’s testimony at trial,

       instead arguing that admission of this evidence constituted fundamental error.

       In raising this argument, Brooks claims that his probation officer’s testimony

       should not have been admitted because it was unfairly prejudicial.


[21]   During trial, the deputy prosecuting attorney asked Chasity Gerkin, a Jennings

       County probation officer, whether she spoke with Brooks at the Jennings
       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 14 of 30
County Jail in early-November of 2014. Gerkin responded that although she

wasn’t there to see Brooks, she did see him at Brooks’s request. Gerkin

indicated that during this encounter, she did not interview Brooks or attempt to

speak to him about the underlying criminal case. Gerkin’s testimony continued

as follows:


        [State]:      Ms. Gerkin can you tell the Court the content of
        that conversation you had with Mr. Brooks in November of last
        year?
        [Witness]: [Brooks] asked to speak to me regarding just my
        knowledge of his probation status, so we were talking and he
        wanted to get his time started. He advised me, he would be
        going away for a long time…
        [State]:      Let me stop you for a second, he was, was he
        talking about his pending criminal charges, the theft, murder and
        robbery?
        [Witness]: All in one, that was what he would be going away
        for a long time for is what he told me.
        [State]:      Was that your understanding of what he meant?
        [Witness]: Yes.
        [State]:      Okay what else did he go on to tell you?
        [Witness]: That basically, at that point in time he was
        aggravated. He was upset because he was stating that the co-
        defendant in this case was trying to pin everything on him, they
        were equal participants, he did it too, he had just as much in it as
        [Brooks] did, so he was upset that the co-defendant was lying.
        [Brooks] made the statement that basically he wasn’t a liar, he
        had already said what he did and he was just ready to get this
        going, get the time started and be done with it all.
        [State]:      Okay so he said we both participated in it. Do you
        mean, when he said both, Jovonnie Mays?
        [Witness]: Yes.
        [State]:      And Jody Brooks?
        [Witness]: Yes.

Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 15 of 30
               [State]:     Did he tell you anything else?
               [Witness]: We were talking about, basically I had come to, I
               just asked him why I mean, and he said he had been drinking, so
               basically you’re a mean drunk, and he said yes.
               [State]:     Did he say what type of alcohol causes him to be a
               mean drunk or anything?
               [Witness]: It was the hardened liquor, vodka specifically is
               what he had stated that … just made him mean.


       Tr. pp. 1382-84 (first ellipsis in original, second ellipsis added). On cross

       examination, defense counsel attempted to call Gerkin’s credibility into

       question by asking her about her friendship with the deputy prosecutor’s wife

       and the fact that she had known the deputy prosecutor “for years.” Tr. 1385.

       Defense counsel also questioned Gerkin as follows:

               [Defense Counsel]: Okay so you’re saying that [Brooks] was
               worried that [Mays] was throwing him under the bus?
               [Witness]:          He was angry.
               [Defense Counsel]: An innocent person would be mad if
               someone was trying to throw them under the bus correct?
               [Witness]:          Correct.
               [Defense Counsel]: Would a guilty person be worried about
               something like that?
               [Witness]:          I would think so too.


       Tr. p. 1385.


[22]   The admissibility of a defendant’s statement or confession “is controlled by

       determining, from the totality of the circumstances, whether it was made

       voluntarily and not through inducement, violence, threats, or other improper

       influences so as to overcome the free will of the accused.” Pasco v. State, 563

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 16 of 30
       N.E.2d 587, 591 (Ind. 1990) (citing Lyons v. State, 506 N.E.2d 813, 816 (Ind.

       1987)). In the instant matter, the record reflects that in engaging in the above-

       discussed conversation, Gerkin did not seek Brooks out, but rather that Brooks

       sought Gerkin out. The record further reflects that Brooks was acting

       voluntarily and of his own accord when he made the above-quoted statements

       to Gerkin. As such, the totality of the circumstances indicate that Brooks’s

       statement to Gerkin was admissible as it was made voluntarily and not through

       inducement, violence, threats, or other improper influences.


[23]   Further, we disagree with Brooks’s claim that Gerkin’s testimony regarding his

       voluntary statement to her was unfairly prejudicial because it indicated that he

       was on probation for some other criminal acts and was vague as to what crimes

       he was admitting to have committed. While Brooks’s statement to Gerkin was

       undoubtedly prejudicial, it was not unfairly prejudicial. Again, Brooks made

       the statement to Gerkin voluntarily and of his own accord. In addition,

       Gerkin’s testimony was clear that she understood Brooks to have been

       admitting to involvement in the thefts of the trucks, the robbery, and the

       murder. Brooks’s counsel did not object to this testimony, but rather attempted

       to raise questions as to Gerkin’s credibility on cross-examination. Further,

       while Gerkin’s testimony did indicate that Brooks questioned her about his

       probation status, Gerkin provided no testimony regarding whether Brooks was

       actually on probation at the time Brooks engaged her in the above-discussed

       conversation. Brooks has failed to demonstrate that the trial court erred by




       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 17 of 30
       allowing Gerkin to testify, much less that the trial court’s decision in this regard

       constituted fundamental error.


                                        D. Cumulative Effect
[24]   Brooks alternatively argues that “should this Court rule that no one error

       reached the level of fundamental error, Mr. Brooks argues that the combination

       of all the errors reached the level of fundamental error and Mr. Brooks’s

       conviction should be reversed and the matter remanded to the trial court.”

       Appellant’s Br. p. 22. We disagree. The Indiana Supreme Court has held that

       a defendant “is not entitled to a perfect trial, but is entitled to a fair trial, free of

       errors so egregious that they, in all probability, caused the conviction.” Averhart

       v. State, 614 N.E.2d 924, 929 (Ind. 1993). Brooks has failed to prove that the

       cumulative effect of the alleged errors was so egregious that it made a fair trial

       impossible or “caused” his convictions.


                     II. Admission and Exclusion of Evidence
[25]   Brooks also contends that the trial court abused its discretion in excluding

       certain evidence from trial and admitting other evidence at trial.

               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
               (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
               for an abuse of discretion. Id. We will consider the conflicting
               evidence most favorable to the trial court’s ruling and any
               uncontested evidence favorable to the defendant. Taylor v. State,
               891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
               discretion occurs when the trial court’s decision is clearly against
               the logic and effect of the facts and circumstances before the
       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 18 of 30
               court or it misinterprets the law. Id. In determining whether an
               error in the introduction of evidence affected an appellant’s
               substantial rights, we assess the probable impact of the evidence
               on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
               App. 2002). Admission of evidence is harmless and is not
               grounds for reversal where the evidence is merely cumulative of
               other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703
               (Ind. Ct. App. 2002).


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

       court’s ruling will be upheld if it is sustainable on any legal theory supported by

       the record, even if the trial court did not use that theory.” Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

       (Ind. Ct. App. 2006)).


                              A. Exclusion of Certain Evidence
[26]   Brooks claims that the trial court abused its discretion in excluding certain

       evidence which the trial court determined to be inadmissible hearsay. In

       making this claim, Brooks argues that the challenged testimony should have

       been admitted because it fell under the excited utterance exception to the

       hearsay rule. For its part, the State claims that the trial court did not abuse its

       discretion in excluding the challenged evidence because the evidence in

       question amounted to inadmissible hearsay.


[27]   “Hearsay is an out of court statement offered to prove the truth of the facts

       asserted in the statement itself.” Williams v. State, 782 N.E.2d 1039, 1045 (Ind.

       Ct. App. 2003) (citing Ind. Evidence Rule 801(c)). “Hearsay is generally


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 19 of 30
       inadmissible unless the statement falls within one of the established hearsay

       exceptions.” Id. (citing Ind. Evid. R. 802). In the present case, Brooks argued

       that the challenged statements were admissible under the excited utterance

       exception.


[28]           For a hearsay statement to be admitted as an excited utterance
               under Evidence Rule 803(2), three elements must be shown: (1) a
               startling event occurs; (2) a statement was made by a declarant
               while under the stress of excitement caused by the event; and (3)
               the statement relates to the event. Ind. Evid. R. 803(2).
               Application of these elements is not mechanical. Rather, the
               inquiry turns on whether the statement is inherently reliable
               because the declarant was under the stress of the event and
               unlikely to make deliberate falsifications. Cox v. State, 774
               N.E.2d 1025, 1027 (Ind. Ct. App. 2002) (citing Jenkins v. State,
               725 N.E.2d 66, 68 (Ind. 2000)). The time period between the
               startling event and the statement is but one factor to consider
               when determining if a statement is an excited utterance, but no
               precise length of time is required. Id. (citing Simmons v. State, 760
               N.E.2d 1154, 1161 (Ind. Ct. App. 2002)).


       Id. at 1045-46.


[29]   Brooks called Matt Gosman to testify at trial about an interaction he had with

       Austin Woodson during the late-morning or early-afternoon hours on October

       17, 2014. The State objected when Brooks attempted to illicit statements

       allegedly made by Woodson from Gosman, arguing that any statement made

       by Woodson was hearsay. Brooks argued that Woodson’s statements qualified

       as excited utterances, and therefore should be admitted. The trial court

       disagreed and sustained the State’s objection. Brooks did not make an offer of


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 20 of 30
       proof at this time regarding the alleged contents of Woodson’s statement to

       Gosman. Any claim of error in this regard is therefore waived. See Carter v.

       State, 932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010) (providing that a claim that a

       trial court abused its discretion by excluding evidence is waived if the party

       wishing to have the evidence admitted fails to make an offer to prove).


[30]   Gosman also testified that he was interviewed by State Police Officer Roger

       Drew regarding his observation of and conversation with Woodson. Brooks

       then attempted to introduce a video recording of Officer Roger Drew’s

       interview with Gosman. In a hearing outside of the presence of the jury, the

       State objected to admission of the recording, arguing that Gosman’s statements

       regarding any statement made by Woodson was hearsay. Brooks again claimed

       that Woodson’s statements qualified as excited utterances. The hearing outside

       the presence of the jury continued with the trial court engaging the parties in the

       following exchange:

               [Trial Court]:              The only exception that I can see it
               would come under would be excited utterance, and I don’t think
               it meets the requirements for that. Anything else?
               [Defense Counsel]:          No your Honor.
               [Trial Court]:              Do you wish to make an offer or [sic]
               proof on the issue? I think I know what it is already, but for the
               record we probably should get that it in.
               [Defense Counsel]:          Yes I do your Honor. I offer to prove
               that Austin Woodson would, of course we can go back to the last
               record of the last trial where it says…
               [Trial Court]:              But I think we should make it in this
               trial.
               [Defense Counsel]:          Right but I’m just saying that’s what

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 21 of 30
               he’s going to say, we just saw a guy get killed.
               [Trial Court]:              Do you wish to add to that [Deputy
               Prosecutor]?
               [Deputy Prosecutor]:        No I’m not sure that was his exact
               statement or even that was in fact it, but …
               [Defense Counsel]:          That was close to it.
               [Trial Court]:              The objection is sustained[.]


       Tr. pp. 1580-81.


[31]   In arguing that Woodson’s comments qualified as an excited utterance, Brooks

       claimed that Woodson’s statements were “extremely important” and to not

       admit them would be “highly prejudicial” because they called into question the

       timeline for the murder that was presented by the State. Tr. pp. 1578, 1579.

       Gosman indicated that at the time Woodson made the statements in question,

       he was acting “[r]eal strange” and that Woodson and the other two individuals

       with him appeared to be “nervous or scared.” Tr. p. 1572, 1576. Again, for a

       hearsay statement to be admitted as an excited utterance under Evidence Rule

       803(2), three elements must be shown: (1) a startling event occurs; (2) a

       statement was made by a declarant while under the stress of excitement caused

       by the event; and (3) the statement relates to the event. Ind. Evid. R. 803(2).

       The fact that Woodson was acting strange and appeared to be nervous or

       scared, without more, is not sufficient to meet the requirements of Evidence

       Rule 803(2). Further, when pressed on the strange nature of Woodson’s

       behavior, Gosman indicated that he saw that while Woodson and two other

       men gathered around a piece of park equipment, one of the men took off his

       shirt, put a clean shirt on, and placed the other shirt into a duffle bag. On cross-

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 22 of 30
       examination, Gosman admitted that he “had heard” that Woodson was

       homeless or a transient who moved around a great deal and acknowledged that

       it would seem likely that “someone such as that” would carry a duffle bag with

       him with his belongings. Tr. p. 1575.


[32]   The trial court determined that Brooks had failed to establish that Woodson’s

       alleged statement constituted an excited utterance. Brooks has failed to prove

       on appeal that the trial court abused its discretion in reaching this

       determination. As such, we conclude that the trial court did not abuse its

       discretion in excluding Gosman’s testimony relating to the contents of the

       statements that Woodson allegedly made.


                             B. Admission of Certain Evidence
[33]   For a second time, under a different theory than was argued above, Brooks

       challenges the admission of Gerkin’s testimony. Specifically, Brooks argues

       that the trial court abused its discretion in admitting Gerkin’s testimony

       regarding the conversation she had with Brooks in the Jennings County Jail in

       November of 2014. In making this argument, Brooks claims that his comments

       to Gerkin were made during a custodial interview that Gerkin conducted for the

       purpose of completing a pre-sentence investigation report (“PSI report”) and

       because the matter had yet to reach the sentencing phase with respect to all of

       the charges relating to the murder, robbery, and auto theft, Gerkin should have

       read him his Miranda rights before interviewing him. For its part, the State

       argues that Brooks’s comments were admissible as the comments were not

       made during a custodial interview but rather were voluntarily made by Brooks.
       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 23 of 30
[34]   Initially, we observe that despite Brooks’s claim to the contrary, the record

       clearly demonstrates that on the date in question, Gerkin was not at the

       Jennings County Jail for the purpose of interviewing Brooks in connection to

       the creation of a PSI report. Gerkin explicitly testified that she was not at the

       Jennings County Jail on the date in question for the purpose of speaking with

       Brooks and that she only spoke to Brooks at Brooks’s request. Gerkin further

       testified that during her encounter with Brooks, she did not interview Brooks or

       attempt to speak to him about the underlying criminal case. Brooks has failed

       to point to anything in the record, apart from his own self-serving arguments,

       which would suggest that Gerkin’s testimony in this regard was not accurate.

       The trial court acted well within its discretion when it credited Gerkin’s

       testimony over Brooks’s self-serving arguments and allowed Gerkin to testify.

       See generally Black v. State, 256 Ind. 487, 490, 269 N.E.2d 870, 872 (1971)

       (providing that because only a trial court sees the witnesses on the stand, their

       demeanor in testifying, their candor, or lack of candor, in disclosing facts about

       which they have knowledge, juries and trial courts are in the best position to

       determine which witnesses to believe).


[35]   Further, we reject Brooks’s claim that Gerkin should have read him his Miranda

       rights before he gave the statement in question. With respect to the requirement

       to give Miranda warnings, we have previously held that “[r]ights under Miranda

       apply only to custodial interrogation.” Richardson v. State, 794 N.E.2d 506, 512

       (Ind. Ct. App. 2003) (citing White v. State, 772 N.E.2d 408, 412 (Ind. 2002)).

       “[U]nder Miranda, ‘interrogation’ includes express questioning and words or


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 24 of 30
       actions on the part of the police that the police know are reasonably likely to

       elicit an incriminating response from the suspect.” Id. (citing White, 772

       N.E.2d at 412). “Volunteered statements do not amount to interrogation.” Id.

       (citing White, 772 N.E.2d at 412).


[36]   It is undisputed that Brooks was incarcerated at the time he made the statement

       at issue. However, the record clearly demonstrates that his statement to Gerkin

       was voluntary. Thus, the statement at issue was not obtained through

       interrogation and was admissible. See id.; see also White, 772 N.E.2d at 412.


                            III. Appropriateness of Sentence
[37]   Brooks also contends that his aggregate sixty-two-year sentence is

       inappropriate. In challenging the appropriateness of his sentence, Brooks

       asserts that he “believes that 60 years for the murder is excessive.” Appellant’s

       Br. p. 33. We disagree.


[38]   Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 25 of 30
       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[39]   With respect to the nature of Brooks’s offenses, the record demonstrates that

       Brooks and Mays carried out an unprovoked attack on Smith, a helpless,

       drunken man. This attack resulted in Smith’s death. Again, an autopsy later

       determined that Smith had suffered over fifty wounds, including, numerous

       cuts and bruises; long excoriations to his back that were consistent with

       dragging; bruising and hemorrhaging of Smith’s brain; multiple fractures to his

       nose, face, and eye socket; a fractured left hyoid bone; two fractures in his neck;

       factures of the ribs in five areas together with a punctured lung; hemorrhaging

       to Smith’s left testes; and a tear in Smith’s aorta which was “absolutely lethal”

       and had been the immediate cause of his death. Tr. p. 1325.


[40]   The evidence demonstrates that in carrying out this heinous attack, Brooks

       forcibly moved Smith from the common hallway of the apartment building to a

       spot used for garbage collection outside the building. Further, after committing

       the murder, Brooks and Mays stole and wrecked two vehicles, using the

       vehicles not only for flight but also to take “a joy ride.” Tr. p. 1481. The men

       drove one of the vehicles through a soybean field and ran the other off of the

       road, wrecking it into a tree. The fact that Brooks was allegedly intoxicated at

       the time he committed these criminal acts does not excuse his behavior or

       lessen the heinous nature of his crimes. The record demonstrates that despite

       his alleged intoxication, Brooks was alert and coherent enough to control his



       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 26 of 30
       movements and to comply with the commands of others. He was described by

       one witness as looking as if he was “on a mission.” Tr. p. 1055.


[41]   With respect to Brooks’s character, the record demonstrates that by the age of

       twenty-three, Brooks had already accumulated convictions for four

       misdemeanor offenses and one Class D felony offense. He had also been

       subject to three probation revocations. In addition, despite his claimed

       marketable skills, Brooks was unemployed when he murdered Smith. Brooks

       also admitted that he was a regular abuser of drugs and alcohol. In fact, Brooks

       further admitted that he had used both drugs and alcohol on the day of Smith’s

       murder. Brooks was determined to be a high risk to reoffend and reported little

       concern for others. Further, while incarcerated in the Jennings County Jail

       pending sentencing, Brooks was cited for six rule violations, including a fight

       that began when Brooks “sucker punch[ed]” another inmate, damaging a

       sprinkler head, flooding the cells and daily room of the jail’s 500 block, and

       flooding a sink or toilet. Tr. p. 1677. We agree with the State’s assertion that

       Brooks’s apparent disregard for authority, the laws of this state, and the rights

       of others speaks poorly of his character. We therefore conclude that Brooks has

       failed to prove that his sentence is inappropriate in light of the nature of his

       offenses and his character.


                    IV. Advisement of Possible Release Dates
[42]   Brooks last contends that the trial court erred by failing to advise him of his

       earliest and latest possible release dates from prison. Specifically, Brooks


       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 27 of 30
       argues that the trial court failed to comply with Indiana Code section 35-38-1-

       1(b), which provides: “When the court pronounces the sentence, the court shall

       advise the person that the person is sentenced for not less than the earliest

       release date and for not more than the maximum possible release date.”


[43]   We recently considered a similar claim in Henriquez v. State, 58 N.E.3d 942 (Ind.

       Ct. App. 2016). In Henriquez, we observed as follows:


               One way to interpret Section 35-38-1-1(b) would be to say that it
               requires the trial court to tell the defendant exactly what the
               provision says: “You are sentenced for not less than the earliest
               release date and for not more than the maximum possible release
               date.” In fact, this is the sort of advisement the Indiana Criminal
               Benchbook recommends. See Ind. Crim. Benchbook § 68.25.000
               (3d ed. 2001, supplemented through July 2014). However, such
               an advisement provides no meaningful information to the
               defendant and therefore serves no purpose. Thus, we presume
               that the legislature did not intend for the statute to be interpreted
               this way. See [Gargano v. Lee Alan Bryant Health Care Facilities,
               Inc., 970 N.E.2d 696, 702 (Ind. Ct. App. 2012).]

               The only other plausible interpretation of the language is that the
               trial court is required to advise the defendant of specific potential
               release dates. However, it would be incredibly difficult, if not
               impossible, for a trial court to determine these dates with any
               certainty. The trial court would have to consider not only the
               term of the sentence but also the term of any other concurrent or
               consecutive sentence, credit time earned before sentencing, the
               maximum amount of credit time in the current credit class,
               possible educational credit time, and the possibility of parole and
               probation violations and revocations down the road. See Hines v.
               State, 856 N.E.2d 1275, 1284 n. 9 (Ind. Ct. App. 2006), trans.
               denied. At best, the trial court could provide an estimate. Id. But
               providing estimated rather than precise release dates may lead to

       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 28 of 30
               more confusion than clarity for the offender. Moreover, any
               mistake by the trial court would open the door to future collateral
               sentencing attacks.


       58 N.E.3d at 943. We concluded that “[i]n any event, to the extent that the trial

       court “erred” by failing to provide specific dates, estimated or otherwise,

       Henriquez has not shown that he was harmed in any way by this omission” and

       that “[w]e will not reverse based on a harmless error.” Id. at 944. Accordingly,

       we affirmed the judgment of the trial court. Id. We also took the “opportunity

       to encourage our legislature to reconsider Indiana Code section 35-38-1-1(b)

       and the unworkable obligation it places on our trial courts.” Id.


[44]   Similarly, we conclude that to the extent that the trial court erred by failing to

       provide specific dates for Brooks’s possible release from incarceration, any such

       error was harmless. As we stated in Henriquez, we will not reverse based on a

       harmless error. Id.



                                              Conclusion
[45]   In sum, we conclude that Brooks has failed to prove that the trial court

       committed fundamental error or abused its discretion. We also conclude that

       Brooks has failed to prove that his sentence was inappropriate in light of the

       nature of his offenses or his character. Finally, we conclude that any error in

       the trial court’s failure to advise Brooks of specific possible release dates was, at

       most, harmless.


[46]   The judgment of the trial court is affirmed.
       Court of Appeals of Indiana | Memorandum Decision 40A04-1512-CR-2373 | November 4, 2016   Page 29 of 30
Pyle, J., and Altice, J., concur.




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