MEMORANDUM DECISION                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Mar 14 2018, 9:53 am
Memorandum Decision shall not be regarded as                                 CLERK
precedent or cited before any court except for the                       Indiana Supreme Court
                                                                            Court of Appeals
purpose of establishing the defense of res judicata,                          and Tax Court

collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm, P.C.                                    Attorney General of Indiana
Lafayette, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Carlvion Dupree Gates,                                   March 14, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1703-CR-593
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court.
                                                         The Honorable Randy J. Williams,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D01-1510-F3-15




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018             Page 1 of 16
[1]   Carlvion Dupree Gates appeals his convictions of one count of robbery, a Level
                     1
      5 felony; one count of possession of a narcotic drug (Oxycodone) as a Level 3
                 2
      felony; two counts of possession of a narcotic drug (Nucynta and Morphine,

      respectively) as Level 4 felonies; one count of possession of a narcotic drug

      (Oxymorphone) as a Level 5 felony; two counts of possession of a narcotic drug

      (Fentanyl and Methadone, respectively) as Level 6 felonies; and resisting law
                                                                         3
      enforcement by means of a vehicle, a Level 6 felony. We affirm.


[2]   In the early morning hours of September 9, 2015, Gates drove Meggan Parker

      and Ashley West from Indianapolis to West Lafayette, Indiana. Ashley’s ex-

      boyfriend, Jared Cunningham, traveled to West Lafayette at the same time but

      in a separate vehicle with another man who is not identified in the record. The

      group had discussed robbing a pharmacy in West Lafayette.


[3]   Cunningham entered the pharmacy while the others waited outside. He

      approached the pharmacy desk and ordered an employee to give him

      Oxycodone pills. Cunningham next went behind the desk and ordered the

      pharmacist, Kathy Smith, to open the safe where controlled substances were

      stored. She complied, and he instructed her to help him empty the contents of

      the safe, which included many bottles of different medications, into a large




      1
          Ind. Code § 35-42-5-1 (2014).
      2
          Ind. Code § 35-48-4-6 (2014).
      3
          Ind. Code § 35-44.1-3-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 2 of 16
      trash bag. Cunningham also placed several boxes of syringes in the bag before

      fleeing the store.


[4]   Next, Cunningham approached Gates’ car. Gates took the bag of stolen

      medications from Cunningham and put it in the trunk. Cunningham left with

      the unidentified man. Meanwhile, Gates, Parker, and West also left West

      Lafayette, driving toward Indianapolis. The police located them on an

      interstate highway and tried to stop them, but Gates fled. A high-speed chase

      ensued, during which Gates drove as fast as ninety miles an hour while weaving

      through traffic. West repeatedly asked Gates to stop, but he refused.


[5]   During the chase, Parker retrieved the bag of stolen medications from the trunk

      through a hatch behind the back seat. She opened some of the bottles and

      looked inside, indicating that the pharmacy may have hidden a tracking device

      in one of them. Parker and West also consumed Methadone, which was

      among the medications Cunningham had stolen.


[6]   Eventually, officers used stop sticks to disable the tires on Gates’ car and end

      the chase. The officers arrested Gates, Parker, and West, and impounded the

      car. During a subsequent search of the car, officers found a variety of

      controlled substances in the trunk and in the glove box. The officers

      determined those items came from the pharmacy, which later reported that the

      stolen controlled substances were valued at $32,325. Cunningham was

      apprehended several weeks later.




      Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 3 of 16
[7]    The State charged Gates with the offenses set forth above, plus conspiracy to

       commit robbery and possession of paraphernalia. Gates was tried by jury, and

       West testified for the State. The jury convicted Gates of all charges except

       conspiracy to commit robbery and possession of paraphernalia. The trial court

       imposed a sentence, and this appeal followed.


[8]    Gates raises three issues, which we consolidate and restate as:

               1.      Whether the prosecutor engaged in misconduct that
                       amounted to fundamental error while presenting closing
                       arguments.
               2.      Whether Gates’ multiple convictions for possession of a
                       narcotic drug violate his Indiana constitutional protection
                       against double jeopardy.

                                          1. Closing Arguments
[9]    Gates argues the prosecutor engaged in misconduct during closing arguments

       by: (1) commenting on Gates’ choice not to testify; (2) commenting on Gates’

       choice not to present any evidence; and (3) vouching for his own credibility and

       for West.


[10]   We evaluate a properly preserved claim of prosecutorial misconduct using a

       two-step analysis, considering (1) whether the prosecutor engaged in

       misconduct, and if so, (2) whether the misconduct, under the circumstances,

       placed the defendant in a position of grave peril to which he or she otherwise

       would not have been subjected. Cooper v. State, 854 N.E.2d 831 (Ind. 2006). A

       prosecutor has the duty to present a persuasive final argument and thus placing

       a defendant in grave peril, by itself, is not misconduct. Ryan v. State, 9 N.E.3d

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 4 of 16
       663 (Ind. 2016). The gravity of peril is measured by the probable persuasive

       effect of the misconduct on the jury’s decision rather than the degree of

       impropriety of the conduct. Cooper, 854 N.E.2d 831. One relevant factor is

       whether the alleged misconduct was repeated such that it appears that the

       prosecutor engaged in a deliberate attempt to improperly prejudice the

       defendant. Watkins v. State, 766 N.E.2d 18 (Ind. Ct. App. 2002), trans. denied.


[11]   To preserve a claim of prosecutorial misconduct, the defendant must request an

       admonishment of the jury at the time the misconduct occurs, and if further

       relief is desired, move for a mistrial. Ryan, 9 N.E.3d 663. Gates did not request

       an admonishment or mistrial at any point during the prosecutor’s closing

       arguments, and as a result he has procedurally defaulted his claims.


[12]   A defendant may present procedurally defaulted claims of prosecutorial

       misconduct on appeal, but in that circumstance the defendant must establish

       not only that misconduct occurred but also that the misconduct amounted to

       fundamental error. Id. The doctrine of fundamental error is an extremely

       narrow exception to the waiver rule. Id. Error is fundamental when it

       represents a “blatant violation of basic principles.” Ortiz v. State, 766 N.E.2d

       370, 375 (Ind. 2002). Stated differently, a fundamental error is error that is so

       prejudicial to the defendant’s due process rights as to make a fair trial

       impossible. Id.


[13]   The doctrine of fundamental error is meant to permit appellate courts a means

       to correct the “most egregious and blatant trial errors that otherwise would have


       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 5 of 16
       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.

       Ryan, 9 N.E.3d at 668. Our task here 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 alleged misconduct had such an unfairly prejudicial

       effect on the jury’s decision that a fair trial was impossible. Id.


[14]   We start with Gates’ claim that the prosecutor improperly commented on his

       choice not to testify. The Fifth Amendment to the United State Constitution

       and article 1, section 14 of the Indiana Constitution protect a defendant’s right

       to remain silent at trial. Boatright v. State, 759 N.E.2d 1038 (Ind. 2001). A

       prosecutor may not make a statement that the jury may reasonably interpret as

       an invitation to draw an adverse inference from the defendant’s silence. Id.

       (quotation omitted). If the prosecutor’s comment is addressed in its totality to

       other evidence rather than the defendant’s failure to testify, the comment is not

       grounds for reversal. Id.


[15]   During Gates’ closing argument, he noted that Cunningham did not testify and

       argued the prosecutor “was going to show us all this stuff [Cunningham] was

       going to say; you heard the list of witnesses, where were they?” Tr. Vol. 2, p.

       176. Gates later asked the jury to consider “Where was Cunningham? Where’s

       the star witness?” Id. at 177. During the State’s rebuttal argument, the

       following exchange occurred:



       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 6 of 16
               [Prosecutor]: Another mis-direct [sic] where is Jared
               Cunningham. Here’s the thing folks, I don’t want a witness. Mr.
               McCoy has every right to call the defendant as I do. And you
               heard from Detective Townsend’s testimony, how would you
               describe your dealings with Mr. Cunningham? Not cooperative
               and hostile. There you go. So, Mr. McCoy where is Jared
               Cunningham?
               [Gates]: Objection Judge.
               [The Court]: Sustained.
               [Prosecutor]: It’s a mis-direct [sic]. Why do I need to bring in
               the guy that robbed the place when that’s not an issue in this
               case?

       Id. at 188.


[16]   The prosecutor apparently misspoke, referring to “the defendant” during a

       discussion of Cunningham’s testimony. We cannot conclude this isolated

       reference amounted to misconduct, let alone fundamental error. Gates had

       raised the absence of Cunningham’s testimony, and the prosecutor’s comments

       in their totality were addressed to Cunningham’s absence rather than Gates’

       choice not to testify. The misstatement did not amount to misconduct and was

       not so prejudicial as to render a fair trial impossible.


[17]   Gates further argues the State improperly attempted to shift the burden of proof

       to him by telling the jury that he did not call Cunningham to testify. We

       disagree. Prosecutors are permitted to respond to allegations and inferences

       raised by the defense even if the prosecutor’s response would otherwise be

       objectionable. Dumas v. State, 803 N.E.2d 1113 (Ind. 2004). Gates repeatedly

       pointed out to the jury during his closing argument that Cunningham had not

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 7 of 16
       testified and argued that his absence showed weakness in the State’s case. The

       prosecutor was entitled to remind the jury on rebuttal that a police officer had

       determined Cunningham was hostile and uncooperative. Further, the trial

       court instructed the jury that during preliminary and closing instructions that

       Gates was “not required to present any evidence to prove his innocence or to

       prove or explain anything.” Appellant’s App. Vol. II, pp. 79, 102. Any harm

       by the prosecutor’s comments did not rise to the level of fundamental error. See

       Chubb v. State, 640 N.E.2d 44 (Ind. 1994) (prosecutor’s comment on defendant’s

       failure to call witnesses was de minimus impropriety, at best, and was cured by

       jury instructions).


[18]   Next, Gates claims the prosecutor engaged in misconduct by vouching for his

       own credibility and by vouching for State’s witness Ashley West. Prosecutors

       must avoid describing themselves to the jury as having higher ethical

       responsibilities than defense counsel, because “such comments might

       improperly sway a jury in favor of conviction.” Coy v. State, 720 N.E.2d 370,

       373 (Ind. 1999). In addition, a prosecutor may not personally vouch for a

       witness. Ryan, 9 N.E.3d 663. Instead, he or she may comment on a witness’s

       credibility if the comments are based on reasons that arise from the evidence.

       Id. (quotation omitted).


[19]   During Gates’ closing argument, he implied the State prosecuted him with

       dishonorable motives, characterizing the State’s case as “a shell game” and

       claiming the State pursued a case against him despite “a lack of evidence” “just

       because [the prosecutor and police] want him convicted.” Tr. Vol. 2, pp. 183-

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 8 of 16
       84. Gates further attacked West’s credibility, accusing her of changing her story

       and testifying pursuant to a plea agreement to a “version of the story” the police

       wanted her to tell. Id. at 181.


[20]   On rebuttal, the prosecutor presented the following argument as to the State’s

       motives and West’s truthfulness:

               Now, [West] literally has no reason to lie. She is serving her
               time. For someone that didn’t go actually into the CVS and
               someone who wasn’t driving the car, she got hit pretty hard.
               This is not - how is this a self-serving statement? She pled guilty
               ...
                                                     ****
               Self serving statement. That’s not a self serving statement, she’s
               in the DOC. She got hit hard. There is no reason to doubt her
               credibility. Not to mention her phone, the lack of evidence on it
               coooberates [sic] what she said. All the places they stopped
               coooberates [sic] with what she says. It just makes sense. And
               here’s the thing he wants to say that we got what we wanted
               here, that’s not my job. My job is very different from [defense
               counsel’s], my job is [to] search the truth. If I think someone is
               not guilty of a crime, I can’t charge ‘em, I have to dismiss it
               based upon the evidence. I didn’t ask Ashley to give up Carlvion
               Gates, her plea agreement said tell the truth and that’s what she
               did. Ladies and gentlemen I’d love to get, you know, go a little
               further with this, but I think you get the picture. I think we’ve
               picked this apart pretty well. Look at the facts and don’t listen to
               the bluster. Look at the facts and find Carlvion Gates guilty as
               charged in all counts. Thank you.

       Id. at 193-94.


[21]   The prosecutor made these remarks in rebuttal to Gates’ attacks on the State’s

       motive for prosecuting him and on West’s credibility. The prosecutor did not

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 9 of 16
       denigrate Gates’ attorney but rather explained that he can pursue only those

       cases that are supported by the evidence. In addition, the prosecutor’s

       comments on West’s credibility were based on the evidence. He encouraged

       the jury to conclude she was being truthful based on the evidence, not merely

       on the prosecutor’s opinion. Even if the prosecutor’s statements as to

       credibility were inappropriate, none of them rose to the level of fundamental

       error. See Brown v. State, 746 N.E.2d 63 (Ind. Ct. App. 2001) (prosecutor did

       not engage in misconduct during closing argument; the prosecutor’s remarks

       were made in response to the defendant’s allegation of prosecutorial

       misconduct).


[22]   Finally, Gates argues that even if each of the prosecutor’s statements do not

       require reversal of the verdict, then all the statements, taken together, amount to

       fundamentally erroneous prosecutorial misconduct. We disagree. The

       statements that Gates challenges were raised on rebuttal, after Gates had

       questioned the State’s motives in bringing the case, the absence of testimony by

       Cunningham, and West’s credibility. In addition, the trial court’s preliminary

       and final jury instructions informed the jury how to assess witness credibility

       and reminded the jury Gates was not obligated to present any evidence.


[23]   Finally, the evidence against Gates was substantial. He did not dispute fleeing

       from the police, and large quantities of controlled substances were found in the

       glove box and trunk of the car he was driving. We conclude that the

       prosecutor’s statements did not amount to misconduct and were not so unfairly

       prejudicial as to render a fair trial impossible. See Ryan, 9 N.E.3d 663

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 10 of 16
       (defendant’s claim of cumulative error in jury arguments was without merit; the

       jury instructions and evidence, taken as a whole, overcame the prosecutor’s

       misconduct and there was no fundamental error).


                                            2. Double Jeopardy
[24]   The jury determined Gates was guilty of six counts of possession of a narcotic

       drug. He claims these convictions violate the Indiana Constitution’s ban on

       double jeopardy because he only committed one act of possession. Gates does

       not raise a claim under the federal Double Jeopardy Clause.


[25]   Article 1, section 14 of the Indiana Constitution provides, in relevant part, “No

       person shall be put in jeopardy twice for the same offense.” Whether a

       conviction violates the prohibition against double jeopardy is an issue of

       statutory interpretation, which we review de novo. Taylor v. State, 929 N.E.2d

       912 (Ind. Ct. App. 2010), trans. denied. The Indiana Supreme Court has

       explained that two or more convictions violate section 14 “if, with respect to

       either the statutory elements of the challenged crimes or the actual evidence

       used to convict, the essential elements of one challenged offense also establish

       the essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999).


[26]   We start with the “statutory elements” test. Id. at 50. As our Supreme Court

       has explained:

               The objective of this test is to determine whether the essential
               elements of separate statutory crimes charged could be
               established hypothetically. In this test, the charged offenses are

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 11 of 16
               identified by comparing the essential statutory elements of one
               charged offense with the essential statutory elements of the other
               charged offense. Inspecting the relevant statutes and the
               charging instrument to identify those elements which must be
               established to convict under the statute, this review considers the
               essential statutory elements to determine the identity of the
               offense charged, but does not evaluate the manner or means by
               which the offenses are alleged to have been committed, unless
               the manner or means comprise an essential element. Once the
               essential elements of each charged offense have been identified,
               the reviewing court must determine whether the elements of one
               of the challenged offenses could, hypothetically, be established by
               evidence that does not also establish the essential elements of the
               other charged offense.

       Id. at 50 (footnotes omitted).


[27]   The statute that defines the offense of possession of a narcotic drug provides:

               (a) A person who, without a valid prescription or order of a
               practitioner acting in the course of the practitioner’s professional
               practice, knowingly or intentionally possesses cocaine (pure or
               adulterated) or a narcotic drug (pure or adulterated) classified in
               schedule I or II, commits possession of cocaine or a narcotic
               drug, a Level 6 felony, except as provided in subsections (b)
               through (d).
               (b) The offense is a Level 5 felony if:
               (1) the amount of the drug involved is at least five (5) but less
               than ten (10) grams; or
               (2) the amount of the drug involved is less than five (5) grams
               and an enhancing circumstance applies.
               (c) The offense is a Level 4 felony if:
               (1) the amount of the drug involved is at least ten (10) but less
               than twenty-eight (28) grams; or



       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 12 of 16
                (2) the amount of the drug involved is at least five (5) but less
                than ten (10) grams and an enhancing circumstance applies.
                (d) The offense is a Level 3 felony if:
                (1) the amount of the drug involved is at least twenty-eight (28)
                grams; or
                (2) the amount of the drug involved is at least ten (10) but less
                than twenty-eight (28) grams and an enhancing circumstance
                applies.

       Ind. Code § 35-48-4-6 (2014).


[28]   In the current case, all six of Gates’ convictions for possession of a narcotic

       drug necessarily arise from the same statute. When the statute is examined in

       conjunction with the charging information, the essential elements for each

       offense are different because the offenses, as charged, address possession of

       different narcotics in varying weights:


                    Charge                    Controlled Substance                            Amount
           IV – Level 3 felony                Oxycodone                            28 or more grams

           V – Level 4 felony                 Tapentadol a/k/a                     at least 10 but less than
                                              Nucynta                              28 grams

           VI – Level 4 felony                Morphine                             at least 10 but less than
                                                                                   28 grams

           VII – Level 5 felony
                                    4
                                              Oxymorphone                          at least 5 but less than
                                                                                   10 grams




       4
         The charging information listed this offense as a Level 4 felony, but the amount of narcotic alleged indicates
       that it was a Level 5 felony. The trial court instructed the jury to consider the offense as a Level 5 felony and
       entered a judgment of conviction for this offense as a Level 5 felony.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018               Page 13 of 16
        VIII – Level 6 felony             Fentanyl                           not stated (pursuant to
                                                                             statute, must be less
                                                                             than 5 grams)

        IX – Level 6 felony               Methadone                          not stated (pursuant to
                                                                             statute, must be less
                                                                             than 5 grams)




       Appellant’s App. Vol. II, pp. 28-39.


[29]   Pursuant to the governing statute and the charging information, the essential

       elements of each of the offenses could not, hypothetically, be established by

       evidence that also establishes the essential elements of the other charged

       offenses. We conclude Gates’ convictions for possession of a narcotic drug do

       not violate the statutory elements test.


[30]   Next, we turn to the “same evidence” test. Richardson, 717 N.E.2d at 53. As

       our Supreme Court has explained:

               Even if the first consideration, the statutory elements test, does
               not disclose a double jeopardy violation, the actual evidence test
               may. Under this inquiry, the actual evidence presented at trial is
               examined to determine whether each challenged offense was
               established by separate and distinct facts. To show that two
               challenged offenses constitute the ‘same offense’ in a claim of
               double jeopardy, a defendant must demonstrate a reasonable
               possibility that the evidentiary facts used by the fact-finder to
               establish the essential elements of one offense may also have
               been used to establish the essential elements of a second
               challenged offense.

       Id.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 14 of 16
[31]   Here, the State presented evidence to support each of the six counts of

       possession of a narcotic drug. Officer Aaron Thompson of the West Lafayette

       Police Department searched Gates’ car at the police department, taking photos

       as he worked. The jury heard his testimony and saw his photographs. The

       photos show bottles of Oxycodone and Methadone, as well as Fentanyl

       patches, among many other bottles and loose pills in the trunk and the glove

       box. The jury also received Thompson’s written report, in which he identified

       the bottles and boxes of controlled substances by their labels, including

       Fentanyl, Oxycodone, Morphine, and Methadone.


[32]   The State also presented to the jury a detailed theft report from the pharmacy,

       which listed the stolen controlled substances by name and amount, including

       Oxycodone, Nucynta, Morphine, Oxymorphone, Fentanyl, and Methadone.

       Finally, Forensic Drug Chemist Kristen B. Sturgeon from the Indiana State

       Police Lab testified about her examination of loose pills the police found in

       Gates’ car. She identified one pill of Morphine, one pill of Oxycodone mixed

       with Acetaminophen, two pills of Oxycodone, and two pills of Methadone.


[33]   Thus, the State presented detailed evidence as to each of the controlled

       substances that supported each of the charges of possession of a controlled

       substance. The jury was instructed which controlled substance supported

       which charge. We conclude Gates has failed to show a reasonable possibility

       that the same facts used to support one offense could have been used to support

       other offenses. See Walton v. State, 81 N.E.3d 679 (Ind. Ct. App. 2017) (two

       convictions of possession of a firearm by a serious violent felon did not violate

       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 15 of 16
       the same evidence test; each conviction was based on a different firearm

       possessed by defendant); cf. Bookwalter v. State, 22 N.E.3d 735 (Ind. Ct. App.

       2014) (convictions for dealing in narcotic drug and possession of narcotic drug

       violated same evidence test because the same quantity of the same drug (heroin)

       was cited to support both convictions), trans. denied.


[34]   Gates cites three cases, Duncan v. State, 274 Ind. 457, 412 N.E.2d 770 (1980),

       Martin v. State, 176 Ind. App. 99, 374 N.E.2d 543 (1978), and Bates v. State, 178

       Ind. App. 153, 381 N.E.2d 552 (1978), in support of his claim that possessing

       multiple types of controlled substances simultaneously must be considered as

       only one offense of possession of a controlled substance. We conclude those

       cases are distinguishable because they predate the Indiana Supreme Court’s

       analysis set forth in Richardson v. State. Further, none of the three cases

       addresses Indiana’s constitutional prohibition on double jeopardy.


[35]   For the reasons stated above, we affirm the judgment of the trial court.


[36]   Judgment affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1703-CR-593 | March 14, 2018   Page 16 of 16
