                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                             Sep 14 2012, 8:55 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLE

MARCE GONZALEZ, JR.,                            GREGORY F. ZOELLER
Dyer, Indiana                                   Attorney General of Indiana

                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTONIO D. JONES,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 45A03-1111-CR-00496
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Thomas P. Stefaniak, Jr., Judge
                            Cause No. 45G04-0401-MR-00003



                                    September 14, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Antonio D. Jones appeals his convictions for four counts of

Felony Murder.1 Specifically, Jones contends that hearsay evidence was erroneously

admitted at trial, that his right to confront witnesses against him was violated, that he was

prevented from presenting evidence of bias and retaliation against him by one of the

witnesses, and that the evidence was insufficient to support the convictions. Concluding

that the trial court did not admit improper hearsay evidence and finding no other error, we

affirm the judgment of the trial court.

                                            FACTS

          On January 16, 2004, at approximately 6:00 p.m., Ronyale Hearne dropped off her

twenty-three-month-old son, A.J., at the home of his father, Anthony McClendon, Sr., on

Polk Street in Gary. McClendon lived at the residence with Laurice and Jimmy Jones

(collectively, the Joneses).

          Hearne and her cousin, Donte Mills, returned to the residence on Polk Street to get

A.J. shortly after midnight. She went upstairs, the door was open, and she saw Laurice

on the couch “like she could be dead.” Tr. p. 382-84. Hearne called McClendon’s

brother, Roosevelt Pickens, who arrived at the scene shortly thereafter. She walked

further into the apartment and saw Jimmy’s body on the bathroom floor. She then saw

Pickens standing over McClendon and holding A.J. It appeared as if McClendon’s

“whole face was just blown open.” Id. at 389.




1
    Ind. Code § 35-42-1-1.
                                               2
      Hearne took A.J. from Pickens and ran downstairs. Mills drove A.J. and Hearne

to Northlake Hospital. At some point, Hearne pulled up A.J.’s shirt and noticed that he

had a hole in his side. A.J. was eventually transported to the University of Chicago

Hospital by ambulance. It was determined that A.J. had suffered two gunshot wounds

that had passed through his body. A.J. later died from his wounds.

      Pickens telephoned his friend, Terrell Bowens, upon arriving at the scene.

Bowens went to the apartment, contacted the police, and waited approximately ten

minutes for their arrival. At the residence, the police saw the bodies of McClendon and

the Joneses and also discovered scales and powder cocaine on the kitchen counter as well

as cocaine cooking on the stove.

      During the investigation, the police were able to determine that three different

types of firearms were used in the murders. Autopsies performed on McClendon and the

Joneses revealed that all three had died from multiple gunshot wounds.

      On January 16, 2004, Maurice Fuller and Anita Goldsby held a party at their

apartment in Gary that started around 7:00 p.m. There were about twenty people at the

party, and James Parks, Lenzo Aaron, and Jones were there and playing cards for money.

At some point, Fuller bumped into Jones in the kitchen. The two were “joking around,”

and Jones lifted up his shirt and revealed the butt of a gun. Tr. p. 1159-60. Jones said,

“You don’t want none of this.” Id. Fuller described Jones’s handgun as an automatic,

“like a 9mm or a .45.” Id. at 1160.



                                           3
       While the three were playing cards at the party, Aaron and Parks got into an

argument over some money. Jones was Aaron’s partner in the card game. The argument

was settled, and Aaron told Parks to keep the money in dispute. At some point, Jones

walked into the kitchen and said, “We just got a call from some dude . . . do you want to

go rob him?” Id. at 1198. Jones said that the caller had $6000 and some drugs in his

possession. Aaron and Parks both agreed to rob the caller, and Parks and Jones left.

However, they returned to pick up Aaron, and the three then left again in Jones’s white

Buick Roadmaster to commit the robbery. By this point, Aaron had seen the butt of the

black semi-automatic handgun tucked into Jones’s waist. An AK-47 assault rifle was also

on the backseat of Jones’s vehicle.

       When the three arrived at the Polk Street residence, Jones went in first, followed

by Parks and then Aaron. Aaron was carrying the AK-47 rifle. After the three went up

the stairs, Jones knocked, someone came to the door and asked who was there, and Jones

replied, “It’s Tone.” Id. at 1210. As soon as the person inside opened the door, someone

fired five or six shots. After the three entered, Aaron saw Laurice and A.J. on the couch.

Parks and Jones had gone to the back of the residence, and at some point, Aaron heard

Parks say, “Where the sh*t at, man?” Tr. p. 1211. The man he was talking to responded,

“Tone, James G. It’s like this man? It’s like this?” Id. at 1216. Laurice was pleading

with Aaron, “Please, sir, don’t kill me. Please don't kill me.” Id. at 1213. Aaron shook

his head to indicate he was not going to harm her. However, Aaron, who was unable to

see into the back of the apartment because a sheet was hanging in the doorway, heard

                                            4
Parks say, “Finish him off. Finish him off.” Id. at 1216. The others returned to the

living room and grabbed the AK-47 off Aaron’s shoulder. Thereafter, they went to the

rear of the apartment and Aaron heard two more shots.

       Jones left, while Aaron and Parks remained in the living room. Parks told Aaron,

“Finish the lady off, man.” Tr. p. 1216. Aaron told Parks, “Man I didn’t come here for

that, I ain’t killing nobody,” then left the apartment. Id. at 1217. As Aaron was leaving,

he heard two more shots. Id.

       Aaron did not take anything from the apartment, nor did he see Parks or Jones take

anything. However, he was originally told that they were going to steal $6000, with each

of them to take $2000 from the robbery. Thereafter, Jones drove the three to the Oak

Knoll apartments. Sometime after 12:50 a.m., Jones called Janeth Alexander for a ride,

explaining that he had lost his keys. When Alexander arrived, Jones’s vehicle was

outside. After Alexander picked him up, and they were driving along a drainage ditch on

Chase Street, Jones asked her to stop the vehicle. However, Alexander refused because

the weather was bad. Jones said he had been drinking, and Alexander thought that he

appeared to be “hot or sick.” Tr. p. 1659. Jones rolled the window down, and she heard

“something go off—you know, hit the water.” Id. Jones turned around and asked her,

“you didn‘t see that, did you?” Id. Jones had tossed the gun into the water.

       After Jones was arrested, he called Alexander from the jail. Jones told her that she

was his alibi, and that his life was in her hands. After Alexander testified in another

proceeding, Jones called her and said that he was going to kill her.

                                             5
       The day after the murders, Parks knocked on Aaron’s door, gave him $230, and

asked him, “was [he] straight,” which Aaron took to mean, was he “cool with the $230.”

Tr. p. 1232. Aaron feared for his life and that of his girlfriend, so he accepted the $230.

Id. at 1233-34.

       Meanwhile, on January 19, 2004, Detective Michael Jackson talked to Jeffrey

Lewis, Parks’s brother, about the incident on 2600 Polk, but Lewis did not identify

himself at that time. Detective Jackson spoke again with Lewis on January 20, 2004, and

for the first time in person on January 21, 2004. Lewis provided a written statement.

Detective Jackson spoke with Lewis several times thereafter. Lewis knew that Parks had

an AK-47 and that Parks had obtained the rifle through Shawn Dixon. He had seen Parks

with the AK-47 and also described to Detective Jackson a .22 caliber weapon that Parks

had obtained from a person named “Hype.” Tr. p. 975-76, 986. Lewis had also seen

Jones with a .45 caliber weapon on his lap before the night of the murders.

       Based on information that Lewis had provided, police officers were instructed to

go to three separate locations to conduct surveillance on Parks, Aaron, and Jones. Search

warrants were issued that culminated in ten searches, which included the residences of

Aaron, Dixon, Parks’s father, Parks’s cousins’ home, the address where Jones allegedly

resided, and Parks’s girlfriend’s home.      Police also searched the home of Jones’s

girlfriend, Teshonta Champion.

       Fuller had known Parks for almost six years and had gone to a gun store with him

to purchase the AK-47. However, they were unable to make the purchase. Instead,

                                            6
Dixon went to the store and made a down payment on the weapon. Dixon purchased the

rifle for Parks, who paid Dixon the money for the gun.

      The AK-47 was later fired at Brandy Parks’s house at the Oak Knoll Apartments

on New Year’s Eve. The police subsequently found nine shell casings from a 7.62 x 39

mm weapon at the quadruple murder scene. This caliber of ammunition is fired from

AK-47 and AK-47 copy-type firearms. It was determined that they all had been fired

from the same weapon. The police also found eighteen 7.62 x 39 mm casings near

Dixon’s house, all of which had been fired from the same weapon. These, in turn, were

fired from same weapon that fired the nine rounds found at the Polk Street residence.

The police also found seven more 7.62 x 39 mm cartridge casings, collected from

Brandy’s residence. Those rounds were also fired by the same weapon that fired the 7.62

x 39 mm rounds at the Polk residence.

      On January 26, 2004, Aaron was arrested, and Parks was arrested the next day. On

the same day, Jones entered the police station and stated that some detectives from Gary

were looking for him. Jones was also placed under arrest.

      When Aaron was asked about the incident on Polk Street, he requested legal

counsel, and the questioning ceased.       Aaron later asked to talk with Detective

Richardson, and he provided a formal written statement on January 28, 2004. Aaron

implicated himself in the murders on two occasions and was initially charged with four

counts of murder. Aaron subsequently entered into a plea agreement on May 6, 2004,

which called for him to plead guilty to four counts of class A felony robbery. It was an

                                           7
open plea, pursuant to which Aaron would be sentenced within a range of twenty to fifty

years for each count, to be served concurrently. As a term of the plea agreement, Aaron

agreed to cooperate with the police.

      On January 29, 2004, Jones was charged with four counts of felony murder.

Following a jury trial on May 17, 2004, Jones was found guilty as charged, and was

subsequently sentenced to 240 years of incarceration. We affirmed Jones’s conviction on

direct appeal, and he subsequently petitioned for post-conviction relief. Following a

hearing on February 26, 2007, the post-conviction court denied his request for relief on

September 11, 2007.     After we affirmed the denial of post-conviction relief, Jones

petitioned for a writ of habeas corpus on February 13, 2009. The district court denied

Jones’s request for relief, finding that Jones had failed to establish a violation of due

process with respect to the admission of the challenged statements and determining that

we had reasonably found any error to be harmless.

      However, on March 31, 2011, the United States Court of Appeals for the Seventh

Circuit reversed the district court’s holding with regard to the propriety of the hearsay

statements that were admitted. As a result, Jones was ordered to be released if he was not

tried within 120 days of the mandate. Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011).

Jones was retried on four counts of murder, and a jury found him guilty as charged.

Jones was subsequently sentenced to four consecutive sixty-year terms of incarceration,

and he now appeals.



                                            8
                              DISCUSSION AND DECISION

                                   I. Hearsay Evidence

       Jones claims that the trial court improperly permitted Lewis to testify about

statements that were made to Lewis by James Parks, Lewis’s brother. Jones claims that

the admission of that testimony violated his right to confront witnesses against him under

the Sixth Amendment to the United States Constitution.

       In addressing this contention, we first note that Jones v. Basinger, the appeal from

the federal district court that originally denied Jones relief on his habeas corpus petition,

reversed the federal district court and determined that we did not properly apply the rule

announced in Crawford v. Washington, 541 U.S. 36 (2004), to the facts of Jones’s first

trial. 635 F.3d at 1050-51.

       In Jones’s direct appeal from his first trial, we discussed the applicability of

Crawford regarding a defendant’s right to confront witnesses against him and found that

Jones’s rights were not violated because the detectives’ testimony was not hearsay and

had not been offered as substantive evidence. Jones v. State, No. 45A03-0407-CR-339,

(Ind. Ct. App. June 30, 2005). The facts from Jones’s first trial that prompted the grant of

the writ of habeas corpus from Jones’s first trial were set forth by the Seventh Circuit as

follows:

       Detective Jackson met with Lewis the next day, and Lewis told Jackson
       “who committed the [shooting], what took place, the type of weapons that
       they used, and where all of these individuals were or lived.” Specifically,
       Lewis claimed that his brother James Parks had confessed to Lewis that he,
       Aaron, and Jones had committed the four murders. According to Lewis,

                                             9
      Parks had told him that the three men were at a party together before going
      to rob McClendon’s apartment. Lewis also said that his brother had
      supposedly told him the motive for the robbery: Jones “needed the money
      to pay his rent.”


      Lewis also told the police that Parks had provided a number of specific
      details about the shootings. The men had gained entry into McClendon’s
      apartment, Lewis said, by simply knocking and asking to be let in. Once
      inside, Lewis told the detectives, Jones declared that “they couldn’t leave
      any witnesses,” and Parks told Aaron to “finish off” Laurice Jones. Lewis
      also said that his brother had told him that Jones and the others had made
      off with “a large sum of money [from] the residence.”


      Lewis said the murder weapons were a .22-caliber handgun, a .45 - caliber
      handgun, and an AK-47 assault rifle, and he provided descriptions of the
      .45-caliber and the AK-47. A man named Shawn Dixon had purchased the
      AK-47 for Parks, and Lewis had seen Jones with the .45-caliber “a lot of
      times.” According to Lewis, Parks still had the AK-47, but the handguns
      had been discarded in a “swampy area” or waterway near Chase Street in
      Gary. This detailed and damning double-hearsay was allowed despite
      repeated objections by the defense, always on the theory that it was
      showing only the “course of the investigation” and responding to Jones’
      defense that the only (admissible) evidence linking him to the crimes came
      from Aaron pursuant to his generous plea agreement.

Jones, 635 F.3d at 1037.

      The Seventh Circuit also alluded to the deputy prosecutor’s use of Lewis’s out-of-

court statements in closing argument, specifically pointing out that the State bolstered

Lewis’s credibility by offering an altruistic motive on Lewis’s part for contacting the

police. Id. at 1037-38. In other words, the Seventh Circuit found that the use of Lewis’s

out-of-court statements were not offered simply to show the course of the police

investigation and that Jones’s right to confront witnesses against him was violated as


                                           10
announced in Crawford. Therefore, the Seventh Circuit granted a conditional writ of

habeas corpus, meaning that the State was required to release Jones unless it retried him

within 120 days. Jones, 635 F.3d at 1056.

      Following the issuance of the writ, a new trial commenced with different facts and

circumstances, and Lewis provided no testimony, nor did any other witnesses testify to

anything said by Lewis to them that communicated any statement made to Lewis by

Parks. Even though Jones presents a discussion as to how an out-of-court statement

could be offered to show a course of investigation and not be inadmissible hearsay, he

does not point to any out-of-court statement that was impermissibly used as substantive

evidence in his new trial. Appellant’s Br. p. 7. Instead, Jones is apparently arguing that

simply letting the jury know that Lewis is Parks’s brother is the equivalent of an out-of-

court statement.   Lewis provided no testimony, nor did any other witnesses testify to

anything said by Lewis to them, that communicated any statement made to Lewis by

Parks. In short, the record is devoid of any out-of-court statements by Parks that Jones

was unable to confront through cross-examination.

      An out-of-court statement may be admissible to show the steps that a police

officer took during an investigation. Cockrell v. State, 743 N.E.2d 799, 805 (Ind. Ct.

App. 2001). However, such testimony must be limited to describing the course of the

police investigation and may not be offered to prove the truth of the matter asserted. Id.

When the admissibility of an out-of-court statement received by a police officer during

the course of an investigation is challenged as hearsay, we first determine whether the

                                            11
testimony describes an out-of-court statement that asserts a fact susceptible of being true

or false. Vertner v. State, 793 N.E.2d 1148, 1151 (Ind. Ct. App. 2003). If the statement

contains no such assertion, it cannot be hearsay, and the objection should be overruled.

Id. If the statement does contain an assertion of fact, we consider the evidentiary purpose

of the proffered statement. Id. If it is to prove the fact asserted, is not from a witness or a

party, and there are no applicable hearsay exceptions, the statement is inadmissible

hearsay. Id. If the statement is offered for a purpose other than to prove the truth of the

matter asserted, we consider whether the fact to be proved is relevant to some issue in the

case and whether the danger of unfair prejudice that may result from its admission

outweighs its probative value. Id. This analysis is performed where the testimony is

admissible because it merely describes the course of police investigation. Hernandez,

785 N.E.2d at 298.

       In this case, the record shows that the trial court took steps to ensure that there

would be no repeat of the double hearsay that was recognized by the Seventh Circuit

Court of Appeals to have violated Jones’s right of confrontation in the first trial.

Expressly citing the Seventh Circuit’s opinion, the trial court granted Jones’s motion in

limine that sought to exclude hearsay testimony from Lewis about what Parks told him.

Tr. p. 41-42.

       During the second trial, we note that the trial court also properly overruled Jones’s

objection to the deputy prosecutor’s opening statement that the police had received a

telephone call from Lewis that he was Parks’s brother and that police placed surveillance

                                              12
on Parks and Jones based on information that had been received from Lewis. Id. at 302-

03, 307, 311, 315-22. The trial court read verbatim relevant portions of the Seventh

Circuit’s habeas opinion into the record, “[n]oting that [a course of investigation

exception to hearsay] may apply if a jury would not otherwise understand why an

investigation targeted a particular defendant.” Id. at 318. The trial court quoted further

from the habeas opinion in explaining its ruling on Jones’s motion when it was stated,

“[a]nd I am going to quote this again because it is determinative and conclusive on the

current Motion before the Court. . . . The State is doing exactly what the United States

Court of Appeals 7th Circuit opinion says it should do. Motion for Mistrial denied.” Id.

at 322. It is apparent that the trial court was carefully protecting the record from any out-

of-court statements that would deprive Jones of his right of confrontation.

       Unlike the previous trial, there was no hearsay offered in this trial from Lewis, let

alone the double hearsay considered by the Seventh Circuit, that violated Jones’s right to

confront witnesses against him. Rather, the State presented testimony that Lewis was

Parks’s   brother, that Lewis talked with police, and that the police directed their

investigation in particular avenues based on what they had learned from Lewis. Tr. p.

1057-61. Because the jury was not provided with any out-of-court statements from Parks

through Lewis’s testimony or officer testimony, i.e., the type of double hearsay that was

problematic in the former trial, there was no hearsay or Confrontation Clause violation in

this instance.



                                             13
          By way of illustration, we note that when Jones was retried, Lewis was

incarcerated following a conviction on a federal gun charge. Tr. p. 929. Lewis testified

that he is Parks’s older brother and that he was living with his sister, Brandy, in “some

projects” on 21st Street in Gary in 2004. Id. at 961-62. Lewis testified that he knew

Jones by the nickname “Tone,” and he knew Aaron as “Thirst.” Id. at 963. Lewis also

acknowledged that he knew McClendon and Hearne. Id. at 999, 1000.

          On direct examination, Lewis testified that he did not remember having seen his

brother with a weapon before January 16, 2004. Id. at 964. Lewis was afforded the

opportunity to review the deposition testimony that he gave on August 24, 2011, and

afterward he claimed he did not remember giving the responses in the deposition. Id. at

965.

          The deputy prosecutor read the deposition into the record, and the trial court

admitted it as substantive testimony. Id. at 975, 976, 986, 987, 1021. None of the

deposition testimony related to statements made to Lewis by Parks. Rather, it revealed

that Lewis knew Parks had an AK-47, knew that Parks obtained the rifle through Shawn

Dixon, had seen Parks with the AK-47, and had described a .22 caliber weapon that Parks

got from a person named “Hype.” Tr. p. 975, 976, 986. The testimony also revealed that

Lewis had seen Jones with a .45 weapon on his lap prior to the night of the murders. Id.

at 987.

          Moreover, evidence from independent sources, including the testimony of Fuller,

also established that Jones was carrying a handgun in his waistband at the party that

                                             14
roughly fit the description of the gun that Lewis described seeing on Jones’s lap before

the night of the murders.     Tr. p. 1159-60.     Fuller and Dixon also testified about

purchasing the AK-47 for Parks. Id. at 1150-51, 1488-89, State’s Exs. 211, 212. They

also testified about firing that weapon at Dixon and Parks’s home, and Fuller testified

that Lewis was there when the weapon was fired at Brandy’s. Id. at 1152, 1497-98. This

evidence refutes the notion that Lewis possessed information relevant to the investigation

that could only have been gleaned through statements from his brother. Instead, they

show that Lewis possessed information through personal observation and association

with others subject to the investigation. For all of these reasons, we conclude that the

trial court did not admit improper hearsay evidence at trial, and Jones has failed to

demonstrate that his right to confront witnesses against him was violated.

          II. Exclusion of Hearsay Evidence Regarding Alleged Bias of Aaron

      Jones next argues that the trial court erred in excluding evidence of bias that was

relevant to his defense. More specifically, Jones points out that he made an offer of proof

demonstrating that Aaron had implicated Jones in the killings as retaliation for Jones’s

prior testimony in an unrelated federal case against Aaron’s friend that resulted in a

conviction.

      At the outset, we note that the admission or exclusion of evidence is a matter left

to the sound discretion of the trial court, and we will reverse only upon an abuse of that

discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind. 2002). In Jones’s offer of proof,

he testified that he had been a co-defendant with Kevin Wash in a 1999 federal drug case.

                                            15
Tr. p. 2036. According to Jones, he cooperated with the government and testified against

Wash. Id. at 2037. Wash was convicted and sentenced. Id. Jones said Wash was facing

from ten years to life in prison, and Jones received four and one-half years as a benefit

from his cooperation. Id. at 2037.

       Jones testified that immediately after his release from prison in 2002, he was

leaving his sister’s home when he was approached by Aaron. Id. at 2038, 2040. Jones

claimed that Aaron told him that he “knew what I did, talking about [Wash],” and Jones

replied that “he should have told you what he did,” then got in the car and left. Id. at

2039. Jones claimed that Aaron then remarked that “[y]ou gonna get what you got

coming to you.” Tr. p. 2039.

       In a subsequent offer to prove, Aaron testified that he knew Wash from school,

that they played baseball together, and that they had known one another since Aaron was

seven or eight years old. Id. at 1266. Aaron knew that Wash had been charged in 1999

with several other defendants in a federal drug case. Tr. p. 1266. Aaron did not know

that Jones had testified against defendants in that prosecution. Moreover, he denied that

he threatened any revenge against Jones for any such testimony. Id. at 1267. Aaron said

he first became aware that Jones and Wash had been charged together during Jones’s first

trial through his attorney. Id. at 1268.

       The trial court reaffirmed its order in limine regarding this proffered testimony,

finding that the evidence showed that Aaron and Jones had interacted amicably at the

party before the murders and that Jones failed to show a reasonable degree of probability

                                           16
that Jones was biased against him because of this alleged testimony against Wash. Tr. p.

149, 2042.

       At some point, trial counsel for Jones told the trial court, “Excuse me, Your

Honor, we are almost through with this witness, I’m asking no questions regarding Kevin

Wash, there is no need for litigation or anything to come in, I understand the Court’s

ruling.” Id. at 2033. “I don't see a need to get into the Kevin Wash issue.” Id. at 2034.

When the trial court asked if Jones was waiving his right to testify on particular issues,

trial counsel responded, “Not waiving it, I’m being precluded and I’m going to follow the

Court’s order.” Id.

       Also, while we note that counsel did make an offer to prove when invited by the

trial court, counsel indicated that the only evidence he had to offer was hearsay and that

“he [could] not use it.” Tr. p. 2035. Moreover, after making the offer of proof, Jones’s

counsel stated the following:

       From this examination, it would appear that at this point in time, there
       would be no impeachment possible of Mr. Lenzo Aaron since the question,
       “Do you even know Kevin Wash?” Let alone any subsequent encounter
       with my client, would not have come out. So I don’t think I can use it
       because anything he says would be hearsay. And Mr. Lenzo [sic] is not—
       well I guess he’s a defendant, but he’s a witness in this case. I don’t see an
       exception.

Id. at 2040.

       In light of the above, it is apparent that Jones’s counsel abandoned his attempt to

present this evidence and did not preserve the issue for appeal. See Brown v. State, 929

N.E.2d 204, 207 (Ind. 2010) (observing that a pretrial motion does not preserve an error

                                            17
for appellate review; the defendant must also make a contemporaneous objection to the

admission of the evidence during the trial).

       We also reject Jones’s claim that the trial court’s ruling on the motion in limine

amounted to fundamental error. Appellant’s Br. p. 19. Indeed, the fundamental error

exception is extremely narrow. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002).

Fundamental error occurs 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 due process.” Id. In other words, to qualify as fundamental error,

the error must be so prejudicial to the rights of the defendant as to make a fair trial

impossible. Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002).

       Here, we believe that the trial court acted within its discretion in concluding that

Jones’s proffered testimony about what Aaron allegedly said to him would not give rise

to a reasonable degree of probability of bias and prejudice. In essence, the trial court

determined that Jones’s proffered evidence lacked any significant probative value. In

making this assessment, the trial court relied upon the fact that Jones’s alleged animus on

Aaron’s part over his testimony in Wash’s trial was two years old, and the record shows

that Aaron and Jones were friendly towards each other before these murders occurred.

       The evidence shows that Mills saw Jones and Aaron together near Jones’s car at

the party, and she testified that “they came back to the party” after leaving at some point.

Tr. p. 1130-31. Fuller saw Jones and Aaron playing cards together at the party. Id. at

1157. This evidence supported the trial court’s conclusion that Jones’s claim of bias on

                                               18
this issue was not credible and lacked probative value. As a result, the trial court

appropriately determined that Jones’s suggestion of bias was too attenuated to be

reasonably probable, and it properly excluded the testimony. Thus, there was no error—

let alone fundamental error.

                               III. Sufficiency of the Evidence

         Jones argues that the evidence was insufficient to support his murder convictions.

Specifically, Jones claims that the convictions must be set aside because Aaron’s

testimony was incredibly dubious, and the State failed to prove that a robbery ever

occurred.

         In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor judge the credibility of the witnesses. Baumgartner v. State, 891 N.E.2d

1131, 1137 (Ind. Ct. App. 2008). Additionally, we will consider only the evidence most

favorable to the verdict and all reasonable inferences therefrom. McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005). We will affirm a defendant’s conviction if evidence of

probative value exists from which a jury could find the defendant guilty beyond a

reasonable doubt. Gray v. State, 871 N.E.2d 408, 416 (Ind. Ct. App. 2007). Reversal is

only appropriate when reasonable persons would be unable to form inferences as to each

material element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

2006).

         Jones invokes the “incredible dubiosity” rule and claims that we should reweigh

Aaron’s testimony. The “incredible dubiosity” rule provides:

                                             19
      If a sole witness presents inherently improbable testimony and there is a
      complete lack of circumstantial evidence, a defendant’s conviction may be
      reversed. This is appropriate only where the court has confronted
      inherently improbable testimony or coerced, equivocal, wholly
      uncorroborated testimony of incredible dubiosity. Application of this rule
      is rare and the standard to be applied is whether the testimony is so
      incredibly dubious or inherently improbable that no reasonable person
      could believe it.

Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).

      As noted above, Jones was charged with four counts of felony murder pursuant to

Indiana Code section 35-42-1-1. Regarding each count, the State was required to prove

beyond a reasonable doubt that Jones: (1) knowingly or intentionally; (2) killed each of

the four victims in this case; (3) while committing or attempting to commit robbery.

Appellant’s App. p. 215-16.

      Although Jones contends that we should reweigh Aaron’s testimony, none of the

characteristics of the incredible dubiosity rule are triggered. First, while Aaron may have

been the only eyewitness to the murders, there was other testimony and circumstantial

evidence that removed his testimony from the scope of review under the incredible

dubiosity rule. More specifically, the State’s evidence included testimony that Aaron,

Jones, and Parks all attended Goldsby’s party. Tr. p. 1127. Jones told Aaron about the

opportunity to rob McClendon of $6000 and some drugs, and there are cell phone records

showing that Jones called McClendon on the night of the murders. State’s Exs. 218, 219.

Mills saw Jones’s vehicle outside the party while he, Aaron, and Parks were standing

near it, and Fuller saw that Jones was carrying a handgun in his waistband at the party.


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The type of handgun was consistent with one of the weapons that had been fired at the

Polk Street residence. Tr. p. 1159-60, 1862, 1198, 1129-30, 1159, 1203, 1510, 1643,

State’s Exs. 110-19. There was also testimony from Fuller and Dixon concerning the

purchase of the AK-47 for Parks. Id. at 1150-51, 1488-89; State’s Exs. 211, 212. Lewis

testified at his deposition that he was there when the AK-47 was fired and that he saw his

brother with that type of weapon.          Tr. p. 975-76, 986, 987.       Fuller presented

corroborating testimony that Lewis was present when the AK-47 was being fired at

Brandy’s residence. Id. at 1152.

         Additionally, ballistic evidence showing that the same AK-47 that fired the rounds

collected at Brandy’s and Dixon’s had fired the rounds that were collected at the murder

scene.     Moreover, Jones’s asserted alibi was refuted, and there was evidence

demonstrating that Jones had threatened Alexander’s life when she failed to support his

alibi. The evidence further showed that Jones may have disposed of a handgun in a

drainage ditch, and there was substantial evidence showing that Jones had financial

distress that would support a motive to rob McClendon. Id. at 1584, 1590-92, 1609-10,

1651-54, 1659, 1671, 1888-90.

         In sum, we conclude that the incredible dubiosity rule does not apply in this

instance and that the evidence presented at trial was more than sufficient to support

Jones’s convictions.




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                                     CONCLUSION

       In light of our discussion above, we conclude that the trial court did not admit

improper hearsay evidence at trial and that Jones’s right to confront the witnesses against

him was not violated. We also find that the trial court properly excluded evidence of

alleged bias by Aaron against Jones and that the evidence was sufficient to support

Jones’s convictions.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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