                                                                           FILED
                                                                       Dec 05 2018, 7:38 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark F. James                                             Curtis T. Hill, Jr.
Anderson Agostino & Keller, PC                            Attorney General of Indiana
South Bend, Indiana                                       Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua Sage,                                              December 5, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1557
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          71D03-1708-MR-11



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018                           Page 1 of 15
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Joshua Sage (Sage), appeals his conviction for two

      Counts of felony murder, Ind. Code §§ 35-42-1-1(3)(B); 35-48-4-1.1.


[2]   We affirm.


                                                    ISSUES
[3]   Sage presents two issues on appeal, which we restate as:


              (1) Whether the trial court abused its discretion when it admitted

              his statement made to police while he was hospitalized for

              injuries sustained during the offenses; and



              (2) Whether the State produced sufficient evidence to prove the

              offenses beyond a reasonable doubt.



                      FACTS AND PROCEDURAL HISTORY
[4]   In the days preceding August 2, 2017, Jermon Gavin (JG) contacted Ron

      Snyder (Snyder) to arrange the purchase of a large amount of

      methamphetamine. Snyder, in turn, contacted Sage, who agreed to supply

      approximately one and one-half pounds of methamphetamine to sell to JG.

      Sage was to deliver the drugs to Snyder’s home located in the 2100 block of

      Frederickson Street in South Bend, Indiana. Sage did not feel at ease about the

      deal with JG from the beginning, and he knew that it was necessary for his


      Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018      Page 2 of 15
      personal safety to be armed when dealing in such a large quantity of

      methamphetamine. Sage carried a Sig Sauer handgun. He also arranged for

      his brother, Robert Brady (Brady), to accompany him to Snyder’s home to

      “have [his] back.” (Exhibit 135, Exh. Vol. I, Clip 3 at 10:30-:33). Sage

      provided his brother with a Smith and Wesson handgun.


[5]   During the evening of August 2, 2017, Sage and Brady brought the

      methamphetamine to Snyder’s home. There were at least nine other people

      present at Snyder’s home that evening, including Alyssa Sanchez (Izzy). Sage

      transported the methamphetamine in a plastic grocery bag in which he also

      stowed his own “bowl” used for smoking meth. (Transcript Vol. 3, p. 76).

      Upon arriving, Sage and Brady went to the basement of Snyder’s home, where

      they consumed methamphetamine. Either Brady or Sage armed Snyder with a

      handgun.


[6]   Unbeknownst to them, JG and his associates, Jesus Pedraza (Jesse) and Benito

      Pedraza (Benny), had decided to steal the methamphetamine, so they armed

      themselves with handguns prior to going to Snyder’s home. As part of their

      plan, they dropped off Damon Bethel (Bethel), who was also carrying a

      handgun, in an alley near Snyder’s home. JG and the Pedraza brothers arrived

      at Snyder’s home shortly before midnight. While Benny remained in their car

      parked across the street from Snyder’s home, JG, Jesse, Sage, Brady and Snyder

      convened in the attached garage of Snyder’s home, leaving the garage door

      open looking out onto Frederickson Street. Sage produced the

      methamphetamine for JG and Jesse to sample, inspect, and weigh. As the

      Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018   Page 3 of 15
      methamphetamine deal unfolded, Anton James (James), pulled up in a white

      SUV in front of Snyder’s home. James had come to the home to sell Izzy

      marijuana. Although James was known to Snyder and others at Snyder’s

      home, he was not a participant in the methamphetamine deal. Sage saw the

      SUV pull up outside, and it made him nervous.


[7]   Jesse eventually left the garage and telephoned JG’s cell phone to inform JG

      that he intended to go through with the theft of the methamphetamine. As JG

      withdrew from the garage, Bethel ran in with his gun drawn, demanding the

      methamphetamine. According to Sage, Bethel did not await a response before

      firing on Sage. A fusillade of gunfire ensued as Sage and Brady exchanged

      shots with JG and Bethel. In addition, when the firing started, Benny emerged

      from their parked car and paused to fire into the white SUV before directing

      additional shots into the garage. James sped away with Izzy in the SUV but

      crashed the SUV two blocks away. James perished in his SUV from a bullet

      which struck his aorta. Back in the garage, Sage and Brady had both shot

      Bethel, who died lying face down in the garage. Sage was shot four times. Law

      enforcement arrived quickly. A total of fifty-one shell casings were recovered

      from the scene. Sage had fired his handgun at least fourteen times.


[8]   On August 7, 2017, investigators attempted to interview Sage, but he invoked

      his right to counsel and did not consent to be interviewed. On August 8, 2017,

      while Sage was still hospitalized, the State filed an Information, charging Sage

      with two Counts of felony murder, one Count of dealing in methamphetamine,

      and one Count of attempted dealing in methamphetamine. On August 12,

      Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018    Page 4 of 15
      2017, Sage communicated to the officer guarding him that he wished to speak

      to investigators. While being treated for his injuries, Sage had received pain

      medications, including fentanyl and morphine. Sage last received fentanyl on

      August 5, 2017. Although fentanyl is a strong medication, its effects dissipate

      rapidly. On August 13, 2017, Sage received a final, low dose of morphine at

      2:58 a.m. Sage also received a dose of Narco, which is a blend of Tylenol,

      acetaminophen, and hydrocodone, at 9:07 a.m. Sage was being administered

      Narco to transition him from morphine in preparation for his discharge from

      the hospital. Narco is a medication that is prescribed for outpatient use that

      may be taken without hindrance to daily function. The registered nurse

      charged with administering Sage his medication found him to be lucid,

      cognizant, and alert on August 13, 2017. The medication nurse did not note

      that Sage was experiencing any cognitive or memory issues that day.


[9]   On August 13, 2017, Detectives Timothy Wiley (Detective Wiley) and Gery

      Mullins (Detective Mullins) went to the hospital to interview Sage, as per

      Sage’s request. Before interviewing him and according to their usual practice,

      the officers contacted Sage’s medication nurse who informed them that she had

      no concerns about Sage’s ability to speak with them. The interview, which was

      videotaped, began at 12:50 p.m. Detective Wiley read Sage a waiver of

      attorney rights form that provided that Sage had previously requested an

      attorney, now wished to waive his right to an attorney, had initiated the

      interview, and had requested to make a statement. Sage confirmed that those

      provisions were true and signed the waiver of attorney form. Detective Mullins


      Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018     Page 5 of 15
       then provided Sage with his Miranda advisements and asked Sage if he had any

       questions, to which Sage responded, “No, I understand.” (Exhibit 135, Exh.

       Vol. I, Clip 1 at 2:57-3:01). Detective Mullins read Sage a waiver of his

       Miranda rights, and Sage confirmed to Detective Mullins that the provisions of

       the waiver were true before signing the form.


[10]   At the beginning of the interview, Detective Mullins asked Sage to explain to

       them what happened, and Sage spoke largely uninterrupted about the drug deal

       and shootings for approximately five minutes. Sage provided detailed physical

       descriptions of JG, Jesse, and Bethel, and their movements during the offenses.

       Sage admitted that he shot at Bethel with the Sig Sauer handgun and that he

       was probably the person who killed him. Sage also thought it was possible that

       he had fired in the direction of the open garage door. Throughout the

       interview, Sage responded to the detectives’ questions, and he asked the

       detectives questions of his own. Sage provided the detectives with his address

       and his cell phone number. The interview concluded at 1:42 p.m. On August

       14, 2017, Sage was discharged from the hospital into police custody.


[11]   On January 22, 2018, Sage filed a motion to suppress his August 13, 2017,

       statement, arguing that his injuries and the medications he received could

       “affect a person’s ability to give a free, voluntary and knowing statement.”

       (Appellant’s App. Vol. II, p. 13). On May 4, 2018, the trial court held a hearing

       on Sage’s motion to suppress. The trial court denied Sage’s motion the same

       day, finding that Sage had signed valid waivers of his right to an attorney and to



       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018    Page 6 of 15
       his Miranda rights, that he was lucid during the interview, and that he

       understood what was being asked of him.


[12]   Sage’s jury trial took place May 14, 2018, through May 17, 2018. Sage’s

       counsel objected to the admission of Sage’s August 13, 2017, statement on the

       same grounds raised in the previously-denied motion to suppress. The jury

       found Sage guilty of the four charged offenses. On June 20, 2018, the trial court

       entered judgment of conviction on the two felony murder convictions only and

       sentenced Sage to two concurrent terms of fifty-five years.


[13]   Sage now appeals. Additional facts will be added as necessary.


                               DISCUSSION AND DECISION
                                          I. Voluntariness of Statement

[14]   Sage contends that the trial court erred when it denied his motion to suppress.

       We note that, because this appeal follows the admission of Sage’s statement at

       trial, the issue on appeal is better framed as whether the trial court erred when it

       admitted the challenged statement at trial. Guilmette v. State, 14 N.E.3d 38, 40

       (Ind. 2014). As a general rule, the trial court has broad discretion to rule on the

       admissibility of evidence. Id. We review for an abuse of the trial court’s

       discretion and reverse only when the admission of the challenged evidence is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party’s substantial rights. Id.


[15]   Sage argues that his “rights to due process were violated because the officers did

       not verify that his statements were knowing and voluntary because they did not
       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018      Page 7 of 15
       ascertain if he was under the influence or otherwise thinking clearly.” 1

       (Appellant’s Br. p. 7). We take this to be a challenge to the voluntariness of his

       August 13, 2017, statement. Sage argued in his motion to suppress, which

       formed the basis for his objection to the admission of the statement at trial, that

       his statement was involuntary under Article 1, Section 14, of the Indiana

       Constitution. Under Indiana law, the State is required to prove beyond a

       reasonable doubt that a statement is voluntary. Weisheit v. State, 26 N.E.3d 3,

       18 (Ind. 2015), cert. denied. When evaluating the voluntariness of a statement,

       the trial court considers the “totality of the circumstances, including any

       element of police coercion; the length, location, and continuity of the

       interrogation; and the maturity, education, physical condition, and mental

       health of the defendant.” Id. (quoting Wilkes v. State, 917 N.E.2d 675, 680 (Ind.

       2009)) (internal citations omitted). We review the trial court’s determination of

       voluntariness as a sufficiency of the evidence issue. Id. We do not reweigh the

       evidence, and we will affirm if the trial court’s finding of voluntariness is

       supported by substantial evidence. Id.


[16]   Here, as was noted by his medication nurse, Sage was lucid, cognizant, and

       alert the day he made his statement. He was not experiencing any memory or




       1
         Inasmuch as Sage attempts to argue that he did not validly waive his right to counsel or that the procedural
       safeguards required for a valid guilty plea should be applied to the giving of a statement to police, we note
       that Sage did not raise these arguments in his motion to suppress or at trial. Arguments raised for the first
       time on appeal are waived. See Leatherman v. State, 101 N.E.3d 879, 885 (Ind. Ct. App. 2018) (“[A] party
       may not present an argument or issue on appeal unless the party raised that argument or issue before the trial
       court. In such circumstances the argument is waived.”). As such, we decline to address those arguments.

       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018                              Page 8 of 15
       cognitive issues. Detectives Wiley and Mullins spoke with the medication

       nurse before interviewing Sage to confirm that he was able to speak with them.

       Detective Mullins read to Sage a waiver of his right to an attorney and a waiver

       of his Miranda rights which Sage indicated he understood before signing. The

       interview itself was conducted informally in a conversational tone and lasted

       approximately one hour. Under the totality of these circumstances, we

       conclude, as did the trial court, that Sage’s statement was voluntary.


[17]   Sage contends that his statement was not voluntary because of his injuries, the

       medication he was receiving, and what he characterizes as his “poor”

       recollection. (Appellant’s Br. p. 7). However, Sage’s conclusory statements

       that these factors affected his ability to give a voluntary statement enjoy little

       evidentiary support in the record. By August 13, 2017, when he gave his

       statement, Sage had recuperated sufficiently that he was to be discharged from

       the hospital the following day. Sage had received a low dose of morphine at

       2:58 a.m. that day and a low dose of Narco at 9:07 a.m, but there is simply no

       indication in the record that these medications affected Sage’s awareness,

       ability to understand his rights, or his ability to recollect events. As pointed out

       by the State, in order for intoxication to render a statement involuntary, a

       defendant must be unaware of what he is saying. Wilkes, 917 N.E.2d at 680.

       Sage does not argue on appeal that he was unaware of what he was saying

       when he spoke with the detectives. Indeed, Sage spoke coherently and

       extemporaneously throughout the interview, responded appropriately to the

       detective’s questions, and accurately recollected many details of the offenses.


       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018        Page 9 of 15
       Because we conclude that Sage provided a voluntary statement, we find no

       abuse of the trial court’s discretion in admitting his statement at trial.


                                         II. Sufficiency of the Evidence

[18]   Sage challenges the evidence supporting his two convictions for felony murder.

       When we review the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an

       appellate court to assess witness credibility or to weigh the evidence. Id. We

       will affirm the conviction unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Id.


[19]   Felony murder occurs when a person kills another human being while

       committing or attempting to commit dealing in methamphetamine. Ind. Code

       §§ 35-42-1-1(3)(B); 35-48-4-1.1. Here, the evidence showed that Sage brought

       one and one-half pounds of methamphetamine to Snyder’s home on August 2,

       2017, in order to sell it to JG, a gun battle ensued when one of JG’s

       confederates, Bethel, attempted to rob Sage, and that Bethel and James died of

       gunshot wounds sustained in the exchange of gunfire between the would-be

       sellers and the would-be buyers. Nevertheless, Sage challenges the evidence

       supporting his convictions for killing both Bethel and James.


[20]   Sage contends that the evidence does not support his conviction for killing

       Bethel because Sage was acting in self-defense when he shot Bethel. However,

       we agree with the State that self-defense was not available to Sage. Under


       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018         Page 10 of 15
       Indiana law, a person is not justified in using force in the defense of self if that

       person is committing a crime. Ind. Code § 35-41-3-2(g)(1). However, the mere

       fact that a defendant is committing a crime at the time he is allegedly defending

       himself does not, standing alone, deprive the defendant of the defense of self-

       defense. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). “Rather, there must

       be an immediate causal connection between the crime and the confrontation.”

       Id.


[21]   Here, Sage’s act of dealing methamphetamine, the underlying felony of the

       felony murder charge, drew Bethel and his confederates to Snyder’s garage to

       attempt to rob Sage, and a gun battle ensued in which Sage shot and killed

       Bethel. Thus, there was a direct and immediate causal connection between the

       crime Sage was committing and the ensuing confrontation. Sage, who does not

       address the statutory limitation on self-defense in his Appellant’s Brief, cannot

       feasibly argue otherwise. Because Sage’s only challenge to the sufficiency of the

       evidence supporting his conviction for murdering Bethel was that he acted in

       self-defense, which was not available to him as a defense, we conclude that the

       State proved Sage’s conviction for Bethel’s death beyond a reasonable doubt.


[22]   Sage’s challenge to the sufficiency of the evidence supporting his conviction for

       murdering James is that it “was not reasonably foreseeable that Anton James

       would be killed.” (Appellant’s Br. p. 8). Our supreme court has recognized

       that the language of the murder statute “does not restrict the felony murder

       provision only to instances in which the felon is the killer, but may also apply

       equally when, in committing any of the designated felonies, the felon

       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018       Page 11 of 15
       contributes to the death of any person.” Palmer v. State, 704 N.E.2d 124, 126

       (Ind. 1999) (emphasis added). For purposes of felony murder liability, “it

       matters not whether the death caused is that of the intended victim, a passerby[,]

       or even a co-perpetrator.” Forney v. State, 742 N.E.2d 934, 938-39 (Ind. 2001)

       (emphasis added). A person who commits or attempts to commit one of the

       felonies designated in the murder statute is criminally liable for a death of

       another during the commission of the crime if the defendant reasonably should

       have “foreseen that the commission of or attempt to commit the contemplated

       felony would likely create a situation which would expose another to the

       danger of death.” Palmer, 704 N.E.2d at 126. On review, we must determine

       whether the defendant’s conduct caused or contributed to the victim’s death or

       set in motion a series of events that could have reasonably be expected and did

       result in death. Dalton v. State, 56 N.E.3d 644, 648 (Ind. Ct. App. 2016), trans.

       denied.


[23]   We find the case of Sheckles v. State, 684 N.E.2d 201 (Ind. Ct. App. 1997), trans.

       denied, to be instructive. Sheckles attempted to collect a loan by force inside a

       bar where other patrons were present, thereby committing an attempted

       robbery. Id. at 203. When his plan went awry, Sheckles engaged in a gun

       battle with the bartender, and one of the bar’s patrons was shot and killed. Id.

       The court held that Sheckles had created a dangerous situation in which

       intervention by a nonparticipant to the underlying felony, the bartender, was

       reasonably foreseeable and that he had exposed the victim to circumstances

       which posed a substantial likelihood of fatal injury. Id. at 205. The court held

       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018     Page 12 of 15
       that Sheckles was criminally responsible for the death of the bystander,

       regardless of who fired the shot. Id.


[24]   Here, Sage created a dangerous situation by arming himself, Brady, and Snyder

       in order to deal a large quantity of methamphetamine. Sage went to Snyder’s

       home, which was in an area of South Bend that Snyder characterized at trial as

       rife with shootings and robberies, to deal the methamphetamine. The home

       was also located in a residential neighborhood with other houses close by,

       which increased the likelihood that cars would pass by the garage where the

       methamphetamine deal was taking place. Indeed, in the moments immediately

       preceding and following the offenses, three other cars apart from James’ SUV

       passed in front of Snyder’s home. Sage’s act of dealing methamphetamine from

       Snyder’s garage set in motion the robbery attempt which led to the gunfire that

       killed James. Benny was in the act of returning fire in Sage’s direction when he

       paused to shoot into James’ vehicle. The foreseeability of James’ death was

       more overt than the Sheckles victim because Benny, who the State argued at trial

       actually shot James, was an accomplice along with JG, Jesse, and Bethel in the

       methamphetamine deal gone bad and not simply a nonparticipant.


[25]   In addition, Sage was subjectively aware that the situation was dangerous; he

       had asked his brother Brady to come along on the deal in order to “have [his]

       back” because Sage knew it was necessary to protect yourself when dealing in

       such large quantities of methamphetamine. (Exh. 135, Exh. Vol. I, Clip 3 at

       10:30-:33). Contrary to his assertion on appeal, Sage was aware of the fact that

       James’s SUV was stopped in front of the home before the gun battle broke out,

       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018   Page 13 of 15
       which he related in his statement made him nervous. As a result, it was not

       only reasonably foreseeable that gunfire might breakout at the drug deal, but it

       was foreseeable to Sage that the driver of the SUV stopped out front might be

       shot when Sage began firing. It made no difference that it was Benny who shot

       James. Sheckles, 684 N.E.2d at 205.


[26]   Sage likens his case to Layman v. State, 42 N.E.3d 972 (Ind. 2015), in which our

       supreme court reversed Layman’s felony murder conviction based on evidence

       that Layman, who was a juvenile at the time of the offense, had entered a home

       intending to commit a theft but was unarmed and engaged in no violent or

       threatening conduct before the homeowner shot one of Layman’s accomplices.

       Id. at 979. The court held that, under those circumstances, nothing about

       Layman’s conduct was the mediate or immediate cause of his accomplice’s

       death. Id. at 979-80. This case is readily distinguishable in that Sage and his

       cohorts were all armed, and, thus, violence was contemplated as part and parcel

       of the methamphetamine deal.


[27]   Although other facts may present a more difficult call on the foreseeability of a

       bystander’s death, the instant case does not present us with the outer limits of

       felony murder liability for the death of a bystander/nonparticipant in the

       underlying felony. Because James’ death was the foreseeable result of Sage’s

       methamphetamine dealing, we conclude that the State proved that Sage killed

       James while committing the alleged felony.




       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018    Page 14 of 15
                                              CONCLUSION
[28]   Based on the foregoing, we conclude that the trial court acted within its

       discretion when it admitted Sage’s voluntary confession into evidence. In

       addition, we conclude that the State proved beyond a reasonable doubt that

       Sage killed Bethel and James during the commission of the offense of dealing in

       methamphetamine.


[29]   Affirmed.


[30]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-1557 | December 5, 2018   Page 15 of 15
