MEMORANDUM DECISION
                                                                     Mar 23 2015, 6:30 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jerome Seward,                                           March 23, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1408-CR-567
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Kurt Eisgruber,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 49G01-1306-MR-38220




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015        Page 1 of 13
[1]   Jerome Seward appeals his convictions for Felony Murder, 1 a felony, Reckless

      Homicide,2 a class C felony, and Robbery,3 a class C felony. Seward argues

      that his convictions placed him in double jeopardy, that there is insufficient

      evidence supporting the felony murder conviction, that the prosecutor

      committed misconduct that amounted to fundamental error, and that the trial

      court abused its discretion in sentencing him. Finding that Seward’s

      convictions placed him in double jeopardy and finding no other error, we affirm

      in part and remand with instructions to vacate the convictions and sentences for

      reckless homicide and robbery.


                                                    Facts
[2]   On June 7, 2013, Seward and Danielle Banks spent the evening at the residence

      of Bryce Barnes and Katelyn Mills. Over the course of the evening, Mills and

      Banks sat on the couch, talking, and Seward and Barnes gambled for money

      with dice. Seward had brought $180 with him, and the men were gambling for

      amounts between one and twenty dollars. Mills observed Barnes’s behavior

      throughout the evening and concluded that he was “really excited and happy”

      and that the gambling was going well for him. Tr. p. 42.




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-1-5.
      3
          I.C. § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 2 of 13
[3]   Seward and Banks left around 3:00 in the morning on June 8, 2013. At that

      time, Banks recalled that Barnes appeared to have been winning and was

      holding more money in his hands. After Seward and Banks left, Mills saw

      Barnes counting his money. She asked him if he was happy, and Barnes replied

      that he was.


[4]   When Seward and Banks entered Seward’s vehicle, he told Banks to call Mills

      and say that he had left his vodka bottle in the apartment. Banks made the call,

      and Mills said that Seward could return. When Seward came to the door of the

      apartment, he asked if he could use the restroom while he was there, and Mills

      gave him permission to do so.


[5]   When Seward emerged from the bathroom, Barnes was sitting on the floor

      where he and Seward had played dice. Seward aimed a loaded .45-caliber

      semiautomatic pistol at Barnes’s head and said, “you know what this is. Give

      me your money, or give me ‘my money’.” Id. at 47. Seward grabbed Mills,

      struck her with the gun in the head, and placed her in a chokehold, saying to

      Barnes, “if you love your lady . . . you better give me the money.” Id. at 48. At

      that point, Barnes and Mills both struggled with Seward over the gun. Mills ran

      to the apartment’s balcony door, opened it, and screamed for help. At that

      point, she heard a gunshot, saw Barnes fall, and watched Seward run out of the

      apartment. Mills called the police.


[6]   Seward returned to the car and Banks noticed that he was shaken up and

      looked disheveled. He removed a handgun from his pocket, lifted up his shirt,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 3 of 13
      and placed the handgun in a holster. Seward told Banks that Mills and Barnes

      had tried to rob him.


[7]   Seward drove Banks to her apartment and left. She called Mills to ask what

      had happened, and Mills told her that Seward had shot Barnes. When police

      officers and emergency medical responders arrived at Mills’s residence, they

      attempted to resuscitate Barnes but were unsuccessful and pronounced him

      dead at the scene. The only currency that officers found in or around the

      residence was a torn piece of currency on the floor, twenty-one dollars

      concealed in one of Barnes’s socks, and two crumpled twenty-dollar bills in the

      parking lot outside the apartment.


[8]   Seward evaded law enforcement for several days, during which he went to

      South Bend, disassembled his handgun into several pieces, and disposed of the

      pieces in different dumpsters or trash cans. Eventually, Seward turned himself

      over to law enforcement.


[9]   On June 11, 2013, the State charged Seward with murder, felony murder, class

      A felony robbery, class A misdemeanor battery, and carrying a handgun

      without a license. The State also sought a twofold sentence enhancement based

      on the following allegations: (1) Seward had used a firearm in the commission

      of a felony that resulted in death, and (2) the carrying a handgun without a

      license charge was a C felony because Seward had a prior conviction for the

      same offense.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 4 of 13
[10]   Seward’s two-day jury trial took place on June 30 and July 1, 2014. Seward

       testified that when he emerged from the bathroom, Mills and Barnes attacked

       and tried to rob him of money that he had won earlier in the evening.


[11]   During closing argument, Seward’s attorney attempted to undercut Mills’s

       testimony, saying that it sounded “like somebody just trying to fill in some

       blanks with stock footage from a bad action movie” and asking, “Do real

       people behave like that? Give me the money or, you know, if you want your

       lady back, and suddenly, you know, the money gets thrown up in your face and

       there’s probably a clever pun made at that point in the movie.” Tr. p. 273.


[12]   During rebuttal, the prosecutor stated, “if you want a line from a bad 80s or 90s

       movie, I’ve got one for you: Show me the money. Show me the money. If

       what [Seward] told you up there on the stand is true, then show me the

       money.” Id. at 288. Seward’s attorney stated, “Judge, that implies a burden

       shift,” but did not object or request an admonishment or other relief. Id. The

       prosecutor continued, “Why is [the money] not there? Because he stole it.” Id.

       The prosecutor then observed that if Seward had been telling the truth when he

       stated that Mills and Barnes had attacked and robbed him, there would have

       been money in the apartment, “But that’s not what happened, and that’s why

       you can’t show me the money, because it’s somewhere between here and South

       Bend, scattered like the rest of the pieces of the gun that [Seward] got rid of.”

       Id. at 292-93.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 5 of 13
[13]   The jury found Seward not guilty of murder, but guilty of the lesser-included

       offense of reckless homicide, guilty of felony murder, guilty of robbery, not

       guilty of battery, and guilty of carrying a handgun without a license. The State

       dismissed the enhancement based on Seward’s prior conviction for carrying a

       handgun without a license, and the trial court found that the enhancement

       based on using a firearm in the commission of a felony resulting in death

       applied.4


[14]   Seward’s sentencing hearing took place on July 23, 2014. At the sentencing

       hearing, Barnes’s father testified. He spoke about the loss of his son, the

       community problems of crime and recidivism, the anger he felt towards

       Seward. He also spoke about two incidents that had occurred during the legal

       proceedings. First, he testified that someone in the courtroom had fondled

       “one of the victim[’]s buttocks” during a pretrial hearing; second, he testified

       that during the trial, another individual approached him and said, “I’m gonna

       smoke you, pow-pow-pow-pow.” Tr. p. 320. The trial court permitted Barnes

       to testify on those topics over Seward’s objection, but noted that it would give

       the testimony “appropriate weight” and did not reference the uncharged

       conduct of Seward’s associates as an aggravating factor. Id. at 319.


[15]   At the close of the sentencing hearing, the trial court sentenced Seward to fifty-

       six years for felony murder, which was enhanced by five years for Seward’s use




       4
           Seward had waived his right to a jury trial with respect to the sentence enhancement.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015        Page 6 of 13
       of a handgun, to be served consecutively to Seward’s one-year sentence for

       carrying a handgun without a license.5 The trial court suspended one year of

       the sentence to house arrest. The trial court stated that the reckless homicide

       and robbery convictions merged into the felony murder conviction, but the

       abstract of judgment shows the entry of convictions and concurrent four-year

       terms for reckless homicide and robbery. Seward now appeals.


                                        Discussion and Decision
                                             I. Double Jeopardy
[16]   We first address Seward’s arguments that his convictions for felony murder,

       reckless homicide, and robbery place him in double jeopardy for the same

       offense, amounting to a violation of his state constitutional rights. The State

       concedes this issue, and we agree.


[17]   Although the trial court merged the counts, we note that “[a] trial court’s act of

       merging, without also vacating the conviction, is not sufficient to cure a double

       jeopardy violation.” Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct. App. 2008).

       A double jeopardy violation is not remedied by the “practical effect” of

       concurrent sentences or merger of convictions. Id.


[18]   In this case, the same actual evidence was used to convict Seward of felony

       murder, reckless homicide, and robbery, meaning that these convictions placed




       5
           Seward does not appeal his conviction or sentence for carrying a handgun without a license.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015              Page 7 of 13
       Seward in double jeopardy, in contravention of Article 1, Section 14 of the

       Indiana Constitution. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999); see also

       Shields v. State, 493 N.E.2d 460, 460 (Ind. 1986) (holding that “one may not be

       twice punished for a single homicide”); Stewart v. State, 945 N.E.2d 1277, 1285

       (Ind. Ct. App. 2011) (holding that “[i]t is a violation of double jeopardy

       principles to convict and sentence a defendant for both felony murder and the

       underlying felony”). Consequently, we remand with instructions to vacate

       Seward’s convictions and sentences for reckless homicide and robbery.


                                II. Prosecutorial Misconduct
[19]   Next, Seward contends that the prosecutor committed misconduct that

       amounts to fundamental error. In reviewing a claim of prosecutorial

       misconduct, we determine first, whether misconduct occurred, and second,

       whether the misconduct placed the defendant in a position of grave peril to

       which he would not have been otherwise subjected. Ryan v. State, 9 N.E.3d

       663, 667 (Ind. 2014). When the allegations of misconduct arise from a

       prosecutor’s argument, it has been established that “[w]hether a prosecutor’s

       argument constitutes misconduct is measured by reference to case law and the

       Rules of Professional Conduct. 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 v. State, 854 N.E.2d 831, 835 (Ind.

       2006). “To preserve a claim of prosecutorial misconduct, the defendant must—

       at the time the alleged misconduct occurs—request an admonishment to the

       jury, and if further relief is desired, move for a mistrial.” Ryan, 9 N.E.3d at 667.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 8 of 13
[20]   Where, as here, the claim of prosecutorial misconduct has been procedurally

       defaulted by failing to properly raise the issue in the trial court, the defendant

       must also establish that the prosecutorial misconduct constituted fundamental

       error. Id. at 667-68. Fundamental error is “an extremely narrow exception to

       the waiver rule where the defendant faces the heavy burden of showing that the

       alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair trial

       impossible.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.

       2002)). As our Supreme Court has cautioned, “[f]undamental error is meant to

       permit appellate courts a means to correct the most egregious and blatant trial

       court errors that otherwise would have been procedurally barred, not to provide

       a second bite at the apple for defense counsel who ignorantly, carelessly, or

       strategically fail to preserve an error.” Id. at 668.


[21]   Here, Seward contends that when the prosecutor weaved a theme of “show me

       the money” throughout the closing argument and rebuttal, the State

       impermissibly implied to the jury that the burden of proof had shifted to

       Seward. We disagree. It is apparent that the prosecutor was highlighting the

       absence of money found in Barnes’s apartment, which is both circumstantial

       evidence of Seward’s robbery, as explained below, and evidence that directly

       contradicts Seward’s testimony that Barnes and Mills had robbed him. The

       prosecutor was not implying that it was Seward’s job to “show” the money;

       instead, he was merely emphasizing the absence of that money to the jury,

       which he was entitled to do to prove the State’s case. And the use of a

       quotation from a movie was merely a creative response to defense counsel’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 9 of 13
       comparison of Mills’s testimony to a bad action movie. We see no

       prosecutorial misconduct in this situation, let alone misconduct that amounts to

       fundamental error. Consequently, we decline to reverse on this basis.


                              III. Sufficiency of the Evidence
[22]   Next, Seward argues that there is insufficient evidence supporting his felony

       murder conviction. When we review a challenge to the sufficiency of the

       evidence, we neither reweigh the evidence nor assess witness credibility.

       McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied.

       Instead, we consider only the probative evidence supporting the conviction and

       the reasonable inferences to be drawn therefrom. Id. If there is substantial

       evidence of probative value from which a reasonable factfinder could have

       drawn the conclusion that the defendant was guilty beyond a reasonable doubt,

       then the verdict will not be disturbed. Id.


[23]   To convict Seward of felony murder, the State was required to prove beyond a

       reasonable doubt that he killed Barnes while committing a robbery. I.C. § 35-

       42-1-1(2). Robbery is the knowing or intentional taking of property from

       another person by using or threatening the use of force on any person or by

       putting any person in fear. I.C. § 35-42-5-1.


[24]   In this case, Mills testified that during the game, she interpreted Barnes’s

       behavior to mean that the gambling was going well for him. Tr. p. 42-43. She

       also testified that after Seward and Banks left, she observed Barnes counting his

       money, and that he said he was happy. Id. at 46. Banks corroborated Mills’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 10 of 13
       testimony, stating that when she and Seward left the apartment, Barnes

       appeared to have been winning and was holding more money in his hands. Id.

       at 103, 106-07.


[25]   Mills testified that when Seward emerged from the bathroom, he aimed a

       loaded firearm at Barnes’s head and demanded that Barnes give him the

       money. Id. at 46. Seward then struck Mills in the head with the firearm and

       threatened Barnes, “if you love your lady . . . you better give me the money.”

       Id. at 48. Eventually, Seward shot and killed Barnes and fled the scene. Id. at

       49. When police investigated the scene of the crime, the only money they

       found was a torn bill inside the apartment and two crumpled twenty-dollar bills

       in the parking lot. Id. at 161-62.


[26]   This evidence is sufficient to prove that Seward used force on Mills and Barnes,

       threatened to use force on Mills and Barnes, and placed Mills and Barnes in

       fear. The circumstantial evidence of the absence of money in the apartment

       could establish for a reasonable juror that Seward took Barnes’s money after he

       shot Barnes. In sum, the evidence is sufficient to prove beyond a reasonable

       doubt that Seward committed robbery and killed Barnes in the process.

       Seward’s arguments to the contrary, in which he points out inconsistencies in

       testimony, amount to a request that we reweigh evidence and assess witness

       credibility—a request we decline. We find sufficient evidence supporting

       Seward’s felony murder conviction.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 11 of 13
                                            IV. Sentencing
[27]   Finally, Seward argues that the trial court abused its discretion by permitting

       Barnes’s father to testify at the sentencing hearing regarding two incidents that

       occurred during the legal proceedings and that were not committed by Seward

       but instead by two of his associates.


[28]   Initially, we note that Seward acknowledges that the trial court did not rely on

       Barnes’s father’s testimony as an aggravating factor. Similarly, Seward does

       not argue that Barnes’s father did not have the right to testify. See Ind. Code §

       35-35-3-5 (giving victims the right to speak at a sentencing hearing); Ind. Code

       §35-31.5-2-348(a) (defining “victim” as “a person who has suffered harm as a

       result of a crime”).


[29]   Instead, all that Seward argues is that the trial court abused its discretion by

       permitting Barnes’s father to testify regarding the two incidents in question.

       Seward offers no authority to support this proposition, and indeed, we can find

       none.


[30]   We presume that in a proceeding tried to the bench, which includes sentencing

       hearings, the trial court renders its decisions solely on the basis of relevant and

       probative evidence. Hinesley v. State, 999 N.E.2d 975, 987 (Ind. Ct. App. 2013),

       trans. denied; Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990). In this case,

       Barnes’s father testified at the sentencing hearing, as he was entitled to do. In

       addressing Seward’s objection to the testimony, the trial court noted that it

       would give the testimony appropriate weight. And in imposing the sentence on

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 12 of 13
       Seward, the trial court did not include the two incidents for which Seward was

       not responsible—nor, indeed, did it include any portion of Barnes’s father’s

       testimony—in its list of aggravating factors. We presume that the trial court

       rendered its decision solely on the basis of the relevant evidence before it, and

       see no reason in the record before us to part ways with that presumption in this

       case. We find that the trial court did not abuse its discretion by permitting

       Barnes’s father to testify at the sentencing hearing.


[31]   The judgment of the trial court is affirmed in part and remanded with

       instructions to vacate the convictions and sentences for reckless homicide and

       robbery.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-567 | March 23, 2015   Page 13 of 13
