MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                         Oct 05 2018, 10:18 am
this Memorandum Decision shall not be
                                                                                    CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
                                                                                   Court of Appeals
court except for the purpose of establishing                                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicholas F. Wallace                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Christina D. Pace
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher L. Figgs,                                    October 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1710-CR-2405
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1608-MR-3



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018           Page 1 of 22
                                             Case Summary
[1]   Christopher L. Figgs appeals his conviction and eighty-year sentence for

      murder and Level 5 felony carrying a handgun without a license, and the

      enhancement of his sentence for using a firearm in the commission of a felony

      resulting in death. We affirm.


                                                     Issues
[2]   The issues before us are as follows:


              I.       whether the trial court erred in denying Figgs’s motion for
                       a mistrial;


              II.      whether the trial court abused its discretion in admitting
                       evidence due to an alleged discovery violation by the State;


              III.     whether Figgs’s sentence is inappropriate in light of the
                       nature of his offenses and his character; and


              IV.      whether the trial court erred when it did not require the
                       jury to reconvene for a bifurcated proceeding regarding
                       Figgs’s use of a handgun in the commission of the crime.


                                                     Facts
[3]   Figgs and Thomasa Hunter (“Thomasa”) had a turbulent six-year romantic

      relationship. Throughout the relationship, “[Figgs] always threatened [that]

      he’d do something to [her].” Tr. Vol. III p. 21. Figgs and Thomasa ended their

      romantic relationship in October 2015, and Thomasa moved in with her



      Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 2 of 22
      mother, Regina Hunter (“Regina”). Afterwards, Figgs harassed Thomasa and

      threatened her to dissuade her from dating.


[4]   Figgs and Thomasa were involved in multiple violent incidents after their

      romantic split. On May 22, 2016, Figgs and Thomasa physically fought when

      Figgs refused to return or pay for Thomasa’s silver and black handgun. The

      fight escalated until a young child called 911 and hung up. The Fort Wayne

      Police Department responded to the scene and found Thomasa crying and

      holding her arm. She had visible scratches, bruises around her eyes, and looked

      “like she had been in a fight.” Id. at 76. Thomasa told the officers that Figgs

      had hit her in the face and “[t]ried to run her over” with a car. Id. at 78.


[5]   On June 28, 2016, Thomasa telephoned her employer, Kenesha Williams, to say

      that she would not be able to work because of a domestic situation. Williams

      went to Regina’s home “to defuse the whole thing.” Tr. Vol. II p. 237. In

      Williams’s presence, Figgs stated that “he didn’t give a f*** who [was] over

      there”; “[Thomasa could] call anybody [she] want[ed] to, he [was] gonna do

      whatever he want[ed] to”; and that he would “beat [Thomasa’s] a**, beat

      [Williams’s] a**, [and] whoever . . . wanted to get in between [them].” Id. at 238-

      39. Figgs then made a hand gesture mimicking firing a gun and told Thomasa,

      “If I see you with somebody, it’s gonna be something. Don’t let me catch you.

      You already know what it is.” Tr. Vol. III p. 121.


[6]   On June 30, 2016, Figgs threatened to shoot Thomasa. Thomasa called 911, and

      their fighting escalated until the police arrived. Responding officers encountered


      Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 3 of 22
      a belligerent Figgs at Thomasa’s house, “yelling . . . that he was going to get her

      and she was gonna pay for this” and “threat[ening] to have a female he knows

      come over and beat her a** and . . . referring to her as ‘b****[.]’” Id. at 85.


[7]   In the late evening hours of July 5, 2016, Figgs and Thomasa spoke on the

      phone. Thomasa ended the call, saying that she was going to bed. Hours later,

      at approximately 1:00 a.m. on July 6, 2016, Thomasa’s friend, Edward Kiel

      (“Kiel”) parked his car outside Regina’s home on McKinnie Avenue in Fort

      Wayne. Thomasa joined Kiel in his car, and they smoked marijuana and

      talked until they fell asleep.


[8]   At approximately 1:25 a.m., Figgs called Thomasa’s phone. Her daughter,

      Tamarii, answered that Thomasa was with a friend. Outside, Thomasa awoke

      in the car to a “distraught” Kiel asking, “Is that your mother****** baby

      daddy?” Id. at 3. Thomasa told Kiel to “drive off.” Id. As Kiel pulled away

      from the curb, Figgs fired five gunshots into the car. Kiel was struck twice in

      the chest and later died from his wounds.


[9]   Thomasa ran back to Regina’s home for help. Regina and Tamarii were on the

      porch. As Thomasa ran toward them, Tamarii saw Figgs—dressed in a white

      shirt, pants, and red shoes—running from the scene and holding a “silver and

      black” item in his hand. Id. at 180. Thomasa shouted for her family to call 911

      and said, “[Figgs] shot my friend.” Id. at 178. Thomasa and Regina ran back

      to Kiel’s car. At approximately 1:44 a.m., Thomasa called Kiel’s sister, Crystal

      Laster (“Crystal”), and told her about the shooting. Officers from the Fort


      Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 4 of 22
       Wayne Police Department responded to the scene. Thomasa identified Figgs as

       the shooter in a police interview.


[10]   Cell phone data records, from July 3 and 6, 2016, documented nearly two

       hundred contacts between Figgs’s and Thomasa’s cell phones; however, Figgs’s

       phone abruptly ceased to be detected by cell phone towers after his last attempt

       to reach Thomasa at 1:39 a.m. on July 6, 2016.


[11]   On August 3, 2016, the State charged Figgs with murder (“Count I”), Level 5

       felony carrying a handgun without a license (“Count II”) and sought a sentence

       enhancement for his alleged use of a firearm in the commission of a felony

       resulting in death (“Count III”). Figgs fled the jurisdiction. On September 12,

       2016, law enforcement authorities apprehended him in Alabama. Figgs

       telephoned Thomasa from jail and warned her not to participate in the State’s

       case. He also prompted another inmate to telephone Thomasa and to tell her

       “[to] just be quiet about that little situation.” State’s Ex. 59.


[12]   In February 2017, Figgs was tried to a jury; however, the jury deadlocked,

       resulting in a mistrial. He was retried in August 2017. During the second trial,

       Regina, Tamarii, Thomasa, and law enforcement witnesses testified to the

       foregoing facts.1 Crystal testified that, moments after Kiel was shot, Thomasa

       told her that “Chris [Figgs] had did it [sic].” Id. at 93.




       1
         At trial, Thomasa gave conflicting testimony: she testified that she was depressed and “c[ould]n’t
       remember a lot of stuff”; that she did not tell Detective Gregory that Figgs shot Kiel; and that she “probably”
       told the police that Kiel that the shooter looked like Figgs. Tr. Vol. III p. 11. Confronted with her prior,

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018             Page 5 of 22
[13]   In an ensuing sidebar conference, counsel for the State advised that he learned

       that Crystal would testify as such moments before she took the stand. Outside

       the presence of the jury, defense counsel alleged that the State had committed a

       discovery violation that warranted a mistrial. Defense counsel argued as

       follows:


               There’s a prior trial in this case, it’s my understanding that
               [Crystal] testified at that trial. During the course of her
               testimony, she never was asked, nor did she volunteer any
               information about knowing who the perpetrator was.
               [Thomasa], obviously, has testified previously. She’s never been
               asked about saying anything about, you know, that it was
               [Figgs], because we’ve never known about that, so we have her
               testimony.

               I’ve taken [Thomasa’s] deposition, and again, I had no reason to
               ask what she said to Crystal Laster because I had no reason to
               believe that she said anything because it had never been provided
               to me. I’m advised that moments before she testified, out in the
               hallway, the prosecutor, for the first time, asked one more extra
               question that they’d not previously asked that led to them getting
               an excited utterance. Again, that comes in as substantive
               evidence that identifies Christopher Figgs as the shooter, and I
               believe that they had an obligation to tell me that before she
               testified, even if they had just walked over and I would have —
               quite frankly, I would have asked for a recess before she testified
               to try to figure out where to go with this new information. I
               believe that it is exculpatory in that it is inconsistent with
               anything in this entire investigation.

               Although the parties have known about this phone call at 1:44
               a.m. on the night of, Thomasa’s not provided information that
               she said it was [Figgs], [Crystal]’s not provided information that
               she said it was [Figgs]. Detectives have spoken to her,



       sworn deposition statement that she told the police, “I thought I saw my baby daddy,” Thomasa admitted
       that she “probably did” make such a statement. Id. at 13.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018       Page 6 of 22
               uniform[ed] officers have spoken to her. This is the first — she’s
               met with the prosecutor, by her testimony — or questioning from
               me, at least three times, and even the detective says he’s done
               follow-up with her just to keep her informed, and so this is the
               first time that we hear this.

                                              *****
               Quite frankly, finding out seconds before she testified would have
               been a little bit more timely than finding out on the stand;
               nonetheless, I believe that they had an obligation to give me this
               information. So you did provide us with an opportunity to speak
               to her for a few minutes. I believe that, you know, this leads to
               further investigation. We now have to call — you know, we
               have to go back and talk to Thomasa Hunter to find out what —
               if she remembers saying it. There’s just things that have to be
               done now to try to determine whether or not this statement that
               we’re hearing on August 16th for the first time is, in fact, a reliable
               and credible statement. I can’t do that in the middle of this trial.
               I am at an extreme disadvantage at this point, finding this out in
               the middle of this trial, which is his second trial; so I would ask
               for a mistrial on the basis that I believe that again this is a
               discovery violation.


       Id. at. 100-102.


[14]   Counsel for the State countered that a mistrial was inappropriate because he was

       as surprised by Crystal’s testimony as the defense; the statement was not

       intentionally withheld; the statement was not previously known to the State and,

       tellingly, was not introduced at Figgs’s first trial; and the information was

       “additional information, but not inconsistent” with other evidence in the record.

       Id. at 102. The trial court responded as follows:


               THE COURT: Okay. Well, I appreciate all of your candor, that
               the State, in fact, did provide all of its discovery and that
               included within that discovery were the screen shots between
               [Crystal] and [Thomasa] that were Facebook Messenger and

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 7 of 22
               texts and a telephone call. There is a police report from the
               morning of the incident that [Crystal] indicated to Officer Bell
               that she got a phone call from [Thomasa]. I reviewed my notes
               from her trial testimony previously, she was on the stand five
               minutes and was strictly a [sic] identification witness on behalf of
               the State as it related to the victim. * * * * * Clearly, the
               information was contained within the discovery.


               The fact that there was a lack of follow-up I think is just —
               discovery has changed from the old days where it was just police
               reports. We now have police reports and cameras and body
               cameras and video cameras and Facebooks and cell phones and
               all the rest of the discovery that’s mutual between the parties, but
               it’s clearly in there and I’m gonna deny the motion for a mistrial.


               I would give you some time — clearly, you need some time to
               figure out how you wish to cross examine [Crystal]. . . . [F]igure
               out how it is that you wish to proceed from this point forward;
               and I’ll provide leeway, clearly, to give you the opportunity to
               cross examine [Crystal] about the failure to divulge this
               information in the prior trial or at any other time, but it was
               clearly within the contents of the information that was provided.


       Id. at 107-08. The trial court allowed defense counsel additional time in which

       to interview Crystal and a police detective.


[15]   Also, during the trial, the State introduced evidence of the three prior incidents

       of violence between Figgs and Thomasa. Defense counsel objected; the State

       countered that the evidence “goes to the hostile nature of the relationship, [and

       the] motive of [Figgs].” Tr. Vol. II p. 233. The trial court admitted the evidence

       over defense counsel’s continuing objections.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 8 of 22
[16]   At the close of the evidence, the jury considered Count III simultaneously with

       Counts I and II. Figgs did not object or move for a bifurcated proceeding. The

       jury subsequently found Figgs guilty as charged. The trial court imposed a sixty-

       year sentence on the murder conviction, a one-year sentence for Level 5 felony

       carrying a handgun without a license, and ordered the sentences served

       concurrently. The trial court also imposed a twenty-year sentence enhancement

       for Figgs’s use of the handgun in the commission of a felony resulting in death.

       Figgs now appeals.


                                                   Analysis
                       I.       Denial of Mistrial for Alleged Discovery Violation

[17]   Figgs argues that the trial court erred in denying his motion for a mistrial

       following the State’s alleged discovery violation. Trial courts have broad

       latitude with respect to discovery matters, and we afford their rulings great

       deference on appeal. Cain v. State, 955 N.E.2d 714 (Ind. 2011). The trial court

       is in the best position to assess the effect of discovery violations; accordingly,

       we will reverse a ruling on discovery matters only when clear error occurs.

       Hooper v. State, 779 N.E.2d 596, 599 (Ind. Ct. App. 2002). “[T]he appropriate

       standard of review in all instances of prosecutorial failure to disclose evidence

       [is whether] ‘there is a reasonable probability that, had the evidence been

       disclosed to the defense, the result would have been different.’” Id.


[18]   “When remedial measures are warranted, a continuance is usually the proper

       remedy. . . .” Id.; see Cain, 955 N.E.2d at 714. “Failure to alternatively request


       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 9 of 22
       a continuance upon moving to exclude evidence, where a continuance may be

       an appropriate remedy, constitutes a waiver of any alleged error pertaining to

       noncompliance with the court’s discovery order.” Warren v. State, 725 N.E.2d

       828, 832 (Ind. 2000). Here, defense counsel objected to Crystal’s testimony, but

       failed to request a continuance; this issue is therefore waived.


[19]   Waiver notwithstanding, “Exclusion of evidence is only appropriate if the

       defendant shows ‘that the State’s actions were deliberate or otherwise

       reprehensible, and this conduct prevented the defendant from receiving a fair

       trial.’” Cain, 955 N.E.2d at 718 (quoting Warren, 725 N.E.2d at 832). The

       record reveals that, moments before she testified in Figgs’s second trial, Crystal

       informed the State that she would testify that Thomasa identified Figgs as the

       shooter. There is no indication in the record that the State purposely withheld

       Crystal’s statement or intended an ambush of the defense. Figgs has not shown

       that the State’s action was deliberate here. Nor was the State’s conduct

       reprehensible. See Fosha v. State, 747 N.E.2d 549, 557 n.9 (Ind. 2001) (“There is

       no error when the State provides a defendant evidence as soon as the State

       gains possession of the requested evidence.”), overruled on other grounds,

       Gutermuth v. State, 868 N.E.2d 427 (Ind. 2007); see Warren v. State, 725 N.E.2d

       828, 832-33 (Ind. 2000) (finding no error where State turned over 911 tape as

       soon as the tape came into the State’s possession).


[20]   Moreover, the record reveals that the State provided Figgs with sufficient

       documentary evidence of Thomasa’s telephone call and Facebook message

       exchanges with Crystal to have prompted his further examination of Crystal’s

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 10 of 22
       anticipated testimony. Under the circumstances, the trial court did not err in

       denying Figgs’s request for a mistrial due to an alleged discovery violation.


                           II.     Admission of Evidence Rule 404(b) Evidence

[21]   Next, Figgs argues that “the trial court erred by allowing the State to introduce

       evidence of three incidents of domestic violence between Figgs and Thomasa

       and allow[ing] Thomasa to testify to prior threats from Figgs in order to prove

       that he shot and killed Edward Kiel.” Appellant’s Br. p. 23. Decisions

       regarding the admission of evidence are left to the sound discretion of the trial

       court. Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied.

       On appeal, we review the trial court’s decision only for an abuse of that

       discretion, and the court abuses its discretion only if its decision regarding the

       admission of evidence is clearly against the logic and effect of the facts and

       circumstances before it, or if the court has misinterpreted the law. Id.


[22]   Indiana Evidence Rule 404(b) provides:


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
               not admissible to prove a person’s character in order to show that
               on a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:




       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 11 of 22
                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


[23]   Evidence Rule 404(b) is designed to prevent the jury from making the

       “forbidden inference” that prior wrongful conduct suggests present guilt.

       Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709

       N.E.2d 1024, 1026-27 (Ind. 1999)). Stated differently, the purpose behind

       Evidence Rule 404(b) is to “prevent[ ] the State from punishing people for their

       character, and evidence of extrinsic offenses poses the danger that the jury will

       convict the defendant because . . . he [or she] has a tendency to commit other

       crimes.” Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).


[24]   In assessing the admissibility of evidence under Evidence Rule 404(b), the trial

       court must first determine that the evidence of other crimes, wrongs, or acts is

       relevant to a matter at issue other than the defendant’s propensity to commit the

       charged act, and then balance the probative value of the evidence against its

       prejudicial effect pursuant to Evidence Rule 403. Halliburton, 1 N.E.3d at 681-

       82 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)). The effect of

       Rule 404(b) is that evidence is excluded only when it is introduced to prompt

       the forbidden inference of demonstrating the defendant’s propensity to commit

       the charged crime. Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008),

       trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 12 of 22
[25]           “[P]roof of the defendant’s motive to commit the charged crime
               lends itself to three legitimate theories of logical relevance.”
               “Evidence of motive may be offered to prove that the act was
               committed, or to prove the identity of the actor, or to prove the
               requisite mental state.”


               When evidence of motive is offered for those purposes,
               “[n]umerous cases have held that where a relationship between
               parties is characterized by frequent conflict, evidence of the
               defendant’s prior assaults and confrontations with the victim may
               be admitted to show the relationship between the parties and
               motive for committing the crime.”


       Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (internal citations and

       quotations omitted). Such is the case here.


[26]   Figgs argues that, because the State did not charge him with a crime against

       Thomasa, it was error for the trial court to admit evidence of his prior violent

       acts against her. He argues,


               [The three] incidents involved acts of threats and violence
               allegedly perpetrated between Figgs and Thomasa. If the State
               had charged Figgs for a crime against Thomasa, then, under the
               current law, the State would undoubtedly be permitted to admit
               that testimony as evidence of hostility or jealousy as motive for
               the crime is admissible. But, in this case, the State seeks to go
               one step further and make a second inference that is not
               supported by the evidence. The [S]tate did not allege that Figgs
               accidentally shot Keil [sic] or would have killed literally anyone
               one [sic] else that Thomasa came into contact with.


       Appellant’s Br. p. 24. The upshot of this argument is that Thomasa was not a

       victim of the shooting because, unlike Kiel, she was not injured or killed. Figgs

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 13 of 22
       thus maintains that, had Thomasa been injured or killed, evidence of his prior

       acts of violence against her would be admissible to prove motive, but that,

       because she survived her brush with death, the motive evidence is inadmissible.

       We cannot agree.


[27]   Figgs relies upon Cook v. State, 734 N.E.2d 563 (Ind. 2000), for the proposition

       that “a bad relationship between the defendant and any other person did not

       bear upon defendant’s motive for charged conduct.” Id. at 23. Cook is

       inapposite here. In Cook, Cook was charged with murder for shooting a man,

       who had previously served as a police confidential informant (“CI”). Cook

       attempted to introduce evidence of the informant’s CI status to suggest that

       “any number of people would have [had] a motive to harm” him. Cook, 734

       N.E.2d at 567. In upholding the trial court’s exclusion of the evidence, our

       supreme court reasoned that, although “evidence of motive is always relevant

       in the proof of a crime,” Cook had failed to present any such evidence. Id. at

       568. The Cook court reasoned:


               [Cook’s] contention that other patrons in the bar might have had
               a motive to kill [the victim] is not evidence. . . . Cook has neither
               argued nor shown that any of the bar patrons was aware that [the
               victim] at one time acted as a police informant or that any was
               even acquainted with him. * * * * * Testimony revealed that
               none of the State’s witnesses who were present at the bar on the
               night of the shooting was the subject of a [CI] drug buy. Absent
               some evidence linking [victim] to a third party, Cook’s statement
               that someone else had a motive to kill Justice amounts to mere
               speculation.”



       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 14 of 22
       Id. at 568. The Cook court thus rejected Cook’s attempt to conjure motive from

       the tenuous and remote relationships between the CI victim and bar patrons,

       none of whom were aware of or involved in the victim’s CI work.


[28]   In the instant case, however, the relationship between Thomasa and Figgs

       cannot reasonably be characterized as remote. The shooting—and murder—

       resulted from Figgs firing five gunshots at Kiel and Thomasa, as they sat in

       Kiel’s vehicle together. Figgs’s jealousy of Thomasa’s friendship with another

       man provided the motive for the shooting; and evidence of Figgs’s prior violent

       acts against Thomasa was probative of the ongoing hostility between them and

       was admissible to show the motive for shooting and killing Kiel, whom Figgs

       perceived as a romantic rival. See id. (“[W]here a relationship between parties is

       characterized by frequent conflict, evidence of the defendant’s prior assaults and

       confrontations with the victim may be admitted to show the relationship

       between the parties and motive for committing the crime.”). Based on the

       foregoing, we conclude that evidence of Figgs’s prior violent acts against

       Thomasa was relevant evidence of Figgs’s motive for the shooting that resulted

       in Kiel’s death.


[29]   As we have stated above, the evidence of the three incidents of violence was

       probative of the hostility between Thomasa and Figgs. Thus, the incidents of

       violence “illustrated the hostile relationship that could have been a motive” for

       Figgs shooting Kiel. See Hicks v. State, 690 N.E.2d 215, 223 (Ind. 1997). Even if

       we had found otherwise, any error therefrom is harmless.



       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 15 of 22
[30]   An error is harmless when it results in no prejudice to a party’s “substantial

       rights.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). The basic premise of

       the harmless error rule is that “a conviction may stand when the error had no

       bearing on the outcome of the case.” Id. To determine whether an error in the

       introduction of evidence affected the defendant’s substantial rights, we assess

       the probable impact of that evidence upon the jury considering all the other

       evidence that was properly presented. Blount v. State, 22 N.E.3d 559, 564 (Ind.

       2014). If we are satisfied that the conviction is supported by independent

       evidence of guilt such that there is no substantial likelihood that the challenged

       evidence contributed to the verdict, the error is harmless. Id.


[31]   The record establishes, by substantial independent evidence, that Figgs killed

       Kiel. After Tamarii told him that Thomasa had gone out with someone, Figgs

       went to her home shortly after 1:00 a.m. on July 6, 2016. Thomasa was asleep

       in Kiel’s vehicle when Kiel asked, “Is that your mother******* baby daddy?”

       Tr. Vol. III p. 3. Moments later, a gunman fired five shots into the vehicle.

       Thomasa subsequently identified Figgs as the shooter. Tamarii saw Figgs

       running from the scene with a silver and black item in his hand. Figgs, who

       had called Thomasa incessantly in the days preceding the shooting, did not call

       her again after 1:39 a.m. on July 6, 2016.2 In light of the foregoing evidence, we




       2
           Figgs’s next contact with Thomasa appears to have been a jailhouse telephone call.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 16 of 22
       conclude that the jury would have reached the same result even if it had not

       learned about the prior incidents of violence between Thomasa and Figgs.


                                     III.    Inappropriateness of Sentence

[32]   Figgs contends that his sentence is inappropriate and invites us to reduce it

       pursuant to Indiana Appellate Rule 7(B), which provides that we may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we find that the sentence “is inappropriate in light of the nature of the

       offense and the character of the offender.” The defendant bears the burden to

       persuade this Court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible sentencing scheme

       allows trial courts to tailor an appropriate sentence to the circumstances

       presented, and the trial court’s judgment “should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

       role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

       Whether we regard a sentence as inappropriate at the end of the day turns on

       “our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other facts that come to light in a given

       case.” Id. at 1224.


[33]   We consider all aspects of the penal consequences imposed by the trial court in

       sentencing the defendant, including whether a portion of the sentence is ordered

       suspended “or otherwise crafted using any of the variety of sentencing tools

       available to the trial judge.” Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

       2010). In conducting our review, we do not look to see whether the defendant’s
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       sentence is appropriate or “if another sentence might be more appropriate;

       rather, the question is whether the sentence imposed is inappropriate.” Fonner

       v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[34]   A person who commits murder shall be imprisoned for a fixed term of between

       forty-five and sixty-five years, with the advisory sentence being fifty-five years.

       Here, the trial court imposed a sixty-year sentence for Kiel’s murder. A person

       who commits a Level 5 felony shall be imprisoned for a fixed term of between

       one and six years, with the advisory sentence being three years. Here, the trial

       court imposed a sentence of one year, ordered served concurrently with Figgs’s

       murder sentence. Where a trier of fact finds that the State has proved, beyond a

       reasonable doubt, that a person used a firearm in the commission of a felony,

       the court may sentence the person to an additional fixed term of between five

       and twenty years. Here, the trial court imposed the maximum enhancement of

       twenty years. As the State correctly states, Figgs faced a maximum sentence of

       ninety-one years. The trial court here imposed an eighty-year sentence.


[35]   Regarding the nature of the offense, Figgs fired five gunshots into a vehicle in

       which his ex-girlfriend was seated with another man, Kiel. Kiel died from

       injuries sustained in the ambush. As regards Figgs’s character, we first consider

       his criminal history. It is well-settled that “[w]hen considering the character of

       the offender, one relevant fact is the defendant’s criminal history,” and “[t]he

       significance of criminal history varies based on the gravity, nature, and number

       of prior offenses in relation to the current offense.” Garcia v. State, 47 N.E.3d

       1249, 1251 (Ind. Ct. App. 2015), trans. denied. Moreover, the trial court may

       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 18 of 22
       consider not only the defendant’s adult criminal history but also his juvenile

       delinquency record in determining whether his criminal history is significant.

       See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).


[36]   The record reveals that Figgs was adjudicated a juvenile delinquent for

       disorderly conduct and resisting law enforcement. As an adult, he has

       convictions for operating a vehicle without a license (twice), resisting law

       enforcement (three times), possession of marijuana, public intoxication (twice),

       carrying a handgun without a license, and disorderly conduct. On two

       occasions, his suspended sentences have been revoked. His prior criminal

       history, like the instant offenses, reflects his lack of self-restraint and inability to

       conform his behavior to the law’s requirements. The trial record established

       that Figgs had a history of terrorizing Thomasa, which culminated in his use of

       deadly force against her and Kiel.


[37]   Based on the foregoing, Figgs’s aggregate sentence of eighty years is not

       inappropriate in light of the nature of the offenses and his character. He has

       been undeterred by court intervention, has continued to offend throughout his

       multiple contacts with the criminal justice system, has shown that he has no

       regard for the rule of law, and his crimes have escalated to the point of murder.


                                                 IV.     Bifurcation

[38]   Lastly, Figgs argues that the trial court erred when it did not conduct a

       bifurcated hearing regarding Count III, the sentence enhancement for his use of

       a firearm in the commission of a felony. Because Figgs did not object to the


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       jury’s consideration of Count III simultaneously with Counts I and II, we

       conclude that he has waived any argument regarding the bifurcated proceeding.

       See Helsley v. State, 809 N.E.2d 292, 302 (Ind. 2004) (holding that the defendant

       may not appeal on grounds not distinctly presented at trial). As the State

       maintains, Figgs neither acknowledges his waiver nor alleges fundamental error

       here. See Appellee’s Br. p. 23.


[39]   Waiver notwithstanding, we consider whether the trial court’s failure to

       bifurcate constitutes a fundamental error that overcomes the waiver and

       requires reversal. Fundamental error is a blatant violation of basic principles.

       Carden v. State, 873 N.E.2d 160, 164 (Ind. Ct. App. 2007). The potential for

       harm must be substantial and deprive the defendant of fundamental due

       process. Id. “The error must be so prejudicial to the rights of the defendant as

       to make a fair trial impossible.” Id.


[40]   Indiana Code Section 35-50-2-11 provides, in pertinent part, as follows:


               (d) The state may seek, on a page separate from the rest of a
               charging instrument, to have a person who allegedly committed
               an offense sentenced to an additional fixed term of imprisonment
               if the state can show beyond a reasonable doubt that the person
               knowingly or intentionally used a firearm in the commission of
               the offense.


                                                    *****


               (f) If the person was convicted of:


                        (1) the offense under subsection (d);
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                        ...


               in a jury trial, the jury shall reconvene to hear evidence in the
               enhancement hearing.


[41]   The “reconvening” language evinces the need for a bifurcated hearing where

       evidence that the defendant used a handgun could prejudice the jury in the

       jury’s deliberation of the defendant’s guilt. See Johnson v. State, 544 N.E.2d 164,

       168 (Ind. Ct. App. 1989) (trial court recognized need for bifurcated proceeding

       to keep evidence of prior conviction of battery from prejudicing jury before

       enhancement phase of trial), trans. denied. Under the instant facts, however, we

       find that no such danger existed. To prove its murder case, the State had to

       present evidence to the jury that Figgs used a firearm to shoot Kiel. Under the

       circumstances, we do not find prejudicial error that made a fair trial impossible

       for Figgs; nor do we find that there was substantial potential for harm that

       deprived Figgs of fundamental due process. Accordingly, the trial court did not

       err when it did not require the jury to reconvene for a bifurcated proceeding

       regarding Figgs’s use of a handgun in the commission of the crime, resulting in

       Kiel’s death.


                                                 Conclusion
[42]   The trial court did not err in denying Figgs’s motion for a mistrial, in admitting

       Evidence Rule 404(B) evidence, or in failing to hold a bifurcated hearing

       regarding the sentence enhancement for his use of a firearm in the commission




       Court of Appeals of Indiana | Memorandum Decision 02A05-1710-CR-2405 | October 5, 2018   Page 21 of 22
       of a felony, resulting in Kiel’s death. Figgs’s sentence is not inappropriate in

       light of the nature of his offenses and his character. We affirm.


[43]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




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