MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Feb 11 2020, 8:04 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jonathan D. Harwell                                      Curtis T. Hill, Jr.
Harwell Legal Counsel LLC                                Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Tywan A. James,                                          February 11, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2703
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1710-MR-39787



Shepard, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020              Page 1 of 19
[1]   Tywan James appeals his convictions of two counts of murder by claiming error

      in the admission of certain evidence and insufficiency. He also asserts that his

      sentence is inappropriate. We affirm.


                               Facts and Procedural History
[2]   On September 29, 2017, twenty-three-year-old Martina Webb and twenty-one-

      year-old Aliyah Igartua drove from Gary to Indianapolis to pick up Jason

      Ballard. Ballard lived in Gary but was in Indianapolis for a family gathering at

      his aunt’s house. Webb and Ballard had known each other since middle school

      and were seeing one another at the time of this incident. At some point that

      evening, Webb and Igartua were present with Ballard at Ballard’s aunt’s home

      on Winfield Avenue in Indianapolis.


[3]   At 9:03 p.m., officers responded to a dispatch of shots fired on Winfield

      Avenue, but they were unable to locate a suspect. Around midnight, officers

      were dispatched to a vehicle fire at an address about four blocks from the

      Winfield Avenue location to which they had been dispatched earlier. Inside the

      vehicle, police found the bodies of two women who were later identified as

      Webb and Igartua. Webb had suffered a gunshot wound to her head, and

      Igartua had suffered a wound to her hand as well as her head. It was later

      determined that both women had died before the fire because neither of them

      had soot in their airways. The fire investigator determined that gasoline had

      been applied to the passenger compartment and portions of the car’s exterior.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 2 of 19
[4]   Detective Jones, a homicide detective with the Indianapolis Metropolitan

      Police Department (IMPD), contacted Webb’s mother and learned that Webb

      had come to Indianapolis to pick up Ballard. The detective then spoke to

      Ballard on September 30 and took a recorded statement from him.


[5]   That same day, police found a pool of dried blood on the sidewalk and two .40

      caliber shell casings in the same area of Winfield Avenue where shots had been

      fired the previous night. Testing revealed that the blood was Igartua’s, and the

      bullet recovered from her head during her autopsy was a .40 caliber.


[6]   The following day, October 1, Michael Smith, appellant’s cousin, appeared at a

      police roll call location and spoke with Detective Jones. As he spoke, Smith

      was shaking, crying, and pacing, and he identified “Tywan” as the person who

      shot Webb. Tr. Vol. III, p. 56. Based on this information and further

      investigation by Detective Jones, officers prepared a photo array and showed it

      to Smith. Smith identified James in the array and signed his name indicating
                                                                                1
      so. The State charged James with two counts of murder.


[7]   During her investigation, Detective Jones had obtained the name of Martell

      Marshall from Smith and Ballard. In March 2018, she visited Marshall and

      obtained a statement in which he identified “Tywan” as the shooter. Id. at 65.




      1
          Ind. Code § 35-42-1-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 3 of 19
[8]    The case went to trial in September 2018, and Ballard, Smith, and Marshall all

       testified. Ballard testified he was at his aunt’s house on Winfield Avenue with

       Smith and Marshall on September 29, 2017. He denied James’ presence at his

       aunt’s house that night, and he denied being present when the shots were fired;

       he testified that he had gone out in Broad Ripple that evening.


[9]    Smith testified that he is a childhood friend of Webb’s, that he has known

       Ballard his whole life, and that he has known Marshall for several years. He

       denied being in Indianapolis on September 29, 2017, and stated that he did not

       recall giving a statement to Detective Jones on October 1, that he did not

       recognize the photo array, and that the signature on the array was not his. The

       State then used Smith’s statement to impeach him, and the trial court gave a

       limiting instruction advising the jury of such. In his statement, Smith had told

       Detective Jones that he had been with Ballard and Marshall on September 29,

       that he saw Webb get shot once in the head as she sat in the front passenger seat

       of her vehicle, and that James pulled the trigger. He also said that after James

       shot Webb, Igartua exited the vehicle and tried to run. The lone portion of

       Smith’s statement the trial court allowed the jury to consider as substantive

       evidence against James was Smith’s identification of “Tywan” as the shooter.

       Id. at 56.


[10]   The State also called Marshall, who testified that he is from Gary and that he

       knew Webb and knows Ballard and Smith. He acknowledged that he was in

       Indianapolis on September 29 with Ballard and Smith at Ballard’s aunt’s house.

       He confirmed that he heard gun shots but said he did not see the person who

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 4 of 19
       fired the gun. For impeachment purposes only, the State was allowed to

       question him about his statement to Detective Jones. He testified that he

       remembered talking to the detective but did not recall telling her he saw the

       perpetrator shoot Webb in the head or naming James as the shooter. As it had

       done previously with Smith, the trial court admitted as substantive evidence

       Marshall’s identification of the shooter as “Tywan.” Id. at 65.


[11]   A jury convicted James as charged. He was subsequently sentenced to sixty

       years on each count of murder, to be served consecutively.


                                                     Issues
[12]   James presents five issues, which we consolidate and restate as:


               I.       Whether the court erred by admitting certain evidence;


               II.      Whether there was sufficient evidence to support James’
                        convictions; and


               III.     Whether James’ sentence is inappropriate.


                                    Discussion and Decision
                                      I. Admission of Evidence
[13]   The trial court’s ruling on the admission or exclusion of evidence is reviewed

       for abuse of discretion. Cherry v. State, 57 N.E.3d 867 (Ind. Ct. App. 2016),

       trans. denied. An abuse of discretion occurs when a decision is clearly against

       the logic and effect of the facts and circumstances before the court. Paul v. State,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 5 of 19
       971 N.E.2d 172 (Ind. Ct. App. 2012). Error in the admission of evidence will

       prevail on appeal only if it affects the substantial rights of a party. Carter v.

       State, 31 N.E.3d 17 (Ind. Ct. App. 2015), trans. denied.


                                           A. Cell Phone Contents

[14]   James first challenges the admission of evidence collected from his cell phone

       pursuant to a search warrant. That evidence consisted of a Facebook

       Messenger message and internet browser history that tended to prove that

       James was the shooter.


[15]   The gist of James’ argument is that the warrant issued for the contents of his

       phone was invalid because the State omitted material facts in the supporting

       probable cause affidavit. Specifically, James claims error with the fact that the

       affidavit contains information provided by Smith in his statement to Detective

       Jones on October 1, 2017, but it omits the fact that some of those statements

       were contradicted by Smith in his deposition in May 2018.


[16]   The task of the issuing magistrate in deciding whether to issue a warrant is to

       make a practical, common-sense decision whether, given all the circumstances

       set forth in the affidavit, there is a fair probability that evidence of a crime will

       be found in a particular place. Brown v. State, 905 N.E.2d 439 (Ind. Ct. App.

       2009). A reviewing court, then, must determine whether the magistrate had a

       substantial basis for concluding that probable cause existed. Id. The reviewing

       court focuses on whether reasonable inferences drawn from the totality of the

       evidence support the determination of probable cause, and, in doing so, the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 6 of 19
       reviewing court affords significant deference to the magistrate’s determination.

       Houser v. State, 678 N.E.2d 95 (Ind. 1997). Furthermore, doubtful cases are to

       be resolved in favor of upholding the warrant, and we will not invalidate

       warrants by interpreting probable cause affidavits in a hypertechnical, rather

       than a commonsense, manner. Rios v. State, 762 N.E.2d 153 (Ind. Ct. App.
                2
       2002).


[17]   A probable cause affidavit must include all material facts known to law

       enforcement, which includes those facts that cause the existence of probable

       cause to be questioned. Ware v. State, 859 N.E.2d 708 (Ind. Ct. App. 2007),

       trans. denied. When the State has failed to include a material fact, we will

       determine the validity of the warrant by considering collectively the omitted

       information and the information contained in the affidavit. Id.


[18]   For a warrant to be invalid due to omission of information from an affidavit,

       the defendant must show (1) that the police omitted facts with the intent to

       make, or in reckless disregard of whether it made, the affidavit misleading and

       (2) that the affidavit, if supplemented with the omitted information, would not

       have been sufficient to support a finding of probable cause. Gerth, 51 N.E.3d

       368. Omissions from an affidavit are made with reckless disregard if an officer




       2
        When ruling on the admission of evidence at trial following the denial of a motion to suppress, a trial court
       must consider the foundational evidence presented at trial as well as the evidence from the suppression
       hearing that is favorable to the defendant, only to the extent it is uncontradicted at trial. Gerth v. State, 51
       N.E.3d 368 (Ind. Ct. App. 2016).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020                   Page 7 of 19
       withholds a fact within her knowledge that any reasonable person would have

       understood to be a fact the judge would wish to know. Id.


[19]   Applied here, James must show (1) Detective Jones omitted Smith’s

       contradictory deposition statements with the intent to make, or in reckless

       disregard of whether it made, her affidavit misleading and (2) if the affidavit

       had disclosed Smith’s deposition statements, the affidavit would not have been

       sufficient to find probable cause.


[20]   At the suppression hearing, Detective Jones indicated that, although she was

       aware that there were some differences between Smith’s deposition testimony

       and his October 1 statement, she had not read the transcript of his deposition

       testimony before submitting her affidavit. She testified that she used the

       affidavit she had previously submitted for the warrant for James’ arrest and just

       added the cell phone information. Detective Jones further stated that her first

       affidavit was based on Smith coming to roll call of his own accord and asking to

       speak to a detective who was investigating a double homicide in which the

       bodies of two women were burned. In addition, Smith had identified James in

       the photo array, and some of the information Smith provided had been

       confirmed by physical evidence and corroborated by Ballard’s statement.


[21]   The trial court determined that the detective’s omission, though negligent, does

       not reflect reckless disregard because the detective had serious doubts that the

       information supplied by Smith during his original statement was false. The

       court also concluded that even if it found the detective’s omission to be reckless


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 8 of 19
       under the first factor, it would still find probable cause to issue the warrant,

       even considering Smith’s deposition, under the second factor. The court

       explained: “With the 30 claims of memory loss in the deposition, combined

       with the 5th Amendment assertions to non-incriminating questions, it would not

       be unreasonable for the reviewing judge to determine Smith had simply become

       scared or non-cooperative and to not discount Smith’s original statement to the

       detective, even if it were not under oath.” Appellant’s App. Vol. 2, p. 186.


[22]   We think the detective’s omissions were more than simply negligent. In setting

       forth the information Smith provided to law enforcement in October 2017, the

       affidavit states that Smith “has no reason to be untruthful or provide false

       information.” Id. at 169. The detective used her original affidavit containing

       this language despite knowing that Smith’s May 2018 deposition testimony

       contradicted his earlier statement. We believe the omitted information

       concerning Smith’s deposition testimony is the kind of thing that any

       reasonable person would have known the judge would want to know and that

       the information was omitted with reckless disregard of whether the affidavit

       would be misleading.


[23]   Still, an affidavit containing the omitted information would have been sufficient

       to support a finding of probable cause. The affidavit would still contain

       information from Smith’s October 2017 statement, which the issuing magistrate

       could have reasonably considered. Indeed, as the trial court stated, in light of

       Smith’s numerous claims of memory loss and assertions of Fifth Amendment

       protection during his deposition, the issuing magistrate could have determined

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 9 of 19
       that Smith had changed his statement due to fear. Moreover, the affidavit

       indicated that the records of an initial cell phone number provided to the police

       by James confirm he was at the scene of the shooting. The affidavit further

       provides that, at the time of his arrest, James was in possession of a cell phone

       with a different number and that he had previously called his parole officer

       from that number. It is the contents of this phone that the State sought to

       inspect. Consequently, the affidavit still provided the issuing magistrate with a

       substantial basis for concluding that probable cause existed. Therefore, we

       conclude the omission at issue here was not fatal.


                                            B. Smith’s Testimony

[24]   James also asserts the trial court erred by admitting Smith’s testimony at trial.

       He says the State called Smith as a witness for the sole and impermissible

       purpose of impeaching him and thus presenting to the jury the otherwise

       inadmissible evidence of his October 2017 statement.


[25]   The State certainly had the right to impeach Smith, its own witness. See Ind.

       Evidence Rule 607. But, “a party is forbidden from placing a witness on the

       stand when the party’s sole purpose in doing so is to present otherwise

       inadmissible evidence cloaked as impeachment.” Appleton v. State, 740 N.E.2d

       122, 125 (Ind. 2001). The question is thus whether calling Smith as a witness

       served any legitimate non-impeachment purpose.


[26]   Prior to trial, Smith had provided an unsworn statement to Detective Jones

       during which he identified James as the shooter. At trial, the State called Smith


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 10 of 19
       as a witness. Smith testified that he is from Gary, that he is a

       childhood/neighborhood friend of Webb and has known her for many years,

       that he is James’ cousin and has known James his whole life, that he has known

       Marshall for several years and Marshall’s nickname is “Tells,” and that he has

       known Ballard his whole life. Tr. Vol. II, p. 115. He verified his cell phone

       number, which number the State subsequently showed had used towers in

       Indianapolis in the vicinity of the murders on September 29 and had cellular

       contact with James’ phone. When asked whether he was in Indianapolis on

       September 29 and if he had seen Marshall or Ballard on that date, Smith

       responded negatively. The court gave a limiting instruction that information

       from Smith’s prior statement was to be used only for a credibility determination

       and not as substantive evidence. The State then asked Smith whether he

       recalled meeting with Detective Jones and giving a statement on October 1 that

       he had witnessed Webb being shot in the head and that James was the shooter.

       Smith responded in the negative.


[27]   Thus, in addition to his allegedly inadmissible statement of October 2017,

       Smith was questioned and provided substantive testimony about his

       relationship to James and other witnesses as well as his mobile phone number

       in September 2017. Smith’s cell phone records and the testimony of both

       Ballard and Marshall establish Smith’s presence in Indianapolis in the area and

       at the time of the murders. Consequently, we cannot definitively say the State

       placed Smith on the stand for the sole purpose of impeaching him and

       admitting otherwise inadmissible evidence. See Kendall v. State, 790 N.E.2d 122


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 11 of 19
       (Ind. Ct. App. 2003) (witness’ testimony could not be said to have been offered

       solely to impeach witness with prior statement where witness provided other

       relevant testimony regarding vehicle suspects were driving, how suspects were

       dressed, and suspects’ actions), trans. denied.


                                  C. Marshall’s Identification of James

[28]   James additionally urges that the trial court abused its discretion by admitting

       Marshall’s prior statement to Detective Jones identifying James as the shooter.

       James claims the statement was inadmissible under Evidence Rule 801(d)(1)(C)

       because the identification was made several months after the murders occurred.


[29]   Rule 801(d)(1)(C) provides that a statement is not hearsay if the declarant

       testifies and is subject to cross-examination about a prior statement, and the

       statement is an identification of a person shortly after perceiving the person.

       The gist of James’ claim is whether Marshall’s identification some five months

       after the murders qualifies as an identification made “shortly after perceiving”

       James.


[30]   In Robinson v. State, 682 N.E.2d 806 (Ind. Ct. App. 1997), this Court held that

       an identification within two and a half months after shootings satisfied the

       purpose and requirements of Rule 801(d)(1)(C). In doing so, the Court looked

       to guidance from the history of Federal Rule of Evidence 801(d)(1)(C), which,

       with the exception of the term “shortly,” is identical to our state version.

       Noting that its analysis was hampered by the absence of advisory notes to the

       Indiana Rules of Evidence and that the federal rule would provide no guidance


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 12 of 19
       as to the term “shortly,” the Court turned to the rationale for the federal rule in

       search of a better understanding of the purpose of our state rule. The Advisory

       Committee Notes to the federal rule state that identifications, such as

       Marshall’s in the instant case, are defined as non-hearsay because “‘the context

       of a formal proceeding, an oath, and the opportunity for cross-examination

       provide firm additional assurances of the reliability of the prior statement.’”

       Robinson, 682 N.E.2d at 811 (quoting FED. R. EVID. 801(d)(1)(C) advisory

       committee’s note). The committee’s note thus underscores the focus of the rule:

       reliability of the identification. Robinson, 682 N.E.2d at 811. Given this

       emphasis on reliability, the Court concluded that Indiana added the

       requirement that the identification be made “shortly after perceiving” to

       “further buttress the reliability and accuracy of the identification.” Id. The

       Court further observed that, in dealing with identification questions, courts of

       this state have frequently recognized the additional accuracy of an identification

       made shortly after the event when memories are fresh. Id. (citing Leslie v. State,

       558 N.E.2d 813, 815 (Ind. 1990)).


[31]   Here, on March 13, 2018, Marshall gave a statement to the detective in which

       he admitted being at the scene on September 29 and identified James as the

       shooter. Later in the interview, Detective Jones showed Marshall a photo array

       that included James, but Marshall was not able to make an identification. At

       trial, Marshall acknowledged being from Gary and knowing Webb, Ballard,

       and Smith. He also admitted to being in Indianapolis on September 29 at

       Ballard’s aunt’s house with Ballard and Smith. He testified that he heard gun


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 13 of 19
       shots but did not see the person who was shooting. Finally, Marshall testified

       that he did not recall telling the detective that James was the shooter or that he

       saw the shooter shoot Webb in the head. Although we have acknowledged the

       term “shortly” is relative rather than precise, see Robinson, 682 N.E.2d at 811,

       we cannot say Marshall’s identification of James five months after the shootings

       satisfies the requirements of Rule 801(d)(1)(C), and, consequently, it was error

       to admit it.


[32]   Nevertheless, the error was harmless. Marshall’s identification of James as the

       shooter was cumulative of Smith’s identification. The improper admission of

       evidence is harmless error when the erroneously admitted evidence is merely

       cumulative of other evidence before the trier of fact. Purvis v. State, 829 N.E.2d

       572 (Ind. Ct. App. 2005), trans. denied.


                                 II. Sufficiency of the Evidence
[33]   James’ challenge to the sufficiency of the evidence for his convictions rests upon

       findings of error in all, or at least some, of the three allegations we have just

       examined.


[34]   In reviewing challenges to the sufficiency of the evidence, we neither reweigh

       the evidence nor judge the credibility of the witnesses. Sandleben v. State, 29

       N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the

       evidence most favorable to the verdict and any reasonable inferences drawn

       therefrom. Id. If there is substantial evidence of probative value from which a

       reasonable fact-finder could have found the defendant guilty beyond a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 14 of 19
       reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d

       501 (Ind. Ct. App. 2015).


[35]   In support of his argument, James cites Kiefer v. State, 761 N.E.2d 802 (Ind.

       2002), noting that Kiefer’s conviction of attempted murder was reversed

       because the evidence showed that Kiefer did not know the victim and had no

       motive to kill him. Unlike the present case, however, these factors had a

       bearing on a requisite element of Kiefer’s offense—i.e., whether Kiefer acted

       with the specific intent to kill the victim. That element is not required for the

       offense of murder; thus, Kiefer is inapposite to this case.


[36]   Here, Ballard testified that he was at his aunt’s house on Winfield Avenue in

       Indianapolis on September 29 with Smith and Marshall. In addition, the State

       presented evidence of Smith’s identification of his cousin James as the person

       who shot Webb and testimony about James’ cell phone records indicating his

       phone used a cellular tower just over a mile away from the scene around the

       time of the shots being fired. The records also show outgoing calls from James’

       phone to the phones of Ballard and Smith.


[37]   Additional, but more modest, proof of James’ guilt derives from the contents of

       his cell phone. This evidence showed that on the Facebook Messenger

       application account with display name “Tywan James” and username

       “Tywan.James.58,” an outgoing message was sent on October 8, 2017, stating,

       “Boy, I’m ducking homicide.” Tr. Vol. III, pp. 156, 155, 157, 158. The




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 15 of 19
                                                        3
       evidence also showed certain URLs that had been visited on James’ cell phone,

       commencing with: “Bodies found in burning car in Indianapolis” and

       “Update, bodies of Gary women found in burning car.” Id. at 159, 160.

       Additionally, there was a search on the web page “enow.com.” on October 4

       for “bodies found in Indianapolis” Id. at 160. The State’s evidence also

       showed that on October 6 these URLs were visited: “Relatives share message

       after two women’s bodies found in burning car,” “Bodies of two Gary women

       found in burning car,” and “Bodies, two Gary women found inside burning car,

       Indianapolis.” Id. at 160, 161. On October 7, there were searches on

       “NetFind” for “Bodies found in Indianapolis” and “pictures of bodies found.”

       Id. We conclude there was sufficient evidence to support James’ convictions for

       murdering Martina Webb and Aliyah Igartua.


                                      III. Inappropriate Sentence
[38]   Finally, James claims his sentence is inappropriate given the nature of his

       offenses and his character.


[39]   Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we determine

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender. Thompson v. State, 5 N.E.3d 383 (Ind. Ct. App. 2014).




       3
        “URL” is an abbreviation for “uniform resource locator.” It is the address of a resource, such as a website,
       on the internet. https://www.merriam-webster.com/dictionary/URL (last visited Feb. 4, 2020).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020               Page 16 of 19
       However, “we must and should exercise deference to a trial court’s sentencing

       decision, both because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858,

       866 (Ind. Ct. App. 2007). The principal role of appellate review under Rule

       7(B) is to attempt to leaven the outliers, not to achieve a perceived “correct”

       result in each case. Garner v. State, 7 N.E.3d 1012 (Ind. Ct. App. 2014). The

       defendant bears the burden of persuading the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073 (Ind. 2006).


[40]   To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the offenses. The advisory sentence for murder is fifty-five

       years, with a minimum sentence of forty-five years and a maximum of sixty-

       five. Ind. Code § 35-50-2-3 (2015). James’ sentence of sixty years on each

       conviction was thus only modestly above the advisory.


[41]   Next, we look to the nature of the offenses and the character of the offender.

       As to the nature of the offenses, we note this case involves two horrific and

       grisly murders where the victims were first shot in the head and then their

       bodies set aflame. Both victims were in their early 20’s, and Webb had a young

       son while Igartua had an infant daughter.


[42]   As for the character of the offender, we observe that James’ record begins with

       true findings for what would be A misdemeanor battery in 2003, followed by a

       C misdemeanor operating while never having received a license and D felony


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 17 of 19
       receiving stolen parts in 2004. Upon becoming an adult, James was convicted

       of B misdemeanor disorderly conduct in 2005. He was then convicted of A

       misdemeanor resisting and C misdemeanor refusal to identify in 2006, and A

       misdemeanor carrying a handgun without a license in 2007. Also in 2007,

       James was charged with aggravated armed bank robbery and use of a firearm in

       doing so. He was convicted of these charges and sent to federal prison from

       about December 2008 to April 2017, when he was released to federal probation.

       While on probation, he was charged in June 2017 with B misdemeanor reckless

       driving causing property damage. This charge was pending at the time of his

       sentencing in the present case. Finally, James committed the current offenses

       in September 2017 while he was still on federal probation.


[43]   To further illustrate James’ character, the State introduced at sentencing an

       audio recording of a phone call James made from jail in October 2018 after his

       trial. During the call, James indicates that he has “a surprise” when he comes

       back on appeal, and he suggests his accusers should “go buy a whole bunch of

       mother-f***in’ bullet-proof vests” and states that he will “f*** them [ ] up.”

       Ex. 4.


[44]   In sentencing James, the trial court stated its belief that no mitigating

       circumstances existed, but it took into account that James had faced challenges

       growing up. The court cited his criminal history and the circumstances of the

       murders as aggravating factors. And, it declined the defense request for

       concurrent sentences.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 18 of 19
[45]   In arguing that his sentence should be reduced, James points to the fact that he

       had obtained his GED, had obtained employment, and had gotten married.

       The deference shown to a trial court’s sentencing discretion should prevail

       unless overcome by compelling evidence portraying in a positive light the

       nature of the offense (such as accompanied by restraint, regard, and lack of

       brutality) and the defendant’s character (such as substantial virtuous traits or

       persistent examples of good character). Stephenson v. State, 29 N.E.3d 111 (Ind.

       2015). James has not met this burden.


[46]   Moreover, our Supreme Court has said that “[a]s a general rule, multiple

       killings warrant the imposition of consecutive sentences.” Tobar v. State, 740

       N.E.2d 109, 113 (Ind. 2000). James has not made any showing that

       consecutive sentences were inappropriate for these two murders.


                                                Conclusion
[47]   We conclude the trial court did not abuse its discretion in the admission of

       evidence at trial, and in the instance where it erroneously admitted evidence, it

       was harmless error; there was sufficient evidence to support James’ convictions;

       and his sentence is not inappropriate.


[48]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2703 | February 11, 2020   Page 19 of 19
