 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:

MATTHEW D. ANGLEMEYER                                GREGORY F. ZOELLER
Marion County Public Defender                        Attorney General of Indiana
Indianapolis, Indiana
                                                     JONATHAN R. SICHTERMANN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                                                                                   FILED
                                                                              Dec 31 2012, 11:05 am

                      COURT OF APPEALS OF INDIANA
                                                                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court


MICHA SEYMOUR,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 49A02-1206-CR-489
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Patricia Gifford, Senior Judge
                              Cause No. 49G04-1109-FA-68656


                                         December 31, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
           Micha Seymour appeals his conviction for Attempted Murder1 and his adjudication as

a Habitual Offender. 2 Seymour presents the following restated issues for review:

           1.      Did the admission of the victim’s medical records constitute
                fundamental error?

           2.      Did the State present insufficient evidence to support Seymour’s
                habitual offender adjudication?

           We affirm in part, reverse in part, and remand with instructions.

           On September 24, 2011, Deandre Hill went to his sister’s house and found her fighting

with her boyfriend, Seymour. When Hill broke up the altercation, he and Seymour began

arguing. Hill and Seymour then went for a short drive to allow them to talk and attempt to

resolve their dispute. The men, however, were unable to settle their differences, and Hill

drove Seymour back to Hill’s sister’s house. Before exiting the vehicle, Seymour shook

Hill’s hand and told him to “keep [his] heat on,” meaning that Hill should carry his gun.

Transcript at 27.

           After making sure his sister and her children were alright, Hill got back in his vehicle

and ran some errands. About thirty minutes later, Hill went to the corner of Michigan Street

and Grant Avenue in Indianapolis, where he often met with his friends. As he drove past an

open field near his destination, he saw Seymour standing next to a gold Buick holding a large

gun. Hill asked Seymour what he was doing, and Seymour stated that he was waiting for a

friend.


1
 Ind. Code Ann. § 35-42-1-1 (West, Westlaw current through 2012 2nd Reg. Sess.); Ind. Code Ann. § 35-41-5-1 (West,
Westlaw current through 2012 2nd Reg. Sess.).
2
    Ind. Code Ann. § 35-50-2-8 (West, Westlaw current through 2012 2nd Reg. Sess.).

                                                          2
       Hill then drove half a block further and, as he began to park his car in an alley, he saw

Seymour standing on the passenger side of the vehicle, still holding the gun. After Hill

parked his car, Seymour shot him three times, twice in the chest and once in the abdomen.

As Seymour continued to shoot at him, Hill drove away, but crashed into a garage. Hill then

got out of his car and began running around the garage. Hill finally stopped running when he

realized that the gunshots had stopped and that Seymour was no longer chasing him. Hill

then went back to the alley and saw Seymour running toward Michigan Street. Hill got in his

vehicle and drove a short distance before pulling over and calling 911. Emergency personnel

responded to the scene and took Hill to the hospital, where he stayed for about eight days

before being released.

       As a result of the shooting, the State charged Seymour with attempted murder and

alleged that he was a habitual offender. A two-day jury trial commenced on May 14, 2012, at

which Hill testified for the State. During Hill’s testimony, the State sought to introduce

records of Hill’s medical treatment following the shooting, along with a certified business

record affidavit. Seymour raised no objection, and the records were admitted. The State did

not publish the records to the jury at that time, and the records were not mentioned again at

any point during the trial. The State eventually published the records at the close of trial

when the jury was set to begin its deliberations.

       The jury returned a guilty verdict on the attempted murder charge, and the matter

proceeded to the habitual offender phase. The State presented evidence that Seymour had

committed class C felony carrying a handgun without a license on September 17, 2002, and


                                               3
that he was sentenced for that offense on November 21, 2002. The State also presented

evidence that Seymour was arrested on an undisclosed warrant charge and for class D felony

resisting law enforcement on February 28, 2010, and that he was sentenced for the resisting

offense on April 1, 2010. The jury determined that Seymour was a habitual offender, and the

trial court sentenced him to forty-five years for attempted murder, enhanced by thirty years

based on the habitual offender finding, for an aggregate sentence of seventy-five years.

Seymour now appeals.

                                               1.

       Seymour first argues that the trial court erred in admitting Hill’s medical records into

evidence. Seymour concedes, however, that he did not object to the admission of the medical

records at trial. Therefore, unless he can show that fundamental error occurred, the issue is

waived. See Caron v. State, 824 N.E.2d 745 (Ind. Ct. App. 2005), trans. denied.

       The fundamental error doctrine serves, in extraordinary circumstances, to
       permit appellate consideration of a claim of trial error even though there has
       been a failure to make a proper contemporaneous objection during the course
       of a trial, which failure would ordinarily result in procedural default as to the
       claimed error. The doctrine applies to those errors deemed “so prejudicial to
       the rights of a defendant as to make a fair trial impossible.”

Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009) (quoting Barany v. State, 658 N.E.2d 60,

64 (Ind. 1995)). Thus, the mere fact that an error occurred and prejudiced the defendant will

not satisfy the fundamental error rule. Absher v. State, 866 N.E.2d 350 (Ind. Ct. App. 2007).

“Likewise, it is not enough, in order to invoke this doctrine, to urge that a constitutional right

is implicated.” Id. at 355.



                                                4
        On appeal, Seymour argues that Hill’s medical records were inadmissible for two

reasons: (1) they contain hearsay not falling within the business records exception set forth

in Ind. Evidence Rule 803(6), and (2) they contain expert medical opinions and diagnoses,

and were therefore inadmissible because the State failed to lay the proper foundation under

Ind. Evidence Rule 702. Assuming without deciding that Seymour is correct concerning the

admissibility of the records, we cannot conclude that he has established fundamental error.

        In support of his fundamental error argument, Seymour argues that the records were

twenty-four pages long and contained multiple descriptions of Hill’s injuries and treatment,

and that Seymour did not have the opportunity to cross-examine the medical professionals

who prepared the records. 3 The medical records established that Hill had been shot and

suffered extensive injuries as a result; they made no reference to the person responsible for

the shooting. Hill testified that he was shot three times, and a police officer testified that he

responded to the scene and saw Hill’s wounds and bullet holes in his vehicle. Other

witnesses described the locations of bullets and bullet holes, as well as the bullets’

trajectories as they entered the vehicle. Thus, the medical records were cumulative of other

evidence that Hill had been shot, and Seymour has not established that the alleged harm

resulting from the medical records’ repeated description of Hill’s injuries was so serious as to

make a fair trial impossible.

        Moreover, Seymour did not dispute at trial that Hill had been shot; rather, he argued



3
 Seymour does not argue that the admission of the medical records violated his Sixth Amendment right to confront and
cross-examine witnesses.

                                                         5
that someone else was responsible for the shooting. Thus, it is unclear to us how cross-

examination of the medical professionals who prepared the records concerning Hill’s injuries

and diagnoses would have been beneficial to Seymour’s defense, and the lost opportunity to

cross-examine them certainly did not deprive Seymour of a fair trial. Likewise, to the extent

Seymour argues that the records’ purportedly graphic descriptions of Hill’s injuries and

treatment engendered excessive sympathy or outrage in the jury, we note that the records

contained no photographs and generally used clinical language to describe Hill’s injuries and

course of treatment. We therefore conclude that the descriptions fall far short of what would

be necessary to support a claim of fundamental error. This is particularly true in light of the

fact that the records were mentioned only once during trial, were not read aloud during trial,

and were not published to the jury until shortly before it began deliberations. For all of these

reasons, Seymour’s fundamental error claim is without merit.

                                              2.

       Next, Seymour argues that the State presented insufficient evidence to support his

habitual offender adjudication. When reviewing a claim of insufficient evidence, we do not

reweigh the evidence. Ramsey v. State, 853 N.E.2d 491 (Ind. Ct. App. 2006), trans. denied.

Rather, we look to the evidence most favorable to the judgment along with all reasonable

inferences drawn therefrom. Id. We will affirm a judgment if it is supported by substantial

evidence of probative value. Id.

       Pursuant to I.C. § 35-50-2-8(a), a person is a habitual offender if the finder of fact

determines the State has proven beyond a reasonable doubt that the defendant has


                                               6
accumulated two prior unrelated felony convictions. A person has accumulated two prior

unrelated felony convictions only if the second prior unrelated felony conviction was

committed after sentencing for the first prior unrelated felony conviction, and the offense for

which the State seeks to have the person sentenced as a habitual offender was committed

after sentencing for the second prior unrelated felony conviction. I.C § 35-50-2-8(c). Failure

to prove that the second felony was unrelated to the first felony in that it was committed

subsequent to the date of the sentencing for the first requires that the habitual offender

determination be vacated. McManomy v. State, 751 N.E.2d 291 (Ind. Ct. App. 2001).

         To establish the dates on which the predicate offenses were committed, the State

presented two Officer Arrest Reports. The first report indicated that Seymour committed

class C felony carrying a handgun without a license on September 17, 2002. Seymour was

sentenced for this offense on November 21, 2002. The second Officer Arrest Report

indicated that Seymour was arrested on an undisclosed warrant charge and on a charge of

resisting arrest on February 28, 2010; however, the report does not specify the date on which

the resisting offense took place or any of the other facts surrounding the offense. 4 Seymour

was sentenced for Class D felony resisting law enforcement on April 1, 2010.



4
  During its presentation of evidence and closing argument on the habitual offender allegation, the State claimed that the
resisting offense took place on December 12, 2009. The State also prepared and entered into evidence a demonstrative
exhibit in the form of a timeline in which it listed the date of the offense as December 12, 2009. Although the evidentiary
basis for these assertions is unclear, it appears that the State may have extrapolated this date from the cause number for
the resisting offense, which indicates that the cause was filed in December of 2009. In any event, the date of filing is not
necessarily the same as date of the offense. Moreover, “[i]t is axiomatic that the arguments of counsel are not evidence.”
 Blunt-Keene v. State, 708 N.E.2d 17, 19 (Ind. 1999). On appeal, the State has abandoned its argument that the offense
took place on December 12, 2009, and instead argues that it must have occurred on February 28, 2010, the date of
Seymour’s arrest on the resisting charge. Thus, the State implicitly concedes that the evidence does not establish that the
offense took place on December 12, 2009.

                                                             7
       Seymour argues that the State failed to prove the date on which the resisting offense

occurred and, consequently, failed to establish that the offense was committed subsequent to

the date of sentencing for his carrying a handgun without a license conviction. The State,

however, argues that the jury could reasonably infer that the offense took place on the date of

the arrest. Specifically, the State argues that “[a] jury could reasonably infer that [Seymour]

resisted [the officer’s] attempt to arrest him on the warrant charge on February 28, 2010, and

that [Seymour’s] resistance constituted the resisting law enforcement charge for which he

was convicted.” Appellee’s Brief at 7. The State argues further that the jury could

reasonably infer that the officer left the offense date line on the Officer Arrest Report blank

because the offense occurred on the same day as the arrest.

       While it is certainly possible that the resisting offense took place on the same date as

the arrest, the State presented no evidence to support such a conclusion. Indeed, the State

presented no evidence whatsoever concerning the facts and circumstances of the offense.

Given the complete dearth of evidence in this regard, an inference that the offense took place

on the date of the arrest would be too speculative to constitute proof beyond a reasonable

doubt. Likewise, the passage of time between the first and second convictions is insufficient

to support an inference that they were unrelated for the purposes of the habitual offender

statute. See McCovens v. State, 539 N.E.2d 26 (Ind. 1989) (insufficient evidence of required

sequence where prior felony convictions spanned nearly twenty years); McManomy v. State,

751 N.E.2d 291 (insufficient evidence of required sequence where convictions spanned

approximately two years).


                                              8
      Accordingly, we conclude that the State presented insufficient evidence to support the

habitual offender determination.    We therefore reverse Seymour’s habitual offender

adjudication and remand with instructions to vacate the thirty-year sentence enhancement

imposed thereon. We note, however, that “the Double Jeopardy Clause does not prevent the

State from re-prosecuting a habitual offender enhancement after conviction therefore has

been reversed on appeal for insufficient evidence.” Jaramillo v. State, 823 N.E.2d 1187,

1191 (Ind. 2005).

      Judgment affirmed in part, reversed in part, and remanded with instructions.

NAJAM, J., and BRADFORD, J., concur.




                                            9
