                                                                           FILED
                                                                      Jan 09 2020, 8:04 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Curtis T. Hill, Jr.
Anderson, Indiana                                          Attorney General of Indiana
                                                           Caroline G. Templeton
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Paris Cornell,                                             January 9, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-1101
        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Honorable Kelli E. Fink,
Appellee-Plaintiff                                         Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1808-MR-5903



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020                            Page 1 of 24
[1]   Paris Cornell appeals his convictions and sentence for Felony Murder1 and

      Level 3 Felony Conspiracy to Commit Armed Robbery. 2 Cornell was fifteen

      years old at the time of the offenses, but was tried and convicted as an adult. On

      appeal, Cornell argues the following: (1) he was denied equal protection under

      the Fourteenth Amendment when the trial court allowed the State to strike one

      of only two Black jurors; (2) the trial court erroneously admitted inadmissible

      hearsay evidence; (3) the erroneous admission of hearsay evidence violated his

      rights under the Confrontation Clause of the Sixth Amendment; and (4) his

      sentence was inappropriate in light of the nature of the offenses and his

      character. Finding no error and that the sentence was not inappropriate, we

      affirm.


                                                      Facts
[2]   At around 4:00 AM on July 18, 2018, brothers Joan and Kevin Colon went to

      Sam’s Food Market in Evansville. When they arrived, Joan went inside to buy

      cigarettes and gas and Kevin remained outside; Kevin had joined his brother on

      the trip to Sam’s hoping to meet someone to buy marijuana.


[3]   A few minutes before Joan and Kevin arrived at Sam’s, Denyae Burris,

      Jacorion Madison, Jahkei Mitchell, and Cornell, four friends and teenagers,

      also went to Sam’s. The four went inside to buy some food and then exited the




      1
          Ind. Code § 35-42-1-1(1).
      2
          I.C. § 35-42-5-1(a)(2).


      Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020         Page 2 of 24
      store. As they exited, Keyovie Sargent (Jacorion’s cousin, known as “Biggie”)

      drove up to the store in a red car with Kyavion Brown, another teenager, in the

      passenger seat. Kevin, who was intoxicated at the time, approached Biggie’s car

      with a twenty-dollar bill, hoping to buy some marijuana from Biggie and

      Kyavion. Meanwhile, Cornell and Jahkei walked around the corner of the

      building, out of view of any surveillance cameras, and then walked back around

      to Biggie’s car.3 Cornell then spoke briefly with Biggie before going back around

      the side of the building again with Jahkei, this time bringing Kevin along with

      them.


[4]   Soon after Cornell, Jahkei, and Kevin went together to the side of Sam’s,

      Kyavion, still sitting in Biggie’s passenger seat, heard someone say “b*tch,” tr.

      vol. III p. 4; immediately afterward, both Jacorion and Kyavion heard a

      gunshot. After hearing the gunshot, Jacorion and Denyae got into Biggie’s car,

      and the group drove away.


[5]   When Joan eventually exited the store, he looked around for Kevin but could

      not find him anywhere. Thinking Kevin may have started walking back home,

      Joan got in his car and left Sam’s, but when he didn’t see Kevin anywhere

      along the route, he drove back to Sam’s. He eventually found Kevin collapsed




      3
        The State alleges that it was at this moment—when Cornell and Jahkei walked to the side of the building—
      that Jahkei gave the gun to Cornell. Security footage showed that before Cornell walked around to the side of
      the building, he never touched his pocket, but that “the second that he comes back around from that corner,
      his hand never let [sic] his pocket, even when he spoke with everybody at the car and continued back to the
      other side.” Tr. Vol. III p. 91. The trial testimony of Detective King, in which he recounts statements made
      to him by Denyae, also supports this conclusion. See id. at 157-58.

      Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020                              Page 3 of 24
      on the ground, unresponsive, on the side of the building. Joan called his other

      brother, who told him to call 911. The clerk working at Sam’s ended up calling

      911. When police and EMTs arrived, the EMTs determined that Kevin had

      been shot in the upper chest. He was then taken to the hospital around 4:29

      AM, and he was pronounced dead at 4:41 AM. The autopsy conducted later

      that day confirmed that death was a result of a gunshot wound to the heart and

      that death would have occurred within a few seconds to a few minutes of the

      shot being fired.


[6]   Jacorion testified that he had seen Jahkei with a black handgun earlier that day

      at Denyae’s house, and that he saw Jahkei with the gun again after the incident

      when he, Denyae, Jahkei, and Cornell returned to Denyae’s house. At some

      point afterward, Jahkei went to his cousin’s mother’s house, after which his

      cousin “found” a gun at the house and disposed of it in the Ohio River. Tr. Vol.

      II p. 191. He claimed he disposed of the weapon because he felt “it was

      disrespectful” to have the gun at this mother’s house. Id. at 191, 193.


[7]   Law enforcement recovered a .40-caliber Geco shell case from the Sam’s

      parking lot. During a search of Cornell’s bedroom, police recovered an unfired

      round of .40-caliber Smith and Wesson ammunition, a bullet box, a taser, one

      banana-style .22-caliber magazine, a .22-caliber bullet, and a .380-caliber bullet,

      as well as clothing and sandals that matched what Cornell wore the morning of

      the shooting. Police also located a fake plastic handgun in a kitchen cabinet in

      Cornell’s home.



      Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 4 of 24
[8]    On August 29, 2018, the juvenile court waived jurisdiction of Cornell on the

       basis that he committed the alleged offense of murder when he was a child

       between twelve and sixteen years of age.4 The next day, the State charged

       Cornell as an adult with two counts of felony murder, one count of Level 3

       felony attempted armed robbery, and one count of Level 3 felony conspiracy to

       commit armed robbery. The State also alleged that Cornell committed the

       charged offenses while using a firearm, thus making him eligible for the firearm

       sentencing enhancement.5


[9]    A jury trial was held from March 18, 2019, to March 20, 2019. During voir

       dire, three prospective jurors were struck peremptorily. The first, Ms. S.,

       testified that when her son was nineteen, he had been convicted of possession of

       paraphernalia and criminal mischief, and that her father had been robbed twice

       when she was a teenager. She stated that she “may not have an open mind

       about this case” and that she “may not be” a fair juror. Tr. Vol. II p. 26. The

       second struck juror, Ms. H., testified that she had been prosecuted in 2006 for

       visiting a common nuisance but was treated fairly, and that she would be fair

       and impartial in this case.


[10]   The third prospective juror that the State struck, Mr. M., testified that he

       pleaded guilty in 2017 to charges related to the battering of his son, who was




       4
           Ind. Code § 31-30-3-4.
       5
           Ind. Code § 35-50-2-11.


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 5 of 24
       seventeen years old at the time, after his son told him that his girlfriend was

       pregnant. Mr. M. agreed that it was something he “really regret[s],” but that he

       nonetheless felt the process was fair and testified that he would not hold

       anything against the State as a result of that prosecution. Mr. M. was one of

       two Black people on the jury panel. Cornell raised a Batson6 objection at the

       time the State exercised the peremptory challenge against Mr. M. and the trial

       court overruled it, finding that there was no discrimination. At the conclusion

       of the trial, the jury found Cornell guilty as charged on all counts and found

       that the firearm enhancement applied.


[11]   At a sentencing hearing on April 15, 2019, the trial court merged the two

       murder convictions and merged the attempted robbery count with the

       conspiracy count, entering judgment of conviction only on the murder and

       conspiracy to commit armed robbery verdicts. The trial court sentenced Cornell

       to fifty-two years for murder and seven years for conspiracy to commit armed

       robbery, to be served concurrently. Due to the firearm sentencing enhancement,

       the trial court enhanced the murder sentence by ten years, for an aggregate term

       of sixty-two years, to be served in the Department of Correction. Cornell now

       appeals.




       6
           Batson v. Kentucky, 476 U.S. 79 (1986)


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 6 of 24
                                     Discussion and Decision
                                                     I. Batson
[12]   Cornell first argues that the trial court erred by allowing the State to

       peremptorily strike one of only two Black people from the jury panel, thereby

       violating Cornell’s equal protection rights under the Fourteenth Amendment to

       the U.S. Constitution.


[13]   In Batson v. Kentucky, the United States Supreme Court held that a State’s

       exercise of a peremptory challenge is subject to the Equal Protection Clause,

       which “forbids the prosecutor to challenge potential jurors solely on account of

       their race or on the assumption that black jurors as a group will be unable

       impartially to consider the State’s case against a black defendant.” 476 U.S. 79,

       89 (1986). “Purposeful racial discrimination in selection of the venire violates a

       defendant’s rights to equal protection because it denies him the protection that a

       trial by jury is intended to secure.” Id. at 86.


[14]   Our Supreme Court has explained the required burden-shifting analysis for a

       Batson challenge as follows:


               The Batson Court developed a three-step test to determine
               whether a peremptory challenge has been used improperly to
               disqualify a potential juror on the basis of race. First, the party
               contesting the peremptory challenge must make a prima facie
               showing of discrimination on the basis of race. Second, after the
               contesting party makes a prima facie showing of discrimination,
               the burden shifts to the party exercising its peremptory challenge
               to present a race-neutral explanation for using the challenge.
               Third, if a race-neutral explanation is proffered, the trial court
       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020           Page 7 of 24
               must then decide whether the challenger has carried its burden of
               proving purposeful discrimination.


       Jeter v. State, 888 N.E.2d 1257, 1263 (Ind. 2008) (internal citations omitted).

       The decision of the trial court regarding whether a peremptory challenge is

       discriminatory is accorded great deference on appeal and will be set aside only

       if it is clearly erroneous. Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).


[15]   During voir dire, the State used one of its peremptory challenges to strike Mr.

       M., one of only two Black people, from the panel of potential jurors. Cornell

       made a Batson challenge, stating that “the record would show that Mr. [M.] is

       only one of two African American’s [sic] on this whole panel. He’s the only one

       in this configuration, and [Cornell] is African American as well.” Tr. Vol. II p.

       60. In response, the State offered the following reason for striking Mr. M.:


               THE STATE: . . . [H]is questionnaire outlines that he was
               convicted of a crime with his 19-year-old son as the victim, and I
               discussed that with him, and essentially his, he plead guilty to all
               of that and the State’s reason for striking him is the similarities
               between [Cornell’s] age and his son and the sympathy that
               people make mistakes and the State would feel that based on that
               episode and the circumstances where Mr. McIntosh says that his
               son got someone pregnant and made a mistake, the State believes
               that the age of [Cornell] and our case would strike too close at
               home to his son’s and the regret for him having battered his son.
               So, that is the reason why the State is striking him.


       Id. at 60-61. The trial court overruled Cornell’s Batson challenge, reasoning that

       “we have two African Americans on the jury panel,” and that therefore “[w]e

       have at least someone else who might be eligible, so I am not going to find
       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020        Page 8 of 24
       evidence of discrimination.” Id. at 61. The trial court concluded that the State’s

       reason for striking the juror was race neutral.


[16]   Under the first step of the Batson analysis, Cornell argues that the striking of one

       of only two Black people on the jury panel shows prima facie discrimination.

       “A prima facie showing requires the defendant to show that peremptory

       challenges were used to remove members of a cognizable racial group from the

       jury pool and that the facts and circumstances raise an inference that the

       removal was because of race.” Hardister v. State, 849 N.E.2d 563, 576 (Ind.

       2006). The removal of the only Black juror from a panel is sufficient to establish

       prima facie discrimination under Batson. Cartwright v. State, 962 N.E.2d 1217,

       1222 (Ind. 2012). On the other hand, “[t]he removal of some African American

       jurors by the use of peremptory challenges does not, by itself, raise an inference

       of racial discrimination.” Highler v. State, 854 N.E.2d 823, 827 (Ind. 2006).


[17]   Cornell acknowledges that the removal of some, but not all, Black jurors via

       peremptory challenges does not create a prima facie case of discrimination.

       Instead, he centers his argument on the following language from Batson:


               We have observed that under some circumstances proof of
               discriminatory impact “may for all practical purposes
               demonstrate unconstitutionality because in various circumstances
               the discrimination is very difficult to explain on nonracial
               grounds.” For example, “total or seriously disproportionate
               exclusion of [Black people] from jury venires,” [] “is itself such an
               ‘unequal application of the law . . . as to show intentional
               discrimination.’”



       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020        Page 9 of 24
       Batson, 476 U.S. at 93 (emphasis added) (quoting Washington v. Davis, 426 U.S.

       229, 241 (1976) (internal quotations omitted)) (internal citations omitted).

       Cornell contends that the removal of one of two Black jurors from the jury

       panel constitutes the type of “disproportionate” exclusion contemplated by

       Batson and thus makes for a prima facie case of discrimination.


[18]   We disagree. In Hardister v. State, our Supreme Court found no prima facie

       discrimination where the State exercised five of six peremptory challenges to

       strike potential Black jurors from the panel, which left only two remaining

       Black jurors, one of whom was struck by the defense. 849 N.E.2d at 576. If

       striking six of seven total Black jurors from the panel was not sufficient to create

       a prima facie case of discrimination, then we would be hard pressed to find

       prima facie discrimination in Cornell’s case.


[19]   Even if Cornell had successfully showed prima facie discrimination, we

       nonetheless find that the explanation offered by the State for striking Mr. M.

       was race neutral, and that the trial court was within its discretion in concluding

       that Cornell had not carried the burden of showing purposeful discrimination

       by the State. “If the explanation, on its face, is based on something other than

       race, the explanation will be deemed race-neutral.” Forrest, 757 N.E.2d at 1004.

       The State’s proffered explanation for striking Mr. M. was based on Mr. M.’s

       previous involvement with the criminal justice system, and for the similarity in

       age between his own son and Cornell. Taken at face value, this is a sufficiently

       race-neutral explanation for striking Mr. M.



       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020      Page 10 of 24
[20]   As for the third and final step of the Batson analysis, our inquiry is as follows:


               Although the ultimate burden of persuasion regarding purposeful
               discrimination rests with the party opposing the strike, “This
               final step involves evaluating the persuasiveness of the
               justification proffered by the [proponent of the strike]. . . .” Rice v.
               Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 163 L.Ed.2d 824
               (2006). This point was amplified in Hernandez [v. New York, 500
               U.S. 352 (1991)]. “In the typical peremptory challenge inquiry,
               the decisive question will be whether counsel’s race-neutral
               explanation for a peremptory challenge should be believed. There
               will seldom be much evidence bearing on that issue, and the best
               evidence often will be the demeanor of the attorney who
               exercises the challenge. As with the state of mind of a juror,
               evaluation of the [proponent’s] state of mind based on demeanor
               and credibility lies peculiarly within a trial judge’s province.”


       Jeter, 888 N.E.2d at 1264-65 (some internal citations and quotations omitted).


[21]   We find no evidence undermining the demeanor and credibility of the State

       when it offered its race-neutral explanation for striking Mr. M. As such, the trial

       court did not err in overruling Cornell’s Batson challenge and there was no

       violation of Cornell’s equal protection rights under the Fourteenth Amendment.


                                                  II. Hearsay
[22]   Next, Cornell argues that the trial court erroneously admitted inadmissible

       hearsay testimony. Specifically, he claims that the trial court erred by allowing

       the State to introduce out-of-court statements made by Denyae to Detective

       King through the testimony of Detective King, and by then allowing the




       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020          Page 11 of 24
       statements to be used as substantive evidence rather than solely for

       impeachment purposes.


[23]   The admission or exclusion of evidence is within the trial court’s sound

       discretion and is afforded considerable deference on appeal. E.g., Nicholson v.

       State, 963 N.E.2d 1096, 1099 (Ind. 2012). We may reverse a trial court’s ruling

       on the admissibility of evidence only when the ruling is clearly against the logic

       and effect of the facts and circumstances or if the trial court has misinterpreted

       the law. Id.


[24]   “Hearsay is an out-of-court statement offered in court to prove the truth of the

       matter asserted.” Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011); Ind.

       Evidence Rule 801(c). Hearsay is generally inadmissible, subject to a handful of

       specific and limited exceptions. However, hearsay that is otherwise

       inadmissible may become admissible “where the defendant ‘opens the door’ to

       questioning on that evidence.” Turner, 953 N.E.2d at 1055 (quoting Kubsch v.

       State, 784 N.E.2d 905, 919 n.6 (Ind. 2003)). To “open the door,” the evidence

       relied upon “must leave the trier of fact with a false or misleading impression of

       the facts related.” Id. at 1056 (quoting Ortiz v. State, 741 N.E.2d 1203, 1208 (Ind.

       2001)).


[25]   At trial, Detective King testified on direct examination, as a witness for the

       State, that he had interviewed the juveniles involved in this case, including

       Cornell and Denyae. The State played the recorded interview of Cornell and

       asked no further questions. On cross-examination, Cornell asked Detective


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020      Page 12 of 24
King about statements Denyae made to him during the interview conducted on

July 18, 2018, and about statements Detective King overheard Denyae making

to his father, as well as about a second set of statements Denyae made to

Detective King the next day on July 19:


        CORNELL: . . . Now, I believe among the statements you took
        you took a statement, actually two different statements from
        Denyae Burris, is that correct?


        DETECTIVE KING: I did.


        CORNELL: And the first one, my understanding on July 18 you
        and Detective Lowe took a statement from Mr. Burris. Is that
        your understanding?


        DETECTIVE KING: Yes.


        CORNELL: And that was videotaped?


        DETECTIVE KING: Yes.


        CORNELL: And I believe that previously he had implicated
        Paris somewhat, did he not?


        DETECTIVE KING: Yes.


        CORNELL: And then there was a break and Denyae was talking
        to his father, correct?


        DETECTIVE KING: Correct.



Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020    Page 13 of 24
        CORNELL: And I believe you overheard that, correct?


        DETECTIVE KING: I did.


        CORNELL: And it’s my understanding what you overheard him
        saying was that he told his father that the gun was Jahkei’s. He
        had told you originally Paris had it, right?


        DETECTIVE KING: He told me the gun belonged to Jahkei.


        CORNELL: Right, he told his dad and you overheard it, it was
        Jahkei’s gun?


        DETECTIVE KING: Correct.


        CORNELL: And he said that Paris did not leave with the gun
        from the porch, correct?


        DETECTIVE KING: That is correct.


        CORNELL: And he said Jahkei had the gun, brought it inside
        the house that morning, and when Jahkei left before 8 a.m., he
        took the gun with him?


        DETECTIVE KING: That is correct.


        CORNELL: And all that he’s telling his dad, he’s not telling you,
        is he?


        DETECTIVE KING: Right.




Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020      Page 14 of 24
        CORNELL: And then I believe you took a second statement the
        next day, did you not, July 19?


        DETECTIVE KING: From Denyae?


        CORNELL: Yes, from Denyae Burris.


        DETECTIVE KING: I believe that was at his residence, but yes.
        . . . Is that the one you’re referring to?


        CORNELL: Yeah, it may have been, it was the following day,
        was it not?


        DETECTIVE KING: Yes.


        CORNELL: And did he not tell you then that he admitted to
        lying about the gun so as not to get Jahkei into trouble?


        DETECTIVE KING: Jahkei, correct.


        CORNELL: He told you he lied about the gun to protect Jahkei?


        DETECTIVE KING: Correct.


        CORNELL: He said it was actually Jahkei’s gun and that Jahkei
        had the gun both before and when he arrived at the gas station,
        correct?


        DETECTIVE KING: Yes.


Tr. Vol. III p. 150-52.


Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020   Page 15 of 24
[26]   On redirect examination, the State asked Detective King about Denyae’s

       second statement referenced by Cornell’s questioning during cross-examination

       and asked if Denyae made any more statements therein about Paris’s

       involvement. At this point, Cornell objected, requesting that the jury be

       admonished that anything in Denyae’s statements be used solely for

       impeachment evidence and not as substantive evidence. The trial court

       overruled, concluding that Cornell had opened the door by asking the questions

       about Denyae’s statements, that the State could ask any additional clarifying

       questions, and that the evidence would be allowed for any purpose, substantive

       or otherwise. Detective King’s testimony responding to the question about

       Cornell’s involvement was therefore admitted as substantive evidence:


               THE STATE: Detective King . . . in that second statement [about
               the gun] did Denyae Burris make any statements about Paris
               Cornell’s involvement?


               DETECTIVE KING: He did. When Denyae said that he had
               lied to protect Jahkei and said it was actually Jahkei’s gun, what I
               didn’t say earlier was Denyae told us that Jahkei while at the gas
               station had given the gun to Paris and when they went around
               the corner of the building that Paris actually had the gun. When
               they went, after the shooting they went back to Denyae’s house,
               Denyae said that was when Paris gave the gun back to Jahkei
               since it was Jahkei’s gun.


               THE STATE: And that’s what Denyae Burris stated to you in
               that second interview?


               DETECTIVE KING: Correct.


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020      Page 16 of 24
       Tr. Vol. III p. 155. On re-redirect examination, the State elicited the following

       additional testimony from Detective King:


               THE STATE: Over the course of both statements that Denyae
               Burris made to you . . . did his story change at all as to who fired
               the shot?


               DETECTIVE KING: It did not.


               THE STATE: And, according to Denaye [sic] Burris, who fired
               the shot?


               DETECTIVE KING: Paris Cornell.


       Id. at 157.


[27]   Cornell argues that the testimony elicited by the State regarding Denyae’s

       statements to Detective King are “classic” hearsay statements, appellant’s br. p.

       20, and that because they do not fall under any of the exceptions to the rule

       against hearsay, they were improperly admitted as substantive evidence.


[28]   We do not disagree with Cornell—nor does the State—that the challenged

       statements are hearsay: they were made out of court, were offered to prove the

       truth of the matter asserted (that is, who had the gun at what point in time), and

       do not meet any of the statutory hearsay exceptions. But regardless of their

       hearsay nature, these statements nonetheless became admissible once Cornell

       questioned Detective King about Denyae’s statements and left the misleading

       impression that Jahkei had the gun the entire time he and Cornell were at


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020        Page 17 of 24
       Sam’s. Clarification was thus warranted, and the State’s subsequent questioning

       about Denyae’s second statement to Detective King made it clearer that Cornell

       had the gun when the shot was fired. See, e.g., Turner, 953 N.E.2d at 1055-56

       (“Having thus opened the door during cross-examination of a supposed

       disagreement, Turner is in no position to complain of contrary evidence elicited

       by the State on redirect examination.”); Kubsch, 784 N.E.2d at 919 n.6 (finding

       trial court properly admitted testimony that defendant kept a gun in his closet,

       where defense had opened the door by introducing statements through another

       witness that defendant neither possessed nor had access to a gun).


[29]   We therefore find that Cornell effectively opened the door to further

       questioning on Denyae’s statements and to their admission as substantive

       evidence, and that the trial court did not err in its ruling on their admissibility.


                                      III. Confrontation Clause
[30]   In turn, Cornell argues that the admission of the hearsay evidence regarding

       Denyae’s statements violated his rights under the Confrontation Clause of the

       Sixth Amendment to the United States Constitution.7


[31]   The Confrontation Clause of the Sixth Amendment provides that “[i]n all

       criminal prosecutions, the accused shall enjoy the right . . . to be confronted




       7
        Cornell concedes that he failed to preserve this issue by not objecting on this basis at trial, and that he thus
       must prove fundamental error for us to reach the merits of the issue. E.g., Brown v. State, 929 N.E.2d 204, 206-
       07 (Ind. 2010) (“A claim that has been waived by a defendant’s failure to raise a contemporaneous objection
       can be reviewed on appeal if the reviewing court determines that a fundamental error occurred.”).

       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020                                Page 18 of 24
       with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 (2004),

       “the [U.S.] Supreme Court held that the Confrontation Clause . . . prohibits

       admission in a criminal trial of testimonial statements by a person who is absent

       from trial, unless the person is unavailable and the defendant had a prior

       opportunity to cross-examine the person.” Fowler v. State, 829 N.E.2d 459, 464

       (Ind. 2005). The United States Supreme Court later delineated when a

       statement is considered “testimonial” or not under this prohibition:


               Statements are nontestimonial when made in the course of police
               interrogation under circumstances objectively indicating that the
               primary purpose of the interrogation is to enable police assistance
               to meet an ongoing emergency. They are testimonial when the
               circumstances objectively indicate that there is no such ongoing
               emergency, and that the primary purpose of the interrogation is
               to establish or prove past events potentially relevant to later
               criminal prosecution.


       Davis v. Washington, 547 U.S. 813, 822 (2006).


[32]   In the instant case, we need not even reach the question of whether Denyae’s

       out-of-court statements were testimonial because he was available and subject

       to cross-examination at trial. “[W]hen the declarant appears for cross-

       examination at trial, the Confrontation Clause places no constraints at all on

       the use of his prior testimonial statements. . . . The Clause does not bar

       admission of a statement so long as the declarant is present at trial to defend or

       explain it.” Crawford, 541 U.S. at 59 n.9.




       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 19 of 24
[33]   Cornell argues that, despite Denyae taking the stand as a witness for the State at

       trial, he was nonetheless unavailable for Confrontation Clause purposes

       because he claimed to not remember the details surrounding the shooting,

       answering the majority of questions posed at trial with some variation of “I

       forgot” or “I don’t remember.” See Tr. Vol. II p. 148-51, 154-68. But our

       Supreme Court has clarified that such testimony and claimed losses of memory

       at trial have no effect on availability for purposes of the Confrontation Clause:


               Although some courts and commentators contended that a
               witness who asserts an inability to recall any significant
               information is for all practical purposes unavailable for
               confrontation, this issue was settled in United States v. Owens, 484
               U.S. 554, 558, 108 S. Ct. 838, 98 L.E.2d 951 (1988). In Owens,
               the Supreme Court . . . held that as long as the declarant testifies
               the Confrontation Clause has been satisfied even if the declarant
               is unable to recall the events in question. Id. at 558, 108 S. Ct.
               838. . . . The feigned or real absence of memory is itself a factor
               for the trier of fact to establish, but does not render the witness
               unavailable. Rather, as Owens explained, it is a factor for the trier
               fo fact to consider in evaluating the witness’s current and earlier
               versions. Id. at 559, 108 S. Ct. 838. . . . We conclude that a
               witness who is present and responds willingly to questions is
               “available for cross-examination” as that term is used in Crawford
               discussing the Confrontation Clause, just as Owens observed that
               such a witness is “subject to cross-examination” under the
               common understanding of that phrase. We believe no
               significance attaches to these slightly different verbal
               formulations.


       Fowler, 829 N.E.2d at 466 (internal footnote omitted).




       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020        Page 20 of 24
[34]   As such, we find no Confrontation Clause violation here. Denyae was available

       as a witness and testified at trial; Cornell even admitted at trial that he “ha[d]

       the opportunity to cross examine” Denyae. Tr. Vol. II p. 158. Rather than

       refusing to answer the questions posed to him, Denyae merely answered—

       willingly—that he did not remember or know the details, but this does not

       render him unavailable for purposes of the Confrontation Clause. Cornell’s

       Sixth Amendment rights, therefore, were not violated by the admission of

       Denyae’s hearsay statements.


                                 IV. Sentence Appropriateness
[35]   Lastly, Cornell argues that the sixty-two-year sentence imposed by the trial

       court is inappropriate in light of the nature of the offenses and his character.

       Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily

       authorized sentence “if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In conducting this review, “substantial

       deference” must be given to the trial court’s decision, “since the ‘principal role

       of [our] review is to attempt to leaven the outliers,’ and not to achieve a

       perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[36]   For felony murder, Cornell faced a term of forty-five to sixty-five years, with an

       advisory term of fifty-five years. I.C. § 35-50-2-3. For Level 3 felony conspiracy


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 21 of 24
       to commit armed robbery, Cornell faced a term of three to sixteen years, with

       an advisory term of nine years. For the firearm enhancement, Cornell faced an

       additional five to twenty years. I.C. § 35-50-2-11(g). The trial court imposed a

       fifty-two-year term for the murder conviction and a seven-year term for the

       conspiracy to commit armed robbery conviction, to be served concurrently. The

       trial court then enhanced the murder sentence by ten years under the firearm

       enhancement, for a total sentence of sixty-two years imprisonment.


[37]   With respect to the nature of the offense, we note that Cornell shot and killed

       Kevin in an attempt to steal approximately twenty dollars after leading him

       around the side of the building, where there were no security cameras and they

       were hidden from view, under the guise of selling him marijuana. Cornell also

       attempted to cover up the crime by having others help him dispose of the gun in

       the Ohio River.


[38]   Cornell’s main argument regarding the nature of the offense is that his crime

       was neither brutal nor drawn out, relying primarily on Conley v. State, 972

       N.E.2d 864 (Ind. 2012), to distinguish his case from those deserving of higher

       sentences. In Conley, the seventeen-year-old defendant murdered his ten-year-

       old brother while babysitting him, choking him multiple times over a prolonged

       period of time, and finally placing a bag over his head, causing him to die of

       asphyxiation. Afterwards, Conley dragged the body down stairs, slamming the

       head on the concrete to “ensure [he] was dead.” Id. at 876. Our Supreme Court

       in Conley found that the sentence of life without parole was not inappropriate,



       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020     Page 22 of 24
       relying in part on the fact that the victim “suffered unimaginable horror,” in

       contrast to a “nearly instantaneous death by a bullet.” Id.


[39]   We have no trouble agreeing that the nature of the offense committed by

       Cornell pales in comparison to the drawn-out, horrific suffering seen in a case

       like Conley. But the trial court accounted for such differences when it imposed

       sentences that were not only below the maximum terms, but below the advisory

       terms as well, and further ordered that they be served concurrently rather than

       consecutively. We do not believe the nature of the offenses in this case renders

       the sentence inappropriate.


[40]   With respect to Cornell’s character, Cornell has a history of juvenile

       delinquency adjudications, including resisting law enforcement, disorderly

       conduct, trespass, possession of a stolen firearm, violating curfew, and burglary.

       See, e.g., Reis v. State, 88 N.E.3d 1099, 1105 (Ind. 2017) (“Even a minor criminal

       record reflects poorly on a defendant’s character.”). Given that Cornell was

       only fifteen years old at the time of the present offense, this history suggests a

       concerning pattern for someone so young, and further demonstrates that,

       despite his repeated interactions with the system, he has made no effective

       attempt to modify and improve his behavior.


[41]   Despite Cornell’s urges to find the sentence inappropriate based on his young

       age, we unfortunately find no basis in prior caselaw for doing so. The United

       States Supreme Court has concluded on multiple occasions that “[b]ecause

       juveniles have diminished culpability and greater prospects for reform . . . ‘they


       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 23 of 24
       are less deserving of the most severe punishments.’” Miller v. Alabama, 567 U.S.

       460, 471 (2012) (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). Here, we

       are not dealing with the most severe crime, but neither are we dealing with the

       most severe punishment, which Cornell even acknowledges—“to be sure, this is

       not a life without parole or death penalty case.” Appellant’s Br. p. 32-33. And

       in Indiana, our Court and our Supreme Court have found sentences similar to

       Cornell’s to be appropriate despite the defendant’s youth. See, e.g., Legg v. State,

       22 N.E.3d 763, 767 (Ind. Ct. App. 2014) (upholding advisory fifty-five-year

       sentence for a sixteen-year-old tried as an adult and convicted of murder);

       Villalon v. State, 956 N.E.2d 697, 709 (Ind. Ct. App. 2011) (finding sixty-year

       sentence imposed on fifteen-year-old defendant not inappropriate); see also

       Taylor v. State, 86 N.E.3d 157 (Ind. 2017) (reducing a seventeen-year-old

       defendant’s sentence for murder from life without parole to eighty years—the

       maximum term of years plus a fifteen-year enhancement for using a firearm).


[42]   We find that the sentence imposed by the trial court was not inappropriate in

       light of the nature of the offenses and Cornell’s character.


[43]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1101 | January 9, 2020       Page 24 of 24
