MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          Nov 25 2019, 9:07 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna K. Weissmann                                     Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Martell Williams,                                       November 25, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-115
        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-41035



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019                   Page 1 of 25
                                             Case Summary
[1]   Martell Williams (“Williams”) appeals his convictions for three counts of

      Murder, felonies,1 and one count of Robbery, as a Level 5 felony.2 We affirm.



                                                    Issues
[2]   Williams presents eight issues for review:


                 I.           Whether he is entitled to discharge under Indiana
                              Criminal Rule 4;


                 II.          Whether sufficient evidence supports his convictions;


                 III.         Whether the trial court abused its discretion in evidentiary
                              rulings;


                 IV.          Whether the trial court became an advocate for the State
                              to achieve admission of a video;


                 V.           Whether the trial court’s imposition of consecutive
                              sentences is an abuse of discretion;


                 VI.          Whether his aggregate sentence is inappropriate pursuant
                              to Indiana Appellate Rule 7(B);




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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 2 of 25
              VII.    Whether his Robbery conviction must be vacated under
                      the continuous crime doctrine; and


              VIII. Whether he, as an indigent defendant, is entitled to a
                    transcript at public expense.


                            Facts and Procedural History
[3]   In 2017, Sha-Lynn Poindexter (“Poindexter”), Jordan Wright (“Wright”),

      Justin Crowder (“Crowder”), and Dominique Miller (“Miller”) shared an

      apartment in Indianapolis. Crowder’s girlfriend, Zoe Radford (“Radford”) was

      a frequent visitor.


[4]   Crowder supplemented his income by selling marijuana. One of his regular

      customers was a resident of the same complex, Sean Jones (“Jones”). Jones

      became aware that Crowder kept a safe and a gun in his apartment, and Jones

      suspected that the safe contained cash and marijuana. Jones and his friend,

      Stanley Williams (“Stanley”), began to discuss robbing Crowder.


[5]   On July 16, 2017, Jones contacted Devante Gilbert (“Gilbert”) to convey that

      he “wanted to rob someone” and needed a driver. (Tr. Vol. IV, pg. 117.)

      Gilbert agreed to be the driver. Jones also texted Stanley that he had been

      “casing [Crowder’s apartment] all day” and needed “help [to] get some guns for

      this robbery.” (Tr. Vol. V, pg. 209.) Stanley then called Williams, and

      Williams called Troy Ward (“Ward”). Gilbert drove to pick up each of the

      others; when Williams and Ward approached the vehicle, they were carrying

      backpacks with weapons inside.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 3 of 25
[6]   Gilbert drove back to Somerset Bay Apartments, where he had first picked up

      Jones, and backed into a parking space near Crowder’s apartment. Gilbert and

      Stanley remained in the vehicle. Jones used a code to access Crowder’s

      apartment building3 and walked up the stairs, with Williams and Ward

      crouching beside him. Jones knocked on the door and, when it was opened, the

      trio pushed their way inside.


[7]   In a bedroom, Poindexter heard gunshots. Wright armed himself with a sword

      and told Poindexter to hide; he then left the room. Poindexter hid between two

      dog crates, emerging when Radford came running into the room saying that

      “everyone was shot.” (Tr. Vol. II, pg. 161.) In the dining room and living

      room, Miller, Wright, and Crowder lay dead from gunshots wounds to the

      head.


[8]   Jones, Williams, and Ward returned to Gilbert’s vehicle. Jones had a wad of

      cash and an assault rifle, which he placed in the trunk. Ward was carrying a

      safe. Gilbert drove to a wooded area and everyone exited the vehicle with a

      plan to open the safe. However, Gilbert and Jones soon left to seek assistance

      because Jones had been shot and could not staunch the bleeding. Ward fired

      shots at the safe and it eventually opened. It was empty. The empty-handed

      trio walked to a nearby Target store and got rides to home and work.




      3
        Jones explained that he had learned the maintenance code that permitted access to multiple buildings, after
      a family friend lost her key and was provided with the code.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019                 Page 4 of 25
[9]    In the ensuing police investigation, Radford identified Jones as one of the

       intruders. Jones, who had been shot and was receiving treatment at Methodist

       Hospital in Indianapolis, was arrested the following day. He confessed to his

       involvement in the murders and robbery, and implicated Williams, Ward,

       Gilbert, and Stanley. Ultimately, Gilbert, Stanley, and Jones each entered a

       plea bargain with the State, agreeing to plead guilty to a felony other than

       Murder and provide testimony in the prosecution of Williams and Ward.


[10]   Williams and Ward were tried before a jury on October 9 through October 15,

       2018, on charges of Murder, Robbery, and Carrying a Handgun without a

       License. The jury convicted Williams as charged, but to avoid double jeopardy

       concerns, the trial court did not enter a judgment of conviction upon the latter

       charge and entered the Robbery conviction as a Level 5 felony. Upon his

       conviction for three counts of Murder, Williams received consecutive sentences

       of fifty-five, forty-five, and fifty-five years. Upon his conviction for Robbery,

       Williams received a concurrent sentence of five years, thus providing for an

       aggregate sentence of 145 years. He now appeals.



                                 Discussion and Decision
                      Motion for Discharge – Criminal Rule 4
[11]   Williams’s trial was initially set for June 25, 2018. At a June 19, 2018 pretrial

       conference, the State and defense counsel made a joint motion to continue the

       trial. The trial was set for August 20, 2018. At the same pretrial conference,

       after a continuance was requested but the trial date had not been set, Williams
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 5 of 25
       requested a speedy trial. The trial court acknowledged that both defendants had

       requested an early trial date pursuant to Criminal Rule 4(B)(1) (requiring the

       trial of an incarcerated defendant within seventy days) and noted “70th day

       should be the 28th of August.” (Tr. Vol. II, pg. 12.)


[12]   At a July 31, 2018 pretrial conference, the August trial setting was confirmed.

       At a pretrial conference on August 17, 2018, the State moved for a continuance

       to permit the Marion County Cyber Crimes Unit to conduct additional

       investigation related to cell phone contact between some of the alleged co-

       conspirators.


[13]   The trial court granted the State’s motion for a continuance despite Williams’s

       assertion of his speedy trial rights, finding that delay attributable to the jointly

       requested continuance was chargeable to Williams. The trial court reasoned

       that a defendant “cannot ask for a continuance and ask for a speedy trial

       simultaneously” and the seventy-day computation as to Williams “does not go

       to the day the request is made,” June 19, 2018, but rather began on the agreed-

       upon trial date of August 20, 2018. (Tr. Vol. II, pg. 47.) After providing its

       reasoning, the trial court reset the trial for October 9, 2018.


[14]   An accused’s right to a speedy trial is guaranteed by Article 1, Section 12 of the

       Indiana Constitution and by the Sixth Amendment to the United States

       Constitution. Leek v. State, 878 N.E.2d 276, 277 (Ind. Ct. App. 2007). Criminal

       Rule 4 was adopted to implement this speedy trial right. Id. Williams




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 6 of 25
       unsuccessfully moved for discharge pursuant to Criminal Rule 4(B)(1), which

       provides in pertinent part:


               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.


       Williams claims that his June 19, 2018 motion started the seventy-day clock,

       and he did not thereafter cause any delay but remained ready for the August

       trial setting; thus, the October trial setting violated his speedy trial rights and he

       is entitled to discharge.


[15]   A trial court’s decision denying a motion for discharge under Criminal Rule 4 is

       reviewed for clear error, after according the trial court’s findings reasonable

       deference. Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). Clear error is

       that which leaves us with a definite and firm conviction that a mistake has been

       made. Id. Where the issue is a question of law applied to undisputed facts, the

       review is de novo. Id. at 1039. Here, the parties do not dispute the facts.

       Williams requested a continuance, the grant of which reset his trial to August

       20, 2018. The same day, he requested a speedy trial.


[16]   Criminal Rule 4(F) provides for an extension of time as follows:


               When a continuance is had on motion of the defendant, or delay
               in trial is caused by his act, any time limitation contained in this

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 7 of 25
               rule shall be extended by the amount of the resulting period of
               such delay caused thereby.


[17]   Williams focuses solely upon the timing of his motion for a speedy trial. In the

       specific sequence of events, Williams requested a continuance before the trial

       date was set, and before making his motion for a speedy trial. But Criminal

       Rule 4 “makes no distinction regarding when the trial date is set” and “delays

       caused by action taken by the defendant are chargeable to the defendant

       regardless of whether a trial date has been set.” Cook v. State, 810 N.E.2d 1064,

       1067 (Ind. 2004). And Criminal Rule 4(B)(1) contemplates a “continuance

       within said period” that is “had on [defendant’s] motion” and does not specify

       that the motion must be made within the seventy-day period.


[18]   The salient fact here is that Williams initiated the delay that took place after his

       motion. Williams cannot receive a continuance without accountability. See

       Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000) (“The objective of the rule is to

       move cases along and to provide the defendant with a timely trial, not to create

       a mechanism to avoid trial.”) The delay up until August 20, 2018 was

       chargeable to Williams and the seventieth day thereafter was October 29, 2018.

       Williams was tried within this period; therefore, he is not entitled to discharge.


                                  Sufficiency of the Evidence
[19]   To convict Williams of murder, as charged, the State was required to prove

       beyond a reasonable doubt that Williams killed Wright, Crowder, and Miller

       while committing or attempting to commit robbery. I.C. § 35-42-1-1. To


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 8 of 25
       convict Williams of robbery, as charged, the State was required to prove beyond

       a reasonable doubt that Williams knowingly or intentionally took a safe or

       firearm from Crowder by the use or threat of force. I.C. § 35-42-5-1.


[20]   When reviewing a challenge to the sufficiency of the evidence, we neither

       reweigh evidence nor judge witness credibility. Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016). We view the “evidence and reasonable inferences drawn

       therefrom in a light most favorable to the conviction, and will affirm ‘if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013)

       (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[21]   Williams does not claim that the State failed to present evidence to establish

       any element of the charged crimes. Rather, he argues that much of the

       testimony against him should be disregarded because the occurrence witnesses

       – Jones, Stanley, and Gilbert – were motivated to falsely identify him. That is,

       they needed to please prosecutors who had extended lenient plea offers.

       According to Williams, Jones eventually received a sentence of thirty years

       imprisonment, while Stanley and Gilbert each received a nine-year sentence.


[22]   Williams also argues that the trio’s testimony contained discrepancies and was

       inconsistent with a neighbor’s testimony that she had seen only two men fleeing

       the apartment building. He contends that the testimony of Jones, Stanley, and

       Gilbert “cannot withstand scrutiny.” Appellant’s Brief at 25. At bottom,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 9 of 25
       Williams is asking that we judge witness credibility and reweigh evidence. We

       cannot do so. Gibson, 51 N.E.3d at 210.


                                         Evidentiary Rulings
[23]   Williams argues that the trial court made “several serious evidentiary

       mistakes,” including the failure to exclude, as a discovery sanction, “phone

       records given to the defendants on the eve of their speedy trial date,” and the

       exclusion of evidence that Jones and Gilbert had once before robbed a drug

       dealer. Appellant’s Brief at 30.


[24]   Questions regarding the admission or exclusion of evidence are entrusted to the

       sound discretion of the trial court. Harrison v. State, 32 N.E.3d 240, 250 (Ind.

       Ct. App. 2015). We review the court’s decision only for an abuse of discretion.

       Id. A trial court abuses its discretion if its decision is clearly against the effect of

       the facts and circumstances before it, or if it misinterprets the law. Id.


[25]   Also, a trial court has broad discretion regarding discovery violations, and its

       ruling will be reversed only for an abuse of that discretion involving clear error

       and resulting prejudice. Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). In

       general, the proper remedy for a discovery violation is a continuance. Id.

       Exclusion of the evidence is an extreme remedy that is to be used only if the

       State’s actions were deliberate and the conduct prevented a fair trial. Id.


[26]   Jones, Stanley, and Gilbert testified regarding contacts on the day of the

       murders among themselves and Williams and Ward, using Snap Chat, text

       messages, and cellular phone calls. The testimony was that Jones and Stanley
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 10 of 25
       agreed to meet up, Jones contacted Gilbert, Stanley contacted Williams, and

       Williams contacted Ward. Some of the testimony of the various

       communications was corroborated by cell phone records. There was also

       testimony that Jones, Gilbert, Ward, Williams, and Stanley traveled together to

       the apartment where the murders took place. This was partially corroborated

       by mapping cell phone tower locations nearest the cell phones of many of the

       participants4 near the time of the murders.


[27]   Williams’s description of the challenged records is vague. Apparently, the State

       shared its discovery of cell phone records in stages and some materials were

       provided to the defense shortly before trial. However, contrary to Williams’s

       assertion that the State was merely admonished for a lack of diligence, our

       reading of the record indicates that some records were excluded. Specifically,

       the trial court ruled that the “Tuesday documents” were excluded and advised

       the State that, due to late discovery, it had “lost the benefit of Troy Ward’s

       phone records” as corroborative evidence. (Tr. Vol. II, pg. 200.) With respect

       to other phone records, Williams asserts that the State was neglectful because

       four months passed before he received any documents. But he does not explain

       how this pace prevented a fair trial. Indeed, the testimony and most of the

       exhibits demonstrating contacts between the quintet were admitted without

       objection. We discern no abuse of the trial court’s discretion here.




       4
        Jones was not in possession of a cell phone. His phone had been confiscated by his parents as a disciplinary
       measure.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019               Page 11 of 25
[28]   Additionally, Williams argues that the trial court should have allowed evidence

       that Jones and Gilbert had previously robbed a drug dealer. According to

       Williams, this would have aided his defense that he was not present at the

       crime scene by showing that Jones and Gilbert were a team that did not need

       assistance.


[29]   In a hearing outside the presence of the jury, defense counsel for Williams and

       Ward recounted a revelation from Gilbert’s pre-trial deposition. When

       deposed, Gilbert had purportedly admitted that he and Jones “once before”

       committed a robbery when they “just pulled [off] from somebody” who had

       intended to sell them marijuana. (Tr. Vol. III, pg. 118.) Defense counsel could

       not provide a specific time or name the victim; accordingly, the trial court ruled

       that the evidence of a prior robbery was so vague as to lack probative value.


[30]   Defense counsel suggested that the evidence was admissible to show Jones’s

       character and reputation, “because he is known for robbing people.” Id. at 116.

       The trial court advised counsel that admission of such evidence would promote

       drawing a forbidden inference prohibited by Indiana Evidence Rule 404(b),

       which provides in pertinent part:


               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show action in
               conformity therewith. It may, however, be admissible for other
               purposes, such as proof of motive, intent, preparation, plan,
               knowledge, identity, or absence of mistake or accident[.]




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 12 of 25
       Traditionally, Rule 404(b) has been used to protect a defendant from being

       convicted based on unrelated prior bad acts; that is, the jury should not be

       permitted to “infer that the defendant is a bad person who should be punished

       for other, uncharged misdeeds.” Garland v. State, 788 N.E.2d 425, 428 (Ind.

       2003). In Garland, our Indiana Supreme Court held that “the admissibility of

       evidence about prior bad acts by persons other than defendants is subject to

       Rule 404(b).” Id. at 430.


[31]   Williams simply sought to show with sparse detail that, when Jones robbed

       Crowder, he was acting in conformity with his past misconduct and his bad

       character. The trial court did not abuse its discretion in excluding the proffered

       evidence.


                              Target Store Surveillance Video
[32]   Jones, Gilbert, and Stanley testified that Ward was in possession of a safe when

       he returned to Gilbert’s vehicle and Gilbert then drove the group to a wooded

       area where they could attempt to open the safe. Gilbert and Jones soon left the

       others because of the need to obtain assistance for Jones’s gunshot wound. This

       testimony was partially corroborated by a surveillance video from a nearby

       Target store. Target asset protection employee Kyle Hanephin (“Hanephin”)

       testified as the keeper of the video.


[33]   The State asked Hanephin a number of foundational questions, Williams’

       counsel objected to the tape’s admission for lack of foundation, and the trial



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 13 of 25
       court asked a series of questions of Hanephin before admitting the video.

       According to Williams,


               [H]ad the court not taken on the role of advocate, the court
               would not have had a basis to admit the video. The video stands
               as the single piece of evidence, outside of the questionable
               testimony of the co-defendants, that links [Williams] to the
               crimes. The State used the video to aid Stanley in identifying the
               three men walking from the woods as himself, [Ward], and
               [Williams].


       Appellant’s Brief at 34.


[34]   Indiana law presumes that a trial court judge is unbiased and without prejudice.

       Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). To rebut this presumption,

       a defendant must establish from the judge’s conduct that the judge’s actual bias

       or prejudice has placed the defendant in jeopardy. Id. “A trial before an

       impartial judge is an essential element of due process.” Id. However, “[b]ias

       and prejudice violate a defendant’s due process right to a fair trial only where

       there is an undisputed claim or where the judge expressed an opinion of the

       controversy over which the judge was presiding.” Id.


[35]   The conduct and strategy of the parties is left to them and the ultimate decision

       is to be left to the jury. Id. at 1289. But a trial judge may in any case, within

       reasonable limits, interrogate a witness. Kennedy v. State, 280 N.E.2d 611, 620

       (Ind. 1972). “The purpose of the judge’s discretionary power to examine

       witnesses is to be an aid to the jury in its fact finding duties, however this must

       be done in an impartial manner so that the judge does not improperly influence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 14 of 25
       the jury with his own contentions.” Id. In Kennedy, the judge employed a

       highly argumentative manner and repeatedly questioned an expert witness

       about his credentials and ability to testify accurately. Id. at 613. In so doing,

       the trial judge “lost his appearance of impartiality [and] removed his robes and

       donned the cap of the prosecutor,” resulting in a reversal of the defendant’s

       murder conviction upon appeal. Id. at 618. Williams claims that a similar

       scenario ensued here.


[36]   The State offered the Target surveillance video as a silent witness to several

       young men, whom the State alleged to be Williams, Ward, and Stanley, leaving

       a wooded area near the Target store together. The “silent witness” theory,

       adopted by Indiana courts in 1979, permitted relevant photographs supported

       by a proper evidentiary foundation to be considered substantive evidence rather

       than merely demonstrative evidence. Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct.

       App. 2015). The theory has since been extended to the use of video recordings.

       Id. As applied to video recordings:


               “[T]here must be a strong showing of authenticity and
               competency” and … when automatic cameras are involved,
               “there should be evidence as to how and when the camera was
               loaded, how frequently the camera was activated, when the
               photographs were taken, and the processing and changing of
               custody of the film after its removal from the camera.”


       McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (citing Edwards v. State, 762

       N.E.2d 128, 136 (Ind. Ct. App. 2002)). The standard is applicable because a

       silent witness cannot be cross-examined. Wise, 26 N.E.3d at 141 (citing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 15 of 25
       Edwards, 762 N.E.2d at 136). A trial witness need not testify that the depicted

       image is an accurate representation of the scene when the image was taken;

       rather, the witness must provide testimony identifying the scene that appears in

       the images “sufficient to persuade the trial court … of their competency and

       authenticity to a relative certainty.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind.

       2014) (emphasis in original) (citations and quotations omitted).


[37]   Here, Hanephin testified that he had created the video of events on July 16,

       2017, the system was working properly, the system was checked daily, the

       system was locked within the asset protection services office, and he was

       familiar with the area under surveillance. He described State’s Exhibit 267 as

       “a disk that I downloaded for [sic] the incident” and testified that it was an

       accurate copy and he had not altered it. (Tr. Vol. V, pg. 144.) Williams’

       counsel objected to admission of the exhibit:


               I would object that this is not a proper foundation. This witness
               testified he secures the outside, there’s a foot path. I’m sure
               people walk that foot path often. So I’m not sure it’s a proper
               foundation for playing a video. It’s out of context in my opinion.


       Id. at 146.


[38]   The trial court sustained the objection, concluding: “him making the bare bones

       assertion that it was working is not sufficient for the silent witness foundation.”

       Id. The prosecutor then questioned Hanephin as to how he knew the camera

       was working properly and he responded that there “is a health monitor

       function” at the top of the screen and “if that camera was down, I wouldn’t

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 16 of 25
       have been able to review video or save video.” Id. at 147. At this point, the

       trial court began to question Hanephin, without additional objection from

       defense counsel. The judge asked Hanephin about the method for time

       tracking, whether the system was in-house or third party, how often the system

       was checked, and whether there was periodic maintenance. Hanephin

       responded that the system was third-party, and he checked it on each of his

       shifts but was not involved in the third-party maintenance. He described for the

       jurors a digital calendar and, at the State’s instance, re-affirmed his assessment

       of accuracy.


[39]   Williams’s counsel interjected that there was “nothing to show that [on] that

       particular day that he had the ability to look at the accuracy of the time,” id. at

       150, prompting the court to ask additional questions. The court inquired about

       the frequency with which Hanephin checked the date and time, and asked

       whether, if Hanephin found the time or date to be inaccurate, there was a

       process for reporting the error to the third-party software programmer.

       Hanephin testified that such an error-reporting process existed but he had not

       experienced a problem of that nature during the relevant time frame. The trial

       court admitted the challenged exhibit into evidence, stating that defense

       counsel’s objections concerned the weight, not the admissibility of, the exhibit.


[40]   Our review of the record indicates that the State elicited testimony to establish

       that Hanephin was the creator and custodian of the video, he regularly checked

       for accuracy of the system, and he had no reason to doubt the time and date

       depicted. Hanephin described the setting, an outdoor area included in Target’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 17 of 25
       regular surveillance. He established the authenticity of the scene depicted and

       the accuracy of the video equipment. In sum, the State met the foundational

       requirements of McHenry apart from the trial court’s intervention. And

       although the trial court took an active role in questioning a witness, the

       questions and answers provided clarification. The trial judge did not suggest

       answers, evince bias, or invade the province of the jury. Williams has identified

       no conduct akin to that of the Kennedy trial court. Here, the appearance of

       impartiality was never surrendered.


[41]   Finally, with respect to evidentiary rulings, Williams claims that “cumulative

       error” warrants reversal in a case where the “evidence was hardly

       overwhelming.” Appellant’s Brief at 35. We disagree with Williams on both

       points; that is, he did not demonstrate an abuse of discretion or error in

       evidentiary rulings, and the evidence against him was strong – inclusive of

       testimony from three occurrence witnesses.


                                      Consecutive Sentences
[42]   Williams claims that “concurrent sentences more properly reflect the

       circumstances of the crimes” explaining:


               [t]he imposition of consecutive sentences rests on shaky grounds
               because the judge sent a teenager to prison for life to pay for
               homicides he didn’t commit in an apartment he reasonably
               thought would be empty, for a crime where no one was supposed
               to die.


       Appellant’s Brief at 40-41.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 18 of 25
[43]   The argument presupposes that Williams fired none of the shots that killed any

       of the three victims. There was evidence that both Ward and Williams entered

       the apartment armed with guns, and three men died, but Jones disavowed

       seeing Williams fire a kill shot. But even if the evidence does not definitively

       establish that Williams fired a fatal shot, there is abundant evidence that he

       acted in concert with Ward. Williams’s subjective expectations aside, he was

       sentenced for the events that unfolded within the apartment. As to the sentence

       for that criminal conduct, we reiterate what our Indiana Supreme Court has

       observed: “when the perpetrator commits the same offense against [multiple]

       victims, enhanced and consecutive sentences seem necessary to vindicate the

       fact that there were separate harms and separate acts against more than one

       person.” Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003). And, “[a]lthough

       consecutive sentences are not always a given when there are multiple murder

       victims, concurrent sentences are undoubtedly the exception.” Lewis v. State,

       116 N.E.3d 1144, 1156 (Ind. Ct. App. 2018).


[44]   Williams suggests that we should employ a “single incident analysis” when

       reviewing the consecutive sentences. Appellant’s Brief at 41. He directs our

       attention to Beno v. State, 581 N.E.2d 922 (Ind. 1991). There, the Indiana

       Supreme Court found the imposition of three maximum, consecutive sentences

       for three drug dealing convictions based upon nearly identical State-sponsored

       drug sales to be manifestly unreasonable. See id. at 923. The conduct of a

       participant in a police sting, who was ultimately accorded some sentencing

       leniency, bears no relevancy to the brutal and senseless murders here. Williams


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 19 of 25
       has identified no grounds for reversal of the order that his sentences be served

       consecutively.


                                Appropriateness of Sentence
[45]   Williams also asks that his murder sentences be reviewed for inappropriateness.

       He claims that he received “almost the maximum sentence even though he was

       not the shooter.” Appellant’s Brief at 43. Pursuant to Indiana Code Section

       35-50-2-3, a person who commits murder is subject to a sentencing range of

       forty-five years to sixty-five years, with an advisory sentence of fifty-five years.

       Williams received a fifty-five-year sentence for Crowder’s murder, and two

       forty-five-year sentences for the murders of Wright and Miller.


[46]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

       authorized by statute 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 performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225. The “considerable deference”

       given to the trial court’s sentencing judgment “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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 20 of 25
       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015) (citing

       Cardwell, 895 N.E.2d at 1222).


[47]   Williams received one advisory sentence and two minimum sentences. At

       bottom, his contention is that the aggregate sentence is inappropriate because

       the individual sentences are to be served consecutively. In Cardwell, the Court

       explained that it is the aggregate sentence under review:


               In the case of some crimes, the number of counts that can be
               charged and proved is virtually entirely at the discretion of the
               prosecutor. For that reason, appellate review should focus on the
               forest – the aggregate sentence – rather than the trees –
               consecutive or concurrent, number of counts, or length of the
               sentence on any individual count.


               The circumstances do, however, bear on whether consecutive
               sentences are appropriate. Whether the counts involve one or
               multiple victims is highly relevant to the decision to impose
               consecutive sentences if for no other reason than to preserve
               potential deterrence of subsequent offenses.


       895 N.E.2d at 1225.


[48]   As for the nature of the offenses, Williams armed himself and invaded an

       apartment for the specific purpose of robbing Crowder. Three young men were

       fatally shot in their own home, without provocation or warning. The two

       young women inside the apartment hid in terror and emerged to find Crowder,

       Miller, and Wright dead of gunshot wounds to the head. The horrific crimes




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 21 of 25
       netted the murderers a semi-automatic rifle, a few hundred dollars,5 and an

       empty safe. Whether or not Williams fired a fatal shot, he was by all accounts a

       willing participant.


[49]   As for nineteen-year-old Williams’s character, these were his first felony

       offenses. However, he had not remained a law-abiding citizen up until the

       current offenses. At age sixteen, he was adjudicated a delinquent child for

       having committed an act that would be burglary if committed by an adult. As

       an adult, Williams had a misdemeanor conviction for theft. At the time of

       sentencing, he also had pending charges for handgun and marijuana possession.


[50]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the aggregate sentence

       does not warrant appellate revision. Accordingly, we decline to disturb the

       sentence imposed by the trial court.


                                      Continuous Crime Doctrine
[51]   The continuous crime doctrine provides, in essence, some actions sufficient in

       themselves to constitute separate criminal offenses may nonetheless be so

       compressed in time, singleness of purpose, and continuity of action that they

       constitute a single transaction. Gomez v. State, 56 N.E.3d 697, 703 (Ind. Ct.




       5
           Jones did not divide the cash with his cohorts.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 22 of 25
       App. 2016). Application of the doctrine invokes a fact-sensitive inquiry. Id. at

       704.


[52]   Williams contends that the events inside the apartment were so compressed that

       his independent conviction for Robbery cannot stand. According to Williams,

       “because [Jones] stole items while [Ward] killed the three men, the continuous

       crime doctrine applies.” Appellant’s Brief at 38.


               The continuous crime doctrine is a rule of statutory construction
               and common law limited to situations where a defendant has
               been charged multiple times with the same offense. “The
               continuous crime doctrine does not seek to reconcile the double
               jeopardy implications of two distinct chargeable crimes; rather, it
               defines those instances where a defendant’s conduct amounts
               only to a single chargeable crime.” Boyd v. State, 766 N.E.2d 396,
               400 (Ind. Ct. App. 2002)[.]


       Hines v. State, 30 N.E.3d 1216, 1218 (Ind. 2015). The continuous crime

       doctrine may not be judicially extended to two distinct criminal offenses. Id. at

       1220. “The continuous crime doctrine applies only where a defendant has been

       charged multiple times with the same ‘continuous’ offense.” Id.


[53]   Williams was convicted of three counts of Murder, for three separate deaths,

       and he does not challenge those convictions under the continuous crime

       doctrine. Murder and Robbery are distinct crimes, with distinct elements.

       Williams was not convicted of multiple counts of Robbery. The continuous

       crime doctrine does not apply to the facts of this case.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 23 of 25
                                                 Transcript
[54]   The final articulated issue concerns an order that Williams’s appellate counsel

       partially reimburse the Indiana Public Defender’s Office for a transcript

       prepared for Williams before he retained private appellate counsel. The State

       responds that it is not a party to a collateral order for payment. It is unclear as

       to whether there is an appealable final judgment against counsel. Nevertheless,

       the order is not integral to the merits of the criminal conviction on appeal.


[55]   To the extent that the controversy pertains to Williams, we observe that a party

       who was permitted to proceed in the trial court in forma pauperis may proceed in

       like manner on appeal without prior authorization from the trial court or the

       appellate court. Ind. Appellate Rule 40(A)(1). If a party is granted in forma

       pauperis status by this Court, the effect is that the party “is relieved of the

       obligation to prepay filing fees or costs in either the trial court or the Court on

       Appeal or to give security therefor[.]” App. R. 40(D)(1) (emphasis added).

       Costs are defined, in relevant part, in the Appellate Rules as “the cost of

       preparing the Record on Appeal, including the Transcript[.]” App. R. 67(B)(2).

       Thus, a defendant who has been determined to be indigent is entitled to a

       transcript on appeal at public expense. See I.C. § 33-40-8-5; see also Hollowell v.

       State, 19 N.E.3d 263, 266-67 (Ind. 2014) (noting that, after the Court of Appeals

       had granted him in forma pauperis status, Hollowell was entitled to a transcript

       of his post-conviction relief hearing at public expense); Wright v. State, 772

       N.E.2d 449, 461 (Ind. Ct. App. 2002) (“[C]riminal defendants in Indiana who



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 24 of 25
       cannot afford to pay for a transcript are still entitled to one if they are found to

       be indigent.”).


[56]   Because Williams had been granted in forma pauperis status at the time the

       transcript was prepared by the Public Defender’s Office, he is entitled to the

       transcript at public expense.



                                              Conclusion
[57]   Williams is not entitled to discharge under Indiana Criminal Rule 4. Sufficient

       evidence supports his convictions. The trial court did not abuse its discretion in

       evidentiary rulings nor did the trial judge become an advocate for the State.

       Williams has demonstrated no abuse of the trial court’s sentencing discretion,

       and his aggregate sentence is not inappropriate. He is not entitled to vacation

       of his Robbery conviction under the continuous crime doctrine. As an indigent

       criminal litigant, he is entitled to a transcript at public expense.


[58]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-115 | November 25, 2019   Page 25 of 25
