      MEMORANDUM DECISION                                                          FILED
      Pursuant to Ind. Appellate Rule 65(D), this                             Aug 27 2018, 10:31 am
      Memorandum Decision shall not be regarded as                                 CLERK
      precedent or cited before any court except for the                       Indiana Supreme Court
                                                                                  Court of Appeals
      purpose of establishing the defense of res judicata,                          and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                    Curtis T. Hill, Jr.
      Indianapolis, Indiana                                  Attorney General of Indiana
                                                             Matthew B. MacKenzie
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Devin Bays,                                                August 27, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 28A05-1711-CR-2702
              v.                                                 Appeal from the Greene Superior
                                                                 Court
      State of Indiana,                                          The Honorable Dena A. Martin,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 28D01-1706-F6-113



      Friedlander, Senior Judge.

[1]   Devin Bays appeals his convictions of resisting law enforcement and theft. We

      affirm.




      Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018           Page 1 of 10
[2]   In May of 2017, Nathan Kimmel allowed Devin Bays to store his motorcycle in

      Kimmel’s basement because it was raining. Bays put his motorcycle next to

      Kimmel’s yellow Suzuki RNZ450 motorcycle in the basement, and the two

      agreed that Bays would return later to retrieve his motorcycle. Approximately

      three days later, Kimmel sent a text message to Bays indicating that Bays

      needed to retrieve his motorcycle, that Kimmel would be at work, and that the

      basement would be unlocked. When Kimmel returned from work, Bays’s

      motorcycle was gone; Kimmel’s motorcycle had been knocked over; and “there

      [were] tools everywhere, gas everywhere.” Tr. Vol. II, p. 207. When Kimmel

      contacted Bays, Bays denied that he had removed his motorcycle from the

      basement and told Kimmel, “you owe me a bike.” Id. at 208. On May 26,

      2017, Kimmel discovered that his motorcycle was missing from the basement.


[3]   On June 2, 2017, Greene County Sheriff’s Deputy Harvey Holt received a call

      to assist in locating a stolen motorcycle, with Bays suspected as the thief.

      While parked at an intersection near Bays’s residence, Deputy Holt, who knew

      Bays and what he looked like, became aware of a motorcycle approaching. The

      motorcycle was similar to the stolen one that Deputy Holt was attempting to

      locate, and he immediately identified the rider, who was wearing a helmet

      without a visor that showed his entire face, as Bays. Deputy Holt activated his

      lights, Bays quickly accelerated away, and Deputy Holt gave chase for

      approximately three minutes before abandoning his pursuit. Later that day,

      working with information obtained from Bays’s cousin Shylar Vincent, Deputy

      Anthony Pope located a yellow motorcycle near where Deputy Holt had lost



      Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 2 of 10
      sight of Bays. The motorcycle was in a ditch near the end of a road and

      appeared to be hidden. A check of the motorcycle’s vehicle identification

      number confirmed that it was Kimmel’s missing motorcycle.


[4]   On June 12, 2017, the State charged Bays with Level 6 felony resisting law

      enforcement, Level 6 felony theft, and Class C misdemeanor reckless driving.

      Bays proceeded to jury trial on September 9, 2017. During voir dire, the State

      engaged the venire in a line of questioning concerning memory and ability to

      recall details and commented that one of the deputies testifying at trial would

      not be able to remember what Bays was wearing but would be able to

      remember his face. The prosecutor commented that the deputy was “not going

      to lie” about this lack of memory. Id. at 37. Later, the prosecutor questioned

      the venire about their thoughts regarding the crime of receiving stolen property.

      Following voir dire but before opening statements, the trial court granted a

      motion in limine that prohibited Deputy Holt from testifying that he was

      familiar with Bays as a result of prior criminal contacts. While the State was

      examining and impeaching Sasha Vincent regarding her bias in favor of Bays,

      the prosecutor asked her whether she wanted to see Bays get in trouble. Sasha

      did not answer the question but did say that Bays had been in trouble many

      times.


[5]   The jury found Bays guilty of resisting law enforcement and theft as charged but

      not guilty of reckless driving. On October 18, 2017, the trial court sentenced

      Bays to two years of incarceration for resisting law enforcement and two years

      for theft, to be served consecutively.


      Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 3 of 10
                               1. Prosecutorial Misconduct
[6]   Bays contends that the State committed prosecutorial misconduct by

      improperly questioning the venire during voir dire and by violating the motion

      in limine regarding prior bad acts by Bays. When reviewing a claim of

      prosecutorial misconduct, appellate courts must determine whether the

      prosecutor engaged in misconduct and, if so, whether the misconduct placed

      the defendant in a position of grave peril to which he should not have been

      subjected. Cooper v. State, 854 N.E.2d 831 (Ind. 2006). “The gravity of peril is

      measured by the probable persuasive effect of the misconduct on the jury’s

      decision rather than the degree of impropriety of the conduct.” Ryan v. State, 9

      N.E.3d 663, 667 (Ind. 2014) (citing Cooper, 854 N.E.2d at 835). To preserve a

      claim of prosecutorial misconduct, the defendant must object and request an

      admonition of the jury at the time the alleged misconduct occurs. Neville v.

      State, 976 N.E.2d 1252 (Ind. Ct. App. 2012), trans. denied. Failure to at least

      object and request an admonition results in waiver. Jerden v. State, 37 N.E.3d

      494 (Ind. Ct. App. 2015).


[7]   Bays acknowledges that he did not object to any of the alleged misconduct of

      which he now complains but attempts to avoid the effects of his waiver by

      claiming that fundamental error occurred. A failure to object may avoid default

      if the misconduct at issue constitutes fundamental error, meaning it must

      “‘make a fair trial impossible or constitute clearly blatant violations of basic and

      elementary principles of due process [and] present an undeniable and

      substantial potential for harm.’” Booher v. State, 773 N.E.2d 814, 817 (Ind.


      Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 4 of 10
      2002) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). A finding of

      fundamental error is essentially a conclusion that the trial court erred by failing

      to sua sponte correct an error. Brewington v. State, 7 N.E.3d 946 (Ind. 2014). To

      succeed on an appellate claim of prosecutorial misconduct presented in the

      absence of a contemporaneous trial objection, the defendant must establish not

      only the grounds for prosecutorial misconduct but also the additional grounds

      for fundamental error. Booher, 773 N.E.2d 814; see also Baer v. State, 942 N.E.2d

      80, 99 (Ind. 2011) (noting it is “highly unlikely” to prevail on a claim of

      fundamental error relating to prosecutorial misconduct).


                                              A. Vouching
[8]   Bays asserts that fundamental error occurred due to repeated vouching for

      witnesses by the prosecutor. It is inappropriate for a prosecutor to make an

      argument which takes the form of personally vouching for a witness. Lainhart v.

      State, 916 N.E.2d 924 (Ind. Ct. App. 2009). “A prosecutor may comment on

      the credibility of the witnesses only if the assertions are based on reasons which

      arise from the evidence.” Id. at 938.


[9]   Bays argues that the prosecutor impermissibly vouched for Deputy Holt by

      saying the following to the venire during voir dire:


              Now, do you think you could tell me what the people are
              wearing that are sitting long that back wall if you look back there
              and glance back up here? Do you think you could tell me 2
              hours later what the people were wearing that are sitting along
              that back wall? Could you tell me what your significant others
              were wearing this morning when they left the house? You see


      Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 5 of 10
               what I’m getting at. Right? We pay attention to faces but you
               don’t always notice the other details. Right? The officer is not
               going to lie to you. He is going to sit up there and say I don’t
               remember what the kid was wearing. Right? If he was going to
               make something up, he could very well make something up and
               say he was wearing a cutoff and specific clothing. He is not
               going to remember what color helmet Mr. Bays was wearing I
               don’t think. Does that make you guys think he is lying though
               just because doesn’t remember those other details we talked
               about? What do you think Number 63?
       Tr. Vol. II, pp. 36-37. During closing argument, the prosecutor also told the

       jury Deputy Holt “has no reason to lie.” Id. at 239.


[10]   Neither of these occurrences amount to impermissible vouching. The

       prosecutor’s voir dire comments and questions, coming as they did during a

       discussion concerning what sort of details a person is likely to recall and what

       sort a person is likely to forget, were not the expression of an opinion on

       Deputy Holt’s general credibility. In other words, the prosecutor was not

       opining that Deputy Holt would never lie about anything, only acknowledging

       that he expected Deputy Holt would not be able to recall certain details about

       his sighting of Bays on the yellow motorcycle. The prosecutor’s comments did

       not amount to error, much less fundamental error.


[11]   As for the prosecutor’s comment that Deputy Holt had no reason to lie about

       seeing Bays on the motorcycle, this is clearly nothing more than a reference to

       earlier argument grounded in the evidence:


               You heard from Harvey Holt. Twenty years as both the Greene
               County Sheriff’s Deputy and it’s an MP he said some other word


       Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 6 of 10
               for it. He was an Air Force Police Officer. You really think he is
               going to throw that career away to lie about someone running
               from him on a dirt bike in the middle of Greene County in the
               middle of nowhere? Does that really make sense? Did he any
               reason to come in here and lie to you about whether or not he
               saw Devin Bays? If he was going to lie, don’t you think he
               would have had oh well he had this type of a helmet on and these
               type of clothes on and I remember it all as clear as day. No, he
               saw his face, he didn’t remember a whole lot else and then he
               chased him for a while. It wasn’t a perfect story. If it was a
               made up story you know when our kids lie to us and people like
               that its usually a little too perfect. You know what I mean?
       Id. at 233-34. The prosecutor was not vouching for Deputy Holt but, rather,

       arguing that the evidence supported an inference that his testimony was

       truthful. Again, Bays has failed to show error, much less fundamental error.


                                                B. Voir Dire
[12]   Bays also claims that the prosecutor committed misconduct by saying the

       following during voir dire:


               How about being in possession of stolen property, do you think
               that should be a crime, Number 328? […] Alright, we don’t want
               somebody to be guilty of like you go buy a gun or something
               from someone and it ends up being stolen, that is a different
               story. Right? […] But it[’]s different if you happen to know the
               guy who stole it and you’re in possession of it, that should be a
               crime. Right?
       Id. at 55-56. Bays argues that the above questions suggest that the jury could

       convict Bays if it found that he simply possessed the motorcycle knowing that it

       was stolen. As it happens, in order to convict Bays of theft in this case, the jury

       was required to find Bays’s knowing or intentional exertion of unauthorized


       Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 7 of 10
       control over the motorcycle with intent to deprive the owner of the vehicle’s

       value or use. Ind. Code § 35-43-4-2.5(b) (2014). To the extent that these two

       concepts might be incompatible, the jury was instructed correctly on the

       elements of theft as charged in this case, and Bays points to no indication that it

       did not follow that instruction. See, e.g., Chandler v. State, 581 N.E.2d 1233,

       1237 (Ind. 1991) (“[W]hen the jury is properly instructed, it may be presumed

       on appeal that they followed such instruction.”).


                              C. Examination of Sasha Vincent
[13]   Finally, Bays contends that the State violated a motion in limine barring

       testimony from Deputy Holt regarding Bays’s prior contacts with law

       enforcement. Deputy Holt did not, in fact, offer any such testimony, nor were

       any questions asked that were likely to elicit such testimony from Deputy Holt.

       During the prosecutor’s examination of Sasha Vincent, however, who denied

       seeing Bays on a yellow motorcycle on the day in question despite

       acknowledging that she had earlier told police that she had, the following

       exchange occurred:


               Q     […] I have a couple of more questions. As we talked
               about earlier, you’re related and friends with [Bays] through
               marriage. Is that right?
               A       Yeah.
               Q       You don’t want to see him get in trouble do you?
               A      I mean he has been in trouble I don’t know how many
               times.
               Q      You don’t want to see him get in trouble do you is my
               question?

       Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 8 of 10
               A       I don’t care. I have my own stuff to worry about.
               Q       You’re not trying to protect him.
               A       No.
               Q       Thank you.
       Tr. Vol. II, p. 198. Whatever prejudicial effect Sasha’s testimony about Bays’s

       previous troubles may have had, it was not elicited by anything the prosecutor

       did. Quite simply, the testimony was flatly unresponsive to the prosecutor’s

       specific question, prompting the prosecutor to repeat it. There is nothing in the

       record to suggest that the prosecutor should or could have known that Sasha

       would testify the way she did. Bays has failed to establish any prosecutorial

       misconduct at all, much less any amounting to fundamental error.


                               2. Sufficiency of the Evidence
[14]   When reviewing the sufficiency of the evidence, we neither weigh the evidence

       nor resolve questions of credibility. Jordan v. State, 656 N.E.2d 816 (Ind. 1995).

       We look only to the evidence of probative value and the reasonable inferences

       to be drawn therefrom which support the verdict. Id. If from that viewpoint

       there is evidence of probative value from which a reasonable trier of fact could

       conclude that Bays was guilty beyond a reasonable doubt, we will affirm the

       conviction. See Spangler v. State, 607 N.E.2d 720 (Ind. 1993). “[I]t is precisely

       within the domain of the trier of fact to sift through conflicting accounts of

       events. Not only must the fact-finder determine whom to believe, but also what

       portions of conflicting testimony to believe.” In re J.L.T., 712 N.E.2d 7, 11

       (Ind. Ct. App. 1999), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 9 of 10
[15]   Bays’s challenge to his theft and resisting law enforcement convictions is

       limited to his claim that the State produced insufficient evidence that he was the

       person Deputy Holt saw riding the yellow motorcycle. It is well-settled that

       “[a] single eyewitness’ testimony is sufficient to sustain a conviction.” Emerson

       v. State, 724 N.E.2d 605, 609-10 (Ind. 2000). Deputy Holt testified that he knew

       Bays previously and what he looked like and immediately identified the rider of

       the motorcycle as Bays. This is sufficient to prove identity. Bays notes that no

       physical evidence connects him to the motorcycle and points to several alleged

       reasons to doubt the veracity of Deputy Holt’s identification. Bays’s arguments

       amount to nothing more than invitations to reweigh the evidence, which we

       will not do. See Jordan, 656 N.E.2d at 817.


[16]   Judgment affirmed.


       Najam, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 28A05-1711-CR-2702 | August 27, 2018   Page 10 of 10
