MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Apr 25 2019, 9:47 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Scott H. Duerring                                         Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Demajio J. Ellis,                                         April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1646
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          71D03-1011-FA-44



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019                Page 1 of 9
[1]   Demajio Ellis appeals his convictions for two counts of Class A Felony

      Attempted Murder1 and two counts of Class C Felony Attempted Robbery. 2

      Ellis argues that the trial court committed fundamental error when it allowed

      the State to call his accomplice as a witness and that the evidence is insufficient

      to support the attempted murder convictions. Finding no fundamental error

      and sufficient evidence, we affirm.


                                                             Facts
[2]   In November 2010, Chad Nickerson, Jerry Atwood, and Jason Kleinrichert

      went to a McDonald’s in South Bend one afternoon. At that time, Atwood and

      Kleinrichert were both fifteen or sixteen years old. Ellis and Shawn Alexander

      entered the restaurant, approached the group, and asked them to buy a can of

      spray paint from Family Dollar; the group refused. Ellis and Alexander also

      asked Atwood if he could obtain a gun for them; Atwood replied that he could

      not. The group then left McDonald’s, spent some more time together at

      different places, and split up around 7:30 p.m., when Atwood and Kleinrichert

      began walking to Kleinrichert’s house together.


[3]   As Atwood and Kleinrichert were walking, Ellis and Alexander approached

      them, asking for a cigarette or money for a cigarette. Ellis and Alexander then

      wanted to see Atwood’s hoodie, so he took it off so that Alexander could try it




      1
          Ind. Code §§ 35-42-1-1 (2010), 35-41-5-1 (2010).
      2
          I.C. §§ 35-42-5-1 (2010), 35-41-5-1 (2010).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 2 of 9
      on. Alexander reached into the pocket of the hoodie and found a knife, asking

      Atwood, “Oh, you gonna pull a knife on us?” Tr. Vol. II p. 101. Atwood said

      no.


[4]   Ellis and Alexander then forced Atwood and Kleinrichert to go with them to an

      abandoned house. Inside, Ellis and Alexander told the two teenagers to kneel

      and take their shirts off. Then, they took them to a nearby alley. Alexander

      walked behind Atwood, grabbed him by the throat, and choked him to the

      point of unconsciousness. Atwood later regained consciousness and saw Ellis

      and Alexander fighting Kleinrichert. Atwood started swinging his fists and

      mistakenly hit Kleinrichert, who fell face first into a metal electric box. Atwood

      was then choked to the point of losing consciousness again; when he regained

      consciousness, he began kicking Ellis. Someone kicked Atwood in the face,

      and Ellis stomped on Atwood’s face, causing him to lose consciousness yet

      again. While Atwood was unconscious, someone cut his throat and

      Kleinrichert’s throat. When Atwood woke up, he saw Kleinrichert and no one

      else. Kleinrichert told Atwood that Alexander had slashed Kleinrichert’s throat

      and that Ellis had cut Atwood. Kleinrichert and Atwood were both bleeding

      and surprised to be alive. Their hoodies and their knives were gone.


[5]   Kleinrichert and Atwood then ran to Nickerson’s house. Nickerson opened the

      door and saw that the necks of both teenagers were cut and bleeding and their

      shirts were covered in blood. Atwood told Nickerson that the two men the

      group had encountered at McDonald’s were the attackers. Nickerson called

      911. Police responded, finding Atwood and Kleinrichert terrified,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 3 of 9
      hyperventilating, and bleeding. They were immediately transported to the

      hospital because of the life-threatening injuries.


[6]   On November 9, 2010, the State charged Ellis with two counts of attempted

      murder and two counts of attempted robbery, all as Class A felonies. On May

      11, 2011, Ellis pleaded guilty. Eventually, in 2017, our Supreme Court found

      that Ellis was entitled to post-conviction relief because he had maintained his

      innocence at the same time he pleaded guilty. Ellis v. State, 67 N.E.3d 643, 645

      (Ind. 2017). Therefore, the cause was remanded to the trial court for further

      proceedings.


[7]   A jury trial took place on June 4-5, 2018.3 By that time, Alexander had pleaded

      guilty to the attempted murder and attempted robbery of both victims. The

      State subpoenaed him to testify at Ellis’s trial, but Alexander indicated that he

      did not want to testify. He told the trial court that he intended to exercise his

      Fifth Amendment rights. The trial court informed Alexander that because he

      had pleaded guilty, he did not have any Fifth Amendment rights in this case,

      and that if he refused to testify, he would be held in contempt of court. The

      State called Alexander as a witness and, in front of the jury, Alexander invoked

      his Fifth Amendment rights. The trial court excused the jury and, after giving

      Alexander several opportunities to change his mind, found Alexander in

      contempt of court.




      3
          Ellis represented himself at his jury trial. Atwood testified reluctantly at trial; Kleinrichert did not testify.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019                              Page 4 of 9
[8]    The State proceeded against Ellis under two separate theories: Ellis as the

       principal and Ellis as an accomplice to Alexander. The trial court instructed the

       jury on attempted murder under both theories. The jury found Ellis guilty as

       charged. On July 5, 2018, the trial court sentenced Ellis to an aggregate term of

       forty years imprisonment. Ellis now appeals.


                                    Discussion and Decision

                                               I. Alexander
[9]    First, Ellis argues that the trial court committed fundamental error when it

       permitted the State to call Alexander to testify, knowing that Alexander

       intended to invoke the Fifth Amendment. Because Ellis did not object at the

       time of trial, he must show fundamental error to be entitled to relief. An error

       is fundamental if it made a fair trial impossible or constituted a blatant violation

       of basic and elementary principles of due process presenting an undeniable and

       substantial potential for harm. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).

       The fundamental error doctrine is extremely narrow and applies only if the

       error was so blatant that the trial judge should have acted independently to

       correct the situation. Id.


[10]   As a general rule, “it is improper for the prosecutor to call as a witness a

       codefendant when the prosecutor knows in advance that the witness will invoke

       the Fifth Amendment and refuse to testify.” Borders v. State, 688 N.E.2d 874,

       879 (Ind. 1997). But when an individual has already been convicted of the

       crime at issue, any question asked by the State merely serves to identify the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 5 of 9
       individual as the perpetrator of that crime; therefore, the individual is not

       entitled to any Fifth Amendment rights. State v. Cass, 635 N.E.2d 225, 227 (Ind.

       Ct. App. 1994).


[11]   Here, Alexander had already been convicted of attempted murder and

       attempted robbery when he was subpoenaed as a witness. The trial court told

       him that he was not entitled to invoke the Fifth Amendment to avoid testifying

       and that if he refused to testify, he would be found in contempt of court. Under

       these circumstances, it was not erroneous to permit Alexander to be called as a

       witness. Furthermore, Ellis did not ask that the trial court admonish the jury to

       disregard the testimony, nor did he ask that the jury be given an instruction

       regarding Alexander’s invocation of the Fifth Amendment. Therefore, even if

       an error occurred, it was not fundamental. Ellis is not entitled to relief on this

       basis.


                                              II. Sufficiency
[12]   Ellis also argues that the evidence is insufficient to support his convictions for

       two counts of attempted murder. When reviewing the sufficiency of the

       evidence to support a conviction, we must consider only the probative evidence

       and reasonable inferences supporting the conviction and will neither assess

       witness credibility nor reweigh the evidence. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007). We will affirm unless no reasonable factfinder could find the

       elements of the crime proved beyond a reasonable doubt. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 6 of 9
[13]   To convict Ellis of Class A felony attempted murder, the State was required to

       prove beyond a reasonable doubt that he engaged in conduct that constituted a

       substantial step toward intentionally killing Atwood and Kleinrichert. I.C. §§

       35-42-1-1 (2010), 35-41-5-1 (2010). The State must prove that Ellis acted with

       specific intent to kill. Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015).


[14]   As noted above, the State proceeded against Ellis under two theories—Ellis as

       the principal and Ellis as an accomplice to Alexander—and the jury was

       instructed on both theories. Indiana’s accomplice liability statute provides, in

       relevant part, that “[a] person who knowingly or intentionally aids, induces, or

       causes another person to commit an offense commits that offense[.]” I.C. § 35-

       41-2-4. Pursuant to this statute, an individual who aids another person in

       committing a crime is as guilty as the actual perpetrator. Specht v. State, 838

       N.E.2d 1081, 1093 (Ind. Ct. App. 2005). An accused’s mere presence at the

       scene of the crime, or mere acquiescence in the commission of a crime, is

       insufficient to convict the accused as an accomplice. Bethel v. State, 110 N.E.3d

       444, 450 (Ind. Ct. App. 2018), trans. denied. Instead, we consider the following

       factors: (1) presence at the scene of the crime; (2) companionship with another

       person engaged in criminal activity; (3) failure to oppose the crime; and (4) the

       defendant’s conduct before, during, and after the occurrence of the crime.

       Woods v. State, 963 N.E.2d 632, 634 (Ind. Ct. App. 2012).


[15]   Here, there is evidence that Ellis himself attempted to kill Atwood. While

       Atwood was unconscious at the time his throat was slit, he testified that



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 7 of 9
       Kleinrichert told him that Ellis had cut him. Atwood also testified that

       Kleinrichert stated that Ellis had been walking around with a knife in his hand.4


[16]   Even if Atwood’s testimony were discounted, there is a wealth of other

       evidence to show that Ellis acted as an accomplice to the attempted murders. It

       is undisputed that Ellis was present at the scene of the crimes and it is clear

       from the record that Ellis had companionship with Alexander, given that Ellis

       and Alexander were together when they approached the group in McDonald’s

       and were still together later when they encountered Atwood and Kleinrichert.

       Ellis was an active participant in taking Atwood and Kleinrichert to the

       abandoned house and in the subsequent fight, during which he stomped on

       Atwood’s face. There is no evidence that Ellis ever opposed the crime. Instead,

       Ellis’s conduct before, during, and after the crimes plainly shows that he was an

       active participant and that he acted with specific intent to kill the teenagers. In

       addition to Ellis’s conduct during the fight, he fled with Alexander afterwards,

       leaving Atwood and Kleinrichert unconscious and bleeding with their necks

       sliced. We find that even if the evidence is questionable with respect to Ellis’s

       direct commission of the attempted murders, it readily supports his guilt as an

       accomplice to the crimes. In other words, the evidence is sufficient.




       4
         While Ellis states in a footnote of his brief that Atwood’s statements constituted hearsay, he did not object
       to those statements at trial and may not now raise the argument on appeal. We note that even if an objection
       had been made, it would have been overruled because the statements would have qualified as excited
       utterances. Ind. Evidence Rule 803(2).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019                      Page 8 of 9
[17]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1646 | April 25, 2019   Page 9 of 9
