      MEMORANDUM DECISION
                                                                           Apr 13 2015, 8:43 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                         Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Katherine Modesitt Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jerrick Matthews,                                         April 13, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1408-CR-541
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Lisa Borges, Judge
      State of Indiana,                                         Case No. 49G04-1309-MR-62921
      Appellee-Plaintiff




      Bradford, Judge.



                                            Case Summary
[1]   On the afternoon of August 30, 2013, Appellant-Defendant Jerrick Matthews,

      a/k/a “JayJay,” visited with his friend Ashley Diggs at her apartment in the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-541 | April 13, 2015        Page 1 of 7
      Arlington Green Apartments in Indianapolis. Later, Diggs was outside talking

      to neighbor Linda White and Matthews. Henderson arrived and walked onto

      the porch of building 2130. Matthews approached, holding a gun. Matthews

      and Henderson argued. As Henderson turned and began to walk away,

      Matthews shot him four times in the back, killing him.


[2]   Appellee-Plaintiff the State of Indiana (“the State”) charged Matthews with

      murder. At trial, the trial court admitted a picture of Matthews taken at the

      Arlington Green Apartments a few weeks before the shooting. The State also

      offered into evidence, without objection, evidence that a handgun unrelated to

      Henderson’s murder was found in the car Matthews was in when he was

      arrested. A jury found Matthews guilty as charged and the trial court sentenced

      him to sixty years of incarceration. Matthews contends that the trial court

      abused its discretion in admitting the photograph of Matthews posted on

      Berry’s Facebook page and the admission of evidence that he possessed a

      handgun at the time of his arrest amounts to fundamental error. We affirm.



                            Facts and Procedural History
[3]   On the afternoon of August 30, 2013, Diggs was visited in her apartment at the

      Arlington Green Apartments in Indianapolis by Matthews, who complained of

      “Dre” “talking s***” about him. Tr. p. 318. Later, Diggs went outside to talk

      to White and found White “talking and smoking” with Matthews. Tr. p. 322.

      At around 7:00 p.m., Henderson appeared, and he and Matthews exchanged

      words. Matthews, holding a gun, approached Henderson as Henderson stood

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      on the porch in front of building 2130. The two exchanged words, and

      Henderson said, “what you holding your gun for, if you’re going to shoot then

      shoot[.]” Tr. p. 330. As Henderson walked away, Matthews shot him four

      times in the back, killing him.


[4]   White summoned her niece Berry from her apartment in Arlington Green and

      Berry attempted to administer CPR to Henderson. Berry considered Matthews

      to be a friend and had posted a picture of Matthews captioned “JayJay” which

      showed Matthews gesturing with his middle finger extended and Arlington

      Green building 2132 in the background on her Facebook page on August 10,

      2013. Henderson’s girlfriend eventually learned that police were investigating a

      person named “JayJay” in connection with Henderson’s death, found the

      photograph on Berry’s Facebook page, and provided it to police. The

      photograph allowed police to learn Matthews’s identity and prepare a photo

      array, from which White and Diggs identified Matthews as the shooter. On

      September 18, 2013, Rush County Sheriff’s Deputy Matthew Hedrick stopped a

      car in which Matthews was a passenger. Deputy Hedrick searched the interior

      of the car and found a loaded handgun inside the passenger-side door panel.

      The handgun was later determined not to be the handgun that had been used to

      kill Henderson.


[5]   On September 23, 2013, the State charged Matthews with Murder, a felony,

      and sought a sentence enhancement by virtue of Matthews’s use of a firearm.

      On June 16-18, 2014, jury trial was held. The trial court admitted the

      photograph of Matthews over objection. Evidence related to the handgun

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      found in Rush County was admitted without objection. After trial, the jury

      found Matthews guilty of murder, and the State dismissed the firearm

      enhancement. On July 11, 2014, the trial court sentenced Matthews to sixty

      years of incarceration.



                                 Discussion and Decision
           I. Whether the Trial Court Abused its Discretion in
                          Admitting Evidence
[6]   Matthews contends that the trial court abused its discretion in admitting the

      photograph of him standing in Arlington Green Apartments. In general, the

      admissibility of evidence is within the sound discretion of the trial court. Curley

      v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a

      trial court’s decision on the admissibility of evidence only upon a showing of an

      abuse of that discretion. Id. An abuse of discretion may occur if the trial

      court’s decision is clearly against the logic and effect of the facts and

      circumstances before the court, or if the court has misinterpreted the law. Id.

      The Court of Appeals may affirm the trial court’s ruling if it is sustainable on

      any legal basis in the record, even though it was not the reason enunciated by

      the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans.

      denied. We do not reweigh the evidence, and consider the evidence most

      favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind.

      Ct. App. 2006), trans. denied. “Errors in the admission of evidence are to be

      disregarded as harmless unless they affect the substantial rights of the

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      defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “[A]n error in the

      admission of evidence is harmless if the erroneously admitted evidence is

      cumulative of other evidence appropriately admitted.” Collins v. State, 826

      N.E.2d 671, 679 (Ind. Ct. App. 2005), trans. denied.


[7]   Matthews contends that whatever probative value the picture might have had

      was substantially outweighed by the prejudice caused by the image of Matthews

      “flipping off” the photographer. Indiana Evidence Rule 403 provides:

      “Although relevant, evidence may be excluded if its probative value is

      substantially outweighed by the danger of unfair prejudice, confusion of the

      issues, or misleading the jury, or by considerations of undue delay, or needless

      presentation of cumulative evidence.” Matthews contends that the image

      bolstered the idea that he was an angry person with the implication that he was

      angry enough to kill, and this prejudice substantially outweighed any probative

      value the picture might have had. We disagree.


[8]   The picture had probative value, as it corroborated testimony that Matthews

      spent time in Arlington Green around the time of Henderson’s murder and was

      known to at least some of the residents. Moreover, we agree with the State that

      the picture is essentially innocuous. In the picture, although Matthews is

      gesturing with his middle finger extended, we agree with the State’s

      characterization and detect no signs of anger. Matthews is clearly smiling and,

      although some might find the obscene gesture to be offensive, it was directed at

      his friend Berry and seems much more playful than angry. We conclude that



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      Matthews has failed to establish that the trial court abused its discretion in this

      regard.


                                     II. Fundamental Error
[9]   Matthews also contends that evidence regarding the handgun found in the car

      in Rush County was erroneously admitted, but acknowledges that he did not

      make any objection to this evidence at trial. As such, Matthews must establish

      that fundamental error occurred.

              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.
              See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002);
              Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The
              fundamental error exception is “extremely narrow, and applies
              only when the error constitutes a blatant violation of basic
              principles, the harm or potential for harm is substantial, and the
              resulting error denies the defendant fundamental due process.”
              Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error
              claimed must either “make a fair trial impossible” or constitute
              “clearly blatant violations of basic and elementary principles of
              due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
              This exception is available only in “egregious circumstances.”
              Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).
      Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


              A “finding of fundamental error essentially means that the trial
              judge erred ... by not acting when he or she should have,” even
              without being spurred to action by a timely objection. Whiting v.
              State, 969 N.E.2d 24, 34 (Ind. 2012). An error blatant enough to
              require a judge to take action sua sponte is necessarily blatant
              enough to draw any competent attorney’s objection. But the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-541 | April 13, 2015   Page 6 of 7
               reverse is also true: if the judge could recognize a viable reason
               why an effective attorney might not object, the error is not
               blatant enough to constitute fundamental error.
       Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).


[10]   We do not see any relevance of the handgun in this case because it was not tied

       to the crime being tried. In addition, the admission of the handgun did carry

       some risk of prejudice to Matthews. With that being said, the harm or potential

       for harm presented by the admission of the handgun does not rise to the level of

       fundamental error. Diggs and White, whose stories were entirely consistent,

       both testified that they saw Matthews shoot Henderson in the back following an

       argument. Moreover, the State did not even mention the handgun in its final

       argument, so the risk of prejudice was further diminished. In light of the

       relative strength of the State’s evidence and the fact that it did not rely on the

       handgun evidence to any great extent, the erroneous admission of the handgun

       did not render a fair trial impossible or deny Matthews fundamental due

       process. Matthews has failed to establish that fundamental error occurred.


[11]   We affirm the judgment of the trial court.


       Vaidik, C.J., and Kirsch, J., concur.




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