MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           FILED
Memorandum Decision shall not be regarded as
                                                                  Jul 06 2017, 8:14 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                  CLERK
                                                                  Indiana Supreme Court
collateral estoppel, or the law of the case.                         Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Charles W. Lahey                                       Curtis T. Hill, Jr.
South Bend, Indiana                                    Attorney General of Indiana
                                                       James B. Martin
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Zachary Sanders,                                           July 6, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A03-1611-CR-2556

        v.                                                 Appeal from the St. Joseph Superior
                                                           Court
State of Indiana,                                          The Honorable Elizabeth C. Hurley,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           71D08-1602-F2-1




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017       Page 1 of 15
                                          Case Summary
[1]   Taylor Roberts, Troy Mapes, Roberts’s girlfriend Kiera Kurzhal-Geyer, and

      Tony Collado learned that Appellant-Defendant Zachary Sanders was

      interested in buying some illegal drugs and formulated a plan to rob Sanders.

      The quartet arranged to meet Sanders in a park, and did so. Collado and

      Mapes, who was armed with a handgun, got into Sanders’s car and, instead of

      selling him drugs, robbed him. During the robbery, Mapes either showed the

      handgun to or pointed it at Sanders. Afterwards, as Collado and Mapes fled

      through a grassy area in the park, Sanders accelerated, ran over a traffic stop,

      pursued the duo, and eventually ran over Mapes before continuing out of the

      park. After Mapes died from his injuries, the State charged Sanders with Level

      2 felony voluntary manslaughter. A jury convicted Sanders as charged, and the

      trial court sentenced him to twenty years of incarceration. Sanders argues that

      the State committed prosecutorial misconduct warranting reversal of his

      conviction, the trial court abused its discretion in admitting evidence that

      Sanders was attempting to illegally purchase drugs, and the trial court abused

      its discretion in instructing the jury on self-defense. We affirm.



                            Facts and Procedural History
[2]   Roberts, Mapes, Kurzhal-Geyer, and Collado were together on February 19,

      2016, when Mapes received a communication from Jesse Manczunski that




      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 2 of 15
      “somebody wanted some pills.” Sept. 20, 2016, Tr. p. 130.1 Manczunski had

      been in communication with Sanders and indicated to him that Mapes had

      some Klonopin for sale. The group, however, had no intention of selling

      Sanders any drugs; “the plan was to … take the money and run.” Sept. 20,

      2016, Tr. p. 130. After arrangements were made to meet Sanders at Merrifield

      Park in Mishawaka, Roberts, Mapes, Kurzhal-Geyer, and Collado drove there

      in Kurzhal-Geyer’s car.


[3]   Once the quartet arrived, Collado and Mapes—who was armed with a .22

      caliber handgun—exited and walked across a field to meet Sanders. Collado

      sat in the front passenger seat of Sanders’s vehicle while Mapes sat in the rear,

      driver’s-side seat. Mapes pulled out the handgun, showed it to Sanders, and

      demanded money. Sanders refused and asked Mapes, “is it worth it[?]” Sept.

      21, 2016, Tr. p. 15. Mapes and Sanders argued for a while, and, when Mapes

      asked Collado to take the keys to Sanders’s vehicle, Sanders told him not to

      touch his car. Eventually, Mapes and Collado left the vehicle, having secured

      Sanders’s money, and began running through a field in the park. As Mapes and

      Collado ran toward Kurzhal-Geyer’s car, Sanders accelerated, drove over a

      concrete parking block, and pursued the duo. When Mapes slipped and went to




      1
        Three days of Sanders’s jury trial were transcribed, September 20, 21, and 22, 2016, each of which is
      covered by a separate transcript volume. Two tables of contents were submitted, one covering the transcripts
      from September 20 and 21 (designated “Volume 1 of 3”) and the second covering September 22 (designated
      “Volume 1 of 2”). The transcript volume from September 20 is designated “Volume 2 of 3”; from September
      21, “Volume 3 of 3”; and from September 22, “Volume 2 of 2[.]” In the interest of reducing possible
      confusion, we choose to refer to the various volumes by their dates.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017             Page 3 of 15
      one knee, Sanders ran over him with his vehicle and drove off. Mapes died of

      multiple blunt-force injuries, including a fractured skull, multiple rib fractures

      which caused lung lacerations, a heart contusion, a lacerated liver, and

      hemorrhaging around his kidneys. The next morning, Sanders sent a text

      message to Manczunski which stated, verbatim, that “I didn’t get [the pills] he

      robbed me But it’s aight[2] I ran him over when he was running away.” State’s

      Ex. 58.


[4]   On February 22, 2016, the State charged Sanders with Level 2 felony voluntary

      manslaughter. On April 8, 2016, Deputy Prosecutor Joel Gabrielse sent a letter

      (“the Letter”) to Roberts’s attorney, offering a plea deal by which he would

      plead guilty to Level 3 felony armed robbery, with a sentence cap of six years in

      exchange for his cooperation in the trials of his codefendants. The Letter

      mentioned that the facts of the case could support charges of armed robbery,

      armed robbery resulting in serious bodily injury, and/or felony murder and also

      stated, “In the unfortunate event that [Roberts] decides to resolve this case by

      trial, it is anticipated that I will file and pursue some/all of the higher charges

      referred to in this letter.” Appellant’s App. Vol. II p. 101.


[5]   The presentation of evidence in Sanders’s jury trial began on September 20,

      2016, and ended on September 22. On September 21, 2016, the prosecutor




      2
         “Aight” is defined as a “nonstandard spelling of all right, representing a pronunciation[.]” OXFORD
      LIVING DICTIONARIES, NORTH AMERICAN ENGLISH, https://en.oxforddictionaries.com/definition/us/aight
      (last visited June 26, 2017) (bold in original).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017        Page 4 of 15
      brought copies of the Letter (and similar letters sent to Kurzhal-Geyer and

      Collado) to court, and the trial court indicated that it would allow Sanders to

      recall Roberts to the stand to address the Letter. According to Deputy

      Prosecutor Micah Cox, the Letter had not been previously disclosed because he

      was unaware of its existence. When Sanders’s trial counsel asserted that the

      Letter did, in fact, exist, Deputy Cox discovered it “in the files” and that

      Deputy Gabrielse had sent it before leaving the Prosecutor’s office. Sept. 21,

      2016, Tr. p. 2. Sanders recalled Roberts as a witness and began, essentially,

      reading to him the portion of the Letter in which the deputy prosecutor

      mentioned the possibility of more serious charges should he reject the State’s

      plea offer. The State objected on the grounds of hearsay and that the line of

      questioning was leading, but these objections were overruled.


[6]   The jury found Sanders guilty as charged. On October 17, 2016, the trial court

      sentenced Sanders to twenty years of incarceration. Sanders contends that the

      State committed reversible prosecutorial misconduct, the trial court abused its

      discretion in admitting evidence that Sanders was attempting to illegally

      purchase drugs from Mapes, and the trial court abused its discretion in allowing

      the State to make improper arguments regarding Sanders’s claim of self-defense.


                                 Discussion and Decision
                                I. Prosecutorial Misconduct
[7]   Sanders contends that the State committed prosecutorial misconduct such that

      reversal of his conviction is required.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 5 of 15
              To support a motion for mistrial based upon prosecutorial
              misconduct, the defense must show that the prosecutor’s actions
              constituted misconduct by reference to established norms of
              professional conduct, and that the ensuing prejudice placed him
              in a position of grave peril to which he should not have been
              subjected. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d
              843. Whether the misconduct results in grave peril is determined
              not by the degree of impropriety involved, but by its probable
              persuasive effect upon the jury. Id.; Andrews v. State (1989), Ind.,
              536 N.E.2d 507. This effect, in turn, is assessed not by whether
              its absence conclusively would lead to an acquittal; rather,
              reversal is required where the evidence is close and the trial court
              fails to alleviate the prejudicial effect. Johnson v. State (1983), Ind.
              App., 453 N.E.2d 365. Even where an isolated instance of
              misconduct does not establish grave peril, if repeated instances
              evidence a deliberate attempt to improperly prejudice the
              defendant, a reversal still may result. Robinson v. State (1973), 260
              Ind. 517, 297 N.E.2d 409.
      Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991).


                             A. State’s Objections to Evidence
[8]   Sanders argues that the State engaged in a deliberate pattern of meritless

      objections in an attempt to disrupt his examination and cross-examination of

      witnesses. Sanders points to four instances of alleged disruptive objection: (1)

      the State objected on hearsay grounds during Sanders’s cross-examination of

      Collado when Sanders was impeaching him using previous, inconsistent

      statements from a police report; (2) the State objected on hearsay grounds when

      Sanders attempted to elicit statements made by Mapes from Collado; (3) the

      State objected on speculation grounds to Sanders’s question of Collado as to

      whether Mapes, Kurzhal-Geyer, or Roberts was unaware they were going to


      Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 6 of 15
       participate in an armed robbery; and (4) the State objected on hearsay grounds

       to Sanders’s reading of portions of the Letter to Roberts during Roberts’s

       testimony.


[9]    Sanders has failed to establish any prosecutorial misconduct in this regard.

       First and foremost, Sanders cannot show any prejudice, much less grave peril,

       because each of the State’s objections mentioned above was, in fact, overruled;

       Sanders was therefore able to present his evidence as he wished. Second,

       suffice it to say that the State’s objections, although overruled, were not

       frivolous. Finally, we have a difficult time imagining that four objections

       during a three-day trial with a transcript of approximately 500 pages—even if

       they were frivolous—could amount to reversible misconduct. Without

       significantly more justification than Sanders offers us here, we will not adopt a

       position that would create such an obvious disincentive to object during trial.


                                           B. Brady Violation
[10]   Sanders contends that the State committed reversible prosecutorial misconduct

       by suppressing the Letter.


               In Brady v. Maryland, the United States Supreme Court held that
               “the suppression by the prosecution of evidence favorable to the
               accused upon request violates due process where the evidence is
               material either to guilt or to punishment, irrespective of the good
               faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct.
               1194, 10 L. Ed. 2d 215 (1963). “To prevail on a Brady claim, a
               defendant must establish: (1) that the prosecution suppressed
               evidence; (2) that the evidence was favorable to the defense; and
               (3) that the evidence was material to an issue at trial.” Minnick v.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 7 of 15
               State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady, 373 U.S. at
               87, 83 S. Ct. 1194), cert. denied, 528 U.S. 1006, 120 S. Ct. 501,
               145 L. Ed. 2d 387 (1999). Evidence is material under Brady
               “only if there is a reasonable probability that, had the evidence
               been disclosed to the defense, the result of the proceeding would
               have been different. A ‘reasonable probability’ is a probability
               sufficient to undermine confidence in the outcome.” United States
               v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed.2d 481
               (1985).
       Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App. 2012). At the very least,

       Sanders’s Brady claim fails because the Letter was disclosed before the end of

       his trial and Sanders did, in fact, use it to examine witnesses. See U.S. v. Agurs,

       427 U.S. 97, 103 (1976) (“The rule of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

       1194, 10 L. Ed. 2d 215, arguably applies in three quite different situations.

       Each involves the discovery, after trial of information which had been known to

       the prosecution but unknown to the defense.”) (emphasis added).


                              C. Questions Regarding Sanders’s
                                Communications With Others
[11]   Sanders contends that it was misconduct for the prosecutor to cross-examine

       him about statements he allegedly made to other persons regarding Mapes’s

       death. Specifically, Sanders challenges the State’s questions about whether he

       told (1) Manczunski in a text message that he ran Mapes over, (2) fellow inmate

       Troy Berg that he knew he was going to kill Mapes before he did, (3) Berg and

       fellow inmate Brian Collins that running over Mapes felt like a “human speed

       bump[,]” and (4) fellow inmate David Frowerk that running over Mapes “felt

       like running over someone in Grand Theft Auto, a video game[.]” Sept. 22,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 8 of 15
       2016, Tr. p. 50. Sanders responded that his text message to Manczunski was

       being taken out of context and denied making the other statements.


[12]   When Sanders objected to the State’s questioning, he indicated that he thought

       the jury should be instructed that the questions of counsel were not evidence.

       The trial court indicated that it would specifically instruct the jury at the

       conclusion of trial that “all of the counsel’s questions are not evidence.” Sept.

       22, 2016, Tr. p. 50. Although the trial court’s final jury instructions were not

       transcribed, Sanders does not claim that the instruction was not given, and

       more importantly, points to no indication that the jury did not follow the

       instruction. “‘When the jury is properly instructed, we will presume they

       followed such instructions.’” Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015)

       (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind.1987)). In the absence of

       any indication that the jury ignored the trial court’s instruction, Sanders has

       failed to establish prejudice in this regard.


[13]   Moreover, even if we assume that the State improperly cross-examined Sanders

       and that the trial court improperly allowed it to, any such error can only be

       considered harmless. “Errors in the admission of evidence are to be

       disregarded as harmless unless they affect the substantial rights of the

       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. As mentioned, Sanders sent

       the following text message to Manczunski: “I didn’t get [the pills] he robbed

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 9 of 15
       me But it’s aight I ran him over when he was running away.” State’s Ex. 58.

       This text message raises inferences that Sanders intentionally ran over Mapes

       and did not regret doing so. At best, any of the statements mentioned above3

       are merely cumulative of the text message, which was properly admitted. As

       such, any error that might have occurred can only be considered harmless.


           II. Evidence of Uncharged Attempts to Purchase Drugs
[14]   Sanders contends that the trial court abused its discretion in admitting

       Facebook communications between himself and Manczunski in the hours

       before and after Mapes’s death. 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




       3
         The State’s questioning of Sanders, quite frankly, strongly implied that it had reason to believe that he
       made incriminating statements to Berg, Collins, and Frowerk, when there was no evidence to that effect,
       essentially, impeachment by innuendo. The record does not indicate why the State did not call Berg, Collins,
       or Frowerk to testify, but we remind the State that proper impeachment with a prior inconsistent statement
       requires that statement to be placed in evidence at some point.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017            Page 10 of 15
       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.


[15]   As we have explained,

               Indiana Evidence Rule 404(b) provides, in pertinent part, that:
                   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…
               This rule is “designed to prevent the jury from assessing a
               defendant’s present guilt on the basis of his past propensities, the
               so-called ‘forbidden inference.’” Hicks. v. State, 690 N.E.2d 215,
               218-19 (Ind. 1997). Thus, in assessing the admissibility of
               evidence under Ind. Evidence Rule 404(b), the trial court must:
               (1) determine whether the evidence of other crimes, wrongs, or
               acts is relevant to a matter at issue other than the defendant’s
               propensity to commit the charged act; and (2) balance the
               probative value of the evidence against its prejudicial effect
               pursuant to Evid. R. 403. Id. at 221. To determine whether the
               trial court abused its discretion, we employ the same test. See,
               e.g., id. at 221-23.
       Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004), trans. denied. The

       Indiana Supreme Court has stated that “[t]he paradigm of such inadmissible

       evidence is a crime committed on another day in another place, evidence whose

       only apparent purpose is to prove the defendant is a person who commits

       crimes.” Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 11 of 15
[16]   The evidence of Sanders attempting to arrange the illegal purchase of drugs

       with Manczunski is not the sort of evidence the Swanson court had in mind.

       The messages at issue began a few hours before Mapes’s death, continued for a

       few hours afterwards, and shed light on how Sanders came to interact with

       Mapes, as well as Sanders’s mindset before and after Mapes’s death. In a

       message sent at 4:05 p.m. on February 19, 2016, Sanders wrote, “Yeah I have

       no one for [Klonopins] either What could you get us for 60$ And do you have

       anything left I took my last dose haha[.]” State’s Ex. 47. At 5:30 p.m. Sanders

       wrote, “Can you find anything I have no doses left[.]” State’s Ex. 49. At 5:39

       p.m., Sanders wrote, If it doesn’t get here tomorrow we could be really

       f*****[.]” State’s Ex. 50. The next morning at 5:25 a.m., Sanders wrote, “I

       didn’t get [the pills] he robbed me But it’s aight I ran him over when he was

       running away.” State’s Ex. 58. The messages sent before Mapes’s death

       indicate a certain level of desperation on Sanders’s part to secure drugs, a

       desperation that could certainly provide a motive for his reaction when, instead

       of getting his drugs, he was robbed at gunpoint. The message sent the next

       morning, while mentioning what could be inferred as an illegal drug deal, is

       also extremely relevant evidence of Sanders’s state of mind and motive for

       running Mapes down.


[17]   On the whole, we conclude that the evidence of Sanders’s communications

       with Manczunski is relevant to issues beyond Sanders’s propensity to commit

       crimes, specifically, why Sanders would have wanted to kill Mapes. We agree

       with the trial court’s assessment that the evidence is relevant to show the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 12 of 15
       absence of mistake, at the very least. We further conclude that the probative

       value of the evidence outweighed the risk of any unfair prejudice that might

       have resulted. After all, Sanders admitted in his own testimony that he was

       attempting to illegally purchase antianxiety medication the evening of February

       19, 2016. Moreover, we consider it unlikely that a jury would convict a person

       of voluntary manslaughter solely on the basis that he also attempted to illegally

       purchase drugs. Sanders has failed to establish that the trial court abused its

       discretion in admitting evidence of his communications with Manczunski.


                                           III. Self-Defense
[18]   Finally, Sanders argues that the trial court abused its discretion in instructing

       the jury on self-defense and that the jury’s determination that he did not act in

       self-defense is unreasonable. The record indicates that the trial court gave the

       following final instruction on self-defense:


               It is an issue whether the Defendant acted in self-defense.
               A person may use reasonable force against another person to
               protect himself from what he from what the Defendant [sic]
               reasonably believes to be the imminent use of unlawful force.
               A person is justified in using deadly force, and does not have a
               duty to retreat, only if he reasonably believes that deadly force is
               necessary to prevent serious bodily injury to himself.
               However, a person may not use force if:
               he is committing a crime that is directly and immediately
               connected to the confrontation
               or



       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 13 of 15
               he is escaping after the commission of a crime that is directly and
               immediately connected to the confrontation
               or
               he provokes a fight with another person with intent to cause
               bodily injury to that person
               or
               he has willingly entered into a fight with another person or
               started the fight, unless he withdraws from the fight and
               communicates to the other person his intent to withdraw and the
               other person nevertheless continues or threatens to continue the
               fight
               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.
       Appellant’s App. Vol. II p. 90.


                                    A. Propriety of Instruction
[19]   The manner of instructing a jury lies largely within the discretion of the trial

       court, and we will reverse only for an abuse of discretion. Henson v. State, 786

       N.E.2d 274, 277 (Ind. 2003). “‘In determining whether a trial court abused its

       discretion by declining to give a tendered instruction, we consider the following:

       (1) whether the tendered instruction correctly states the law; (2) whether there

       was evidence presented at trial to support giving the instruction; and (3)

       whether the substance of the instruction was covered by other instructions that

       were given.’” Id. (quoting Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind.

       2002)). As the State notes, while Sanders seems to argue that the trial court

       abused its discretion in giving the above instruction, he appears to concede that

       it is a correct statement of the law, and it does, in fact, closely track the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 14 of 15
       language of the applicable statute. See Ind. Code § 35-41-3-2; see also, e.g., Mayes

       v. State, 744 N.E.2d 390, 392 (Ind. 2001). Sanders has failed to establish that

       the trial court abused its discretion in this regard.


                  B. Failure to Find Sanders Acted in Self-Defense
[20]   Sanders argues, however, that given the facts of this case, there is no nexus

       between the attempt to illegally purchase drugs and the charged conduct. As

       the State correctly notes, this was a question of fact for the jury, i.e., “it is within

       the province of the jury to determine whether the defendant’s evidence was

       believable, unbelievable, or sufficient to warrant the use of force.” Ault v. State,

       950 N.E.2d 326, 328 (Ind. Ct. App. 2011), trans. denied. The State introduced

       evidence sufficient to support a finding that whatever need Sanders might have

       had to defend himself was a result of his attempt to illegally purchase drugs.


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


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1611-CR-2556 | July 6, 2017   Page 15 of 15
