MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Apr 08 2015, 10:33 am
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
Matthew J. McGovern                                       Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana
                                                          Brian Reitz
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Katyun Marsh,                                             April 8, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A01-1405-CR-233
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court.
                                                          The Honorable David D. Kiely,
State of Indiana,                                         Judge.
Appellee-Plaintiff                                        Cause No. 82C01-1306-MR-638




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015         Page 1 of 13
[1]   Katyun Marsh appeals his conviction for Murder, a felony.1 Marsh argues that

      the trial court erred by admitting into evidence a video of his interview with

      police that Marsh believes contained inadmissible hearsay. Marsh also argues

      that his sentence is inappropriate in light of the nature of the offense and his

      character. Finding no error, we affirm.


                                                     Facts     2




[2]   In 2013, Angela Dixon lived in an apartment in Evansville with her seventeen-

      year-old daughter, J.D. On June 5, 2013, Melinda Welborn and her daughter,

      Carrie Burton, were visiting Dixon at the apartment. Dixon and Welborn had

      been dating but had broken up a few days prior to this incident. Dixon,

      Welborn, and Burton got into an argument, after which Burton threatened

      Dixon. J.D. left the apartment at 9 p.m. and spent the night with a friend

      because of the argument.


[3]   At around 2 a.m. the following morning, Dixon, concerned that Burton would

      carry out her threat, texted her friend Brandi Phillips and asked if she would

      come over. At the time, Phillips was with Blake Fisher and Marsh. Phillips

      agreed to come over and left in a taxi along with Fisher and Marsh.




      1
          Ind. Code § 35-42-1-1.
      2
       We held oral argument on March 12, 2015, at Culver Academies in Culver, Indiana. We wish to thank
      Culver Academies for the wonderful hospitality as well as counsel for their exceptional oral advocacy.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015           Page 2 of 13
[4]   The three arrived at Dixon’s apartment around 4 a.m. Phillips and Fisher went

      inside, but Dixon asked that Marsh remain outside because she did not know

      him. Marsh eventually entered the apartment about thirty minutes later. After

      about two hours, Phillips decided that it was time to leave. Dixon did not want

      Phillips to leave, but Phillips replied that it was getting late.


[5]   When the three exited Dixon’s apartment, Marsh stated that Dixon owed him

      five dollars for marijuana and that he was going to get it. He re-entered the

      apartment along with Phillips and Fisher. Marsh approached Dixon, pulled a

      gun from his pants, and ordered her to give him all the money she had. When

      Dixon responded that she didn’t have any, Marsh shot Dixon in the face, killing

      her.


[6]   The three left the apartment and walked across the street. Marsh threatened to

      shoot Phillips if she stopped walking. Once across the street, they waited for a

      taxi outside of a WalMart. The same taxi that had taken them to Dixon’s

      arrived and took them to Phillips’s apartment. Phillips was in hysterics while in

      the taxi. At the apartment, Marsh told Fisher that he wanted to kill Phillips

      because he was afraid that she would give information to the police.


[7]   On June 6, 2013, at around 10 a.m., J.D. returned home to find her mother

      dead. One of J.D.’s friends called the police. Later that day, Detective Mike

      Sloat interviewed Phillips. Although Phillips did not initially implicate Marsh,

      she eventually said that she had seen Marsh shoot Dixon. Fisher eventually

      said the same thing.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 3 of 13
[8]    Marsh was apprehended on June 7, 2013. Detective Brent Melton interviewed

       him that same day. During the interview, Detective Melton told Marsh that

       Marsh’s cousin, Alisha Robinson, spoke to an investigator and said that on

       June 6, 2013, Marsh had broken down in front of her and told her that he had

       gotten involved in something he shouldn’t have. Marsh explained that he had

       called Robinson and that he became emotional because of other drama in his

       life.


[9]    Later that day, Marsh was charged with murder, felony murder, robbery

       resulting in serious bodily injury, armed robbery, and conspiracy to commit

       armed robbery. A jury trial was held, during which the jury was shown a video

       of Detective Melton’s interview with Marsh. On April 4, 2014, Marsh was

       found guilty of murder and not guilty of all other counts. On May 1, 2014, the

       trial court sentenced Marsh to sixty years executed. Marsh now appeals.


                                    Discussion and Decision
                                                 I. Hearsay
[10]   Marsh first argues that the trial court erred in admitting into evidence a portion

       of the videotaped interview in which Detective Melton questioned Marsh about

       his conversation with Robinson. We review a trial court’s decision to admit

       evidence for an abuse of discretion. Teague v. State, 978 N.E.2d 1183, 1187

       (Ind. Ct. App. 2012). An abuse of discretion occurs if the trial court’s decision

       is clearly against the logic and effects of the facts and circumstances before the

       court or if the court misinterprets the law. Id.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 4 of 13
[11]   Marsh contends that Detective Melton’s statements about Robinson telling an

       investigator that Marsh broke down in front of her constituted inadmissible

       hearsay. Hearsay is an out-of-court statement used to prove the truth of the

       matter asserted. Ind. Evidence Rule 801(c). Hearsay is inadmissible unless it

       falls under a hearsay exception.3 Teague, 978 N.E.2d at 1187. However, “[a]

       statement is not hearsay if it is not used to prove the truth of the matter

       asserted.” Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999).


[12]   At trial, the State requested a hearing outside the presence of the jury. The

       State had produced two redacted videos of Detective Melton’s interview with

       Marsh, one of which redacted the portion in which Detective Melton

       questioned Marsh about his conversation with Robinson. Marsh objected to

       the admission of this portion, but the trial court overruled his objection. The

       relevant portion of the video contains the following exchange:

               Melton:           . . . let’s back up a minute. Who is Alisha Robinson? Is
                                 that a cousin?
               Marsh:            Yeah, that’s my cousin.
               Melton:           I want to hear about this conversation you had where
                                 you were upset and crying and you told her that you got
                                 involved in something you shouldn’t have got involved
                                 in, and you (unintelligible) and you fell down, and you
                                 curled up crying like into a ball, and just very upset.
               Marsh:            (Unintelligible)



       3
         Here, Marsh claims that Detective Melton’s statement is actually hearsay within hearsay, because Detective
       Melton’s out-of-court statement relayed an out-of-court statement made by Robinson. “If a statement
       involves hearsay within hearsay . . . the statement may still be admitted if each layer of hearsay qualifies
       under an exception to the hearsay rule.” Teague, 978 N.E.2d at 1187 (quotations omitted).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015             Page 5 of 13
               Melton:          I’m just telling you what she told one of the
                                investigators. Want to tell me about the conversation?
                                                        ***
               Marsh:           Mid-day yesterday, I called my cousin up, I asked
                                her . . .
               Melton:          This is Alisha Robinson?
               Marsh:           Yeah, I was like I gotta go cause, I can’t take it no more
                                here in Evansville, I don’t like it no more, I gotta go,
                                and I started (unintelligible).
               Melton:          Crying and that stuff?
               Marsh:           I am an emotional person. If I gotta cry I’m gonna cry,
                                I’m not gonna hide it, I mean . . .
               Melton:          But, and that’s . . . I know I’ve broken down. I’ve had
                                traumatic things happen in my life, and I’m asking, what
                                made you break down?
               Marsh:           What made me break down? Cause I’m tired of all this
                                drama.
               Melton:          What drama?
               Marsh:           The drama in my life. I mean, the little stuff counts
                                man, and I’m talking about people robbing me, people
                                putting my name in situations that it don’t belong, me
                                being in the wrong places at the wrong time, people
                                using me. . . .
       Tr. p. 750-53.


[13]   Marsh contends that the State introduced these statements to prove that Marsh

       had broken down in front of Robinson, claiming that he had been involved in

       something he shouldn’t have been. He argues that the State used this evidence

       to show that he had effectively admitted to Robinson that he committed the

       murder. The State maintains that Detective Melton’s statements were merely




       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 6 of 13
       “question[s] designed to elicit a response about Marsh’s interactions with his

       cousin after the murder.” Appellee’s Br. p. 13.


[14]   Our Supreme Court has noted that “police questions and comments in an

       interview may be designed to elicit responses from the defendant and if so, are

       ‘not offered as proof of the facts asserted therein.’” Smith, 721 N.E.2d at 216

       (quoting Strong v. State, 538 N.E.2d 924, 928 (Ind. 1989)). The Court has

       reasoned that, because such statements are “largely designed to prompt” the

       defendant to speak, it is not the statement itself, but rather the defendant’s

       response to it “that really constitute[s] the evidentiary weight of the

       conversation.” Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996). Therefore,

       such prompting statements are not hearsay.


[15]   For instance, in Strong, the State offered a video of Strong’s interview with

       police officers as evidence. Strong objected to the following portion on hearsay

       grounds:

               Q:       Okay. There’s a lot of things, [Strong], I want to caution you
                        on one thing. Physical evidence proof, stuff that Lt. Loy saw
                        and found in your house on that night.
               A:       Yes and I told him everything about that.
               Q:       Doesn’t match stuff that you tell us. . . .

       Strong, 538 N.E.2d at 928. Our Supreme Court found that “[t]hese statements

       by the police officer were not inadmissible hearsay because they were not

       offered as proof of the facts asserted therein.” Id. The Court further noted that




       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 7 of 13
       the jury had been admonished to not consider the officer’s statements as

       evidence. Id.


[16]   However, the Court reached the opposite conclusion in Smith. 721 N.E.2d 213.

       In that case, the State once again sought to introduce a video of the defendant’s

       interview with an officer. During the interview, the officer made the following

       statements:

               [H]alf of the people at the jail’s [sic] called me wanting to tell me that
               you did it[.]
               [Lampley] said you did it because it was over him [Riggs] ripping you
               off your dope, your stash.

       Id. at 216. The Court found that, “the lack of an admonishment in this case

       combined with the fact that the statements appear to be assertions of fact by the

       detective, not mere questions, renders their admission error.” Id.


[17]   In this case, we find that Detective Melton’s statements were largely designed to

       prompt a response from Marsh. Although Detective Melton’s statements

       contained assertions of fact to the extent that they referenced Robinson’s

       statements, they functioned primarily as questions, and are therefore

       distinguishable from the bald accusations at issue in Smith. Id. Furthermore,

       the statements did indeed prompt a response. Following Detective Melton’s

       statements, Marsh spoke at relative length about his conversation with

       Robinson, and Detective Melton did not contradict Marsh’s version of the

       events.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 8 of 13
[18]   We acknowledge that the jury was not admonished in this case. We note,

       however, that Marsh did not request such an admonishment and “a trial court

       has no affirmative duty to consider giving an admonishment absent a party’s

       request to do so.” Id. While we believe our decision would have been easier

       had such an admonishment been given, we do not find that, under the

       circumstances presented here, the lack of an admonishment rendered the

       admission of Detective Melton’s statements error. In short, we find that the

       trial court did not err in determining that Detective Melton’s statements were

       largely designed to prompt a response from Marsh and, therefore, not hearsay. 4


[19]   Moreover, even if the trial court erred in admitting Detective Melton’s

       statements, we believe that such error was harmless. “Generally, errors in the

       admission of evidence are to be disregarded as harmless unless they affect the

       substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012). In determining whether a defendant’s substantial rights were affected,

       we look to the probable impact of the evidence on the fact finder. Id. The

       improper admission of evidence is harmless error when the conviction is

       supported by substantial independent evidence of guilt that satisfies the

       reviewing court that there is no substantial likelihood that the challenged

       evidence contributed to the conviction. Id.




       4
        Because we find that this evidence is not hearsay, we need not consider Marsh’s claim that it is testimonial
       hearsay, the admission of which would have violated Marsh’s right to confrontation under the Sixth
       Amendment. “[I]f a statement is either nontestimonial or nonhearsay, the federal Confrontation Clause will
       not bar its admissibility at trial.” Vaughn v. State, 13 N.E.3d 873, 879 (Ind. Ct. App. 2014), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015              Page 9 of 13
[20]   Here, Marsh’s conviction was supported by the eyewitness testimony of Fisher

       and Phillips. Both witnesses testified that Marsh shot and killed Dixon.

       However, Marsh argues that, because “there was no physical evidence to

       eliminate [Fisher] or [Phillips] as the murderers,” each had a compelling reason

       to lie. Appellant’s Br. p. 16. Marsh concludes that Detective Melton’s

       statement regarding what Robinson told an investigator was “the only

       testimony directly implicating Marsh that did not come from a witness with a

       powerful reason to falsely implicate Marsh.” Id. at 17.


[21]   We fail to see how Detective Melton’s statements about Marsh’s conversation

       with Robinson directly implicated Marsh in the murder. After being prompted

       by Detective Melton, Marsh gave his version of the conversation he had with

       Robinson. As previously noted, Detective Melton did not contradict Marsh’s

       characterization of his conversation with Robinson. Because all of Marsh’s

       statements in the interview would have been admissible,5 Detective Melton’s

       statements primarily serve to give context to Marsh’s statements. As such, we

       do not find it likely that these statements had a significant impact on the jury’s

       decision.




       5
        Statements made by an opposing party in an individual or representative capacity are not hearsay. Evid. R.
       801(d)(2).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015           Page 10 of 13
                              II. Appropriateness of Sentence
[22]   Marsh next challenges the appropriateness of his sentence. Under Indiana

       Appellate Rule 7(B), “[t]he 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.” The burden is on the defendant to persuade us that his

       sentence is inappropriate. Teague, 978 N.E.2d at 1189.


[23]   In this case, the jury found Marsh guilty of murder. “A person who commits

       murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-

       five (65) years, with the advisory sentence being fifty-five (55) years.” Ind.

       Code § 35-50-2-3. After a hearing, the trial court sentenced Marsh to an

       executed term of sixty years.


[24]   Regarding the nature of his offense, Marsh argues that the offense “was not

       committed with any brutality not already inherent in the crime of murder.”

       Appellant’s Br. p. 20. Regarding his character, Marsh points out that he was

       only nineteen at the time of the offense and notes that “[a] defendant’s young

       age is to be given considerable weight as a mitigating circumstance.” Brown v.

       State, 720 N.E.2d 1157, 1159 (Ind. 1999). Marsh also notes that his only prior

       adult conviction was for misdemeanor criminal conversion. Appellant’s Br. p.

       19. All of Marsh’s other criminal history involves juvenile adjudications. Id.

       Finally, Marsh notes that he had a difficult upbringing as his father has been

       incarcerated for nearly all of his life. Id.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 11 of 13
[25]   However, the trial court considered all of these points prior to sentencing

       Marsh. Sent. Tr. p. 13-15. As to the nature of the offense, the trial court noted

       that Marsh shot Dixon over a small amount of money.6 The court further noted

       that Marsh had never met Dixon and that he was a guest in Dixon’s home at

       the time. In light of this, the court concluded that this murder was particularly

       senseless.


[26]   As to Marsh’s character, the court noted his young age and difficult upbringing.

       However, the court weighed this against Marsh’s three previous juvenile

       adjudications. In the end, the trial court determined that the senselessness of

       the murder combined with Marsh’s significant juvenile history were substantial

       aggravating factors, outweighing the mitigating factors of his age, difficult

       upbringing, and his relatively insignificant adult criminal history.7


[27]   We note that the principal role of appellate review of sentences should be to

       attempt to leaven the outliers rather than to achieve a perceived “correct” result




       6
         Marsh contends that this is an improper aggravating factor. Marsh notes that he was charged with robbery
       resulting in bodily injury and armed robbery—for taking money from Dixon—and was acquitted on both
       counts. Therefore, Marsh argues that the trial court improperly considered charges on which he had been
       acquitted as aggravating factors. However, the trial court did not determine that Marsh committed robbery,
       but merely noted that he likely killed Dixon over a small amount of money. As substantial evidence
       indicated that this was the case, the trial court did not err in considering this as an aggravating factor.
       7
        In this case, the trial court issued an oral sentencing statement during the sentencing hearing. Sent. Tr. p.
       13-15. Marsh argues that it is not clear from the trial court’s sentencing statement whether it considered
       particular factors as aggravators or mitigators. However, we believe that Marsh’s argument elevates form
       over substance. It is perfectly clear which factors the trial court considered mitigating and which factors it
       considered aggravating. We believe the trial court’s sentencing statement adequately serves its purpose of
       protecting against arbitrary sentencing and facilitating appellate review of sentences. Anglemyer v. State, 868
       N.E.2d 482, 489 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015                Page 12 of 13
       in each case. Teague, 978 N.E.2d at 1189. “We must give deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Id.

       (quotations omitted). With this in mind, we do not find Marsh’s sixty-year

       sentence inappropriate in light of the nature of the offense and his character.


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


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1405-CR-233 | April 8, 2015   Page 13 of 13
