MEMORANDUM DECISION                                                   FILED
                                                                  Jul 26 2018, 5:38 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                          CLERK
                                                                  Indiana Supreme Court
precedent or cited before any court except for the                   Court of Appeals
                                                                       and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeremiah Walker,                                          July 26, 2018

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          49A05-1712-CR-2901
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark D. Stoner,
                                                          Judge
Appellee-Plaintiff
                                                          Trial Court Cause No. 49G06-1606-
                                                          MR-21462




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018      Page 1 of 14
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jeremiah Walker (Walker), appeals his conviction and

      sentence for felony murder, Ind. Code § 35-42-1-1(2); and carrying a handgun

      without a license, a Class A misdemeanor, I.C. § 35-47-2-1.


[2]   We affirm.


                                                   ISSUES
[3]   Walker presents two issues on appeal, which we restate as:

      (1) Whether the State committed prosecutorial misconduct during closing

      argument; and

      (2) Whether Walker’s sentence is inappropriate in light of the nature of the

      offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2016, Erbie Thompson (Thompson) and his fiancée Holly Bartlett (Bartlett)

      resided together on the east side of Indianapolis, Indiana. Thompson was a

      drug dealer, and Walker and his girlfriend, Jessica Figueiredo (Figueiredo), and

      Solomon Keets (Keets), were his customers.


[5]   On May 31, 2016, Walker, Figueirodo, and Keets drove to Thompson’s home

      to purchase “spice,” a “form of synthetic marijuana.” (Tr. Vol. II, p. 88).

      Figueiredo was left inside the vehicle while Walker and Keets went inside to

      buy drugs. When they returned to the vehicle, Walker was upset because the

      twenty-dollars’ worth of spice, also known as “twenty sack,” was “short again.”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 2 of 14
      (Tr. Vol. III, p. 26). At that point, Walker and Keets “started talking about

      robbing” Thompson of his drugs and money. (Tr. Vol. III, p. 26).


[6]   Figueiredo, who later agreed to participate in the robbery, recommended

      buying zip ties instead of using Walker’s “flimsy” ropes to secure any occupants

      at Thompson’s house. (Tr. Vol. III, p. 30). Based on Figueiredo’s suggestion,

      the trio next drove to the Menards store located on Shadeland Avenue. The

      surveillance videos captured Walker and Figueiredo purchasing the zip ties.

      Later that afternoon, they all drove back to Thompson’s house to execute the

      robbery. Because there was a vehicle in the driveway, they drove by a couple of

      times until the vehicle was gone. After parking their car in the back of the

      house, Walker accessed Thompson’s house by pushing the door which was

      already “cracked open.” (Tr. Vol. III, p. 33). Keets and Figueiredo followed

      Walker inside. First, they went into a bedroom and found Bartlett,

      Thompson’s fiancée, lying in bed. Walker pointed his gun at Bartlett and

      ordered her to “shut up.” (Tr. Vol. III, p. 34). Keets explored the house and

      found another occupant, Philip Lewis (Lewis), sleeping in another bedroom.

      Keets pointed a “silver revolver” at Lewis and instructed him to remain “where

      [he] was.” (Tr. Vol. III, p. 89). Walker encountered Thompson in the hallway,

      and a “scuffle” ensued. (Tr. Vol. III, p. 123).


[7]   Moments after the scuffle with Thompson, Walker returned to the bedroom

      and ordered Figueiredo tie up Bartlett with a zip tie. Walker offered Figueiredo

      his gun, but because Figueiredo was busy tying up Bartlett, Walker placed the

      gun on the nightstand. After securing Bartlett, Figueiredo reached for the gun,

      Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 3 of 14
      but it was missing. While looking for the missing gun, Figueiredo also asked

      Bartlett to point to where the money and drugs had been hidden. Shortly

      thereafter, Walker came back into the bedroom and questioned Figueiredo if

      she had located the money and drugs. When Figueiredo stated that she was

      unsuccessful, Walker became upset. Figueiredo also informed Walker that she

      could not locate the gun on the nightstand, but Walker expressed that it was in

      his possession.


[8]   Bartlett, who was zip-tied and on the bed, started “being loud and making a lot

      of noise.” (Tr. Vol. III, p. 35). Walker walked over to Bartlett and “grabbed

      her and he spun her around on the bed.” (Tr. Vol. III, p. 35). While pointing

      his gun at Bartlett, Walker ordered Bartlett to direct him to where the drugs and

      money were hidden. Because Bartlett was not cooperating, Figueiredo

      approached Bartlett and “punched her in the face,” and stated, “just tell him

      where the stuff is because he’s not playing.” (Tr. Vol. III, p. 37). Bartlett

      pointed to the dresser drawer, Figueiredo conducted a search, but there were no

      drugs or money. Figueiredo then heard somebody inside the house say that the

      police were being contacted. Based on the announcement, Keets ran out of the

      house. Figueiredo wanted to leave, but Walker ordered her to keep looking for

      the money and drugs.


[9]   While still armed with a gun, Walker grabbed Bartlett by the hair and dragged

      her outside. Thompson ran outside armed with a pool cue stick to rescue

      Bartlett. Because Thompson appeared as if he was about to hit Walker,

      Figueiredo picked up the dresser drawer and threw it at Thompson, hitting his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 4 of 14
       head and neck. Thompson stubbled, and as he attempted to swing the pool cue

       stick at Walker, Walker fired his gun twice. One of the bullets struck

       Thompson in his left hip, causing him to fall. At that moment, Walker,

       Figueiredo, and Keets, who was hiding by the garage, ran to the car and drove

       off. Bartlett managed to get the license plate number and the police were then

       contacted.


[10]   After the police had ensured the area was safe, the medic put Thompson in an

       ambulance and transported him to the hospital. The bullet that struck

       Thompson’s hip travelled into his abdominal cavity where it perforated his

       colon, intestines, and femoral artery, causing Thompson to suffer severe

       internal bleeding. Medical intervention was unable to stop the bleeding, and

       Thompson died as a result.


[11]   Meanwhile at Thompson’s house, the responding police officer ran the license

       plate number of the vehicle and determined that it was registered to Figueiredo.

       A broken cue stick that had spots of blood on it was found outside, and a zip tie

       was located inside the bedroom. The police later located Figueiredo’s vehicle.

       A Menards receipt for the zip ties was found inside the car. Walker’s and

       Keets’ fingerprints were found in several areas of the vehicle. Bartlett and

       Lewis both identified Walker as the shooter in a photo array. Also, Bartlett

       identified Figueiredo in a photo array.


[12]   On June 6, 2016, the State filed an Information, charging Walker with Count I,

       murder, a felony; Count II, felony murder; Count III, attempted robbery, a


       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 5 of 14
       Level 3 felony; Count IV, carrying a handgun without a license, a Level 5

       felony; and Count V, criminal confinement, a Level 3 felony. A bifurcated jury

       trial was conducted on October 31, 2017, and November 2, 2017. At the close

       of the evidence, the jury was hung on the murder charge, but found Walker

       guilty of all other charges. The State subsequently dismissed the murder

       charge. At his sentencing hearing on November 17, 2017, the trial court

       merged the Level 3 felonies—attempted robbery and criminal confinement

       charges—into the felony murder verdict. The trial court then sentenced Walker

       to sixty-three years for the felony murder conviction, and a one-year

       consecutive sentence for carrying a handgun without a license offense, for an

       aggregate sentence of sixty-four years to be served in the Department of

       Correction.


[13]   Walker now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                          I. Prosecutorial Misconduct

[14]   During closing argument, the State began discussing the evidence used to prove

       each of Walker’s offenses. While explaining the evidence pertaining to the

       Level 3 felony criminal confinement charge, the State argued, in part, that


               You are going to get an instruction on accomplice liability, so
               keep that in mind as I go through each of these offenses. What
               the instructions are essentially going to tell you is when you are
               in it, you’re in it. If you are all working together, you are on the
               hook for every offense that occurs. He is certainly guilty of
               confining . . . Bartlett, by pointing a gun and holding her there. It

       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 6 of 14
               doesn’t matter that [Figueiredo] was the one that zip tied, he’s just
               as guilty.


       (Tr. Vol. III, pp. 122-23). In his appellate brief, Walker now argues that the

       State’s argument was


               a blatant misstatement of the law. Based on the complex nature
               of accomplice liability, and the fact the jury seemingly relied on
               this form of liability to form its verdict, this misstatement of law
               impacted the jury’s ability to judge the evidence fairly and placed
               Walker in grave peril.


       (Appellant’s Br. p. 11).


[15]   When reviewing a claim of prosecutorial misconduct, we first consider whether

       the prosecutor engaged in misconduct. Williams v. State, 724 N.E.2d 1070, 1080

       (Ind. 2000). We then consider whether the alleged misconduct placed the

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

       subjected. Id. The gravity of peril turns on the probable persuasive effect of the

       misconduct on the jury’s verdict, not on the degree of impropriety of the

       conduct. Gasper v. State, 833 N.E.2d 1036, 1042 (Ind. Ct. App. 2005), trans.

       denied. However, to properly preserve an issue regarding the propriety of a

       closing argument for appeal, a defendant must do more than merely make a

       prompt objection to the argument. Id. “The defendant must also request an

       admonishment, and if further relief is desired, defendant must move for a

       mistrial. Failure to request an admonishment results in a waiver of the issue for

       appellate review.” Flowers v. State, 738 N.E.2d 1051, 1058 (Ind. 2000).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 7 of 14
[16]   Before we address Walker’s argument, we note that after the State made the

       challenged closing argument, Walker did not make a contemporaneous

       objection, nor did he request an admonishment, or a motion for a mistrial. See

       Flowers, 738 N.E.2d at 1058. Nevertheless, Walker attempts to avoid waiver by

       claiming that the statements made by the State during closing argument

       amounted to fundamental error. “Fundamental error is an extremely narrow

       exception that allows a defendant to avoid waiver of an issue.” Cooper v. State,

       854 N.E.2d 831, 835 (Ind. 2006). “For prosecutorial misconduct to constitute

       fundamental error, 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. 2002) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.

       2002)). A claim for prosecutorial misconduct presented on appeal in the

       absence of a contemporaneous trial objection will not succeed unless the

       defendant establishes not only the grounds for prosecutorial misconduct, but

       also the additional grounds for fundamental error. Id. at 818.


[17]   Under the theory of accomplice liability, a person who knowingly or

       intentionally aids, induces, or causes another person to commit a crime is guilty

       of committing that crime himself. See Ind. Code § 35-41-2-4; also see, Brooks v.

       State, 895 N.E.2d 130, 133 (Ind. Ct. App. 2008). To be convicted as an

       accomplice, there must be affirmative evidence showing the defendant was

       acting in concert with the principal in the commission of the crime. Brooks, 895

       N.E.2d at 133-34. Walker argues that the State omitted the knowingly or

       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 8 of 14
       intentionally mens rea element of accomplice liability in its abbreviated closing

       argument. We find Walker’s argument flawed. Even though the State did not

       specifically use the terms knowingly or intentionally, it did implicitly include

       that requirement in what was stated. Specifically, the State argued, in part, “[I]f

       you are all working together, you are on the hook for every offense that

       occurs.” (Tr. Vol. III, p. 123). The very concept of working together implies

       that one is aware of what the others are doing and is affirmatively assisting

       them in a joint endeavor.


[18]   Even assuming for argument’s sake that the State’s closing argument

       constituted misconduct, the trial court fully instructed the jury on the law of

       accomplice liability. Walker does not contend that the trial court’s instruction

       was an incomplete or incorrect statement of the law. The instruction refers to

       the knowing or intentional mens rea requirement that Walker claims was

       missing from the State’s closing argument. See Steinberg v. State, 941 N.E.2d

       515, 531 (Ind. Ct. App. 2011) (holding that trial court’s instructions correctly

       stating the law are presumed to cure any misstatement of the law by a

       prosecutor in closing argument) trans. denied.


[19]   Moreover, we find that Walker has not demonstrated that the harm or potential

       for harm done by the State’s statements was undeniable and substantial. See

       Booher, 773 N.E.2d at 817. Any improper inference made by the jury from

       these statements was inconsequential in light of the overwhelming evidence

       presented against Walker. See id. First, Walker was not placed in grave peril by

       the State’s argument because this was not an accomplice liability case. The

       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 9 of 14
       State consistently charged Walker as a principal in all of his five charges. The

       evidence presented at the trial overwhelmingly proved that Walker hatched the

       robbery attempt, and three eyewitnesses, including Walker’s own girlfriend—

       Figueiredo consistently testified that Walker shot Thompson. There was also

       other corroborating evidence, such as the Menards’ surveillance video, showing

       Walker and Figueiredo purchasing zip ties.


[20]   Perhaps the most significant fact is that the jury’s verdict was much more

       favorable to Walker than to the State because the jury did not return a verdict

       on one of the most serious charge against Walker. As noted, the jury was hung

       on the murder charge, but found Walker guilty of felony murder, attempted

       robbery, carrying a handgun without a license, and criminal confinement.

       Indeed, the verdict demonstrates that the jury was not unfairly biased in favor

       of the State, or unfairly inflamed against Walker by the State’s recitation of its

       theory of accomplice liability. See Neville v. State, 976 N.E.2d 1252, 1265 (Ind.

       Ct. App. 2012) (prosecutor’s remarks did not place defendant in grave peril or

       amount to fundamental error because the evidence against the defendant was

       strong), trans. denied. Thus, we conclude that any resulting error from the

       State’s statement on the theory of accomplice liability, did not make a fair trial

       impossible or constitute the denial of due process. Walker has not established

       fundamental error, and we therefore affirm his convictions.


                                           II. Inappropriate Sentence




       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 10 of 14
[21]   Walker claims that his sentence is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) empowers us to

       independently review and revise sentences authorized by statute if, after due

       consideration, we find the trial court’s decision inappropriate in light of the

       nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

       1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s

       actions with the required showing to sustain a conviction under the charged

       offense, while the “character of the offender” permits a broader consideration of

       the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

       Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

       the burden of showing that both prongs of the inquiry favor a revision of his

       sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we

       regard a sentence as appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and a myriad of other considerations that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

       sentence and how it is to be served.” Id.


[22]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). Here, the trial court entered only judgment of conviction

       with respect to felony murder, and Class A misdemeanor carrying a handgun

       without a license. The crime of felony murder is subject to a fixed term of

       imprisonment “between forty-five (45) and sixty-five (65) years, with the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 11 of 14
       advisory sentence being fifty-five (55) years.” I.C. § 35-50-2-3(a). The trial

       court sentenced Walker to sixty-three years. Further, a person who commits a

       Class A misdemeanor shall be imprisoned for a fixed term of not more than one

       year. I.C. § 35-50-3-2. Here, the trial court sentenced Walker to the maximum

       sentence of one year.


[23]   The nature of Walker’s offenses in this case does not support appellate sentence

       revision. Walker was upset because he believed that Thompson had shorted

       him in the drug buy. Walker concocted a plan to rob Thompson of his money

       and drugs, including purchasing zip ties to bind any occupants at Thompson’s

       house at the suggestion of his girlfriend, Figueiredo. Armed with guns, Walker,

       Keets, and Figueiredo, invaded Thompson’s home. When they were

       unsuccessful in finding any drugs or money, Walker dragged a defenseless

       Bartlett outside in an apparent attempt to use her as a hostage. While armed

       with a pool cue stick, Thompson ran outside to rescue Bartlett. At that point,

       Walker shot twice at Thompson.


[24]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in

       the assessment of a defendant’s character is a review of his criminal history.

       Garcia v. State, 47 N.E.3d, 1249, 1251 (Ind. Ct. App. 2015). Also, a record of

       arrests is relevant to a trial court’s assessment of the defendant’s character.

       Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 12 of 14
[25]   Walker received his first juvenile adjudication at the age of nine, and his

       juvenile record includes true findings for criminal recklessness, battery (twice),

       disorderly conduct, criminal mischief, and, most perplexing of all, the

       attempted murder of his own father when he was fourteen-years old. In his

       adult life, Walker has been convicted of possession of a narcotic (multiple),

       carrying a handgun without a license (multiple), resisting law enforcement

       (multiple), criminal trespass (multiple), residential entry, operating a vehicle

       while intoxicated, intimidation, invasion of privacy, and theft (multiple).

       Walker has had numerous arrests that have not led to convictions. In addition,

       Walker has failed to successfully complete his probation in six of his prior cases,

       and has violated a placement in community corrections in one case. The risk-

       assessment tool within the PSI indicated that Walker was in the “very high”

       risk category to reoffend. (Appellant’s App. Conf. Vol. II, p. 229).


[26]   Further, we find that Walker’s substance abuse also reflects poorly on his

       character. Walker began smoking marijuana between the ages of thirteen and

       fourteen, and would smoke “about seven marijuana blunts daily with his

       friends.” (Appellant’s App. Conf. Vol. II, p. 228). In 2015, Walker “started

       using spice” and he admitted to using about “1/2 ounce daily.” (Appellant’s

       App. Conf. Vol. II, p. 228). Walker’s drug abuse, as well as his lengthy

       criminal history, does not portray Walker in positive light or show substantial

       virtuous traits or persistent examples of good character to overcome the trial

       court’s judgment. In light of the foregoing, we decline to find that Walker’s




       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 13 of 14
       aggregate sentence of sixty-four years is inappropriate in light of the nature of

       the offenses and his character.


                                             CONCLUSION
[27]   In sum, we conclude that the State did not commit prosecutorial misconduct

       during closing arguments, and that Walker’s sentence is not inappropriate in

       light of the nature of the offenses and his character.


[28]   Affirmed.


[29]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1712-CR-2901 | July 26, 2018   Page 14 of 14
