MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                        Jul 16 2020, 10:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald J. Frew                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Megan M. Smith
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Coreion Tae D. Gentry-Shelton,                            July 16, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2940
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause Nos.
                                                          02D05-1905-F3-29
                                                          02D04-1805-F6-576



Rucker, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020                    Page 1 of 14
                                             Case Summary
[1]   After a trial by jury Coreion Tae D. Gentry-Shelton was convicted of robbery
                                                                                                         1
      and criminal confinement and sentenced to a total term of fourteen years. He

      now appeals raising two issues which we rephrase as: (1) did the trial court

      abuse its discretion by denying a defense motion for mistrial based on alleged

      prosecutorial misconduct; and (2) is Gentry-Shelton’s sentence inappropriate in

      light of the nature of the offense and the character of the offender. We affirm.


                                Facts and Procedural History
[2]   On March 19, 2019, Cheyenne Verschure was alone at the home of her

      boyfriend, Alejandro Grajales, who was away at work. Sometime in the early

      afternoon hours she heard a knock at the door. When Verschure opened the

      door a person whom she did not know but would later identify from a photo

      array and at trial as Gentry-Shelton asked for “Rondo” and said he had come to

      “collect his effing money.” Tr. Vol. 2 p. 102. Verschure told Gentry-Shelton

      that no one by that name lived there. Gentry-Shelton pushed open the door,

      put a gun to Verschure’s head, and instructed her to move back into the house.




      1
       Under a separate cause number Gentry-Shelton was also found to have violated probation. Accordingly, he
      was sentenced to an executed term to be served consecutive to the sentence imposed in this case. The
      petition for revocation was based in part on the convictions that are the subject of this appeal. Thereafter
      Gentry-Shelton filed his Notice of Appeal in both cases together with a Petition to Consolidate Appeals.
      This Court issued an Order granting the petition. See Appellant’s App. Vol. 2 p. 224. However, in this
      appeal Gentry-Shelton has raised no claim related to his probation revocation.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020                   Page 2 of 14
      Verschure went into the living room and sat on the couch while Gentry-Shelton

      held the gun to her head.


[3]   Three other men rushed into the home. Crying and hysterical Verschure

      continued to complain that no one by the name Rondo lived there. Gentry-

      Shelton repeatedly instructed her to shut up and stop talking or he was going to

      shoot her. While Gentry-Shelton held the gun on Verschure the other men

      ransacked the house. Among the items taken were Verschure’s cell phone, a

      television set, and some game consoles. Verschure estimated that the intruders

      were in the house between 15 and 20 minutes.


[4]   The home was equipped with six video surveillance cameras that were designed

      to send an alert to Grajales’ cellphone whenever motion was detected.

      However, during the intrusion Grajales was working construction at a location

      that did not have cellphone service and thus he was not able to see what

      transpired in real time. Nonetheless, even though one of the intruders ripped

      one of the cameras off the wall, the cameras still recorded the images of all four

      men.


[5]   Once the men left the house Verschure waited several minutes to ensure they

      were not coming back. She then ran to a neighbor’s home and dialed 911.

      Officers of the Fort Wayne Police Department arrived a few minutes later.

      After Grajales arrived home he spoke with police and turned over his video

      system to investigating officers.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 3 of 14
[6]   On May 2, 2019 the State charged then nineteen-year-old Gentry-Shelton with
                               2                                                         3
      Count I Robbery as a Level 3 felony and Count II Criminal Confinement as a

      Level 3 felony. At trial several of the videos recovered from the home were

      introduced into evidence without objection. At least one of the videos – State’s

      Exhibit 3 – depicted all four men, one of whom was sitting on a couch pointing

      a handgun at Verschure’s head.


[7]   During the course of the investigation Christopher Hawthorne, a Detective with

      the Fort Wayne Police Department was asked to review Exhibit 3 to see if he

      could identify any of the intruders. Detective Hawthorne testified that he was

      able to identify each of the individuals and that he recognized them from

      “personal experience.” Tr. Vol. 2 p. 177. After Detective Hawthorne testified

      that he “had prior experiences with each individual that was involved,” the

      State asked, “More than once?” Id. at 177-78. Detective Hawthorne

      responded, “Yes, multiple.” Id. at 178. The State then asked “[h]ow many

      times do you think you’ve met him in your life?” Id. At that point Gentry-

      Shelton interjected, and the following exchange occurred:


                 [Defense Counsel]: I’m gonna object to this line of questioning.
                 He’s established that he’s met him a couple of times.


                 [State]: Considering that –




      2
          Ind. Code § 35-42-5-1 (2017).
      3
          Ind. Code § 35-42-3-3(b)(2)(A) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 4 of 14
              [Defense Counsel]: Asked and answered.


              [State]: Your Honor . . . If I might respond briefly?


              THE COURT: Yes.


              [State]: Considering that eyewitness identification is often
              attacked, and I think in this case there’s been attempts at that, the
              idea that he has had more experience than one meeting with the
              Defendant is certainly valid information for the jury to determine
              whether or not this person has the grounds to identify an
              individual or not.


              [Defense Counsel]: Your Honor, he’s already testified to that.


              THE COURT: Sustained.


      Id. at 178-79.


[8]   When the State began to argue in rebuttal the trial court directed the parties to

      approach the bench and held a side bar conference. During the course of which

      Defense Counsel reiterated his objection and declared “I’d like that testimony

      stricken at worst and mistrial [sic] at best. I think this is coming very close to

      tainting my client.” Id. at 180. The trial court again sustained the “asked and

      answered” objection but denied both the motion to strike and the motion for

      mistrial. Id. at 181. At the close of trial, the jury returned a verdict of guilty on

      both counts.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 5 of 14
[9]    A combined sentencing and probation revocation hearing was held November

       15, 2019. The trial court entered judgment of conviction on Count I Robbery

       and Count II Criminal Confinement. Citing aggravating factors including

       Gentry-Shelton’s criminal history the trial court imposed concurrent fourteen-

       year sentences on both counts. The trial court ordered the sentences to run

       consecutively to a two-year sentence imposed for the probation violation, all to

       be served at the Indiana Department of Correction. The trial court also ordered

       restitution in the amount of $3,100.00. This appeal followed. Additional facts

       are set forth below.


                                                 Discussion
                                         I. Motion for Mistrial
[10]   Gentry-Shelton contends the trial court erred by denying his motion for mistrial

       based on alleged prosecutorial misconduct. When faced with a circumstance

       that a defendant believes might warrant a mistrial, generally the correct

       procedure is to request an admonishment. Isom v. State, 31 N.E.3d 469, 482

       (Ind. 2015). If counsel is unsatisfied with the admonishment or it is obvious

       that the admonishment will not be sufficient to cure the error, then counsel may

       move for mistrial. Id. A “failure to request an admonishment or move for a

       mistrial results in waiver of the issue.” Id. (emphasis in original). In essence

       “waiver occurs where there was neither a request for admonishment nor a

       motion for mistrial.” Id. (emphasis in original). Here, whether Gentry-

       Shelton’s motion to strike is tantamount to a request for admonishment is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 6 of 14
       debatable. In any event, because Gentry-Shelton sought a mistrial appellate

       review of his claim has not been waived.


[11]   A mistrial is an extreme remedy warranted only when no other curative

       measure will rectify the situation. Donnegan v. State, 809 N.E.2d 966, 972 (Ind.

       Ct. App. 2004), trans. denied. The grant of a mistrial is a determination within

       the trial court’s discretion, and we will reverse its decision only for an abuse of

       that discretion. Id. We give great deference to the trial court’s decision, as it is

       in the best position to gauge the circumstances and the probable impact on the

       jury. Id.


[12]   Further, appellate review of a claim of prosecutorial misconduct is a two-step

       process. First, we consider whether the prosecutor engaged in misconduct.

       Hand v. State, 863 N.E.2d 386, 393 (Ind. Ct. App. 2007). If so, we then consider

       whether the misconduct placed the defendant in a position of grave peril to

       which he should not have been subjected. Id. at 394. The gravity of peril is

       measured by the probable persuasive effect of the misconduct on the jury’s

       verdict rather than the degree of impropriety of the conduct. Cooper v. State, 854

       N.E.2d 831, 835 (Ind. 2006).


[13]   According to Gentry-Shelton “[t]he questions from the Prosecutor regarding

       prior contact with the Defendant by the Fort Wayne Police Officer justified

       Defendant’s motion for mistrial.” Appellant’s Br. p. 16. He continues, “[t]he

       Prosecutor’s remarks amounted to an impermissible effort to create the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 7 of 14
       perception with the jury that the Appellant had had multiple run ins and/or

       arrests with the Fort Wayne Police Department.” Id.


[14]   Although not making the express claim, Gentry-Shelton essentially argues that

       the prosecutor employed an evidentiary harpoon. An evidentiary harpoon

       occurs when the prosecution places inadmissible evidence before the jury for

       the deliberate purpose of prejudicing the jurors against the defendant and his

       defense. Evans v. State, 643 N.E.2d 877, 879 (Ind. 1994). In certain

       circumstances the injection of an evidentiary harpoon may constitute

       prosecutorial misconduct requiring a mistrial. Roberts v. State, 712 N.E.2d 23,

       34 (Ind. Ct. App. 1999) (citing Jewell v. State, 672 N.E.2d 417, 423 (Ind. Ct.

       App. 1996), trans. denied), trans denied.


[15]   It is certainly the case that the admission of evidence of prior arrests and/or

       convictions is extremely prejudicial and will not be allowed unless a strong

       showing of probative value can be made. Mote v. State, 775 N.E.2d 687, 689

       (Ind. Ct. App. 2002)(citing Ind. Evidence Rule 404(b)), trans. denied; Henson v.

       State, 514 N.E.2d 1064, 1066 (Ind. 1987). Indeed, “[e]vidence of other crimes

       and bad acts is inherently prejudicial. There is always the fear that a jury will

       convict the defendant solely because he is a bad actor. That is why we go to

       such lengths to prevent such evidence coming before the jury.” Perez v. State,

       728 N.E.2d 234, 238 (Ind. Ct. App. 2000) (Kirsch, J., dissenting) (agreeing to

       the existence of an evidentiary harpoon where police officer witness offered

       inadmissible evidence regarding prior convictions; but disagreeing any error

       was harmless), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 8 of 14
[16]   Here, the record shows that the Detective’s testimony concerning multiple

       contacts with Gentry-Shelton did not inform the jury of any specific incident or

       prior misconduct involving Gentry-Shelton. In fact, objecting to the State’s line

       of questioning Gentry-Shelton declared “I think this is coming very close to

       tainting my client.” Tr. Vol. 2 p. 180 (emphasis added). The trial court

       apparently agreed it came close but did not cross the line. It noted for example

       that the prosecutor had “gotten [the Detective] to [sic] he knows who these

       people are, that’s not a problem, but I think the issue is getting into more of the

       prior involvements, that was the concern I’ve sustained [the Defense] objection

       on.” Id. at 181. The trial court acted well within its discretion in so concluding.

       See Tompkins v. State, 669 N.E.2d 394, 399 (Ind. 1996) (recognizing that the trial

       court could have determined that a witness’s statement did not clearly inform

       the jury that the defendant had a criminal history); see also Clifton v. State, 499

       N.E.2d 256, 258 (Ind. 1986) (police officer testimony referring to an earlier

       investigation did “not refer to [defendant] as the subject of a criminal

       investigation or give any indication of criminal activity on his part”).


[17]   From the officer’s testimony, the jury could only infer that Gentry-Shelton had

       some sort of contact with law enforcement in the past. This was not

       impermissible. We thus cannot conclude that the prosecutor engaged in




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 9 of 14
       misconduct and therefore we do not consider whether defendant was placed in
                                                                                  4
       a position of grave peril. See Hand, 863 N.E.2d at 394.


                                  II. Appropriateness of Sentence
[18]   Gentry-Shelton seeks to reduce the sentence imposed for his convictions on

       Count I and Count II pursuant to Indiana Appellate Rule 7(B) which provides

       that this 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.”


[19]   We independently examine the nature of Gentry-Shelton’s offense and his

       character under Rule 7(B) with substantial deference to the trial court’s

       sentence. See Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). “In conducting

       our review, we do not look to see whether defendant’s sentence is appropriate

       or if another sentence might be more appropriate; rather, the test is whether the

       sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013) (emphasis in original), trans. denied. And our Supreme Court has

       declared “whether we regard a sentence as inappropriate at the end of the day




       4
         In this appeal Gentry-Shelton also complains the prosecutor engaged in further misconduct by remarking in
       front of the jury that “eyewitness identification is often attacked and [ I ] think in this case there has been
       attempts at that.” Appellant’s Br. p. 19 (quoting Tr. Vol. 2 p. 179). According to Gentry-Shelton the
       Prosecutor “is making an effort to characterize Defense counsel’s efforts as ‘attack’ rather than responsible
       ethical cross examination which any defendant at jury is entitled to.” Id. at 19-20. Gentry-Shelton did not
       object to this statement at trial nor seek an admonishment or request a mistrial. He is prohibited from raising
       this claim for the first time on appeal. This issue is waived for review. See Isom, 31 N.E.3d at 482.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020                    Page 10 of 14
       turns on our sense of culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role

       of appellate review should be to attempt to leaven the outliers, “not to achieve a

       perceived ‘correct’ result in each case.” Id. at 1225. The burden is on the

       defendant to persuade us that the sentence imposed by the trial court is

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


                                           A. Nature of the Offense

[20]   We first observe “the advisory sentence is the starting point the legislature has

       selected as an appropriate sentence for the crime committed.” Kunberger v.

       State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory sentence for

       Gentry-Shelton’s two Level 3 felony convictions is nine years with a range of

       between three years and sixteen years. Ind. Code § 35-50-2-5 (2014). Gentry-

       Shelton received concurrent sentences of fourteen years – above the advisory

       sentence but less than the maximum permissible sentence.


[21]   The nature of the offense refers to a defendant’s actions in comparison with the

       elements of the offense. Cardwell, 895 N.E.2d at 1224. When determining the

       appropriateness of a sentence that deviates from an advisory sentence, we

       consider “whether there is anything more or less egregious about the offense

       committed by the defendant that makes it different from the ‘typical’ offense

       accounted for by the legislature when it set the advisory sentence.” Holloway v.

       State, 950 N.E.2d 803, 806-07 (Ind. Ct. App. 2011).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 11 of 14
[22]   In this appeal other than acknowledging that the offenses for which he was

       convicted “are serious,” Appellant’s Br. p. 21, Gentry-Shelton tells us nothing

       about why the nature of the offenses justify a revision of his sentence. Instead

       he asserts “that a fair appraisal of the nature of the offense in question, as well

       as the consideration of the totality of the circumstances would have resulted in

       a different sentence imposed.” Id. at 22.


[23]   The record shows Gentry-Shelton was charged with robbery and criminal

       confinement as Level 3 felonies because his acts were “committed while armed

       with a deadly weapon.” Appellant’s App. Vol. 2 pp. 90, 92; see also Ind. Code

       §§ 35-42-5-1 (robbery), 35-42-3-3(b)(3)(A) (criminal confinement). But he was

       not just “armed with a deadly weapon.” Instead, Gentry-Shelton held that

       weapon to the head of a crying and hysterical young woman threatening to

       shoot her if she did not shut up. All the while his cohorts were ransacking the

       home and destroying property. This conduct was egregious and went beyond

       “the ‘typical’ offenses accounted for by the legislature when it set the advisory

       sentence.” Holloway, 950 N.E.2d at 807. The nature of the offense does not

       justify a revision of the sentence.


                                        B. Character of the Offender

[24]   The “character of the offender” standard in Appellate Rule 7(B) refers to the

       general sentencing considerations and the relevant aggravating and mitigating

       circumstances. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003),

       trans. denied. “A defendant’s life and conduct are illustrative of his or her

       character.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 12 of 14
       denied. When considering the character of the offender one relevant

       consideration is the defendant’s criminal history. Rutherford v. State, 866 N.E.2d

       867, 874 (Ind. Ct. App. 2007). “The significance of a criminal history . . . varies

       based on the gravity, nature, and number of prior offenses in relation to the

       current offense.” Id. And we have held that “[e]ven a minor criminal record

       reflects poorly on a defendant’s character.” Reis v. State, 88 N.E.3d 1099, 1105

       (Ind. Ct. App. 2017).


[25]   As with the nature of the offense prong of Rule 7(B), Gentry-Shelton likewise

       tells us nothing about his character or why it justifies revision of his sentence.

       We repeat for emphasis that the defendant bears the burden of persuading this

       Court that his or her sentence is inappropriate. Childress, 848 N.E.2d at 1080.


[26]   At the sentencing hearing the court found as aggravating circumstances Gentry-

       Shelton’s juvenile and adult record, which included failed attempts at

       rehabilitation, and the fact that he was on probation at the time of these

       offenses. The trial court elaborated:


               Your criminal record covers [a] period of time from 2011 to
               2019, with informal adjustments through the juvenile court
               system, with administrative probation, two (2) adjudications as
               juvenile with operational supervision, the learning academy, the
               detention alternative program with the anklet, and drug
               treatment. As an adult you have one misdemeanor and three (3)
               prior felony convictions with short jail sentences, longer jail
               sentences, probation, treatment attempts, time in the Department
               of Correction, and I note specifically an escalation of your
               criminal offenses. I find that there are no mitigating
               circumstances.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 13 of 14
       Tr. Vol. 3 pp. 9-10.


[27]   Although only nineteen years of age at the time of the current offenses, Gentry-

       Shelton had accumulated two Juvenile adjudications, one of which would have

       been a felony if committed as an adult, one misdemeanor conviction and three

       felony convictions. See Appellant’s App. Vol. 2 pp. 174-76. Continuing to

       commit crimes after frequent contacts with the judicial system is a poor

       reflection on one’s character. Rutherford, 866 N.E.2d at 874; see also Conner v.

       State, 58 N.E.3d 215, 221 (Ind. Ct. App. 2016) (continued crimes indicate a

       failure to take full responsibility for one’s actions). Gentry-Shelton has not

       persuaded us that the sentence imposed by the trial court is inappropriate in

       light of his character.


                                                 Conclusion
[28]   We affirm the judgment of the trial court.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2940 | July 16, 2020   Page 14 of 14
