MEMORANDUM DECISION                                                                    FILED
                                                                                 Mar 17 2016, 6:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  CLERK
                                                                                 Indiana Supreme Court
regarded as precedent or cited before any                                           Court of Appeals
                                                                                      and Tax Court
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
Yvette M. LaPlante                                       Gregory F. Zoeller
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana                                      Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Myles K. Martin, Jr.,                                    March 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1507-CR-966
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82D02-1404-FB-418



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016          Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Myles K. Martin (Martin), appeals his conviction for

      carjacking, a Class B felony, Ind. Code § 35-42-5-2(1) (2014); resisting law

      enforcement, a Class D felony, I.C. § 35-44-3-3(a)(1); resisting law enforcement,

      a Class A misdemeanor, I.C. § 35-44-3-3(a)(2); and his adjudication as a

      habitual offender, I.C. § 35-50-2-8.


[2]   We affirm.


                                                   ISSUES

[3]   Martin raises two issues on appeal, which we restate as follows:


      (1)     Whether the trial court abused its discretion when it admitted certain out-

      of-state documents; and


      (2)     Whether the State committed prosecutorial misconduct amounting to

      fundamental error.


                           FACTS AND PROCEDURAL HISTORY

[4]   On March 29, 2014, at approximately 8.00 a.m., Pennie Hart (Hart), a

      hairdresser from Evansville, Indiana, drove her silver Lexus SUV to work.

      When she parked the vehicle, a man, later identified as Martin, opened her

      driver’s door, pointed an object that appeared to be a handgun at her, and

      ordered Hart to exit the vehicle. Afraid that she would get shot, Hart complied




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      with the order. Martin entered the vehicle and drove away. Hart immediately

      called the police.


[5]   Shortly thereafter, police officers spotted the SUV outside a nearby apartment

      complex. One of the officers approached the SUV, identified himself as a

      police officer, and commanded Martin to show his hands and exit the vehicle.

      Martin refused, backed the SUV up into a parked car, and drove away. The

      officers shot the tires of the vehicle. After a brief chase, Martin abandoned the

      SUV in a muddy field, leaving his driver’s license in the process, and continued

      to flee on foot. He was apprehended before he was able to cross the field.

      During their investigation, law enforcement recovered a BB gun, which was

      consistent with Hart’s description of the weapon used by Martin, from the

      SUV.


[6]   On April 1, 2014, the State filed an Information charging Martin with Count I,

      armed robbery, a Class B felony; Count II, carjacking, a Class B felony; Count

      III, felon carrying a handgun, a Class C felony; Count IV, resisting law

      enforcement, a Class D felony; and Count V, resisting law enforcement, a Class

      A misdemeanor. On April 2, 2014, the State alleged Martin to be a habitual

      offender. A bifurcated jury trial was commenced on June 8, 2015. During the

      guilt phase of the trial, the jury found Martin guilty of robbery, carjacking, and

      two Counts of resisting law enforcement. During the habitual offender phase of

      the trial, the State alleged that Martin had previously been convicted of two

      unrelated felonies. Martin’s first felony was an unlawful taking of a 1994

      Chrysler automobile on or about June 10 or 11, 1996, in Daviess County,

      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 3 of 13
      Kentucky. Martin was convicted for theft on January 31, 1997, under Cause

      No. 96-CR-214. His second felony was a car chase on July 2, 2012, in Daviess

      County, Kentucky. Martin was convicted for fleeing or evading police in the

      first degree on January 18, 2013, under Cause No. 12-CR-514.


[7]   To establish Martin’s conviction in Cause No. 96-CR-214, the State offered

      certified copies of the indictment, motion to enter guilty plea, the judgment and

      sentencing order. Each document was stamped with a certification stating “I

      certify that the foregoing is a full and correct copy as appears in my office, this

      4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk Daviess Circuit Court, by

      J.B. D.C.” (Ex. 1-3); (Appellant’s App. pp. 149-156) (handwritten part

      italicized). The judgment and sentencing order stated Martin’s date of birth and

      his social security number. To prove Martin’s conviction in Cause No. 12-CR-

      514, the State offered certified copies of the indictment, motion to enter guilty

      plea, and the judgment and sentencing order. Each document was stamped

      with a certification stating, “I certify that the foregoing is a full and correct copy

      as appears in my office, this 4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk

      Daviess Circuit Court, by J.B. D.C.” (Ex. 4-6); (Appellant’s App. pp. 163-172)

      (handwritten part italicized). The judgment and sentencing order stated

      Martin’s date of birth, and the indictment stated his social security number.

      Martin objected to the admission of Exhibits 1 through 6 claiming that they did

      not comply with Ind. Evidence Rule 902, but the trial court overruled his

      objections.




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[8]   During closing arguments, defense counsel acknowledged that the evidence

      admitted by the trial court established Martin’s convictions for two prior

      unrelated felonies. Nonetheless, defense counsel urged the jury to decline

      finding Martin a habitual offender. Defense counsel compared Martin to a

      hypothetical person alleged to be a habitual smoker:


              If you smoke, if you are a habitual smoker, you probably smoke
              every day. It’s not where you smoke when you’re 19 years old,
              maybe have a cigar when you’re 19 years old and then you don’t
              have another one until you are 35. Well guess what? That is
              kind of what we have here. [Martin] was 19 when that first
              conviction was entered back in 1997. Nineteen (19) years old.
              Sixteen (16) years pass and he is convicted in 2013. Does that
              make one habitually in trouble? Habitually in trouble such as to
              elevate his sentence before you.


      (Transcript p. 156).


[9]   In rebuttal, the prosecutor argued:

              [Defense counsel] wants you to be swayed by your emotions, he
              wants you to um I guess take pity on … Martin because he did
              one (1) crime once when he was 19 years old and then didn’t do
              anything else, he was a good boy until 2012. Not exactly the
              case. He says there were no other convictions in between there.
              He doesn’t have any documents to show that there weren’t. He
              committed a crime in [1996], he committed one (1) in 2012 and
              then again in 2014. He wants you to be swayed by your
              emotions. The State Legislature has said you commit crimes in
              our State or anywhere else you are deserving of more
              punishment. We can’t let you run around committing crimes,
              hurting people, some of those crimes where (sic) the same. His
              first one was [t]heft, his next one was [t]heft, [f]leeing from the

      Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 5 of 13
               police and now he has done it again. And to have it is behavior
               it is what he does. [The] State Legislature has determined that he
               is a person that needs to be considered [a] Habitual Offender and
               that is why they make the law the way it is. We only have to
               prove two (2) convictions, we picked two (2), we’ve proven to
               you those beyond a reasonable doubt. Find him guilty of being
               [a] Habitual Offender.


       (Tr. pp. 158-59). Martin did not object to the State’s rebuttal comments. At the

       conclusion of the jury trial on June 9, 2015, the jury found Martin to be a

       habitual offender. On July 15, 2015, the trial court held a sentencing hearing,

       declined to enter judgment for robbery due to double jeopardy concerns, and

       sentenced Martin to an aggregate term of 42 years, which included an

       enhancement of 30 years due to Martin’s habitual offender status, to be

       executed at the Department of Correction.


[10]   Martin now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                         I. Authenticity of Documents

[11]   Martin argues that the copies of documents showing his prior convictions in

       Kentucky were not properly authenticated, and hence the trial court erred in

       admitting them. The determination of whether evidence has been

       authenticated is within the discretion of the trial court. In re B.J.R., 984 N.E.2d

       687, 694 (Ind. Ct. App. 2013). We will reverse the trial court’s ruling only for

       an abuse of discretion. Id. An abuse of discretion occurs when the decision is




       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 6 of 13
       clearly erroneous and against the logic and effect of the facts and circumstances

       before the court. Id.


[12]   In Indiana, the determination of whether an order of conviction and sentencing

       from another state is authenticated and may be admitted into evidence is

       governed by the Rules of Evidence. Id. at 694-95; see Ind. Trial Rule 44. Under

       the Rules of Evidence, the requirement of authentication or identification as a

       condition precedent to admissibility is satisfied by evidence sufficient to support

       a finding that the matter in question is what its proponent claims. In re B.J.R.,

       984 N.E.2d at 695; see Evid. R. 901(a). Certain documents, however, are self-

       authenticating and no extrinsic evidence is necessary for their admission. T.R.

       902. These documents include certified copies of public records pursuant to

       T.R. 902(4). A certification, which states that it is the official original record, or

       a true and accurate copy thereof, by a public officer from the specific

       jurisdiction where the record is kept is sufficient to authenticate the record, and

       there is no mandate that the certification take a particular form. In re B.J.R.,

       984 N.E.2d at 695. The certifying officer’s initials are sufficient attestation.

       Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplemented on

       reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000). Moreover, certification under seal

       is required only when proof of the record’s possession is at issue. Id. Finally,

       there is no requirement of extrinsic proof or judicial certification that the

       certifying public official is the record’s custodian. Id.


[13]   Here, our review of the record indicates that the trial court was within its

       discretion in admitting the evidence. Exhibits 1 through 6 were copies of court

       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 7 of 13
       documents showing Martin’s prior out-of-state convictions and fell within the

       self-authenticating category of the trial rules and do not require proof by

       extrinsic evidence. A proper public officer charged to keep these records was

       the circuit court clerk. See Mercer v. Com., 330 S.W.2d 734, 737 (Ky. Ct. App.

       1959). A deputy clerk was authorized to authenticate court records. See Lucas

       v. Comm., 134 S.W. 456, 457 (Ky. Ct. App. 1911). Further, each Exhibit was

       stamped with a certification statement that left blank space for a date and a

       signature. The signature line ended with “D.C.,” which we find to stand for

       Deputy Clerk. (Ex. 1-6); see, e.g., Stewart v. State, 688 N.E.2d 1254, 1259 (Ind.

       1997) (a record of prior conviction from Kenton County, Kentucky, was

       certified by a deputy clerk of the circuit court with “Marry Ann Woltenberg,

       Clerk. By Judy Stall, D.C.,” where “D.C.” was inferred to be Deputy Clerk).

       Finally, the deputy clerk dated and initialed each certification statement

       attesting each copy to be true and correct. Because there is no particular form

       required for the attestations, we find that these certification statements made by

       the custodian of the court records in Daviess County, Kentucky, satisfy our

       rules of evidence. As such, we conclude that the trial court was within its

       discretion to find Exhibits 1 through 6 properly authenticated.


                                           II. Prosecutorial Remarks

[14]   Martin alleges that the prosecutor committed misconduct during her rebuttal

       argument.

               In reviewing a claim of prosecutorial misconduct properly raised
               in the trial court, we determine (1) whether misconduct occurred,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 8 of 13
                 and if so, (2) whether the misconduct, under all of the
                 circumstances, placed the defendant in a position of grave peril to
                 which he or she would not have been subjected otherwise. A
                 prosecutor has the duty to present a persuasive final argument
                 and thus placing a defendant in grave peril, by itself, is not
                 misconduct. Whether a prosecutor’s argument constitutes
                 misconduct is measured by reference to case law and the Rules of
                 Professional Conduct. The gravity of peril is measured by
                 the probable persuasive effect of the misconduct on the jury’s
                 decision rather than the degree of impropriety of the conduct. To
                 preserve a claim of prosecutorial misconduct, the defendant
                 must—at the time the alleged misconduct occurs—request an
                 admonishment to the jury, and if further relief is desired, move
                 for a mistrial.


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g

       denied.


[15]   Martin neither raised any objection to, nor sought relief from, the prosecutor’s

       remark during trial. Therefore, now, to avoid procedural default, the defendant

       must establish not only the grounds for prosecutorial misconduct but must also

       establish that the prosecutorial misconduct constituted fundamental error. Id.

       at 667-68. Fundamental error is an extremely narrow exception to the waiver

       rule where the defendant faces the heavy burden of showing that the alleged

       errors are so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Id. at 668. In other words, to establish fundamental error, the

       defendant must show that, under the circumstances, the trial court erred in

       not sua sponte raising the issue because alleged errors (a) constitute clearly

       blatant violations of basic and elementary principles of due process and


       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 9 of 13
       (b) present an undeniable and substantial potential for harm. Id. The element

       of such harm is not established by the fact of ultimate conviction but rather

       depends upon whether the defendant’s right to a fair trial was detrimentally

       affected by the denial of procedural opportunities for the ascertainment of truth

       to which he otherwise would have been entitled. Id.


               In evaluating the issue of fundamental error, our task [then] is to
               look at the alleged misconduct in the context of all that happened
               and all relevant information given to the jury—including
               evidence admitted at trial, closing argument, and jury
               instructions—to determine whether the misconduct had such an
               undeniable and substantial effect on the jury’s decision that a fair trial
               was impossible.


       Id. (emphasis in original).


[16]   Here, pointing to the prosecutor’s rebuttal statement that it was “not exactly the

       case” that Martin had lived a law-abiding life between 1997 and 2012 and that

       the State had “picked two” prior convictions, Martin maintains that the

       prosecutor in essence suggested to the jury that Martin did not live a law-

       abiding life until 2012, improperly used facts not in evidence, and improperly

       shifted the burden of proof to Martin to show that that he had no convictions

       between 1997 and 2012. (Appellant’s Br. p. 8).


[17]   Our review of the record indicates that the prosecutor’s remark in response to

       defense counsel’s closing argument, when placed within the context of both

       arguments, was not an impermissible inference. Defense counsel compared

       Martin to someone alleged to be a habitual smoker, who smokes every day. He

       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 10 of 13
       continued his illustration and suggested that smoking three times in many years

       does not make one a habitual smoker. Defense counsel then asserted that,

       likewise, Martin was not “habitually in trouble such as to elevate his sentence

       before [the jury]” and Martin’s “three incidences of criminal activity” in 18

       years did not make him a habitual offender. (Tr. pp. 156-57). Martin was not

       merely stating that the State had not proven additional unrelated felonies;

       rather, he was suggesting that he had not been involved in any criminal conduct

       during those years. The prosecutor’s response mainly amounted to pointing to

       the speculative nature of Martin’s comparison and resulting conclusion. Under

       these circumstances, where defense counsel introduced a hypothetical example,

       compared it to the defendant’s situation, made an inference, and then was

       rebutted with the evidence of his prior convictions, we fail to see the alleged

       prosecutorial wrong, use of facts outside of the evidence, and shift of the burden

       of proof.


[18]   Furthermore, even if the prosecutor’s response had a negative effect on the jury,

       such effect was de minimus because the jury had received proper preliminary and

       final instructions. See, e.g., Neville v. State, 976 N.E.2d 1252, 1263-65 (Ind. Ct.

       App. 2012) (the defendant was not placed in grave peril by prosecutor’s

       statement because the trial court’s preliminary and final jury instructions

       diminished any persuasive effect the prosecutor’s comments might have had on

       the jury’s decision if left unanswered), trans. denied; Stephenson v. State, 742

       N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial impropriety

       which may have occurred was de minimus or otherwise overcome by the trial


       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 11 of 13
       court’s admonishments and instructions, we are unable to conclude that

       Defendant was placed in grave peril.”). In its preliminary instructions, the trial

       court informed the jury that it must base its decision only on the evidence

       presented during the trial and trial court’s instructions on the law. In Court’s

       Preliminary Instruction No. 13, the trial court clearly stated:

               When the evidence is completed, the attorneys may make final
               arguments. The final arguments are not evidence. The attorneys
               are permitted to characterize the evidence, discuss the law[,] and
               attempt to persuade you to a particular verdict. You may accept
               or reject those arguments as you see fit.


       (Appellant’s App. p. 55).


[19]   During the habitual offender phase of the trial, the State introduced the

       evidence of Martin’s prior felony convictions in Kentucky. In the final

       instructions, the trial court incorporated all previous instructions and thereby

       reiterated that the jury must consider only the evidence admitted by the trial

       court in the jury’s presence and disregard all other information from all other

       sources. Under these circumstances, we find that the jury instructions were

       sufficient to overcome any potential harm to Martin from the prosecutor’s

       remark. We conclude that the prosecutor’s statement made in response to

       defense counsel’s inference of Martin’s good character did not undeniably and

       substantially affect the jury’s decision and make a fair trial impossible.

       Accordingly, no fundamental error occurred.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016   Page 12 of 13
                                               CONCLUSION

[20]   Based on the foregoing, we hold that the trial court did not abuse its discretion

       when it admitted properly authenticated records of Martin’s prior convictions in

       Kentucky, and the prosecutor did not commit misconduct amounting to

       fundamental error.


[21]   Affirmed.


[22]   Najam, J. and May, J. concur




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