MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    FILED
this Memorandum Decision shall not be                          Aug 25 2016, 8:49 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jack Quirk                                               Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Verlin Martz,                                    August 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1601-CR-121
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C03-1401-MR-1



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 1 of 17
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, William V. Martz (Martz), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-1-1(1) (2013).


[2]   We affirm.


                                                    ISSUES

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

      (1) Whether Martz received ineffective assistance of trial counsel based on his

      attorney’s failure to object to certain hearsay testimony; and

      (2) Whether the State engaged in prosecutorial misconduct.


                           FACTS AND PROCEDURAL HISTORY

[4]   Mark Gilland (Gilland) owned a parcel of property located at 503 East Race

      Street in Eaton, Delaware County, Indiana (Property). Although Gilland did

      not personally live on the Property, he kept a substantial number of his

      possessions in a pole barn on the Property. The Property also contained several

      other outbuildings and a small cabin in which his nephew, Greg Gilland (Greg),

      resided. Gilland was frequently present at the Property to fish in the river, cut

      wood, and work on other projects.


[5]   Gilland and Martz had been friends for most of their lives. At some point in

      2012, Martz lost his housing. As a result, Gilland gave Martz a pull-behind

      travel trailer—i.e., a camper, which he allowed Martz to park on the Property.

      In lieu of rent, Gilland asked Martz to help out with various chores around the


      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 2 of 17
      Property. Gilland provided Martz with heat by piping it in from the wood

      stove in the pole barn, as well as electricity.


[6]   In December of 2013, Martz had been living on the Property for approximately

      eighteen months, and his relationship with Gilland was deteriorating. Around

      this time, Gilland informed Martz that he needed to vacate the Property within

      thirty days. Martz, however, claimed that Gilland owed him $6,500 for some

      construction work he had purportedly done, and he refused to leave until he

      was paid. In approximately mid-December 2013, Martz informed his friend,

      Lester Bailey (Bailey), that Gilland had cut off the electricity to his camper.

      Martz also stated that he had found Gilland’s handgun. Martz announced that

      he was “going to kill that son of a bitch.” (Tr. p. 34). Bailey, who had known

      Gilland for twenty years and was the brother of Gilland’s fiancée, advised

      Martz “to leave it alone.” (Tr. p. 34). One week later, Martz was cutting wood

      with Bailey and was “[i]n an uproar” about the fact that Gilland wanted him off

      the Property. (Tr. p. 37). Again, Martz threatened that he “was going to kill

      [Gilland].” (Tr. p. 37). Bailey tried to convince Martz that “[h]e needed to

      make up with [Gilland]” because of their longstanding friendship, but Martz

      said he was “[n]ot doing it.” (Tr. p. 38). When Bailey stated that “they will

      just lock you up the rest of your life[,]” Martz responded that he would then

      “have a place to stay.” (Tr. p. 38).


[7]   By January of 2014, Gilland had repeatedly asked Martz to leave the Property,

      to no avail. Gilland had numerous conversations with his fiancée, Terri

      Ashcraft (Ashcraft), and several of his siblings about his arguments with Martz

      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 3 of 17
      and his futile attempts to evict him. Gilland’s sister, Sheryl Grant (Grant),

      invited Martz to relocate the camper onto her property. However, Grant and

      Martz subsequently had an argument about some repair work that Martz had

      previously done in Grant’s home, so Martz did not accept her offer. Gilland

      determined that he was going to remove Martz’ camper on Saturday, January

      11, 2014. During the week leading up to the eviction date, Gilland informed

      his brother, Michael Gilland (Michael); his sister, Valerie Dalton (Dalton); and

      Ashcraft of his intent to oust Martz. On the evening of January 10, 2014,

      Gilland reported to Ashcraft that Martz had threatened to shoot him if he

      forced Martz to move off the Property.


[8]   On January 11, 2014, between 10:30 a.m. and 11:00 a.m., Gilland departed the

      house he shared with Ashcraft, located just outside of Eaton. Gilland had

      informed Ashcraft before leaving that he was heading to the Property to evict

      Martz and that he planned to spend the rest of the day watching football with

      his family. Although Ashcraft did not know what time she could expect

      Gilland to return home, she counted on the fact that he always called to check

      in with her.


[9]   Later that day, at approximately 12:15 p.m., Stephanie Morrison (Morrison)

      was outside shoveling snow at her mother’s house, which is located across the

      street from Gilland’s Property. Morrison heard five gunshots ring out from the

      direction of the Property, and she “ducked” for cover because the shots were

      “very close.” (Tr. p. 92). Morrison did not see anyone else outside, but she

      determined that it was too dangerous to continue shoveling snow. After she

      Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 4 of 17
       stepped into her mother’s garage, Morrison heard a truck drive by, which

       sounded to her like Gilland’s truck. A short time later, between 12:20 and

       12:25 p.m., Jarret Upchurch (Upchurch), another Eaton resident and friend of

       Gilland, was returning to Eaton after making a trip to the scrapyard in Hartford

       City, Indiana. He observed Gilland’s distinctive white pickup truck—a late

       model, half-ton Chevrolet “with a white bow-tie headache rack covering the

       back window” and a missing tailgate—heading in the opposite direction, out of

       town. (Tr. p. 102). When Upchurch raised his hand to wave at Gilland, he

       clearly observed that Martz was driving Gilland’s truck, and there were no

       other passengers. Martz drove Gilland’s truck to Muncie, Indiana, and used

       cash to rent a motel room at the Red Carpet Inn. Martz also purchased food at

       Taco Bell and shampoo at Walmart.


[10]   By 6:30 p.m., Ashcraft had not heard from Gilland, and she grew concerned.

       Ashcraft checked with Gilland’s siblings, who reported that they had not seen

       Gilland at all that day. Based on the fact that Gilland had indicated that he was

       heading to the Property earlier that morning and had not been seen since,

       Ashcraft and Grant each drove by the Property at some point but did not see

       Gilland’s truck. Ashcraft also drove around town but did not see Gilland’s

       truck at any of the places she would expect to find him. Grant contacted their

       nephew, Greg, who lived in the cabin on the Property. Greg reported that he

       had been home since 12:30 p.m. and had not seen Gilland. Greg went out to

       Martz’ camper “and beat on the back of it to see if he had seen anything or to

       see if he was around.” (Tr. p. 144). Martz did not respond. Greg searched


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 5 of 17
       around the Property, with the exception of the pole barn, which was locked, but

       did not find Gilland.


[11]   Between 8:30 p.m. and 9:15 p.m., Ashcraft, Greg, and four of Gilland’s

       siblings—Michael, Dalton, Grant, and Doug Gilland (Doug)—convened at the

       Property. Doug observed that Martz’ camper had been padlocked from the

       outside. Doug managed to pry the padlock off and entered the camper, but he

       did not find anything noteworthy. Next, Doug forced his way into the locked

       pole barn and, by the light of his flashlight, found Gilland’s lifeless body lying

       in a pool of blood. Doug screamed out that Gilland was dead, and after

       Michael went into the barn to confirm that Gilland was not breathing, they

       notified law enforcement. Near Gilland’s body, officers recovered the .380

       caliber semi-automatic pistol that Gilland had inherited from his father. The

       magazine, which had the capacity to hold five cartridges, was empty. Five shell

       casings were found at the scene, as well as a spent bullet and another bullet

       fragment. Based on the fact that Gilland’s face was soaked with blood, along

       with his position in proximity to a large pool of blood, it appeared that Gilland

       had initially fallen face down on the concrete and that someone had rolled his

       body over. Gilland’s jacket pocket was turned inside out, and his keys were

       missing. Gilland’s wallet was found on the ground right next to him. Although

       it still contained his identification and other cards, the wallet did not have any

       cash, which was unusual for Gilland. Investigating officers also discovered that

       Gilland had a pocketknife in his front pocket and a large survival-type knife in

       his back pocket, which was still secured in its sheath.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 6 of 17
[12]   Based on the information provided to law enforcement by Ashcraft and

       Gilland’s siblings, Martz was immediately identified as a suspect. Officers

       throughout Delaware County were notified to be on the lookout for Martz and

       Gilland’s missing truck. At approximately 12:30 a.m. on January 12, 2014,

       Sergeant Jay Turner (Sergeant Turner) of the Muncie Police Department began

       searching hotels for Martz. At Sergeant Turner’s first stop, the Red Carpet Inn,

       he spotted a white pickup truck in the parking lot matching the description of

       Gilland’s vehicle. Sergeant Turner checked the license plate number and

       verified that the truck was indeed Gilland’s. The motel manager confirmed that

       Martz had checked into Room 129 at 1:15 p.m. the previous day. Thus,

       Sergeant Turner summoned other officers for backup, and they knocked on the

       door of Room 129. Martz answered and was immediately arrested. In Martz’

       motel room, Sergeant Walter Blackmer of the Delaware County Sheriff’s

       Department found Gilland’s truck key as well as a key to the pole barn. After

       taking Martz into custody, officers obtained a sample of his DNA.


[13]   On January 13, 2014, Dr. Paul Mellen (Dr. Mellen) conducted an autopsy on

       Gilland. Dr. Mellen concluded that the cause of Gilland’s death was “multiple

       gunshot wounds[,]” and the manner of his death was a homicide. (Tr. p. 301).

       Dr. Mellen elaborated that Gilland sustained a total of six gunshot wounds.

       Specifically, Gilland was shot in the top of his head and at close range on the

       right side of his forehead. Dr. Mellen opined that either one of these shots

       alone would have been fatal. Gilland also received a grazing gunshot wound to

       his neck, and he was shot through the forearm, in the torso, and in the leg.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 7 of 17
       Although there were six different gunshot wounds, Dr. Mellen testified that it

       was likely that the wound to the forearm and the torso were the result of the

       same bullet.


[14]   The .380 firearm found at the crime scene, which belonged to Gilland, as well

       as the casings and bullets recovered from both the floor of the pole barn and

       Gilland’s body during the autopsy, were submitted to the Indiana State Police

       Laboratory for testing. A forensic firearms examiner testified that the bullets

       and casings were fired from Gilland’s gun. In addition, a DNA analyst testified

       that Gilland’s DNA was found on the muzzle of the .380, and she found Martz’

       DNA on the gun’s slide, grip, safety mechanism, trigger and trigger guard, and

       magazine.


[15]   On January 17, 2014, the State filed an Information, charging Martz with one

       Count of murder, a felony, I.C. § 35-42-1-1(1) (2013). On November 16

       through 18, 2015, the trial court conducted a jury trial. At the close of the

       evidence, the jury returned a guilty verdict. On December 17, 2015, the trial

       court held a sentencing hearing and ordered Martz to serve sixty years in the

       Indiana Department of Correction.


[16]   Martz now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                      I. Ineffective Assistance of Counsel

[17]   Martz claims that he received ineffective assistance of counsel based on his

       attorney’s failure to object to multiple instances of hearsay in the testimony of

       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 8 of 17
       Ashcraft, Dalton, Grant, and Michael. 1 In order to establish a valid claim for

       ineffective assistance of counsel, the appellant “must demonstrate both that his

       counsel’s performance was deficient and that the [appellant] was prejudiced by

       the deficient performance.” Williams v. State, 983 N.E.2d 661, 665 (Ind. Ct.

       App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Failure

       to satisfy either prong will cause the claim to fail.” Id.


[18]   Counsel’s performance is deficient if it “fell below an objective standard of

       reasonableness based on prevailing professional norms.” Morgan v. State, 755

       N.E.2d 1070, 1072 (Ind. 2001). It is well established that counsel is to be

       afforded “‘considerable discretion in choosing strategy and tactics, and we will

       accord that decision deference. A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.’” Id. at 1073 (quoting Lambert v. State, 743

       N.E.2d 719, 730 (Ind. 2001)). For deficient performance to be found

       prejudicial, the appellant must show “that ‘there is a reasonable probability

       that, but for counsel’s unprofessional errors, the result of the proceeding would

       have been different.’” Id. at 1072-73 (quoting Strickland, 466 U.S. at 687). “[A]




       1
          We note that Martz has raised his claim of ineffective assistance of counsel on direct appeal even though
       “[a] postconviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim.’” Morgan
       v. State, 755 N.E.2d 1070, 1072 n.2 (Ind. 2001) (quoting Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998),
       cert. denied, 528 U.S. 861 (1999)). As our supreme court has stated, “raising claims of ineffective assistance of
       counsel on direct appeal precludes their review in subsequent post-conviction proceedings.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016               Page 9 of 17
       reasonable probability is a probability sufficient to undermine the confidence in

       the outcome.” Id. at 1073 (quoting Lambert, 743 N.E.2d at 730).


[19]   In this case, Martz contends that numerous hearsay statements were admitted

       into evidence without any objection from his attorney. “Hearsay” is defined as

       “a statement that: (1) is not made by the declarant while testifying at the trial or

       hearing; and (2) is offered in evidence to prove the truth of the matter asserted.”

       Ind. Evidence Rule 801(c). Unless one of the specifically delineated exceptions

       set forth in Evidence Rule 803 applies, hearsay is inadmissible. Evid. R. 802.

       “‘[T]o prevail on a claim of ineffective assistance due to the failure to object [to

       hearsay], the defendant must show an objection would have been sustained if

       made.’” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011).


[20]   Martz points to Ashcraft’s testimony, during which she discussed multiple

       conversations that she had with Gilland prior to his death regarding the specific

       nature of Gilland’s arguments with Martz, Martz’ demand for $6,500, and

       Gilland’s attempts to evict Martz from the Property. In particular, Ashcraft

       testified that on the night before his death, Gilland stated that Martz had

       threatened to shoot him if he evicted Martz. Similarly, Martz directs our

       attention to the testimony of Dalton, Grant, and Michael, who all repeated

       their conversations with Gilland about his plans to evict Martz from the

       Property. According to Martz, by failing to object to this hearsay, his attorney

       was ineffective. He further argues that his attorney’s deficient performance was

       prejudicial because if his attorney had objected,



       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 10 of 17
               the jury would not have known about the conflict between
               [Martz] and [Gilland]. The jury would not have known that
               [Gilland] was going to confront [Martz] on the day of his death
               at the [Property]. Without the information the jury would have
               known that there was a conflict and a threat four weeks prior but
               would not have known that [Martz] had possibly been
               confronted on the day of [Gilland’s] death.


       (Appellant’s Br. p. 12).


[21]   We first note that Martz has failed to set forth the applicable standard for

       ineffective assistance of counsel. Ind. Appellate Rule 46(A)(8)(b).

       Additionally, Martz has failed to develop a cogent argument establishing that

       the statements at issue constitute inadmissible hearsay—in other words, that an

       objection to the statements based on hearsay, if made, would have been

       sustained. App. R. 46(A)(8)(a); see Benefield, 945 N.E.2d at 799. Instead, Martz

       has waived this issue by baldly asserting that hearsay was improperly admitted

       due to his counsel’s ineffectiveness and that this deficient performance was

       prejudicial to the outcome of his case.


[22]   Waiver notwithstanding, we find that Martz has failed to establish that he was

       prejudiced by his attorney’s failure to object. See Helton v. State, 907 N.E.2d

       1020, 1023 (Ind. 2009) (“If we can dismiss an ineffective assistance claim on the

       prejudice prong, we need not address whether counsel’s performance was

       deficient.”). Even assuming, without deciding, that the statements at issue

       made by Ashcraft, Dalton, Grant, and Michael would have been excluded as




       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 11 of 17
       inadmissible hearsay, the remaining evidence overwhelmingly supports Martz’

       conviction for murder.


[23]   Approximately four weeks prior to the murder, Martz informed Bailey that

       Gilland had threatened to evict Martz from the Property. Martz indicated that

       he had found Gilland’s handgun and that he was “going to kill that son of a

       bitch.” (Tr. p. 34). Then, about three weeks prior to the murder, Martz had

       another conversation with Bailey, during which Martz was “[i]n an uproar”

       because Gilland “want[ed] [Martz] off the [P]roperty.” (Tr. p. 37). Martz

       again stated that “he was going to kill [Gilland].” (Tr. p. 37). When Bailey

       reminded Martz that he would be sent to prison for such an act, Martz was not

       dissuaded because at least he would “have a place to stay.” (Tr. p. 38). On the

       day of the murder, around 12:15 p.m., Morrison heard five gunshots emanate

       from the Property, followed by the sound of what she believed to be Gilland’s

       truck leaving the Property. About ten minutes later, Upchurch observed Martz,

       alone, driving Gilland’s truck. By 1:15 p.m., Martz had driven to Muncie and

       rented a room at the Red Carpet Inn. Martz also purchased shampoo from

       Walmart at 1:37 p.m. After Sergeant Turner discovered Gilland’s truck in the

       parking lot of the Red Carpet Inn, officers entered Martz’ motel room and

       discovered the keys to Gilland’s truck and to the pole barn. The evidence

       establishes that when Gilland’s family was searching for him, they were unable

       to access the pole barn because only Gilland possessed a key. When Gilland’s

       body was found in the locked pole barn, his jacket pocket had been turned

       inside out, and his keys were missing.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 12 of 17
[24]   Furthermore, the forensic firearms examiner concluded that the bullets

       recovered from Gilland’s body and from the crime scene had been fired from

       Gilland’s own .380 semiautomatic handgun. A DNA analyst testified that

       Gilland’s DNA was found on “the outermost surface of the muzzle end [of the

       firearm].” (Tr. p. 347). However, Martz’ DNA was present on the gun’s slide,

       grip, safety mechanism, trigger and trigger guard, and the magazine.

       Accordingly, based on all of the other evidence establishing Martz’ guilt, we

       find that he has failed to establish that there is a reasonable probability that but

       for his counsel’s failure to object to the hearsay statements, the outcome of this

       case would have been different.


                                         II. Prosecutorial Misconduct

[25]   Martz next claims that the State engaged in prosecutorial misconduct. In

       particular, Martz asserts that the State’s reference to Gilland’s death as a

       “murder” during the examination of a witness was prejudicial. (Tr. p. 36). In

       order “[t]o 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). In this case, Martz objected to the use of the word

       murder, and he requested a continuing objection; however, Martz did not

       request an admonishment or move for a mistrial. As a result, Martz has

       procedurally defaulted on this issue “for failure to properly raise the claim in the




       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 13 of 17
       trial court.” Id. 2 However, such a procedural default does not foreclose our

       review. Rather, in order to prevail upon this claim, Martz “must establish not

       only the grounds for prosecutorial misconduct but must also establish that the

       prosecutorial misconduct constituted fundamental error.” Id. at 668.


[26]   Martz refers us to the following colloquy during the State’s examination of

       Bailey:

                 [STATE]:          And was this the, the day that he stayed half a day,
                                   was this the day that was about three (3) weeks prior
                                   to the 11th, was that what you said?


                 [BAILEY]: Yeah.


                 [STATE]:          Okay. So we have the time that you told us about
                                   that is about four (4) weeks prior to the murder and
                                   now—


                 [MARTZ]: Objection Your Honor. Object to the
                          characterization that this is a murder.


                 [STATE]:          Well it wasn’t a suicide.


                 [MARTZ]: There is a decedent and he died. The
                          characterization of a murder is prejudicial.


                 [COURT]: [State], what is your response?




       2
           In addition, Martz has, once again, failed to comply with Appellate Rule 46(A)(8)(b).


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016       Page 14 of 17
               [STATE]:         It wasn’t a suicide. The defense knows that. This
                                was in fact murder. Mark Gilland was killed. And
                                I am trying to establish a time period prior to, with
                                this witness.


               [COURT]: At this time, the [c]ourt overrules the objection. Go
                        on.


               [MARTZ]: Your Honor, would the [c]ourt recognize my
                        ongoing objection?


               [COURT]: The [c]ourt notes that as a continuing objection of
                        the defense.


       (Tr. p. 36). According to Martz, the foregoing conversation amounts to

       misconduct because

               the [State] and [trial court] established murder in the minds of the
               jury before the first witness was finished testifying or before
               evidence of a killing was entered. Because of those comments
               and the [trial court’s] ruling[,] [Martz] was denied a fair trial
               because the jury had heard the [State] tell them that a murder had
               occurred and the [trial court] confirmed it by overruling the
               objection.


       (Appellant’s Br. pp. 13-14).


[27]   We find no basis for concluding that the State’s reference to the “murder” of

       Gilland constitutes misconduct. (Tr. p. 36). During the preliminary

       instructions, the trial court informed the jury that Martz had been charged with

       one Count of murder, a felony, for “knowingly kill[ing] another human being,


       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 15 of 17
       to-wit: Mark Gilland.” (Tr. p. 7). Moreover, there was no dispute during the

       trial that Gilland was, in fact, murdered. Dr. Mellen testified that the manner

       of Gilland’s death was a homicide, which was caused by the infliction of

       “multiple gunshot wounds.” (Tr. p. 301). Thus, at trial, the only contested

       matter for the State to prove was who murdered Gilland. The State’s reference

       to Gilland’s death as a murder was in the context of establishing a timeframe

       for the witness’ conversation with Martz. That is, the State did not refer to

       Martz as a murderer or otherwise express any personal opinions about Martz’

       guilt or make any inflammatory comments regarding Martz’ character. See

       Ellison v. State, 717 N.E.2d 211, 213-15 (Ind. Ct. App. 1999) (finding the State’s

       reference to the defendant as a “murderer” fell “into the ‘gray area’ between fair

       comment and personal expressions of belief” but holding that such conduct did

       not amount to fundamental error). Accordingly, we conclude that Martz has

       failed to meet his burden to prove that the State engaged in misconduct. 3


                                               CONCLUSION

[28]   Based on the foregoing, we conclude that Martz has failed to establish that his

       trial counsel rendered ineffective assistance. We further conclude that the State

       did not commit prosecutorial misconduct.


[29]   Affirmed.




       3
         Because we find that Martz has not established that the State’s comments amounted to misconduct, we do
       not reach the issue of fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016       Page 16 of 17
[30]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A02-1601-CR-121 | August 25, 2016   Page 17 of 17
