MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 09 2020, 10:07 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan D. Bower                                             Curtis T. Hill, Jr.
Bower Law Office, LLC                                     Attorney General of Indiana
New Albany, Indiana
                                                          Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael J. Sanders,                                       July 9, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2994
        v.                                                Appeal from the Washington
                                                          Circuit Court
State of Indiana,                                         The Honorable Larry Medlock,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          88C01-1807-MR-579



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                       Page 1 of 23
[1]   Michael J. Sanders appeals his conviction of and sentence for murder. 1 He

      presents multiple issues for our review, which we restate as:


                 1. Whether the State presented sufficient evidence to prove
                 Sanders committed murder;


                 2. Whether the trial court committed fundamental error when it
                 admitted Sanders’ redacted field interview;


                 3. Whether the State committed prosecutorial misconduct rising
                 to the level of fundamental error based on statements made
                 during closing argument; and


                 4. Whether Sanders’ sentence is inappropriate based on the
                 nature of the crime and his character.


      We affirm.



                                   Facts and Procedural History
[2]   On July 16, 2018, Ashley Perry went to Sanders’ house looking for her

      husband, Skylar Naugle. Sanders and Naugle were friends, and Perry had not

      seen her husband since the previous day. Naugle also was not returning her

      texts or calls. When Perry arrived at Sanders’ house, Sanders told Perry that he

      did not know where Naugle was, but that Naugle had “just left with a girl

      named Jennifer in a red blazer.” (Tr. Vol. II at 154.) Sanders told Perry the




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 2 of 23
      girl’s name may have been “Jessica. He couldn’t remember.” (Id.) Perry

      testified that Sanders was “fidgety” during their conversation and at one point

      became “aggravated” and asked Perry, “Damn, what are you the 5-0?” 2 (Id.)


[3]   Naugle’s family reported him missing on July 21, 2018. The Washington

      County Sheriff’s Department called Detective Matt Busick of the Indiana State

      Police to assist with Naugle’s missing person investigation. Based on their

      preliminary investigation, they determined Sanders was the last person Naugle

      was in contact with before Naugle’s disappearance. Detective Busick and

      Detective David Mitchell, also of the Indiana State Police, went to interview

      Sanders at his residence about Naugle’s disappearance.


[4]   When the detectives arrived at Sanders’ house on July 23, 2018, they knocked

      on the door and Sanders answered the door approximately three minutes later.

      Sanders told detectives that, on July 15, he picked up Naugle from Naugle’s

      house on a “4-wheeler” after Naugle texted Sanders. (Id. at 76.) Sanders told

      detectives that Naugle later left Sanders’ house “with Chris Schneck” who was

      riding in a “red blazer” with “some girl.” (Id. at 74.) Sanders then told

      detectives that Naugle left with the girl and “[t]hey said they was [sic] going to

      New Albany to see Chris Schneck.” (Id.) Sanders said Naugle left around 4:00

      a.m. on July 16.




      2
          Perry testified that “5-0” meant “[t]he police.” (Tr. Vol. II at 155.)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 3 of 23
[5]   Detective Mitchell told Sanders that he had applied for a search warrant for

      Sanders’ property, Sanders’ phone, and Naugle’s phone. The detectives told

      Sanders he could not go into the house because of the investigation, so Sanders

      asked detectives if he could “go work in the garden[.]” (Id. at 111.) Detectives

      indicated he “wasn’t being detained, he could do so.” (Id.) Instead of going to

      his garden, Sanders left the property.


[6]   Once the search warrant and multiple members of local law enforcement

      arrived, detectives searched Sanders’ property. During the search of the

      property, Pekin Town Marshal Jeff Topping located “fresh dig marks” in an

      area “south . . . of the home, back in the woods.” (Id. at 115.) From there,

      Indiana State Trooper Kennan Ward observed “a small piece of rope coming

      out of the ground.” (Id.) Officers “manipulated it with a stick and found that it

      actually was going into the ground.” (Id.) They followed the rope and “found

      some leaves piled up and . . . found . . . [a] raised mount of ah, dirt, loose dirt.”

      (Id.) Officers contacted their crime scene investigators to assist.


[7]   Crime scene investigators slowly excavated the area and discovered the rope

      was “in a knot and it was tied in a manner around a larger object which was in

      turn a kind of black rubber matt [sic] or tarp that was in the ground.” (Id. at

      186.) After removing about fourteen inches of dirt, investigators located what

      was later identified as Naugle’s body. At the time the body was found, “[f]rom

      the neck up there was no way to identify the body.” (Id. at 117.)




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 4 of 23
[8]    Crime Scene Investigator Phil D’Angelo testified there was “a large mass of

       maggots feasting on the biological material in the tarp[.]” (Id. at 188.)

       D’Angelo also testified, “there wasn’t anything identifying as to the head

       besides the skull that was fragmented.” (Id. at 189.) He also found a “plastic

       zip lock [sic] bag” with the word “hind” on it, (id.) and “a tin food can” with

       Naugle’s body. (Id. at 188.) Investigators transported Naugle’s body to the

       coroner’s office for an autopsy.


[9]    The pathologist who performed the autopsy, Dr. Thomas Sozio, had to

       “recreate portions of the skull.” (Id. at 196.) Dr. Sozio’s autopsy report

       indicated Naugle’s cause of death was a “shotgun wound to the head” and

       listed the manner of death as “homicide.” (Id. at 198.) In the tarp that had

       been around Naugle’s body, Sergeant Mead located “20 gauge wadding.” 3 (Id.

       at 213.) Testing revealed Sanders’ DNA on the 20 gauge wadding. Further,

       based on the progression of the larva found on Naugle’s body, entomologist

       Laura Weidner concluded that Naugle was killed between July 14 and 18,

       2018.


[10]   Officers returned to Sanders house to search for firearms. No one was present

       at Sanders’ house. Officers located a disassembled 20-gauge shotgun beneath a

       hunting jacket on the pool table in the basement of the house and “a shotgun




       3
         Wadding was described as a “filler wad” that “push[es] down the [gun] powder” when a shotgun is fired.
       (Tr. Vol. III at 38.) Additionally, wadding “keep[s] the pellets separate from the powder” in a shotgun shell.
       (Id. at 39.)

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                       Page 5 of 23
       hull or shell that had been fired along with a wadding that was near a . . . burn

       pile or burn area in that backyard.” (Id. at 199.) Near the burn pile, officers

       located a deer processing area, a black tarp resembling the tarp found around

       Naugle’s body, and a possible “blood trail leading from where Mr. Naugle had

       been shot to where his body was drug to and buried.” (Id. at 237.) Officers

       then called in a dive team to search the pond on Sanders’ property. There, dive

       team members found Naugle’s phone.


[11]   On July 26, 2018, Officer Zach Elliot of the Austin Police Department received

       a report of a stolen vehicle. He located the vehicle and found Sanders was

       driving it. Officer Elliot arrested Sanders, whose “arms . . . [and] body was

       scratched up. . . . [H]e was covered in insect bites and like chigger bites all over

       most of his body.” (Id. at 139.)


[12]   On July 26, 2018, the State charged Sanders with murder. Sanders’ jury trial

       began on October 28, 2019. The jury returned a verdict of guilty. On

       November 20, 2019, the trial court held a sentencing hearing and sentenced

       Sanders to sixty-three years. 4



                                   Discussion and Decision




       4
        The trial court also ordered Sanders to serve 652 days for violating probation in an earlier case, and the
       court ordered those days to be served consecutive to his sentence for murder. Sanders does not appeal that
       probation revocation order herein.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                      Page 6 of 23
                                  1. Sufficiency of the Evidence
[13]   When reviewing sufficiency of evidence to support a conviction, we consider

       only the probative evidence and reasonable inferences supporting the trial

       court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

       finder’s role, and not ours, to assess witness credibility and weigh the evidence

       to determine whether it is sufficient to support a conviction. Id. To preserve

       this structure, when we are confronted with conflicting evidence, we consider it

       most favorably to the fact-finder’s determination. Id. We affirm a conviction

       unless no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is therefore not necessary that the evidence

       overcome every reasonable hypothesis of innocence; rather, the evidence is

       sufficient if an inference reasonably may be drawn from it to support the

       decision. Id. at 147.


[14]   To prove Sanders committed murder, the State had to present evidence he

       knowingly or intentionally killed Naugle. See Ind. Code § 35-42-1-1 (elements

       of murder). Sanders argues the State did not present sufficient evidence he

       killed Naugle because: (1) no one saw him kill Naugle; (2) the State did not

       present evidence that Sanders had a motive to kill Naugle; and (3) “there were

       no fingerprints or DNA on the shotgun that was the alleged murder weapon

       and other people had access to the property and access to the shotgun that was

       kept over the entryway door.” (Br. of Appellant at 7.)




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 7 of 23
[15]   It is well-established that a murder conviction “may be sustained on

       circumstantial evidence alone.” Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016).

       Here, there was substantial circumstantial evidence of Sanders’ guilt. Possibly

       the most damning is the fact that Naugle’s body was found buried on Sanders’

       property in a shallow grave and Sanders was the only person living at the

       residence. Additionally, Sanders was the last person to see Naugle and, despite

       exchanging 479 text messages and 81 calls with him over the two weeks leading

       up to Naugle’s death, Sanders told Naugle’s wife and investigators that he had

       not communicated with Naugle since July 16. Officers found Naugle’s phone

       in a pond on Sanders’ property, and Naugle’s body was buried in a tarp

       identical to another tarp found on Sanders’ property. Naugle died from a close-

       range shotgun wound to the head, and officers found a shotgun in Sanders’

       house that matched the type of gun used to kill Naugle. A piece of shotgun

       shell wadding with Sanders’ DNA on it was found with Naugle’s buried body.

       Finally, Sanders fled the scene when detectives told him they had obtained a

       search warrant, and flight is an indicator of guilt. See Brink v. State, 837 N.E.2d

       192, 196 (Ind. Ct. App. 2005) (holding flight may be considered when

       determining guilt), trans. denied. Sanders’ arguments pointing to alleged

       deficiencies in the State’s case are merely invitations for us to reweigh the

       evidence and judge the credibility of witnesses, which we cannot do. See Drane,

       867 N.E.2d at 146 (appellate court cannot reweigh evidence or judge the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 8 of 23
       credibility of witnesses). The State’s evidence was sufficient to prove beyond a

       reasonable doubt that Sanders murdered Naugle. 5


                                       2. Admission of Evidence
[16]   We typically review allegations of error in the admission of evidence for an

       abuse of discretion, which occurs “when the trial court’s ruling is clearly against

       the logic, facts, and circumstances presented.” Kindred v. State, 973 N.E.2d

       1245, 1252 (Ind. Ct. App. 2012). As we conduct our review, we will not

       reweigh the evidence, and we must consider conflicting evidence in the light

       most favorable to the trial court’s ruling. Id.


[17]   During Sanders’ trial, the State presented a redacted recording of the field

       interview Detectives Busick and Mitchell conducted on July 23, 2020, with

       Sanders at Sanders’ house. Sanders did not object at trial to the admission of

       this recording. Thus, he must demonstrate fundamental error. See Taylor v.

       State, 687 N.E.2d 606, 609 (Ind. Ct. App. 1997) (defendant who does not object

       at trial waives any claim of error on appeal unless the error is fundamental),

       trans. denied. Fundamental error is a “blatant violation of basic principles, the

       harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.” Kindred, 973 N.E.2d at 1252 (quoting




       5
        As for Sanders’ argument that the State failed to present evidence that Sanders had a motive to kill Naugle,
       we note the State had no such obligation. See Ivory v. State, 141 N.E.3d 1273, 1280 (Ind. Ct. App. 2020)
       (motive is not an element of murder).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                      Page 9 of 23
       Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App. 2009)). The

       fundamental error exception is extremely narrow. Id.


                             A. Redacted Portions of the Audio Recording

[18]   First, Sanders argues the trial court’s admission of the redacted audio recording

       was an abuse of discretion that rose to the level of fundamental error because

       the redacted portions of the recording allowed the jury to make a forbidden

       inference that Sanders said something incriminating or something that would

       reflect poorly on his character. He also contends the “lengthy silence” created

       by some redactions prejudiced him because “[n]o juror is going to reasonably

       believe those redactions contain information that would tend to exonerate Mr.

       Sanders.” (Br. of Appellant at 9.)


[19]   Indiana Rule of Evidence 106 states: “If a party introduces all or part of a

       writing or recorded statement, an adverse party may require the introduction, at

       that time, of any other part—or any other writing or recorded statement—that

       in fairness ought to be considered at the same time.” However, prior to the

       admission of the recording and its publication to the jury, the trial court

       confirmed that the redactions in the recording had been made “[b]y agreement

       of the parties.” (Tr. Vol. II at 71.) Thus, Sanders invited the error of which he

       now complains by agreeing to the redactions of the recording prior to trial.

       “Invited errors are not subject to appellate review, and a party therefore may

       not invite error, and then subsequently argue that the error requires reversal.”

       Oldham v. State, 779 N.E.2d 1162, 1171 (Ind. Ct. App. 2002), trans. denied. As

       Sanders assented to the redactions made in the recording, he cannot now
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 10 of 23
       complain about what impression those redactions may have made. See Gamble

       v. State, 831 N.E.2d 178, 187 (Ind. Ct. App. 2005) (“[e]rror invited by the

       complaining party is not reversible error”), trans. denied.


                              B. Statements Regarding Naugle’s Drug Use

[20]   Sanders next contends the recording’s references to Naugle’s drug use

       impermissibly would have led the jury to infer Sanders also used drugs, in

       violation of Indiana Evidence Rule 404(b). Pursuant to Evidence Rule 404(b),

       evidence of another crime, wrong or act “to prove a person’s character in order

       to show that on a particular occasion the person acted in accordance with the

       character” is inadmissible. Evid. Rule 404(b)(1). Sanders directs us to the

       following excerpts, during which the detectives discussed Naugle’s drug use:


               [Detective Busick]: And you seen [sic] him here, I mean you run
               up the road and went and got him at 4 in the morning. You’ve
               seen him a lot recently – has he been okay? Do you think he’s
               using drugs a little bit maybe?


               [Sanders]:       I don’t know.


               [Detective Busick]: You don’t know?


               [Detective Mitchell]: What do you think though, from your gut?
               From knowing from [sic] all the years that you have?


                                                     *****


               [Detective Mitchell]: So you think he was trying to get some
               dope from this Chris Schenk guy?

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 11 of 23
               [Sanders]:       I don’t know.


                                                     *****


               [Detective Mitchell]: . . . here’s here’s [sic] what we think. I, I
               [sic] don’t think you did anything wrong. I think he probably
               overdosed and we need to find him. Because we [sic] got, we’re
               doing, we’re going to get everything on your phone, everything.
               Including text messages. Verizon keeps text messages for eight to
               ten days and his as well. We just want you to tell us where he’s
               at bro [sic] so we can get him back to her.


               [Sanders]:       I don’t know where he is.


               [Detective Mitchell]: Nobody says you did anything wrong.
               Okay.


               [Detective Busick]: Okay, here’s what my theory is, okay. He
               hasn’t been using for a while, okay. He used something and he
               OD’d. When you haven’t been using for a while, you can’t take
               as much. He OD’d a lot easier than he would have a year ago,
               okay. My scenario, what I think happened, he came back here
               and that happened and due to that everybody gets a little scared.


               [Detective Mitchell]: We see it every day.


       (Tr. Vol. II at 81, 82, 90-91.)


[21]   While we agree these statements reference Naugle’s alleged drug use, the

       detectives did not ask Sanders about his previous crimes or drug use.

       Consequently, Sanders has not demonstrated how the detectives’ discussion of

       Naugle’s drug use would lead the jury to infer Sanders also used drugs and thus

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 12 of 23
       he has not demonstrated the fundamental error required to reverse based on an

       argument not raised at trial.


                                          C. Detectives’ Comments

[22]   Finally, Sanders asserts the recording includes the detectives’ opinions, which

       are inadmissible under Indiana Evidence Rule 704(b). Specifically, Sanders

       takes issue with the following dialogue:


               [Detective Busick]: Don’t you think it’s odd that he’s been gone
               for a week? I heard him and his wife had been doing well, kids
               have been good. They are nice.


               [Detective Mitchell]: You think that’s odd, don’t you?


               [Sanders]: Yeah.


               [Detective Busick]: I mean you had a lot of time to think about
               that. We haven’t and I think it’s odd so, I know there’s
               something in your head and you’re not going to get the man in
               trouble.


       (Id. at 85.) Sanders contends these statements “convey the officer’s [sic]

       opinions concerning [Sanders’] intent, guilt or innocence.” (Br. of Appellant at

       12.) However, he does not explain how these statements do so and thus he has




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 13 of 23
       not demonstrated the fundamental error required to reverse on evidence not

       objected to during trial. 6


[23]   Any prejudice that could be inferred from the detective’s opinion was slight

       because the statement was isolated and did not linger on that point. See Hinesley

       v. State, 999 N.E.2d 975, 986 (Ind. Ct. App. 2013) (if the evidence as a whole

       supports the conviction, an inconsequential reference to other evidence does not

       show prejudice), reh’g denied, trans. denied. Further, as we noted supra, the State

       presented sufficient evidence independent of the recording in question to prove

       Sanders was guilty – Sanders was the last person to see Naugle, Naugle was

       found buried in Sanders’ backyard with items that were also found in Sanders’

       house, Sanders owned a shotgun that matched the weapon used to shoot

       Naugle, and Sanders’ DNA was found on some of the shotgun shell wadding

       found with Naugle’s body. Therefore, if there was an error in the admission of

       the challenged statements made in the recording, Sanders has not demonstrated

       the fundamental error necessary to reverse his conviction. See McCorker v. State,

       797 N.E.2d 257, 267 (Ind. 2003) (substantial cumulative evidence independent

       of the evidence at issue renders the court’s admission of such evidence

       harmless).




       6
         In addition, Sanders contends the redacted recording contained a “vast amount of irrelevant information.”
       (Br. of Appellant at 12.) However, Sanders does not cite to the statements he contends are irrelevant, and
       thus he has waived his argument for failure to make a cogent argument. See Indiana Appellate Rule 48(a)(8)
       (argument must contain issues presented supported by cogent argument, including citations to the record and
       relevant case law); and see Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (failure to present a
       cogent argument waives the issue on appeal).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                       Page 14 of 23
                                   3. Prosecutorial Misconduct
[24]   In reviewing a claim of prosecutorial misconduct, we determine: (1) whether

       the prosecutor engaged in misconduct, and if so, (2) whether the misconduct,

       under all of the circumstances, placed the defendant in a position of grave peril

       to which he should not have been subjected. Schmidt v. State, 816 N.E.2d 925,

       944 (Ind. Ct. App. 2004), trans. denied. The gravity of the peril turns on the

       probable persuasive effect of the misconduct on the jury’s decision, not on the

       degree of impropriety of the conduct. Id. A claim of prosecutorial misconduct

       presented on appeal without a contemporaneous trial objection will not succeed

       unless the defendant establishes not only prosecutorial misconduct but also the

       additional grounds for fundamental error. Ryan v. State, 9 N.E.3d 663, 667-8

       (Ind. 2014), reh’g denied. For prosecutorial misconduct to be fundamental error,

       it must make a fair trial impossible or amount to clearly blatant violations of

       basic and elementary principles of due process and present an undeniable and

       substantial potential for harm. Id. at 668.


[25]   During closing argument, Sanders stated, “Um, there was no ah, fingerprint

       evidence ah, fingerprint evidence ah, that I saw or I don’t think you’ll see on

       this case.” (Tr. Vol. III at 149.) Additionally, regarding the location of shotgun

       wadding in the bag with Naugle’s body, Sanders commented:


               Um, the shotgun wadding was found among liquified remains in
               the body bag by the Indiana State Police, after the autopsy. If
               you recall this when ah, Sgt. D’Angelo ah, actually said I, I got a
               hunch, I want to go back. So he goes back to the autopsy room.
               Um, they try the metal detector and then he, he gets in, he and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 15 of 23
               ah, another Trooper Marty Meade actually put on rubber gloves
               and start going through the liquified material. My memory is
               that the head was gone at that point and that he had removed it
               by that time. I think that is different from the memory of
               testimony of um, my colleague [Prosecutor] and I, I leave it to
               you, to your own memory as to what ah, ah, as to what Phil
               D’Angelo actually testified to at that time. Regardless the
               wadding was found within this ah, and this very unpleasant but
               was found in this liquified material at the bottom of the bag,
               okay. And if you remember, if you recall, um Sgt. D’Angelo
               testifying about that bag, this was not like a case where a body
               was put, this was a pliable bag that was made of plastic or rubber
               I don’t think he remembered exactly what it was, he knew, but it
               was something with liquid, it going to be moving around, okay.
               So the idea of that we have a wadding that popped out of a skull
               in this case is I, I, you’re good, the Judge is the law and the facts,
               I would submit to you that I don’t, I don’t think that’s there. Um,
               and I’ll just leave it at that.


       (Id. at 147-8.)


[26]   During its rebuttal argument, the State commented, regarding the lack of

       fingerprint evidence on the alleged murder weapon:


               If the defendant’s fingerprints were on the gun, the defense would
               have said, of course the defendant’s fingerprints were on the gun,
               he’s, that’s the gun in his house. So, what do fingerprints on the
               gun tell us? Nothing. Nothing. [Defense counsel] would come
               up here and say, they are just making an assumption that the
               defendant used that gun for the murder because his fingerprints
               were on it, but of course his fingerprints were on it, because that
               gun was in his house.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 16 of 23
       (Id. at 155.) Additionally, the State argued during rebuttal, “. . . and [defense

       counsel] wants to say, well, he got very close to saying the police planted the

       wadding in the body bag. Come on, man. You saw these police officer’s [sic]

       testify. It’s very unfair, I think to accuse these police officers of planting

       evidence in the case. They are professionals.” (Id. at 154.) Sanders objected

       and argued he “didn’t accuse anyone of planting anything in that argument.”

       (Id.) After trial court intervention, the State agreed to refrain from further

       commenting on the issue. 7 Sanders contends the State’s comments about his

       counsel unfairly disparaged his counsel.


[27]   The State continued with its argument, then stating:


                And so, look, the defense [sic] job is to poke holes in the State’s
                case and [defense counsel] has done an admirable job with that.
                But the one thing that the defense doesn’t have to do is put
                forward a theory, right? That’s what I do and we’ve done that.
                But they have the luxury of not doing that. So, they can come up
                and poke holes in the case but they don’t have to really explore
                the implications of what their version is.




       7
         “Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must
       not only raise a contemporaneous objection but must also request an admonishment; if the admonishment is
       not given or is insufficient to cure the error, then the defendant must request a mistrial.” Neville v. State, 976
       N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. Sanders did not do so, therefore, he must also
       demonstrate the State’s comment constituted fundamental error. See Booher v. State, 773 N.E.2d 814, 817-8
       (Ind. 2002) (where a claim of prosecutorial misconduct has been procedurally faulted for failing to properly
       raise the claim before the trial court, it is waived from appellate consideration for failure to preserve the error;
       the defendant must demonstrate fundamental error to overcome this waiver).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                           Page 17 of 23
       (Id. at 155.) Sanders did not object to this statement, and on appeal contends

       this statement “implicate[d] Michael Sanders [sic] constitutional right to prove

       the case, calling it a luxury[.]” (Br. of Appellant at 14.)


[28]   Sanders also challenges the State’s comment regarding his defense:


                The only element in this case, the only question in this case is did
                the defendant do it or not? The defense is he didn’t do it.
                Implications from that are, somebody else did it. This is a
                defense. This defense is called SODIT, some other dude did it.
                It’s a common defense. Some other dude did it, that’s the
                implication. If he didn’t do it, somebody did it. We know it’s a
                murder. But he didn’t do it so some other dude did it.


       (Tr. Vol. III at 155-6.) Sanders did not object to the statement and on appeal

       contends the State’s comment implied he was using “some sort of Defense

       attorney trope to convince the jury of his innocence.” (Br. of Appellant at 14.) 8


[29]   Although Sanders did not properly preserve for our review any of the comments

       he challenges, he maintains the State’s comments, taken as a whole,

       “improperly urged the jury to convict Michael Sanders for being a liar, a car




       8
         Sanders also contends the State committed prosecutorial misconduct when, during closing argument, the
       State called him a liar “over fifteen times.” (Br. of Appellant at 14.) However, our Indiana Supreme Court
       has held, “where evidence introduced at trial indicates that either the defendant was lying or that other
       witnesses were lying, comments by the prosecutor which merely ‘pointed out the incongruities in the
       testimony presented at trial, concluded that someone must not be testifying truthfully, and invited the jury to
       determine which witness was telling the truth’ did not constitute misconduct.” Cooper v. State, 854 N.E.2d
       831, 836 (Ind. 2006) (quoting Hobson v. State, 675 N.E.2d 1090, 1096 (Ind. 1999)). Here, the State was
       commenting on the inconsistencies between the statements Sanders gave to Naugle’s wife, the police, and
       other investigators about Naugle leaving his property with a woman in a red jeep; statements which were
       ultimately found to be untrue after Naugle was found buried in Sanders’ backyard. This was not
       prosecutorial misconduct.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020                       Page 18 of 23
       thief, and a woodsman – for reasons other than his guilt, and because the State

       improperly commented on Sanders [sic] credibility a new trial should be held.”

       (Id. at 18.) It is well-established that “[i]t is misconduct for a prosecutor to

       request the jury to convict a defendant for any reason other than his guilt.”

       Maldonado v. State, 265 Ind. 492, 500, 355 N.E.2d 843, 849 (1976). However,

       when there is overwhelming independent evidence of a defendant’s guilt,

       prosecutorial misconduct during closing argument may be harmless. Coleman v.

       State, 750 N.E.2d 370, 375 (Ind. 2001).


[30]   Such is the case here. The State presented evidence that Naugle’s decomposing

       body was found in a shallow grave on Sanders’ property, wrapped in a mat or a

       tarp similar to others found on Sanders’ property. Sanders gave different

       accounts of Naugle’s alleged whereabouts and, while he was in frequent contact

       with Naugle in the two weeks leading up to Naugle’s disappearance, Sanders

       did not attempt to contact Naugle after Naugle disappeared. Additionally, a

       shotgun matching the type of shotgun used to kill Naugle was found in Sanders’

       house, where he lived alone. Finally, shotgun shell wadding with Sanders’

       DNA on it was found in the tarp with Naugle’s body. That evidence, coupled

       with the fact that the jury was instructed that “[s]tatements made by the

       attorneys are not evidence[,]” (Tr. Vol. II at 46), leads us to conclude any

       prosecutorial misconduct that may have occurred based on the State’s

       comments did not place Sanders in grave peril of an unfair trial. See Norris v.

       State, 113 N.E.3d 1245, 1252-3 (Ind. Ct. App. 2018) (in light of the instructions




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 19 of 23
       to the jury and the overall strength of the State’s case, no reversable

       prosecutorial misconduct), reh’g denied, trans. denied.


                                     4. Inappropriate Sentence
[31]   Sanders argues his sentence is inappropriate in light of his character and the

       nature of his offense. Our standard of review on this issue is well settled:


               We “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.” Ind. Appellate Rule 7(B).
               “Although appellate review of sentences must give due
               consideration to the trial court’s sentence because of the special
               expertise of the trial bench in making sentencing decisions,
               Appellate Rule 7(B) is an authorization to revise sentences when
               certain broad conditions are satisfied.” Shouse v. State, 849
               N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
               quotation marks omitted). “[W]hether 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 myriad other factors that come to light in a
               given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
               In addition to the “due consideration” we are required to give to
               the trial court’s sentencing decision, “we understand and
               recognize the unique perspective a trial court brings to its
               sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
               (Ind. Ct. App. 2007).


       Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied. The appellant bears the burden of demonstrating his sentence is

       inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 20 of 23
[32]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). The

       sentencing range for murder is forty-five to sixty-five years, with an advisory

       sentence of fifty-five years. Ind. Code § 35-50-2-3(a). The trial court sentenced

       Sanders to sixty-three years for Naugle’s murder.


[33]   The nature of Sanders’ offense was exceptionally egregious. Sanders shot

       Naugle, his long-time friend, “execution style in the back of the head.” (Tr.

       Vol. II at 196.) He then buried Naugle on his property in a shallow grave and

       left him there for over a week until investigators discovered his body, which had

       been ravaged by insects and was unidentifiable from the neck up. He lied to

       Naugle’s wife and police regarding Naugle’s whereabouts and fled the property

       when told detectives had secured a search warrant. Additionally, he was found

       two days later driving a stolen car. Based thereon, we conclude the nature of

       Sanders’ offense does not render his sentence inappropriate. See Berkman v.

       State, 976 N.E.2d 68, 79 (Ind. Ct. App. 2012) (sentence above the advisory not

       inappropriate based on egregious nature of crime), trans. denied, cert. denied 571

       U.S. 863 (2013).


[34]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). Sanders’ criminal history shows an escalation of violence in his

       behavior, from a juvenile adjudication for theft to minor alcohol-related

       offenses, disorderly conduct, and felony sexual battery, for which he was on

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 21 of 23
       probation at the time he killed Naugle. Sanders’ criminal history is a poor

       reflection on his character as it reveals he “has not been deterred even after

       having been subjected to the police authority of the State.” Cotto v. State, 829

       N.E.2d 520, 526 (Ind. 2005).


[35]   Sanders argues his sentence is inappropriate because he had “significant drug

       issues.” (Br. of Appellant at 18.) However, he has not explained how his drug

       use justifies a reduction in sentence. See Reis v. State, 88 N.E.3d 1099, 1105-06

       (Ind. Ct. App. 2017) (defendant failed to advance an argument regarding why

       his sentence is inappropriate in consideration of his alcohol problem).

       Therefore, based on his extensive and increasingly violent criminal history, we

       cannot conclude Sanders’ sentence is inappropriate based on his character. See

       Kayser v. State, 131 N.E.3d 717, 724 (Ind. Ct. App. 2019) (Kayser’s sentence

       above the advisory sentence not inappropriate based on Kayser’s extensive

       criminal history).



                                               Conclusion
[36]   We hold the State presented sufficient evidence to convict Sanders of Naugle’s

       murder. Additionally, any error in the admission of the redacted audio

       recording of an interview with Sanders was harmless error based on

       overwhelming independent evidence of Sanders’ guilt. Further, any

       prosecutorial misconduct during closing arguments did not put Sanders in grave

       peril of an unfair trial. Finally, Sanders’ sentence is not inappropriate based on



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 22 of 23
       the nature of his offense and his character. Accordingly, we affirm the trial

       court’s decisions.


[37]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-579 | July 9, 2020   Page 23 of 23
