MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               Feb 28 2019, 10:15 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
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Ashby,                                             February 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1200
        v.                                               Appeal from the Floyd Superior
                                                         Court
State of Indiana,                                        The Honorable Susan L. Orth,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         22D01-1705-F2-980



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019                 Page 1 of 26
                                             Case Summary
[1]   A jury found David Ashby guilty of level 2 felony burglary involving the use of

      a deadly weapon. He now appeals his conviction, challenging the admission of

      certain evidence and claiming that the deputy prosecutor committed

      misconduct during closing argument. He also asserts that his thirty-year

      sentence is inappropriate in light of the nature of the offense and his character.

      Finding that Ashby has failed to establish reversible error in either the

      admission of evidence or the deputy prosecutor’s conduct, we affirm his

      conviction. Finding that he has failed to meet his burden of demonstrating that

      his sentence is inappropriate, we also affirm his sentence.


                                 Facts and Procedural History
[2]   In the early 2000s, Ashby was living at a halfway house affiliated with Catholic

      Charities. Ron Kelly worked in maintenance for Catholic Charities, and as part

      of his employment, he supervised crews of residents from the halfway house in

      performing maintenance and handyman services at several Catholic churches in

      the area. Ashby was one of those crew workers, and over the next four years,

      he became one of Ron’s best workers. The two also became good friends, and

      Ashby helped Ron with projects and chores at Ron’s rural home. Ashby

      performed tasks such as lawn mowing, moving furniture, and hanging

      Christmas lights. At some point during the dozen or so times that Ashby

      visited Ron’s residence, he saw Ron put large sums of cash inside the coin

      boxes of arcade games in his basement. He also became aware of a large safe in



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 2 of 26
      the master bedroom in which Ron and his wife Tina kept firearms, cash, and

      other valuables.


[3]   During his time at the halfway house, Ashby met Stephen Blakley. He later

      helped Blakley get a job with the construction company where he worked. In

      2016, Ashby and Blakley needed money to repay some drug debts, and Ashby

      recalled the valuables he had seen at the Kellys’ house. The two men conferred

      about robbing the Kellys, and Blakley suggested that they approach Brandon

      Langley about helping them commit the home invasion. Because the Kellys’

      property was rural and difficult to locate, Ashby drove Blakley to the property.

      He also ensured that Blakley and Langley knew the locations of the safe, cash,

      silver, firearms, and other valuable personal property within the Kellys’ home.

      Blakley and Langley drove to the Kellys’ home a couple times but did not

      complete the home invasion because the Kellys were not home and thus could

      not provide the necessary keys and/or combinations.


[4]   In the predawn hours of July 20, 2016, the Kellys’ neighbor David Herbst saw a

      white pickup truck on the side of the road near the Kellys’ home. The engine

      was running, and the driver (Blakley) could not be seen. Herbst observed the

      pickup for about five minutes. As the pickup pulled away and turned down a

      long driveway, Herbst photographed its back end, began to follow it, and

      phoned 911 to report a suspicious vehicle.


[5]   Shortly thereafter, as Tina was pulling out of her long driveway to go to work,

      she heard a loud thump on the back of her vehicle, she turned and saw a


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 3 of 26
      masked man dressed in tactical gear and carrying a handgun. That man, later

      identified as Langley, approached the driver’s side window and ordered Tina to

      move to the passenger’s seat. He told her that he intended to go inside to the

      safe and the arcade games in her basement. He entered the vehicle and drove it

      back into the garage. He ordered Tina into the house, and Tina woke Ron,

      who was sleeping on the living room couch. Langley pointed his firearm at

      Ron’s head and ordered him up. He searched the buffet and found an envelope

      full of cash. He continued to rifle through the buffet, muttering something

      about “silver” and saying, “Well, somebody lied to me.” Tr. Vol. 2 at 92.

      Meanwhile, Ron unsuccessfully feigned a heart attack in an effort to reach a

      firearm that he kept hidden nearby. Langley pulled him up and demanded that

      he and Tina lead him to the safe in the bedroom.


[6]   In the bedroom, Langley forced the Kellys to sit on the bed and ordered Tina to

      provide the combination to the large gun safe and the key to a lockbox within

      the safe. Ron attempted to reach toward the nightstand, where he typically kept

      a firearm, and Langley struck him in the forehead with the barrel of his

      handgun. Ron bled profusely, and Tina used some clothing to apply pressure to

      the wound. Langley emptied the safe and lockbox, collecting six firearms,

      jewelry, savings bonds, heirlooms, a coin collection, and at least $30,000 in

      cash, and stuffed them into pillowcases. He also took Tina’s wedding ring from

      her finger.


[7]   Langley then forced the Kellys into the basement, where he demanded the cash

      that he had been told they kept inside the coin boxes of the arcade games. The

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 4 of 26
      boxes were empty. Furious, Langley said that he wanted more money and

      jewelry. He then turned his attention toward two televisions that he had been

      told to take, but they were too heavy. He took two laptop computers from

      upstairs and forced Tina to help him carry the contraband to her vehicle. He

      told her that he would leave her vehicle within a mile of her house, and he took

      Ron’s truck keys and slashed the tires of their son’s vehicle. He took the Kellys’

      cell phones and house phones and drove away in Tina’s vehicle. Tina used an

      overlooked house phone to call 911. Police responding to the call determined

      that the home invasion was targeted by a person with knowledge not readily

      available to the public.


[8]   Later that day, Blakley notified Ashby that he and Langley had completed the

      home invasion and had gotten money and other items. The two met, and

      Blakley gave Ashby a one-third share of the spoils. Three days later, police

      located Tina’s vehicle in a wooded ditch not far from their home. Ashby

      subsequently sold the coin collection and jewelry to a contact named Charles

      Sparkman (“Sparky”) and divided the proceeds three ways. Shortly thereafter,

      Langley committed suicide.


[9]   Several months later, Ron notified police concerning a letter he received from a

      jail inmate offering information about the home invasion in exchange for

      $10,000. Floyd County Sheriff’s Department Detective Mark Slaughter

      investigated and traced the letter to Blakley. He interviewed Blakley, who

      provided specific information concerning the home invasion and Ashby’s role

      in it. Detective Slaughter subsequently interviewed Ashby, who confessed to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 5 of 26
       his involvement and provided detailed information concerning his sale to

       Sparky.


[10]   The State charged Ashby with level 2 felony robbery resulting in serious bodily

       injury. Ashby filed motions in limine seeking to exclude statements that he

       made to Detective Slaughter concerning his prior drug use and halfway house

       residency, as well as certain statements that Blakley made to the detective. The

       trial court conducted a hearing on Ashby’s motions and granted the motions in

       part as to Ashby’s own statements and ordered certain redactions to the

       videotaped interview. The court otherwise denied the motions, with the stated

       intention of ruling on the remainder of the challenged evidence when offered

       during Ashby’s jury trial.


[11]   The State amended the information to add one count of level 2 felony burglary

       involving the use of a deadly weapon and to downgrade the robbery count to a

       level 3 felony. A jury found Ashby guilty of level 2 felony burglary involving

       the use of a deadly weapon and not guilty on the robbery count. The trial court

       sentenced him to a thirty-year executed term. Ashby now appeals his

       conviction and sentence. Additional facts will be provided as necessary.


                                      Discussion and Decision

             Section 1 – The trial court acted within its discretion in
                admitting evidence concerning Ashby’s drug use.
[12]   Ashby challenges the trial court’s admission of statements that he made to

       Detective Slaughter related to his drug use. We review evidentiary rulings for

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 6 of 26
       an abuse of discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d

       578, 581 (Ind. 2015). An abuse of discretion occurs when the trial court’s ruling

       is either clearly against the logic and effect of the facts and circumstances before

       it or the court misinterprets the law. Id. In determining whether improperly

       admitted evidence has prejudiced the defendant, we assess the probable impact

       of that evidence on the jury in light of all the other properly admitted evidence.

       Id. If independent, properly admitted evidence of guilt supports the conviction,

       the error is harmless. Id.


[13]   Ashby claims that evidence concerning his drug use is inadmissible as evidence

       of prior bad acts. The trial court addressed this issue during the hearing on

       Ashby’s motions in limine and ordered certain redactions to his videotaped

       statement. During his trial, Ashby renewed his objection to unredacted

       statements related to his drug use. Indiana Evidence Rule 404(b) reads,


               (b) Crimes, Wrongs, or Other Acts.


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
               not admissible to prove a person’s character in order to show that
               on a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence
               may be admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 7 of 26
               (A) provide reasonable notice of the general nature of any such
               evidence that the prosecutor intends to offer at trial; and


               (B) do so before trial—or during trial if the court, for good cause,
               excuses lack of pretrial notice.


       In assessing the admissibility of Rule 404(b) evidence, the trial court must (1)

       determine that the evidence of other crimes, wrongs, or acts is relevant to a

       matter at issue other than the defendant’s propensity to commit the charged act;

       and (2) balance the probative value of the evidence against its prejudicial effect

       pursuant to Indiana Evidence Rule 403. Luke v. State, 51 N.E.3d 401, 416 (Ind.

       Ct. App. 2016), trans. denied. Rule 403 states, “The court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of one or

       more of the following: unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.”


[14]   Ashby claims that the trial court improperly admitted evidence that he owed a

       sizable debt related to his use of methamphetamine. The State did not offer the

       evidence to show that Ashby participated in the burglary; rather, it offered the

       evidence to show why he participated in the burglary. In other words, the

       evidence addressed his motive, which is a permitted use under Rule 404(b)(2).

       Ashby needed money immediately because he had a substantial drug-related

       debt of approximately $7400; he planned the home invasion to obtain large

       sums of money to pay that debt. Such was the extent of the evidence presented

       on the topic of his drug use, as the State redacted from Ashby’s statement all

       other information concerning his propensity to commit criminal acts. The high

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 8 of 26
       probative value of the drug-debt evidence, used to establish motive, was not

       substantially outweighed by a danger of unfair prejudice. Thus, the trial court

       acted within its discretion in admitting the evidence.


        Section 2 – Ashby failed to demonstrate fundamental error in
       the trial court’s admission of his former residency at a halfway
                                    house.
[15]   Ashby also maintains that the trial court abused its discretion in admitting his

       statements to Detective Slaughter concerning his former residency at a halfway

       house. Although he now challenges the admissibility of the evidence on Rule

       404(b) grounds, he failed to object when the halfway house information was

       introduced during trial and must therefore establish fundamental error.

       Fundamental error is an extremely narrow exception to the waiver rule and

       exists only where the trial court’s errors are so prejudicial that they make a fair

       trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).


[16]   With respect the halfway house evidence, we note that the State did not offer it

       to show that Ashby had a propensity to commit burglary. Instead, the State

       offered the evidence to establish knowledge, identity, and plan, all acceptable

       uses under Rule 404(b)(2). Ashby’s residency at the halfway house was more of

       a status than a prior bad act, but to the extent that it implicates some kind of

       prior bad act, we note that it was highly probative in giving context to Ashby’s

       relationships with Ron and Blakley, both of whom he met because of his

       residency there. The blossoming friendship between Ashby and Ron had its

       roots in Ashby’s community service work that he performed as a member of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 9 of 26
       Ron’s maintenance crew. The friendship precipitated the invitations to the

       Kellys’ home, where Ashby learned both the extent and the locations of their

       various valuables. Investigators readily determined that the home invasion had

       been targeted, and this evidence is highly probative on this issue. The State did

       not belabor the circumstances surrounding Ashby’s residency at the halfway

       house but merely used it to corroborate other evidence establishing identity,

       knowledge, and plan. Thus, the danger of unfair prejudice was substantially

       outweighed by the probative value of this evidence. Based on the foregoing, we

       find no error, fundamental or otherwise, in the trial court’s admission of this

       evidence.


           Section 3 – We find no reversible error in the trial court’s
            admission of statements made to police by out-of-court
                                  declarants.
[17]   Ashby also claims that the trial court abused its discretion in admitting

       Detective Slaughter’s testimony concerning Blakley’s and Sparky’s statements

       to him regarding Ashby’s participation in the burglary and possession of

       contraband, respectively. He asserts that the statements are inadmissible on

       hearsay grounds. See Ind. Evidence Rule 802 (“Hearsay is not admissible

       unless these rules or other lase provides otherwise.”); see also Harrison v. State, 32

       N.E.3d 240, 254 (Ind. Ct. App. 2015) (hearsay is generally inadmissible), trans.

       denied. Hearsay is an out-of-court statement offered to prove the truth of the

       matter asserted. Ind. Evidence Rule 801(c). “The erroneous admission of




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 10 of 26
       hearsay testimony does not require reversal unless it prejudices the defendant’s

       substantial rights.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).


[18]   Noting that neither Blakley nor Sparky testified at trial, Ashby asserts that their

       statements, as relayed by Detective Slaughter, are inadmissible hearsay and

       their admission violated his constitutional rights to confrontation and cross-

       examination. The State counters that Detective Slaughter’s testimony, placed

       in context, was not offered for the truth of the matters that Blakley and Sparky

       asserted but merely reflects a narrative concerning the detective’s course of

       investigation of the crime. “Out-of-court statements made to law enforcement

       are non-hearsay if introduced primarily to explain why the investigation

       proceeded as it did.” Id. at 565.


[19]   With respect to Blakley, Ashby challenges Detective Slaughter’s testimony that

       Blakley willingly “identified other individuals that were involved in the

       robbery,” and that “there was some lead information … that identified …

       Ashby as … one of the individuals that was involved … initially.” Tr. Vol. 2 at

       154. The detective explained that “[Blakley] mentioned Ashby, he mentioned

       himself, and an individual with the last name of Langley.” Id. He also testified

       that “Blakley had provided a [nick]name of an individual of where the stolen

       coins and jewelry were sold.” Id. The detective explained his methods of

       pursuing leads and corroborating Blakley’s assertions through independent

       investigation, e.g., Langley’s suicide a couple months after the Kelly home

       invasion and the sale of certain coins and specific pieces of jewelry to Sparky,



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 11 of 26
       who had a booth at the Shepherdsville, Kentucky, Flea Market. Tr. Vol. 2 at

       155-57.


[20]   Blakley’s statements prompted Detective Slaughter to contact the flea market to

       corroborate Sparky’s existence and determine his actual identity. This

       information led to an interview of Sparky at his home. Sparky indicated that of

       Blakley, Langley, and Ashby, he knew only Ashby. He also confirmed that he

       purchased jewelry and coins from Ashby for seven to eight thousand dollars

       total. Id. at 158-59. The detective followed up on the information provided by

       Sparky and found specific jewelry items and coins stolen from the Kellys, which

       Sparky had sold to Louisville Numismatic. Id. at 159-60.


[21]   Ashby specifically challenges Sparky’s statement to Detective Slaughter

       confirming that he bought the coins and jewelry from Ashby. As with Blakley’s

       statements, Ashby challenges those of Sparky’s statements that he claims

       implicate him as part of the Kelly home invasion, and the State contends that

       the statements are not hearsay because they explain the detective’s course of

       investigation.


[22]   When the State offers evidence to explain an officer’s course of investigation,

       “[t]he ultimate inquiry is: Was the out-of-court statement used primarily to

       show the truth of its content, constituting inadmissible hearsay, or merely to

       explain subsequent police action, excluded from hearsay?” Blount, 22 N.E.3d at

       566. “The possibility [that] the jury may wonder why police pursued a

       particular path does not, without more, make course-of-investigation testimony


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 12 of 26
       relevant. Indeed, such testimony is of little value absent a direct challenge to

       the legitimacy of the investigation.” Id. at 565 (citation omitted).


[23]   In Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994), our supreme court articulated

       the following three-part test to make such determinations:


                1. Does the testimony or written evidence describe an out-of-
                court statement asserting a fact susceptible of being true or false?


                If the statement contains no such assertion, it cannot be hearsay
                and the objection should be overruled. If the out-of-court
                statement does contain an assertion of fact, then the Court should
                consider the following before ruling:


                2. What is the evidentiary purpose of the proffered statement?


                .... If the evidentiary purpose is to prove a fact asserted, and such
                purpose is not approved under Evid. R. 801(d),[1] then the
                hearsay objection should be sustained, unless the statement fits
                an exception to the hearsay rule.


                If the proponent of the statement urges a purpose other than to
                prove a fact which is asserted, then the Court should consider the
                following before ruling:


                3. Is the fact to be proved under the suggested purpose for the
                statement relevant to some issue in the case, and does any danger
                of prejudice outweigh its probative value?




       1
        Indiana Evidence Rule 801(d) lists statements that are not hearsay, e.g., certain statements by a declarant-
       witness or an opposing party.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019                Page 13 of 26
               .... If the fact sought to be proved under the suggested non-
               hearsay purpose is not relevant, or it is relevant but its danger of
               unfair prejudice substantially outweighs its probative value, the
               hearsay objection should be sustained.


       Blount, 22 N.E.3d at 566-67 (quoting Craig, 630 N.E.2d at 211).


[24]   Here, Blakley’s statement implicated Ashby as being involved in the Kelly

       home invasion, and Sparky’s statement implicated Ashby as the person who

       sold him the coins and jewelry eventually determined to belong to the Kellys.

       These statements were susceptible of being true or false. As for the evidentiary

       purpose of the statements, the State asserts that it offered the statements merely

       to explain the detective’s course of investigation, not for the truth of the matter

       asserted. Because the State suggested a non-hearsay purpose, we must

       determine whether the probative value of the statements is substantially

       outweighed by the danger of unfair prejudice. The challenged statements

       answered the question as to how Detective Slaughter connected the dots to

       Ashby’s involvement in the crime. The legitimacy of Detective Slaughter’s

       investigation was not in issue, and as such, the danger of unfair prejudice from

       Blakley’s and Sparky’s statements as to Ashby’s involvement substantially

       outweighed the probative value as to the investigation. Without some

       “reasonable level of assurance” that the jury did not consider the statements as

       evidence of the truth of the matter asserted, such as through an “immediate

       limiting instruction from the court …. we cannot be sure that they were

       considered only for their urged non-hearsay purpose.” Blount, 22 N.E.3d at 568

       (citing Williams v. State, 544 N.E.2d 161, 162-63 (Ind. 1989)). Having no such

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 14 of 26
       assurance here, we conclude that the trial court abused its discretion in

       admitting Detective Slaughter’s testimony concerning Blakley’s and Sparky’s

       statements.


[25]   Notwithstanding, a violation of the right to confront and cross-examine

       witnesses does not require reversal if the State can show beyond a reasonable

       doubt that the error did not contribute to the verdict. Koenig v. State, 933

       N.E.2d 1271, 1273 (Ind. 2010). This harmless error analysis requires

       consideration of factors such as the importance of the testimony to the State’s

       case, whether the testimony was cumulative, the presence or absence of

       evidence corroborating or contradicting the testimony on material points, the

       extent of cross-examination otherwise permitted, and the overall strength of the

       State’s case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1974)).


[26]   Ron and Tina testified in detail concerning the home invasion, including the

       masked perpetrator’s intimate and specific knowledge of the nature, extent, and

       location of specific valuables. Ron testified that Ashby had spent time in his

       home and was aware of the location of the safe and of his practice of stashing

       money in the coin boxes of his arcade games in the basement. Responding

       officer Thad Neafus testified that he believed the Kelly home had been targeted

       by someone with knowledge not available to the general public. Ron’s

       daughter Tiffany testified concerning an encounter with Ashby before the home

       invasion, pursuant to which Ashby became aware that her parents were still

       living at the home that he had previously visited. Detective Slaughter provided

       extensive information not linked to the improperly admitted statements

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 15 of 26
       independently corroborating Ashby’s guilt. Most significantly, Ashby’s

       confession included in-depth information concerning his motive and level of

       involvement in the home invasion. State’s Ex. 100. Based on the foregoing, we

       conclude that Ashby’s conviction is sufficiently supported by independent

       evidence of guilt such that the improperly admitted hearsay statements did not

       contribute to the jury’s verdict. We therefore find no reversible error in the

       improper admission of the challenged statements.


         Section 4 – Ashby has failed to establish fundamental error
        concerning the deputy prosecutor’s statements during closing
                                 argument.
[27]   Ashby also maintains that he is entitled to reversal due to alleged prosecutorial

       misconduct during closing argument.


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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 16 of 26
       Stettler v. State, 70 N.E.3d 874, 881-82 (Ind. Ct. App. 2017) (citations and

       quotation marks omitted) (quoting Ryan, 9 N.E.3d at 667), trans. denied.


[28]   Where a defendant fails to request an admonishment to the jury or move for a

       mistrial after objecting to a prosecutor’s alleged misconduct, he must

       demonstrate fundamental error on appeal. Ryan, 9 N.E.3d at 667-68. “Before

       prosecutorial misconduct can be found to have resulted in fundamental error,

       we must first determine whether misconduct has occurred.” Seide v. State, 784

       N.E.2d 974, 977 (Ind. Ct. App. 2003). In so doing, we consider the

       prosecutor’s remarks in the context of the argument as a whole. Id.


[29]   The deputy prosecutor’s closing argument included the following assessment of

       Ashby’s responses during Detective Slaughter’s interview:


               I’m saying that [Ashby], uh, knows or-or demonstrated
               proficiency in this of the way not to say much of anything, but
               I’m doing that to show you that in this interview, he’s not giving
               him the answer. Coming, uh, for instance, uh, after a simple
               “no” question that was asked by, uh, Detective Slaughter, Ashby
               says, “That’s what, I even asked if he’s done that.” “If...” I,
               being Ashby, “I even asked if he...” Blakley, “...has done that.”
               What’s he talking about? He’s talking about a burglary/robbery.
               And Steve, which is Blakley, says, “I got somebody that-that’ll
               do it.” Now more Ashby speak. What are we talking about?
               What-what is the do, and what is the it? Since he won’t tell you, I
               will. Burglary and robbery. What does this mean in the context
               of aiding in the commission of-of the L2 burglary and the L3
               robbery?




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 17 of 26
       Tr. Vol. 2 at 233 (emphasis added). Ashby objected, claiming that the

       highlighted phrase amounted to an improper reference to his decision to assert

       his Fifth Amendment right not to testify. The trial court noted that it did not

       interpret the statement as a reference to Ashby’s decision not to testify;

       nevertheless, the court admonished the jury to disregard the statement.

       Immediately thereafter, the deputy prosecutor attempted to provide context and

       clarification, explaining, in relevant part,


               Ladies and gentlemen, and for the last hour I have been talking
               exclusively about the transcript that was produced and was
               played in open court, uh, from State’s Exhibit No. 100. The
               reference that-that I made then, and have made consistently,
               comes from this statement. In this statement, ladies and
               gentlemen, Dave Ashby re-report-reported, “I even asked if he’s
               done that.” Stephen … Blakley, said, “I got somebody that’ll do
               that.” Now, in this statement, he’s not telling us what is the do
               and what is the it. I am suggesting to you by way of closing
               argument that that is referring to burglary and robbery at the
               Kelly residence. That is the plan.


       Id. at 234-35.


[30]   Ashby did not move for a mistrial. As such, he must demonstrate fundamental

       error. He asserts that fundamental error occurred, citing as support Reynolds v.

       State, 797 N.E.2d 864, 866 (Ind. Ct. App. 2003), and Herron v. State, 801 N.E.2d

       761, 764 (Ind. Ct. App. 2004). A prosecutor’s direct comment on the

       defendant’s exercise of his right against self-incrimination amounts to

       fundamental error. Reynolds, 797 N.E.2d at 869-70. In Reynolds, the prosecutor

       directly referenced the defendant’s decision not to testify at trial. See Id. at 868

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 18 of 26
       (“He takes the 5th Amendment. You take the 5th Amendment when you got

       something to be concerned about …. So in order for that to apply you have to

       have done something to incriminate yourself.”). The Reynolds court held that

       the prosecutor’s statements amounted to fundamental error. Id. at 869. In

       Herron, the alleged misconduct was twofold: first, during direct examination of

       the victim, when the prosecutor asked him what question he would like to ask

       the defendant, Herron objected, and the court sustained the objection; second,

       during closing argument, the prosecutor said, “members of the jury, right over

       there at that table, that’s the only one in the courtroom that can certainly tell us

       where that gun is.” 801 N.E.2d at 765. The Herron court held that because the

       prosecutor’s comment could reasonably be interpreted to suggest that it was the

       defendant’s invocation of his Fifth Amendment privilege that prevented the

       State from producing the weapon, it amounted to fundamental error. Id. at

       766. We find these cases distinguishable.


[31]   Here, we find that when taken in context, the deputy prosecutor’s statement

       amounts to an isolated reference not to Ashby’s decision not to testify at trial

       but merely to Ashby’s use of the vague terms “do” and “it” during his interview

       with Detective Slaughter. See State’s Ex. 100. As such, this case is more

       analogous to Bryant v. State, 41 N.E.3d 1031, 1036 (Ind. Ct. App. 2015), where

       another panel of this Court found that the prosecutor’s comments did not

       explicitly refer to the defendant’s decision not to testify and were, at most, a

       comment on an arguable weakness of one of the exhibits.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 19 of 26
[32]   Overwhelming independent evidence presented at Ashby’s trial supported a

       reasonable inference that the terms “do” and “it” were synonymous with

       completing the home invasion/burglary, thus rendering any error harmless.

       Even if the challenged statement could be deemed an indirect implication

       concerning Ashby’s failure to testify at trial, the trial court properly admonished

       the jury to disregard the statement, and the deputy prosecutor clarified that his

       remarks were limited to the context of Ashby’s responses in his interview with

       Detective Slaughter. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App.

       2009) (“where the trial court adequately admonishes the jury, such

       admonishment is presumed to cure any error that may have occurred.”).

       Additionally, the trial court specifically instructed the jury not to consider

       Ashby’s decision to assert his constitutional protection against self-

       incrimination. See Appellant’s App. Vol. 2 at 130 (final instruction 21: “No

       defendant may be compelled to testify. A defendant has no obligation to testify.

       The Defendant did not testify. You must not consider that in any way.”); see

       also Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (when jury is properly

       instructed, we presume they followed such instruction); and Bryant, 41 N.E.3d

       at 1035 (trial court’s final instructions held sufficient to cure any misconduct in

       prosecutor’s isolated remark). Simply put, any error in the deputy prosecutor’s

       statements was cured by his clarification as well as the trial court’s admonition

       and final instruction. As such, we conclude that Ashby has failed to

       demonstrate error, let alone error so prejudicial as to make a fair trial

       impossible.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 20 of 26
            Section 5 – Ashby has failed to meet his burden of
       demonstrating that his sentence is inappropriate in light of the
                  nature of his offense and his character.
[33]   Ashby asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

       principal role is to leaven the outliers, focusing on the length of the aggregate

       sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

       2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

       consideration of all aspects of the penal consequences imposed by the trial court

       in sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s

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

       the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581

       (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied

       (2014)). The defendant bears the burden of persuading this Court that his

       sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d

       1174, 1181 (Ind. 2016).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 21 of 26
[34]   In considering the nature of Ashby’s offense, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Green v.

       State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that “makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). Ashby

       was convicted of level 2 felony burglary while armed with a deadly weapon. A

       level 2 felony carries a sentencing range of ten to thirty years with an advisory

       term of seventeen and one-half years. Ind. Code § 35-50-2-4.5.


[35]   In asking that we reduce his sentence to the advisory term, Ashby essentially

       requests that we evaluate only the nature of his role in the burglary rather than

       the nature of the burglary itself. In other words, he emphasizes that since he

       was not present at the burglary, he should not be saddled with a sentence that

       accounts for the use of a deadly weapon or the injury Ron suffered when

       Langley struck him in the head with the barrel of a firearm. He characterizes

       his role as simply having pitched the idea to commit the burglary and then

       being unaware of its actual commission. We do not believe that Ashby’s role

       was as limited as he suggests.


[36]   Ashby needed money to pay off a methamphetamine debt. He not only had the

       idea to target the Kellys but also drove Blakley to the Kellys’ rural home to

       ensure that Blakley and Langley could find it and execute the burglary. He

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 22 of 26
       knew that his confederates had driven to the Kellys’ property a couple times but

       had not completed the burglary because the Kellys were not home. He

       understood that the Kellys needed to be present to open the safe and arcade

       game cash boxes for the burglar(s). This knowledge, combined with his

       knowledge that the Kellys had firearms in their home, underscores his

       awareness that the offense could be dangerous and confrontational. He was the

       only one of the three confederates who had knowledge concerning the specific

       locations within the home where the Kellys stored large sums of cash and

       valuables. Langley made various statements during the burglary indicating that

       he had been instructed as to what to take and precisely where to find cash and

       other valuables such as silver, firearms, and televisions. After the burglary,

       Ashby shared an equal one-third portion of the spoils, and when he

       subsequently sold some of the contraband to Sparky, he shared the proceeds

       with his confederates.


[37]   In short, Ashby not only facilitated the crime against the Kellys but also was

       considered an equal partner in it from beginning to end. As such, we are

       unpersuaded by his claim that he should not have been sentenced based on the

       overall nature of the offense, which was a dangerous, confrontational home

       invasion that included violence on one of the victims. The nature of the offense

       does not militate toward reducing Ashby’s sentence.


[38]   Likewise, Ashby’s character does not militate toward a shorter sentence. We

       conduct our review of his character by engaging in a broad consideration of his

       qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 23 of 26
       grounds on reh’g, 11 N.E.3d 571. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). The

       presentence investigation report shows Ashby to be a drug addict who steals to

       support his habit. He began consuming alcohol at age twelve and was a regular

       drinker for more than a decade. He began smoking marijuana at age thirteen

       and, in his early twenties, used marijuana and cocaine regularly. He has used

       methamphetamine regularly for nearly two decades and began using pain

       medications in his mid thirties. Since age thirty-six, the now forty-three-year-

       old Ashby has amassed an extensive criminal record. He admitted to crime

       sprees in Kentucky that resulted in twenty-four burglary convictions, for which

       he received concurrent ten-year sentences. He has multiple convictions for drug

       trafficking and possession and has been incarcerated a total of six or seven

       times. His record also reflects at least three probation violations and a

       smattering of convictions for theft, assault, illegal handgun possession, and

       nonsupport of a dependent. Despite his history of drug-related offenses, his

       only substance abuse treatment was two decades ago and comprised only thirty

       days. Instead of seeking help, he continued to use drugs and incur debt that has

       precipitated his need for quick cash and his continued cycle of criminal

       conduct. Ashby’s lack of self-control underscores his need for structure and

       treatment within the constraints of the Department of Correction.


[39]   The record also reflects a betrayal of trust between Ashby and the victims. As

       discussed, Ashby met Ron while performing community service as a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 24 of 26
       maintenance worker under Ron’s supervision. Ron befriended Ashby, and the

       friendship progressed after Ashby was released from the halfway house. This

       led to invitations to the Kellys’ home, where Ashby gained information

       concerning the locations of their valuables. He subsequently used this

       information to target the Kellys for burglary, and his confederates made use of

       the information to maximize the spoils of the burglary. Rather than merely

       socializing with his new friends, Ashby took note of their valuables and took

       advantage of their kindness. This reflects negatively on his character.


[40]   Ashby claims that he never intended for Ron to get injured during the burglary.

       To the extent that this reflects remorse indicative of upstanding character, we

       note that the trial court identified Ashby’s expressions of remorse as a mitigator

       during sentencing but sentenced him to the maximum allowable term. Trial

       courts are uniquely situated to observe a defendant and can best determine

       whether his remorse is genuine. Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct.

       App. 2012), trans. denied. We defer to the trial court in this regard, but we

       observe that Ashby’s attempts to deflect blame belie his remorse claims. See,

       e.g., Appellant’s App. Vol. 2 at 143 (Ashby’s statement to probation officer

       portraying Ron as “just as sinister as the defendants.”).


[41]   In sum, Ashby has failed to meet his burden of demonstrating that his sentence

       is inappropriate in light of the nature of the offense and his character.

       Accordingly, we affirm his sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 25 of 26
[42]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019   Page 26 of 26
