MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               Apr 24 2015, 9:49 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas W. Vanes                                           Gregory F. Zoeller
Office of the Public Defender                             Attorney General of Indiana
Crown Point, Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Corey Lorenzo Walton,                                     April 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          45A03-1409-CR-320
        v.                                                Appeal from the Lake Superior
                                                          Court.
                                                          The Honorable Diane Ross Boswell,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 45G03-1207-FA-18




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015             Page 1 of 8
                                          Statement of the Case
                                                                                                   1
[1]   Corey Lorenzo Walton appeals his convictions by jury of attempted murder, a
                                                             2
      Class A felony, and attempted robbery, a Class A felony. We affirm.


                                                         Issues
[2]   Walton raises two issues, which we restate as:


                 I.       Whether the State’s comments to the jury during closing
                          arguments resulted in fundamental error.
                 II.      Whether the evidence is sufficient to support Walton’s
                          conviction for attempted murder.

                                   Facts and Procedural History
[3]   On the afternoon of July 16, 2012, Henry Walker went to a public park in

      Hammond, Indiana. Walton arrived at the park shortly after Walker. Walton

      wore a black shirt, shorts, and an “ankle bracelet.” Tr. p. 108. Walton greeted

      several people, including Walker, who shook his hand.


[4]   Walker sat at a table and listened to music on his headphones for twenty

      minutes. Next, Walton approached him, brandishing a handgun. Walton

      pointed the gun at Walker’s chest and told Walker to “give him everything.”

      Id. at 103.




      1
          Ind. Code §§ 35-41-5-1 (1977), 35-42-1-1 (2007).
      2
          Ind. Code §§ 35-41-5-1, 35-42-5-1 (1984).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 2 of 8
[5]   Walker grabbed the gun and pushed it down and away from his chest. After a

      short struggle, Walton stepped back from Walker and shot him twice. Walton

      fled, and Walker returned to his home, where he discovered he had been shot in

      the groin and the hip. Walker was taken to the hospital, where he stayed for a

      week. Doctors removed one of his testicles as a result of the shooting.


[6]   Walker identified Walton in a photographic lineup. The State charged Walton

      with attempted murder, attempted robbery, and battery. Prior to trial, Walton

      filed a motion in limine, asking the trial court to bar any evidence related to

      Walton wearing an “ankle bracelet” at the time of the crime. Appellant’s App.

      p. 49. During a pretrial hearing, the parties and the trial court clarified that the

      bracelet was a monitoring device. The trial court ruled, “the person who

      actually saw the ankle bracelet can testify about the ankle bracelet if they

      actually saw [it].” Tr. p. 13. At trial, Walker testified without objection that

      Walton wore an ankle bracelet during their encounter. Id. at 108.


[7]   A jury determined that Walton was guilty as charged. The trial court merged

      the battery conviction with the attempted murder conviction and sentenced him

      accordingly. This appeal followed.


                                   Discussion and Decision
                  A. Closing Arguments and Fundamental Error
[8]   During closing arguments, the State twice referred to Walton wearing a

      “monitor” during his encounter with Walker. Id. at 219. Walton argues that

      the prosecutor’s comments were an impermissible reference to Walton’s

      Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 3 of 8
       criminal history that unfairly prejudiced him in the eyes of the jury and

       amounted to prosecutorial misconduct. He explains that Walker’s use of the

       word “bracelet” was ambiguous and could have referred to jewelry, but the

       State’s use of the word “monitor” was more indicative of a criminal record.


[9]    Walton concedes that he did not argue at trial that the prosecutor’s comments

       were unfairly prejudicial. A defendant waives a claim of prosecutorial

       misconduct for appellate review by failing to object in the trial court. Ryan v.

       State, 9 N.E.3d 663, 667 (Ind. 2014). When a claim of prosecutorial

       misconduct is waived but the defendant intends to present it on appeal despite

       waiver, the defendant must establish not only the grounds for prosecutorial

       misconduct but also that the misconduct constituted fundamental error. Id. at

       667-68.


[10]   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 or she would not have been subjected. Booher v. State, 773 N.E.2d

       814, 817 (Ind. 2002). 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. Id.


[11]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged error is so

       prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan, 9


       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 4 of 8
       N.E.3d at 668. Fundamental error is meant to permit appellate courts a means

       to correct the most egregious and blatant trial errors that otherwise would have

       been procedurally barred, not to provide second bites at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error. Id.


[12]   To establish fundamental error, the defendant must show that, under the

       circumstances, the trial judge erred by not raising the issue sua sponte because

       alleged errors (a) constitute clearly blatant violations of basic and elementary

       principles of due process and (b) present an undeniable and substantial potential

       for harm. Id. In evaluating the issue of fundamental error, our task in this case

       is to look at the alleged misconduct in the context of all that happened and all

       relevant information given to the jury—including evidence admitted at trial,

       closing argument, and jury instructions—to determine whether the misconduct

       had such an undeniable and substantial effect on the jury’s decision that a fair

       trial was impossible. Id.


[13]   During closing arguments, the prosecutor told the jury:

               Prosecutor: So you—again, you’re back to who did it. [Walker]
               picked Corey out of the lineup. He pointed Corey out during the
               trial. He also indicated that Corey had on a monitor. Now, you
               can take all of these facts and reason as you get back there and
               study the evidence and what you choose to believe and make
               certain conclusions. You can reason your way to how many
               people fit his description as running through the park at 67th and-
               Detective Schmidt: -Grand.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 5 of 8
               Prosecutor: -Grand with the monitor on, probably not many.
               He was probably accurate in the person that he picked out who
               shot him.
       Tr. pp. 219-20.


[14]   At trial, Walton’s defense was that he was not the shooter. The prosecutor was

       entitled to refute Walton’s interpretations of the facts and comment on the

       evidence. See West v. State, 938 N.E.2d 305, 310 (Ind. Ct. App. 2010)

       (prosecutor did not commit misconduct by calling a defense witness a liar

       during closing argument), trans. denied. Walker testified at trial without

       objection that Walton had worn an ankle bracelet. In addition, during a pretrial

       hearing Walton agreed that, in the context of testimony by potential State’s

       witness Dominique Cross, Walton’s ankle monitor could be “an issue of

       identification.” Tr. p. 5. Under these circumstances, the prosecutor’s

       comments about Walton’s ankle monitor were a permissible comment on the

       evidence rather than an attempt to place impermissible evidence in front of the

       jury or to inflame the jury’s prejudices. See Wrinkles v. State, 749 N.E.2d 1179,

       1197 (Ind. 2001) (prosecutor’s description of defendant as a “psychopath” and

       “sociopathic” were fair comments on the evidence because evidence showed

       that defendant had been diagnosed with multiple mental illnesses). Walton has

       not demonstrated prosecutorial misconduct or fundamental error.


              B. Sufficiency of the Evidence for Attempted Murder
[15]   Walton argues that the State failed to prove that he intended to kill Walker. In

       considering challenges to the sufficiency of the evidence, we neither reweigh the


       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 6 of 8
       evidence nor judge witness credibility. Kiplinger v. State, 922 N.E.2d 1261, 1266

       (Ind. 2010). Instead, we consider only the evidence supporting the judgment

       and any reasonable inferences drawn from the evidence. Tin Thang v. State, 10

       N.E.3d 1256, 1258 (Ind. 2014). We affirm a conviction unless no reasonable

       trier of fact could find every element proved beyond a reasonable doubt. Blount

       v. State, 22 N.E.3d 559, 565 (Ind. 2014).


[16]   To convict Walton of attempted murder, the State was required to prove

       beyond a reasonable doubt that Walton took a substantial step toward

       intentionally killing Walker. Ind. Code §§ 35-41-5-1, 35-42-1-1. The intent to

       kill may be inferred from the use of a deadly weapon in a manner likely to

       cause death or great bodily injury, in addition to the nature of the attack and

       circumstances surrounding the crime. Fuentes v. State, 10 N.E.3d 68, 75 (Ind.

       Ct. App. 2014), trans. denied. Discharging a weapon in the direction of a victim

       is substantial evidence from which the jury could infer intent to kill. Id.


[17]   Walton argues that the evidence does not establish his intent to kill Walker

       because he “fired shots into Walker’s lower body,” Appellant’s Br. p. 5, which

       he claims shows only an intent to wound. We disagree. Walton pointed his

       gun directly at Walker’s chest and instructed Walker to give him everything.

       After a struggle, Walton broke free and discharged his weapon at Walker,

       striking him in his lower torso, specifically his groin and his hip. The shots, if

       left untreated, were likely to cause death or great bodily injury. Walker was

       hospitalized for a week after the shooting and doctors removed one of his

       testicles. This is ample evidence from which a jury could have inferred intent to

       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 7 of 8
       kill beyond a reasonable doubt. See Maxwell v. State, 731 N.E.2d 459, 462 (Ind.

       Ct. App. 2000) (evidence that defendant fired handgun at victim at close range

       sufficient to establish intent to kill), trans. denied.


                                                Conclusion
[18]   For the foregoing reasons, we affirm the judgment of the trial court.


[19]   Affirmed.


       Friedlander, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1409-CR-320 | April 24, 2015   Page 8 of 8
