MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                 Oct 07 2015, 10:01 am
this 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
Jeffrey E. Kimmell                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Griffin,                                          October 7, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1504-CR-144
        v.                                               Appeal from the St. Joseph
                                                         Superior
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1404-MR-4



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015     Page 1 of 12
                                       Statement of the Case
[1]   Robert Griffin appeals his conviction for murder, a felony, following a jury

      trial. Griffin raises two issues for our review, which we restate as the following

      four issues:

              1.      Whether the State presented sufficient evidence to show
                      that Griffin intended to kill L.B.

              2.      Whether the trial court abused its discretion when it
                      permitted the State to ask a leading question to a witness
                      during direct examination.

              3.      Whether the prosecutor committed misconduct during his
                      closing statements.

              4.      Whether the trial court abused its discretion when it
                      permitted the State to call a rebuttal witness for the sole
                      purpose of impeaching statements presented to the jury
                      during Griffin’s defense.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 8, 2014, L.B. and M.B., both juveniles, were involved in a fistfight at

      Perley Park in South Bend. They again confronted each other at the same place

      the next day, except this time M.B. was accompanied by several other juveniles,

      including Griffin, Ty.B., Ta.B., D.W., J.H., and C.W. Griffin carried a .38

      caliber revolver. Another of the cohort carried a 9 mm handgun. L.B. handed

      his cellphone to one of the other juveniles in anticipation of the fight, but that


      Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015   Page 2 of 12
      juvenile threw L.B.’s cellphone onto the ground, breaking it. Griffin then

      pulled out his revolver and fired at L.B. But Griffin missed L.B., who then fled

      the scene, and instead hit two-year-old J.S., who was playing in the park about

      400 yards away. The juvenile with the 9 mm handgun also fired shots toward

      L.B. and missed. As the other juveniles fled, Griffin collected the shell casings

      from his revolver and gave them and the gun to C.W. C.W. placed the shell

      casings in one of his pockets and gave the revolver to D.W. J.S. died at the

      scene.


[4]   Thereafter, officers searched D.W.’s residence, where they recovered .38 caliber

      ammunition along with an empty revolver box. Occupants of that residence

      informed the officers that another individual, J.W., was in possession of the

      revolver.1 As such, the officers searched J.W.’s residence, in which they found

      a revolver that matched both the description of the revolver fired at Perley Park

      on April 9 and the serial number on the empty box at D.W.’s residence. A few

      days later, during a traffic stop at Perley Park, officers discovered .38 caliber

      shell casings in C.W.’s pocket.


[5]   J.S.’s autopsy confirmed that he had died from a gunshot wound caused by a

      .38 caliber revolver in which the bullet had “lost a significant amount” of its

      original velocity at the moment of impact. Tr. at 104. Later forensic testing

      confirmed that the revolver found at J.W.’s residence was the same revolver

      that had fired the shell casings discovered in C.W.’s pocket.


      1
          It is apparent from the record that D.W. and J.W. were related but lived at different residences. Tr. at 283.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015                 Page 3 of 12
[6]   A.G., a twelve-year-old at the park at the time of the shooting, identified one of

      the shooters as wearing a white do-rag. A.G. and L.B. later identified Griffin

      from a photo array as a participant in the shooting. During a subsequent

      interview with the police, Griffin admitted he was wearing a white do-rag at the

      time of the shooting.


[7]   On April 17, 2014, the State charged Griffin with murder, a felony, and

      attempted murder, a Class A felony. At Griffin’s ensuing jury trial, Quintin

      Ferguson testified that he was in jail with Griffin while Griffin was awaiting his

      jury trial. Ferguson testified that Griffin had told him, “I think I might have

      shot the baby on accident . . . .” Id. at 471. Rashu Smith also testified that he

      was in jail with Griffin and that Griffin had told him that Griffin had shot a

      revolver and “maybe one of those bullets might have been the bullet that hit the

      baby.” Id. at 485.


[8]   Following the close of the State’s case-in-chief, Griffin called four witnesses.

      Three of Griffin’s witnesses testified that Ty.B. told them that he had shot J.S.

      The fourth witness testified that Ty.B. did not tell him that. In response to

      Griffin’s witnesses, the trial court permitted the State, over Griffin’s objection,

      to call St. Joseph’s Sheriff’s Department Officer Brian Cook as a rebuttal

      witness for the sole purpose of impeaching the alleged statements by Ty.B.

      Officer Cook testified that, during an interview with the officer, Ty.B. had

      stated that he did not shoot the gun that killed J.S. And, during its closing

      argument, the State noted that Ty.B. had not appeared at trial to take “credit for



      Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015   Page 4 of 12
       this . . . did he? He didn’t come here and raise his right hand.” Id. at 796.

       Griffin objected to those statements, but the court overruled his objection.


[9]    The jury found Griffin guilty as charged. The trial court entered judgment of

       conviction for murder, a felony, and sentenced Griffin accordingly.2 This

       appeal ensued.


                                        Discussion and Decision
                                   Issue One: Sufficiency of the Evidence

[10]   The State’s theory underlying its allegation that Griffin had murdered J.S. was

       that Griffin had intended to murder L.B., missed, and instead killed J.S. Thus,

       the State prosecuted Griffin for J.S.’s death under a theory of transferred intent.

       See White v. State, 638 N.E.2d 785, 786 (Ind. 1994). On appeal, Griffin first

       argues that the State failed to present sufficient evidence that he had acted with

       the necessary intent to kill L.B. and, therefore, he had no intent to transfer to

       J.S.’s death. Our standard for reviewing the sufficiency of the evidence needed

       to support a criminal conviction is as follows:

                First, we neither reweigh the evidence nor judge the credibility of
                witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
                Second, we only consider “the evidence supporting the judgment
                and any reasonable inferences that can be drawn from such


       2
         Citing double jeopardy concerns, the trial court did not enter judgment of conviction against Griffin on the
       jury’s verdict that he had committed attempted murder of L.B. The trial court was correct in that analysis.
       Where, as here, the State prosecutes a defendant under a theory of transferred intent, the attempted crime
       towards the intended victim is a lesser included offense of the completed crime that befalls the unintended
       victim, at least when the intended victim goes unharmed. See, e.g., Ledesma v. State, 761 N.E.2d 896, 899
       (Ind. Ct. App. 2002) (citing the predecessor to Indiana Code Section 35-31.5-2-168(2) (2012)).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015              Page 5 of 12
                evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.
                2008)). A conviction will be affirmed if there is substantial
                evidence of probative value supporting each element of the
                offense such that a reasonable trier of fact could have found the
                defendant guilty beyond a reasonable doubt. Id. “It is the job of
                the fact-finder to determine whether the evidence in a particular
                case sufficiently proves each element of an offense, and we
                consider conflicting evidence most favorably to the trial court’s
                ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)
                (citations omitted).


       Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015). And to prove that Griffin

       committed murder, the State had to show that Griffin knowingly or

       intentionally killed another human being. Ind. Code § 35-42-1-1(1) (2012).


[11]   Griffin asserts that the State failed to present sufficient evidence that he

       intended to kill L.B. In particular, he asserts: that the bullet that struck J.S.

       was smaller than the barrel of the gun that fired it, 3 which would have caused

       the bullet to travel more slowly than a well-fitting bullet; that, given their

       heights and respective distances, Griffin would have had to fire the gun at an

       angle well above L.B.’s head to hit J.S. nearly 400 yards away given the bullet’s

       dynamics; and, in light of those dynamics, it is “an unreasonable inference” to

       conclude that such evidence displays an intent to kill.4 Appellant’s Br. at 10-11.




       3
         Although not relevant to our disposition of this issue, there is no evidence in the record to support this
       assertion.
       4
         We acknowledge the State’s assertion that Griffin’s arguments were not made to the jury with admissible
       evidence and that we should “summarily refuse to consider the mathematic assertions of counsel as credible

       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015                 Page 6 of 12
[12]   But Griffin’s assessment of the record omits evidence that was properly before

       the jury. For example, L.B. testified—as did several others—during his direct

       examination that, before the fight began, Griffin “pulled the gun out, and he

       shot it.” Tr. at 250. And, contrary to Griffin’s analysis on appeal, L.B. was

       explicit about Griffin’s aim:


                Q.    Did you see where he [Griffin] was holding the gun, where
                he was aiming?

                A.       At me, I guess.

                Q.   I mean you say, you guess. Was it up in the air? Was it
                down to the ground? Was it at you?

                A.       At me.


       Id. The jury was free to credit this testimony over Griffin’s assessment of the

       bullet’s trajectory, and there is no doubt that the jury is free to find an intent to

       kill from such evidence. E.g., Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988).


[13]   Griffin’s argument on the sufficiency of the State’s evidence focuses exclusively

       on his intent to kill L.B., and, thus, we do not consider whether the State

       presented sufficient evidence to show the additional step that Griffin was the

       person responsible for J.S.’s death. See, e.g., Barrett v. State, 837 N.E.2d 1022,

       1030 (Ind. Ct. App. 2005), trans. denied. Hence, we affirm Griffin’s conviction

       for murder.



       evidence on appeal.” Appellee’s Br. at 17. In light of the evidence properly before the jury, however, we
       simply address Griffin’s argument on the merits.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015             Page 7 of 12
                                      Issue Two: Smith’s Testimony

[14]   Griffin next asserts that the trial court abused its discretion when it allowed the

       State to ask Smith the following purportedly leading question:


               Q.    Did the defendant make a statement to you that he had
               chased after the guy, he was trying to kill that n****r?

                                                       ***

               A.     He said, yeah. He said shots had fired out. He started
               chasing the guy, shooting at him. Yeah, he said he was trying to
               hit him.


       Tr. at 485-86. We review the trial court’s decision to admit evidence for an

       abuse of discretion, which occurs only when the trial court’s decision is against

       the logic and effect of the facts and circumstances before it. Jacobs v. State, 22

       N.E.3d 1286, 1288 (Ind. 2015).


[15]   We agree with Griffin that the question was a leading question. “A leading

       question is one that suggests to the witness the answer desired.” Williams v.

       State, 733 N.E.2d 919, 922 (Ind. 2000). Here, the question asked plainly

       suggested to Smith the answer the State desired.


[16]   But this alone does not demonstrate error. Leading questions “should not be

       used on direct examination except as necessary to develop the witness’s testimony.”

       Ind. Evidence Rule 611(c) (emphasis added). “[T]he use in the rule of the term

       ‘should’ indicates that the use of leading questions on direct examination rests




       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015   Page 8 of 12
       with the trial court’s discretion.” Thompson v. State, 674 N.E.2d 1307, 1310

       (Ind. 1996).


[17]   Here, it is clear from a review of the totality of Smith’s direct examination that

       the State asked the above question to develop Smith’s testimony. The State had

       repeatedly, through open-ended questions, asked Smith to describe Griffin’s

       statements to him about the shooting prior to the above question. See Tr. at

       484-85 (“What did he [Griffin] say?”; “What did Mr. Griffin tell you when he

       told you about this case?”; “What did he say he did after he drew that

       weapon?”; “Did he say anything else about what happened after the shooting?”;

       “Did the defendant tell you anything else about the case?”). Yet none of those

       questions resulted in Smith fully explaining Griffin’s statements. As such, the

       State bluntly asked the leading question to develop Smith’s testimony. Indeed,

       Griffin’s first objection to the question was not on the basis that it was leading

       but on the grounds that it had been asked and answered. Id. at 486.

       Considering Smith’s direct examination in its full context, we cannot say that

       the trial court abused its discretion when it permitted the State to ask the

       question.


                             Issue Three: Closing Argument by the State

[18]   Griffin next asserts that the prosecutor committed misconduct during closing

       argument when the prosecutor argued that Ty.B. had not appeared at trial to

       take “credit for this . . . did he? He didn’t come here and raise his right hand.”

       Id. at 796. It is undisputed that Ty.B. did not testify because he had exercised

       his Fifth Amendment right to be free from self-incrimination.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015   Page 9 of 12
[19]   As the Indiana Supreme Court has explained:


               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.
               Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
               v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
               duty to present a persuasive final argument and thus placing a
               defendant in grave peril, by itself, is not misconduct. Mahla v.
               State, 496 N.E.2d 568, 572 (Ind. 1986). “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.”


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (emphases in original).5


[20]   During his defense, Griffin, who knew Ty.B. would not be available to testify,

       called four witnesses, three of whom testified that Ty.B. had admitted to them

       that he had shot J.S. The State then called Officer Cook as a rebuttal witness,

       and he impeached Griffin’s witnesses’ recollections of Ty.B.’s statements when

       he testified that Ty.B. had disavowed responsibility for J.S.’s death. And, in his

       closing statement, Griffin’s counsel relied on the testimony of the three




       5
         We acknowledge the State’s argument that Griffin might have waived this argument for various reasons.
       Nonetheless, we decide this issue on the merits, with the exception of Griffin’s arguments that the State
       should have granted immunity to Ty.B. in exchange for his testimony. That argument is not supported by
       cogent reasoning and is waived. Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015          Page 10 of 12
       witnesses he had called who had implicated Ty.B., asserting that Ty.B. “said

       several times, I’m [the] one who shot him.” Tr. at 786.


[21]   As such, the prosecutor did not commit misconduct because Griffin opened the

       door to the prosecutor’s statement that Ty.B. had not personally appeared and

       testified that he accepted responsibility for J.S.’s death. Whether Ty.B. did or

       did not accept responsibility for J.S.’s death was an issue placed before the jury

       by Griffin, and the prosecutor was permitted to respond to the defense’s

       arguments. Denes v. State, 508 N.E.2d 6, 11 (Ind. 1987). In other words, Griffin

       cannot have it both ways. He cannot use the fact that Ty.B. was unavailable

       both to bolster his defense and to call into question the State’s rebuttal.


[22]   Moreover, the probable persuasive effect of the prosecutor’s comment on the

       jury’s decision was negligible. A reasonable juror likely would not have

       thought twice about the fact that Ty.B. did not testify that he had shot and

       killed J.S. And, as the State correctly notes on appeal, the prosecutor’s

       comment “comprised four lines in a six-day trial” with “over 800 pages of

       transcript.” Appellee’s Br. at 31. Hence, Griffin cannot demonstrate error, let

       alone reversible error. Cf. Ryan, 9 N.E.3d at 672 (holding that “a single instance

       of prosecutorial misconduct” on the facts of that case did not have “an

       undeniable and substantial effect on the jury’s decision”).


                                  Issue Four: Impeachment Testimony

[23]   Last, Griffin complains that the trial court abused its discretion when it

       permitted the State to call Officer Cook as a rebuttal witness for the sole


       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015   Page 11 of 12
       purpose of impeaching the alleged statements by Ty.B. to three of Griffin’s four

       witnesses.6 But, as explained above, Griffin opened the door to the State’s

       evidence and closing argument on this issue. See Cameron v. State, 22 N.E.3d

       588, 592-93 (Ind. Ct. App. 2014) (observing that otherwise inadmissible

       evidence may become admissible where the defendant opens the door to

       questioning on that evidence). We reject Griffin’s argument.


                                                        Conclusion

[24]   In sum, we affirm Griffin’s conviction for murder, a felony.


[25]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       6
         Griffin’s argument on this issue is particularly difficult to discern. Insofar as he argues that a hearsay rule
       should have applied to Officer Cook’s testimony, that argument is not supported by cogent reasoning and is
       waived. App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1504-CR-144| October 7, 2015                 Page 12 of 12
