Pursuant to Ind.Appellate Rule 65(D),

                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                        Jul 12 2012, 8:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                  CLERK
case.                                                           of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

GARY L. GRINER                                   GREGORY F. ZOELLER
Griner & Company                                 Attorney General of Indiana
Mishawaka, Indiana

                                                 NICOLE M. SCHUSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KEVIN TAYLOR,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 20A03-1112-CR-563
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry Shewmaker, Judge
                             Cause No. 20C01-0407-MR-96


                                       July 12, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                   Case Summary

      Kevin Taylor appeals his conviction and sixty-five-year sentence for felony

murder. We affirm.

                                          Issues

      Taylor raises four issues, which we restate as:

             I.      whether there is sufficient evidence to support the
                     underlying robbery;

             II.     whether several witnesses‟ testimony was incredibly
                     dubious and insufficient to support the felony murder
                     conviction;

             III.    whether the manner in which the jury was instructed
                     on felony murder amounts to fundamental error; and

             IV.     whether his sentence is inappropriate.

                                          Facts

      Gwendolyn Hunt was a drug dealer in Elkhart. On May 19, 2003, Taylor and

Kelly Thomas asked Stacy Orue, a friend of Hunt‟s, to buy cocaine from Hunt instead of

the person she had been buying from that day. When Orue knocked on Hunt‟s door using

a special knock, Thomas pushed his way into Hunt‟s apartment. Taylor also went into

the apartment and, at one point, Taylor pinned Hunt against the wall so she could not

enter the main part of the apartment. Eventually, Taylor grabbed Orue‟s arm, and they

ran from the apartment to Taylor‟s truck. Thomas followed them to the truck, and they

left. Hunt was shot in head during the incident.

      A neighbor, Andrea Micklevitz, heard the gun shot, looked out the window, and

saw two men running down the alley. One of the men had a small white grocery sack in

                                            2
his hand. Another woman, Carolyn Keeney, was walking down the street when she heard

a loud noise and saw Taylor and Orue and then Thomas hurry out of Hunt‟s apartment

building and into Taylor‟s truck. Keeney saw Taylor drop something rolled with rubber

bands that looked like money. As Thomas jumped into the truck, his shirt came up,

revealing the handle of a gun.

      Hunt‟s upstairs neighbors also heard a loud noise, investigated, and found Hunt on

the floor still breathing but making a choking noise and spitting blood. They called 911,

and Hunt was taken to a hospital where she died of a gunshot wound to the head.

      After Taylor, Thomas, and Orue left Hunt‟s apartment, they went to another

apartment on Sherman Street. When they arrived, Angela Salazar, who dated Thomas,

heard Taylor tell Thomas that “he shouldn‟t have shot her.” Tr. p. 508. Taylor, Thomas,

and Orue went into a bedroom, and Thomas had “a large amount” of cocaine with him.

Tr. p. 418. Orue guessed that Thomas had at least an ounce, which she considered

unusual. Orue gave Thomas $30, and Thomas gave her at least $150 worth of cocaine.

Orue also considered this to be unusual.

      Keeney was also at the Sherman Street apartment when Taylor, Thomas, and Orue

arrived there with a shoe box. She saw them with a larger amount of cocaine than normal

and saw them counting money. Salazar later saw Thomas with an unusual amount of

money and drugs and a gun. Taylor and Orue also had drugs that night. Later that night,

Taylor became upset when he saw Orue walking around wearing one of Hunt‟s scarves.

      When police investigated Hunt‟s apartment, they found a dresser drawer in Hunt‟s

bedroom open all the way and a kitchen drawer open all the way. Hunt was known to

                                           3
keep drugs and money in these two drawers. She was also known to keep her money

rolled up with rubber bands. No drugs or money was found in Hunt‟s apartment.

       On July 24, 2004, the State charged Taylor, Thomas, and Orue with felony murder

for killing Hunt while committing robbery. In 2005, the three were tried together and

convicted. Taylor‟s conviction was affirmed on direct appeal. See Taylor v. State, No.

20A03-0507-CR-319 (Ind. Ct. App. Sept. 25, 2005). In 2006, however, a panel of this

court reversed Thomas‟s felony murder conviction because the jury was not instructed on

the elements of robbery, the underlying offense. See Thomas v. State, No. 20A03-0503-

CR-138 (Ind. Ct. App. Feb. 3, 2006). After Thomas‟s conviction was reversed, Taylor

filed a petition for post-conviction relief, which was denied. On appeal, we concluded

that Taylor was denied a procedurally fair post-conviction relief hearing because of post-

conviction counsel‟s performance, and we reversed and remanded for a new post-

conviction relief hearing. See Taylor v. State, 882 N.E.2d 777 (Ind. Ct. App. 2008).

Following a hearing, the post-conviction court denied Taylor‟s petition, and Taylor

appealed again.     On appeal, we reversed Taylor‟s conviction because of the jury

instruction issue. See Taylor v. State, 922 N.E.2d 710 (Ind. Ct. App. 2010). Although

our supreme court initially granted transfer, it later determined that transfer was

improvidently granted and denied transfer. At some point after Thomas was retried, Orue

agreed to dismiss her post-conviction relief petition in exchange for the suspension of

part of her fifty-five-year sentence.

       Taylor was retried in October 2011, and a jury found him guilty of felony murder.

The trial court sentenced Taylor to sixty-five years. Taylor now appeals.

                                            4
                                        Analysis

                         I. Sufficiency of Evidence of Robbery

      Taylor argues that there is insufficient evidence to support the underlying robbery.

The standard of review for claims of insufficient evidence is well settled. We do not

reweigh the evidence or judge the credibility of the witnesses, and we respect the jury‟s

exclusive province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375

(Ind. 2010).   We consider only the probative evidence and reasonable inferences

supporting the verdict and affirm if the probative evidence and reasonable inferences

drawn from the evidence could have allowed a reasonable trier of fact to find the

defendant guilty beyond a reasonable doubt. Id. “A verdict may be sustained based upon

circumstantial evidence alone if that circumstantial evidence supports a reasonable

inference of guilt.” Lacey v. State, 755 N.E.2d 576, 578 (Ind. 2001).

      The State charged Taylor with killing Hunt while committing robbery. See Ind.

Code § 35-42-1-1(2). A person who knowingly or intentionally takes property from

another person or from the presence of another person by using or threatening the use of

force on any person or by putting any person in fear commits robbery, a Class C felony.

I.C. § 35-42-5-1.

      Taylor argues, “[t]he State presented no evidence that any property was taken

from Hunt.” Appellant‟s Br. p. 10. He contends that the State did not present any

evidence that Hunt had money or drugs at her apartment immediately prior to her death.

He also argues that the fact that Taylor may have been seen with a roll of money and the



                                            5
fact that Taylor and Thomas were seen with drugs are too speculative to support the

conviction because money and drugs are fungible and cannot be tied directly to Hunt.

      The State produced evidence detailing Hunt‟s drug dealing operation through the

testimony of her associate, Joshua Shaw, who testified that he learned the business of

dealing cocaine from Hunt. He described the cooking and packaging process, which took

place at Hunt‟s apartment, and explained that Hunt did not sell drugs from her apartment

but instead maintained other apartments from which she sold drugs. Hunt taught Shaw to

organize his money with the bills going in the same direction, facing up, and rolled with a

rubber band. Shaw explained that Hunt kept drugs and money at her apartment and that,

as the amount of cocaine diminished, Hunt would have more money. Shaw testified that

Hunt stored her money and drugs in the dresser drawer in her bedroom and in the kitchen

drawer, both of which were found open by police. Shaw testified that he had previously

seen Orue in Hunt‟s house accessing the kitchen drawer. Evidence was also presented

that no drugs or money was found in Hunt‟s apartment after she was shot.

      This evidence of Hunt‟s drug operation taken with the evidence of Taylor

dropping a rubber banded roll as he fled Hunt‟s apartment, one of the men running from

Hunt‟s apartment with a bag in hand, Thomas having an unusual amount of cocaine and

money that night, Taylor and Thomas counting money, and Orue wearing one of Hunt‟s

scarves is more than mere speculation or conjecture that Taylor or his cohorts took

Hunt‟s property. From this evidence, the jury could reasonably infer that Hunt was killed

during the commission of a robbery. There is sufficient evidence to support the robbery

underlying the felony murder conviction.

                                            6
                                II. Incredible Dubiousity

       Taylor also argues that his conviction is based on the incredibly dubious testimony

of Orue, Salazar, and Keeney. Within the narrow limits of the “incredible dubiosity”

rule, we may impinge upon a jury‟s function to judge the credibility of a witness. Love v.

State, 761 N.E.2d 806, 810 (Ind. 2002). If a sole witness presents inherently improbable

testimony and there is a complete lack of circumstantial evidence, we may reverse a

defendant‟s conviction. Id. “This is appropriate only where the court has confronted

inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony

of incredible dubiosity.” Id. “Application of this rule is rare and the standard to be

applied is whether the testimony is so incredibly dubious or inherently improbable that no

reasonable person could believe it.” Id.

       Regarding Orue‟s testimony, Taylor asserts that Orue maintained her innocence

until shortly before Thomas‟s retrial when the chief deputy prosecutor met with her in

jail. After Orue testified against Thomas, the State agreed to suspend ten years of her

fifty-five-year sentence in exchange for her agreeing to dismiss her petition for post-

conviction relief and not pursuing a new trial. According to Taylor, Orue‟s testimony

was coerced by a “wink and nod” agreement and her hope that she would get a deal from

the State, which she ultimately did.

       This is argument is unavailing. First, because the three were originally tried

together and Thomas and Taylor‟s convictions had been reversed based on an

instructional error, it is quite possible that Orue would have been successful in her post-

conviction relief proceedings, which were pending when she testified against Thomas.

                                            7
As such, the State may have had good reason to agree to the suspension of a portion of

Orue‟s sentence to avoid having to retry her.          Further, Orue repeatedly testified at

Taylor‟s trial that she was not promised anything in exchange for her testimony against

Thomas. Finally, the jury was fully aware of Orue‟s lies to police, her prior declarations

of innocence, her testimony at Thomas‟s retrial, and the subsequent suspension of a

portion of her sentence. It was for the jury, not us, to assess Orue‟s credibility in light of

these events.

       Taylor‟s also attacks Orue‟s, Salazar‟s, and Keeney‟s testimony because they were

all addicted to and under the influence of cocaine at the time of Hunt‟s death and because

they gave inconsistent statements or lied to police. However, the incredible dubiousity

rule does not apply here because this is not a circumstance where a sole witness gave

inherently improbable testimony. Further, Orue‟s, Salazar‟s, and Keeney‟s drug use,

criminal histories, and prior inconsistent statements were presented to the jury, and the

jury was free to assess their credibility accordingly. We will not interfere in the jury‟s

role of assessing witness credibility.

                              IV. Felony Murder Instruction

       Taylor argues that the manner in which the jury was instructed on felony murder

amounted to fundamental error. Taylor acknowledges that he did not object to this

instruction. A defendant who fails to object to an instruction or fails to tender an

instruction waives any challenge to that instruction on appeal. Baker v. State, 948 N.E.2d

1169, 1178 (Ind. 2011).       To avoid waiver, Taylor argues that the felony murder

instruction resulted in fundamental error.        See id. (“The fundamental error doctrine

                                              8
provides a vehicle for the review of error not properly preserved for appeal.”). “In order

to be fundamental, the error must represent a blatant violation of basic principles

rendering the trial unfair to the defendant and thereby depriving the defendant of

fundamental due process.” Id. The error must be so prejudicial to the defendant‟s rights

that it makes a fair trial impossible. Id.

       The jury was instructed:

              The crime of felony murder as alleged in the information is
              defined by statute as follows:

                      A person who
                      kills another human being while committing or
                      attempting to commit . . . robbery . . . commits felony
                      murder.

              The underlying offense of robbery, as alleged in the
              Information, is defined by statute as follows:

                      A person who knowingly . . . takes property from
                      another person or from the presence of another person:
                      (1)   by using or threatening the use of force on any
                            person; or
                      (2)   by putting any person in fear; commits robbery .
                            ..

              To convict the Defendant of felony murder, the State must
              prove the following elements beyond a reasonable doubt:
                     The Defendant:
                     1.     knowingly
                     2.     took or attempted to take property from another
                            person or from the presence of another person;
                     3.     by using or threatening the use of force on any
                            person or by putting any person in fear; and
                     4.     while doing so, another human being was
                            killed.

              If the State fails to prove any of these elements beyond a
              reasonable doubt, you should find the Defendant not guilty.

                                             9
              If the State did prove each of these elements beyond a
              reasonable doubt, you may find the Defendant guilty of
              felony murder.

App. p. 65 (ellipses in original). The trial court did not instruct the jury on attempt.

Taylor argues that, based on the lack of evidence regarding the actual taking of property,

the jury could have determined that it could return a guilty verdict even if no property

was actually taken from Hunt. According to Taylor, the jury was left to fend for itself

and make up its own rules regarding what constituted an attempt.

       We do not believe that any error in the manner in which the jury was instructed

made a fair trial impossible so as to rise to the level of fundamental error. Taylor was not

charged with attempted robbery and the State did not argue to the jury that Hunt was

killed during an attempted robbery. The State‟s theory of the case was that Thomas,

Taylor, and Orue robbed Hunt, taking cocaine and money from her, and the evidence

supports this theory. Because the State did not proceed on a theory of attempted robbery,

Taylor has not established that the failure to instruct the jury on the elements of attempt

was fundamental error.

                                       V. Sentence

       Taylor argues that his sixty-five-year sentence is inappropriate. Indiana Appellate

Rule 7(B) permits us to revise a sentence authorized by statute if, after due consideration

of the trial court‟s decision, we find that the sentence is inappropriate in light of the

nature of the offense and the character of the offender. Although Rule 7(B) does not

require us to be “extremely” deferential to a trial court‟s sentencing decision, we still


                                            10
must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

(Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden

of persuading the appellate court that his or her sentence is inappropriate.” Id.

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived „correct‟ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),

we may consider all aspects of the penal consequences imposed by the trial court in

sentencing the defendant, including whether a portion of the sentence was suspended.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       Taylor argues that his maximum sentence is inappropriate because he was not the

shooter and is not the worst offender. Although our supreme court has observed that the

maximum possible sentence is generally most appropriate for the worst offenders, it has

also explained that it is not a guideline to determine whether a worse offender could be

imagined. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).



                                             11
        Although the evidence indicates that Thomas, not Taylor, was the shooter, Taylor

was actively involved in the commission of the offense. It was Taylor who suggested

that Orue, Hunt‟s friend, buy cocaine from Hunt that day. During the ordeal, Taylor

entered Hunt‟s apartment and at one point pinned Hunt against the wall to keep her from

going further into the apartment. During the robbery, Hunt was shot in the head at close

range. Taylor then drove Orue and Thomas from the scene in his truck and was seen with

money and drugs after the shooting. Nothing about the nature of the offense warrants a

reduction of Taylor‟s sentence.

        Regarding Taylor‟s character, he has had constant contact with law enforcement

since 1981. He has at least three misdemeanor convictions and felony convictions for

possession of cocaine and robbery and was on probation at the time of this offense. His

felony criminal history is closely related to this offense and does not bode well for his

character. Although Taylor completed a drug addiction program while incarcerated and

has earned college credits, we do not believe that these accomplishments render his

sentence inappropriate.1 Taylor has not established that his sixty-five-year sentence is

inappropriate.

                                               Conclusion

        There is sufficient evidence that Taylor and/or his cohorts took property from

Hunt. The incredible dubiousity rule does not apply to Orue‟s, Salazar‟s, and Kenney‟s

1
  To the extent Taylor argues the trial court failed to recognize his drug addiction as a mitigator, the trial
court expressly found his addiction issues and accomplishments while incarcerated as mitigators. See
App. p. 89. The trial court also refused to consider a risk assessment tool because it was not available
under the previous sentencing scheme and reflected Taylor‟s criminal history, which the trial court had
already considered. Without more, Taylor has not established that the trial court erroneously considered
the mitigators in this case.
                                                     12
testimony. The manner in which the jury was instructed does not amount to fundamental

error. Finally, Taylor did not establish that his sixty-five-year sentence is inappropriate.

We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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