                                                                                 FILED
                                                                            Mar 19 2019, 10:14 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Megan Shipley                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Ziad Abd,                                                 March 19, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-782
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G04-1605-MR-20441



      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Ziad Abd (Abd), appeals his conviction and sentence for

      murder, Ind. Code § 35-42-1-1(1); and robbery resulting in bodily injury, a

      Level 5 felony, I.C. § 35-42-5-1(1).


      Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019                              Page 1 of 23
[2]   We affirm.


                                                    ISSUES
[3]   Abd presents us with five issues on appeal, which we restate as:


            (1) Whether the trial court erred when it admitted evidence procured

               pursuant to certain search warrants;

            (2) Whether the State proved beyond a reasonable doubt that Abd

               committed the offenses;

            (3) Whether the trial court committed fundamental error by failing to give a

               certain instruction on circumstantial evidence;

            (4) Whether the trial court committed fundamental error when it asked

               Abd’s counsel if Abd would exercise his right of allocution at sentencing;

               and

            (5) Whether Abd’s sentence is inappropriate in light of the nature of his

               offenses and his character.


                       FACTS AND PROCEDURAL HISTORY
[4]   Mohamed Mahmoud 1 (Mahmoud) ran a tax preparation business, Taxesmart,

      on the west side of Indianapolis, Indiana. Mahmoud often worked late into the

      night and only accepted cash, which he deposited in a safe that he kept in his

      office under his desk. Only Mahmoud knew the keypad combination to the




      1
          Mahmoud was also known as Adel Helmi.


      Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 2 of 23
      safe, and there was no key backup to open it. Mahmoud charged $300 to $350

      per tax return. During tax season, Mahmoud saw approximately twenty clients

      per day. Mahmoud had prepared Abd’s tax return in the past, and they

      attended the same mosque.


[5]   Abd and his son, Akram Abd (Akram), had a reported combined total income

      of less than $20,000 for the tax years 2013, 2014, and 2015. Abd had been

      evicted or had eviction proceedings instigated against him at his previous two

      residences for failure to pay rent, and by April 2016, eviction proceedings had

      been instigated against him at his current residence at the Cherry Glen

      Apartments. Abd’s black, four-door 2012 Toyota Camry had been repossessed

      for non-payment in January 2016, and he was still behind in his payments as of

      April 2016. Akram drove a white, four-door 2012 Ford Taurus, which had

      tinted windows and a sunroof, but he was also behind in his payments. In the

      year preceding April 2016, Abd never had more than $32 in his bank account,

      and Akram’s bank account had been closed in February 2016 with a negative

      balance of $700.


[6]   In the early days of April 2016, Abd appeared at Taxesmart inquiring about the

      location of one of Mahmoud’s other businesses. The employee speaking with

      Abd did not know the location of the other business, but he instructed Abd to

      ask Mahmoud, who was working in his office at the time. Abd left without

      speaking to Mahmoud. Around midnight on April 20, 2016, an officer with the

      Speedway Police Department observed Abd and Akram sitting in Akram’s

      Ford Taurus parked at the Wayne Township School Corporation’s

      Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 3 of 23
      administrative building. The car was parked such that Abd and Akram had a

      direct view of the front door of Taxesmart across the street where Mahmoud

      was still working that evening. Abd and Akram eventually left the Taurus,

      walked to a nearby gas station, returned to their car, and, after speaking briefly

      with the officer, drove away.


[7]   Surveillance footage showed Mahmoud locking the door to his business and

      leaving work at 1:37 a.m. on April 21, 2016. At 2:18 a.m. someone appearing

      much taller than Mahmoud’s five feet, one inch, unlocked the door of

      Taxesmart and left approximately a minute and a half later carrying something.

      At 2:20 a.m. Akram called Abd on his cell phone. Abd and Akram left

      Indianapolis in their separate vehicles during the early morning hours of April

      21, 2016. Akram called Abd seventeen times between 2:20 a.m. and 7:00 a.m.

      They drove east to Dayton and then north to Detroit, where they abandoned

      Akram’s Ford Taurus on the side of the highway.


[8]   Around 7:00 a.m. on April 21, 2016, Mahmoud’s body was found at the

      Airport Office Center office park (AOC) on the west side of Indianapolis by a

      man who spotted the body as he went to the office park dumpster. Mahmoud’s

      legs were bound with duct tape at the ankles, and his arms were bound with

      duct tape behind his back. Mahmoud’s head had been covered with a grey and

      white patterned pillowcase which had been filled with approximately one

      pound of feces. The pillowcase was duct taped around Mahmoud’s neck.

      Mahmoud had died of asphyxiation due to the ligature of duct tape around his



      Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 4 of 23
       neck, the binding of his hands behind his body, and the inhalation of feces,

       which had completely blocked his respiratory and alimentary systems.


[9]    Surveillance cameras at the AOC captured images of a white four-door sedan

       with tinted windows and a sunroof entering the office park at 1:54 a.m. on

       April 21, 2016. The same white sedan left the office park at 2:10 a.m., followed

       by a black four-door sedan. No other cars were seen on the footage entering or

       leaving the AOC overnight. Investigators soon learned that Abd and Akram

       had been parked across the street from Taxesmart hours before Mahmoud had

       been found dead, and Taxesmart employees identified Abd after being shown

       surveillance footage from the gas station Abd and Akram visited the night of

       April 20, 2016.


[10]   Investigation subsequently revealed Abd’s and Akram’s ownership of the black

       2012 Toyota Camry and the white 2012 Ford Taurus and that Akram had

       purchased a maroon Ford Explorer for $4,274.65 in cash on April 25, 2016.

       Investigators wished to search those vehicles, Abd’s Cherry Glen apartment,

       and Abd and Akram’s cell phone records. The Marion Superior Court had

       recently begun a test program which would allow select officers of the

       Indianapolis Metropolitan Police Department to submit search warrant

       applications electronically. On May 21, 2016, Detective Daniel Kepler

       (Detective Kepler), prepared an application for five search warrants to search

       Abd and Akram’s cell phone records, the maroon Ford Explorer, the black

       Toyota Camry, the white Ford Taurus, and the Abd apartment at Cherry Glen.

       Detective Kepler prepared seven documents as part of his search warrant

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019        Page 5 of 23
       packet: an electronic search warrant submission form (ESWSF), a probable

       cause affidavit, and five proposed search warrants. Detective Kepler first

       prepared his probable cause affidavit, which he signed with his electronic

       signature, “s/Daniel Kepler.” (State Exh. 3, Confidential Exhibit Vol. I, p.

       15). 2 After preparing the probable cause affidavit, Detective Kepler prepared

       the ESWSF, which had fields for him to complete. Detective Kepler typed in

       his name and contact information. In the “Instructions” field, Detective Kepler

       typed “one (1) PC for 5 SW’S.” (State Exh. 3, Conf. Exh. Vol. I, p. 2). At the

       bottom of the ESWSF was the following text: “I swear (affirm), under penalty

       of perjury as specified by IC 35-44-2-1, that the foregoing and following

       representations in this document are true.” (State Exh. 3, Conf. Exh. Vol. I,

       p. 2) (bolded in the original).


[11]   Detective Kepler attached the completed ESWSF, the probable cause affidavit,

       and the proposed search warrants and submitted the search warrant packet

       electronically to the Marion County Clerk, who assigned the application a case

       and transaction ID number. The packet was then transmitted to Judicial

       Officer Peggy Hart, who granted the request for the search warrants. Execution

       of the search warrants on May 25, 2016, yielded many pieces of evidence,

       including a tax form showing that Akram had worked for a business that had its

       office at the AOC in 2013, a receipt for a roll of duct tape that had been




       2
           Page numbers are to the exhibits themselves, as the exhibit volumes are not paginated.


       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019                            Page 6 of 23
       purchased on April 12, 2016, that matched the brand and type of duct tape

       found on Mahmoud’s body, a set of sheets that matched the pillowcase found

       on Mahmoud’s head but from which the pillowcases were missing, and a

       receipt for a cashier’s check which led to the discovery that Abd had purchased

       a home in Detroit on May 3, 2016, for $35,679.52. Investigators also found

       documentation that Abd had wired $3,500 to a relative in Iraq on April 27,

       2016, and an additional $3,500 to the same relative on April 28, 2016. Cell

       phone data netted from the search warrants showed that Abd’s and Akram’s

       cell phones had been in the area of Taxesmart and the AOC during the evening

       of April 20, 2016, and the morning of April 21, 2016, and that Abd had deleted

       Mahmoud’s contact information from his cell phone.


[12]   On May 25, 2016, Abd and Akram were arrested. Abd had $5,322 on his

       person when he was taken into custody. On May 27, 2016, and July 26, 2016,

       the State filed Informations, charging Abd with murder, felony murder, and

       robbery resulting in serious bodily injury, a Level 2 felony. On September 1,

       2017, Abd filed a motion to suppress evidence procured as a result of the May

       21, 2016, electronic search warrants. The parties agreed to submit evidence and

       argument on the motion to suppress in writing to the trial court in lieu of a

       hearing. On August 23, 2017, the trial court denied Abd’s motion to suppress

       based on the May 21, 2016, search warrants. 3




       3
        The chronological case summary indicates that on August 23, 2017, the trial court signed an order denying
       Abd’s motion to suppress. A copy of that order is not part of the record on appeal.

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019                             Page 7 of 23
[13]   Abd and Akram were tried together. Their jury trial took place on February 9,

       2018, to February 22, 2018. Abd’s counsel raised a continuing objection to the

       admission of evidence netted from the May 21, 2016, search warrants, and the

       trial court incorporated all of the suppression evidence and arguments into the

       trial record. Evidence was produced at trial that Abd had also worked for

       businesses that had their offices at the AOC. Akram’s fingerprint was found on

       the keypad to Mahmoud’s safe, which had been emptied and left open. On

       April 25, 2016, Akram paid the back rent at Cherry Glen apartment and paid

       the May 2016 rent in full. On May 21, 2016, Abd paid off the $4,700 balance

       on his black Toyota Camry, and by May 25, 2016, he was attempting to sell the

       car. Akram testified that his fingerprint was on the keypad of Mahmoud’s safe

       because he had accidentally knocked the keypad out of the safe while giving

       Mahmoud an estimate for carpet replacement. As rebuttal to that testimony,

       the State introduced a jailhouse telephone call from Akram to his girlfriend

       placed before his print had been discovered on the safe. In the call, Akram

       stated that he and his father had had no communications with Mahmoud apart

       from having their taxes done in the past. Prior to jury deliberations, Abd did

       not request that the trial court give the jury an instruction that, because the

       State’s case was entirely circumstantial, it must exclude all reasonable theories

       of innocence before convicting him of the offenses. The jury found Abd guilty

       of all charges.


[14]   On March 13, 2018, the trial court entered judgment on Abd’s murder

       conviction. Due to double jeopardy concerns, the trial court vacated Abd’s


       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019          Page 8 of 23
       felony murder conviction and entered judgment on the robbery conviction as a

       Level 5 felony. Prior to rendering sentence, the trial court asked Abd’s counsel

       if Abd would exercise his right to allocution prior to sentencing. Abd’s trial

       counsel responded that Abd would not exercise his right. The trial court found

       as mitigating circumstances that Abd had minor children and had minimal

       contact with the criminal justice system prior to the offenses. The trial court

       found as an aggravating circumstance the extreme inhumanity of the offenses.

       The trial court found that the aggravating circumstance overwhelmingly

       outweighed any of the mitigating circumstances. The trial court sentenced Abd

       to sixty-five years for his murder conviction and to six years for his robbery

       conviction, to be served consecutively, for an aggregate sentence of seventy-one

       years.


[15]   Abd now appeals. 4 Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                               I. Oath Supporting the Probable Cause Affidavit

[16]   Abd contends that the trial court erred when it admitted evidence procured

       pursuant to the May 21, 2016, search warrants. More specifically, he argues

       that the search warrants were defective because they were not supported by a

       sworn probable cause affidavit. As a general matter, we review the trial court’s

       decision on the admission of evidence for an abuse of the trial court’s




       4
           Akram appealed his convictions under Cause Number 18A-CR-780.


       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 9 of 23
       discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). When a defendant

       challenges the trial court’s evidentiary ruling with an argument that impugns

       the constitutionality of the search or seizure of the evidence, he raises a

       question of law that we consider de novo. Id. at 40-41.


[17]   The Fourth Amendment to the United States Constitution and Article 1,

       Section 11, of our Indiana Constitution require that search warrants be

       supported by a sworn statement of probable cause. Our legislature has codified

       these constitutional requirements in Indiana Code section 35-33-5-1(a), which

       provides that a trial court “may issue warrants only upon probable cause,

       supported by oath or affirmation[.]” Indiana Code section 35-33-5-2(c)

       provides in relevant part that, when an officer applies for a search warrant,


               [a]n affidavit for search substantially in the following form shall
               be treated as sufficient:


               ****


               In accordance with Indiana Trial Rule 11, I affirm under the
               penalties for perjury that the foregoing representations are true.


               _______________________


               (Signed) Affiant Date.


[18]   In addition, in Indiana, an officer seeking a search warrant may transmit a

       probable cause affidavit electronically and “may use an electronic signature on

       the affidavit and warrant.” I.C. § 35-33-5-8(a)(4), (h). An electronic signature

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019             Page 10 of 23
       may be indicated by “‘s/Affiant’s Name’” or “by any other electronic means

       that identifies the affiant [] and indicates that the affiant [] adopts the contents

       of the document to which the electronic signature is affixed.” I.C. § 35-33-5-

       8(h). Because Abd does not argue that these Indiana statutes are

       constitutionally deficient, we will resolve his claims on statutory grounds. See

       State v. Brown, 840 N.E.2d 411, 414 (Ind. Ct. App. 2006) (noting our obligation

       to avoid constitutional questions if possible).


[19]   Here, Detective Kepler submitted a search warrant packet containing the

       ESWSF, his probable cause affidavit, and the five proposed search warrants. In

       the ESWSF, Detective Kepler specified that he was submitting one probable

       cause affidavit for all five proposed search warrants. At the bottom of the

       ESWSF completed by Detective Kepler was the pre-printed verification, “I

       swear (affirm), under penalty of perjury as specified by IC 35-44-2-1, that the

       foregoing and following representations in this document are true.” (State

       Exh. 3, Conf. Exh. Vol. I, p. 2) (original in bold). This verification tracked the

       language of Indiana Code section 35-33-5-2(c), in that it was made under the

       penalty of perjury and contained a statement on veracity. Detective Kepler

       attached the ESWSF containing his verification to his probable cause affidavit

       which bore his electronic signature at its end, as provided for by Indiana Code

       section 35-33-5-8(h). We conclude that, because the search warrant packet

       contained an affirmation on veracity under the penalties of perjury and

       Detective Kepler’s electronic signature, his probable cause affidavit was in

       substantial compliance with Indiana Code section 35-33-5-2(c).

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019          Page 11 of 23
[20]   On appeal, Abd essentially contends that Detective Kepler’s probable cause

       affidavit was unsworn because his electronic signature did not appear directly

       under his verification. We disagree. Although, as Abd argues, Detective

       Kepler could have placed his signature directly adjacent to his verification and

       did so in other search warrant applications he submitted in the pilot program,

       the fact that he did not do so here did not render his probable cause affidavit

       deficient because nothing in the search warrant statute requires that an affiant’s

       signature appear directly under the verification. See I.C. § 35-33-5-2(c)

       (requiring that the oath supporting a probable cause affidavit be “substantially

       in the following form”); see also Adamovich v. State, 529 N.E.2d 346, 348 (Ind.

       Ct. App. 1988) (finding that the verification requirement was fulfilled where the

       probable cause affiant’s signature did not directly follow his verification but

       where he signed each page of the probable cause affidavit). In addition,

       Detective Kepler’s verification explicitly referred to the “foregoing and the

       following representations” which included by reference the probable cause

       affidavit to which he had affixed his electronic signature, and so the verification

       and the signature were linked by the language of the verification itself. (State

       Exh. 3, Conf. Exh. Vol. I, p. 2). We do not find that reference incorporating

       the probable cause affidavit which followed the verification to be vague, as Abd

       argues on appeal. We also disagree with Abd’s assertion that the form of

       Detective Kepler’s verification was the result of a cut and paste error. Detective

       Kepler testified in his deposition that he had copied and pasted the portion of

       his probable cause affidavit pertaining to cell phone records from another



       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019           Page 12 of 23
       template, but he never testified that he intended to copy and paste something

       from that template that he mistakenly did not.


[21]   Abd also argues that “a pre-printed statement at the very bottom of a form does

       not have the solemnity required of an oath or affirmation” and that “[a]llowing

       the centuries-old oath or affirmation requirement to be satisfied by a pre-

       printed, unsigned statement at the bottom of a form would reduce the

       requirement to an empty formality.” (Appellant’s Br. p. 37). However, Abd

       ignores the fact that Detective Kepler did affix his electronic signature as

       specifically provided for by Indiana statute and that there is no requirement in

       the statute that an affiant personally type his verification before signing it. See

       I.C. § 35-33-5-2(c). Detective Kepler’s affirmation substantially complied with

       Indiana Code section 35-33-5-2(c), and so we find no abuse of discretion on the

       part of the trial court in admitting evidence procured as a result of the execution

       of the May 21, 2016, search warrants.


                                          II. Sufficiency of the Evidence

[22]   Abd contends that his convictions for robbery and murder must be reversed

       because the State failed to prove the offenses beyond a reasonable doubt. It is

       well-settled that upon review of the sufficiency of the evidence to support a

       conviction, we neither reweigh the evidence nor judge the credibility of

       witnesses, and we will affirm if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt. Prickett v.

       State, 856 N.E.2d 1203, 1206 (Ind. 2006). We consider only the probative

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019          Page 13 of 23
       evidence and reasonable inferences that support the verdict. McHenry v. State,

       820 N.E.2d 124, 126 (Ind. 2005). A conviction for murder or robbery may be

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

       (affirming murder conviction based on circumstantial evidence); Moore v. State,

       652 N.E.2d 53, 55 (Ind. 1995) (affirming murder and robbery conviction based

       on circumstantial evidence).


[23]   The State charged Abd with murder for knowingly or intentionally killing

       Mahmoud. In order to prove that Abd committed robbery as a Level 5 felony

       for the acts charged in the Information, the State was required to show that Abd

       took money from Mahmoud by restraining him and suffocating him. The State

       showed at trial that, at the time of the murder and robbery, Abd was in financial

       difficulty. Abd, who was historically a low-earner who had little money in the

       bank, had been forced from his two previous residences for non-payment of

       rent, his car had been recently repossessed for non-payment, and he continued

       to be delinquent in his car payments. Just before the offenses, eviction

       proceedings had been instigated again against Abd for non-payment of rent.

       Although the State was not required to show motive in order to make its case,

       this evidence supported a reasonable inference that Abd was financially

       motivated to commit the offenses. In the weeks before the murder and robbery,

       either Abd or Akram purchased a roll of duct tape identical to that found on

       Mahmoud, and Abd went to Mahmoud’s place of business claiming to want

       information which he left without procuring. Hours before Mahmoud was

       found dead and his safe emptied, Abd and Akram sat in a parked car across the


       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019      Page 14 of 23
       street from the front door of Taxesmart. This evidence supported a reasonable

       inference that Abd and Akram planned the offenses together.


[24]   Mahmoud, who was the only person who knew the keypad code to his safe,

       sustained several head and body wounds before he died by being suffocated in a

       pillowcase filled with feces. That pillowcase matched a sheet set found at Abd’s

       residence, a set from which the pillowcases were missing. Surveillance footage

       showed cars matching Abd’s and Akram’s at the AOC hours before

       Mahmoud’s body was discovered there. Abd and Akram had both worked for

       employers who had offices at the AOC. Cell phone data verified that Abd and

       Akram were in the vicinity of Taxesmart at the time surveillance footage

       captured someone entering to empty the safe. Approximately one minute after

       that person exited Taxesmart, Akram placed a call to Abd. Akram’s fingerprint

       was found on the keypad of Mahmoud’s safe without viable explanation. Abd

       and Akram fled Indianapolis early in the morning of April 21, 2016, and drove

       to Detroit where they abandoned the white Ford Taurus that was caught on

       camera leaving the AOC. After April 21, 2016, Abd bought a house in Detroit

       with a $35,679.52 cashier’s check, paid off his Toyota Camry with $4,700 in

       cash, and sent $7,000 to Iraq. This evidence supports reasonable inferences that

       Abd acted in concert with Akram to force Mahmoud to provide the keypad

       code to his safe, kill Mahmoud by binding and suffocating him, and steal

       Mahmoud’s money.


[25]   On appeal, Abd argues that the State failed to prove the offenses because the

       State’s cell phone data did not show his exact location around the time of the

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019      Page 15 of 23
       offenses, no license plates were captured by surveillance cameras at the AOC,

       the State did not show exactly where Mahmoud had been killed, there was no

       DNA, fingerprint or hair evidence tying him to the offenses, the duct tape and

       the pillowcase used in the offenses were widely available, the State did not

       establish precisely how much money Mahmoud had in his safe before he was

       murdered, and he had paid for large purchases in the past with cash. All of

       these arguments are unavailing given our standard of review which precludes us

       from reweighing the evidence presented at trial or considering evidence that

       does not support the jury’s verdict. See McHenry, 820 N.E.2d at 126.


[26]   Abd also argues that, although the State may have shown that Akram entered

       Taxesmart and stole Mahmoud’s money, there was nothing linking Abd

       himself to the robbery. However, the jury was instructed that “[a] person is

       responsible for the actions of another person when, either before or during the

       commission of a crime, he knowingly aids, induces, or causes the other person

       to commit a crime.” (Appellant’s App. Vol. IV, pp. 80-81). Abd performed

       what was reasonably considered to be reconnaissance of the Taxesmart

       premises shortly before the robbery, he was with Akram hours before the

       robbery watching the Taxesmart premises, Abd and Akram worked together to

       dump Mahmoud’s body at the AOC, Akram called Abd immediately after

       exiting Taxesmart with Mahmoud’s money, Abd assisted Akram in abandoning

       the Taurus outside Detroit, and Abd shared in the profits of the robbery. The

       jury reasonably inferred from this evidence that Abd acted as an accomplice to




       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019      Page 16 of 23
       the robbery. We conclude that the State proved beyond a reasonable doubt that

       Abd committed the offenses of murder and robbery.


                                               III. Jury Instruction

[27]   Abd also contends that because the State’s case was entirely circumstantial, the

       trial court committed fundamental error by omitting an instruction that the jury

       must require that proof be so conclusive and sure as to exclude every reasonable

       theory of innocence before convicting him of the offenses. However, Abd

       neither proffered his desired instruction, nor did he object at trial to the trial

       court’s failure to sua sponte provide the instruction. The failure to tender an

       instruction or to object at trial to the omission of an instruction generally waives

       any claim of error on appeal. Franklin v. State, 715 N.E.2d 1237, 1241 (Ind.

       1999). Abd argues that the trial court’s omission of his unrequested instruction

       was fundamental error, but our supreme court has consistently held that there is

       no fundamental error in a trial court’s failure to sua sponte give such an

       instruction where the defendant does not request it. See Maul v. State, 731

       N.E.2d 438, 441 (Ind. 2000) (“The defendant also attempts to overcome

       procedural default by asserting that the trial court’s omission constitutes

       ‘fundamental error.’ It does not.”); see also Franklin, 715 N.E.2d at 1241; Bunch

       v. State, 697 N.E.2d 1255, 1257 (Ind. 1998); Whatley v. State, 685 N.E.2d 48, 49-

       50 (Ind. 1997); Sanchez v. State, 675 N.E.2d 306, 308-09 (Ind. 1996)).


[28]   Abd urges us to overlook the effect of his failure to preserve the issue, relying on

       Hampton v. State, 961 N.E.2d 480 (Ind. 2012), which clarified the language and

       use of jury instruction in cases where the State relies entirely on circumstantial

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019           Page 17 of 23
       evidence. The supreme court held that, where the trial court determines that a

       defendant’s conduct required for the commission of the charged offense is

       established entirely by circumstantial evidence, the jury should be instructed

       that “[i]n determining whether the guilt of the accused is proven beyond a

       reasonable doubt, you should require that the proof be so conclusive and sure as

       to exclude every reasonable theory of innocence.” Id. at 491. However,

       Hampton was a case wherein the desired instruction had been requested but had

       been refused by the trial court, and so it does not provide authority for

       overriding our supreme court’s precedent on fundamental error. Id. at 483.

       Indeed, Hampton recognized the long history of the importance of the

       instruction to Indiana jurisprudence, dating back to at least 1896. Id. at 484. In

       no case over the long history of the instruction in this state has the supreme

       court held that failure of the trial court to give the instruction sua sponte

       constitutes reversible, fundamental error. We are bound by the precedent of

       our supreme court. Swihart v. State, 71 N.E.3d 60, 64 (Ind. Ct. App. 2017).

       Concluding that Abd waived his claim of instructional error and that the trial

       court’s failure to give the instruction sua sponte did not constitute fundamental

       error, we leave the jury’s verdicts intact.


                                            IV. Sentencing Allocution

[29]   Abd argues that the trial court committed fundamental error when it failed to

       ask him directly, as opposed to through his counsel, whether he wished to

       exercise his right to allocation prior to sentencing. The State counters that Abd

       waived his right to allocution by failing to object and that, in any event, Abd

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019           Page 18 of 23
       has failed to establish that he was prejudiced by the trial court’s actions. “A

       defendant’s right to offer a statement on his or her behalf before the trial court

       pronounces sentence is known as the right of allocution.” Woods v. State, 98

       N.E. 3d 656, 661 (Ind. Ct. App. 2018), trans. denied. In Indiana, that right has

       been preserved by statute, which provides that a defendant may


               make a statement personally in the defendant’s own behalf and,
               before pronouncing sentence, the court shall ask the defendant
               whether the defendant wishes to make such a statement.


       I.C. § 35-38-1-5.


[30]   In Jones v. State, 79 N.E.3d 911 (Ind. Ct. App. 2017), this court reversed and

       remanded for resentencing because the trial court asked Jones’ counsel, rather

       than Jones himself, whether Jones would like to exercise his right of allocution.

       Id. at 917. Jones’ counsel declined Jones’ allocution right on Jones’ behalf. Id.

       at 916. Jones did not object or speak up when his counsel declined. Id.

       Comparing the right to allocution with the right to trial by jury, the court

       addressed Jones’ claim as fundamental error and did not require Jones to

       demonstrate prejudice as a result of the trial court’s actions. Id. at 915-17.

       Chief Judge Vaidik, dissented, noting that, unlike the jury trial right, the right to

       allocution was not constitutionally based and that our supreme court had

       already held in Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999), that a claim

       of error based on the denial of the right to allocution could be waived by failure

       to object or speak out at sentencing. Id. at 918.



       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 19 of 23
[31]   Our supreme court has not decided a case with this precise set of facts, namely

       where the trial court asks the defendant’s counsel, rather than defendant

       himself, whether defendant will allocute. However, in Woods, another panel of

       this court faced with facts similar to Jones held, citing Angleton, that Woods had

       waived his claim of allocution error by failing to speak up or object when his

       counsel declined the right of allocution on Woods’ behalf. Id. at 663-64. The

       Woods court also noted that such claims were subject to harmless error analysis,

       citing Vicory v. State, 802 N.E.2d 426, 430 (Ind. 2004) (holding that the trial

       court’s denial of probationer’s request to allocate prior to sanctioning was error

       that did not merit reversal), and Biddinger v. State, 868 N.E.2d 407, 410 (Ind.

       2007) (holding that trial court’s refusal to allow the defendant to allocate prior

       to sentencing following his guilty plea was harmless error). Id. at 663. We find

       the Woods decision to be more persuasive and hold that Abd’s claim is subject

       to waiver and to harmless error analysis.


[32]   Here, it is undisputed that the trial court did not personally ask Abd whether he

       would like to exercise his right to allocution or make a statement prior to

       sentencing. The trial court asked Abd’s counsel if Abd would exercise the right,

       and his counsel declined. However, it is equally undisputed that Abd failed to

       speak up or object when his counsel declined to make a statement on his behalf.

       Although Abd relied on a translator at sentencing, there is no indication in the

       record that the trial court’s colloquy with Abd’s counsel was not translated. In

       line with Angleton and Woods, we hold that Abd waived his claim by failing to

       speak up at sentencing. Following the precedent of Vicory and Biddinger, we

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019        Page 20 of 23
       also agree with the State that Abd has failed to make any argument on appeal

       that he was prejudiced by the trial court’s actions, and so we conclude that he

       has failed to persuade us that his substantial rights were prejudiced. Because

       Abd waived his claim of allocution error and has failed to demonstrate that his

       substantial rights were prejudiced, we affirm the trial court’s sentencing.


                                                    V. Sentence

[33]   Lastly, Abd requests that we review his sentence, which he contends is

       inappropriate in light of the nature of his offenses and his character. The

       Indiana Constitution and Indiana Appellate Rule 7(B) permit an appellate court

       to revise a sentence if, after due consideration of the trial court’s decision, the

       sentence is found to be inappropriate in light of the nature of the offense and the

       character of the offender. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).

       “The principal role of such review is to attempt to leaven the outliers.” Cardwell

       v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to

       persuade the reviewing court that the sentence imposed is inappropriate.

       Robinson, 91 N.E.3d at 577.


[34]   The jury found Abd guilty of murder and robbery as a Level 2 felony, upon

       which the trial court entered judgment of conviction as a Level 5 felony. The

       sentencing range for murder is from forty-five to sixty-five years, with the

       advisory being fifty-five years. I.C. § 35-50-2-3. The sentencing range for a

       Level 5 felony is from one to six years, with the advisory being three years. I.C.

       § 35-50-2-6. The trial court sentenced Abd to sixty-five years for his murder

       conviction and to six years for the robbery conviction, to be served

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019          Page 21 of 23
       consecutively. Thus, the seventy-one-year sentence imposed by the trial court

       represented the maximum possible for the offenses.


[35]   Abd concedes that his offenses were “serious and disturbing.” (Appellant’s Br.

       p. 67). Abd and Akram targeted a man small in stature who had helped them

       with their taxes in the past and who apparently had little to no security on his

       business premises. The offenses were not spur of the moment lapses in

       judgment. Abd and Akram planned and prepared by purchasing the duct tape,

       casing the Taxesmart business premises, and lying in wait for Mahmoud to

       finish work on the night of April 20, 2016. There is evidence in the record that

       Mahmoud was beaten before his death, presumably so that he would surrender

       the code to the safe. Mahmoud was bound and spent his last waking minutes

       “drowning in a bag of feces,” as the forensic pathologist testified at trial.

       (Transcript Vol. III, p. 155). Abd and Akram abandoned Mahmoud’s body by

       a dumpster as though he were refuse. All of this occurred purely for Abd’s and

       Akram’s financial gain. We characterize the offenses as heinous and find

       nothing inappropriate about the maximum sentence imposed by the trial court.


[36]   As to his character, Abd argues that his relative lack of criminal history, his

       productivity as a worker, and his status as a former refugee merit a reduced

       sentence. While it is true that Abd’s sole conviction was in May 2015 for

       operating while intoxicated endangering a person, a non-violent offense, we

       note that he was granted probation in that case, admitted to violating his

       probation in November 2015, and was still on probation when he committed

       the instant offenses. Abd reported to his probation officer in June, August, and

       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019          Page 22 of 23
       October 2015 that he was unemployed and would have problems paying his

       probation fees. However, he reported to the pre-sentence investigator in this

       matter that he was employed as a baker during that period. Thus, it is difficult

       to discern Abd’s true work productivity given Abd’s apparent lack of candor.

       In short, we find, as did the trial court, that any positive aspects of Abd’s

       character are greatly outweighed by the heinousness of his offenses, and we

       affirm the maximum sentence imposed by the trial court.


                                              CONCLUSION
[37]   Based on the foregoing, we conclude that the trial court admitted evidence

       procured pursuant to valid search warrants, the State proved beyond a

       reasonable doubt that Abd committed murder and robbery, and Abd waived his

       challenges to the trial court’s jury instruction and allocution procedure. In

       addition, we conclude that Abd’s sentence is not inappropriate given the nature

       of his offenses and his character.


[38]   Affirmed.


[39]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-CR-782 | March 19, 2019         Page 23 of 23
