 Pursuant to Ind. Appellate Rule 65(D),
 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.                   Dec 09 2013, 9:55 am




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:
ALICE B. BLEVINS                                   GREGORY F. ZOELLER
ETHAN G. BARTANEN                                  Attorney General of Indiana
Bartanen Law Office, LLC.
Salem, Indiana                                     CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                                 IN THE
                       COURT OF APPEALS OF INDIANA

JOHN AARON SHOULTZ III,                            )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 36A01-1301-CR-9
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                         APPEAL FROM THE JACKSON CIRCUIT COURT
                             The Honorable William E. Vance, Judge
                                 Cause No. 36C01-1007-FA-10


                                           December 9, 2013
                   MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
           John Aaron Shoultz III (“Shoultz”) was convicted in Jackson Circuit Court of two

counts of Class A felony conspiracy to commit murder and was sentenced to forty years in the

Department of Correction. Shoultz appeals and presents four issues, which we restate as:

    I.        Whether the trial court abused its discretion in admitting evidence of Shoultz’s
              pending murder charge;

    II.       Whether the trial court abused its discretion in admitting evidence of Shoultz’s white
              supremacy affiliations and sentiments;

    III.      Whether the trial court erred in replaying State’s Exhibit 14, a video recording,
              following the correction of technical problems;

    IV.       Whether the State presented sufficient evidence to support Shoultz’s conviction; and

    V.        Whether Shoultz’s sentence is inappropriate.

    We affirm.

                                    Facts and Procedural History

           In May 2009, the State charged Shoultz with the murder of his father.1 Deputy

Prosecuting Attorney Amy Marie Travis (“Travis”) represented the State in that case and

attorney John Roche (“Roche”) represented Shoultz. In July 2009, at a pretrial conference with

Roche, Travis extended to Shoultz a plea offer in which he would plead guilty to murder and

receive a sixty-year sentence with five years suspended. Roche wrote a letter to Shoultz, who

was incarcerated at the time, detailing the plea offer. Roche later met with Shoultz at the

Jackson County Jail, where Shoultz was being held on the murder charge, to discuss the merits

of Shoultz’s case and the terms of the plea offer.


1
  Shoultz was convicted of the murder in 2012 and a panel of this court affirmed his conviction in 2013. See
Shoultz v. State, 995 N.E.2d 647 (Ind. Ct. App. 2013).

                                                     2
          In November 2009, Shoultz began to speak with fellow inmate Michael Luttrull

(“Luttrull”) several times a day, primarily about legal issues related to Shoultz’s pending

criminal case. Luttrull, who was incarcerated on theft and failure to return to lawful detention

charges, was housed in the same cellblock as Shoultz and was known as a “jailhouse lawyer,”

since he had worked in the jail’s law library. During Shoultz’s conversations with Luttrull,

Shoultz repeatedly expressed hostility toward both Travis and Roche. Shoultz discussed with

Luttrull his anger regarding Travis’s plea offer, Shoultz’s desire to harm Travis, and his

inclination to send bombs in the mail to Travis, to Roche, and to Aaron Rollins (“Rollins”), the

current boyfriend of Shoultz’s former girlfriend. Shoultz also discussed with Luttrull his plan

to send a bomb to the courthouse in order to destroy evidence related to his pending murder

charge.

          On January 6, 2010, Luttrull wrote to Deputy Prosecuting Attorney Jeffrey Chalfant

describing his conversations with Shoultz. Luttrull attached a letter that Shoultz, who could

not read or write, had dictated to Luttrull. The letter was to be sent to Shoultz’s cousin, Eric

Benge (“Benge”).           In the letter, Shoultz declared that he wished to “beat that f**king

prosecutor's ass” and inquiring if Eric still had the “SKS.”2 Appellant’s App. pp. 54-55.

Shoultz also stated, in the letter, that he could “beat [her] ass with that from a long ways

especially if [Benge] still [has] that scope on it.” Id. Shoultz included Travis’s name and

asked that Benge find out where Travis lived and the type of car she drove. Id.

          After Shoultz finished dictating the letter to Luttrull, Luttrull crumpled it and threw it

into the toilet in the cell, telling Shoultz that he would rewrite it because of the original’s
2
    An SKS is a type of rifle.

                                                  3
sloppiness. Luttrull then rewrote the letter and gave the rewritten copy to Shoultz. Luttrull

watched Shoultz place the rewritten letter into an envelope and slide it under a door into the

adjacent cellblock. Luttrull later retrieved the original letter from the toilet and forwarded it to

the prosecutor’s office. Luttrull continued to have conversations with Shoultz and sent six or

seven subsequent letters regarding those meetings.        Luttrull included with these letters a

suggested plea agreement calling for his release from the Department of Correction.

       The prosecutor’s office forwarded Luttrull’s letters to the Jackson County sheriff’s

department. The sheriff’s department interviewed Luttrull on January 4, 2010 and again on

February 18, 2010. During the latter meeting, Luttrull agreed to record a conversation with

Shoultz to corroborate the information he had been providing in his letters. The sheriff’s

department prepared his person with hidden audio and video recording equipment. Luttrull

returned to the jail cellblock the same day and announced to Shoultz and his other

cellblockmates that he was about to be released.              Shortly after Luttrull made this

announcement, Shoultz came to Luttrull’s cell, closed the door, and proceeded to draw a

diagram for Luttrull illustrating how to build a pipe bomb. Shoultz told Luttrull that the pipe

bombs were to be sent to the offices of Travis and Roche. Shoultz also provided Luttrull with

Rollins’s address and instructed that a pipe bomb be sent to Rollins as well. All of these

interactions were recorded by the hidden recording devices attached to Luttrull. Luttrull was

subsequently released from the Jackson County Jail.

       On July 28, 2010, the State charged Shoultz with two counts of Class A felony

conspiracy to commit murder. On October 19, 2012, Shoultz filed a motion in limine to

restrict the State’s use of evidence related to Shoultz’s white supremacy sentiments. The trial

                                                 4
court denied the motion in limine. A jury trial was held from October 22, 2012 to October 23,

2012. The jury found Shoultz to be guilty on both charges. On December 20, 2012, after a

sentencing hearing, the trial court sentenced Shoultz to forty years on each count, to be served

concurrently as to those convictions, but consecutive to the sentence entered for Shoultz’s prior

murder conviction. Shoultz now appeals.

                                     Discussion and Decision

                                I.      Admission of Evidence

       Questions regarding the admission of evidence are left to the sound discretion of the

trial court, and on appeal, we review the court's decision only for an abuse of that discretion.

Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied. The trial court abuses

its discretion only if its decision is clearly against the logic and effect of the facts and

circumstances before it, or if the court has misinterpreted the law. Id. Our review of rulings

on the admissibility of evidence is essentially the same regardless of whether the challenge is

made through a pretrial motion to suppress or by an objection at trial. Jackson v. State, 890

N.E.2d 11, 15 (Ind. Ct. App. 2008). We will not reweigh the evidence, and we consider

conflicting evidence in a light most favorable to the trial court's ruling. Id. However, we also

consider any undisputed evidence that is favorable to the defendant. Id. Additionally, we may

consider foundational evidence introduced at trial in conjunction with any evidence from a

suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825

N.E.2d 420, 427 (Ind. Ct. App. 2005).

       A) Admission of Prior Bad Acts and Plea Offer Evidence



                                               5
       Shoultz argues that the trial court abused its discretion when it admitted evidence

related to his prior bad acts. Specifically, he argues that it was improper for the trial court to

admit evidence that, at the time of the conspiracies, he was incarcerated because of a pending

murder charge and evidence related to the plea agreement Shoultz was offered by Travis. He

argues that the admission of the evidence “prevented [him] from having an impartial trial.”

Appellant’s Br. at 11-12.

       Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive . . ..”

The State may offer evidence of motive “to prove that the act was committed,” “the identity of

the actor,” or “the requisite mental state.” Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App.

2010) (internal quotation marks and citations omitted). As long as the “evidence has some

purpose besides [establishing] behavior in conformity with a character trait and the balancing

test is favorable, the trial court can elect to admit the evidence.” Whatley v. State, 908 N.E.2d

276, 281 (Ind. Ct. App. 2009).

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

that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the

defendant's propensity to commit the charged act and (2) balance the probative value of the

evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403.” Vermillion v.

State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012) (citing Embry, 923 N.E.2d at 8). Under

Indiana Evidence Rule 403, “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice . . ..”

                                                6
       Shoultz asserts that the trial court abused its discretion when it allowed (1) the State to

note Shoultz’s pending murder charge during its opening statement, (2) Travis’s testimony that

she was the deputy prosecutor assigned to handle Shoultz’s murder case, (3) John Roche’s

testimony that he represented Shoultz in the murder case, and (4) testimony regarding the

terms of the plea deal Travis had offered to Shoultz in his prior murder case. Shoultz concedes

that the “evidence was introduced to prove [his] motive,” but claims that “the State could have

effectively and adequately presented their case without discussing that the Appellant was

accused of murder or that he received a plea offer of sixty years. “ Appellant’s Br. at 12-13.

       First, we note that a party's failure to object at trial results in waiver, unless error is

fundamental, i.e. “a blatant violation of basic principles rendering the trial unfair.” Davis v.

State, 835 N.E.2d 1102, 1107 (Ind. Ct. App. 2005), trans. denied. At trial, Shoultz did not

object to any of the statements he references above. Accordingly, Shoultz has failed to

properly preserve this issue for appeal and has waived this argument.

       Waiver notwithstanding, Shoultz’s claim of error fails.       Shoultz was charged with

conspiracy to murder the deputy prosecutor assigned to his prior criminal case and conspiracy

to murder his defense attorney in that case. Therefore, the evidence that Shoultz was charged

with murder and the terms of his plea offer in that case were not offered for the improper

purpose of proving that Shoultz acted in conformity with a propensity to commit murder.

Rather, the evidence was highly probative, and perhaps even essential, to prove Shoultz’s

motive for conspiring to commit murder. Evidence of the severity of Shoultz’s pending

criminal charge provided for the jury the necessary context in which to view the strength of

Shoultz’s intent to harm Travis and Roche and the depth of his desire to avoid a trial and

                                                7
conviction in his murder case. See Herrera v. State, 710 N.E.2d 931 (Ind. Ct. App. 1999)

(holding that probative value of evidence that defendant had been imprisoned on murder

charge at time he was alleged to have offered another inmate $5,000 to kill witnesses against

him in his pending trial was not substantially outweighed by risk of unfair prejudice, and trial

court did not abuse its discretion in admitting the evidence despite having previously granted

defendant's motion in limine seeking to preclude evidence related to the specific charge).

       Therefore, we conclude that, waiver notwithstanding, the probative value of the

evidence in question was not substantially outweighed by the prejudicial effect. For all these

reasons, we defer to the trial court's decision to admit the evidence that Shoultz had been

incarcerated on a charge of murder and the evidence of the terms of Travis’s plea offer to

Shoultz.

       B) Admission of Evidence Related to Shoultz’s White Supremacist Beliefs

       Shoultz next claims that the trial court abused its discretion when it admitted the letter

that Shoultz dictated to Luttrull without first striking references to “white power” and to

violence against African-Americans. Appellant’s App. p. 54. The letter also featured two

drawings of swastikas. Shoultz further argues that the trial court erred when it allowed

testimony by Luttrull regarding Shoultz’s membership in a white supremacist organization.

Shoultz asserts that this evidence has low probative value because it is “in no way related to

the plot or substance of the conspiracy” since the targets of his plot were not members of a

minority group. Appellant’s Br. at 16. He claims that the evidence is unfairly prejudicial and

that “[t]he strength of the likely gut responses of the jury, coupled with the lack of probative



                                               8
value, and the failure to exhibit a strong connection between this act and the death of the victim,

should have rendered this testimony inadmissible.” Appellant’s Br. at 19.

       Indiana Evidence Rules 401 through 403 govern relevancy of evidence.              Relevant

evidence is admissible; irrelevant evidence is not. Ind. Evidence Rule 402. Evidence is

relevant if it has any tendency to make any “fact that is of consequence to the determination”

of the action more or less probable. Ind. Evidence Rule 401. Relevant evidence can be

excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.”

Ind. Evidence Rule 403. “All evidence that is relevant to a criminal prosecution is inherently

prejudicial, and thus the Evidence Rule 403 inquiry boils down to a balance of the probative

value of the proffered evidence against the likely unfair prejudicial impact of that evidence.”

Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012) (citing Carter v. State, 766 N.E.2d

377, 382 (Ind. 2002)).

       In this case, we are unable to say that the trial court abused its discretion in admitting

the evidence containing references to Shoultz’s white supremacist beliefs. Shoultz opened the

door to Luttrull’s testimony regarding Shoultz’s affiliation with white supremacist groups

when, on cross-examination, Shoultz challenged Luttrull’s testimony that Shoultz was

surprisingly willing to involve Luttrull with his plot after knowing Luttrull for only a short

time. When, on redirect, the State elicited testimony from Luttrull that he had once shared a

jail cell with a member of the same white supremacist group of which Shoultz was a member,

it did so to counter the impression Shoultz tried to create that Shoultz would not have trusted

Luttrull to be part of his conspiracy.



                                                9
       Furthermore, the trial court did not abuse its discretion in admitting in its entirety, over

defense counsel’s objection, the letter containing references to Shoultz’s white supremacist

beliefs. The content of the letter was highly probative to the issue of Shoultz’s intent to murder

Travis, Roche, and Rollins.

       Shoultz argues that the white supremacist statements should have been stricken from the

letter before the letter was presented to the jury. He claims that the evidence was “highly

inflammatory” and likely to “play on [the jury’s] prejudices and preconceived notions of white

supremacists.”    Appellant’s Br. at 17.      We disagree.     The letter containing the white

supremacist language was admitted only after Luttrull had already testified about Shoultz’s

affiliation with a violent white supremacist group without objection.            Thus, the white

supremacist language in the letter did not cause unfair prejudice against Shoultz since the jury

had already learned of Shoultz’s white supremacist beliefs. See Bryant v. State, 984 N.E.2d

240, 249 (Ind. Ct. App. 2013) trans. denied (holding that admission of recorded telephone call

that depicted defendant as a racist with a criminal history and violent propensity was not an

abuse of discretion where other testimony at trial had already established that defendant

referred to himself as an Aryan, so the jury had already heard evidence that defendant may

have had racist beliefs).

       Under these facts and circumstances, we conclude that the trial court did not abuse its

discretion in admitting evidence related to Shoultz’s white supremacist sympathies and

affiliations.

       C) Replaying of Video Recording



                                                10
       Shoultz argues that the trial court erred when, after encountering technical difficulties

when attempting to play State’s Exhibit 13, the video recording of Luttrull’s conversation with

Shoultz, the trial court restarted the videotape after the technical problems had been corrected.

       A trial court has broad discretion in directing the way a trial is conducted and the way

evidence is presented. Evid. R. 611; Evans v. State, 438 N.E.2d 261, 264 (Ind. 1982). Here,

the record indicates that, during the initial attempt to play the video, the jury saw only the

beginning of the video. Shoultz does not appear in the video for several minutes. The court

noted for the record the problem with playback and also noted that, during the initial playing of

the video, it “could not understand anything that the audio was representing.” Tr. p. 202.

Therefore, we conclude that Shoultz was not unfairly prejudiced when the trial court restarted

the video after encountering technical difficulties. See Hampton v. State, 526 N.E.2d 1154,

1156 (Ind. 1988) (holding that replaying a recording upon jury’s request does not give undue

weight to that evidence).

                                  II.    Sufficiency of Evidence

       Shoultz next argues that the State failed to present sufficient evidence to support his

Class A felony conspiracy to commit murder conviction. Upon a challenge to the sufficiency

of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005)), trans. denied. Rather, we consider only the probative evidence

supporting the conviction and the reasonable inferences to be drawn therefrom. Id. If there is

substantial evidence of probative value from which a reasonable trier of fact could have drawn

the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt,

                                               11
then the verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct.

App. 2008).

      To convict Shoultz of conspiracy to commit murder, the State had to prove that, while

having the intent to commit murder, Shoultz entered into an agreement to commit murder and

he performed an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2; Dickenson

v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005), trans. denied. Conspiracy to commit

murder requires proof of an agreement, but not necessarily of a killing. Smith v. State, 655

N.E.2d 532, 546 (Ind. Ct. App. 1995), trans. denied. Shoultz argues that the State’s evidence

does not show that he possessed the requisite intent, pointing to Benge’s testimony that Benge

had no knowledge of the plot to murder Travis, Roche, and Rollins.

      The evidence favorable to the conviction demonstrates that Shoultz committed an overt

act in furtherance of the conspiracy to commit murder when he engaged Luttrull in discussions,

one of which was videotaped, about Shoultz’s plot to murder Travis, Roche, and Rollins.

Shoultz dictated a letter to Benge referencing Benge’s SKS rifle and its scope and asking

Benge to find out where Travis lived and the type of car she drove. Shoultz told Luttrull that

he wanted to have bombs mailed to Travis’s and Roche’s offices and to Rollins’s home.

Shoultz also drew a diagram, while being recorded on video, of the bombs for Luttrull and then

provided Luttrull with Rollins’s home address. This evidence is sufficient to establish that

Shoultz conspired to commit murder. Shoultz’s arguments to the contrary are simply a request

that we reweigh the evidence, which we will not do. See McHenry v. State, 820 N.E.2d 124,

126 (Ind. 2005).



                                             12
       For all of these reasons, the evidence presented at trial was sufficient to support

Shoultz’s conviction for conspiracy to commit murder.

                                  III.   Inappropriate Sentence

       Shoultz next appears to argue that his sentence is inappropriate in light of the nature of

the crime and the character of the offender. Under Indiana Appellate Rule 7(B), we may

“revise a sentence authorized by statute if, after due consideration of the trial court's decision,

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

character of the offender.” Although we may review and revise a sentence, “[t]he principal

role of appellate 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 must give “deference to a trial court's sentencing decision, both because

Rule 7(B) requires us to give due consideration to that decision and because we understand and

recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v.

State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart v. State,

866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks omitted).

       When we review the appropriateness of a sentence, we consider “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.” Cardwell, 895 N.E.2d at 1224. The defendant has the “burden

to persuade us that the sentence imposed by the trial court is inappropriate.” Shell v. State, 927

N.E.2d 413, 422 (Ind. Ct. App. 2010).



                                                13
       Shoultz argues that because he had only one prior adult conviction and had complied

with the terms of his probation, including completing anger management classes, his sentence

was inappropriate. Shoultz argues that the trial court improperly considered crimes,

specifically, murder, for which Shoultz had, at the time, been charged but had not yet been

convicted. Shoultz also argues that the trial court erred in ordering him to serve a sentence that

exceeds the advisory sentence by ten years.

       We first note that Shoultz neither provides a statement of the appropriate standard of

review nor points to any legal authority to support his arguments. Therefore, pursuant to

Indiana Appellate Rule 46(A)(8), Shoultz has waived this issue for review. See Jackson v.

State, 758 N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (noting that failure to comply with Indiana

Code Appellate Rule 46(A)(8)(b), which requires that an appellant's brief include a statement

of the applicable standard of review for each issue, results in waiver of that issue for appellate

review); see also Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999) (providing

that failure to support each contention with citation to relevant legal authority results in waiver

of that issue on appeal).

       Waiver notwithstanding, Shoultz’s claim still fails. Shoultz plotted to bring about the

violent murders of a deputy prosecutor, Shoultz’s own defense attorney, and an innocent third

party. The means of carrying out the intended crimes, mailing pipe bombs to a law office and

the county courthouse, would, if successful, have likely caused the injury or death of many

other innocent people. Furthermore, Shoultz’s criminal history includes a number of violent

incidents ranging from assault to the murder of his father.



                                                14
       We disagree with Shoultz’s argument that the trial court erred when it considered

crimes with which he had been charged but not convicted. Indeed, trial courts have discretion

to consider crimes that have not even been charged as part of a defendant’s criminal history.

See Willoughby v. State, 552 N.E.2d 462, 470 (Ind. 1990). Shoultz’s claim that the trial court

erred when it ordered him to serve a sentence that exceeds by ten years the advisory sentence is

also without merit. See Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008) (holding

that sentence of 40 years for felony dealing in cocaine, which exceeded advisory sentence of

30 years, was not inappropriate in light of nature of offense and defendant's character, despite

mitigating factors of defendant's lack of criminal history and guilty plea.). For all of these

reasons, we conclude that Shoultz’s sentence is not inappropriate in light of the nature of the

offense and the character of the offender.




                                             Conclusion

       The trial court did not abuse its discretion in admitting evidence related to Shoultz’s

incarceration and the terms of his previous plea offer, nor did it abuse its discretion in the

admission of evidence and testimony regarding Shoultz’s white supremacist sentiments. The

State presented sufficient evidence to support Shoultz’s conviction for conspiracy to commit

murder. The sentence imposed by the trial court was not inappropriate.

       Affirmed.

NAJAM, J., and BROWN, J., concur.



                                                15
