                                                              FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                            Dec 19 2012, 8:44 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                                 GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TOBY HICKS,                                        )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 49A02-1104-CR-328
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Carol J. Orbison, Judge
                              Cause No. 49G22-1001-MR-157


                                        December 19, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                         Case Summary

          Toby Hicks (“Hicks”) appeals his conviction, following a jury trial, of Murder, a

felony,1 and Robbery, as a Class C felony.2

          We affirm.

                                              Issues

          Hicks presents two issues for our review, which we restate as:

          1.       Whether the prosecutor committed misconduct and deprived Hicks of a fair

               trial; and

          2.       Whether Hicks’s sentence is inappropriate under Appellate Rule 7(B).



                                 Facts and Procedural History

          On the evening of December 28, 2010, Steven Pence (“Pence”) and his friend Steven

Scott (“Scott”) were at Pence’s house at 11458 Windhaven Court in Indianapolis. They went

out for drinks and eventually ended up at Weebles, a bar near the intersection of 30th Street

and Shadeland Avenue in Indianapolis. At Weebles, Pence, who was legally blind,

repeatedly mentioned that he wanted to “get a girl,” and that he had $2,000 in his wallet. (Tr.

at 86.) Hicks, seated nearby, told Pence he knew some showgirls from P.T.’s Show Club,

and that it would cost only $250. During Pence’s conversation with Hicks, Scott expressed

his discomfort with the situation. Hicks made some calls from a cell phone and explained



1
    Ind. Code § 35-42-1-1.
2
    I.C. § 35-42-5-1.

                                                2
that an escort, Malissa Sims (“Sims”), would meet them at Pence’s house. Pence, Scott, and

Hicks left the building and traveled together in Scott’s truck to Pence’s house.

       After entering Pence’s house, Hicks gave travel directions over the phone to Sims.

Scott told Pence that he did not want to participate in any activity involving Sims, and after a

brief argument, Scott left Pence’s house. When Scott returned a short time later, Sims,

accompanied by her niece A.W., and A.W.’s friend K.R., had already arrived, and her car

was parked in the driveway. A.W. and K.R. remained in the car. Scott and Pence got into

another argument, and Scott left and drove home to Martinsville.

       Following Scott’s departure, Pence and Sims went upstairs to Pence’s bedroom.

Hicks brought out to Sims’s car Pence’s Colts jacket and a trash bag filled with some of

Pence’s belongings. As Sims danced for Pence, Hicks entered the room with a cast-iron

skillet in his hand and swung it down hard, hitting Pence on the left side of his face. Sims

immediately fled the room, and while she was running down the stairs, she heard two more

loud thuds, similar to the sound a gourd makes when crushed. As she escaped through the

front door, she heard glass breaking.

       Sims jumped in her car and attempted to drive away with A.W. and K.R., but had

difficulty operating the vehicle. While Sims struggled to put the car in gear, Hicks jumped in

the car and told her to “[d]rive, Bitch[,] [d]rive.” (Tr. at 198.) Hicks had taken Pence’s

wallet, and took $100 from the wallet and gave it to Sims while she drove. Sims saw credit

or bank cards in the wallet with Pence’s photo on them.

       After stopping at two gas stations and the home of Hicks’s brother, Sims, Hicks,


                                               3
A.W., and K.R. arrived at Sims’s home. There, Hicks unloaded onto Sims’s bed several

items taken from Pence’s home, including the Colts coat, a PlayStation 3 game, and a ring.

At Hicks’s request, Sims, accompanied by A.W. and K.R., drove Hicks to a bar near Brazil,

Indiana, where they dropped him off. Hicks took the trash bag with Pence’s belongings and

Pence’s Colts coat, and walked across a field towards a nearby trailer park. Police later

found and arrested Hicks near a laundromat in Lawrence, Indiana.

          On January 5, 2010, the State charged Hicks with Murder, a felony; Felony Murder;3

and Robbery, as a Class A felony. The State later alleged Hicks to be an habitual offender.4

A jury trial was conducted on January 10 through January 14, 2011, at the conclusion of

which the jury found Hicks guilty of all counts as charged. On March 21, 2011, the trial

court conducted a consolidated habitual offender and sentencing hearing during which it

entered judgments of conviction against Hicks for Murder, and Robbery, as a Class C felony;

found him to be a habitual offender; and sentenced him to an aggregate sentence of ninety-

five years imprisonment.

          Hicks now appeals.

                                   Discussion and Decision

                                   Prosecutorial Misconduct

          Hicks contends that the prosecutor committed misconduct by displaying to the jury a

photo not in evidence showing Hicks with a tattoo of a revolver on his left arm, and by


3
    I.C. § 35-42-1-1.
4
    I.C. § 35-50-2-8.

                                               4
altering that photo at the request of Hicks’s counsel in view of the jury so as to remove that

part of the photo showing Hicks’s tattoo.

       To review a properly preserved claim of prosecutorial misconduct we must determine

whether the prosecutor engaged in misconduct, and if so, whether the misconduct had a

probable persuasive effect on the jury’s decision, and whether there were repeated

occurrences of misconduct, which would evince a deliberate attempt to improperly prejudice

the defendant. Ritchie v. State, 809 N.E.2d 258, 268-69 (Ind. 2004), reh’g denied, cert.

denied.

       To properly preserve a claim of prosecutorial misconduct, the defendant should

request an admonishment from the trial court, and if the defendant believes that to be

insufficient, he should move for a mistrial. Cain v. State, 955 N.E.2d 714, 721 (Ind. 2011).

Failure to object to alleged prosecutorial misconduct precludes appellate review of the claim

unless the alleged misconduct amounts to fundamental error. Booher v. State, 773 N.E.2d

814, 817 (Ind. 2002). Here, Hicks neither requested an admonishment nor moved for a

mistrial. (Appellant’s Br. at 11; Tr. at 718-24.) Instead, he asserts that the prosecutor’s

conduct amounted to fundamental error.

       To demonstrate fundamental error, the defendant must establish not only prosecutorial

misconduct, but also the additional grounds for fundamental error. Booher, 773 N.E.2d at

818. Fundamental error is an extremely narrow exception that allows a defendant to avoid

waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). To be fundamental

error, the misconduct must have made a fair trial impossible, or have been a clearly blatant


                                              5
violation of basic and elementary principles of due process presenting an undeniable and

substantial potential for harm. Booher, 773 N.E.2d at 817 (internal quotation and citations

omitted). This exception is available only in “egregious circumstances.” Brown v. State, 799

N.E.2d 1064, 1068 (Ind. 2003). Furthermore, error is harmless when the conviction is

supported by substantial independent evidence of guilt which satisfies the reviewing court

that there is no likelihood that the erroneously admitted evidence contributed to the

conviction. Smock v. State, 766 N.E.2d 401, 407 (Ind. Ct. App. 2002).5

        The State’s evidence discloses that Hicks struck Pence on the head with a cast-iron

skillet with such force that it split into four pieces. This occurred while Pence, legally blind,

was discussing a price with Sims. The evidence further discloses that, prior to striking

Pence, Hicks gathered several items of Pence’s property and loaded them into the trunk of

Sims’s car. As such, the State presented substantial independent evidence of Hicks’s guilt,

and we are satisfied that there is no likelihood that the displayed evidence contributed to the

conviction. Smock, 766 N.E.2d at 407. Even assuming without deciding that the prosecutor

displayed to the jury a photo not in evidence or altered it before the jury, any error that may

have resulted from the prosecutor’s conduct was harmless.




5
  We note that Hicks’s counsel cites to Martin v. State, 528 N.E.2d 795 (Ind. Ct. App. 1988), in which
transfer was granted and the opinion vacated. See 537 N.E.2d 491 (Ind. 1989). When transfer is granted,
the Court of Appeals opinion is held for naught and has no precedential value. See Ind. Appellate Rule
58(A); Wontorski v. Williamsburg Mobile Homes, Inc., 794 N.E.2d 433, 433 (Ind. 2003). We further
remind counsel that our current standard for harmless error under Smock and its progeny is contrary to the
version of the standard to which counsel cites. See Bates v. State, 495 N.E.2d 176, 178 (Ind. 1986);
Cudworth v. State, 818 N.E.2d 133, 142 (Ind. Ct. App. 2004), trans. denied; Moore v. State, 827 N.E.2d
631, 639 (Ind. Ct. App. 2005), trans. denied.

                                                    6
                                           Sentence

       Hicks also contends that his aggregate ninety-five year sentence is inappropriate, and

therefore requests that we revise his sentence.

       This Court has independent authority to review the appropriateness of sentences under

the Indiana Constitution and Appellate Rule 7(B). In Reid v. State, the Indiana Supreme

Court reiterated the standard by which we independently review criminal sentences:

       Although a trial court may have acted within its lawful discretion in
       determining a sentence, Article VII, Sections 4 and 6 of the Indiana
       Constitution authorize independent appellate review and revision of a sentence
       through Indiana Appellate Rule 7(B), which provides that a court 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. The burden is on the
       defendant to persuade us that his sentence is inappropriate.

876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).

       Our supreme court has stated that “sentencing is principally a discretionary function in

which the trial court’s judgment should receive considerable deference.” Cardwell v. State,

895 N.E.2d 1219, 1222 (Ind. 2008). Indiana’s flexible sentencing scheme allows trial courts

to tailor an appropriate sentence to the circumstances presented. See id. at 1224. One

purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “Whether we

regard a sentence as appropriate at the end of the day turns on our sense of 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.

       Here, Hicks was convicted of Murder, a Felony, and Robbery, as a Class C felony. In

addition, his Murder sentence was enhanced based upon his status as an habitual offender.

                                               7
The sentencing range for Murder runs from forty-five to sixty-five years, with a statutory

advisory sentence of fifty-five years. I.C. § 35-50-2-3(a). The sentencing range for Robbery,

as a Class C felony, runs from two to eight years, with an advisory sentence of four years.

I.C. § 35-50-2-6(a). The habitual offender enhancement may add to a defendant’s sentence

“not less than the advisory sentence for the underlying offense, nor more than three (3) times

the advisory sentence for the underlying offense,” with a maximum permissible enhancement

of thirty years imprisonment. I.C. § 35-50-2-8(h). Here, Hicks was sentenced to the

maximum sixty-five year term for Murder with the maximum thirty-year habitual offender

enhancement added thereto, and the maximum term of eight years imprisonment for Robbery.

The trial court ran the enhanced Murder and Robbery sentences concurrently, for an

aggregate term of ninety-five years imprisonment.

       Hicks brutally murdered Pence by striking him on the head with a cast-iron skillet

with such force that the skillet split into four pieces. Hicks struck Pence without warning

while Pence was negotiating a price with Sims, a female escort whom Hicks had arranged to

come to Pence’s home. The blow caused Pence’s brain to swell, which eventually deprived

Pence’s brain of oxygen, causing his death. Pence did not die immediately, however, instead

making his way downstairs from the bedroom in which Hicks had struck him, leaving a trail

of blood in his wake.

       Pence, who was legally blind and was intoxicated when Hicks encountered him, had

stated that he had $2000 to spend for an escort. After striking Pence with the skillet, Hicks

took money and property and forced Sims to drive him to Brazil, Indiana, where he remained


                                              8
for some time before exchanging the stolen PlayStation 3 game for another game. Taken

together, Hicks’s conduct in committing the offenses of murder and robbery warrants a

sentence above the statutory advisory term established by our legislature.

       We turn now to Hicks’s character. Hicks admitted to criminal activity while he was a

juvenile in Montana, and was arrested twice as a juvenile in Marion County, Indiana. As an

adult, Hicks has been convicted in unrelated cases of felony-level Criminal Recklessness,

Battery, and Theft. Hicks was on parole at the time of the instant offenses, and has violated

probation on two occasions. Hicks has a long history of numerous disciplinary infractions

while incarcerated, ranging from simple disruptive conduct to violent conduct including

battery, battery with bodily fluids, intimidation, and attempted rioting, frequently leading to

his placement in segregated portions of the jail. During the proceedings at the trial court in

this case, Hicks was charged with several other offenses as a result of his conduct in jail.

       While in jail awaiting trial Hicks was diagnosed as being schizoaffective, and during

the pendency of the habitual offender phase of the proceedings Hicks was diagnosed with

Antisocial Personality Disorder. He has some history of alcohol and marijuana use, and

previously has been prescribed medication for depression and anxiety. Hicks has never held

any form of employment and had an unstable upbringing, with parents who were frequently

absent and significant time spent living in state-run juvenile facilities. However, none of this

diminishes the brutal nature of his offenses here or offsets the nature of his conduct prior to

and during the proceedings in this case. We therefore cannot conclude that the trial court’s

imposition of the maximum terms of imprisonment for each of his offenses, yielding an


                                               9
aggregate term of imprisonment of ninety-five years, is inappropriate in light of the nature of

Hicks’s offenses and his character.

                                         Conclusion

       Hicks has failed to demonstrate fundamental error stemming from the prosecutor’s

conduct. Furthermore, Hicks’s sentence is not inappropriate in light of the nature of the

offenses and his character.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                              10
