MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Jul 29 2016, 8:16 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Gregory F. Zoeller
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deandre Moore,                                           July 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A04-1511-CR-1922
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1509-F3-5620



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016        Page 1 of 13
                               Case Summary and Issues
[1]   Following a jury trial, Deandre Moore was convicted of armed robbery,

      criminal confinement while armed with a deadly weapon, attempted armed

      robbery, attempted battery by means of a deadly weapon, and pointing a

      firearm at another person. The trial court sentenced Moore to an aggregate

      sentence of twenty years in the Indiana Department of Correction. Moore

      appeals his convictions, raising two issues for our review, which we restate as:

      (1) whether the trial court erred in admitting certain evidence, and (2) whether

      the trial court erred in not giving a discrete answer to two questions from the

      jury during deliberations. Concluding the trial court did not err in admitting

      evidence and in not providing a discrete answer to the jury’s questions, we

      affirm.



                            Facts and Procedural History
[2]   Around 7:00 p.m. on December 22, 2014, an individual, with part of his face

      masked, entered a St. Vincent de Paul thrift store in Evansville, pointed a gun at

      store employee Asuncion Gibson, and ordered Gibson to open the cash register.

      When Gibson was unable to open the register, the individual attempted to

      discharge his weapon, but it jammed. The individual immediately fled the

      scene. Sandra Lohman, another store employee, described the individual as

      5’7” or 5’8” tall, noting he had pretty eyes, but Gibson described the

      individual’s eyes as “mean” and “dark.” Transcript at 716, 725.



      Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 2 of 13
[3]   Seven hours later, an individual, with part of his face masked, entered a

      Kangaroo Express gas station in Evansville, pointed a gun at store employee

      Amy Webster, forced her to the back of the gas station, and demanded money.

      The individual also pointed his weapon at Donald Wineinger, another store

      employee. Webster gave the individual approximately $350 from the cash

      register. After a customer threatened to call police, the individual fled the

      scene. Webster described the individual as 5’3” or 5’4” with “pretty” and

      “dark” eyes. Id. at 313, 318. Wineinger described the individual as 5’10” tall.

      Reid Craig, a customer present during the robbery, believed the individual

      stood between 5’5” and 5’9”.


[4]   On January 11, 2015, Webster recognized the individual who robbed the gas

      station, later identified as Moore, at a plasma donation center based on Moore’s

      eyes, voice, and build. Webster immediately called police and Moore was

      detained. The following exchange occurred between Moore and an investigator

      regarding Webster’s claim Moore was the individual who robbed the gas

      station:


              [Investigator:] Well, like I told you, when you were at the
              Plasma Center while you was in there she said that you were the
              one that robbed her back on December the 23rd.
              [Moore:] Well, that’s not possible.
              [Investigator:] Well, that’s what, that’s what she is saying.
              [Moore:] Did I rob her barefaced?
              [Investigator:] Huh?
              [Moore:] Did I rob her barefaced, did she see my face?
              ***
              [Moore:] Did she see my face, that’s what you should ask her.

      Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 3 of 13
              [Investigator:] She said she looked you in the face.
              [Moore:] She looked me, I was barefaced when I robbed her?
              [Investigator:] She said she looked you in the face.
              [Moore:] Well, you should watch the video and see.


      Id.at 536, 547-48; State’s Exhibit 37. Later, Lohman “immediately” identified

      Moore as the would-be robber of the thrift store from a photo array. Tr. at 637.


[5]   In addition, Moore called his mother while in jail and the following exchange

      occurred between Moore, his mother, and an unidentified individual:


              [Unidentified Voice:] Well you know, they ain’t got no, they
              ain’t got no cameras nothing for (inaudible).
              [Moore:] Yes it does, they say they got, they said (inaudible)
              camera so I said (inaudible), I was like she wanted to see my face
              or something, I mean, did you ever ask me, did you look at the
              camera, he said yeah I looked at the camera and I said okay so,
              what did you think, (inaudible) I know she ain’t got x-ray vision
              now do she.


      Id. at 605; State’s Ex. 38. At this point in time, investigators had not released

      any details of the gas station robbery to the media or to Moore, including

      whether the suspect obscured his face.


[6]   As part of the investigation, Detective Tony Walker worked to estimate the

      robber’s height by reviewing the surveillance video from the gas station. That

      surveillance video captured images of the robber standing next to a calendar

      screwed into a wall. Detective Walker measured the height of the calendar

      from the floor and made markings indicating certain heights. He then used the

      same surveillance video to capture images of himself standing in the same spot

      Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 4 of 13
      as the robber. After comparing the images and taking into consideration his

      own height, Detective Walker estimated the robber’s height was between 5’4”

      and 5’7”. Moore is 5’6”.


[7]   The State charged Moore with armed robbery, a Level 3 felony (“Count 1”);

      criminal confinement while armed with a deadly weapon, a Level 3 felony

      (“Count 2”);1 attempted armed robbery, a Level 3 felony (“Count 3”);

      attempted battery by means of a deadly weapon, a Level 5 felony (“Count 4”);

      and pointing a firearm at another person, a Level 6 felony (“Count 5”).2 Moore

      proceeded pro se.


[8]   At trial, Webster and Craig identified Moore as the robber of the gas station;

      Gibson and Lohman identified Moore as the robber of the thrift store. In

      addition, Detective Walker testified as to the process he used to estimate the

      robber’s height, and in conjunction with his testimony, the State admitted—for

      demonstrative purposes—surveillance video images from the gas station,

      images of the measurements taken by Detective Walker, and other exhibits

      relevant to the robber’s height. The State did not call Detective Walker to

      testify as an expert witness. Moore did not object to Detective Walker’s

      testimony or to the admission of the exhibits.




      1
          Counts 1 and 2 were with respect to the robbery at the gas station.
      2
          Counts 3, 4, and 5 were with respect to the attempted robbery at the thrift store.


      Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016     Page 5 of 13
[9]   At the close of evidence, the trial court instructed the jury as to the attempt

      crimes, in relevant part:


                              COURT’S INSTRUCTION NO. 4


                                                       ***

              Before you may convict the Defendant in Count 3, the State must
              have proved each of the following beyond a reasonable doubt:
              1. The Defendant, Deandre Blanchez Moore
              2. acting with the culpability required to commit the crime of
              Armed Robbery, which is defined as:
                     a) knowingly or intentionally
                     b) taking property from another person
                     c) by using force or threatening the use of force on that
                     other person
                     d) and while the Defendant was armed with a deadly
                     weapon;
              3. by knowingly entering St. Vincent Depaul [sic],
              displaying/and or [sic]pointing a firearm or handgun, and
              demanding money from St. Vincent Depaul employee Asuncion
              Gibson and/or Sandra Lohman,
              4. which was conduct constituting a substantial step toward the
              commission of the crime of Armed Robbery.


                                                      ***


                                  COURT’S INSTRUCTION NO. 5


                                                      ***


              Before you may convict the Defendant in Count 4, the State must
              have proved each of the following beyond a reasonable doubt:
              1. The Defendant, Deandre Blanchez Moore
      Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 6 of 13
                  2. acting with the culpability required to commit the crime of
                  Attempted Battery by Means of a Deadly Weapon, which is
                  defined as:
                         a) knowingly or intentionally
                         b) touching another person
                         c) in a rude, insolent or angry manner
                         d) and while the Defendant was armed with a deadly
                         weapon;
                  3. by knowingly pointing a firearm and/or handgun at Asuncion
                  Gibson and/or Sandra Lohman, and pulling the trigger to said
                  firearm and/or handgun,
                  4. which was conduct constituting a substantial step toward the
                  commission of the crime of Attempted Battery by Means of a
                  Deadly Weapon.


       Appellant’s Appendix at 55-58.


[10]   The instructions did not provide a definition of the term “culpability” 3 and

       Moore did not object to the instructions. During deliberations, the jury sent

       two questions to the trial court. The transcript does not include the ensuing

       discussion between the parties and the trial court; the only information in the

       record regarding the jury’s questions is located in the Chronological Case

       Summary. There, it indicates the jury sought the definition of “culpability,” to

       which the trial court responded, over Moore’s unspecified objection, “You have

       received all of the Court’s instructions regarding the law.” Id. at 6. The jury

       also asked, “Do all subpoints under element 2 need to be proved in order for

       deft. to be found guilty in counts 3 & 4?” Id. Over Moore’s unspecified




       3
           The trial court’s remaining instructions did not include the term “culpability.”


       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 7 of 13
       objection, the trial court responded, “You have been given all of the Court’s

       instructions regarding the law and they are your best resource.” Id. The jury

       returned guilty verdicts on all counts. Moore, with counsel, now appeals.



                                  Discussion and Decision
                                   I. Admission of Evidence
                                       A. Standard of Review
[11]   Moore contends Detective Walker’s testimony describing the process he used to

       estimate the robber’s height—given in conjunction with the State’s admission of

       certain exhibits—and his ultimate opinion as to the robber’s height, constituted

       inadmissible opinion evidence. A trial court has broad discretion in ruling on

       the admissibility of evidence. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.

       2011). Although we generally review the trial court’s rulings for abuse of

       discretion, id., a defendant’s failure to raise a contemporaneous objection at

       trial waives the issue for appeal, Delarosa v. State, 938 N.E.2d 690, 694 (Ind.

       2010). Moore concedes he failed to object to Detective Walker’s testimony and

       the State’s exhibits, but argues the admission of the testimony and exhibits

       constitutes fundamental error. See Appellant’s Brief at 13. A claim waived by a

       defendant’s failure to object can be reviewed on appeal if the reviewing court

       determines fundamental error occurred. Delarosa, 938 N.E.2d at 694. “The

       fundamental error exception is extremely narrow, and applies only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 8 of 13
       due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quotation

       marks omitted). The exception is “available only in egregious

       circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).


                                B. Detective Walker’s Testimony
[12]   Moore challenges the admission of Detective Walker’s testimony regarding the

       height of the robber, including the admission of demonstrative exhibits used to

       illustrate his testimony. A “skilled” witness is defined as “a person with a

       degree of knowledge short of that sufficient to be declared an expert under

       Indiana Rule of Evidence 702,[4] but somewhat beyond that possessed by the

       ordinary jurors.” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003)

       (citation omitted), trans. denied. Under Rule 701, a skilled witness may testify to

       an opinion or inference in those instances where the opinion is “rationally

       based on the witness’s perception” and “helpful to a clear understanding of the

       witness’s testimony or to a determination of a fact in issue.” See id. Here,

       Detective Walker testified as to his extensive history as a police officer and

       investigator. He fully explained the method he used to estimate the robber’s

       height and the State’s exhibits helped illustrate that process. In addition, such

       evidence was relevant to identifying the robber, which was the central issue at

       trial. We therefore find no error.




       4
        Rule 702(a) provides, “[a] witness qualified as an expert by knowledge, skill, experience, training, or
       education may testify in the form of an opinion or otherwise . . . .”

       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016               Page 9 of 13
[13]   However, even assuming the trial court erred in admitting such evidence, such

       error was not fundamental. Multiple eyewitnesses identified Moore as the

       individual who robbed the gas station and thrift store: Webster spontaneously

       identified Moore as the robber of the gas station after seeing Moore at the

       plasma donation center; Craig identified Moore as the robber of the gas station

       based on Moore’s eyes; Gibson identified Moore as the robber of the thrift store

       based on Moore’s voice; and Lohman, after being shown a photo array,

       identified Moore as the robber of the thrift store. As Moore concedes, evidence

       of his exact height was not made available to the jury, see Appellant’s Br. at 25

       n.3, and our review of the record indicates that none of the eyewitnesses who

       identified Moore relied upon his height in identifying him. In addition, many

       witnesses testified as to their own opinion of the robber’s height, meaning

       Detective Walker’s testimony amounted to cumulative evidence of the robber’s

       alleged height. Further, Moore made incriminating statements pertaining to the

       fact it would be impossible for Lohman to identify him as the robber of the gas

       station because “she ain’t got x-ray vision.” Tr. at 605. We therefore conclude

       the trial court did not commit fundamental error in admitting Detective

       Walker’s testimony and demonstrative exhibits regarding the robber’s estimated

       height. See Halliburton v. State, 1 N.E.3d 670, 683 n. 7 (Ind.2013) (“Where

       evidence of guilt is overwhelming any error in the admission of evidence is not

       fundamental.”).




       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 10 of 13
                                         III. Jury Questions
                                       A. Standard of Review
[14]   Moore also argues the trial court erred in not providing discrete answers to two

       questions from the jury during deliberations, a claim which we review for an

       abuse of discretion. See Inman v. State, 4 N.E.3d 190, 201 (Ind. 2014). An

       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it. Turner, 953 N.E.2d at

       1045.


                                         B. Discrete Answers
[15]   Generally, a trial court should not give any additional jury instructions once

       deliberations commence. Fields v. State, 972 N.E.2d 977, 980 (Ind. Ct. App.

       2012), trans. denied. “This rule precludes the trial court from giving any special

       emphasis, inadvertent or otherwise, to a particular issue in the case, and thus

       avoids the possibility that the additional instruction(s) may tell the jury what it

       ought to do concerning that issue.” Id. (citation omitted). However, if a jury

       desires to be informed as to “any point of law arising in the case” after retiring

       for deliberations, “the jury may request the officer to conduct them into court,

       where the information required shall be given in the presence of, or after notice

       to, the parties or the attorneys representing the parties.” Ind. Code § 34-36-1-6.

       “The statutory phrase ‘any point of law arising in the case’ is construed

       narrowly and mandates that the trial court inform counsel and provide a

       discrete answer only when the jury question points up an error or legal lacuna


       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 11 of 13
       [i.e. gap] in the final instructions.” Fields, 972 N.E.2d at 980 (emphasis added)

       (citation and some internal quotation marks omitted).


[16]   At the outset, we note the final instructions on Counts 3 and 4 tracked the

       language of Indiana’s attempt statute verbatim, and in such cases, we presume

       the instructions are correct. See Campbell v. State, 19 N.E.3d 271, 277 (Ind.

       2014) (“[A]n instruction which tracks verbatim the language of a statute is

       presumptively correct.”). Also, the final instructions on Counts 3 and 4

       followed, verbatim, Indiana’s pattern jury instructions for attempt crimes. See

       Ind. Pattern Jury Instruction (Criminal) 2.0100.


[17]   The jury’s first question requested the definition of the term “culpability.”

       Contrary to Moore’s assertion in his brief, see Appellant’s Br. at 12,

       “culpability” is not defined by statute, see Ind. Code § 35-41-2-2 (though titled

       “Culpability,” the statute only defines the terms “intentionally,” “knowingly,”

       and “recklessly”). Given that there is no statutory definition of “culpability,” it

       would be a risky endeavor for the trial court to attempt to define the term. The

       jury’s second question asked, “Do all subpoints under element 2 need to be

       proved in order for deft. to be found guilty in counts 3 & 4?” Appellant’s App.

       at 6. Moore does not argue how this question points to an error or legal lacuna

       in the final instructions, and as noted above, both instructions followed the

       pattern jury instructions verbatim. Therefore, we are not persuaded the jury’s

       questions point to an error or legal lacuna in the final instructions.

       Accordingly, we conclude the trial court did not abuse its discretion in not

       giving a discrete answer to the jury’s questions.

       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 12 of 13
                                               Conclusion
[18]   The trial court did not commit fundamental error in admitting certain evidence

       or abuse its discretion in not providing a discrete answer to the jury’s questions.

       Accordingly, we affirm Moore’s convictions.


[19]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A04-1511-CR-1922 | July 29, 2016   Page 13 of 13
