MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 29 2018, 9:29 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Vincent M. Campiti                                      Curtis T. Hill, Jr.
Nemeth Feeney Masters & Campiti,                        Attorney General of Indiana
P.C.
South Bend, Indiana                                     Angela N. Sanchez
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Young,                                          May 29, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A04-1708-CR-1867
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Elizabeth C.
Appellee-Plaintiff.                                     Hurley, Judge
                                                        Trial Court Cause No.
                                                        71D08-1606-MR-5



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018            Page 1 of 13
                                             Case Summary
[1]   Michael Young appeals his conviction for murder. We affirm.


                                                    Issues
[2]   The issues before us are:


              I.      whether the trial court properly admitted evidence that the
                      victim had Bibles in his possession and citations to Bible
                      verses on his shoes when he was killed; and


              II.     whether the prosecutor committed misconduct during
                      opening and closing argument.


                                                     Facts
[3]   On May 31, 2016, Young and Karla Beachy-Wedge were together at a bar in

      South Bend. At one point, Beachy-Wedge went outside alone to smoke a

      cigarette in her car. As she was getting ready to exit her car, a black man

      wearing a red shirt or sweater forced her door open and demanded money.

      Although Beachy-Wedge initially told the man she had no money, there was a

      $50 bill in her car that he saw and that she gave to him. The man then walked

      away, and Beachy-Wedge stayed in her car and smoked another cigarette to

      calm down.


[4]   After the incident, Beachy-Wedge exchanged texts with Young, who then came

      out to her car. Beachy-Wedge told Young what had happened, and Young

      became upset. Beachy-Wedge told Young that they should call the police, but

      Young instead elected to look for the robber himself. Beachy-Wedge described
      Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 2 of 13
      the robber as a black man wearing a red shirt of some kind and with a

      backpack, but she did not get a good look at his face. Although Young, who is

      white, already had a firearm on him, he went to his vehicle to retrieve a 9mm

      Glock that he was more comfortable with and then went looking for the robber.


[5]   After walking down several streets and alleys and not seeing anyone matching

      Beachy-Wedge’s description of the robber, Young saw a black man in a red t-

      shirt with a backpack walking towards him. This man was Markest Flowers.

      Young confronted Flowers and asked him if he was involved in a robbery that

      just happened. According to Young, Flowers did not say yes or no to Young’s

      question but instead threatened to “f*** me up.” Tr. Vol. III p. 109. Flowers

      attempted to walk away from Young, but Young followed him and kept

      questioning him; Flowers kept refusing to respond and instead threatened to

      hurt Young if Young did not leave him alone.


[6]   Several witnesses saw Young following Flowers while crossing a street, and it

      appeared to them that Young was talking and Flowers was silent. Beachy-

      Wedge also briefly saw Flowers appearing to jog backwards away from Young

      and making hand gestures. Upon reaching the curb, witnesses saw Young

      appear to grab Flowers’s backpack, causing Flowers to turn around, at which

      point Young shot Flowers in the face. One witness overheard Young say,

      “you’re not going anywhere” before shooting Flowers. Tr. Vol. II p. 130.

      Young’s version of events was that he stumbled on the curb and merely touched

      Flowers’s backpack, at which point Flowers turned and came toward Young,



      Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 3 of 13
       frightening Young and causing him to shoot for fear of his safety. Flowers died

       from the gunshot.


[7]    When searching Flowers’s backpack and clothing thereafter, police did not find

       a $50 bill. They did find, among other items, several Bibles. During Young’s

       interview with police, there was a reference to Flowers being a “thug,” though

       an officer prompted that reference. Ex. 37. Young also discussed his service in

       Vietnam and said, “I learned to shoot those mother***ers that didn’t look like

       me.” Id.


[8]    The State charged Young with murder. Prior to trial, Young filed a motion in

       limine to prohibit the State from introducing evidence that when he was killed,

       Flowers had Bibles in his possession and introducing pictures of his shoes,

       which had citations to Bible verses written on them. The trial court denied the

       motion and allowed the State to introduce this evidence at trial over objection.


[9]    During opening argument, the prosecutor stated in part:


               Karla told him that it had been a black man, a black man wearing
               a red shirt, very few details. She said if you’re so fired up about
               this, let’s call the police. The defendant said, no, let me find him
               first. So then he began the hunt. . . . Markest Flowers just
               happened to be the first black man he saw that day and so he
               approached him.


       Tr. Vol. II p. 18.


[10]   During closing argument, while a picture of Flowers was projected, the

       prosecutor stated:

       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 4 of 13
               Ladies and gentleman, that is Markest Flowers. That’s where he
               stood. Murder. In the State of Indiana you cannot knowingly
               kill someone. It’s against the law. It’s called murder. And it’s a
               crime. This is what it looks like in real life. It’s hard to watch,
               hard to see. That’s the thug right there. That is the thug that was
               gunned down by this man in cold blood. This is what it sounds
               like. This is what it looks like.


       Tr. Vol. III p. 161.


[11]   On rebuttal argument, the prosecutor stated:


               What does he tell Mr. Young (sic) when he was in the service
               that [defense counsel] made such a big deal about. He said I
               learned to shoot those mother f***ers that didn’t look like me.
               Gosh, I hate these new rules of engagement where you have to
               see the weapon. That’s what he said. He thinks this is the old
               west where you can just shoot anyone just based on if you think
               they are dirty. That’s what he said Markest was or not. You can
               determine if they look thuggish or not. That’s not how self-
               defense works.


       Id. at 205.


[12]   The jury rejected Young’s claim of self-defense and found him guilty as

       charged. The trial court entered judgment of conviction and sentenced him

       accordingly. Young now appeals.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 5 of 13
                                                   Analysis
                                        I. Introduction of Evidence

[13]   Young first challenges the trial court’s admission of evidence that Flowers had

       several Bibles in his possession and citations to Bible verses written on his shoes

       when he was killed. We will reverse a conviction based on an evidentiary

       ruling only if the ruling was an abuse of discretion and the resulting error was

       prejudicial to the defendant. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).

       “A trial court abuses its discretion when its ruling is either clearly against the

       logic and effect of the facts and circumstances before the court, or when the

       court misinterprets the law.” Id. In determining the prejudicial effect of an

       alleged evidentiary ruling, “‘we assess the probable impact the evidence had

       upon the jury in light of all of the other evidence that was properly presented.’”

       Id. (quoting Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014)). “If the conviction

       is properly supported by other independent evidence of guilt, the error is

       harmless.” Id.


[14]   Young does not cite which evidentiary rule the introduction of this evidence

       supposedly violated. He refers to Indiana Evidence Rule 402(a)(2)(B), which

       provides: “subject to the limitations in Rule 412, a defendant may offer

       evidence of an alleged victim’s pertinent trait, and if the evidence is admitted,

       the prosecutor may offer evidence to rebut it . . . .” However, introduction into

       evidence of a victim’s reputation for violence and prior violent acts and threats,

       in relation to a self-defense claim, requires some proof that the defendant knew

       of that reputation. Brand v. State, 766 N.E.2d 772, 780 (Ind. Ct. App. 2002),

       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 6 of 13
       trans. denied. There is no evidence Young knew Flowers at all prior to the fatal

       confrontation. Regardless, Young claims Flowers had a criminal history that

       he was not allowed to refer to during trial but that the State was able to suggest

       Flowers was a peaceable person because he was religious.


[15]   The pertinent evidence rule here appears to be Rule 403, which provides: “The

       court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,

       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.” “Evidence is relevant if: (a) it has any tendency to make

       a fact more or less probable than it would be without the evidence; and (b) the

       fact is of consequence in determining the action.” Ind. Evidence Rule 401.

       Because all relevant evidence is necessarily prejudicial in a criminal

       prosecution, “unfair” prejudice refers to the potential for a jury to substantially

       overestimate the value of the evidence, or its potential to arouse or inflame the

       passions or sympathies of the jury. Bowman v. State, 73 N.E.3d 731, 734-35

       (Ind. Ct. App. 2017), trans. denied. “Evaluation of whether the probative value

       of an evidentiary matter is substantially outweighed by the danger of unfair

       prejudice is a discretionary task best performed by the trial court.” Bryant v.

       State, 984 N.E.2d 240, 249 (Ind. Ct. App. 2013), trans. denied.


[16]   The State posited that the Bibles had relevance because they were part of what

       was recovered from Flowers’s clothing and backpack after the shooting, and

       which did not include the $50 bill stolen from Beachy-Wedge. Indeed, the State

       displayed all the items recovered from Flowers, not just the Bibles. The shoes

       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 7 of 13
       themselves also were claimed to be relevant because they could have been

       another location where a $50 bill could have been hidden, but it was not found

       in them. The State also wanted to introduce the shoes as evidence of Flowers’s

       appearance when he was shot; it also introduced his pants into evidence for that

       reason.


[17]   Thus, the Bibles and shoes had some relevance to the question of whether

       Flowers’s actually had stolen $50 from Beachy-Wedge and was indeed the

       robber Young had been searching for. The shoes might have had some

       additional relevance, although marginal in our view, regarding Flowers’s

       appearance—i.e., did he match Beachy-Wedge’s description of the robber and

       did he appear threatening to Young or would he so appear to a reasonable

       person?


[18]   As for any unfair prejudice associated with the Bibles and shoes, the State did

       not make any attempt to argue to the jury that they indicated good or peaceable

       character on Flowers’s part. Instead, the State in its arguments focused on the

       multiple eyewitness accounts of the shooting and how they were inconsistent

       with the requirements of a self-defense claim, and noted that Young’s own

       testimony that he was fearful when he shot Flowers did not mean that a

       reasonable person would have felt so and that his use of force was not

       proportionate to the situation. In sum, we conclude the trial court was well

       within its discretion in balancing the probative value and potential for unfair

       prejudice of this evidence and concluding that it was admissible.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 8 of 13
[19]   In any event, it appears to us that even if erroneously admitted, this evidence

       was harmless. “A claim of self-defense requires a defendant to have acted

       without fault, been in a place where he or she had a right to be, and been in

       reasonable fear or apprehension of bodily harm.” Weedman v. State, 21 N.E.3d

       873, 891-92 (Ind. Ct. App. 2014), trans. denied. However, when a party uses

       deadly force, he or she must reasonably believe such force was necessary to

       prevent the infliction of serious bodily injury. Ind. Code § 35-41-3-2(c). “[T]he

       Indiana self-defense statute requires both a subjective belief that force was

       necessary to prevent serious bodily injury and that a reasonable person under

       the circumstances would have such an actual belief.” Washington v. State, 997

       N.E.2d 342, 349 (Ind. 2013). Even if the use of force is justified, it must be

       proportionate to the situation and cannot be more than is reasonably necessary

       under the circumstances. Weedman, 21 N.E.3d at 892.


[20]   By Young’s own account, he approached Flowers and accused him of

       committing a crime, then continued following Flowers and questioning him

       when Flowers did not admit to the robbery and attempted to walk away from

       the situation. Although Young claimed Flowers was threatening him, Flowers

       never displayed a weapon of any kind, and none was found on him. Young

       then shot Flowers at close range in the face when Flowers turned to Young and

       allegedly began to approach him. Several eyewitnesses—who did not know of

       Flowers’s possession of Bibles or Bible verses on his shoes—testified that Young

       clearly was the aggressor in the situation and that Flowers only turned to face

       Young after Young pulled on Flowers’s backpack. One of the witnesses heard


       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 9 of 13
       Young say, “you’re not going anywhere” before shooting Flowers. Tr. Vol. II

       p. 130. Even ignoring the witnesses’ testimony, however, there is substantial

       evidence that Young used force that was grossly disproportionate to the

       situation and objectively unreasonable and that Young was the instigator of the

       incident and continued it after Flowers attempted to disengage from it. In light

       of all the evidence in this case, the introduction of the Bibles and Flowers’s

       shoes with Bible verses on them likely had very little impact on the jury and was

       at most harmless error, if error at all.


                                       II. Prosecutorial Misconduct

[21]   Next, Young claims the prosecutor committed misconduct when he repeatedly

       referred to Flowers as a black man and when he said Young intended to “hunt”

       for a black man, implied that Young thought Flowers was a “thug,” and

       suggested that Young was inclined to shoot Flowers because Flowers did not

       look like him. In reviewing a claim of prosecutorial misconduct that has been

       properly preserved, we determine (1) whether misconduct occurred, and if so,

       (2) “‘whether the misconduct, under all of the circumstances, placed the

       defendant in a position of grave peril to which he or she would not have been

       subjected’” otherwise. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012)

       (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). A prosecutor has the

       duty to present persuasive argument to the jury and thus placing a defendant in

       grave peril, by itself, is not misconduct. Ryan v. State, 9 N.E.3d 663, 667 (Ind.

       2014). “‘Whether a prosecutor’s argument constitutes misconduct is measured

       by reference to case law and the Rules of Professional Conduct. The gravity of

       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 10 of 13
       peril is measured by the probable persuasive effect of the misconduct on the

       jury’s decision rather than the degree of impropriety of the conduct.’” Id.

       (quoting Cooper, 854 N.E.2d at 835). To preserve a prosecutorial misconduct

       claim, the defendant must—at the time the alleged misconduct occurs—request

       an admonishment to the jury, and if further relief is desired, move for a mistrial.

       Id.


[22]   Here, Young did not object to any part of the prosecutor’s opening or closing

       arguments. His claim of prosecutorial misconduct is waived. See id. As such,

       Young must establish the existence of not only the elements of prosecutorial

       misconduct but also that such misconduct constituted fundamental error. See

       id. at 668. To establish fundamental error, a defendant must show that the trial

       court erred in not sua sponte raising the issue because the alleged error or errors

       “‘constitute clearly blatant violations of basic and elementary principles of due

       process’” and “‘present an undeniable and substantial potential for harm.’” Id.

       (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In evaluating

       whether fundamental error occurred, we must consider the alleged misconduct

       in the context of all that happened and all relevant information given to the

       jury—including evidence admitted at trial, closing argument, and jury

       instructions—to determine whether the misconduct had such an undeniable and

       substantial effect on the jury’s decision that a fair trial was impossible. Id.

       “Fundamental error is meant to permit appellate courts a means to correct the

       most egregious and blatant trial errors that otherwise would have been




       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 11 of 13
       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.


[23]   Young contends the prosecutor improperly interjected the issue of race into the

       trial by referring to Young—a white man—“hunting” a black man whom he

       considered a “thug” and different from him. We see nothing in the prosecutor’s

       opening and closing arguments that approaches the level of fundamental error.

       The prosecutor was correctly summarizing and describing the evidence to the

       jury—the fact that Young took it upon himself to act as a vigilante and seek his

       friend’s robber based on her vague description of a black man in a red shirt, and

       Young’s confrontation with the first black man he saw who met that

       description. The prosecutor may have taken some slight liberties with respect to

       implying that Young thought Flowers looked like a “thug” and that he shot

       Flowers because Flowers looked different from him. However, the prosecutor

       was extrapolating from what Young discussed with police officers during his

       interview, which had been introduced into evidence. All in all, it appears the

       prosecutor’s challenged statements were merely permissible comments upon the

       evidence. See Ramsey v. State, 853 N.E.2d 491, 501 (Ind. Ct. App. 2006), trans.

       denied. Certainly, we see nothing so egregious in these comments that would

       have fundamentally and negatively impacted Young’s right to a fair trial.


                                                 Conclusion
[24]   The trial court did not abuse its discretion in allowing the State to present

       evidence that Flowers had Bibles in his possession and citations to Bible verses

       written on his shoes when he was killed; even if it did err, any such error would
       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 12 of 13
       have been harmless. Also, the prosecutor did not commit fundamentally

       erroneous misconduct in his arguments to the jury. We affirm Young’s

       conviction.


[25]   Affirmed.


       Vaidik, C.J., and Pyle, J. concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1708-CR-1867 | May 29, 2018   Page 13 of 13
