MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 30 2018, 10:47 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin M. Lower,                                         July 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1610-CR-2430
        v.                                               Appeal from the La Porte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas J.
Appellee-Plaintiff                                       Alevizos, Judge
                                                         Trial Court Cause No.
                                                         46C01-1409-MR-257



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018            Page 1 of 11
                                        Statement of the Case
[1]   Justin Lower (“Lower”) appeals his conviction by jury of murder 1 as well as his

      adjudication as an habitual offender.2 He argues that: (1) the trial court

      committed reversible error by admitting a photo array into evidence; (2) the

      trial court abused its discretion in admonishing the jury; and (3) the prosecutor

      engaged in misconduct amounting to fundamental error during closing

      argument. Finding no reversible error, no abuse of the trial court’s discretion,

      and no fundamental error, we affirm Lower’s murder conviction.


[2]   We affirm.


                                                     Issues
                1.       Whether the trial court committed reversible error in
                         admitting the photo array into evidence.


                2.       Whether the trial court abused its discretion in admonishing
                         the jury.


                3.       Whether the prosecutor committed misconduct amounting
                         to fundamental error during closing argument.




      1
          IND. CODE § 35-42-1-1.
      2
          IND. CODE § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 2 of 11
                                                     Facts

[3]   In August 2014, Lower, armed with two knives, went to a LaPorte bar with

      Stephanie McKenna (“McKenna”). At some point, McKenna left the bar but

      told Lower she would return later. While McKenna was gone, Lower sent her

      the following text message:


              When u comein? How long? WTF? You left me here by myself
              I feel like fifhting someone, I don’t want go to prison but I have
              no one to vibe with. I need you here.

      (Exhibits Vol. 6 at 162) (misspelled words and improper grammar in the

      original). When McKenna texted Lower that she would return shortly, he

      responded:


              Im bout to fight so I hope not too long, I wanna beat someones
              face in!!!


      (Exhibits Vol. 6 at 162) (misspelled words and improper grammar in the

      original).


[4]   Shortly after McKenna returned to the bar, she and Lower walked outside to

      the parking lot where a group of men were fighting. Brian Hoops (“Hoops”)

      had just knocked Rob Wisniewski (“Wisniewski”) through a storefront

      window. Hoops then hit a friend, Tyrone Hicks (“Hicks”). As Damien Peak

      (“Peak”) attempted to separate Hoops and Hicks, Lower approached the group

      and yelled to Hoops, “Fuck those niggas, we got ‘em, let’s do this, fuck them.”

      (Tr. Vol. 4 at 238). Peak told Lower that the altercation between the two


      Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 3 of 11
      friends “was none of his business.” (Tr. Vol. 3 at 144). Lower initially turned

      away but then approached Peak from behind.


[5]   Marcus Phelps (“Phelps”), who had just walked in the parking lot, warned Peak

      about Lower’s approach, and Lower and Phelps began to fight. During the

      altercation, Lower stabbed Phelps nine times, twisting the knife several times as

      he pulled it out of Phelps’ body. Lower then went inside the bar to the

      bathroom to wash Phelps’ blood off of his arms and hands before leaving with

      McKenna. Phelps died as a result of the stab wounds.


[6]   The State charged Lower with murder and with being an habitual offender. At

      trial, LaPorte Police Department Officer Robert Allen (“Officer Allen”) testified

      that he had interviewed Ryan Dodds (“Dodds”) at the police station several

      hours after the murder and that Dodds had identified Lower in a photo array.

      When the State moved to admit the photo array into evidence, Lower objected

      that Lower’s photo “show[ed] him in jail garb.” (Tr. Vol. 4 at 11). Lower

      further objected to the admission of this evidence because “his identi[t]y was

      not an issue” at trial. (Tr. Vol 4 at 12). After Officer Allen explained that the

      Lower’s photograph was taken the day he was arrested “for this case,” the trial

      court overruled Lower’s objection and admitted the photo array into evidence.

      (Tr. Vol. 4 at 13).


[7]   Detective Brett Airy (“Detective Airy”) testified that he had watched a

      surveillance video from a bank across the street from the bar’s parking lot in an

      attempt to see whether Lower or Phelps had initiated their altercation.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 4 of 11
      However, according to Detective Airy, the bank’s surveillance camera was too

      far from the parking lot to clearly record what had happened. During cross-

      examination, defense counsel asked Detective Airy if he had attempted “either

      through ISP or anyone else to have that video enhanced.” (Tr. Vol. 4 at 155).

      Detective Airy responded that, in the past, he had “tried [to] have videos

      enhanced that were much better quality than that, and [he] had never had any

      luck being able to enhance video footage.” (Tr. Vol. 4 at 155).


[8]   Also at trial, when defense counsel asked Peak if he had told Hicks that

      “[Phelps] went to grab [Lower], and then they started fighting,” Peak

      responded that he had not. (Tr. Vol. 3 at 175). When defense counsel asked

      Peak if he had seen “who was the aggressor, who was the defender,” Peak

      again responded that he had not. (Tr. Vol 3 at 125). Peak specifically testified

      as follows:


              I didn’t hear any words, just the scuffling. You know what I
              mean? There was nothing being said. So, hearing that of course,
              knowing he was behind me at one point, I look over my
              shoulder, and at this point, there’s an altercation going on, and I
              can’t make out what’s going on or who it is. In my mind, it
              didn’t really have nothing to do with me, so just as I spoke with
              him, it’s none of my business. I didn’t pay it no attention, I
              really didn’t.


      (Tr. Vol. 3 at 152).


[9]   During the presentation of his evidence, Lower admitted that he had stabbed

      Phelps nine times. However, he further explained that Phelps had knocked him


      Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 5 of 11
       to the ground and hit and kicked him several times before Lower stabbed

       Phelps in self-defense.


[10]   Also during his presentation of evidence, Lower advised the trial court that he

       wanted to call Hicks as a witness to impeach Peak’s testimony that he had not

       seen who had started the fight between Lower and Phelps. Outside the

       presence of the jury, Lower proffered Hicks’ testimony that the day after the

       fight, Peak told him that Phelps “went to grab [Lower] . . . and then they started

       fighting.” (Tr. Vol. 4 at 246). During the proffer, the State objected that Hicks’

       testimony was hearsay. Defense counsel responded that the “offer [was] for

       impeachment purposes only” and had “zero probative value in substantive

       evidence.” (Tr. Vol 4 at 241, 244-45). He further suggested that the trial court

       could admonish the jury that the testimony was “only for the purpose of

       impeachment, and [could] not be used for substantive evidence.” (Tr. Vol. 4 at

       243).


[11]   Hicks subsequently testified that Peak told him that “[Phelps] went to grab

       [Lower], and they started fighting.” (Tr. Vol. 5 at 5). During cross-

       examination, Hicks testified that Peak “didn’t really say that he witnessed it,

       but he told me.” (Tr. Vol. 5 at 6). The trial court then admonished the jury as

       follows:


               Alright. This is important. This is a limiting instruction. What
               you’ve heard in Mr. Peak’s question and answer . . . cannot be
               used as evidence of what was stated in the statement. You
               cannot use it as such. In fact, Mr. Peak did not have any first-
               hand knowledge of that fact, however, you may use that question

       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 6 of 11
               and answer for the reason it was given, and that was to impeach
               Mr. Peak’s credibility. . . . You can’t use it for the truth of what
               was said in the statement, but simply to impeach his credibility.


       (Tr. Vol. 5 at 6). Lower objected to the trial court telling the jury that “Mr.

       Peak did not have any firsthand knowledge of that fact.”


[12]   Also at trial during closing argument, defense counsel argued as follows:


               [I]t would have been wonderful to see bank security surveillance.
               And I can understand if that camera just isn’t good enough. It
               happens. But when the State has the burden to disprove self-
               defense, don’t you think they owe it to you as the trier of fact to
               at least try and get the video enhanced? What you heard was, ‘I
               checked with another detective some time in the past. That video
               wasn’t – wasn’t able to be enhanced, so I didn’t bother doing it
               this time.” It’s unacceptable in this matter of higher importance.
               You deserve more. Justin deserves more. Don’t think for a
               second, if a detective, if an agency, if the prosecutor’s office –
               wanted to show this was self-defense? Don’t think for a second
               they would not have pursued that and pursued that end. Just as
               they pursued the end of a murder conviction.


       (Tr. Vol. 5 at 41-42).


[13]   On rebuttal, the prosecutor responded as follows without objection:


               They have the same discovery the State did. They have the same
               video. They have the same interviews. Everything. They have
               the same stuff we do. . . . So, if there are certain videos, the
               capability exist[s] to both of us. No, Detective Airy told you.
               The incapability of that bank video. He described for you how
               bad it was. So was it unreasonable to believe that it was not
               going to be enhanceable?

       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 7 of 11
       (Tr. Vol. 5 at 47).


[14]   The jury convicted Lower of murder and adjudicated him to be an habitual

       offender. The trial court sentenced Lower to 72 years, 60 years for murder,

       enhanced by 12 years for being an habitual offender. Lower now appeals his

       murder conviction.


                                                   Decision
       1.      Admission of Evidence

[15]   Lower first argues that the trial court abused its discretion when it admitted the

       photo array into evidence. He appears to contend that the photo array was not

       relevant because Lowers’ identity was not at issue and that it was prejudicial

       because “all individuals pictured in the line-up were in jail garb and [the

       photograph] could lead a reasonable jury to believe that he had a prior criminal

       record.” (Lower’s Br. 20).


[16]   We review the trial court’s ruling on the admission of evidence for an abuse of

       discretion. Dycus v. State, 90 N.E.3d 1215, 1219-20 (Ind. Ct. App. 2017). A

       trial court abuses its discretion if its decision is clearly against the logic and

       effect of the facts and circumstances before the court. Id. at 1220. However,

       even if the trial court abuses its discretion in admitting evidence, a reversal may

       be obtained “only if the record as a whole discloses that the erroneously

       admitted evidence was likely to have had a prejudicial impact upon the mind of

       the average juror, thereby contributing to the verdict.” Wales v. State, 768

       N.E.2d 513, 521 (Ind. Ct. App. 2002), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 8 of 11
[17]   Mug shots are ordinarily not admissible in evidence because they tend to reveal

       to the jury that the accused has a criminal record. Coleman v. State, 546 N.E.2d

       827, 831 (Ind. 1989). However, “there is no jeopardy in showing a photograph

       of appellant” taken at the time of his arrest on the current charges before the

       trial court. Id. See also Wheeler v. State, 749 N.E.2d 1111, 1114 (Ind. 2001)

       (concluding that mug shots of the defendant were not unfairly prejudicial

       because a detective told the jury that the photographs were taken the day of his

       arrest for the current charges). Here, where Officer Allen testified that Lower’s

       photograph was taken at the time of Lower’s arrest on the current charges, the

       photograph was not likely to have had a prejudicial impact upon the mind of

       the average jury or contributed to the verdict. The trial court did not commit

       reversible error in admitting the photo array into evidence.


       2.      Jury Admonishment

[18]   Lower also argues that the trial court abused its discretion when it admonished

       the jury that “Peak did not have any first-hand knowledge of that fact.” Lower

       specifically argues as follows:


               The Court stated that Mr. Peak did not have any first-hand
               knowledge of that fact, but that the jury could use the statement
               to impeach Mr. Peak’s credibility. Trans. 503. It should have
               been up to the jury to determine whether Mr. Peak had
               knowledge of that fact through his testimony or other witness
               testimony. As a result, the admonishment from the Court was
               misleading to the jury, clearly against the logic and effect of the
               facts and circumstances and this case should be reversed and
               remanded back to the trial court for an abuse of discretion.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 9 of 11
       (Lower’s Br. at 22).


[19]   However, Lower has waived appellate review of this argument because his

       brief, conclusory argument is supported neither by citation to authority nor

       cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App.

       2005) (“Generally, a party waives any issue raised on appeal where the party

       fails to develop a cogent argument or provide adequate citation to authority and

       portions of the record.”), trans. denied.


[20]   Waiver notwithstanding, we find no error. Our review of the evidence reveals

       that Peak specifically testified that he did not see or know who the initial

       aggressor was in the fight between Phelps and Lower. This evidence supports

       the trial court’s admonishment that Peak did not have first-hand knowledge of

       that fact. The trial court did not improperly admonish the jury, and we find no

       abuse of the trial court’s discretion.


       3.      Prosecutorial Misconduct

[21]   Lastly, Lower argues that the prosecutor “committed misconduct by arguing in

       her [rebuttal] closing argument that Mr. Lower could have had a video tape

       enhanced.” (Lower’s Br. at 22). Assuming that Lower properly objected to this

       closing argument, he has waived appellate review of this issue because he failed

       to request an admonishment or mistrial. See Dumas v. State, 803 N.E.2d 1113,

       1117 (Ind. 2004) (explaining that a prosecutorial misconduct argument is

       waived when the defendant objected but did not request an admonishment or

       move for a mistrial).


       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 10 of 11
[22]   Because Lower has waived this argument, he must establish not only the

       grounds for prosecutorial misconduct but also that the prosecutorial misconduct

       constituted fundamental error. See Ryan v. State, 9 N.E.3d 663, 667-68 (Ind.

       2014). Fundamental error is an extremely narrow exception to the waiver rule

       where the defendant faces the heavy burden of showing that the alleged error is

       so prejudicial to the defendant’s rights as to “make a fair trial impossible.” Id.

       at 668.


[23]   Here, our review of the evidence reveals that the State’s comment, made during

       its rebuttal closing argument, that Lower could have had the video tape

       enhanced was merely a response to Lower’s closing argument comment that the

       State should have pursued enhancement of a parking lot surveillance video.

       “Prosecutors are entitled to respond to allegations and inferences raised by the

       defense even if the prosecutor’s response would otherwise be objectionable.”

       Id. at 669. As such, the prosecutor’s comment in this case, which was a

       response to Lower’s allegations and inferences, was neither improper nor did it

       amount to fundamental error.


[24]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1610-CR-2430 | July 30, 2018   Page 11 of 11
