MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Oct 31 2017, 12:00 pm
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart, LLP                                     Jodi Kathryn Stein
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Devlin C. Decker,                                        October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1702-CR-332
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John Roach, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         84D01-1401-MR-53



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017       Page 1 of 20
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Devlin C. Decker (Decker), appeals his convictions for

      murder, a felony, Ind. Code § 35-42-1-1(1) (2013); and aggravated battery, a

      Class B felony, I.C. § 35-42-2-1.5 (2013).


[2]   We affirm in part and reverse in part.


                                                   ISSUES
[3]   Decker raises three issues on appeal, which we restate as follows:

      (1) Whether Decker’s convictions for murder and aggravated battery violate

      the Indiana Constitution’s prohibition against double jeopardy;

      (2) Whether Decker should have been granted a mistrial in light of

      prosecutorial misconduct; and

      (3) Whether the State presented sufficient evidence to support Decker’s

      conviction for murder.


                      FACTS AND PROCEDURAL HISTORY
[4]   On New Year’s Eve 2013, Pamela Jones (Jones) and her boyfriend, Decker,

      decided to host a small party at Jones’ home in Terre Haute, Vigo County,

      Indiana. At the time, Decker had been living with Jones for several months,

      and the two were expecting a child together. Around 5:00 p.m., Jones and

      Decker drove to the home of Decker’s uncle, Phillip Evans (Evans), to pick up

      Evans and his roommate, Joshua Thomas (Thomas), for the party. En route

      back to Jones’ house, they stopped at a gas station so that Evans could

      withdraw money from an ATM. When he returned to the vehicle, Evans
      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 2 of 20
      accused Thomas of using Evans’ bank card to steal money from Evans’

      account. Thomas denied doing so, but Evans remained angry.


[5]   The group returned to Jones’ house, and for the next several hours, they drank

      liquor and beer and became heavily intoxicated. At some point in the evening,

      Thomas began flirting with Jones. When Jones informed Decker about

      Thomas’ unwelcome advances and indicated that she no longer wanted him at

      the party, Decker “got mad,” which ultimately led to Decker and Thomas

      engaging in a verbal and physical altercation in the living room. (Tr. Vol. III, p.

      78). Because Jones’ young child was asleep in the house, she ordered the two

      men “to take it outside.” (Tr. Vol. III, p. 79). Evans followed Decker and

      Thomas outside, indicating to Jones that he would break up the brawl.


[6]   Jones’ next-door neighbors, Eric (Eric) and Diana (Diana) Goucher, were

      watching television when they heard a commotion coming from Jones’ front

      porch. From their window, Eric and Diana had a direct view of Jones’ porch.

      According to Eric, one male, later identified as Decker, punched and kicked

      another male, later identified as Thomas, as Thomas pleaded with Decker to

      stop. While a third man, later identified as Evans, stood there watching,

      Decker punched Thomas in the face, knocking Thomas to the ground. Decker

      continued to punch and kick Thomas, eventually kicking Thomas off the porch

      onto the concrete a few feet below. Thomas brought himself up to his hands

      and knees and attempted to stand, at which point Decker picked up a solid

      wood table, weighing approximately forty to fifty pounds, from the porch and

      “smashed it over” Thomas’ head and shoulders. (Tr. Vol. III, p. 41). Decker

      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 3 of 20
      then turned and walked back in the house. Thomas stood and also attempted

      to return to the house, but Evans snatched him up and pinned him against the

      wall of the house. After looking around as if to check whether anybody was

      watching, Evans punched Thomas. Thomas went limp, so Evans spun him

      around and dropped him off the porch. Decker emerged from the house, and as

      Evans repeatedly kicked Thomas in the torso, Decker stomped on Thomas’

      face. This kicking and stomping lasted for at least thirty seconds, until Decker

      and Evans looked up and realized that Eric and Diana were observing the entire

      matter through their window. It was obvious to Eric that, by this point,

      Thomas was unconscious, and according to both Eric and Diana, Thomas

      never fought back in any manner or otherwise defended himself. Diana had

      called 911 as soon as they saw Decker pick up the wood table.


[7]   Once Decker and Evans noticed Eric and Diana watching, Decker “just

      smacked [Thomas] on his face and said hey, come on, come on get up, get up.”

      (Tr. Vol. III, p. 60). When Thomas did not move, Decker and Evans attempted

      to drag Thomas toward Jones’ vehicle, but Evans quickly decided against this

      and returned to the house. Despite his effort, Decker was unable to drag

      Thomas without assistance. At that time, which was shortly before 8:00 p.m.,

      Jones’ cousin, Courtney Dailey (Dailey), and her boyfriend, Camron Wormser

      (Wormser), drove up to the house. Jones came out to greet them, and, ignoring

      the fact that Thomas was lying on the ground unconscious, she escorted Dailey

      inside and laughingly informed Dailey that Decker “had gotten into it with

      some guy.” (Tr. Vol. III, p. 126). Decker approached Wormser and, after


      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 4 of 20
      explaining that Thomas was “knocked out and needed a ride home,” asked

      Wormser for assistance in getting Thomas into Jones’ vehicle. (Tr. Vol. III, p.

      157). Wormser noticed that Thomas was not moving, and “it sounded like [he]

      was snoring.” (Tr. Vol. III, p. 155). Nevertheless, he helped Decker drag

      Thomas’ body across the yard. Again, Decker “started kicking [Thomas] in the

      head” and stated, “[T]his is how we carry bitch newbys [sic] like you . . . out of

      the hood.” (Tr. Vol. III, pp. 158, 168). Wormser warned Decker to stop or he

      would not assist.


[8]   Before Decker and Wormser could drag Thomas all the way to Jones’ vehicle,

      officers with the Terre Haute Police Department arrived. Decker immediately

      ran into the house and, “panicking,” told Jones that the police were there and

      that he was going to be taken to jail because “he had stabbed [Thomas].” (Tr.

      Vol. III, p. 94). Decker quickly changed his blood-stained shirt and fled out the

      back door. Later, when Evans came into the house, he also informed Jones and

      Dailey that he had stabbed Thomas. Hours later, Decker appeared at the home

      of Kenneth Carter (Carter), who was Decker’s friend and Jones’ stepbrother,

      and stated “[t]hat he thought he’d killed somebody” and that, after punching

      and kicking and hitting Thomas with a table, both he and Evans had stabbed

      him. (Tr. Vol. VI, p. 92).


[9]   The first officers on the scene observed that Thomas was unresponsive, and he

      had “agonal respirations,” which is typical end-of-life breathing when the body

      is not getting sufficient oxygen. (Tr. Vol. III, p. 217). The officers administered

      CPR, and when they lifted his shirt to apply defibrillator pads, they observed a

      Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 5 of 20
       laceration on his chest. Medics arrived and took over treatment and

       transported Thomas to the hospital. Within minutes of arriving at the hospital,

       Thomas was pronounced dead. During their subsequent investigation, officers

       discovered a bloody knife on the ground near the porch; testing confirmed the

       blood came from Thomas.


[10]   An autopsy revealed that Thomas had sustained a number of abrasions to his

       head and torso, as well as three stab wounds: one near his right armpit, which

       did not enter the chest cavity; one to his lower neck/upper back, which missed

       the spinal column; and one to his lower left chest, which punctured the

       diaphragm, liver, and heart. Absent extenuating circumstances, the stab

       wounds to the right armpit and lower neck/upper back were not life

       threatening. The third stab wound to the lower left chest, however, was fatal as

       it perforated the heart and caused the chest cavity to fill with blood, which

       resulted in one of Thomas’ lungs collapsing. During the autopsy, the forensic

       pathologist also collected vitreous fluid (i.e., fluid from inside the eyeball) for a

       toxicology screen. At the time of his death, Thomas had a blood alcohol

       concentration of .457, which is “almost six times th[e] level” that the State of

       Indiana recognizes as being intoxicated for the purposes of operating a vehicle.

       (Tr. Vol. IV, p. 195). In such an intoxicated state, Thomas would have been

       unable to defend himself. In fact, he likely would have been “approaching [a]

       comatose state.” (Tr. Vol. IV, p. 196).


[11]   On January 8, 2014, the State filed an Information, charging Decker with one

       Count of murder, a felony, I.C. § 35-42-1-1(1) (2013); and one Count of

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 6 of 20
       aggravated battery, a Class B felony, I.C. § 35-42-2-1.5 (2013). On October 3

       through October 6, 2016, the trial court conducted a jury trial. At the close of

       the evidence, the jury rendered guilty verdicts on both Counts. Accordingly,

       the trial court entered a judgment of conviction for murder, a felony; and

       aggravated battery, a Class B felony. On January 12, 2017, the trial court held

       a sentencing hearing. For the murder conviction, the trial court ordered a sixty-

       year sentence, fully executed in the Indiana Department of Correction. As to

       the aggravated battery conviction, the trial court sentenced Decker to an

       executed term of fifteen years. The trial court ordered the sentences to run

       concurrently, for an aggregate term of sixty years.


[12]   Decker now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                               I. Double Jeopardy

[13]   Decker claims that his convictions for murder and aggravated battery violate

       Indiana’s prohibition against double jeopardy. Article 1, Section 14 of the

       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” “[T]wo or more offenses are the same offense in

       violation of [this provision] if, with respect to either the statutory elements of

       the challenged crimes or the actual evidence used to obtain convictions, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013)

       (citing Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999)).


       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 7 of 20
[14]   Here, Decker argues that both convictions were supported by the same actual

       evidence. “The actual evidence test prohibits multiple convictions if there is ‘a

       reasonable possibility that the evidentiary facts used by the fact-finder to

       establish the essential elements of one offense may also have been used to

       establish the essential elements of a second challenged offense.’” Davis v. State,

       770 N.E.2d 319, 324 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 53).

       However, there is no double jeopardy violation if “the evidentiary facts

       establishing the essential elements of one offense also establish only one or even

       several, but not all, of the essential elements of a second offense.” Garrett, 992

       N.E.2d at 719 (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). A

       “reasonable possibility” that a jury relied on the same facts for two convictions

       “requires substantially more than a logical possibility.” Id. (quoting Lee v. State,

       892 N.E.2d 1231, 1236 (Ind. 2008)). Indiana’s Double Jeopardy Clause allows

       for “convictions for multiple offenses committed in a protracted criminal

       episode” so long as “the case is prosecuted in a manner that insures that

       multiple guilty verdicts are not based on the same evidentiary facts.” Id. at 720

       (quoting Richardson, 717 N.E.2d at 53 n.46). We must consider whether the

       jury “may have latched on to exactly the same facts for both convictions.” Id.

       (quoting Lee, 892 N.E.2d at 1236). Thus, “[w]e evaluate the evidence from the

       jury’s perspective and may consider the charging information, jury instructions,

       and arguments of counsel.” Id. (citing Lee, 892 N.E.2d at 1234).


[15]   Decker was convicted of murder and aggravated battery. For the former, the

       State was required to prove that Decker “knowingly or intentionally kill[ed]”

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 8 of 20
       Thomas. I.C. § 35-42-1-1(1). As for the latter, the State was obligated to prove

       that Decker “knowingly or intentionally inflict[ed] injury on [Thomas] that

       create[d] a substantial risk of death.” I.C. § 35-42-2-1.5. Theoretically, there is

       evidence in the record to independently support each charge. However, Decker

       insists that the State, by generically charging the crimes and by failing to

       “delineate which facts were related to each [C]ount” during arguments,

       impelled the jury to utilize the same evidence for both crimes. (Appellant’s Br.

       p. 12). We agree.


[16]   The charging Information alleges that Decker committed the crimes of murder

       and aggravated battery by simply setting forth the statutory elements of the

       crimes without any reference to the factual basis for each. During the State’s

       opening and closing arguments, the State heavily emphasized that Decker’s

       involvement in the fight—from punching and stomping on Thomas’ head to

       slamming a wooden table down on Thomas’ head to stabbing Thomas—

       ultimately led to Thomas’ death, notwithstanding whether it was Decker or

       Evans who delivered the fatal stab. Throughout its arguments, the State

       repeatedly reiterated the facts of the case without ever specifically outlining

       which evidence supported each charge.


[17]   Although the State’s closing argument spanned more than twenty pages of the

       transcript, the following excerpts particularly illustrate how the State combined

       the evidentiary facts as being supportive of both murder and aggravated battery:


               We know the injuries to . . . Thomas. We know that there was
               [sic] three (3) stab wounds. You heard [the forensic pathologist]

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 9 of 20
        testify about the stab wound which was in fact fatal. We know
        that the blunt force trauma as well and we know that Thomas
        was pronounced dead shortly after arriving at Regional Hospital.
        . . . [W]e know the criminal acts in this, in this case or charge, are
        in fact Murder. That on or about December 31st 2013, . . .
        Decker knowingly killed . . . Thomas. Aggravated battery, on or
        about December 31st 2013, . . . Decker knowingly inflicted injury
        on . . . Thomas which created substantial risk of death. . . . Now
        let[’]s look in this case of what shows [Decker] committed the act
        of Murder and committed the act of Aggravated Battery. . . . The
        evidence showed that Decker was and I will claim the first
        aggressor. Okay. There is [sic] no injuries whatsoever on . . .
        Decker observed by anybody. Decker hit Thomas with his fist.
        Decker knocked Thomas off the porch. He hit him in the head
        with a 2 x 4 table. He stomped him in the head. He stabbed
        Thomas. The testimony from two (2) separate individuals.
        [Jones] said that . . . Decker told her that he had stabbed Thomas
        once. That night he went over to [Carter’s] and said that he had
        stabbed . . . Thomas and even made the stabbing motion. Decker
        moved the body. The evidence showed in this case that . . .
        Decker participated in the events leading to the death of . . .
        Thomas. We know . . . Thomas passed away. We have
        evidence of that [from the forensic pathologist]. Under these
        circumstances the law does not require the State to put forth or
        show who delivered the fatal blow. When you have two (2)
        individuals such as . . . Decker and . . . Evans, when they are
        both participating together, they’re both equally criminally
        responsible for the outcome. There is no evidence in this case
        whatsoever that there were [sic] anybody outside with . . .
        Thomas beside . . . Decker and . . . Evans. No evidence
        whatsoever. . . . Wormser came later when they were trying to
        drag him out to the vehicle. But there was nobody else present.
        This is accompli[ce] liability. . . . There’s no doubt, there’s no
        doubt that Decker punche[d] Thomas. There’s no doubt that
        Decker hit Thomas over the head with the table. There’s no
        doubt that Decker kicked Thomas. There’s no doubt that Decker
        kicked Thomas in the head. There’s no doubt that he stomped
Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 10 of 20
        him in the head with his shoes. There’s no doubt that Decker
        tried to move the body. There’s no doubt that Decker
        participated in the events which le[d] to Thomas’ death. And
        under these circumstances, that is Murder. That is Aggravated
        Battery. Mere participation in an illegal act is sufficient to
        sustain a conviction for the criminal act charged. Mere
        participation. That’s what accompli[ce] liability is. . . . Thomas
        was knowingly killed. The facts show it. The evidence shows it.
        And that . . . Decker was actively involved in that and committed
        the act of Murder himself.
        ****
        Aggravated Battery. On or about December 31st 2013, [Decker]
        did knowingly. We’re looking at the same element of knowingly.
        The same facts apply in this case. Inflict injury. We seen [sic] the
        injury to . . . Thomas from the blunt force[] trauma to the stab
        wounds to the kicking in the head. Inflict injury that creates a
        substantial risk of death. Well we know in this case that he did
        in fact die.
        ****
        Decker not only was the first aggressor. He hit Thomas with his
        fist. He hit him with a 2 x 4 table. He hit Thomas in the head.
        He stomped Thomas in the head. He tried to remove the body.
        Decker cannot dispute that he was involved. There is no doubt
        that Decker participated in the events that evening. That’s all
        that’s needed for murder ladies and gentlemen under the
        accompli[ce] liability statute. Under the instruction that you get,
        participation in the events leading to the death. Aiding, inducing
        or causing is sufficient. Who delivered the final blow? We have
        two (2) people acting in concert to deliver the fatal blow. Our
        law as determined that under those circumstances that both
        individuals are in fact guilty of the same. Two (2) participants
        act together are equally and criminally responsible under the law.
        Accompli[ce] liability. Two (2) or more persons knowingly
        combine to commit a crime. They’re each guilty of the acts of
        the (inaudible). Any one who joins with another, either in part
        are liable as they did (inaudible—coughing). That is
        accompli[ce] liability. You’re responsible, you choose to act with
Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 11 of 20
        another individual and that result, in the result that we have here,
        you are guilty just as if you had delivered the fatal blow. The
        evidence proved that Decker cannot deny his involvement in . . .
        Thomas’ death and that’s murder. In other words it does not
        matter whether Decker delivered the fatal blow. If he aided,
        induced or caused . . . Evans to murder . . . Thomas. He is just
        as guilty. But, but, you don’t have to look just at the theory of
        accompli[ce] liability. Decker stabbed . . . Thomas.
        ****
        Actions speak louder than words. [Decker] repeatedly hit
        Thomas . . . in the head and the upper torso with his hands. He
        hit him over the head with the wooden table all while Thomas
        was begging and pleading for him to stop. Decker returned and
        started stomping on Thomas again. Drags Thomas’ body across
        the yard and tries to put it in the car to get rid of it. Decker spits
        on him while he lay there dying. Decker then takes off running. .
        . . If you read the instruction that you get on murder, is
        knowingly or intentionally. I have showed [sic] you the facts that
        go with knowingly. I will also say that the State has set forth
        facts which showed that he intended to kill him. Not only
        knowingly killed him but intended to kill him. State doesn’t have
        to prove intent. Simply knowingly. Knowingly or intentionally.
        Thomas never fought back at any time. Targeted Thomas’ head.
        Hit him over the head with a table. Left him and came back out.
        Stomped him. Stabbed him with a knife. He intended to kill
        him. Spit on him. No medical assist. What are they are going
        to do? They were going to, according to him, take him out of the
        hood. Actions infer guilt.
        ****
        On December 31st 2013 . . . Decker killed . . . Thomas. On that
        same date on December 31st 2013 . . . Decker knowingly inflicted
        injury on . . . Thomas that created a substantial risk of death.


(Tr. Vol. VI, pp. 150-51, 158-60, 184-85, 188-89, 192).




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 12 of 20
[18]   Thereafter, the trial court instructed the jury, in part, on an accomplice liability

       theory for murder, stating:


               Aiding, inducing or causing Murder is defined by [s]tatute as
               follows: A person who, knowingly or intentionally aids, induces,
               or causes another person to commit an offense commits that
               offense. A person may be convicted of aiding, inducing or
               causing Murder even if the other person has not been prosecuted
               for Murder, has not been convicted of Murder or has been
               acquitted of Murder. Before you may convict [Decker] of aiding,
               inducing or causing Murder, the State must have proved each of
               the following elements beyond a reasonable doubt: l. [Decker];
               2. Knowingly or intentionally; 3. Aided, induced or caused; 4. . .
               . Evans to commit the offense of Murder, defined as knowingly
               or intentionally killing . . . Thomas; 5. By participating in the
               hitting, kicking, striking and/or stabbing of . . . Thomas. If the State
               failed to prove each of these elements beyond a reasonable doubt,
               you must find [Decker] not guilty of aiding, inducing, or causing
               Murder, a felony, charged in Count [I].


       (Tr. Vol. VI, pp. 197-98) (emphasis added).


[19]   When the jury returned a guilty verdict for murder, it is reasonably possible that

       it did so by relying on the accomplice liability instruction. As the State and the

       jury instructions both highlighted, a conviction for murder did not require

       Decker to deliver the fatal stab wound; rather, Decker’s participation with

       Evans throughout the attack—by hitting, stomping, kicking, slamming with a

       table, and stabbing—was sufficient. Thus, the facts that could have

       independently supported an aggravated battery conviction were likely also

       relied on by the jury in convicting Decker of murder. See Davis, 770 N.E.2d at

       323-24 (Ind. 2002) (vacating an aggravated battery conviction on double
       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 13 of 20
jeopardy grounds where, despite evidence that the victim had been choked and

struck in the head, the charging information cited a knife cutting as the basis for

both the aggravated battery and attempted murder charges). As such, the two

convictions cannot stand. We therefore vacate Decker’s conviction for

aggravated battery as a Class B felony.


                                  II. Prosecutorial Misconduct

Decker claims that the trial court erred in denying his motion for a mistrial

following a statement by the State that purportedly amounted to misconduct.

To preserve a claim of prosecutorial misconduct for appeal, “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.” Jerden v. State, 37

N.E.3d 494, 498 (Ind. Ct. App. 2015). Failure to do so results in a waiver. Id.

In reviewing a claim of prosecutorial misconduct that was properly raised at the

trial court level, we must 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.’” Id. (quoting Ryan v. State, 9 N.E.3d 663, 667 (Ind.

2014)). Where a claim of prosecutorial misconduct has not been properly

preserved, the general rule is that the claim is waived. Id. Nevertheless, a

defendant may still prevail by establishing “not only the grounds for

prosecutorial misconduct but also that the prosecutorial misconduct constituted

fundamental error.” Id.




Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 14 of 20
[20]   During its rebuttal closing argument, the State addressed some of the

       discrepancies in witness testimony by stating:


               I think it’s important ladies and gentlemen that you look at the
               physical evidence in this case and[] the testimony that you heard.
               The physical evidence fits the testimony. What occurred that
               night fits with the testimony that you heard. Now if everything
               was exactly alike, the first thing the defense would be up here
               saying is the State got with all of the witnesses and got them all to
               say the exactly the same thing.


       (Tr. Vol. VI, pp. 189-90). Decker’s attorney objected at that point, arguing that

       it was an “improper comment on my role as an attorney and an insult to me”

       for the State to suggest that defense counsel would “accus[e] them of having all

       their witnesses all together.” (Tr. Vol. VI, p. 190). The trial court sustained the

       objection, and Decker’s attorney requested both an admonishment to the jury

       and a mistrial. The trial court denied the motion for a mistrial and admonished

       the jury “to disregard the statement of the State that uh, that [Decker’s attorney]

       would be arguing that they [somehow] had all of their witnesses uh, get

       together and testify as the same thing. If, if the, if all the facts were the same.”

       (Tr. Vol. VI, p. 191). Defense counsel thanked the trial court for the

       admonishment and the State proceeded with its closing statement.


[21]   It is well established that a prosecuting attorney has a “duty to present a

       persuasive final argument.” Jerden, 37 N.E.3d at 498. Thus, placing a

       defendant in grave peril, by itself, is not misconduct.” Id. Rather, “‘[w]hether a

       prosecutor’s argument constitutes misconduct is measured by reference to case


       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 15 of 20
       law and the Rules of Professional Conduct. The gravity of 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 Ryan, 9 N.E.3d at 667).


[22]   Decker contends that the State’s argument amounted to misconduct because the

       prosecutor essentially personally vouched for the witnesses’ credibility.

       Moreover, he claims that the statement subjected him to grave peril “by

       attacking [his] right to counsel and highlighting the disparate roles of

       prosecuting and defense attorneys. The State intimated that the jury did not

       need to be particularly concerned with any discrepancies in the evidence or

       witness accounts because defense counsel would attack the evidence

       regardless.” (Appellant’s Br. p. 15). However, Decker acknowledges that,

       upon his counsel’s request, the trial court issued an admonishment to the jury,

       and an adequate “admonishment is presumed to cure any error that may have

       occurred.” Emerson v. State, 952 N.E.2d 832, 840 (Ind. Ct. App. 2011), trans.

       denied. Thus, Decker now insists that the trial court’s admonishment was

       inadequate to remedy the State’s conduct. Specifically, Decker argues that


               [r]ather than addressing trial counsel’s concern associated with
               vouching or reasserting to the jury that Decker has a
               constitutional right to counsel and to present a defense, [the trial
               court] curtly and only addressed the State’s characterization of a
               possible defense. Accordingly[,] [t]he trial court’s admonishment
               was inadequate and did not squarely address the issue raised by
               trial counsel or advise the jury that the State through its
               prosecutor cannot personally vouch for a witness or witnesses.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 16 of 20
       (Appellant’s Br. p. 16). Decker contends that the trial court should have

       granted a mistrial. We disagree.


[23]   Where an admonishment is insufficient to cure the error, the defendant “must

       request a mistrial.” Thomas v. State, 9 N.E.3d 737, 742 (Ind. Ct. App. 2014).

       Decker moved for a mistrial in conjunction with his objection and request for

       admonishment based on purported misconduct. Once the admonishment was

       administered, Decker’s attorney thanked the trial court and sought no further

       relief from any perceived inadequacy in the admonishment. Thus, as the State

       points out, Decker has waived his right to challenge the adequacy of the

       admonishment on appeal. See Etienne v. State, 716 N.E.2d 457, 461 (Ind. 1999).


[24]   Waiver notwithstanding, we find no merit in Decker’s claim that the

       admonishment was inadequate. The trial court did exactly as Decker requested

       and instructed the jury to entirely disregard the State’s assertion that Decker’s

       counsel would have accused the witnesses of conferring if all of their

       testimonies had completely aligned. Furthermore, while Decker’s counsel

       noted that he felt personally insulted by the State’s assumption, nowhere in his

       objection did he mention the “concern associated with vouching or . . . a

       constitutional right to counsel and to present a defense” that he now claims.

       (Appellant’s Br. p. 16). Additionally, based on the overwhelming evidence of

       Decker’s guilt, we cannot say that the State’s statement placed Decker in a

       position of grave peril to which he would not otherwise have been subjected.

       Accordingly, we find that the trial court’s admonishment cured any error from

       the alleged misconduct by the State, and Decker was not entitled to a mistrial.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 17 of 20
                                        III. Sufficiency of the Evidence

[25]   Decker claims that the State presented insufficient evidence to sustain his

       murder conviction. Our court adheres to a well-settled standard of review for

       claims concerning the sufficiency of evidence. Namely, we do not reweigh

       evidence or assess the credibility of witnesses, “and we respect the jury’s

       exclusive province to weigh conflicting evidence.” Roberts v. State, 894 N.E.2d

       1018, 1029 (Ind. Ct. App. 2008), trans. denied. We will consider only the

       probative evidence and any reasonably-derived inferences in support of the

       verdict. Id. “If the probative evidence and reasonable inferences drawn

       therefrom could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt, we must affirm the conviction.” Id.


[26]   “A person who . . . knowingly or intentionally kills another human being[] . . .

       commits murder, a felony.” I.C. § 35-42-1-1(1). In this case, Decker argues

       only that the State presented insufficient evidence of his intent to kill Thomas.

       Decker points out that the evidence established that Thomas was stabbed three

       times, with only one of the stab wounds proving to be fatal. Thus, although

       both Decker and Evans admitted to stabbing Thomas, he contends that “there is

       no evidence indicating which stab wounds are attributable to Decker or whether

       he was responsible for one or two.” (Appellant’s Br. p. 18). He generically

       adds that “the evidence is devoid of any evidence that Decker or Evans

       intended to kill Thomas or deliberately used a knife in a manner likely to cause

       death or serious injury.” (Appellant’s Br. p. 18). “[W]hile the evidence

       demonstrates that Thomas was fatally stabbed, the State failed to provide little,


       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 18 of 20
       if any, evidence concerning the nature and circumstances of how and when he

       was stabbed.” (Appellant’s Br. p. 18). Again, we disagree.


[27]   We first note that “the requirement of a ‘specific intent to kill’ applies only in

       attempted murder cases, and not in murder cases where ‘the defendant may be

       convicted upon a showing of either an intentional or knowing killing.’” Garrett

       v. State, 714 N.E.2d 618, 622 (Ind. 1999). A knowing killing requires a showing

       that “the defendant ‘was aware of a high probability that someone’s death

       would result from his actions. Because knowledge is the mental state of the

       actor, the trier of fact must resort to reasonable inferences of its existence.’”

       Leonard v. State, 73 N.E.3d 155, 160 (Ind. 2017) (quoting Young v. State, 761

       N.E.2d 387, 389 (Ind. 2002)). Moreover, “[a] knowing killing may be inferred

       from the use of a deadly weapon in a way likely to cause death.’” Id. (quoting

       Young, 761 N.E.2d at 389).


[28]   We find a record replete with evidence that Decker was aware of a high

       probability that Thomas’ death would result from his actions. Decker repeatedly

       punched, kicked, and stomped on the head of a man who was already in a near-

       comatose state due to alcohol. Despite the victim’s repeated pleas for Decker to

       stop the attack, Decker slammed a forty-to-fifty-pound solid wood table down

       on Thomas’ head. Even when Thomas was clearly unconscious, Decker

       continued to kick and stomp his head and torso. Decker and his co-defendant

       stabbed Thomas three times, and while only one proved to be fatal, the other

       two wounds were targeted to areas of obvious vital importance—i.e., the chest

       and spine. Decker unsuccessfully attempted to drag Thomas’ body to a vehicle

       Court of Appeals of Indiana | Memorandum Decision 84A01-1702-CR-332 | October 31, 2017   Page 19 of 20
       to remove it from Jones’ yard, but when the police arrived, he changed his

       blood-stained shirt and fled. He subsequently admitted to multiple people that

       he had stabbed Thomas and thought that he might have killed him. Upon

       learning that Thomas had, in fact, succumbed to his injuries, Decker conceded,

       “[M]an I fucked up.” (Tr. Vol. VI, p. 92). Therefore, we find that the State

       presented sufficient evidence of Decker’s culpability to support his murder

       conviction.


                                             CONCLUSION
[29]   Based on the foregoing, we conclude that Decker’s convictions for murder and

       aggravated battery run afoul of Indiana’s double jeopardy prohibition;

       therefore, we vacate his conviction for Class B felony aggravated battery.

       However, we affirm Decker’s conviction for murder based on our conclusions

       that any perceived misconduct by the State was cured by the trial court’s

       admonishment with no need for a mistrial, and the State presented sufficient

       evidence that Decker knowingly or intentionally killed Thomas.


[30]   Affirmed in part and reversed in part.


[31]   Robb, J. & Pyle, J. concur




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