Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                            FILED
before any court except for the                           Jun 06 2012, 8:39 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                        CLERK
                                                               of the supreme court,
law of the case.                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                 GREGORY F. ZOELLER
Marion County Public Defender                    Attorney General of Indiana
Indianapolis, Indiana
                                                 JODI KATHRYN STEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ERIC LISCOMB,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 49A02-1108-CR-715
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Carol J. Orbison, Judge
                           Cause No. 49G22-1007-MR-56779




                                        June 6, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Following a jury trial, Eric Liscomb appeals his convictions of murder, a felony,

robbery, a Class B felony, carrying a handgun without a license, a Class A misdemeanor,

and conspiracy to commit robbery, a Class C felony, and sixty-five-year aggregate

sentence thereon. He raises two issues for our review, which we restate as: whether the

trial court erred in allowing the State to enter into evidence a statement Liscomb made to

police, and whether his sentence is inappropriate in light of the nature of his offenses and

character. Concluding that the trial court committed harmless error, if at all, and that his

sentence is not inappropriate, we affirm.

                               Facts and Procedural History

       Liscomb, Norman Barker, Jessica Brackett, and Jessica Owens together decided to

rob Robert Spaulding because they believed he had large amounts of cash and marijuana

in his home. Barker volunteered use of his .40 caliber semi-automatic and .38 caliber

revolver. On July 20, 2010, Brackett drove the four to a store to purchase ammunition,

and later that night drove the four to Spaulding’s neighborhood. Spaulding was home

with his fiancée, their two-year-old daughter, and a group of friends and family.

Spaulding’s friends and family left around 10 p.m., and at around midnight, Spaulding’s

fiancée left the home to check in on a family member’s pet, leaving Spaulding alone

sleeping on the couch and their daughter in a nearby bedroom.

       Soon thereafter, Brackett and Owens stayed in the parked car while Liscomb and

Barker, armed with Barker’s two guns, walked to Spaulding’s home and into his open

front door.


                                             2
        Several of Spaulding’s neighbors happened to be on their front porches at this

time, at least one of whom was doing so as part of a neighborhood watch group.

Neighbors observed Barker and Liscomb walk up to and into Spaulding’s home, and at

least one neighbor could see right into Spaulding’s living room, where the ensuing

struggle took place. Once inside Spaulding’s home, Barker and Spaulding struggled with

each other hand-to-hand, and Liscomb fired multiple shots. Barker and Liscomb soon

ran from Spaulding’s home and back to the car where Brackett and Owens were waiting.

        Neighbors rushed to Spaulding’s home, found him laying face down with a

gunshot wound to his back, and called 911 at 12:16 a.m. Spaulding was dead within ten

minutes.

        Barker had a gunshot wound to his left arm and was bleeding heavily. Brackett

began driving to a hospital, but pulled over at a gas station because it appeared Barker

would lose consciousness. The four decided on a fake story to tell authorities: Owens

and Barker were walking along the street, someone in a car driving past them shot

Barker, and the two then called Brackett and Liscomb to come to their aid. After this

story was decided upon and while Brackett was still driving, Brackett shouted, “[t]hrow

the gun out the window.” Id. at 417. Liscomb screamed, “[g]o straight, go straight, you

can’t be this close to a robbery.” Id. at 416-17. Meanwhile, Owens called 911 on

Brackett’s cellular phone, also at 12:16 a.m., relayed the fake story, and officers met

them at the gas station.1




        1
           During the investigation which ensued, officers listened to a recording of Owens’s 911 call and in the
background heard Brackett’s statement about throwing the gun out the window and Liscomb’s statement that they
should be farther from the scene of the robbery.
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       Barker was transported to a hospital for treatment and hours later was taken to the

police station for questioning because officers suspected he was involved in the incident

at Spaulding’s home. Brackett, Owens, and Liscomb agreed to be questioned at the

police station as well and were transported from the gas station directly there, but at this

point the three were considered witnesses to what happened to Barker and not suspects

regarding the incident at Spaulding’s.

       Liscomb was placed in an interview room shortly after 1:00 a.m. and the door was

locked, but he was not handcuffed, he was permitted to use the restroom as he requested,

he was provided with water, and at some point he was permitted to receive food which

Brackett brought to him. At 7:24 a.m., Detective Brian Schemenaur and Detective

Jeffrey Wager entered Liscomb’s interview room and began to speak with him. They

recorded this conversation with a hand-held audio recorder but did not video-record this

statement. Liscomb told officers the fake story upon which the group agreed. Detectives

Schemenaur and Wager then left Liscomb in the same room while they spoke with

Barker.

       After speaking with Barker, Detectives Schemenaur and Wager considered

Liscomb a suspect in Spaulding’s killing as well.        At 11:51 a.m., they returned to

Liscomb’s interview room after turning on a video and audio recording device for that

room, and again brought a hand-held audio recording device.               Detective Brian

Schemenaur began advising Liscomb of his rights, and Liscomb asked that they shut off

the hand-held recording device, which they did. They did not terminate the room’s video

and audio recording or tell him that he was still being recorded.


                                             4
       Liscomb proceeded to speak with them and provide a story substantially different

from his first statement. He admitted he agreed with Barker to commit a robbery, Ex. at

156, 171, 183-84, 194, that he went with Barker to and into Spaulding’s home, and that

he fired his gun at the pair who were wrestling in front of him, id. at 162, 164, 167, 190.

He also stated that he used a .38 caliber revolver, id. at 169-70, and that he does not know

what happened to Barker’s gun, id. at 191.

       Owens later told her uncle about what happened and that Liscomb threw a gun

behind the gas station. Owens witnessed her uncle retrieve the gun and turn it over to

police. A forensic scientist later testified that the bullet found in Spaulding’s back, which

was deemed to be the cause of death, was fired by the .38 caliber revolver which Owens’s

uncle retrieved. Tr. at 342. The .40 caliber semiautomatic which Barker used was found

on the floor of Spaulding’s home, with one bullet jamming the gun and an otherwise full

cartridge of ammunition.

       The State charged Liscomb with murder, a felony, felony murder, robbery, a Class

A felony, carrying a handgun without a license, a Class A misdemeanor, and conspiracy

to commit robbery, a Class A felony. At a jury trial, Detective Schemenaur briefly

reiterated the fake story Liscomb told him and Detective Wager during the first

statement. The State also presented the jury with the video and audio recording of

Liscomb’s second statement.

       The jury found Liscomb guilty as charged and, following a sentencing hearing, the

trial court merged the felony murder count into the murder count and reclassified the

robbery and conspiracy to commit robbery counts downward to avoid violation of double

jeopardy principles. The trial court entered a judgment of conviction regarding murder as
                                             5
a felony, robbery as a Class B felony, carrying a handgun without a license as a Class A

misdemeanor, and conspiracy to commit robbery as a Class C felony. The trial court then

sentenced Liscomb to sixty-five years for murder, concurrent with twenty years for

robbery, concurrent with 365 days for carrying a handgun without a license, concurrent

with eight years for conspiracy to commit robbery. Liscomb now appeals. Additional

facts will be supplied as appropriate.

                                    Discussion and Decision

                              I. Liscomb’s First Statement to Police

                                     A. Standard of Review

       Before delving into discussion of the issues, we pause to clarify Liscomb’s

appellate challenge regarding his statement to police which he alleges was erroneously

introduced into evidence. He made two statements to police within twenty-four hours

after Spaulding was killed. The first was from around 7:30 a.m. to around 8:00 a.m., and

the second was from around 11:50 a.m. to around 12:30 p.m. On appeal he contends the

trial court erred in allowing Detective Schemenaur to testify regarding what Liscomb said

during his first statement.

       A “trial court has inherent discretionary power on the admission of evidence, and

its decisions are reviewed only for abuse of that discretion.” Vasquez v. State, 868

N.E.2d 473, 476 (Ind. 2007) (quoting Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002)).

An abuse of discretion occurs “where the decision is clearly against the logic and effect

of the facts and circumstances.” Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.

2012) (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)). We do not reweigh the

evidence, we consider conflicting evidence in a manner most favorable to the trial court’s
                                                6
ruling, and we consider uncontested evidence in a manner favorable to the defendant.

Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006) (quotations and citation

omitted), trans. denied.

       Liscomb gratuitously offers on appeal that he must meet the fundamental error

standard of review because he failed to object at trial to what he now contends is an error.

But Liscomb did object to the admission of the evidence he now challenges. Tr. at 417-

18. Therefore, we review the trial court’s admission of such evidence for an abuse of

discretion.

                                    B. Harmless Error

       Even when reviewing the admission of this evidence for an abuse of discretion, we

will not reverse Liscomb’s conviction if an error did not affect his substantial rights. See

Combs v. State, 895 N.E.2d 1252, 1258 (Ind. Ct. App. 2008), trans. denied. If the

erroneously admitted evidence is merely cumulative of other evidence in the record, it is

harmless error and not grounds for reversal. Bryant v. State, 802 N.E.2d 486, 494 (Ind.

Ct. App. 2004), trans. denied. If a conviction is supported by substantial independent

evidence of guilt which satisfies the reviewing court that there is no substantial likelihood

the challenged evidence contributed to the conviction, the error is harmless. Morales v.

State, 749 N.E.2d 1260, 1267 (Ind. Ct. App. 2001). “Harmlessness is ultimately a

question of likely impact of the evidence on the jury.” Combs, 895 N.E.2d at 1258

(quotation omitted).

       Liscomb essentially argues that his first statement – in which he told the fake story

– should not have been allowed into evidence because officers obtained this statement

improperly by not advising him of his Miranda rights before that statement or obtaining a
                                             7
valid waiver of rights. The State responds that he was not a suspect at the time of his first

statement, so a Miranda advisement was unnecessary at that time.

       For the sake of argument, we might accept Liscomb’s argument and conclude that

his first statement was obtained improperly and what he said therein should not have been

allowed into evidence. Even if we were to do so, our review of the trial court record

leads us to conclude that any error in allowing this statement into evidence was harmless

error because there is no substantial likelihood Detective Schemenaur’s brief restatement

of Liscomb’s first statement impacted the evidence which the jury weighed or otherwise

contributed to his convictions.

       In Liscomb’s second statement, which he does not now challenge, he admitted to

committing several acts which support his convictions, and therefore the State’s apparent

attempt to impeach his credibility by referring to his prior inconsistent statement would

not have mattered to the jury. Specifically, he stated that he was at Spaulding’s home

with Barker, he was armed with the .38 caliber revolver, and he fired his gun at the two

who were wrestling in front of him. A forensic scientist later testified that the bullet

which killed Spaulding was fired by the .38 caliber revolver which Liscomb referred to in

this admission, his second statement.

       This constitutes substantial independent evidence of guilt and makes clear there

was no credibility issue as to his level of involvement which would lead the jury to

impart any significance to the apparent inconsistency of Liscomb’s first and second

statements.   In sum, we are convinced there is no substantial likelihood Detective

Schemenaur’s brief restatement of Liscomb’s first statement impacted the evidence


                                             8
which the jury weighed or otherwise contributed to his convictions, and his convictions

are therefore affirmed.

                                 II. Inappropriate Sentence

       Liscomb next argues his aggregate sentence of sixty-five years is inappropriate.

This court has authority to revise a sentence “if, after due consideration of the trial court’s

decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Ind. Appellate Rule 7(B). We may “revise

sentences when certain broad conditions are satisfied,” Neale v. State, 826 N.E.2d 635,

639 (Ind. 2005), and we recognize the advisory sentence “is the starting point the

legislature has selected as an appropriate sentence for the crime committed.” Weiss v.

State, 848 N.E.2d 1070, 1072 (Ind. 2006). When examining the nature of the offense and

the character of the offender, we may look to any factors appearing in the record. Spitler

v. State, 908 N.E.2d 694, 696 (Ind. Ct. App. 2009), trans. denied. The burden is on the

defendant to demonstrate that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

       In discussing whether Liscomb’s sentence is inappropriate, it is helpful to restate

the specific details of his current sentence. He was sentenced to sixty-five years for

murder, a felony; a crime for which the sentencing range is forty-five to sixty-five years

and the advisory sentence is fifty-five years.        Ind. Code § 35-50-2-3(a).       He was

sentenced to twenty years for robbery as a Class B felony, for which the sentencing range

is six to twenty years and the advisory sentence is ten years. Ind. Code § 35-50-2-5. He

was sentenced to eight years for conspiracy to commit robbery as a Class C felony, for

which the sentencing range is two to eight years and the advisory sentence is four years.
                                              9
Ind. Code § 35-50-2-6. And finally, he was sentenced to 365 days for carrying a handgun

without a license as a Class A misdemeanor, for which the maximum imprisonment is not

more than one year. Ind. Code § 35-50-3-2. The trial court ordered that Liscomb serve

the sixty-five-year, twenty-year, eight-year, and 365-day sentences concurrently, for a

total of sixty-five years.

       For the most part, the nature of these offenses is not significantly different from

other robbery-murders which are committed with an unlawful handgun and as part of a

conspiracy. But, there is some evidence that Liscomb was aware that Spaulding’s two-

year-old child was home during the incident, as Liscomb stated that Spaulding “kind of

flipped out [when Barker went towards the farthest room in the house]. It might have

been his child or something like that. . . .” Ex. at 189 (ellipses in original, all capitals

omitted). It is therefore evident that Liscomb was aware that he was placing a child in

grave danger by firing a gun in her presence, even though it is not completely clear

whether Liscomb fired at Spaulding while in the same bedroom or while in another room

of the home. There is also some evidence that Liscomb was under the influence of

marijuana and/or prescription medications at the time of these offenses.

       Liscomb’s character warrants a more lengthy discussion because of his history of

criminal involvement.        In 2005, at the age of fourteen, officers arrested him for

possession of marijuana or hash, a Class A misdemeanor if committed by an adult. The

juvenile court entered a true finding, and he violated the terms of his home detention and

probation at least twice. Later in 2005 and in 2006, Liscomb was arrested as a runaway

twice, and for fleeing law enforcement, consumption of alcohol, attempted theft, and

criminal mischief. Of these, true findings were entered as to fleeing law enforcement and
                                             10
criminal mischief, and he failed to abide by the terms of his home detention and

probation on at least four more occasions, not including his failure to pay various fees. In

2007, Liscomb admitted to stealing a car and using a stolen handgun to rob a pharmacy

of prescription drugs. Liscomb also robbed a different pharmacy in a similar manner

about two weeks earlier, as part of “a rash of robberies during a month period.” Pre-

Sentence Investigation Report (“PSI”) at 6. For this conduct the trial court entered a true

finding as to robbery and attempted robbery, which would have been Class B felonies if

committed by an adult. In 2008, Liscomb was arrested for battery and possession of

alcohol by a minor.

       As an adult, Liscomb was arrested in June 2009 for possession of a controlled

substance as a Class D felony and possession of marijuana or hash as a Class A

misdemeanor, and was convicted of possession of a controlled substance as a Class A

misdemeanor. He was ordered to serve a 365-day sentence on home detention, and upon

violating the terms of his home detention, he served a period in the Indiana Department

of Correction. Just five months after Liscomb was released from prison, he committed

the current offenses.

       The PSI also reveals that at the time of these offenses Liscomb provided for

himself by “hustling,” and that his interests and leisure activities include “smoking

weed.” Id. at 12. He first consumed alcohol at the age of thirteen, and began regularly

using marijuana at that time as well. At the time of the offense he was consuming about

four to five grams of marijuana per day. He began abusing prescription medications at

the age of fourteen and began regularly consuming large amounts of those medications.


                                            11
This includes 300 milligrams of morphine daily. He has also used methamphetamine and

cocaine several times, although he claims inconsistent use thereof.

       Even aside from the sheer length of Liscomb’s history of criminal conduct, this

summary is also troubling because of the recurring themes of drug abuse and unlawful

use of a handgun. Liscomb has been offered the favor of probation several times and has

violated the terms of his probation several times as well. The PSI suggests he has grown

accustomed to a criminal lifestyle of drug abuse, obtaining money unlawfully, and

flouting any legal limitations on his behavior. For these reasons, an enhanced sentence

for the offense of murder is not inappropriate. Further, the fact that the trial court ordered

that he serve all of the sentences concurrently, rather than consecutively, provides

additional support for our conclusion that a total of sixty-five years in prison is not

inappropriate in light of his character.

       We note that the abstract of judgment states that the trial court entered a judgment

of conviction and sentenced Liscomb for the offenses of murder as a felony, robbery as a

Class A felony, carrying a handgun without a license as a Class A misdemeanor, and

conspiracy to commit robbery as a Class A felony. Appellant’s Appendix at 22. This is

incorrect. As indicated in the transcript, the trial court entered a judgment of conviction

for murder as a felony, robbery as a Class B felony, carrying a handgun as a Class A

misdemeanor, and conspiracy to commit robbery as a Class C felony. Tr. at 581-82. The

abstract of judgment must be corrected to reflect Liscomb’s convictions.               These

corrections, however, will not affect his sentence.




                                             12
                                        Conclusion

       For the trial court to allow the State’s witness to testify regarding Liscomb’s first

statement to police was harmless error, if error at all. Further, Liscomb’s sentence is not

inappropriate in light of the nature of his offenses and character. Therefore, we affirm his

convictions and sentence.     We also remand and order the trial court to correct the

incorrect classifications of Liscomb’s offenses on the abstract of judgment.

       Affirmed and remanded.

BAILEY, J., and MATHIAS, J., concur.




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