MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                           FILED
court except for the purpose of establishing                           Jul 31 2017, 8:58 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sir Christopher Lee Jones,                               July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1448
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G03-1507-MR-23811



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017           Page 1 of 8
[1]   Sir Jones appeals his conviction for Murder.1 Jones argues that the prosecutor

      committed misconduct amounting to fundamental error and that the evidence is

      insufficient to sustain the conviction. Finding no error and sufficient evidence,

      we affirm.


                                                     Facts
[2]   On July 6, 2015, Gregory Moore was inside his home when he heard “a couple

      of shots.” Tr. Vol. I p. 30. Moore then looked out three big windows at the

      front of his house. He saw a man, later identified as Lakim Mabry, on the

      ground on his stomach in the yard adjacent to Moore’s. Mabry was attempting

      to get up when a man ran up to him, knelt down, shot him once in the head,

      and ran away. Mabry died as a result of his injuries.


[3]   After the shooting, Moore described the shooter to police as a Black male, “six

      one or six two,” with lighter skin and dreadlocks. Id. at 56, 69-70. Moore got a

      clear and unobstructed look at the shooter’s entire face. While Moore did not

      know the shooter’s name, he had seen him “[e]very day up and down the

      street” since February 2015, and knew that the shooter drove a blue Ford

      Explorer. Id. at 46. Indianapolis Police Detective Mark Prater created a photo

      array and showed it to Moore, who identified Jones as the shooter. At trial,

      Moore identified Jones in the courtroom as the shooter and stated that he was

      “a hundred percent” certain about the identification. Id. at 79. On July 7,




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017   Page 2 of 8
      2015, the State charged Jones with murder and a warrant was issued for Jones’s

      arrest.


[4]   On July 10, 2015, Kansas Highway Patrol Trooper Scott Baker pulled over a

      speeding vehicle. Trooper Baker noticed that the driver, later identified as

      Jones, was very nervous, shaking, and sweating despite the fact that the vehicle

      was cool and the air conditioning was on. Trooper Baker learned upon running

      Jones’s name through the computer that there was a warrant for his arrest out

      of Indiana. He then arrested Jones and searched the vehicle. He did not find

      any firearms but did find a phone that belonged to Jones. The phone was first

      used on July 9, 2015, and had a Kentucky area code. Jones did not have

      dreadlocks at the time of his arrest.


[5]   When Detective Prater learned of Jones’s arrest, he traveled to Kansas to speak

      with him. Jones informed the detective that he had cut his hair a couple of days

      earlier. Jones told the detective that he had traveled west because “that’s far

      away.” Supp. Tr. p. 22. According to Jones, his girlfriend had driven him to

      Colorado Springs on July 7, 2015, despite the fact that he knew no one there,

      had no place to stay, and ended up sleeping on a park bench. Jones admitted

      that he drives a blue Ford Explorer.


[6]   Jones’s jury trial took place on May 16 and 17, 2016. At the close of the trial,

      during closing argument, the prosecutor made the following statements:

                “One hundred percent,” those words were said together one time
                in the course of this trial, and it was yesterday when Greg Moore
                was up on this witness stand and testified. And he was asked:
      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017   Page 3 of 8
        “How certain are you that the person that you saw shoot and kill
        Lakim Mabry . . . how sure are you that it was this man right
        here” he signed the picture on, that he’d seen there many times
        on 3600 Gale. One hundred percent. One hundred percent.


        There was nothing fleeting about him seeing this that day. He
        had said he’d never seen anything like this before. And for most
        of us, if we’re lucky we haven’t either.


        We all remember 9/11. We all remember where we were. We all
        remember when we fist [sic] heard it, when we first saw it.


Tr. Vol. II p. 268. Jones did not object to these statements, and during his

closing arguments, his attorney addressed these points:


        Let’s talk about fleeting. And when I talk about fleeting, I want
        to talk specifically about the two eyewitness testimony, and that
        is of Gregory Moore and Sonya Massey. Gregory Moore, a
        hundred percent. State put it up here big 100 percent certain that
        my client shot and killed Lakim Mabry.


        But in voir dire we talked about certainty versus accuracy. And I
        can say I’m a hundred percent certain that I saw you at the store
        the other day. But you weren’t there, right? That doesn’t make
        me accurate.


Id. at 287-88. At the close of the trial, the jury found Jones guilty as charged.

On June 17, 2016, the trial court sentenced Jones to fifty-five years

imprisonment. Jones now appeals.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017   Page 4 of 8
                                   Discussion and Decision
                                I. Prosecutorial Misconduct
[7]   Jones first argues that the prosecutor committed misconduct during closing

      argument by restating Moore’s testimony that he was 100 percent certain

      regarding the identity of Jones as the shooter and making a reference to 9/11.


[8]   In reviewing a claim of prosecutorial misconduct, we must determine whether

      misconduct occurred and, if so, 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. Ryan v. State, 9 N.E.3d 663, 667

      (Ind. 2014). Where, as here, the defendant waived a prosecutorial misconduct

      claim by failing to object at trial, to succeed on appeal, he must also establish

      that the prosecutorial misconduct constituted fundamental error. Id. at 667-68.

      To make a successful claim of fundamental error, the defendant must show that

      the alleged errors are so prejudicial to his rights as to make a fair trial

      impossible. Id. at 668. To make this showing, the defendant must show that,

      under the circumstances, the trial court erred in not sua sponte raising the issue

      because the alleged errors (1) “constitute clearly blatant violations of basic and

      elementary principles of due process” and (2) “present an undeniable and

      substantial potential for harm.” Id.


[9]   Here, Jones claims that by restating Moore’s testimony that he was 100 percent

      certain of the identity of Jones as the shooter, the prosecutor impermissibly

      vouched for the credibility of the witness. We disagree. By referencing

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017   Page 5 of 8
       Moore’s testimony characterizing his own degree of confidence in his

       identification of Jones as the shooter, the prosecutor was merely reminding the

       jury of evidence they had already heard. Our Supreme Court has noted that

       while a prosecutor may not personally vouch for the credibility of any witness,

       a prosecutor “may ‘comment on the credibility of the witnesses as long as the

       assertions are based on reasons which arise from the evidence.’” Id. at 671

       (quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006)). That is precisely

       what occurred in this case. We see no prosecutorial misconduct on this basis,

       let alone misconduct amounting to fundamental error.


[10]   Jones also argues that by referencing the events of 9/11, the prosecutor was

       again impermissibly vouching for Moore’s credibility. Again, we disagree. The

       prosecutor used the analogy as a rhetorical device to persuade the jury that

       Moore’s confidence in his identification of Jones was credible because

       witnessing a murder right in front of his home was the kind of significant event

       that prompts a person to remember details he might otherwise forget. Here,

       again, the prosecutor’s comments were based on reasons arising from the

       evidence. The prosecutor was merely fulfilling the “duty to present a persuasive

       final argument,” id. at 667, and we find no error on this basis.2




       2
        Jones makes an offhand suggestion of an argument that Moore’s testimony that he was 100 percent
       confident in his identification was improperly admitted. Jones does not develop a cogent argument, failing
       even to recite the rules or standard of review regarding admission of evidence, so he has waived it. Waiver
       notwithstanding, we note that the concerns raised in the out-of-state cases cited by Jones do not apply to this
       case. Moore was not providing testimony regarding statistical probability or quantification; he was simply

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017                Page 6 of 8
                                                II. Sufficiency
[11]   Jones also argues that the evidence is insufficient to support the conviction.

       When reviewing a claim of insufficient evidence, we will consider only the

       evidence and reasonable inferences that support the conviction. Gray v.

       State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

       evidence and inferences, a reasonable jury could have found the defendant

       guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005

       (Ind. 2009). To convict Jones of murder, the State was required to prove

       beyond a reasonable doubt that he knowingly or intentionally killed another

       human being. I.C. § 35-42-1-1. Jones contends that the State failed to prove

       beyond a reasonable doubt that he was the person who shot and killed Mabry.


[12]   The evidence in the record supporting the jury’s conclusion that Jones was the

       shooter is as follows:


           • Moore heard gunshots and saw Jones shoot Mabry in the head. Moore
             had a clear and unobstructed view of the shooting and saw Jones’s entire
             face.
           • Moore recognized the shooter as someone he saw every day on his street,
             provided a description that matched Jones at the time, told police that
             Jones drove a blue Ford Explorer, and identified Jones as the shooter
             from a photo array and again in court.
           • Following the murder, Jones cut his hair by removing his dreadlocks and
             obtained a new cell phone with a Kentucky area code. He then fled to
             Colorado even though he did not know anyone in that state and had to



       testifying as to his degree of confidence in his belief that Jones was the shooter. This testimony was not
       improperly admitted.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017                Page 7 of 8
                sleep on a park bench when he arrived. When he was pulled over by
                police in Kansas for a traffic stop, Jones was very nervous, shaking, and
                sweating.

       This evidence is sufficient to support the jury’s determination that Jones is

       guilty of murder. See Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (holding

       that “flight and related conduct may be considered by a jury in determining a

       defendant’s guilt”). Jones directs our attention to alleged discrepancies in

       Moore’s testimony, as well as discrepancies between Moore’s testimony and

       other evidence in the record. This amounts, however, to a request that we

       reweigh the evidence, which we may not do. It was for the jury to weigh the

       evidence and assess Moore’s credibility, and nothing in this record leads us to

       second-guess the jury’s ultimate determination in this case.3


[13]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       3
         Jones makes an offhand suggestion of an argument that the photo array that police showed to Moore and
       Massey was unduly suggestive. Jones does not develop a cogent argument, failing even to recite the rules or
       standard of review regarding photo arrays, so he has waived it. Waiver notwithstanding, the photo array
       contained six photos; five of the photos were booking photos while Jones’s was a BMV photo. No other
       features of Jones’s image distinguish it from the other five in appearance and nothing else about the array or
       behavior of law enforcement is alleged to be unduly suggestive. Therefore, the photo array was not
       problematic. Furthermore, Moore also identified Jones in court as the shooter. Moore was able to describe
       Jones accurately, including the type of vehicle he drove, and had an unobstructed and clear view of the
       shooting and Jones’s entire face. Consequently, his identification of Jones in court was sufficiently reliable
       that even if the array had been problematic, any error was harmless. Therefore, this argument is unavailing.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1448 | July 31, 2017                Page 8 of 8
