MEMORANDUM DECISION                                                               FILED
                                                                             Mar 22 2016, 9:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                      CLERK
                                                                              Indiana Supreme Court
precedent or cited before any court except for the                               Court of Appeals
                                                                                   and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Justin C. Cherry,                                       March 22, 2016

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        55A05-1508-CR-1151
        v.                                              Appeal from the Morgan Superior
                                                        Court.
                                                        The Honorable Christopher L.
State of Indiana,                                       Burnham, Judge.
Appellee-Plaintiff.                                     Cause No. 55D02-1402-FB-292




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016            Page 1 of 12
                                          Statement of the Case
[1]   Justin Cherry appeals from his conviction of and sentence for Class B felony
                            1
      armed robbery , enhanced by his status as an habitual offender. We affirm.


                                                   Issues
[2]   Cherry presents the following issues for our review:

                 I.       Whether the trial court erred by admitting testimony and
                          evidence about GPS tracking showing Cherry’s location at
                          the time of the robbery; and
                 II.      Whether Cherry’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender.

                                   Facts and Procedural History
[3]   On January 28, 2014, Jayme Hicks, Jared Mynatt, and Cherry, who all lived in

      Indianapolis, drove to Mooresville, Indiana, and parked the car at an apartment

      complex. A few minutes before noon, Cherry stayed in the car while Hicks and

      Mynatt walked to a nearby Pebbles Marathon convenience store where Toni

      Wilson was working. Hicks, who was pregnant, asked if she could use the

      restroom. Because the restroom is located behind the counter, employees are

      not supposed to allow others to use it. However, on this occasion, Wilson

      allowed Hicks to do so.




      1
          Ind. Code § 35-42-5-1 (1984).


      Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 2 of 12
[4]   After a very brief time, Hicks exited the restroom and she and Mynatt discussed

      whether they had enough money to make a purchase. The two left the store

      without buying anything. After Hicks and Mynatt returned to the car, Cherry

      exited the car, leaving the car door wide open despite the extremely cold

      weather, and headed toward the gas station. While Cherry was gone, Mynatt

      backed the car into the parking space.


[5]   Cherry entered the gas station store a couple of minutes after Hicks and Mynatt

      had left. He selected a 2-liter bottle of Mountain Dew, came to the counter,

      and asked Wilson for some cigarettes. Per store policy because of his youthful

      appearance, Wilson asked Cherry for identification. Instead of retrieving his

      identification, Cherry pulled out a gun, pointed it at Wilson and responded, “I

      won’t need ID today.” Tr. p. 185.


[6]   Cherry told Wilson to open the cash register drawer and to give him the money.

      After Wilson complied, Cherry left the store and returned to the car, jumping in

      the open door and lying on the back floorboard while Mynatt rapidly drove

      away. Wilson, who was terrified, first called her boss’s telephone number and

      then, immediately called the police. On their return drive to Indianapolis,

      Mynatt and Cherry discussed how they would split the proceeds of the robbery.

      Approximately $460 to $480 was taken during the robbery.


[7]   Fresh snow had fallen that day. Officers arrived at the scene, and, while

      investigating the robbery, found recent footprints in the snow made by someone

      wearing a Nike shoe with a distinct tread pattern. Officers followed the


      Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 3 of 12
       footprints from the gas station to the apartment complex. During a later search

       of Cherry’s house, officers found a pair of Nike shoes that were the same size

       and had a tread pattern matching the prints left in the snow.


[8]    Cherry was on GPS monitoring at the time of the armed robbery. GPS records

       showed that on January 28, 2014, Cherry had traveled south on SR 67 to

       Mooresville, was in the vicinity of the gas station at 12:01 p.m., and then

       traveled north on SR 267.


[9]    The State charged Cherry with several offenses, including Class B felony armed

       robbery, Class B felony unlawful possession of a firearm by a serious violent

       felon, Class C felony carrying a handgun without a license, two counts of Class

       C felony intimidation, Class D felony theft, Class D felony pointing a firearm,

       and a separate allegation that Cherry was an habitual offender.


[10]   The parties and the trial court discussed bifurcation of the trial. Cherry

       admitted that he committed unlawful possession of a firearm by a serious

       violent felon and waived a jury trial on that count. He also admitted that he

       had two prior, unrelated felony convictions, thus qualifying as an habitual

       offender.


[11]   Before trial, Cherry filed a motion in limine on Indiana Evidence Rule 404(b)

       grounds, requesting the exclusion of evidence of prior bad acts, particularly

       evidence that Cherry was on GPS monitoring through Marion County

       Community Corrections at the time of the offense because of his prior robbery

       and attempted robbery convictions. The trial court found that the probative

       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 4 of 12
       value of the GPS evidence greatly outweighed any prejudicial effect, but

       granted the motion in part, prohibiting the supporting witness from testifying

       that he worked for Community Corrections or the reason why Cherry was on

       GPS monitoring at the time of the offense.


[12]   At the beginning of trial, the State dismissed one count of Class C felony

       intimidation. After the presentation of the State’s case, the trial court dismissed

       the count alleging carrying a handgun without a license and the count alleging

       pointing a firearm.


[13]   At the conclusion of the trial, the jury returned guilty verdicts on each of the

       remaining counts. Due to double jeopardy concerns, however, the trial court

       entered judgment of conviction on only the armed robbery charge enhanced by

       Cherry’s status as an habitual offender. After considering aggravating and

       mitigating factors, the trial court imposed a sentence of twenty years on the

       robbery conviction enhanced by twenty years for the habitual offender

       adjudication. Cherry now appeals.


                                    Discussion and Decision
                                  I. Admissibility of Evidence
[14]   Cherry argues that the trial court erred by admitting testimony about GPS

       monitoring and admitting GPS exhibits, raising a lack of probative value of the

       evidence, failure to show reliability of the particular GPS system, and other

       foundational flaws.



       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 5 of 12
[15]   The admission of evidence is left to the sound discretion of the trial court.

       Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied. Our review

       of the trial court’s decision is for an abuse of that discretion. Id. An abuse of

       discretion is found only if the decision is clearly against the logic and effect of

       the facts and circumstances before the trial court, or if the trial court has

       misinterpreted the law. Id.


[16]   The sole objection made to the evidence and testimony at trial was on grounds

       of Indiana Evidence Rule 404(b). The Rule provides:

               Evidence of a crime, wrong, or other act is not admissible to
               prove a person’s character in order to show that on a particular
               occasion the person acted in accordance with the character.
       Evid. R. 404(b)(1).


[17]   This rule is designed to prevent the jury from determining a defendant’s present

       guilt on the basis of his past propensities—the “forbidden inference.” Remy v.

       State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans. denied. However, such

       evidence may be admitted to prove “motive, opportunity, intent, preparation,

       plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. R.

       404(b)(2). This list of permissible purposes is illustrative but not exhaustive.

       Freed v. State, 954 N.E.2d 526, 530 (Ind. Ct. App. 2011).


[18]   In assessing the admissibility of 404(b) evidence, the court must: (1) determine

       that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue

       other than the defendant’s propensity to commit the charged act; and (2)

       balance the probative value of the evidence against its prejudicial effect

       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 6 of 12
       pursuant to Evidence Rule 403. Bishop v. State, 40 N.E.3d 935, 951 (Ind. Ct.

       App. 2015), trans. denied. The trial court is afforded wide latitude in weighing

       probative value against possible prejudice under Rule 403. Id.


[19]   As courts on appeal have long observed, all relevant evidence of guilt is

       inherently prejudicial in a criminal prosecution, so the inquiry boils down to a

       balance of probative value against the likely unfair prejudicial impact the

       evidence may have on the jury. Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002).

       “When determining likely unfair prejudicial impact, ‘courts will look for the

       dangers that the jury will substantially overestimate the value of the evidence or

       that the evidence will arouse or inflame the passions or sympathies of the

       jury.’” Id. (quoting Evans v. State, 643 N.E.2d 877, 880 (Ind. 1994)).


[20]   In the present case, part of Cherry’s defense involved a challenge to Hicks’s

       credibility. Her testimony placed him at the scene of the crime at the time it

       was committed. Ian Doyle testified that through his employment he monitors

       clients on GPS, and that he was monitoring Cherry on January 28, 2014.

       Doyle explained that there are two parts to the GPS equipment. The client

       wears an anklet around his leg that corresponds with a hand held cell phone to

       allow tracking of the client’s movements. Doyle then testified about the

       contents of State’s exhibits 2 and 3, which showed Cherry’s location as

       monitored by the GPS tracking system. The evidence placed Cherry at the

       scene of the crime at the time it was committed. No objection was made to the

       testimony or the exhibits except for the objection raised under Evid. Rule



       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 7 of 12
       404(b). The trial court placed limitations on Doyle’s testimony with which

       Doyle complied.


[21]   Wilson also testified at trial and identified Cherry in court as the person who

       robbed the gas station store, although she had not been able to select him from

       a photo array prior to trial. Cherry called Mynatt, who had already been tried

       and convicted of aiding, inducing, or causing armed robbery, to testify at trial.

       Mynatt testified that it was he and not Cherry who committed the robbery.

       However, he testified that Hicks and Cherry were with him in Mooresville at

       the time of the armed robbery. When Cherry entered the store, his image was

       captured on surveillance video. Both Wilson and Hicks identified Cherry as the

       person in the video. Consequently, the GPS tracking evidence was of

       significant probative value to corroborate and support proof of Cherry’s

       presence at the store.


[22]   The trial court did not abuse its discretion by admitting the GPS tracking

       testimony and evidence. The evidence was relevant to show opportunity and

       identity. Further, the trial court’s restrictions on testimony regarding why

       Cherry was being monitored were reasonable and agreed to by the defense prior

       to trial. Therefore, the most potentially unfair prejudicial evidence—that

       Cherry was being monitored by Marion County Community Corrections for

       previously committing the same offense—was not before the jury.


[23]   Cherry argues for the first time on appeal that there were several foundational

       flaws such that the trial court’s decision to admit the evidence should be


       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 8 of 12
       reversed. More specifically, Cherry argues that the State did not present

       testimony qualifying Doyle as an expert witness, and there was no testimony

       about the reliability of GPS tracking systems in general and this GPS system in

       particular.


[24]   “It is well settled that Indiana’s appellate courts look with disfavor upon issues

       that are raised by a party for the first time on appeal or in original actions

       without first raising the issue in the trial court.” State v. Peters, 921 N.E.2d 861,

       867 (Ind. Ct. App. 2010). Appellate courts will not find that a trial court has

       erred as to an issue or argument that it never had the opportunity to consider.

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). “When a defendant fails

       to make a contemporaneous objection to the admission of evidence at trial,

       however, any error is generally waived for purposes of appeal.” Orr v. State, 968

       N.E.2d 858, 860 (Ind. Ct. App. 2012), trans. denied. Consequently, Cherry’s

       new arguments on appeal are waived.


[25]   “Appellate courts may, on rare occasions, resort to the fundamental error

       exception to address on direct appeal an otherwise procedurally defaulted

       claim.” Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). The fundamental error

       exception is extremely narrow, however, and available only when the record

       reveals a clearly blatant violation of basic and elementary principles such that

       the harm or potential for harm cannot be denied, and the violation is so

       prejudicial to the rights of the defendant as to make a fair trial impossible. Id.

       Here, however, the introduction of the GPS tracking evidence did not render

       Cherry’s trial fundamentally unfair. The evidence was corroborative of other

       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 9 of 12
       testimony including that offered by Cherry, placing him at the scene of the

       crime at the time it was committed.


                                                 II. Sentencing
[26]   We first address Cherry’s argument that the trial court abused its discretion by

       failing to give sufficient weight to evidence that he completed classes to improve

       himself while in jail awaiting trial. Our Supreme Court has rejected the

       argument that a trial court abuses its discretion by failing to properly weigh

       aggravating and mitigating factors. Phelps v. State, 969 N.E.2d 1009, 1019 (Ind.

       Ct. App. 2012) (citing Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

       clarified on reh’g by Anglemyer v. State, 875 N.E.2d 218), trans. denied.

       Furthermore, Cherry’s claim is not supported by cogent argument. We find no

       abuse of discretion in sentencing.


[27]   Next, Cherry argues that his sentence is inappropriate in light of the nature of

       the offense and the character of the offender. A sentence authorized by statute

       will not be revised unless the sentence is inappropriate in light of the nature of

       the offense and the character of the offender. Indiana Appellate Rule 7(B). We

       may not merely substitute our opinion for that of the trial court. Sallee v. State,

       777 N.E.2d 1204, 1216 (Ind. Ct. App. 2002), trans. denied. In determining the

       appropriateness of a sentence, a court of review may consider any factors

       appearing in the record. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App.

       2009). The question for our review is not whether another sentence is more




       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 10 of 12
       appropriate, but rather, whether the sentence imposed is inappropriate. Conley

       v. State, 972 N.E.2d 864, 876 (Ind. 2012).


[28]   Cherry was convicted of one count of Class B felony armed robbery, enhanced

       by his status as an habitual offender. A person who commits a Class B felony

       offense prior to July 1, 2014, shall be imprisoned for a fixed term of between six

       and twenty years with the advisory sentence being ten years. Ind. Code § 35-

       50-2-5 (2005). Persons whose habitual offender status is alleged prior to July 1,

       2014, shall be sentenced to an additional fixed term not less than the advisory

       sentence for the underlying offense nor more than three times the advisory

       sentence for the underlying offense but not to exceed thirty years. Ind. Code §

       35-50-2-8 (2005). Cherry received a sentence of twenty years on the underlying

       felony enhanced by an additional twenty years.


[29]   With respect to the nature of the offense, Cherry committed the armed robbery

       less than two months after he was released from the Department of Correction

       for a prior robbery conviction. Wilson was so traumatized by the robbery that

       she initially quit her job. Cherry involved two other people in the robbery,

       having them drive him to and from the gas station and “case” the inside of the

       building before he entered and committed the offense. Appellee’s Br. p. 23.


[30]   With respect to the character of the offender, Cherry, who was twenty-four at

       the time of the current offense, had a significant criminal history. As a juvenile,

       he had five referrals to juvenile court. He had true findings of possession of

       marijuana and burglary. He violated his juvenile probation when he was


       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 11 of 12
       sixteen years old and was waived to adult court. As an adult, Cherry has been

       convicted once of carrying a handgun without a license, twice of theft, and

       twice of robbery. Each period of probation or community supervision has

       resulted in a revocation except for Cherry’s first juvenile case at the age of

       twelve.


[31]   He was serving part of his sentence for robbery and attempted robbery through

       Marion County Community Corrections when he committed this offense. He

       possessed a firearm when he was forbidden to do so. Cherry claims that he gets

       an “adrenaline rush” when he commits crimes and that he does not worry

       about other people’s problems. Appellant’s App. p. 123. Cherry was assessed

       as a high risk to commit further offenses. Cherry uses marijuana daily and has

       used methamphetamine, cocaine, and heroin.


[32]   Cherry has not met his burden of persuading us that his sentence of twenty

       years enhanced by an additional twenty years is inappropriate in light of the

       nature of the offense and the character of the offender.


                                                Conclusion
[33]   In light of the foregoing, we affirm the trial court’s decision.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A05-1508-CR-1151 |March 22, 2016   Page 12 of 12
