MEMORANDUM DECISION                                                              FILED
                                                                            Feb 14 2017, 9:44 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keri Brewer,                                             February 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1604-CR-785
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1405-MR-28156



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017               Page 1 of 9
                                             Case Summary
[1]   Keri Brewer appeals his conviction for felony murder. We affirm.


                                                    Issues
[2]   Brewer presents four issues, which we consolidate and restate as:


                    I.         whether fundamental error occurred as a result
                               of the admission of evidence that Brewer and
                               his co-defendant had previously purchased
                               marijuana from the victim; and

                   II.         whether fundamental error occurred as a result
                               of three witnesses testifying regarding the
                               victim’s cell phone number.


                                                     Facts
[3]   In May 2014, Patrick Martin was carrying $10,000 in cash and showing it to

      people. Martin and his friend, Aleem Thomas, sold drugs together. Thomas

      told Martin that he should not “be walking around bragging about [the

      money].” Tr. p. 33. On May 19, 2014, Thomas met Martin at Angela

      Kosarue’s house because someone was going to buy drugs from Martin there.

      The men often sold marijuana at Kosarue’s house. While they were at her

      house, Martin got a phone call and went outside. When he came back inside,

      Brewer and Mark Tyson were with him. Thomas had seen the men before and

      knew that they had purchased drugs from Martin on three or four occasions.

      Kosarue also recognized Tyson as someone she had seen talking to Martin

      about three times. Brewer was carrying a box cutter, and Tyson was carrying a

      shotgun. In the living room, Tyson pointed the gun at Thomas and told him
      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 2 of 9
      “to come off of everything.” Id. at 44. Thomas gave him some marijuana and

      twenty dollars. Tyson also told Kosarue to give him everything, but she did not

      have anything to give him. Two of Kosarue’s children, eleven-year-old P.P.

      and twelve-year-old K.P., heard noises and walked into the hallway. Tyson

      pointed the shotgun at them and told them to go back into their room. Tyson

      walked into the kitchen, where Brewer and Martin were located. Thomas

      heard Tyson tell Martin, “come up off everything. I know you got it. I know

      you got it.” Id. at 47. Tyson then said, “Watch out, Bro. I’m about to get him

      up out of here,” and shot Martin. Id. Tyson and Brewer then ran out of the

      house. During the investigation, investigators were able to connect Martin with

      Brewer and Tyson through cell phone and Facebook records. When presented

      with a photo array, Thomas, Kosarue, P.P., and K.P. each separately identified

      Tyson as the man with the shotgun. Thomas identified Brewer as the man with

      the box cutter.


[4]   The State charged Brewer with felony murder and Class A felony robbery. The

      jury found Brewer guilty as charged, and the trial court entered judgment of

      conviction for felony murder. The trial court sentenced Brewer to sixty years in

      the Department of Correction. Brewer now appeals.


                                                  Analysis
                              I. Evidence of Prior Marijuana Purchases

[5]   Brewer argues that fundamental error occurred when Thomas testified that he

      had seen Brewer and Tyson purchase drugs from Martin three or four times


      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 3 of 9
      prior to the shooting. According to Brewer, the evidence of prior bad acts was

      inadmissible under Indiana Evidence Rule 404(b). Brewer does not dispute that

      he failed to object to this evidence.


[6]   The “[f]ailure to object at trial waives the issue for review unless fundamental

      error occurred.” Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010). “The

      ‘fundamental error’ exception is extremely narrow, and applies only when the

      error constitutes a blatant violation of basic principles, the harm or potential for

      harm is substantial, and the resulting error denies the defendant fundamental

      due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The error

      claimed must either make a fair trial impossible or constitute clearly blatant

      violations of basic and elementary principles of due process.” Brown v. State,

      929 N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). “This exception

      is available only in egregious circumstances.” Id. (internal quotation omitted).


[7]   Indiana Evidence Rule 404(b) 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.”

      However, this evidence “may be admissible for another purpose, such as

      proving motive, opportunity, intent, preparation, plan, knowledge, identity,

      absence of mistake, or lack of accident.” Evid. R. 404(b). The State argues that

      the evidence was admissible to show motive and identity. In support of its

      argument, the State relies on Wrencher v. State, 635 N.E.2d 1095 (Ind. 1994),

      and Byers v. State, 709 N.E.2d 1024 (Ind. 1999), which we find persuasive.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 4 of 9
[8]    In Wrencher, the defendant was convicted of murder and attempted murder.

       The surviving victim, who identified the defendant, was a security guard and

       had knowledge of the defendant’s drug dealing and imminent eviction. The

       defendant argued that the admission of his alleged drug dealing was

       inadmissible as a prior uncharged crime. Our supreme court held that the

       evidence was admissible “for the dual objective of demonstrating that [the

       victim] knew both Walker and [the defendant] from having seen them on

       previous occasions and also for the purpose of establishing a possible motive for

       the shooting . . . .” Wrencher, 635 N.E.2d at 1096.


[9]    Similarly, in Byers, the defendant was convicted of murder, attempted murder,

       and robbery. The surviving victim testified that she knew the defendant as

       “Flint” and that he had been arrested a few months earlier at the home of his

       girlfriend. Police were able to determine that the defendant was the man

       arrested on the evening in question, and the victim then identified him in a

       photo array. The defendant argued that evidence of his prior arrest was

       inadmissible under Indiana Evidence Rule 404(b). Our supreme court held that

       “[e]vidence relating to Byers’ prior arrest was highly relevant to [the victim’s]

       identification of Byers as the perpetrator.” Byers, 709 N.E.2d at 1027. The

       testimony was “relevant and necessary to explain the eventual identification of

       Byers, and highly probative because it corroborated [the victim’s] testimony

       that she knew ‘Flint,’ and that Byers was Flint.’” Id.


[10]   Here, Thomas testified that, although he did not know their names, he had seen

       Brewer and Tyson purchase drugs from Martin on three or four occasions.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 5 of 9
       After police connected Tyson and Brewer to the crime through cell phone and

       Facebook records, Thomas identified the men in photo arrays. As in Wrencher

       and Byers, Thomas’s testimony was relevant to demonstrate both motive and

       the identity of Brewer and Tyson.1 The admission of the testimony was not

       erroneous, much less fundamental error.


                              II. Evidence of Martin’s Cell Phone Number

[11]   Brewer next argues that fundamental error occurred by the admission of

       Martin’s cell phone number through Thomas, Detective Greg Hagan, and

       Sergeant Mark Hess. During Thomas’s testimony, the deputy prosecutor

       asked, “If I told you 317-***-****, does that sound correct?” Tr. p. 32. During

       the testimony of Detective Hagan, the deputy prosecutor questioned him

       regarding Martin’s phone number and asked “Would that have been the ***-

       **** we have been talking about?” Id. at 369. Detective Hagan then referred to

       his notes and responded affirmatively.2 Brewer argues that the witnesses were

       not testifying as to their personal knowledge, the deputy prosecutor was making

       himself a witness, and the deputy prosecutor was improperly refreshing the




       1
         Brewer also very briefly argues that the evidence was inadmissible under Indiana Evidence Rule 403, which
       provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a
       danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
       delay, or needlessly presenting cumulative evidence.” Brewer asserts, with little analysis, that Thomas’s
       testimony was unduly prejudicial. We conclude that the evidence was highly relevant and that its probative
       value was not substantially outweighed by any prejudice.
       2
         In his appellant’s brief, Brewer refers to a different portion of Detective Hagan’s testimony, where he is
       discussing a phone number associated with the defendants. However, Brewer erroneously claims that this
       testimony was the “second introduction of Martin’s cell phone number.” Appellant’s Br. p. 26; see Tr. p. 369,
       371-72.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017            Page 6 of 9
       witnesses’ recollections. As for Sergeant Hess, Brewer argues that his testimony

       regarding Martin’s phone number was hearsay.


[12]   Brewer did not object to Thomas, Detective Hagan, or Sergeant Hess testifying

       regarding Martin’s cell phone number. We again note that the “[f]ailure to

       object at trial waives the issue for review unless fundamental error occurred.”

       Treadway, 924 N.E.2d at 633. “The ‘fundamental error’ exception is extremely

       narrow, and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Mathews, 849 N.E.2d at 587.

       “The error claimed must either make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process.” Brown,

       929 N.E.2d at 207 (internal quotation omitted).


[13]   Martin’s mother testified before Thomas, Detective Hagan, and Sergeant Hess.

       She stated:


               Q. Did your son have a phone at that time?


               A. Yes.


               Q. What was the number on that phone?


               A. It was ***-****.


       Tr. p. 16. Brewer did not mention the testimony of Martin’s mother in his

       appellant’s brief. In his reply brief, he claims, without any analysis, that the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 7 of 9
       “admission of Martin’s mother’s testimony as to Martin’s cell phone number is

       similarly fundamental error.” Appellant’s Reply Br. p. 7. “Appellants are not

       permitted to present new arguments in their reply briefs, and any argument an

       appellant fails to raise in his initial brief is waived for appeal.” Kelly v.

       Levandoski, 825 N.E.2d 850, 857 n.2 (Ind. Ct. App. 2005), trans. denied. Further,

       Indiana Appellate Rule 46(A)(8)(a) requires that an appellant’s arguments be

       supported by cogent reasoning. Because Brewer raises this new argument in his

       reply brief and fails to support it with cogent reasoning, his argument is waived.

       Waiver notwithstanding, there is no evidence that the cell phone number was

       not within Martin’s mother’s personal knowledge or was hearsay, and she did

       not need her memory refreshed to testify regarding the number. Martin’s

       mother’s testimony was properly admitted.


[14]   Brewer argues that, without evidence of Martin’s cell phone number, “the cell

       phone records were irrelevant and there was no way to connect Martin and Mr.

       Brewer by the records.” Appellant’s Reply Br. p. 8. We need not address

       whether the testimony of Thomas, Detective Hagan, and Sergeant Hess was

       properly admitted because, even if the admission was erroneous, no

       fundamental error occurred. Martin’s mother properly testified regarding the

       cell phone number. Because the evidence at issue was cumulative of Martin’s

       mother’s testimony, no fundamental error occurred by the admission of the cell

       phone number through the testimony of Thomas, Detective Hagan, or Sergeant

       Hess. See Wilkes v. State, 7 N.E.3d 402, 405 (Ind. Ct. App. 2014) (“Because the




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 8 of 9
       statements were cumulative of W.V.’s testimony, no fundamental error

       occurred from the admission of those statements.”).


                                                 Conclusion
[15]   Fundamental error did not occur as a result of Thomas’s testimony regarding

       Brewer and Tyson previously purchasing marijuana from Martin or as a result

       of Thomas, Detective Hagan, or Sergeant Hess testifying regarding Martin’s cell

       phone number. We affirm.


[16]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1604-CR-785| February 14, 2017   Page 9 of 9
