MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Nov 20 2019, 5:44 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brent R. Dechert                                        Curtis T. Hill, Jr.
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Jesse R. Drum
                                                        Supervising Deputy
                                                        Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Emmanuel Arrington,                                     November 20, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-94
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable Hans Pate, Judge
Appellee-Plaintiff,                                     Trial Court Cause No.
                                                        34D04-1602-F1-31



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019                Page 1 of 30
                               Case Summary and Issues
[1]   Following a jury trial, Emmanuel Arrington was convicted of attempted

      murder, a Level 1 felony, and unlawful possession of a firearm by a serious

      violent felon, a Level 4 felony. The trial court sentenced Arrington to forty

      years for his attempted murder conviction and twelve years for his unlawful

      possession conviction, to be served concurrently. Arrington appeals his

      convictions and sentence and raises four issues for our review: (1) whether

      Arrington knowingly, intelligently, and voluntarily waived his Sixth

      Amendment right to counsel; (2) whether the trial court committed

      fundamental error when it did not remove the jury following the refusal of a

      State’s witness to testify; (3) whether the State presented sufficient evidence to

      support Arrington’s convictions; and (4) whether the trial court abused its

      discretion in sentencing Arrington. Concluding Arrington knowingly,

      intelligently, and voluntarily waived his right to counsel, the State presented

      sufficient evidence to support Arrington’s convictions, and the trial court did

      not commit fundamental error or abuse its discretion in sentencing Arrington,

      we affirm.



                            Facts and Procedural History
[2]   Steven Landrum, Jeremy Wilson, and Arrington have known each other for

      many years. Early on the morning of February 2, 2016, all three men were at

      Big Daddy’s Show Club in Kokomo, Indiana. At some point, Wilson and

      Landrum got into an argument and began to physically fight. Arrington

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 2 of 30
      jumped in and hit Landrum in the back of his head. Security broke up the fight

      and removed Arrington and Wilson from the club.


[3]   After the fight, Landrum also left the club and went to Shanika Anderson’s

      house located on East Mulberry Street. At the house, Landrum called Wilson,

      accused him of trying to have sex with Landrum’s wife, and stated that “if

      [Arrington] wanted to fight me he could fight me one on one.” Transcript,

      Volume II at 222. At the time of the call, Wilson and Arrington were together

      and Landrum could hear Arrington calling him names in the background.

      Wilson asked Landrum where he was, and Landrum stated he was “over on

      Mulberry” Street. Id. at 223. Gentry Gittings, Anderson, and Yardana Horton

      were all present at the Mulberry Street house during the phone call and

      Landrum believed they could overhear the conversation because it was on

      speaker phone. Fifteen to twenty minutes later, someone knocked on the door

      of Anderson’s house and “it turned out to be [Arrington and Wilson] and

      another guy. There was three of them, one on the sidewalk, two on the porch.”

      Id. The front door of the house was open, but the storm door was closed.

      Landrum walked over to the door and “tried to open the [storm] door and then

      when I couldn’t get the door open Emanuel Arrington pulled, had his pistol in

      his hand. He up’d it and shot me in the shirt” through the door. Id. at 224.

      After Landrum was shot in the chest, he turned around and both Anderson and

      Horton heard Landrum say that Arrington “just shot me.” Id. at 186, 205.


[4]   Around 2:30 a.m., officers of the Kokomo Police Department (“KPD”) were

      dispatched to the scene. Three officers wore body cameras, which recorded

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 3 of 30
      their actions. Officers discovered a spent .380 caliber shell casing near a ramp

      that leads to the porch of the home and observed the bottom half of the glass

      storm door had been “shot out” but the top half remained intact. Id. at 146.

      Landrum was taken to St. Vincent’s Hospital in Indianapolis and ultimately

      survived his gunshot wound. However, the bullet remains lodged in Landrum’s

      back and spinal cord because removing it could paralyze him. Landrum

      initially refused to tell officers who shot him but later, while in the hospital,

      identified Arrington as the shooter. See Tr., Vol. III at 4.


[5]   On February 3, 2016, the State charged Landrum with attempted murder, a

      Level 1 felony, and unlawful possession of a firearm by a serious violent felon,

      a Level 4 felony. A jury trial was scheduled for November 13, 2018.

      Throughout the proceedings, Arrington had been represented by multiple

      private attorneys. On October 5, 2018, Arrington filed a motion to proceed pro

      se, in which he stated: “I . . . feel[] compe[tent] enough to represent myself[,]”

      “I have been researching and preparing my case since I have been

      incarcerated[,]” and “I am prepared and ready to go forth with my trial [set] for

      November 13, 2018[.]” Appellant’s Appendix, Volume 8 at 102. The trial

      court held a status hearing on October 30 and addressed Arrington’s motion:


              [Court]:     OK. So you absolutely do not want to proceed with
              an attorney representing you, is that correct?


              [Arrington]: Mr. Rosselot is a paid attorney. I won’t have the
              money to go forward.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 4 of 30
        ***


        [Court]:     OK. And again, like I said, just because you didn’t
        pay doesn’t mean, given the timing of where we’re at, I don’t
        have to, again, I know I don’t have to, the law doesn’t allow me
        to allow him to withdraw, you understand?


        [Arrington]: Right.


        [Court]:      So is it because you want to proceed and represent
        yourself or is it because you can’t afford to pay Mr. Rosselot to
        represent you, moving forward?


        [Arrington]: I can’t afford to pay Mr. Rosselot.


        [Court]:      So you would like to have an attorney, you just
        can’t afford one?


        [Arrington]: Right.


Tr., Vol. II at 83-84. The trial court asked Arrington a series of questions,

determined that he was indigent, and appointed David Rosselot as a special

public defender. However, Arrington again requested to proceed pro se. The

trial court and Arrington engaged in the following colloquy:


        [Court]:      So, Mr. Arrington, why don’t you tell the Court
        what it is that you want at this point in time? Go ahead.


        [Arrington]: I would like to represent myself with standby
        counsel[.]



Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 5 of 30
        ***


        [Court]:      So now you’re saying that you want to proceed pro
        se, that’s your position right now?


        [Arrington]: Yes, sir.


        ***


        [Court]:      Alright. Now, your trial is currently set for
        November 13th, 2018. You’ve indicated to me that you want to
        represent yourself at that trial. I want you to understand that you
        do have the right to represent yourself at trial, just as you have
        the right to have counsel represent you and to have the court-
        appointed counsel for trial . . . if you cannot afford an attorney.
        Before you make that decision final, I want you to understand
        what you will be giving up. You may have any number of
        defenses which apply to your case and which an attorney is
        trying to know. Should you be convicted of this offense you are
        facing a penalty anywhere between 45 and 65 years in jail. There
        are factors which the Court can consider in increasing your
        sentence within that range or in decreasing your sentence within
        that range. These are factors which an attorney would know
        about. An attorney has developed certain skills to assist you in
        presenting a defense to the charge against you. These include
        investigating your case, interrogating witnesses against you, and
        finding favorable witnesses and obtaining their testimony,
        explaining charges in any lesser included offenses, gathering
        documents and other kinds of written evidence, preparing and
        filing motions before trial, such as motions for speedy trial,
        motions for discovery or motions to keep unfavorable
        information from being received as evidence, examining and
        cross-examining witnesses at trial, recognizing objectionable and
        unfavorable evidence and promptly objecting to its use,
        presenting favorable sentencing information and attacking

Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 6 of 30
        unfavorable sentencing information. In jury trials presenting
        favorable opening and closing statements, preparing appropriate
        written jury instructions and selecting a jury, and training,
        knowledge and skill at properly preserving the record of the case
        for purposes of appeal. An attorney can also evaluate the
        strengths or weaknesses of the case against you and give expert
        advice on whether you should attempt to seek a plea agreement
        with the State of Indiana, which may result in the dismissal of
        some, or [all] of the charges against you and a recommendation
        for a favorable sentence in return for your guilty plea. Do you
        understand each and everything that I have said to you at this
        point?


        [Arrington]: Yes, sir.


        [Court]:      You must understand that if you decide not to have
        an attorney, you will not receive any special treatment with your
        defense. You will have to follow all the same rules and
        procedures in your case as an attorney would have to. The State
        will be represented by an attorney and will have the advantage
        that an attorney presents. If you decide to represent yourself and
        the result turns out badly, you need to know that you will not be
        able to complain that you were not an effective attorney in your
        own defense. Do you understand that?


        [Arrington]: Yes, sir.


        [Court]:     OK. As I have told you, you have a right to decide
        against having an attorney but you must be aware that deciding
        not to have an attorney can turn out to be a very bad decision.
        Experienced lawyers almost always decide to be represented by
        another lawyer in a criminal case. There are some . . . things that
        you should consider before you appear at trial without an
        attorney and I want to ask you about them now. What skills or
        knowledge do you have that would be helpful to you if you

Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 7 of 30
        represent yourself? Do you have any special skills or knowledge
        about the law or about your case that would help you represent
        yourself at this time?


        [Arrington]: About my case, sir.


        [Court]:   Alright. Do you have any special skills or
        knowledge about the law?


        [Arrington]: No, sir.


        [Court]:         Have you ever studied criminal law?


        [Arrington]: No, sir.


        [Court]:      Have you had previous experiences with the
        criminal justice system?


        [Arrington]: Yes, sir.


        [Court]:         OK. Have you ever participated in a jury trial
        before?


        [Arrington]: No, sir.


        [Court]:         Alright. And how much education have you had?


        [Arrington]: To eleventh grade, sir.


        [Court]:         OK. Are you able to read and write?


        [Arrington]: Yes, sir.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 8 of 30
        [Court]:         OK. Do you believe you’re a good speaker?


        [Arrington]: Yes, sir.


        [Court]:     Alright. And do you believe that you can quickly
        become familiar with large numbers of special rules and
        procedures and use them the right way in a pressure situation,
        such as your own trial?


        [Arrington]: Yes, sir.


        [Court]:      Alright. Have there been any promises or
        suggestions from anyone that you will receive special treatment
        or a milder sentence if you do not have an attorney?


        [Arrington]: No, sir.


        [Court]:    Alright. Have there been any threats to you that
        you or another will be harmed or disadvantaged in any way if
        you do have an attorney?


        [Arrington]: No, sir.


        [Court]:     OK. You’re not under the influence of any alcohol
        or drugs today, are you?


        [Arrington]: No, sir.


Id. at 88-91. The trial court granted Arrington’s request to proceed pro se with

Rosselot as standby counsel.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 9 of 30
[6]   At Arrington’s jury trial, the State called Gittings as a witness. Gittings stated

      his name and that he was being held at a correctional facility for an unrelated

      matter. When the State asked Gittings whether he was at the Mulberry Street

      house on the night of the shooting, Gittings responded, “I don’t have nothing to

      say. I don’t have nothing to say.” Id. at 212. Gittings repeatedly refused to

      answer any questions. The trial court explained, “unless there is some basis or

      some right you’re asserting in not providing this testimony that you simply

      can’t willfully disregard the questions that are being asked. You’ve been

      lawfully subpoenaed. You’re required to be here, you’re required to answer.”

      Id. at 214. The trial court informed Gittings that he could be held in contempt.

      Gittings did not assert a right or privilege and Arrington did not request a

      hearing outside the presence of the jury. Instead, Gittings chose contempt, the

      trial court held him in contempt, and he was escorted from the courtroom in the

      presence of the jury.


[7]   The trial continued and the jury found Arrington guilty as charged. The trial

      court found Arrington’s criminal history and the seriousness of the crime to be

      aggravating circumstances and did not find any mitigating circumstances. The

      trial court sentenced Arrington to forty years for his attempted murder

      conviction and twelve years for his unlawful possession of a firearm by a serious

      violent felon conviction and ordered his sentences to run concurrently.

      Arrington now appeals. Additional facts will be supplied as necessary.



                                Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 10 of 30
                                     I. Waiver of Counsel
[8]   Arrington first argues that he did not knowingly, intelligently, and voluntarily

      waive his right to counsel. The Sixth Amendment to the United States

      Constitution and Article 1, Section 13 of the Indiana Constitution guarantee a

      defendant the right to be represented by counsel. Kowalskey v. State, 42 N.E.3d

      97, 102 (Ind. Ct. App. 2015). “The purpose of the constitutional guaranty of a

      right to counsel is to protect an accused from conviction resulting from his own

      ignorance of his legal and constitutional rights[.]” Johnson v. Zerbst, 304 U.S.

      458, 465 (1938). This court has previously noted the right to counsel is

      “probably the most important right a defendant has because that right can affect

      a defendant’s ability to assert all his other rights and because most defendants

      do not have the professional legal skills necessary to represent themselves

      adequately.” Henson v. State, 798 N.E.2d 540, 543-44 (Ind. Ct. App. 2003),

      trans. denied.


[9]   And a defendant’s right to self-representation is implicit in the Sixth

      Amendment right to counsel. Faretta v. California, 422 U.S. 806, 819-20 (1975)

      (“[T]he right to self-representation – to make one’s own defense personally – is

      thus necessarily implied by the structure of the [Sixth] Amendment. The right

      to defend is given directly to the accused; for it is he who suffers the

      consequences if the defense fails.”) (footnote omitted). “[F]orcing a lawyer

      upon an unwilling defendant is contrary to his basic right to defend himself if he

      truly wants to do so.” Id. at 817. When a criminal defendant waives his right

      to counsel and elects to proceed pro se, we must evaluate whether the trial court

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 11 of 30
       properly determined that the defendant’s waiver was knowing, voluntary, and

       intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). The defendant

       should be made aware of the dangers and disadvantages of self-representation,

       Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011), and ultimately, the record

       should establish the defendant made his choice to proceed pro se with his eyes

       open, Henson, 798 N.E.2d at 544.


[10]   “Waiver of assistance of counsel may be established based upon the particular

       facts and circumstances surrounding the case, including the background,

       experience, and conduct of the accused.” Jones, 783 N.E.2d at 1138. There are

       no “prescribed talking points” that a trial court is required to include when

       advising a defendant. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).

       Instead, a trial court need only determine that the defendant is making a

       knowing, voluntary, and intelligent waiver of counsel, acknowledging the law

       indulges every reasonable presumption against a waiver of this fundamental

       right. Id. To determine whether a defendant’s waiver is knowing, voluntary,

       and intelligent, we employ a four-factor test:


               (1) the extent of the court’s inquiry into the defendant’s decision,
               (2) other evidence in the record that establishes whether the
               defendant understood the dangers and disadvantages of self-
               representation, (3) the background and experience of the
               defendant, and (4) the context of the defendant’s decision to
               proceed pro se.


       Id. at 1127-28; Hopper, 957 N.E.2d at 618. When applying these factors, we

       acknowledge that the trial court “is in the best position to assess whether a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 12 of 30
defendant has knowingly and intelligently waived counsel[.]” Poynter, 749

N.E.2d at 1128 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.

2001)). In addition,


        we will most likely uphold the trial judge’s decision to honor or
        deny the defendant’s request to represent himself where the judge
        has made the proper inquiries and conveyed the proper
        information, and reached a reasoned conclusion about the
        defendant’s understanding of his rights and voluntariness of his
        decision.


Id. This court has suggested several guidelines for advising the defendant when

he considers self-representation, which include:


        The defendant should know of the nature of the charges against
        him, the possibility that there may be lesser included offenses
        within these charges, and the possibility of defenses and
        mitigating circumstances surrounding the charges. The
        defendant should be aware that self-representation is almost
        always unwise, that the defendant may conduct a defense which
        is to his own detriment, that the defendant will receive no special
        indulgence from the court and will have to abide by the same
        standards as an attorney as to the law and procedure, and that
        the State will be represented by experienced professional legal
        counsel.


Dowell v. State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), cert. denied, 502

U.S. 861 (1991); see also Jones, 783 N.E.2d at 1138. However, these guidelines

“do not constitute a rigid mandate setting forth specific inquiries that a trial

court is required to make before determining whether a defendant’s waiver of



Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 13 of 30
       right to counsel is knowing, intelligent, and voluntary.” Jones, 783 N.E.2d at

       1138 (internal quotation omitted).


[11]   The first two Poynter factors focus on whether the defendant had sufficient

       information about the dangers and disadvantages of self-representation, one

       through the trial court’s inquiry, and the other through any other evidence in

       the record. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008). Arrington

       concedes that the trial court reviewed “many advantages [that] being

       represented by an experienced attorney could bring” but takes issue with the

       trial court’s alleged use of a “bench book” advisement. Amended Brief of

       Appellant at 17. He maintains that the trial court failed to engage in a

       meaningful colloquy and did not dive “into the many pitfalls that a layperson

       would expect to experience in representing himself, especially in a complicated

       and serious criminal matter[.]” Id. We disagree.


[12]   At the status hearing, the trial court emphasized that, before Arrington made

       the decision to proceed pro se, it “want[ed Arrington] to understand what [he]

       will be giving up.” Tr., Vol. II at 89. The trial court informed Arrington of the

       following: that an attorney would be aware of any applicable defenses; an

       attorney would be aware of the factors the trial court would consider in

       imposing his sentence; and an attorney has skills to assist in defending his case,

       including investigating the case, interrogating witnesses, finding favorable

       witnesses, obtaining documents and written evidence, explaining lesser

       included offenses, preparing and filing motions before trial such as for speedy

       trial or discovery, examining and cross-examining witnesses, recognizing and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 14 of 30
       objecting to certain evidence, preparing jury instructions, preserving the record

       for appeal, evaluating the strengths and weaknesses of the case, and

       determining whether a plea agreement is wise. The trial court advised

       Arrington that, if convicted, he faces forty-five to sixty-five years of

       imprisonment, he would not receive special treatment if he proceeded pro se, he

       must follow the same rules and procedures as an attorney is required to do, he

       could not later claim ineffective assistance of counsel, and the State would have

       the advantage of being represented by an attorney. The trial court also

       informed Arrington that “deciding not to have an attorney can turn out to be a

       very bad decision . . . [and e]xperienced lawyers almost always decide to be

       represented by another lawyer in a criminal case.” Id. at 90. Because the trial

       court thoroughly explained the dangers and disadvantages of self-

       representation, this factor weighs in favor of a knowing, intelligent, and

       voluntary waiver of counsel.


[13]   The record also reveals that Arrington was “no stranger to the criminal justice

       system” and confirms that he is an experienced criminal litigant. See Taylor v.

       State, 944 N.E.2d 84, 90-91 (Ind. Ct. App. 2011). The trial court confirmed

       with Arrington that he has had “previous experiences” with the criminal justice

       system, which, according to Arrington’s presentence investigation report,

       includes sixteen felony convictions and ten misdemeanor convictions. Tr., Vol.

       II at 90-91; Appellant’s App., Vol. 8 at 121. The evidence in the record

       demonstrates that Arrington had the requisite background and experience to

       make a knowing, voluntary, and intelligent waiver of counsel. Therefore, this


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 15 of 30
       factor weighs in favor of a knowing, voluntary, and intelligent waiver of

       counsel.


[14]   The third factor concerns whether the defendant has the background and

       experience necessary to make a voluntary, knowing, and intelligent waiver of

       his or her right to counsel. Drake, 895 N.E.2d at 394. After the trial court

       explained the many dangers of self-representation, it engaged in a colloquy with

       Arrington regarding his background. The trial court asked Arrington whether

       he had ever studied criminal law, had any special skills or knowledge about the

       law, had ever participated in a jury trial, and had the ability to read and write.

       The trial court also asked about the extent of his education. Although

       Arrington confirmed that he did not have any special skills or knowledge about

       the law or a jury trial, he did confirm that he had an eleventh grade education,

       can read and write, believed he was a good speaker, and that he believed he

       would be able to quickly become familiar with the large number of special rules

       and procedures applicable to a jury trial. The trial court also confirmed that

       Arrington was not under the influence of any substance and had not been

       promised special treatment or a lesser sentence to proceed pro se.


[15]   Finally, we evaluate the context of Arrington’s decision to represent himself. If

       a defendant’s decision to proceed without counsel appears tactical, then this

       factor weighs in favor of finding a knowing and intelligent waiver. Drake, 895

       N.E.2d at 395. Arrington argues that the context in which he elected to

       represent himself reveals that he proceeded pro se solely to avoid further delays

       in his trial as he had been incarcerated since his arrest on February 11, 2016.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 16 of 30
       He maintains that the record demonstrates that he clearly wanted an attorney;

       however, the record reveals otherwise.


[16]   Arrington’s lead attorney, Fred Grady, filed a motion to withdraw due to

       medical issues on July 30, 2018, one week prior to a scheduled trial date. In his

       motion, Grady stated that over a year before, Rosselot had entered his

       appearance as “local counsel” on behalf of Arrington and had been assisting

       Grady. Appellant’s App., Vol. 8 at 84. The trial granted Grady’s motion and

       the trial was continued. On October 5, 2018, Arrington filed a motion to

       proceed pro se, in which he stated: “I . . . feel[] compe[tent] enough to represent

       myself[,]” “I have been researching and preparing my case since I have been

       incarcerated[,]” and “I am prepared and ready to go forth with my trial[.]” Id.

       at 102. On October 20, 2018, Rosselot filed a motion to withdraw his

       appearance as Arrington wished to represent himself. The same day, the trial

       court held a status hearing and engaged in a colloquy with Arrington regarding

       his decision to proceed pro se. Arrington initially stated he could no longer

       afford Rosselot and the trial court found Arrington indigent and offered to

       appoint a public defender to represent him. Ultimately, the trial court

       appointed Rosselot as Arrington’s stand by public defender.


[17]   The evidence in the record supports a strategic decision by Arrington to proceed

       pro se, rather than to avoid further delay. Arrington stated that he had been

       researching his case, felt prepared for trial, and declined the appointment of

       Rosselot as counsel. Instead, Arrington wanted to represent himself with

       Rosselot as standby counsel. The context of Arrington’s decision to proceed

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 17 of 30
       pro se weighs in favor of a knowing, voluntary, and intelligent waiver of

       counsel.


[18]   Arrington is an experienced criminal litigant, had stand by counsel throughout

       his trial, and had been sufficiently warned of the dangers and disadvantages of

       representing himself. Based on all four factors, Arrington’s decision to waive

       counsel and proceed pro se was knowing, voluntary, and intelligent.


                                     II. Fundamental Error
[19]   Arrington next claims the trial court committed fundamental error by failing to

       remove the jury after Gittings refused to testify and by failing to conduct a

       hearing on Gittings’ refusal outside the presence of the jury. Arrington

       concedes that he did not object to the trial court’s procedure and therefore must

       demonstrate fundamental error.


[20]   A claim that has been forfeited by a defendant’s failure to raise a

       contemporaneous objection can nonetheless be reviewed on appeal if

       fundamental error has occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind.

       2010). Fundamental error allows this court to “address an error that made a

       fair trial impossible or constituted a clearly blatant violation of basic and

       elementary principles of due process presenting an undeniable and substantial

       potential for harm[.]” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014)

       (internal quotations and alterations omitted), cert. denied, 135 S.Ct. 970 (2015).

       The fundamental error exception is “extremely narrow,” Matthews v. State, 849

       N.E.2d 578, 587 (Ind. 2006), and a “daunting standard[,]” applicable only in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 18 of 30
       egregious circumstances, Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert.

       denied, 135 S.Ct. 978 (2015).


[21]   Indiana Code section 35-37-3-1 provides the proper procedure when a witness

       refuses to testify:


               (a) If a witness, in any hearing or trial occurring after an
                   indictment or information has been filed, refuses to answer
                   any question . . . , the court shall remove the jury, if one is
                   present, and immediately conduct a hearing on the witness’s
                   refusal. After such a hearing, the court shall decide whether
                   the witness is required to answer the question[.]


               (b) If the prosecuting attorney has reason to believe that a witness
                   will refuse to answer a question . . . during any criminal trial,
                   the prosecuting attorney may submit the question or request
                   to the trial court. The court shall hold a hearing to determine
                   if the witness may refuse to answer the question[.]


       Although we recognize that the trial court did not remove the jury and

       immediately conduct a hearing on Gittings’ refusal to testify as required by the

       statute, Arrington fails to demonstrate that this deprived him of the opportunity

       for a fair trial.


[22]   The State claims the statute contemplates that the jury would hear a witness’

       refusal to testify at least once and therefore, a witness’ continued refusal to

       testify, in the presence of the jury, does not rise to the level of fundamental

       error. Arrington asserts that “[i]t appears likely that the State knew Gittings

       would refuse to testify” based on the following statement Gittings’ made: “I

       tried to contact, I mean as you know, I’ve been trying to contact and have my
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 19 of 30
       people contact me and I still got forced to come here so I don’t have nothing to

       say.” Amended Br. of Appellant at 20 (citing Tr., Vol. II at 212). Arrington

       maintains that, because of Gittings’ refusal to testify, the jury could infer that

       Gittings was “somehow unduly influenced by Arrington into not cooperating.

       The State made a conscious and flagrant attempt to build its case on this

       inference.” Amended Br. of Appellant at 20-21. As the State notes, there are

       numerous explanations as to why Gittings may have decided not to testify and

       we are not at liberty to speculate. Ultimately, we are unpersuaded that this sole

       statement presents evidence that the State knew before trial that Gittings would

       refuse to testify and then made the conscious decision to demonstrate that

       Arrington convinced or unduly influenced Gittings into not testifying.


[23]   In State v. Eubanks, a panel of this court held that the witnesses’ invocations of

       the Fifth Amendment did not prejudice the defendant or deprive him of a fair

       trial. 729 N.E.2d 201, 206-07 (Ind. Ct. App. 2000). There, the trial court had

       concluded that the witnesses’ invocations of their Fifth Amendment privilege

       was fundamental error. Id. at 206. In post-conviction proceedings, the

       defendant argued that the State called the witnesses to the stand knowing they

       would invoke the privilege, which constituted fundamental error as he failed to

       object at trial. Id. This court looked to the United States Supreme Court’s

       decision in Namet v. United States, 373 U.S. 179 (1963), in which it indicated that

       to determine whether prejudicial error occurred, courts should look to the

       particular circumstances of each case. Id. at 207. In doing so, courts should

       focus on two factors: (1) error may result from prosecutorial misconduct when


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 20 of 30
       the government makes a “conscious and flagrant” attempt to build its case out

       of inferences arising from a witness’s invocation of the privilege; and (2)

       prejudicial error may occur when the inferences from a witness’s refusal to

       testify add “critical weight to the prosecution’s case.” Id. (quoting Namet, 373

       U.S. at 186-87). Although this court disproved of the prosecution’s tactics in

       calling witnesses they knew would invoke the Fifth Amendment, it determined

       there was no evidence that the State attempted to build its case out of the

       inferences, that the State relied on their assertions of privilege to establish the

       elements of the offenses, or that the testimony added critical weight to the

       State’s case. Id. at 207-08. We held that the defendant was not deprived of a

       fair trial because any adverse inference that could be drawn from the witnesses’

       invocations was merely cumulative, the State’s questioning was of a limited

       nature, and there were a substantial number of witnesses presented. Id. at 208.

       And thus, no fundamental error occurred.


[24]   Such is the case here. Even if the State knew Gittings would refuse to testify, as

       Arrington maintains, there is no evidence in the record that the State made a

       “conscious and flagrant” attempt to build its case out of the adverse inferences

       arising from Gittings refusal to testify, that the State relied on Gittings’ refusal

       to establish the elements of the offenses, or that the inferences added critical

       weight to its case. Unlike the witnesses in Eubanks, Gittings did not invoke his

       Fifth Amendment privilege, which would have been arguably more prejudicial

       than his refusal to testify. Given the numerous witnesses who testified at trial

       and the evidence admitted, including the officers’ body camera footage, we


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 21 of 30
       cannot conclude that Arrington was deprived of a fair. He has failed to prove

       that the trial court’s failure to remove the jury and conduct a hearing on

       Gittings’ refusal to testify was a “blatant violation of [his] basic and elementary

       principles of due process presenting an undeniable and substantial potential for

       harm[.]” Brewington, 7 N.E.3d at 974. Accordingly, no fundamental error

       occurred.


                              III. Sufficiency of the Evidence
[25]   Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

       N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. In reviewing the sufficiency

       of the evidence required to support a criminal conviction, we do not reweigh

       the evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable

       to the verdict and the reasonable inferences supporting it. Id. Therefore, it is

       not necessary that the evidence overcome every reasonable hypothesis of

       innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “[W]e will affirm

       the conviction unless no reasonable trier of fact could have found the elements

       of the crime beyond a reasonable doubt.” Id.


[26]   The State must prove all elements of the charged crime beyond a reasonable

       doubt. Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992); Ind. Code § 35-41-4-

       1(a) (“A person may be convicted of an offense only if his guilt is proved

       beyond a reasonable doubt.”). A person who “knowingly or intentionally kills

       another human being” commits murder, a felony. Ind. Code § 35-42-1-1(1).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 22 of 30
       Indiana’s attempt statute provides: “A person attempts to commit a crime

       when, acting with the culpability required for commission of the crime, the

       person engages in conduct that constitutes a substantial step toward

       commission of the crime. . . . [A]n attempt to commit murder is a Level 1

       felony.” Ind. Code § 35-41-5-1(a).


[27]   The only element Arrington challenges is his identity as the shooter. He argues

       that the State failed to produce sufficient evidence identifying him as the alleged

       shooter and therefore, his convictions should be reversed. The State produced

       the following testimony and circumstantial evidence to prove Arrington was the

       shooter:


           • Wilson and Landrum got into an altercation at Big Daddy’s and

               Arrington jumped in and hit Landrum in the back of the head. Tr., Vol.

               II at 220.


           • Following the altercation, Landrum called Wilson and told him if

               Arrington “wanted to fight me he could fight me one on one.” Id. at 222.

               Arrington was with Wilson at the time and Landrum could hear

               Arrington calling him names in the background. Landrum subsequently

               told them he was “over on Mulberry.” Id. at 223.


           • Landrum testified that when he heard a knock on the door, he walked to

               the door, witnessed Arrington at the door holding a pistol in his hand,

               and then shot him in the chest. Id. at 224.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 23 of 30
    • Anderson and Horton both testified that, after Landrum was shot, he

        turned around and stated,“[Arrington] just shot me.” Id. at 186, 205.


    • Following the shooting, Detective James Nielson presented a photo array

        of six individuals to Anderson and she identified Arrington as the

        shooter. She wrote her initials and date next to the photo she identified

        as Arrington. See id. at 200-01; Exhibits Volume at 10-11.


    • KPD Officers Brent Wines and Ryan Shuey testified that, at the scene,

        Anderson stated that Arrington shot Landrum. Tr., Vol. II at 133-34,

        170-72. Officer Wines also testified that Anderson stated that she

        witnessed Arrington with a gun on the porch of her home but did not see

        Arrington fire the weapon. Id. at 149.


    • On or around February 4, 2016, KPD Officer Purtee visited Landrum in

        the hospital to take his statement during which time Landrum stated that

        Arrington shot him. Tr., Vol. III at 4. Officer Purtee also showed

        Landrum a photo array and asked him to identify who shot him.

        Landrum positively identified Arrington as the shooter.


    • Expert Glenn Bard analyzed and mapped the cell phone records for

        Wilson and Arrington between 2:27 and 2:32 a.m. on February 2, 2016,

        placing them in the area of the scene of the crime. Id. at 18; Exhibit Vol.

        at 83-93.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 24 of 30
[28]   Arrington argues that because Landrum had consumed alcohol the night of the

       shooting, he is an unreliable witness and his testimony is “so unbelievable and

       incredible” that it falls under the incredible dubiosity rule. Amended Br. of

       Appellant at 22.


               The incredible dubiosity rule allows this court to impinge upon a
               fact finder’s responsibility to judge the credibility of the witnesses
               only when confronted with “inherently improbable” testimony.
               The rule is applied in limited circumstances, namely where there
               is 1) a sole testifying witness; 2) testimony that is inherently
               contradictory, equivocal, or the result of coercion; and 3) a
               complete absence of circumstantial evidence. Application of the
               incredible dubiosity rule is rare and the standard to be applied is
               whether the testimony is so incredibly dubious or inherently
               improbable that no reasonable person could believe it.


       Morris v. State, 114 N.E.3d 531, 536 (Ind. Ct. App. 2018) (emphasis added)

       (internal citations omitted), trans. denied. The second prong is satisfied only

       when the witness’s trial testimony is inconsistent within itself, not when it is

       inconsistent with other evidence or prior testimony. Smith v. State, 34 N.E.3d

       1211, 1221 (Ind. 2015). Accordingly, this rule is inapplicable to the present case

       because, as demonstrated above, the State presented witnesses who

       corroborated Landrum’s testimony and his testimony was not inconsistent

       within itself.


[29]   In sum, the State presented sufficient evidence from which the trier of fact could

       have found the elements of the crimes, including Arrington’s identity as the

       shooter, beyond a reasonable doubt. Arrington argues that it was factually


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 25 of 30
       impossible for him to have shot Landrum given Landrum’s height and the fact

       that only the bottom portion of the storm door, not the top half, was shattered.

       Arrington’s argument constitutes a request for this court to reweigh the

       evidence, which we cannot do. See Bailey, 907 N.E.2d at 1005. We conclude

       there was sufficient evidence to support Arrington’s convictions.


                                            IV. Sentencing
[30]   Finally, Arrington asserts that the trial court erred by issuing an inadequate

       sentencing statement, finding an improper aggravating factor, and failing to find

       one mitigating factor. We disagree.


[31]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. Thus, we review only for an abuse of discretion, which occurs if the trial

       court’s decision is “clearly against the logic and effect of the facts and

       circumstances before [it], or the reasonable, probable, and actual deductions to

       be drawn therefrom.” Id. A trial court may abuse its discretion by: (1) failing

       to enter a sentencing statement; (2) entering a sentencing statement that

       explains reasons for imposing the sentence that are unsupported by the record;

       (3) omitting reasons clearly supported by the record and advanced for

       consideration; or (4) finding factors that are improper as a matter of law.

       Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). The identification or

       omission of reasons provided for imposing a sentence are reviewable on appeal

       for an abuse of discretion, but the weight given to those reasons is not subject to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 26 of 30
       appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014),

       trans. denied.


[32]   Here, the trial court found Arrington’s criminal history and the seriousness of

       the crime as aggravating circumstances and did not find any mitigating

       circumstances. Arrington argues that the “seriousness of the crime” is an

       improper aggravating circumstance absent “some detailed explanation as to

       how it was more significant than the crime itself.” Amended Appellant’s Br. at

       25. “[A] material element of a crime may not also constitute an aggravating

       circumstance to support an enhanced sentence, but the particularized individual

       circumstances may be considered as a separate aggravating factor.” Williams v.

       State, 619 N.E.2d 569, 573 (Ind. 1993). Although the trial court did not expand

       on this particular aggravating factor, a reasonable interpretation, based on the

       evidence in the record, is that the trial court viewed the nature of the crime and

       injury to the victim, rather than the elements of the crime itself, as very serious.

       The record reveals that the bullet entered Landrum’s chest three inches from his

       heart and remains lodged in his back and spinal cord because removal of the

       bullet could paralyze him. The trial court did not abuse its discretion with

       respect to this aggravating factor. Even so, Arrington does not challenge the

       trial court’s finding that his criminal history, which is comprised of sixteen

       felonies and ten misdemeanors, was an aggravating circumstance. And a single

       valid aggravating circumstance is adequate to justify an enhanced sentence.

       Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001). Accordingly, we find no

       error.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 27 of 30
[33]   Arrington also maintains that the trial court failed to identify the undue

       hardship of his incarceration on his four children as a mitigating circumstance.

       First, as the State points out, Arrington did not proffer this as a mitigating

       circumstance to the trial court at the sentencing hearing. See Tr., Vol. III at

       196-98. Therefore, Arrington has waived any alleged error with respect to this

       issue. Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006) (defendant

       waived claims of error regarding the trial court’s failure to identify mitigating

       circumstances because the defendant failed to raise them to the trial court at the

       sentencing hearing), trans. denied; see also Bryant v. State, 802 N.E.2d 486, 501

       (Ind. Ct. App. 2004) (failure to present claim that the defendant’s drug abuse

       history should have been a mitigating circumstance rather than an aggravating

       circumstance at the sentencing hearing resulted in waiver on appeal), trans.

       denied.


[34]   Waiver notwithstanding, Arrington’s argument fails. We begin by noting that

       the determination of mitigating circumstances is within the trial court’s

       discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans.

       denied. A trial court is not obligated to accept a defendant’s claim as to what

       constitutes a mitigating circumstance, Weedman, 21 N.E.3d at 893, nor is it

       required to weigh a mitigating factor as heavily as the defendant requests, Field

       v. State, 843 N.E.2d 1008, 1010 (Ind. Ct. App. 2006), trans. denied. “An

       allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 28 of 30
[35]   Indeed, we recognize many families of incarcerated individuals suffer hardship

       as a result of their incarceration. As this court has explained, “[m]any people

       convicted of serious crimes have one or more children, and absent special

       circumstances, trial courts are not required to find that imprisonment will result

       in an undue hardship.” Ware v. State, 816 N.E.2d 1167, 1178 (Ind. Ct. App.

       2004). Arrington has failed to demonstrate that the undue hardship on his

       children involves special circumstances. Cf. Anglin v. State, 787 N.E.2d 1012,

       1018 (Ind. Ct. App. 2003) (no abuse of discretion in failing to consider the

       impact of the defendant’s incarceration on his child as a mitigating

       circumstance where the mother had care and custody of their ill child and there

       was no evidence that the child’s needs would not be met during defendant’s

       incarceration), trans. denied.


[36]   In sum, the trial court properly identified aggravating circumstances and there

       is no evidence in the record revealing special circumstances with respect to the

       undue hardship on Arrington’s children as a result of his incarceration.

       Accordingly, the trial court did not abuse its discretion in sentencing Arrington.



                                              Conclusion
[37]   For the reasons set forth above, we conclude Arrington knowingly, intelligently,

       and voluntarily waived his right to counsel and the State present sufficient

       evidence to support Arrington’s convictions for attempted murder and unlawful

       possession of a firearm by a serious violent felon. We also conclude that the

       trial court did not commit fundamental error when it did not remove the jury

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 29 of 30
       from the courtroom following a State’s witness’ refusal to testify. Finally, the

       trial court did not abuse its discretion in sentencing Arrington. Accordingly,

       the judgment of the trial court is affirmed.


[38]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019   Page 30 of 30
