MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 28 2019, 10:15 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Ashby, February 28, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1200 v. Appeal from the Floyd Superior Court State of Indiana, The Honorable Susan L. Orth, Appellee-Plaintiff Judge Trial Court Cause No. 22D01-1705-F2-980
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 1 of 26 Case Summary [1] A jury found David Ashby guilty of level 2 felony burglary involving the use of
a deadly weapon. He now appeals his conviction, challenging the admission of
certain evidence and claiming that the deputy prosecutor committed
misconduct during closing argument. He also asserts that his thirty-year
sentence is inappropriate in light of the nature of the offense and his character.
Finding that Ashby has failed to establish reversible error in either the
admission of evidence or the deputy prosecutor’s conduct, we affirm his
conviction. Finding that he has failed to meet his burden of demonstrating that
his sentence is inappropriate, we also affirm his sentence.
Facts and Procedural History [2] In the early 2000s, Ashby was living at a halfway house affiliated with Catholic
Charities. Ron Kelly worked in maintenance for Catholic Charities, and as part
of his employment, he supervised crews of residents from the halfway house in
performing maintenance and handyman services at several Catholic churches in
the area. Ashby was one of those crew workers, and over the next four years,
he became one of Ron’s best workers. The two also became good friends, and
Ashby helped Ron with projects and chores at Ron’s rural home. Ashby
performed tasks such as lawn mowing, moving furniture, and hanging
Christmas lights. At some point during the dozen or so times that Ashby
visited Ron’s residence, he saw Ron put large sums of cash inside the coin
boxes of arcade games in his basement. He also became aware of a large safe in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 2 of 26 the master bedroom in which Ron and his wife Tina kept firearms, cash, and
other valuables.
[3] During his time at the halfway house, Ashby met Stephen Blakley. He later
helped Blakley get a job with the construction company where he worked. In
2016, Ashby and Blakley needed money to repay some drug debts, and Ashby
recalled the valuables he had seen at the Kellys’ house. The two men conferred
about robbing the Kellys, and Blakley suggested that they approach Brandon
Langley about helping them commit the home invasion. Because the Kellys’
property was rural and difficult to locate, Ashby drove Blakley to the property.
He also ensured that Blakley and Langley knew the locations of the safe, cash,
silver, firearms, and other valuable personal property within the Kellys’ home.
Blakley and Langley drove to the Kellys’ home a couple times but did not
complete the home invasion because the Kellys were not home and thus could
not provide the necessary keys and/or combinations.
[4] In the predawn hours of July 20, 2016, the Kellys’ neighbor David Herbst saw a
white pickup truck on the side of the road near the Kellys’ home. The engine
was running, and the driver (Blakley) could not be seen. Herbst observed the
pickup for about five minutes. As the pickup pulled away and turned down a
long driveway, Herbst photographed its back end, began to follow it, and
phoned 911 to report a suspicious vehicle.
[5] Shortly thereafter, as Tina was pulling out of her long driveway to go to work,
she heard a loud thump on the back of her vehicle, she turned and saw a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 3 of 26 masked man dressed in tactical gear and carrying a handgun. That man, later
identified as Langley, approached the driver’s side window and ordered Tina to
move to the passenger’s seat. He told her that he intended to go inside to the
safe and the arcade games in her basement. He entered the vehicle and drove it
back into the garage. He ordered Tina into the house, and Tina woke Ron,
who was sleeping on the living room couch. Langley pointed his firearm at
Ron’s head and ordered him up. He searched the buffet and found an envelope
full of cash. He continued to rifle through the buffet, muttering something
about “silver” and saying, “Well, somebody lied to me.” Tr. Vol. 2 at 92.
Meanwhile, Ron unsuccessfully feigned a heart attack in an effort to reach a
firearm that he kept hidden nearby. Langley pulled him up and demanded that
he and Tina lead him to the safe in the bedroom.
[6] In the bedroom, Langley forced the Kellys to sit on the bed and ordered Tina to
provide the combination to the large gun safe and the key to a lockbox within
the safe. Ron attempted to reach toward the nightstand, where he typically kept
a firearm, and Langley struck him in the forehead with the barrel of his
handgun. Ron bled profusely, and Tina used some clothing to apply pressure to
the wound. Langley emptied the safe and lockbox, collecting six firearms,
jewelry, savings bonds, heirlooms, a coin collection, and at least $30,000 in
cash, and stuffed them into pillowcases. He also took Tina’s wedding ring from
her finger.
[7] Langley then forced the Kellys into the basement, where he demanded the cash
that he had been told they kept inside the coin boxes of the arcade games. The
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 4 of 26 boxes were empty. Furious, Langley said that he wanted more money and
jewelry. He then turned his attention toward two televisions that he had been
told to take, but they were too heavy. He took two laptop computers from
upstairs and forced Tina to help him carry the contraband to her vehicle. He
told her that he would leave her vehicle within a mile of her house, and he took
Ron’s truck keys and slashed the tires of their son’s vehicle. He took the Kellys’
cell phones and house phones and drove away in Tina’s vehicle. Tina used an
overlooked house phone to call 911. Police responding to the call determined
that the home invasion was targeted by a person with knowledge not readily
available to the public.
[8] Later that day, Blakley notified Ashby that he and Langley had completed the
home invasion and had gotten money and other items. The two met, and
Blakley gave Ashby a one-third share of the spoils. Three days later, police
located Tina’s vehicle in a wooded ditch not far from their home. Ashby
subsequently sold the coin collection and jewelry to a contact named Charles
Sparkman (“Sparky”) and divided the proceeds three ways. Shortly thereafter,
Langley committed suicide.
[9] Several months later, Ron notified police concerning a letter he received from a
jail inmate offering information about the home invasion in exchange for
$10,000. Floyd County Sheriff’s Department Detective Mark Slaughter
investigated and traced the letter to Blakley. He interviewed Blakley, who
provided specific information concerning the home invasion and Ashby’s role
in it. Detective Slaughter subsequently interviewed Ashby, who confessed to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 5 of 26 his involvement and provided detailed information concerning his sale to
Sparky.
[10] The State charged Ashby with level 2 felony robbery resulting in serious bodily
injury. Ashby filed motions in limine seeking to exclude statements that he
made to Detective Slaughter concerning his prior drug use and halfway house
residency, as well as certain statements that Blakley made to the detective. The
trial court conducted a hearing on Ashby’s motions and granted the motions in
part as to Ashby’s own statements and ordered certain redactions to the
videotaped interview. The court otherwise denied the motions, with the stated
intention of ruling on the remainder of the challenged evidence when offered
during Ashby’s jury trial.
[11] The State amended the information to add one count of level 2 felony burglary
involving the use of a deadly weapon and to downgrade the robbery count to a
level 3 felony. A jury found Ashby guilty of level 2 felony burglary involving
the use of a deadly weapon and not guilty on the robbery count. The trial court
sentenced him to a thirty-year executed term. Ashby now appeals his
conviction and sentence. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The trial court acted within its discretion in admitting evidence concerning Ashby’s drug use. [12] Ashby challenges the trial court’s admission of statements that he made to
Detective Slaughter related to his drug use. We review evidentiary rulings for
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 6 of 26 an abuse of discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d
578, 581 (Ind. 2015). An abuse of discretion occurs when the trial court’s ruling
is either clearly against the logic and effect of the facts and circumstances before
it or the court misinterprets the law. Id. In determining whether improperly
admitted evidence has prejudiced the defendant, we assess the probable impact
of that evidence on the jury in light of all the other properly admitted evidence.
Id. If independent, properly admitted evidence of guilt supports the conviction,
the error is harmless. Id.
[13] Ashby claims that evidence concerning his drug use is inadmissible as evidence
of prior bad acts. The trial court addressed this issue during the hearing on
Ashby’s motions in limine and ordered certain redactions to his videotaped
statement. During his trial, Ashby renewed his objection to unredacted
statements related to his drug use. Indiana Evidence Rule 404(b) reads,
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. 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.
(2) Permitted Uses; Notice in a Criminal Case. 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. On request by a defendant in a criminal case, the prosecutor must:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 7 of 26 (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.
In assessing the admissibility of Rule 404(b) evidence, the trial 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
pursuant to Indiana Evidence Rule 403. Luke v. State, 51 N.E.3d 401, 416 (Ind.
Ct. App. 2016), trans. denied. Rule 403 states, “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.”
[14] Ashby claims that the trial court improperly admitted evidence that he owed a
sizable debt related to his use of methamphetamine. The State did not offer the
evidence to show that Ashby participated in the burglary; rather, it offered the
evidence to show why he participated in the burglary. In other words, the
evidence addressed his motive, which is a permitted use under Rule 404(b)(2).
Ashby needed money immediately because he had a substantial drug-related
debt of approximately $7400; he planned the home invasion to obtain large
sums of money to pay that debt. Such was the extent of the evidence presented
on the topic of his drug use, as the State redacted from Ashby’s statement all
other information concerning his propensity to commit criminal acts. The high
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 8 of 26 probative value of the drug-debt evidence, used to establish motive, was not
substantially outweighed by a danger of unfair prejudice. Thus, the trial court
acted within its discretion in admitting the evidence.
Section 2 – Ashby failed to demonstrate fundamental error in the trial court’s admission of his former residency at a halfway house. [15] Ashby also maintains that the trial court abused its discretion in admitting his
statements to Detective Slaughter concerning his former residency at a halfway
house. Although he now challenges the admissibility of the evidence on Rule
404(b) grounds, he failed to object when the halfway house information was
introduced during trial and must therefore establish fundamental error.
Fundamental error is an extremely narrow exception to the waiver rule and
exists only where the trial court’s errors are so prejudicial that they make a fair
trial impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).
[16] With respect the halfway house evidence, we note that the State did not offer it
to show that Ashby had a propensity to commit burglary. Instead, the State
offered the evidence to establish knowledge, identity, and plan, all acceptable
uses under Rule 404(b)(2). Ashby’s residency at the halfway house was more of
a status than a prior bad act, but to the extent that it implicates some kind of
prior bad act, we note that it was highly probative in giving context to Ashby’s
relationships with Ron and Blakley, both of whom he met because of his
residency there. The blossoming friendship between Ashby and Ron had its
roots in Ashby’s community service work that he performed as a member of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 9 of 26 Ron’s maintenance crew. The friendship precipitated the invitations to the
Kellys’ home, where Ashby learned both the extent and the locations of their
various valuables. Investigators readily determined that the home invasion had
been targeted, and this evidence is highly probative on this issue. The State did
not belabor the circumstances surrounding Ashby’s residency at the halfway
house but merely used it to corroborate other evidence establishing identity,
knowledge, and plan. Thus, the danger of unfair prejudice was substantially
outweighed by the probative value of this evidence. Based on the foregoing, we
find no error, fundamental or otherwise, in the trial court’s admission of this
evidence.
Section 3 – We find no reversible error in the trial court’s admission of statements made to police by out-of-court declarants. [17] Ashby also claims that the trial court abused its discretion in admitting
Detective Slaughter’s testimony concerning Blakley’s and Sparky’s statements
to him regarding Ashby’s participation in the burglary and possession of
contraband, respectively. He asserts that the statements are inadmissible on
hearsay grounds. See Ind. Evidence Rule 802 (“Hearsay is not admissible
unless these rules or other lase provides otherwise.”); see also Harrison v. State, 32
N.E.3d 240, 254 (Ind. Ct. App. 2015) (hearsay is generally inadmissible), trans.
denied. Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. Ind. Evidence Rule 801(c). “The erroneous admission of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 10 of 26 hearsay testimony does not require reversal unless it prejudices the defendant’s
substantial rights.” Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
[18] Noting that neither Blakley nor Sparky testified at trial, Ashby asserts that their
statements, as relayed by Detective Slaughter, are inadmissible hearsay and
their admission violated his constitutional rights to confrontation and cross-
examination. The State counters that Detective Slaughter’s testimony, placed
in context, was not offered for the truth of the matters that Blakley and Sparky
asserted but merely reflects a narrative concerning the detective’s course of
investigation of the crime. “Out-of-court statements made to law enforcement
are non-hearsay if introduced primarily to explain why the investigation
proceeded as it did.” Id. at 565.
[19] With respect to Blakley, Ashby challenges Detective Slaughter’s testimony that
Blakley willingly “identified other individuals that were involved in the
robbery,” and that “there was some lead information … that identified …
Ashby as … one of the individuals that was involved … initially.” Tr. Vol. 2 at
154. The detective explained that “[Blakley] mentioned Ashby, he mentioned
himself, and an individual with the last name of Langley.” Id. He also testified
that “Blakley had provided a [nick]name of an individual of where the stolen
coins and jewelry were sold.” Id. The detective explained his methods of
pursuing leads and corroborating Blakley’s assertions through independent
investigation, e.g., Langley’s suicide a couple months after the Kelly home
invasion and the sale of certain coins and specific pieces of jewelry to Sparky,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 11 of 26 who had a booth at the Shepherdsville, Kentucky, Flea Market. Tr. Vol. 2 at
155-57.
[20] Blakley’s statements prompted Detective Slaughter to contact the flea market to
corroborate Sparky’s existence and determine his actual identity. This
information led to an interview of Sparky at his home. Sparky indicated that of
Blakley, Langley, and Ashby, he knew only Ashby. He also confirmed that he
purchased jewelry and coins from Ashby for seven to eight thousand dollars
total. Id. at 158-59. The detective followed up on the information provided by
Sparky and found specific jewelry items and coins stolen from the Kellys, which
Sparky had sold to Louisville Numismatic. Id. at 159-60.
[21] Ashby specifically challenges Sparky’s statement to Detective Slaughter
confirming that he bought the coins and jewelry from Ashby. As with Blakley’s
statements, Ashby challenges those of Sparky’s statements that he claims
implicate him as part of the Kelly home invasion, and the State contends that
the statements are not hearsay because they explain the detective’s course of
investigation.
[22] When the State offers evidence to explain an officer’s course of investigation,
“[t]he ultimate inquiry is: Was the out-of-court statement used primarily to
show the truth of its content, constituting inadmissible hearsay, or merely to
explain subsequent police action, excluded from hearsay?” Blount, 22 N.E.3d at
566. “The possibility [that] the jury may wonder why police pursued a
particular path does not, without more, make course-of-investigation testimony
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 12 of 26 relevant. Indeed, such testimony is of little value absent a direct challenge to
the legitimacy of the investigation.” Id. at 565 (citation omitted).
[23] In Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994), our supreme court articulated
the following three-part test to make such determinations:
1. Does the testimony or written evidence describe an out-of- court statement asserting a fact susceptible of being true or false?
If the statement contains no such assertion, it cannot be hearsay and the objection should be overruled. If the out-of-court statement does contain an assertion of fact, then the Court should consider the following before ruling:
2. What is the evidentiary purpose of the proffered statement?
.... If the evidentiary purpose is to prove a fact asserted, and such purpose is not approved under Evid. R. 801(d),[1] then the hearsay objection should be sustained, unless the statement fits an exception to the hearsay rule.
If the proponent of the statement urges a purpose other than to prove a fact which is asserted, then the Court should consider the following before ruling:
3. Is the fact to be proved under the suggested purpose for the statement relevant to some issue in the case, and does any danger of prejudice outweigh its probative value?
1 Indiana Evidence Rule 801(d) lists statements that are not hearsay, e.g., certain statements by a declarant- witness or an opposing party.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 13 of 26 .... If the fact sought to be proved under the suggested non- hearsay purpose is not relevant, or it is relevant but its danger of unfair prejudice substantially outweighs its probative value, the hearsay objection should be sustained.
Blount, 22 N.E.3d at 566-67 (quoting Craig, 630 N.E.2d at 211).
[24] Here, Blakley’s statement implicated Ashby as being involved in the Kelly
home invasion, and Sparky’s statement implicated Ashby as the person who
sold him the coins and jewelry eventually determined to belong to the Kellys.
These statements were susceptible of being true or false. As for the evidentiary
purpose of the statements, the State asserts that it offered the statements merely
to explain the detective’s course of investigation, not for the truth of the matter
asserted. Because the State suggested a non-hearsay purpose, we must
determine whether the probative value of the statements is substantially
outweighed by the danger of unfair prejudice. The challenged statements
answered the question as to how Detective Slaughter connected the dots to
Ashby’s involvement in the crime. The legitimacy of Detective Slaughter’s
investigation was not in issue, and as such, the danger of unfair prejudice from
Blakley’s and Sparky’s statements as to Ashby’s involvement substantially
outweighed the probative value as to the investigation. Without some
“reasonable level of assurance” that the jury did not consider the statements as
evidence of the truth of the matter asserted, such as through an “immediate
limiting instruction from the court …. we cannot be sure that they were
considered only for their urged non-hearsay purpose.” Blount, 22 N.E.3d at 568
(citing Williams v. State, 544 N.E.2d 161, 162-63 (Ind. 1989)). Having no such
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 14 of 26 assurance here, we conclude that the trial court abused its discretion in
admitting Detective Slaughter’s testimony concerning Blakley’s and Sparky’s
statements.
[25] Notwithstanding, a violation of the right to confront and cross-examine
witnesses does not require reversal if the State can show beyond a reasonable
doubt that the error did not contribute to the verdict. Koenig v. State, 933
N.E.2d 1271, 1273 (Ind. 2010). This harmless error analysis requires
consideration of factors such as the importance of the testimony to the State’s
case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony on material points, the
extent of cross-examination otherwise permitted, and the overall strength of the
State’s case. Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1974)).
[26] Ron and Tina testified in detail concerning the home invasion, including the
masked perpetrator’s intimate and specific knowledge of the nature, extent, and
location of specific valuables. Ron testified that Ashby had spent time in his
home and was aware of the location of the safe and of his practice of stashing
money in the coin boxes of his arcade games in the basement. Responding
officer Thad Neafus testified that he believed the Kelly home had been targeted
by someone with knowledge not available to the general public. Ron’s
daughter Tiffany testified concerning an encounter with Ashby before the home
invasion, pursuant to which Ashby became aware that her parents were still
living at the home that he had previously visited. Detective Slaughter provided
extensive information not linked to the improperly admitted statements
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 15 of 26 independently corroborating Ashby’s guilt. Most significantly, Ashby’s
confession included in-depth information concerning his motive and level of
involvement in the home invasion. State’s Ex. 100. Based on the foregoing, we
conclude that Ashby’s conviction is sufficiently supported by independent
evidence of guilt such that the improperly admitted hearsay statements did not
contribute to the jury’s verdict. We therefore find no reversible error in the
improper admission of the challenged statements.
Section 4 – Ashby has failed to establish fundamental error concerning the deputy prosecutor’s statements during closing argument. [27] Ashby also maintains that he is entitled to reversal due to alleged prosecutorial
misconduct during closing argument.
In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 16 of 26 Stettler v. State, 70 N.E.3d 874, 881-82 (Ind. Ct. App. 2017) (citations and
quotation marks omitted) (quoting Ryan, 9 N.E.3d at 667), trans. denied.
[28] Where a defendant fails to request an admonishment to the jury or move for a
mistrial after objecting to a prosecutor’s alleged misconduct, he must
demonstrate fundamental error on appeal. Ryan, 9 N.E.3d at 667-68. “Before
prosecutorial misconduct can be found to have resulted in fundamental error,
we must first determine whether misconduct has occurred.” Seide v. State, 784
N.E.2d 974, 977 (Ind. Ct. App. 2003). In so doing, we consider the
prosecutor’s remarks in the context of the argument as a whole. Id.
[29] The deputy prosecutor’s closing argument included the following assessment of
Ashby’s responses during Detective Slaughter’s interview:
I’m saying that [Ashby], uh, knows or-or demonstrated proficiency in this of the way not to say much of anything, but I’m doing that to show you that in this interview, he’s not giving him the answer. Coming, uh, for instance, uh, after a simple “no” question that was asked by, uh, Detective Slaughter, Ashby says, “That’s what, I even asked if he’s done that.” “If...” I, being Ashby, “I even asked if he...” Blakley, “...has done that.” What’s he talking about? He’s talking about a burglary/robbery. And Steve, which is Blakley, says, “I got somebody that-that’ll do it.” Now more Ashby speak. What are we talking about? What-what is the do, and what is the it? Since he won’t tell you, I will. Burglary and robbery. What does this mean in the context of aiding in the commission of-of the L2 burglary and the L3 robbery?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 17 of 26 Tr. Vol. 2 at 233 (emphasis added). Ashby objected, claiming that the
highlighted phrase amounted to an improper reference to his decision to assert
his Fifth Amendment right not to testify. The trial court noted that it did not
interpret the statement as a reference to Ashby’s decision not to testify;
nevertheless, the court admonished the jury to disregard the statement.
Immediately thereafter, the deputy prosecutor attempted to provide context and
clarification, explaining, in relevant part,
Ladies and gentlemen, and for the last hour I have been talking exclusively about the transcript that was produced and was played in open court, uh, from State’s Exhibit No. 100. The reference that-that I made then, and have made consistently, comes from this statement. In this statement, ladies and gentlemen, Dave Ashby re-report-reported, “I even asked if he’s done that.” Stephen … Blakley, said, “I got somebody that’ll do that.” Now, in this statement, he’s not telling us what is the do and what is the it. I am suggesting to you by way of closing argument that that is referring to burglary and robbery at the Kelly residence. That is the plan.
Id. at 234-35.
[30] Ashby did not move for a mistrial. As such, he must demonstrate fundamental
error. He asserts that fundamental error occurred, citing as support Reynolds v.
State, 797 N.E.2d 864, 866 (Ind. Ct. App. 2003), and Herron v. State, 801 N.E.2d
761, 764 (Ind. Ct. App. 2004). A prosecutor’s direct comment on the
defendant’s exercise of his right against self-incrimination amounts to
fundamental error. Reynolds, 797 N.E.2d at 869-70. In Reynolds, the prosecutor
directly referenced the defendant’s decision not to testify at trial. See Id. at 868
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 18 of 26 (“He takes the 5th Amendment. You take the 5th Amendment when you got
something to be concerned about …. So in order for that to apply you have to
have done something to incriminate yourself.”). The Reynolds court held that
the prosecutor’s statements amounted to fundamental error. Id. at 869. In
Herron, the alleged misconduct was twofold: first, during direct examination of
the victim, when the prosecutor asked him what question he would like to ask
the defendant, Herron objected, and the court sustained the objection; second,
during closing argument, the prosecutor said, “members of the jury, right over
there at that table, that’s the only one in the courtroom that can certainly tell us
where that gun is.” 801 N.E.2d at 765. The Herron court held that because the
prosecutor’s comment could reasonably be interpreted to suggest that it was the
defendant’s invocation of his Fifth Amendment privilege that prevented the
State from producing the weapon, it amounted to fundamental error. Id. at
766. We find these cases distinguishable.
[31] Here, we find that when taken in context, the deputy prosecutor’s statement
amounts to an isolated reference not to Ashby’s decision not to testify at trial
but merely to Ashby’s use of the vague terms “do” and “it” during his interview
with Detective Slaughter. See State’s Ex. 100. As such, this case is more
analogous to Bryant v. State, 41 N.E.3d 1031, 1036 (Ind. Ct. App. 2015), where
another panel of this Court found that the prosecutor’s comments did not
explicitly refer to the defendant’s decision not to testify and were, at most, a
comment on an arguable weakness of one of the exhibits.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 19 of 26 [32] Overwhelming independent evidence presented at Ashby’s trial supported a
reasonable inference that the terms “do” and “it” were synonymous with
completing the home invasion/burglary, thus rendering any error harmless.
Even if the challenged statement could be deemed an indirect implication
concerning Ashby’s failure to testify at trial, the trial court properly admonished
the jury to disregard the statement, and the deputy prosecutor clarified that his
remarks were limited to the context of Ashby’s responses in his interview with
Detective Slaughter. See Johnson v. State, 901 N.E.2d 1168, 1173 (Ind. Ct. App.
2009) (“where the trial court adequately admonishes the jury, such
admonishment is presumed to cure any error that may have occurred.”).
Additionally, the trial court specifically instructed the jury not to consider
Ashby’s decision to assert his constitutional protection against self-
incrimination. See Appellant’s App. Vol. 2 at 130 (final instruction 21: “No
defendant may be compelled to testify. A defendant has no obligation to testify.
The Defendant did not testify. You must not consider that in any way.”); see
also Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (when jury is properly
instructed, we presume they followed such instruction); and Bryant, 41 N.E.3d
at 1035 (trial court’s final instructions held sufficient to cure any misconduct in
prosecutor’s isolated remark). Simply put, any error in the deputy prosecutor’s
statements was cured by his clarification as well as the trial court’s admonition
and final instruction. As such, we conclude that Ashby has failed to
demonstrate error, let alone error so prejudicial as to make a fair trial
impossible.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 20 of 26 Section 5 – Ashby has failed to meet his burden of demonstrating that his sentence is inappropriate in light of the nature of his offense and his character. [33] Ashby asks that we review and revise his sentence pursuant to Indiana
Appellate Rule 7(B), which states that we “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, [this] Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” When a defendant requests appellate review and
revision of his sentence, we have the power to affirm or reduce the sentence.
Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our
principal role is to leaven the outliers, focusing on the length of the aggregate
sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.
2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for
consideration of all aspects of the penal consequences imposed by the trial court
in sentencing, i.e., whether it consists of executed time, probation, suspension,
home detention, or placement in community corrections, and whether the
sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581
(quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied
(2014)). The defendant bears the burden of persuading this Court that his
sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d
1174, 1181 (Ind. 2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 21 of 26 [34] In considering the nature of Ashby’s offense, “the advisory sentence is the
starting point the Legislature has selected as an appropriate sentence.” Green v.
State, 65 N.E.3d 620, 637-38 (Ind. Ct. App. 2016), trans. denied (2017). When
determining the appropriateness of a sentence that deviates from an advisory
sentence, we consider whether there is anything more or less egregious about
the offense as committed by the defendant that “makes it different from the
typical offense accounted for by the legislature when it set the advisory
sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). Ashby
was convicted of level 2 felony burglary while armed with a deadly weapon. A
level 2 felony carries a sentencing range of ten to thirty years with an advisory
term of seventeen and one-half years. Ind. Code § 35-50-2-4.5.
[35] In asking that we reduce his sentence to the advisory term, Ashby essentially
requests that we evaluate only the nature of his role in the burglary rather than
the nature of the burglary itself. In other words, he emphasizes that since he
was not present at the burglary, he should not be saddled with a sentence that
accounts for the use of a deadly weapon or the injury Ron suffered when
Langley struck him in the head with the barrel of a firearm. He characterizes
his role as simply having pitched the idea to commit the burglary and then
being unaware of its actual commission. We do not believe that Ashby’s role
was as limited as he suggests.
[36] Ashby needed money to pay off a methamphetamine debt. He not only had the
idea to target the Kellys but also drove Blakley to the Kellys’ rural home to
ensure that Blakley and Langley could find it and execute the burglary. He
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 22 of 26 knew that his confederates had driven to the Kellys’ property a couple times but
had not completed the burglary because the Kellys were not home. He
understood that the Kellys needed to be present to open the safe and arcade
game cash boxes for the burglar(s). This knowledge, combined with his
knowledge that the Kellys had firearms in their home, underscores his
awareness that the offense could be dangerous and confrontational. He was the
only one of the three confederates who had knowledge concerning the specific
locations within the home where the Kellys stored large sums of cash and
valuables. Langley made various statements during the burglary indicating that
he had been instructed as to what to take and precisely where to find cash and
other valuables such as silver, firearms, and televisions. After the burglary,
Ashby shared an equal one-third portion of the spoils, and when he
subsequently sold some of the contraband to Sparky, he shared the proceeds
with his confederates.
[37] In short, Ashby not only facilitated the crime against the Kellys but also was
considered an equal partner in it from beginning to end. As such, we are
unpersuaded by his claim that he should not have been sentenced based on the
overall nature of the offense, which was a dangerous, confrontational home
invasion that included violence on one of the victims. The nature of the offense
does not militate toward reducing Ashby’s sentence.
[38] Likewise, Ashby’s character does not militate toward a shorter sentence. We
conduct our review of his character by engaging in a broad consideration of his
qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 23 of 26 grounds on reh’g, 11 N.E.3d 571. “When considering the character of the
offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,
47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). The
presentence investigation report shows Ashby to be a drug addict who steals to
support his habit. He began consuming alcohol at age twelve and was a regular
drinker for more than a decade. He began smoking marijuana at age thirteen
and, in his early twenties, used marijuana and cocaine regularly. He has used
methamphetamine regularly for nearly two decades and began using pain
medications in his mid thirties. Since age thirty-six, the now forty-three-year-
old Ashby has amassed an extensive criminal record. He admitted to crime
sprees in Kentucky that resulted in twenty-four burglary convictions, for which
he received concurrent ten-year sentences. He has multiple convictions for drug
trafficking and possession and has been incarcerated a total of six or seven
times. His record also reflects at least three probation violations and a
smattering of convictions for theft, assault, illegal handgun possession, and
nonsupport of a dependent. Despite his history of drug-related offenses, his
only substance abuse treatment was two decades ago and comprised only thirty
days. Instead of seeking help, he continued to use drugs and incur debt that has
precipitated his need for quick cash and his continued cycle of criminal
conduct. Ashby’s lack of self-control underscores his need for structure and
treatment within the constraints of the Department of Correction.
[39] The record also reflects a betrayal of trust between Ashby and the victims. As
discussed, Ashby met Ron while performing community service as a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 24 of 26 maintenance worker under Ron’s supervision. Ron befriended Ashby, and the
friendship progressed after Ashby was released from the halfway house. This
led to invitations to the Kellys’ home, where Ashby gained information
concerning the locations of their valuables. He subsequently used this
information to target the Kellys for burglary, and his confederates made use of
the information to maximize the spoils of the burglary. Rather than merely
socializing with his new friends, Ashby took note of their valuables and took
advantage of their kindness. This reflects negatively on his character.
[40] Ashby claims that he never intended for Ron to get injured during the burglary.
To the extent that this reflects remorse indicative of upstanding character, we
note that the trial court identified Ashby’s expressions of remorse as a mitigator
during sentencing but sentenced him to the maximum allowable term. Trial
courts are uniquely situated to observe a defendant and can best determine
whether his remorse is genuine. Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct.
App. 2012), trans. denied. We defer to the trial court in this regard, but we
observe that Ashby’s attempts to deflect blame belie his remorse claims. See,
e.g., Appellant’s App. Vol. 2 at 143 (Ashby’s statement to probation officer
portraying Ron as “just as sinister as the defendants.”).
[41] In sum, Ashby has failed to meet his burden of demonstrating that his sentence
is inappropriate in light of the nature of the offense and his character.
Accordingly, we affirm his sentence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 25 of 26 [42] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1200 | February 28, 2019 Page 26 of 26