Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MARJORIE LAWYER-SMITH
Deputy Attorney General
Indianapolis, Indiana
FILED
IN THE Dec 13 2012, 9:18 am
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
JOSEPH MAJORS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1205-CR-433
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-1201-FA-5139
December 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Joseph Majors appeals his convictions for Attempted Murder 1 and Carrying a
Handgun without a License, 2 as well as the sentence imposed by the trial court. Majors
presents the following restated issues for review:
1. Did the admission of testimony from two police officers concerning
statements made by a witness constitute fundamental error?
2. Did the trial court erroneously impose a sentencing enhancement under
Ind. Code Ann. § 35-50-2-11 (West, Westlaw current through 2012
Second Regular Session)?
3. Is Majors’s sentence inappropriate in light of the nature of the offense
and the character of the offender?
We affirm in part, reverse in part, and remand with instructions.
On the evening of January 22, 2012, Georgio Finney and his girlfriend, Paris Avant,
were visiting with some of Finney’s friends at a home in Marion County. Shortly after
Finney and Avant got there, Majors arrived and was let into the house by one of Finney’s
friends. Majors then walked to the table where Finney was sitting and shot him twice in the
face at close range. Avant ran to Finney’s aid and called 911 while the other occupants of the
home fled. When police arrived, Avant told them that “Joe” had shot Finney. Transcript at
70. After Avant called Finney’s cousin to find out the shooter’s last name, she told police it
was Majors. Finney survived the shooting, but he is in a coma and not expected to recover.
The State charged Majors with class A felony attempted murder, carrying a handgun
without a license as a class A misdemeanor, and a separate count alleging that the handgun
1
Ind. Code Ann. § 35-42-1-1 (West, Westlaw current through 2012 Second Regular Session); Ind. Code Ann. § 35-41-5-
1 (West, Westlaw current through 2012 Second Regular Session).
2
Ind. Code Ann. § 35-47-2-1 (West, Westlaw current through 2012 Second Regular Session); I.C. § 35-47-2-23 (West,
Westlaw current through 2012 Second Regular Session).
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offense was elevated to a felony due to Majors’s prior conviction for carrying a handgun
without a license. The State also filed a sentence enhancement count alleging that Majors
had used a firearm in the commission of a felony under Indiana Code Article 35-42 that
resulted in death or serious bodily injury. Following a two-day jury trial, Majors was found
guilty of attempted murder and carrying a handgun without a license as a class A
misdemeanor. Then, after a bifurcated trial, Majors was found guilty of the enhancement
counts. The trial court sentenced Majors to forty-five years for attempted murder, enhanced
by five years for using a firearm, and a concurrent term of two and one-half years for
carrying a firearm without a license. This appeal ensued.
1.
Majors first argues that the trial court abused its discretion in admitting testimony
from two police officers concerning statements Avant made to them when they responded to
the scene of the shooting. Majors concedes, however, that he did not object to the testimony
at trial. Therefore, unless he can show that fundamental error occurred, the issue is waived.
See Caron v. State, 824 N.E.2d 745 (Ind. Ct. App. 2005), trans. denied.
The fundamental error doctrine serves, in extraordinary circumstances, to
permit appellate consideration of a claim of trial error even though there has
been a failure to make a proper contemporaneous objection during the course
of a trial, which failure would ordinarily result in procedural default as to the
claimed error. The doctrine applies to those errors deemed “so prejudicial to
the rights of a defendant as to make a fair trial impossible.”
Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009) (quoting Barany v. State, 658 N.E.2d 60,
64 (Ind. 1995)).
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At trial, Avant testified that she saw Majors shoot Finney. Thereafter, Indianapolis
Metropolitan Police Officers Jason Norman and David Drennan both testified that when they
responded to the scene of the shooting, Avant told them that “Joe” or “Joe Majors” had shot
Finney. Transcript at 156, 167. Additionally, Detective Grace Lopez testified that another
officer told her that Avant identified the shooter as “Joe.” Id. at 209. On appeal, Majors
argues that these statements were inadmissible hearsay and amounted to “drumbeat
repetition” of Avant’s accusation against Majors. Appellant’s Brief at 7.
Assuming arguendo that the statements were improperly admitted, Majors has not
established fundamental error. The officer’s statements were merely cumulative of Avant’s
testimony that she saw Majors shoot Finney, and Majors has not established that the alleged
harm resulting from the repetition of Avant’s statements by police was so serious as to make
a fair trial impossible. Accordingly, Majors has not established reversible error in this
regard.
2.
Next, Majors argues that the trial court erred in imposing a sentencing enhancement
pursuant to I.C. § 35-50-2-11, which allows the trial court to enhance a sentence by five years
if the defendant used a firearm in the commission of “an offense.” For the purposes of I.C. §
35-50-2-11, an offense is defined in relevant part as “a felony under IC 35-42 that resulted in
death or serious bodily injury[.]” Here, the State alleged that Majors knowingly or
intentionally used a firearm in the commission of attempted murder.
In Crawford v. State, 755 N.E.2d 565 (Ind. 2001), our Supreme Court noted that no
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part of Ind. Code Art. 35-42 defined the crime of attempted murder and, consequently,
attempted murder is not an “offense” for the purposes of I.C. § 35-50-2-11. Accordingly, no
enhancement may be attached to the crime of attempted murder pursuant to that statute. Id.
The State acknowledges the holding in Crawford v. State, and concedes that imposition of
the sentencing enhancement in this case was error. We therefore reverse and remand with
instructions to vacate the sentencing enhancement.
3.
Finally, we address Majors’s argument that his sentence is inappropriate in light of the
nature of the offense and his character. Article 7, section 4 of the Indiana Constitution grants
our Supreme Court the power to review and revise criminal sentences. Pursuant to Ind.
Appellate Rule 7, the Supreme Court authorized this court to perform the same task.
Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we may revise a sentence
“if, after due consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” Wilkes
v. State, 917 N.E.2d 675, 693 (Ind. 2009), cert. denied, 131 S.Ct. 414 (2010). However, “we
must and should exercise deference to a trial court’s sentencing decision, both because Rule
7(B) requires us to give ‘due consideration’ to that decision and because we understand and
recognize the unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).
Whether we regard a sentence as appropriate “turns on our sense of the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad other factors
5
that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
Furthermore, “[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each
case.” Id. at 1225. Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). “When a defendant
requests appellate review and revision of a criminal sentence, an appellate court has the
power to affirm, reduce, or increase the sentence.” Akard v. State, 937 N.E.2d 811, 813 (Ind.
2010).
Majors committed attempted murder, a class A felony, and was sentenced to forty-five
years on that count. For crimes classified as class A felonies, the legislature has prescribed a
sentencing range of twenty to fifty years, with an advisory sentence of thirty years. I.C. § 35-
50-2-4 (West, Westlaw current through 2012 Second Regular Session). Majors also received
3
a concurrent two and one-half year sentence for carrying a handgun without a license.
3
Although the issue is not raised by either party, we note that Majors was originally charged with carrying a handgun
without a license as a class C felony based on his prior misdemeanor conviction for carrying a handgun without a license.
Prior to the second phase of the trial, however, the State indicated that the charging information contained a scrivener’s
error, and that the offense was elevated to a class D felony based on Majors’s prior conviction. Transcript at 416. The
State moved to amend the charging information to reflect that the offense was a class D felony, and the motion was
granted with Majors’s agreement. Id. at 417. The jury then returned a guilty verdict on the amended charge, and
conviction was entered as a class D felony. Id. at 432; Appellant’s Appendix at 19. Pursuant to statute, however,
Majors’s prior conviction elevated the handgun offense in this case to a class C felony. See I.C. 35-47-2-23. The entry
of conviction and sentence as a class D felony, however, could only have benefitted the defendant, and because the State
invited any error in the entry of conviction as a class D felony, it would not be entitled to reversal on this basis. Wright v.
State, 828 N.E.2d 904, 907 (Ind. 2005) (noting that under the doctrine of invited error, “‘a party may not take
advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or
misconduct.’” (quoting Witte v. Mundy, 820 N.E.2d 128, 133-34 (Ind. 2005)). And because the sentence on
6
Thus, without the erroneous five-year sentence enhancement, Majors received an aggregate
sentence of forty-five years.
Both Majors and the State argue that sentence revision is warranted. Majors argues
that his sentence should be reduced to the thirty-year advisory sentence for attempted murder
because his relatively minor criminal history reflects well on his character and because long-
term incarceration will result in hardship to his child, who had not yet been born at the time
of Majors’s sentencing. For its part, the State argues that Majors’s sentence should be
increased to the fifty-year maximum for attempted murder because the nature of the offense
was particularly heinous, the injuries suffered by the victim are severe, and Majors has
demonstrated a pattern of criminal behavior. For the reasons set forth below, we decline both
invitations to revise Majors’s forty-five year sentence.
Considering the nature of the offense, we note that Majors’s crime was particularly
violent and disturbing. Avant testified that Majors entered the home, walked to the table
where Finney was sitting, and, without any apparent provocation, pulled out a gun and shot
him twice in the face, at close range in the presence of multiple witnesses. We note further
that Finney and his family have suffered tremendously and continue to suffer as Finney
remains incapacitated and close to death.
Turning to the character of the offender, we note that Majors has a lengthy history of
criminal and delinquent behavior. In 2001, at thirteen years of age, Majors was alleged to be
the handgun offense was ordered to be served concurrently with the sentence for attempted murder, the length
of Majors’s aggregate sentence is not affected.
7
a delinquent child for committing an act that would be class D felony theft if committed by
an adult; the case was closed after Majors successfully completed a diversion program. This
early brush with the law and opportunity for rehabilitation, however, did not prevent Majors
from continuing to offend. In 2004, Majors was again adjudicated a delinquent child for
committing acts that would be class D felony battery and class B misdemeanor disorderly
conduct if committed by an adult. In 2005, Majors was again adjudicated a delinquent child
for committing acts that would constitute dealing in marijuana and possession of marijuana,
both class A misdemeanors, if committed by an adult.
As an adult, Majors has been convicted of several misdemeanors, including resisting
law enforcement, battery, carrying a handgun without a license, and possession of marijuana.
Majors has also been convicted of class D felony possession of marijuana, and on the date of
his sentencing in this matter, he entered a plea of guilty to another count of class D felony
possession of marijuana charged under a separate cause number. Additionally, Majors’s
probation has been revoked on three separate occasions. Majors acknowledges this history,
but argues that it is dissimilar from the current offenses and that a long term of imprisonment
will result in a hardship to his child.
Although we are sensitive to the likelihood that Majors’s child will be affected
negatively by his incarceration, the same is true of nearly every child with an incarcerated
parent. In any event, it is unclear to us how this hardship bears on the nature of the offense
or reflects positively on Majors’s character. And although Majors’s previous convictions are
considerably less serious than the current offenses, they evince a pattern of criminal conduct
8
that has not been deterred through prior efforts at rehabilitation. Having considered the
nature of the offense and the character of the offender, we cannot conclude that the forty-five
year aggregate sentence imposed in this case is inappropriate. Accordingly, we decline both
Majors’s and the State’s requests for sentence revision.
Judgment affirmed in part, reversed in part, and remanded with instructions.
NAJAM, J., and BRADFORD, J., concur.
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