MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 29 2016, 8:16 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Gregory F. Zoeller
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deandre Moore, July 29, 2016
Appellant-Defendant, Court of Appeals Case No.
82A04-1511-CR-1922
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1509-F3-5620
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Deandre Moore was convicted of armed robbery,
criminal confinement while armed with a deadly weapon, attempted armed
robbery, attempted battery by means of a deadly weapon, and pointing a
firearm at another person. The trial court sentenced Moore to an aggregate
sentence of twenty years in the Indiana Department of Correction. Moore
appeals his convictions, raising two issues for our review, which we restate as:
(1) whether the trial court erred in admitting certain evidence, and (2) whether
the trial court erred in not giving a discrete answer to two questions from the
jury during deliberations. Concluding the trial court did not err in admitting
evidence and in not providing a discrete answer to the jury’s questions, we
affirm.
Facts and Procedural History
[2] Around 7:00 p.m. on December 22, 2014, an individual, with part of his face
masked, entered a St. Vincent de Paul thrift store in Evansville, pointed a gun at
store employee Asuncion Gibson, and ordered Gibson to open the cash register.
When Gibson was unable to open the register, the individual attempted to
discharge his weapon, but it jammed. The individual immediately fled the
scene. Sandra Lohman, another store employee, described the individual as
5’7” or 5’8” tall, noting he had pretty eyes, but Gibson described the
individual’s eyes as “mean” and “dark.” Transcript at 716, 725.
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[3] Seven hours later, an individual, with part of his face masked, entered a
Kangaroo Express gas station in Evansville, pointed a gun at store employee
Amy Webster, forced her to the back of the gas station, and demanded money.
The individual also pointed his weapon at Donald Wineinger, another store
employee. Webster gave the individual approximately $350 from the cash
register. After a customer threatened to call police, the individual fled the
scene. Webster described the individual as 5’3” or 5’4” with “pretty” and
“dark” eyes. Id. at 313, 318. Wineinger described the individual as 5’10” tall.
Reid Craig, a customer present during the robbery, believed the individual
stood between 5’5” and 5’9”.
[4] On January 11, 2015, Webster recognized the individual who robbed the gas
station, later identified as Moore, at a plasma donation center based on Moore’s
eyes, voice, and build. Webster immediately called police and Moore was
detained. The following exchange occurred between Moore and an investigator
regarding Webster’s claim Moore was the individual who robbed the gas
station:
[Investigator:] Well, like I told you, when you were at the
Plasma Center while you was in there she said that you were the
one that robbed her back on December the 23rd.
[Moore:] Well, that’s not possible.
[Investigator:] Well, that’s what, that’s what she is saying.
[Moore:] Did I rob her barefaced?
[Investigator:] Huh?
[Moore:] Did I rob her barefaced, did she see my face?
***
[Moore:] Did she see my face, that’s what you should ask her.
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[Investigator:] She said she looked you in the face.
[Moore:] She looked me, I was barefaced when I robbed her?
[Investigator:] She said she looked you in the face.
[Moore:] Well, you should watch the video and see.
Id.at 536, 547-48; State’s Exhibit 37. Later, Lohman “immediately” identified
Moore as the would-be robber of the thrift store from a photo array. Tr. at 637.
[5] In addition, Moore called his mother while in jail and the following exchange
occurred between Moore, his mother, and an unidentified individual:
[Unidentified Voice:] Well you know, they ain’t got no, they
ain’t got no cameras nothing for (inaudible).
[Moore:] Yes it does, they say they got, they said (inaudible)
camera so I said (inaudible), I was like she wanted to see my face
or something, I mean, did you ever ask me, did you look at the
camera, he said yeah I looked at the camera and I said okay so,
what did you think, (inaudible) I know she ain’t got x-ray vision
now do she.
Id. at 605; State’s Ex. 38. At this point in time, investigators had not released
any details of the gas station robbery to the media or to Moore, including
whether the suspect obscured his face.
[6] As part of the investigation, Detective Tony Walker worked to estimate the
robber’s height by reviewing the surveillance video from the gas station. That
surveillance video captured images of the robber standing next to a calendar
screwed into a wall. Detective Walker measured the height of the calendar
from the floor and made markings indicating certain heights. He then used the
same surveillance video to capture images of himself standing in the same spot
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as the robber. After comparing the images and taking into consideration his
own height, Detective Walker estimated the robber’s height was between 5’4”
and 5’7”. Moore is 5’6”.
[7] The State charged Moore with armed robbery, a Level 3 felony (“Count 1”);
criminal confinement while armed with a deadly weapon, a Level 3 felony
(“Count 2”);1 attempted armed robbery, a Level 3 felony (“Count 3”);
attempted battery by means of a deadly weapon, a Level 5 felony (“Count 4”);
and pointing a firearm at another person, a Level 6 felony (“Count 5”).2 Moore
proceeded pro se.
[8] At trial, Webster and Craig identified Moore as the robber of the gas station;
Gibson and Lohman identified Moore as the robber of the thrift store. In
addition, Detective Walker testified as to the process he used to estimate the
robber’s height, and in conjunction with his testimony, the State admitted—for
demonstrative purposes—surveillance video images from the gas station,
images of the measurements taken by Detective Walker, and other exhibits
relevant to the robber’s height. The State did not call Detective Walker to
testify as an expert witness. Moore did not object to Detective Walker’s
testimony or to the admission of the exhibits.
1
Counts 1 and 2 were with respect to the robbery at the gas station.
2
Counts 3, 4, and 5 were with respect to the attempted robbery at the thrift store.
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[9] At the close of evidence, the trial court instructed the jury as to the attempt
crimes, in relevant part:
COURT’S INSTRUCTION NO. 4
***
Before you may convict the Defendant in Count 3, the State must
have proved each of the following beyond a reasonable doubt:
1. The Defendant, Deandre Blanchez Moore
2. acting with the culpability required to commit the crime of
Armed Robbery, which is defined as:
a) knowingly or intentionally
b) taking property from another person
c) by using force or threatening the use of force on that
other person
d) and while the Defendant was armed with a deadly
weapon;
3. by knowingly entering St. Vincent Depaul [sic],
displaying/and or [sic]pointing a firearm or handgun, and
demanding money from St. Vincent Depaul employee Asuncion
Gibson and/or Sandra Lohman,
4. which was conduct constituting a substantial step toward the
commission of the crime of Armed Robbery.
***
COURT’S INSTRUCTION NO. 5
***
Before you may convict the Defendant in Count 4, the State must
have proved each of the following beyond a reasonable doubt:
1. The Defendant, Deandre Blanchez Moore
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2. acting with the culpability required to commit the crime of
Attempted Battery by Means of a Deadly Weapon, which is
defined as:
a) knowingly or intentionally
b) touching another person
c) in a rude, insolent or angry manner
d) and while the Defendant was armed with a deadly
weapon;
3. by knowingly pointing a firearm and/or handgun at Asuncion
Gibson and/or Sandra Lohman, and pulling the trigger to said
firearm and/or handgun,
4. which was conduct constituting a substantial step toward the
commission of the crime of Attempted Battery by Means of a
Deadly Weapon.
Appellant’s Appendix at 55-58.
[10] The instructions did not provide a definition of the term “culpability” 3 and
Moore did not object to the instructions. During deliberations, the jury sent
two questions to the trial court. The transcript does not include the ensuing
discussion between the parties and the trial court; the only information in the
record regarding the jury’s questions is located in the Chronological Case
Summary. There, it indicates the jury sought the definition of “culpability,” to
which the trial court responded, over Moore’s unspecified objection, “You have
received all of the Court’s instructions regarding the law.” Id. at 6. The jury
also asked, “Do all subpoints under element 2 need to be proved in order for
deft. to be found guilty in counts 3 & 4?” Id. Over Moore’s unspecified
3
The trial court’s remaining instructions did not include the term “culpability.”
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objection, the trial court responded, “You have been given all of the Court’s
instructions regarding the law and they are your best resource.” Id. The jury
returned guilty verdicts on all counts. Moore, with counsel, now appeals.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[11] Moore contends Detective Walker’s testimony describing the process he used to
estimate the robber’s height—given in conjunction with the State’s admission of
certain exhibits—and his ultimate opinion as to the robber’s height, constituted
inadmissible opinion evidence. A trial court has broad discretion in ruling on
the admissibility of evidence. Turner v. State, 953 N.E.2d 1039, 1045 (Ind.
2011). Although we generally review the trial court’s rulings for abuse of
discretion, id., a defendant’s failure to raise a contemporaneous objection at
trial waives the issue for appeal, Delarosa v. State, 938 N.E.2d 690, 694 (Ind.
2010). Moore concedes he failed to object to Detective Walker’s testimony and
the State’s exhibits, but argues the admission of the testimony and exhibits
constitutes fundamental error. See Appellant’s Brief at 13. A claim waived by a
defendant’s failure to object can be reviewed on appeal if the reviewing court
determines fundamental error occurred. Delarosa, 938 N.E.2d at 694. “The
fundamental error exception is extremely narrow, and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
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due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (quotation
marks omitted). The exception is “available only in egregious
circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).
B. Detective Walker’s Testimony
[12] Moore challenges the admission of Detective Walker’s testimony regarding the
height of the robber, including the admission of demonstrative exhibits used to
illustrate his testimony. A “skilled” witness is defined as “a person with a
degree of knowledge short of that sufficient to be declared an expert under
Indiana Rule of Evidence 702,[4] but somewhat beyond that possessed by the
ordinary jurors.” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003)
(citation omitted), trans. denied. Under Rule 701, a skilled witness may testify to
an opinion or inference in those instances where the opinion is “rationally
based on the witness’s perception” and “helpful to a clear understanding of the
witness’s testimony or to a determination of a fact in issue.” See id. Here,
Detective Walker testified as to his extensive history as a police officer and
investigator. He fully explained the method he used to estimate the robber’s
height and the State’s exhibits helped illustrate that process. In addition, such
evidence was relevant to identifying the robber, which was the central issue at
trial. We therefore find no error.
4
Rule 702(a) provides, “[a] witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise . . . .”
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[13] However, even assuming the trial court erred in admitting such evidence, such
error was not fundamental. Multiple eyewitnesses identified Moore as the
individual who robbed the gas station and thrift store: Webster spontaneously
identified Moore as the robber of the gas station after seeing Moore at the
plasma donation center; Craig identified Moore as the robber of the gas station
based on Moore’s eyes; Gibson identified Moore as the robber of the thrift store
based on Moore’s voice; and Lohman, after being shown a photo array,
identified Moore as the robber of the thrift store. As Moore concedes, evidence
of his exact height was not made available to the jury, see Appellant’s Br. at 25
n.3, and our review of the record indicates that none of the eyewitnesses who
identified Moore relied upon his height in identifying him. In addition, many
witnesses testified as to their own opinion of the robber’s height, meaning
Detective Walker’s testimony amounted to cumulative evidence of the robber’s
alleged height. Further, Moore made incriminating statements pertaining to the
fact it would be impossible for Lohman to identify him as the robber of the gas
station because “she ain’t got x-ray vision.” Tr. at 605. We therefore conclude
the trial court did not commit fundamental error in admitting Detective
Walker’s testimony and demonstrative exhibits regarding the robber’s estimated
height. See Halliburton v. State, 1 N.E.3d 670, 683 n. 7 (Ind.2013) (“Where
evidence of guilt is overwhelming any error in the admission of evidence is not
fundamental.”).
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III. Jury Questions
A. Standard of Review
[14] Moore also argues the trial court erred in not providing discrete answers to two
questions from the jury during deliberations, a claim which we review for an
abuse of discretion. See Inman v. State, 4 N.E.3d 190, 201 (Ind. 2014). An
abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before it. Turner, 953 N.E.2d at
1045.
B. Discrete Answers
[15] Generally, a trial court should not give any additional jury instructions once
deliberations commence. Fields v. State, 972 N.E.2d 977, 980 (Ind. Ct. App.
2012), trans. denied. “This rule precludes the trial court from giving any special
emphasis, inadvertent or otherwise, to a particular issue in the case, and thus
avoids the possibility that the additional instruction(s) may tell the jury what it
ought to do concerning that issue.” Id. (citation omitted). However, if a jury
desires to be informed as to “any point of law arising in the case” after retiring
for deliberations, “the jury may request the officer to conduct them into court,
where the information required shall be given in the presence of, or after notice
to, the parties or the attorneys representing the parties.” Ind. Code § 34-36-1-6.
“The statutory phrase ‘any point of law arising in the case’ is construed
narrowly and mandates that the trial court inform counsel and provide a
discrete answer only when the jury question points up an error or legal lacuna
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[i.e. gap] in the final instructions.” Fields, 972 N.E.2d at 980 (emphasis added)
(citation and some internal quotation marks omitted).
[16] At the outset, we note the final instructions on Counts 3 and 4 tracked the
language of Indiana’s attempt statute verbatim, and in such cases, we presume
the instructions are correct. See Campbell v. State, 19 N.E.3d 271, 277 (Ind.
2014) (“[A]n instruction which tracks verbatim the language of a statute is
presumptively correct.”). Also, the final instructions on Counts 3 and 4
followed, verbatim, Indiana’s pattern jury instructions for attempt crimes. See
Ind. Pattern Jury Instruction (Criminal) 2.0100.
[17] The jury’s first question requested the definition of the term “culpability.”
Contrary to Moore’s assertion in his brief, see Appellant’s Br. at 12,
“culpability” is not defined by statute, see Ind. Code § 35-41-2-2 (though titled
“Culpability,” the statute only defines the terms “intentionally,” “knowingly,”
and “recklessly”). Given that there is no statutory definition of “culpability,” it
would be a risky endeavor for the trial court to attempt to define the term. The
jury’s second question asked, “Do all subpoints under element 2 need to be
proved in order for deft. to be found guilty in counts 3 & 4?” Appellant’s App.
at 6. Moore does not argue how this question points to an error or legal lacuna
in the final instructions, and as noted above, both instructions followed the
pattern jury instructions verbatim. Therefore, we are not persuaded the jury’s
questions point to an error or legal lacuna in the final instructions.
Accordingly, we conclude the trial court did not abuse its discretion in not
giving a discrete answer to the jury’s questions.
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Conclusion
[18] The trial court did not commit fundamental error in admitting certain evidence
or abuse its discretion in not providing a discrete answer to the jury’s questions.
Accordingly, we affirm Moore’s convictions.
[19] Affirmed.
Najam, J., and Crone, J., concur.
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