Damonta Lamont Jarrett v. State of Indiana

FILED
Nov 30 2020, 9:42 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Bates Curtis T. Hill, Jr.
Office of Lake County Public Defender Attorney General of Indiana
Crown Point, Indiana Courtney Staton
Deputy Public Defender
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Damonta Lamont Jarrett, November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-59
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff. Boswell, Judge
Trial Court Cause No.
45G03-1611-MR-7

Pyle, Judge.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 1 of 27
 Statement of the Case
[1] Damonta Lamont Jarrett (“Jarrett”) appeals his convictions, following a jury

trial, of murder1 and Level 5 felony attempted robbery2 and the sentence

imposed thereon. He argues that: (1) his convictions for murder and Level 5

felony attempted robbery violate Indiana’s prohibition against double jeopardy;

(2) the trial court abused its discretion when it denied his two separate motions

for mistrials; and (3) the trial court erred in sentencing him. Finding no double

jeopardy violation, no abuse of the trial court’s discretion, and no sentencing

error, we affirm Jarrett’s convictions and sentence.

[2] We affirm.

Issues
1. Whether Jarrett’s convictions for murder and Level 5
felony attempted robbery violate Indiana’s prohibition
against double jeopardy.

2. Whether the trial court abused its discretion when it
denied Jarrett’s two separate motions for mistrial.

3. Whether the trial court erred in sentencing Jarrett.

1
IND. CODE § 35-42-1-1.
2
I C. §§ 35-42-5-1 and 35-41-5-1.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 2 of 27
 Facts
[3] In October 2016, forty-year-old Steven Marquand (“Marquand”) lived in a rented

room in Gary, Indiana, with his fiancée, Kelly Worley (“Worley”). On October

18, Worley spent the day cleaning a friend’s house. The friend paid Worley with a

can of change. That evening, Marquand and Worley cashed in the coins at a local

currency exchange. After paying fees, Marquand and Worley received $283 in

cash, which included two one-hundred-dollar bills. Marquand folded the cash and

placed it in his pocket.

[4] Marquand and Worley then purchased a carry-out dinner and drove to a nearby

gas station convenience store. Marquand went into the store to purchase drinks

and ice and paid for the items with the cash. Twenty-three-year-old Jarrett, who

was in the convenience store when Marquand paid for the drinks and ice,

apparently saw Marquand pull the cash out of his pocket.

[5] Marquand left the convenience store, and Jarrett followed him. As Marquand was

getting into his car, Jarrett approached him with a gun and told Marquand “to give

[him] the money or [he would] shoot.” (Tr. Vol. 3 at 157). When Marquand, who

was sitting in the driver’s seat of his car by this point, responded, “no[,]” Jarrett

shot Marquand in the chest. (Tr. Vol. 3 at 158).

[6] Marquand drove the car out of the gas station, looked at Worley, and said,

“[b]aby, I’m shot, I’m shot.” (Tr. Vol. 3 at 161). Marquand’s eyes rolled back,

and Worley, who had been sitting in the passenger seat, jumped into Marquand’s

lap and attempted to gain control of the car. Worley side-swiped a fence, which

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 3 of 27
 slowed the car down, and she was subsequently able to stop it. Marquand died as

a result of the gunshot wound.

[7] In November 2016, the State charged Jarrett with both murder and felony murder

(murder while attempting to commit a robbery). Jarrett was taken into custody in

May 2017. In September 2019, the State amended the charging information to

include a charge for Level 5 felony attempted robbery and a firearm enhancement

for each of the three counts.

[8] At the four-day trial in October and November 2019, forensic pathologist Dr. Zhuo

Wang (“Dr. Wang”) testified that a bullet had entered Marquand’s chest and

passed through his heart, lung, and esophagus before exiting through his back.

According to Dr. Wang, the cause of Marquand’s death was the gunshot wound to

the chest, and the manner of Marquand’s death was a homicide.

[9] Gary Police Department Homicide Investigator George Dickerson (“Investigator

Dickerson”) also testified at the trial. According to Investigator Dickerson, “the

earliest date that [he] could have submitted anything for DNA testing” of Jarrett

was in May 2017, which was “the first time that the Gary Police Department [had

been] able to make contact with [Jarrett].” (Tr. Vol. 4 at 154). Jarrett’s trial

counsel asked to approach the bench and told the trial court that Investigator

Dickerson’s testimony “suggest[ed] that they couldn’t find [Jarrett] because he

wasn’t around.” (Tr. Vol. 4 at 154). Trial counsel further told the trial court that

he did not “want any inference made that w[ould] inflame - -” (Tr. Vol. 4 at 154).

The prosecutor responded that he “ha[d] no evidence of flight, just that they

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 4 of 27
 couldn’t test anything until they found him.” (Tr. Vol. 4 at 154). According to the

prosecutor, trial counsel had made “a preemptive objection.” (Tr. Vol. 4 at 155).

That was the end of the discussion at the bench.

[10] Thereafter, Investigator Dickerson testified that by May 2017, the police “had

already positively identified [Jarrett][.]” (Tr. Vol. 4 at 155). Investigator

Dickerson further agreed with the prosecutor that “with a positive identification

that had been corroborated . . . a dozen times over, [Investigator Dickerson] did

[not] . . . feel the need to submit anything for DNA testing to identify the

individual at the gas station.” (Tr. Vol. 4 at 157). When asked if he had “ma[d]e

the call not to do that[,]” Investigator Dickerson responded that “from protocol,

we can’t do that until he’s actually taken into custody.” (Tr. Vol. 4 at 157).

[11] Jarrett’s trial counsel again asked to approach the bench and moved for a mistrial

“based on the fact that [Investigator Dickerson had] stated that [Jarrett] would

have been brought into custody and we have a [seven-month] delay from the time

of the incident to when he [was] taken into custody, which again, asserts the

flight.”3 (Tr. Vol. 4 at 157-58). The trial court denied the motion, and trial counsel

did not ask for a limiting instruction.

3
Trial counsel argued at trial that there was “a year and a half delay from the time of the incident to when he
[was] taken into custody[.]” (Tr. Vol. 4 at 157-58). However, the murder occurred in October 2016, and
Jarrett was taken into custody in May 2017. There was therefore a seven-month delay from the time of the
murder to when Jarrett was taken into custody. Trial counsel’s confusion may have been based on
Investigator Dickerson’s initial testimony that Jarrett had been taken into custody in May 2018. (Tr. Vol. 4
at 153). However, Investigator Dickerson immediately apologized and testified that Jarrett had been taken
into custody in May 2017. (Tr. Vol. 4 at 154). In addition, the trial court’s Chronological Case Summary

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 5 of 27
[12] After the State had finished questioning Investigator Dickerson, the trial court

judge advised the parties that there would be a fifteen-minute recess. Following the

recess, the trial court judge asked the prosecutor and trial counsel to approach the

bench. The trial court judge told the attorneys that while she was in the courtroom

during the recess, Jarrett had told her, “[y]our birthday’s coming up, and I just

wanted to wish you a happy birthday.” (Tr. Vol. 4 at 161). The trial court judge

further told the attorneys that she had asked Jarrett how he knew when her

birthday was, and Jarrett had responded that “everybody’s birthday is coming up,

whether it’s past or in the future, somebody is going to have a birthday.” (Tr. Vol.

4 at 162). The trial court judge explained that the comment had made her

uncomfortable, and she was “not sure what to do about it.” (Tr. Vol. 4 at 162).

The trial court judge further explained that she had asked Jarrett when her birthday

was, and the bailiff had heard Jarrett say that the trial court judge’s birthday was

“in a couple of months.” (Tr. Vol. 4 at 163). The trial court judge told the

attorneys that her birthday was in January, which, at the time of the trial, was two

months away.

[13] Based upon Jarrett’s comments and the trial court judge’s discomfort, trial counsel

asked the trial court judge to declare a mistrial. The prosecutor asked the trial

court judge “in what way d[id] that impact [Jarrett’s] ability to have a fair trial”

and if she could “still listen to this case fairly, adjudge the law fairly[,] and sentence

states that Jarrett was taken into custody on May 19, 2017 and that his initial hearing was held that same
day.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 6 of 27
 fairly.” (Tr. Vol. 4 at 165). The trial court judge responded that she certainly

could but that she wanted to “take a few more minutes while we give 15 and think

about it.” (Tr. Vol. 4 at 165). The trial court judge further explained that she was

not concerned about “over-sentencing him or doing anything like that because he

[had] made that comment.” (Tr. Vol. 4 at 166). Rather, her concern was her

safety and why Jarrett “f[elt] it necessary to say that to [her].” (Tr. Vol. 4 at 166).

[14] Twenty minutes later, Jarrett returned to the courtroom, and the trial court judge

stated that she had discussed his comments about her birthday with the prosecutor

and his trial counsel. The trial court judge further told Jarrett that “[t]he question

was posed to [her] whether or not [she] thought [she] could still be fair and

impartial based on [her] concern about the comment.” (Tr. Vol. 4 at 169). The

trial court judge stated that she could still be fair and impartial and that Jarrett’s

comments would not affect any ruling that she had to make in the case or any

sentence should he be convicted. The trial court judge further told Jarrett that

“when [he had] information like that, [he] need[ed] to keep it to [him]self[,]” and

denied his motion for a mistrial. (Tr. Vol. 4 at 169). The jury was not present for

any of the discussion regarding Jarrett’s birthday remarks to the trial court judge.

[15] At the end of the four-day trial, Jarrett’s trial counsel renewed his motion for a

mistrial “based on the testimony of [Investigator] Dickerson and the fact that at

some point, [his] client [had been] taken into custody.” (Tr. Vol. 5 at 4). Trial

counsel specifically argued as follows:

I do believe that’s extremely prejudicial, and the jury heard the
fact that at some point, he was brought into custody in this case

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 7 of 27
 and essentially arrested or taken to the jail. The fact that that
testimony was heard by the members of the jury, I think, it is too
prejudicial to overcome, and based on some of the questions they
asked following [Investigator] Dickerson’s testimony, I do think
it’s something that has infiltrated the jury panel, so at this point, I
would just renew our motion for a mistrial based on that
testimony.4

(Tr. Vol. 5 at 4).

[16] The trial court denied the motion and asked trial counsel if he “ha[d] some kind of

curative statement for the . . . motion.” (Tr. Vol. 5 at 6). During a bench

conference, the parties discussed the language that should be included in a limiting

instruction and agreed that the trial court would instruct the jury that “[t]he fact

that the defendant may have been taken into custody is not proof of guilt and

should not be taken into consideration during your deliberations.” (Tr. Vol. 5 at 6-

8; App. Vol. 2 at 118). When the trial court asked trial counsel if the instruction

was “[g]ood[,]” trial counsel responded that the instruction was “[p]erfect.” (Tr.

Vol. 5 at 8).

[17] The jury convicted Jarrett of murder, felony murder (murder while attempting to

commit a robbery), and Level 5 felony attempted robbery. In a separate

proceeding, Jarrett admitted that he had used a firearm while committing each of

the three offenses.

4
Apparently two jurors submitted written questions asking when Jarrett was taken into custody. These
questions were not posed to Investigator Dickerson.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 8 of 27
[18] At the December 2019 sentencing hearing, the State presented evidence that Jarrett

was on probation for another robbery offense at the time he murdered Marquand.

During that offense, Jarrett “saw a man carrying a handgun with a permit and

decided to attempt to take that gun from that man’s person.” (Sentencing Hearing

Tr. Vol. 2 at 17). In addition, the State presented evidence that, at the time of his

arrest for Marquand’s murder, Jarrett “was wanted on the original warrant for a

separate armed robbery, the allegations for which include[d] holding a gun to an

infant’s head to threaten a mother to turn over money in a home invasion.”

(Sentencing Hearing Tr. Vol. 2 at 15-16). The State also pointed out that although

Jarrett’s criminal history included just one felony, “part of the reason for that [was]

that he [had been] able to evade justice for more than two years with the original

warrant for that robbery [described above], and in this instant case, although he

was charged in November of 2016, he wasn’t arrested until May of 2017.”

(Sentencing Hearing Tr. Vol. 2 at 16).

[19] At the end of the sentencing hearing, the trial court found the following

aggravating factors: (1) Jarrett’s prior felony conviction; (2) the nature and

circumstances of the offense, which “was a crime of opportunity, spur of the

moment, he just saw it and did it[;]” and (3) Jarrett was on probation at the time he

murdered Marquand. (Sentencing Hearing Tr. Vol. 2 at 27). The trial court

considered Jarrett’s age to be a mitigating factor.

[20] Thereafter, the trial court vacated Jarrett’s felony murder (murder while attempting

to commit a robbery) conviction. The trial court sentenced Jarrett to an enhanced

fifty-seven (57) year sentence for the murder conviction and a three (3) year

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 9 of 27
 advisory sentence for the Level 5 felony attempted robbery conviction. The trial

court further enhanced Jarrett’s three-year sentence for the attempted robbery

conviction by five (5) years because Jarrett used a firearm during the attempted

robbery. The trial court then ordered the fifty-seven (57) year sentence for murder

to run consecutively to the enhanced eight (8) year sentence for Level 5 felony

attempted robbery, for a total executed sentence of sixty-five (65) years.

[21] Jarrett now appeals his convictions and sentence.

Decision
[22] Jarrett argues that: (1) his convictions for murder and Level 5 felony attempted

robbery violate Indiana’s prohibition against double jeopardy; (2) the trial court

abused its discretion when it denied his two separate motions for mistrials; and (3)

the trial court erred in sentencing him. We address each of his contentions in turn.

1. Double Jeopardy

[23] Jarrett first argues that his convictions for murder and Level 5 felony attempted

robbery violate Indiana’s prohibition against double jeopardy under the actual

evidence test established by our supreme court in Richardson v. State, 717 N.E.2d 32

(Ind. 1999). However, while Jarrett’s case was pending on appeal, the Indiana

Supreme Court “expressly overrule[d] the Richardson constitutional tests in

resolving claims of substantive double jeopardy” and adopted an analytical

framework to be applied where, as here, “a single criminal act or transaction

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 10 of 27
 violates multiple statutes (rather than a single statute)[.]” Wadle v. State, 151

N.E.3d 227, 235 (Ind. 2020).5

[24] Our supreme court summarized the Wadle analytical framework as follows:

[W]hen multiple convictions for a single act or transaction
implicate two or more statutes, we first look to the statutes
themselves. If either statute clearly permits multiple punishment,
whether expressly or by unmistakable implication, the court’s
inquiry comes to an end and there is no violation of
substantive double jeopardy. But if the statutory language is not
clear, then a court must apply our included-offense statutes to
determine whether the charged offenses are the same. See [IND.
CODE] § 35-31.5-2-168. If neither offense is included in the other
(either inherently or as charged), there is no violation
of double jeopardy. But if one offense is included in the other
(either inherently or as charged), then the court must examine the
facts underlying those offenses, as presented in the charging
instrument and as adduced at trial. If, based on these facts, the
defendant’s actions were “so compressed in terms of time, place,
singleness of purpose, and continuity of action as to constitute a
single transaction,” then the prosecutor may charge the offenses
as alternative sanctions only. But if the defendant’s actions prove
otherwise, a court may convict on each charged offense.

Wadle, 151 N.E.3d at 253.

[25] Applying the Wadle analytical framework to the facts of this case, we note that

Jarrett was convicted of murder pursuant to INDIANA CODE § 35-42-1-1, which

5
Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020), on the other hand, established the framework to be applied
“when a single criminal act or transaction violates a single statute and results in multiple injuries.”

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 11 of 27
 provides that “[a] person who: knowingly or intentionally kills another human

being . . . commits murder, a felony.” Jarrett was also convicted of Level 5 felony

attempted robbery. The relevant statutes are INDIANA CODE §§ 35-42-5-1 and 35-

41-5-1. INDIANA CODE § 35-42-5-1 provides that “a person who knowingly or

intentionally takes property from another person or from the presence of another

person: (1) by using or threatening the use of force on any person; or (2) by putting

any person in fear; commits robbery, a Level 5 felony.” INDIANA CODE § 35-41-5-

1 provides that “[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.” These statutes

do not clearly permit multiple punishments, either expressly or by unmistakable

implication.

[26] With no statutory language clearly permitting multiple punishments, we move to

the second step of the analysis: determining whether either offense is included in

the other (“either inherently or as charged”) under the included offense statute,

INDIANA CODE § 35-31.5-2-168. See Wadle, 151 N.E.3d at 227. If not, there can be

no double jeopardy. See id.

[27] INDIANA CODE § 35-31.5-2-168 defines “included offense” as an offense that:

(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 12 of 27
 (3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.

[28] Subsection (1) is not implicated here. Murder is not established by proof of Level 5

felony robbery because murder requires a killing and Level 5 felony attempted

robbery does not. In addition, Level 5 felony attempted robbery is not established

by proof of murder because attempted robbery requires a substantial step toward

the taking of property and murder does not.

[29] Subsection (2) also does not apply here. Pursuant to the statute, an attempt crime

is an included offense of the completed crime. Ledesma v. State, 761 N.E.2d 896,

899 (Ind. Ct. App. 2002) (citing State el rel. Camden v. Gibson Circuit Court, 640

N.E.2d 696, 701 (Ind. 1994) and INDIANA CODE § 35-41-1-16(2), a prior version of

the included offense statute that also defined an included offense as one that

“consists of an attempt to commit the offense charged or an offense otherwise

included therein”)). See also INDIANA CODE § 35-41-5-3 (stating that “[a] person

may not be convicted of both a crime and an attempt to commit the same crime”).

Here, Jarrett was convicted of murder but not attempted murder and Level 5

felony attempted robbery but not Level 5 felony robbery.

[30] Lastly, subsection (3) does not apply here. This is because murder and Level 5

felony attempted robbery differ in more respects than just the degree of harm of

culpability required. Specifically, murder requires a killing and Level 5 felony

attempted robbery requires a substantial step toward the taking of property.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 13 of 27
[31] Because neither murder nor Level 5 felony attempted robbery is included in the

other, Jarrett’s convictions do not constitute double jeopardy under Wadle. See

Diaz v. State, 2020 WL 5858609 (Ind. Ct. App. Oct. 2, 2020) (holding that Diaz’s

convictions for murder and Level 5 felony robbery did not constitute double

jeopardy under Wadle). We therefore need not further examine the specific facts of

the case under the third step of the Wadle analytical framework. See id.

2. Motions for Mistrial

[32] Jarrett next argues that the trial court abused its discretion when it denied his two

separate motions for mistrials. The denial of a motion for a mistrial rests within

the sound discretion of the trial court, and we review the trial court’s decision only

for an abuse of discretion. Brittain v. State, 68 N.E.3d 611, 619 (Ind. Ct. App.

2017), trans. denied. The trial court is entitled to great deference on appeal because

the trial court is in the best position to evaluate the relevant circumstances of a

given event and its probable impact on the jury. Id. at 620. To prevail on appeal

from the denial of a motion for mistrial, a defendant must demonstrate that the

statement in question was so prejudicial that he was placed in a position of grave

peril. Id. The gravity of the peril is measured by the challenged conduct’s probable

persuasive effect on the jury’s decision, not the impropriety of the conduct.

Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). The question is not whether the

absence of this persuasive effect would lead to an acquittal instead of a conviction,

but rather whether “the evidence is close and the trial court fails to alleviate the

prejudicial effect.” Everroad v. State, 571 N.E.2d 1240, 1244 (Ind. 1991). Granting

a mistrial “is an extreme remedy that is warranted only when no other action can
Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 14 of 27
 be expected to remedy the situation.” Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct.

App. 2015), trans. denied.

[33] Jarrett first contends that the trial court abused its discretion when it denied his

motion for a mistrial regarding Investigator Dickerson’s testimony that he had not

submitted Jarrett’s DNA for analysis because such testing is not feasible until a

suspect is taken into custody. Jarrett argues that based on this testimony, jurors

“may have been wondering about whether Jarrett took flight after the killing of

Marquand.” (Jarrett’s Br. 22). Jarrett further argues that “where the jury was left

with this mistaken impression, and the trial court did not admonish them, let alone

grant the motion for mistrial, [he] was put in grave peril and his convictions should

be reversed.” (Jarrett’s Br. 22).

[34] First, we agree with the State that “Jarrett has failed to demonstrate any prejudice

other than his speculative and self-serving statement that this testimony may have

left the jury ‘wondering about whether Jarrett took flight after the killing of

Marquand.’” (State’s Br. 19). Investigator Dickerson’s testimony did not place

Jarrett in grave peril, and the trial court did not abuse its discretion in denying his

motion for a mistrial. See Hill v. State, 137 N.E.3d 926, 941 (Ind. Ct. App. 2019)

(stating that the trial court did not abuse its discretion in denying the defendant’s

motion for a mistrial where the defendant “ha[d] failed to demonstrate any

prejudice other than his speculative and self-serving statement that [an officer’s]

testimony likely impacted the jury’s impression of [the defendant]”), trans. denied.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 15 of 27
[35] We further note that although Jarrett argues that the trial court did not admonish

the jury, our review of the record reveals that the trial court did give the jury a

limiting instruction. Specifically, the trial court instructed the jury that “[t]he fact

that the defendant may have been taken into custody is not proof of guilt and

should not be taken into consideration during your deliberations.” (Tr. Vol. 5 at 6-

8; App. Vol. 2 at 118). In addition, Jarrett’s trial counsel told the trial court that

the instruction was “[p]erfect.” (Tr. Vol. 5 at 8).

[36] Thus, even if Investigator Dickerson’s testimony had placed Jarrett in grave peril,

the trial court’s limiting instruction would have dispelled it and justified the denial

of Jarrett’s motion. See Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002) (finding

that the trial court’s admonishment to the jury to disregard a witness’ remark about

the defendant’s prior unrelated criminal act sufficiently dispelled any grave peril

and justified denial of the defendant’s motion for a mistrial). The trial court did

not abuse its discretion in denying Jarrett’s motion for a mistrial regarding

Investigator Dickerson’s testimony.6

[37] Jarrett also contends that the trial court abused its discretion when it denied his

motion for a mistrial after Jarrett wished the trial court judge a happy birthday.

Jarrett specifically argues that “the judge’s comments that she was uncomfortable,

6
In his reply brief, Jarrett acknowledges that the trial court gave the jury a limiting instruction and argues
that the instruction “did not address [trial] counsel’s concern[.]” (Jarrett’s Reply Br. 9). However, trial
counsel told the trial court that the instruction was “[p]erfect.” (Tr. Vol. 5 at 8). Further, a party cannot raise
an issue for the first time in a reply brief. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 16 of 27
 even though she said she could be fair, placed Jarrett in grave peril.” (Jarrett’s Br.

23).

[38] However, as stated above, “[t]he gravity of the peril is measured by the probable

persuasive effect of the statement on the jury.” Smith, 140 N.E.3d at 373. (emphasis

added). Here, the trial court judge’s statements about Jarrett’s birthday remarks

were made outside the presence of the jury and could have had no persuasive effect

on the members of the jury. The trial court did not abuse its discretion in denying

Jarrett’s motion for a mistrial after Jarrett wished the trial court judge a happy

birthday.7

3. Sentence

[39] Lastly, Jarrett argues that the trial court erred in sentencing him. Jarrett

specifically contends that: (1) the trial court abused its discretion when it imposed

consecutive sentences for his murder and attempted robbery convictions; and (2)

the trial court improperly applied INDIANA CODE § 35-50-2-11 (“the Firearm

Enhancement Statute”) to enhance his sentence for attempted robbery for using a

7
In a related cursory argument, without citation to authority, Jarrett contends that “the fact that [the trial
court judge] was uncomfortable and apparently felt threatened indicates that she could no longer be unbiased
and unprejudiced after Jarrett made the unsolicited and unwelcomed remarks to her.” (Jarrett’s Br. 23).
However, the law presumes that a judge is unbiased and unprejudiced. Garland v. State, 788 N.E.2d 425, 433
(Ind. 2003). “To rebut that presumption, the defendant ‘must establish from the judge’s conduct actual bias
or prejudice that places the defendant in jeopardy.’” Perry v. State, 904 N.E.2d 302, 307 (Ind. Ct. App. 2009)
(quoting Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002)), trans. denied. Jarrett has failed to allege or establish
any such bias or prejudice that placed him in jeopardy, and we find no error.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 17 of 27
 firearm in the commission of the offense. We address each of his contentions in

turn.

[40] Jarrett first argues that the trial court abused its discretion when it imposed

consecutive sentences for his murder and attempted robbery convictions.

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 (Ind.

2007). So long as the sentence is in the statutory range, it is subject to review only

for an abuse of discretion. Id. An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the court

or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at

491. A trial court may abuse its discretion in a number of ways, including: (1)

failing to enter a sentencing statement at all; (2) entering a sentencing statement

that includes aggravating and mitigating factors that are unsupported by the record;

(3) entering a sentencing statement that omits reasons that are clearly supported by

the record; or (4) entering a sentencing statement that includes reasons that are

improper as a matter of law. Id. at 490-91.

[41] Jarrett specifically contends that the trial court abused its discretion when it

ordered his sentences for murder and attempted robbery to be served consecutively

to each other because “[t]here is no statement of the reasons why the trial court

ordered the sentences to be served consecutively[.]” (Jarret’s Br. 19). Jarrett

appears to believe that the trial court was required to state separate reasons for

imposing the enhanced sentences for murder and attempted robbery and for

ordering the sentences to be served consecutively. He is mistaken.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 18 of 27
[42] The Indiana Supreme Court has explained that “there is neither any prohibition

against relying on the same aggravating circumstances both to enhance a sentence

and to order it served consecutively, nor any requirement that the trial court

identify the factors that supported the sentence enhancement separately from the

factors that supported consecutive sentences.” Blanche v. State, 690 N.E.2d 709,

716 (Ind. 1998).

[43] Here, the trial court found three aggravating factors at the sentencing hearing: (1)

Jarrett’s prior felony conviction; (2) the nature and circumstances of the offense,

which “was a crime of opportunity, spur of the moment, he just saw it and did

it[;]” and (3) Jarrett was on probation at the time he murdered Marquand.

(Sentencing Tr. Vol. 2 at 27). These aggravating factors support the imposition of

Jarrett’s enhanced and consecutive sentences, and the trial court was not required

to restate them in support of its imposition of consecutive sentences. See id.

Accordingly, the trial court did not abuse its discretion in imposing consecutive

sentences for Jarrett’s murder and attempted robbery convictions.

[44] Jarrett further contends that the trial court improperly applied the Firearm

Enhancement Statute to enhance his sentence for attempted robbery for using a

firearm in the commission of the offense. As we stated in Howell v. State, 97

N.E.3d 253, 266 (Ind. Ct. App. 2018), trans. denied, this argument raises a question

of statutory interpretation.

When interpreting a statute, our primary goal is to fulfill the
legislature’s intent. [T]he best evidence of that intent is the
statute’s language. If that language is clear and unambiguous,

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 19 of 27
 we simply apply its plain and ordinary meaning, heeding both
what it does say and what it does not say.

Id. at 267 (quoting Mi.D. v. State, 57 N.E.3d 809, 812 (Ind. 2016) (citations and

quotation marks omitted)).

[45] The Firearm Enhancement Statute provides as follows:

(b) As used in this section, “offense” means:

(1) a felony under IC 35-42 that resulted in death or serious
bodily injury;

(2) kidnapping;

(3) criminal confinement as a Level 2 or Level 3 felony.

* * * * *

(d) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.

* * * * *

(g) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally used
a firearm in the commission of the offense under subsection (d),
the court may sentence the person to an additional fixed term of
imprisonment of between five (5) and twenty (20) years.

* * * * *

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 20 of 27
 (i) A person may not be sentenced under subsections (g) and (h) 8 for
offenses, felonies, and misdemeanors comprising a single episode of
criminal conduct.

INDIANA CODE § 35-50-2-11. (emphasis added).

[46] Jarrett does not dispute that his attempted robbery conviction qualifies as an

“offense” for the purposes of the Firearm Enhancement Statute pursuant to

subsection (b). Rather, his sole argument is that pursuant to subsection (i), the

statute cannot be applied to him because his offenses constitute a single episode of

criminal conduct. In other words, Jarrett interprets subsection (i) to bar a

sentencing enhancement for an offense when that offense was committed with

other offenses comprising a single episode of criminal conduct.

[47] We addressed this issue in Howell, 97 N.E.3d at 267. Therein, a jury convicted

Howell of voluntary manslaughter, attempted robbery, and auto theft. Howell

admitted that he had used a firearm in the commission of voluntary manslaughter.

The trial court sentenced Howell to twenty-five years for his voluntary

manslaughter conviction, enhanced by fifteen years for using a firearm in the

commission of the offense. The trial court also sentenced Howell to fifteen years

for his attempted robbery conviction and two years for his auto theft conviction.

[48] On appeal, Howell did not dispute that his voluntary manslaughter conviction

qualified as an “offense” for the purposes of the Firearm Enhancement Statute

8
Subsection (h) deals with pointing and discharging a firearm in the commission of felonies and
misdemeanors against police officers.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 21 of 27
 pursuant to subsection (b). Id. Rather, he argued that the statute could not be

applied to him because his offenses constituted a single episode of criminal

conduct. In other words, Howell, like Jarrett, interpreted subsection (i) to bar a

sentencing enhancement for an offense when that offense was committed with

other offenses comprising a single episode of criminal conduct. We disagreed and

responded to Howell’s argument as follows:

By its plain language, subsection (i) states that a person may not
be sentenced under subsection (g) for offenses - plural -
comprising a single episode of criminal conduct. Thus,
subsection (i) prohibits a trial court from imposing a sentence
enhancement on more than one conviction where a defendant is
convicted of multiple offenses comprising a single episode of
criminal conduct, even if more than one of the offenses would
otherwise be eligible for a sentencing enhancement. To read
subsection (i) as Howell suggests would lead to the absurd result
that a person who was convicted of committing a single
qualifying offense, say voluntary manslaughter, would be subject
to a sentencing enhancement, but a person who committed
voluntary manslaughter as part of an episode of criminal conduct
could not be subject to a sentencing enhancement. Accordingly,
we conclude that subsection (i) simply means that not more than
one offense in a single episode of criminal conduct is subject to
the sentencing enhancement. Thus, even if Howell’s offenses can
be said to comprise a single episode of criminal conduct, the
Firearm Enhancement Statute permits a sentencing enhancement
of one of his offenses (as long as that offense meets the definition
provided in subsection (b), and as noted, there is no dispute that
voluntary manslaughter qualifies).

Id. at 267-68.

[49] Here, although Jarrett admitted that he had used a firearm when he committed

both murder and attempted robbery, subsection (i) of the Firearm Enhancement

Statute prohibited the trial court from imposing an enhanced sentence on both of
Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 22 of 27
 those convictions. See id. at 267. However, subsection (i) permits a sentencing

enhancement of one of Jarrett’s convictions so long as that offense meets the

definition provided in subsection (b). See id. at 268. Here, there is no dispute that

Jarrett’s attempted robbery conviction qualifies. Accordingly, the trial court did

not err in enhancing Jarrett’s attempted robbery conviction pursuant to the Firearm

Enhancement Statute.

[50] Affirmed.

[51] Bradford, C.J., concurs.

[52] Weissmann, concur with separate opinion.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 23 of 27
 IN THE
COURT OF APPEALS OF INDIANA

Damonta Lamont Jarrett, Court of Appeals Case No.
20A-CR-59
Appellant-Defendant,

v.

State of Indiana,
Appellee-Plaintiff

[53] Weissmann, Judge, concurring.

[54] I concur in the majority opinion. I write separately, however, to address a

practical dilemma facing appellate courts, lawyers, and litigants in the wake of

Wadle.

[55] In burying the Richardson test and birthing a substantially different double jeopardy

analysis, our Supreme Court in Wadle necessarily changed the way in which

defendants will challenge their convictions and sentences. Wadle makes clear that

where, as here, convictions do not violate double jeopardy under the test it

espouses, the defendant still has other means under the Indiana Constitution and

Indiana Appellate Rule 7(B) to gain relief from multiple punishments. 151 N.E.3d

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 24 of 27
 at 250. The latter allows an appellate court to revise a sentence, either upward or

downward, where the court deems the sentence inappropriate in light of the nature

of the offense and the character of the offender. McCain v. State, 148 N.E.3d 977,

985 (Ind. 2020).

[56] The Wadle ruling begs the question: how do we proceed in cases where the

appellant’s brief was filed before Wadle and, thus, the defendant did not have the

benefit of Wadle’s acknowledgement of possible alternative relief in the absence of

double jeopardy violations? In such cases, the defendant may have refrained from

raising an alternative sentencing claim due to confidence that his multiple

convictions would be reversed based on Richardson. The Wadle test appears likely to

produce fewer findings of double jeopardy violations than the Richardson test did,

although only time will tell. If that prediction proves true, alternative sentencing

claims will be even more important to a defendant under Wadle than under

Richardson.

[57] When Richardson changed the landscape of double jeopardy claims more than two

decades ago, the Indiana Supreme Court sua sponte raised double jeopardy claims

under the new test in cases in which the appellant’s brief was filed before that

landmark decision. See, e.g., Logan v. State, 729 N.E.2d 125, 136-37 (Ind. 2000);

Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000); Wise v. State, 719 N.E.2d 1192,

1200-01 (Ind. 1999). However, this retroactive application appears limited to the

Richardson analysis itself.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 25 of 27
[58] The Indiana appellate courts, for instance, did not raise sua sponte Appellate Rule

7(B) claims for such defendants specifically in response to Richardson. That is not

surprising, as Richardson, unlike Wadle, did not expressly suggest alternative forms

of sentencing relief. Moreover, the Appellate Rule 7(B) standard at the time of

Richardson—“manifestly unreasonable in light of the offense and the offender”—

was so rigorous that it rarely produced sentencing relief. Reed v. State, 856 N.E.2d

1189, 1198 (Ind. 2006); see App. R. 7(B) (2002). The current version of Appellate

Rule 7(B)—authorizing revision where the sentence is “inappropriate in light of the

nature of the offense and the character of the offender”—offers a greater chance of

relief than its predecessor. See Serino v. State, 798 N.E.2d 852, 856 (Ind. 2003); see

App. R. 7(B) (effective Jan. 1, 2003). An Appellate Rule 7(B) claim thus is a much

more viable alternative to a failed double jeopardy claim under Wadle than under

Richardson.

[59] Jarrett did not raise an Appellate Rule 7(B) claim. Though the Wadle framework

does not prohibit Jarrett’s multiple punishments—consecutive sentences

amounting to 65 years imprisonment—it does preserve Appellate Rule 7(B) as a

potential alternative for defendants like him. 151 N.E.3d at 252. Alas, “[w]e do

not generally review a sentence’s appropriateness unless prompted by the

defendant.” See Wilson v. State, No. 19S-PC-548, slip op. at 20-29 (Ind. Nov. 17,

2020).

[60] Although Jarrett reasonably could not have anticipated Wadle’s quantum leap in

double jeopardy analysis, his case lacks the special circumstances which appear to

be a prerequisite for rare sua sponte review under Appellate Rule 7(B). See Wilson,
Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 26 of 27
slip op. at 20-19. Specifically, in Wilson, the defendant was 16 years old when he

committed offenses for which he was sentenced to 183 years imprisonment—

nearly three times longer than Jarrett’s sentence. Id. at 24. Moreover, the

defendant in Wilson was certain to gain relief due to specific, applicable precedent.

Id. at 22-24, 27 (finding ineffective assistance of counsel where appellant’s attorney

“was ignorant of important recent precedents” with “largely analogous” facts).

Whether Jarrett would succeed on an Appellate Rule 7(B) claim is far less clear.

As Wilson appears to bar us from sua sponte review of Jarrett’s sentence under

Appellate Rule 7(B), I concur with the majority’s opinion affirming the trial court’s

judgment.

Court of Appeals of Indiana | Opinion 20A-CR-59 | November 30, 2020 Page 27 of 27