Opinion
24A-CR-51
11-25-2024
Keshawn Lejuan Bess, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT VICTORIA BAILEY CASANOVA CASANOVA LEGAL SERVICES, LLC INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA ALEXANDRIA N. SONS DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Monroe Circuit Court The Honorable Valeri Haughton, Judge Trial Court Cause No. 53C02-2010-MR-1008
ATTORNEY FOR APPELLANT VICTORIA BAILEY CASANOVA CASANOVA LEGAL SERVICES, LLC INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA ALEXANDRIA N. SONS DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Foley, Judge.
[¶1] Keshawn Lejuan Bess ("Bess") was convicted of murder, a felony, after a jury trial and sentenced to sixty years executed in the Indiana Department of Correction ("the DOC"). Bess appeals, raising several issues, which we consolidate and restate as:
I. Whether the trial court abused its discretion when it admitted certain evidence, specifically (A) State's Exhibit I, body camera footage from the first responding officer; (B) State's Exhibits 16A, 16B, and 16C, text messages from Bess to a co-defendant; and (C) State's Exhibits 23A, 23B, and 23C, surveillance footage from the Monroe County Jail; and
II. Whether the trial court erred when it entered judgment of conviction on all of the counts and, instead of vacating those convictions, only merged them.
[¶2] Identifying no basis for reversal, we affirm Bess's conviction for murder and remand with instructions to vacate judgments of conviction entered upon lesser-included offenses.
Facts and Procedural History
[¶3] On October 26, 2020, Damon Brown ("Damon") asked his brother, DJ Brown ("DJ"), if he could use DJ's trailer home, located in Bloomington, Indiana. Damon made money by selling shoes and also by selling marijuana, and DJ assumed that Damon needed the trailer to sell either shoes or marijuana. At some point that day, DJ figured out that Damon would be using the trailer for a marijuana deal. DJ's girlfriend, Lauren Sexton ("Sexton"), and cousin, Evan Miller ("Miller"), were also present in the trailer that night, hanging out in one of the bedrooms. A few minutes after Damon arrived at the trailer, three men arrived to buy marijuana. One of the men was a tall man with dreadlocks and wearing a multi-colored windbreaker, who was later identified as Jamal McFadden ("McFadden"). Another of the men was wearing all black and was later identified as Malik Bennett ("Bennett"). The third was wearing multicolored pants, a sweatshirt, and "a do[-]rag" and was later identified as Bess. Tr. Vol. 3 p. 130.
[¶4] When the three men arrived, they sat around talking for a bit with DJ and Damon. DJ got up and headed to a bedroom at the back of the trailer to check on his dog that had started barking. Bess followed him to the back bedroom, asking to see the dog, and as they walked to the bedroom, Bess was looking around, "checking out the scene." Id. at 131. Bess told DJ not to let the dog out, and DJ agreed. After checking on the dog, DJ and Bess went back to the front of the trailer "toward the kitchen area." Id. at 132. After they all talked a bit longer, Damon got out a large quantity of marijuana that had been inside of a Louis Vuitton duffle bag and showed it to Bess and the other two men. Bess looked at the marijuana and did not like some of it, so Damon offered to switch it out for other marijuana. At that point, Damon walked back to one of the bedrooms, and Bess followed him "right on his heels." Id. at 133. Damon and Bess returned to the kitchen and were trying to get the deal worked out while DJ and McFadden talked about selling Xanax.
[¶5] At that point, Bennett suddenly announced, "we're just gonna take it all." Id. Bess and Bennett drew guns and separated DJ from Damon, with Bess pointing his gun at Damon and Bennett pointing his gun at DJ. Damon raised his hands above his head and said, "Please don't do it" and, referring to the marijuana, "Take it all, it's not worth it." Id. at 137. McFadden was told to search the trailer, and after grabbing the Xanax off the counter, he went back to the bedroom, where Sexton and Miller were. DJ then heard a loud bang from the area to his left, which was where Bess and Damon were standing, and DJ saw Damon fall to the floor.
[¶6] When McFadden went to the bedroom, he told Miller to "run his pockets," which is slang for "give me what's in your pockets" or "give me everything you have." Id. at 199, 230. Miller grabbed a gun from a drawer in the bedroom, and McFadden backpedaled out of the room. When Sexton and Miller heard gunfire from the front of the trailer, Miller looked out of the bedroom door and thought McFadden was coming back toward the room, so Miller shot his gun at him.
[¶7] After DJ saw Damon fall to the ground, he ran to the back bedroom as a "lot of shootin' [was] happening." Id. at 137. DJ reached the back bedroom, pushed Sexton into the bathroom, and told her to hide in the bathtub. When the shooting stopped, Miller told DJ that Damon was shot. Damon was lying on the ground in the living room "limp and bloody," and he was "tryin' [to] gasp for air." Id. at 138, 200. DJ and Sexton picked him up to take him to the hospital but only made it as far as the front porch. DJ started yelling for help, and neighbors came over and started performing CPR on Damon.
[¶8] Someone called 911, and Bloomington Police Department Officer Kyle McGlone ("Officer McGlone") was the first responding officer. Officer McGlone's body camera was activated and captured his arrival at the scene, interactions with the people on the porch, and subsequent life-saving efforts. As Officer McGlone approached the porch, he saw several individuals, some of whom were trying to render aid to Damon. Officer McGlone ordered everyone off the porch and began to provide medical aid. Damon had been shot once in the armpit area, and there was no exit wound. When Officer McGlone first arrived, Damon's pulse was normal, but then it became "light and fluttery." Id. at 117-18. An ambulance arrived within a few minutes and took Damon to the hospital, where he was pronounced dead. The cause of death was determined to be a gunshot wound to his chest.
[¶9] During the investigation, Bloomington Police Department Detective Chris Scott ("Detective Scott") reviewed surveillance video from a neighbor's home located across the street from DJ's trailer. A white car could be observed parked across the street from the trailer that Detective Scott believed was involved in the crime. Detective Scott ran the license plate on the car and learned that it belonged to McFadden. McFadden had reported the car as stolen and contacted Detective Scott to retrieve his car from where it had been towed. McFadden told Detective Scott that the car was stolen while he was getting a haircut in Indianapolis. After law enforcement spoke with the owner of the barbershop, Detective Scott believed that McFadden was lying. Detective Scott got a search warrant for McFadden's phone and discovered that, approximately twenty minutes after the shooting, McFadden received several phone calls from a phone number that belonged to Bess. Detective Scott retrieved Bess's photo from the Bureau of Motor Vehicles and created a photo array lineup. He showed the lineup to DJ, and DJ identified Bess in the lineup with "100%" certainty as the person who shot Damon. State's Exs. 13, 14. During his investigation, Detective Scott learned that Bess began using a new cell phone number within twenty-four hours of the crime.
[¶10] Detective Scott was contacted by an attorney in Indianapolis that represented Bennett, and the detective contacted Bennett through the attorney. Detective Scott was able to examine Bennett's cell phone and saw messages between Bennett and Bess. The messages from Bess stated:
Are u gone [sic] stick to our story or what bro
Bc u the only person that can get us locked up right now
Brother
Cuz u gotta go with the script man . . . Or they is [sic] fry us bc of you
We tryna [sic] beat this shit! U panicking
You never had a gun! We never had [a] gun! We [went] to buy weed and cuz was selling his [Xanax]. We was looking at the smoke and dude came out the back bussing n [sic] we ran
I'm tryna [sic] make sure u know whats [sic] going on before I go in there
Stop being dumb bro. And think! The bitch already lied[.] [W]e got the case beat
Ex. Vol. 1 pp. 102-04. While Bennett was in the presence of Detective Scott, the detective directed Bennett to contact Bess using the same number that the previous texts had come from. After Bennett reached out to Bess, he received the following responses:
Brother
I need to talk to u asap
U need to get [the fuck] outta Indy [right now] bro
Call me soon [as] u can broId. at 106. Subsequently, law enforcement pinged the cell phone number that Bess used to respond to Bennett and located Bess at an apartment in Indianapolis belonging to Bess's girlfriend. Bess was arrested, and his cell phone was seized.
[¶11] On October 29, 2020, the State charged Bess with felony murder and Level 2 felony robbery resulting in serious bodily injury. The charging information was later amended on April 12, 2022, to add a charge of knowing or intentional murder as Count II. A jury trial was held in February 2023, and the jury was unable to reach a verdict with a mistrial being declared. On July 31, 2023, the State amended the robbery charge to Level 2 felony attempted robbery resulting in serious bodily injury.
[¶12] A second jury trial was held on November 13-17, 2023. During this trial, the State sought to admit the body camera footage from Officer McGlone as State's Exhibit 1. Bess objected, arguing that the probative value of the footage was outweighed by the prejudicial effect of the footage. The trial court overruled the objection and admitted State's Exhibit 1. The State also moved to admit State's Exhibits 16A, 16B, and 16C, which were the text messages between Bess and Bennett. Bess objected, arguing that the exhibits were not properly authenticated and were unduly prejudicial, reiterating arguments from a February 2023 pretrial hearing. The trial court overruled this objection and admitted State's Exhibits 16A, 16B, and 16C.
[¶13] During the trial, Jason Jones ("Jones"), who was Damon's cousin, testified regarding an incident that occurred while Jones was incarcerated in the Monroe County Jail on July 1, 2023. At that time, Bess was also incarcerated in the Monroe County Jail after being arrested in 2020. Although Jones was being held in B Block, and Bess was held in C Block, the two blocks were separated by a door that had a glass window. Jones testified that on July 1, a man, later identified as Bess, called him over to the window and asked if he knew who Bess was. When Jones responded that he did not, Bess told Jones, "he's the person that killed my dead homie," which Jones understood was Damon, and made gun hand gestures and gang signs. Tr. Vol. 4 p. 79. The State sought to admit State's Exhibits 23A, 23B, and 23C, which were videos of surveillance footage from the Monroe County Jail. Bess objected that the exhibits were unfairly prejudicial, but the trial court overruled the objection and admitted the exhibits.
[¶14] At the conclusion of the trial, the jury found Bess guilty on all three counts, and the trial court stated it was "going to enter judgments of conviction for . . . murder, Count I, murder Count II, and attempted robbery resulting in serious bodily injury, as a [L]evel 2 felony, as in Count III." Tr. Vol. 5 p. 187. The sentencing hearing was held on December 12, 2023, and the trial court sentenced Bess to sixty years executed in the DOC. The written sentencing order and the abstract of judgment show a judgment of conviction on only Count I, the felony murder count, with the trial court merging the other two counts. Bess now appeals.
Discussion and Decision
I. Admission of Evidence
[¶15] The trial court is afforded wide discretion in ruling on the admissibility of evidence. Shinnock v. State, 76 N.E.3d 841, 842 (Ind. 2017) (citing Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012)). On appeal, evidentiary decisions are reviewed for abuse of discretion and are reversed only when the decision is clearly against the logic and effect of the facts and circumstances. Id. at 842-43. "Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party." Housand v. State, 162 N.E.3d 508, 513 (Ind.Ct.App. 2020), trans. denied. "To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury." Id. We will affirm a ruling on the admissibility of evidence on any reasonable basis apparent in the record regardless of whether it was relied on by the parties or the trial court. Turner v. State, 183 N.E.3d 346, 353 (Ind.Ct.App. 2022), trans. denied.
A. State's Exhibit 1
[¶16] Bess argues that the trial court abused its discretion when it admitted State's Exhibit 1, which consisted of Officer McGlone's body camera footage. Bess asserts that the evidence had very little probative value and that any such probative value was outweighed by the prejudicial impact of the footage. Bess contends that the footage tended to improperly arouse or inflame the passions or sympathies of the jury because it permitted them to see the enormity of the pain suffered by Damon's loved ones, who were present at the crime scene, and also showed how vulnerable and helpless Damon was while Officer McGlone engaged in life-saving efforts.
[¶17] Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence[,]" and "the fact is of consequence in determining the action." Ind. Evidence Rule 401. "This 'liberal standard for relevancy' sets a low bar, and the trial court enjoys 'wide discretion' in deciding whether that bar is cleared." Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (internal citations omitted). Under Indiana Rule of Evidence 403, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Evid. R. 403.
[¶18] Here, the State's Exhibit 1 was admitted into evidence over Bess's objection. The exhibit was body camera footage from Officer McGlone, who was the first responding officer to the scene. It depicted Officer McGlone's arrival to the trailer, and his actions responding to the shooting for several minutes until the paramedics arrived. When Officer McGlone first arrived at the porch of the trailer, there were several people present who were either crying or acting anguished over the situation. But Officer McGlone quickly ordered all of those present off of the porch, and such anguished reactions by the bystanders were very brief. Much of the footage showed Officer McGlone and other officers responding to a shooting and trying to determine where Damon had been shot and the extent of his injury. Officer McGlone administered chest compressions for the majority of the time and ripped Damon's shirt in an effort to look for an exit wound. At one point, a chest seal was requested, and other responding officers attempted to stop Damon's bleeding by applying pressure to his armpit area where the wound was located. The body camera footage showed Damon's wound immediately after he was shot as well as the attempts to save his life. It also showed the bullet wound in Damon's armpit and the lack of an exit wound.
[¶19] To the extent there was any error relating to the admission of State's Exhibit 1, we conclude that the error was harmless. "A trial court's error in excluding evidence does not require reversal if the error was harmless." Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023). For non-constitutional errors, like the one here, our harmless-error analysis is found in Appellate Rule 66(A):
No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.
Ind. Appellate Rule 66(A). Under the "probable impact" test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence, the error's probable impact undermines confidence in the outcome of the proceeding below. Id. Error in the admission of evidence is harmless if we are satisfied the conviction is supported by substantial independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the verdict. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).
[¶20] There was substantial evidence of Bess's guilt apart from State's Exhibit 1. DJ testified that, in the midst of a marijuana transaction, Bess pointed a gun at Damon and then shot Damon while attempting to rob Damon and DJ of the marijuana. Jones testified that Bess confessed to Jones that he killed Damon when he told Jones that he, "killed [Jones's] dead homie." Tr. Vol. 4 pp. 7880. Evidence was presented that Bess sent inculpatory text messages that implicated him in the robbery and murder, and surveillance video placed Bess at the scene and then fleeing the scene after Damon was shot. Additionally, the content of the body cam footage was cumulative of the testimony given by Officer McGlone and the forensic pathologist regarding wound placement and cause and manner of death. In light of this substantial independent evidence of guilt, any error in admitting State's Exhibit 1 was harmless.
B. State's Exhibits 16A, 16B, and 16C
[¶21] Bess contends that it was an abuse of the trial court's discretion to admit State's Exhibits 16A, 16B, and 16C-pictures of text messages between Bennett and Bess-into evidence at trial because he asserts that the text messages were not properly authenticated. "To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated." Pavlovich v. State, 6 N.E.3d 969, 976 (Ind.Ct.App. 2014), trans. denied. Authentication of an exhibit can be established by either direct or circumstantial evidence. Id. Absolute proof of authenticity is not required; rather, the proponent of the evidence need establish only a reasonable probability that the evidence is what it is claimed to be. Brown v. State, 146 N.E.3d 1031, 1036 (Ind.Ct.App. 2020), trans. denied. "Once this reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility." Id. (citing Harrison v. State, 32 N.E.3d 240, 255 (Ind.Ct.App. 2015), trans. denied).
[¶22] State's Exhibits 16A, 16B, and 16C consisted of text messages on Bennett's phone from Bess, which Detective Scott observed while meeting with Bennett. Bess, McFadden, and Bennett were the three men involved in the murder of Brown, and in the text messages, Bess implored Bennett to stick to their "story," telling Bennett he needed "to go with the script.. .or they [will] fry us [because] of you." Ex. Vol. 1 p. 102. Bess went on to state facts about the crime: "We [went] to buy weed and cuz was selling his [Xanax]. We was looking at the smoke and dude came out the back bussing n [sic] we ran." Id. at 104. Then, he continued with statements demonstrating his desire to control the narrative amongst the co-defendants, "I'm tryna [sic] make sure u know whats [sic] going on before I go in there[.] Id. While Bennett was in the presence of Detective Scott, the detective directed Bennett to contact Bess using the same number that the previous texts had come from. After Bennett reached out to Bess, he received several responses from Bess that stated that he needed to talk to Bennett "asap" and that Bennett needed to get out of Indianapolis immediately. Id. at 106. Subsequently, law enforcement pinged the cell phone number that Bess used to respond to Bennett and located Bess at an apartment in Indianapolis belonging to Bess's girlfriend. When Bess was arrested, the cell phone was seized.
[¶23] The text messages were properly authenticated for several reasons. First, the messages contained within the exhibits contained statements that identified the author as being involved in the crime, and the substance of the text messages showed that they were about the robbery and murder. See Evid. R. 901(b)(4) (authentication may be proved by the substance of an item when taken with the surrounding circumstances). At that time, McFadden had already been arrested, and Bess was the only co-defendant not accounted for, which points to the messages being from Bess. Second, in the presence of Detective Scott, Bennett texted the number belonging to Bess, and Bess immediately responded, telling Bennett to get out of Indianapolis. Subsequent to this meeting with law enforcement, Bennett absconded and went on the run. Third, law enforcement pinged the phone number that sent the text messages and located Bess and the phone in an apartment in Indianapolis.
[¶24] In Pavlovich, this court was presented with the issue of whether text messages and emails had been properly authenticated. 6 N.E.3d at 977-78. There, the defendant had communicated with a sex worker via text messages about engaging in sexual contact with the sex worker's little sister and also provided the sex worker with his email address. Id. The sex worker contacted law enforcement, and as the communications continued through both text and email, the defendant provided the location of the hotel room he was renting. Id. at 972-73. Law enforcement found him at the location he provided in the messages. Id. On appeal, this court found that the texts and emails were sufficiently authenticated because of the substance of the messages showing familiarity with the sex worker and things previously discussed between him and the sex worker and because law enforcement found the defendant at the address he provided in the messages. Id. at 979. The present case is similar to Pavlovich because Bess communicated with Bennett and conveyed information about the crimes and attempts to cover up their involvement, and Detective Scott was able to ping the phone number that Bess used to communicate with Bennett, ultimately arresting Bess at the pinged location and seizing the phone that sent the text messages to Bennett.
[¶25] Bess argues that the foundation was insufficient because law enforcement was unable to extract the text messages directly from Bess's phone, Bess did not admit to owning the phone, and Bennett did not testify at trial. We note, however, that the State was not required to present "[a]bsolute proof of authenticity," only a reasonable probability that the evidence was what the State claimed it to be. Id. at 976. Here, the State established a reasonable probability that the exhibits were what they were claimed to be, i.e., text messages written by Bess. Any inconclusiveness regarding the exhibits' connection to the crime went to the weight of the evidence, not to the admissibility of the evidence. See id. We, therefore, conclude that State's Exhibits 16A, 16B, and 16C were properly authenticated as being written by Bess, and the trial court was within its discretion to admit the exhibits.
C. State's Exhibits 23A, 23B, and 23C
[¶26] Bess argues that the trial court abused its discretion when it admitted State's Exhibits 23A, 23B, and 23C, which consisted of surveillance video footage from the Monroe County Jail. Bess contends that the prejudicial effect of the footage outweighed any probative value. As previously stated, Evidence Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." The trial court is afforded wide latitude in weighing probative value against prejudice under Rule 403. Willingham v. State, 794 N.E.2d 1110, 1116 (Ind.Ct.App. 2003).
[¶27] State's Exhibits 23A, 23B, and 23C consisted of surveillance video footage from inside the Monroe County Jail showing Bess and Jones, who was Damon's cousin, dressed in jail clothing and talking to each other through a window between cell blocks. The State introduced this evidence to corroborate Jones's testimony about what Bess said to him in the jail. Bess asserts that the probative value of this evidence was low because the video footage did not include audio, and the footage did not capture gestures made by Bess and described by Jones. Bess claims that the prejudicial effect was very high because the footage showed him in jail and "painted [him] as a dangerous person" to the jury. Appellant's Br. p. 39.
[¶28] The surveillance footage was highly probative because it corroborated Jones's trial testimony that, on July 1, 2023, Bess called him over to the window between cell blocks in the jail, asked Jones if he knew who Bess was, and when Jones responded that he did not, Bess stated, "he's the person that killed my dead homie," which Jones understood to be Damon, and made gun hand gestures and gang signs. Tr. Vol. 4 p. 79. Jones's testimony alone, without the corroborating surveillance video footage, could have been perceived as biased or unreliable because Jones was related to Damon, and because Jones was also in jail for a pending criminal matter. In fact, on cross examination, Jones was questioned as to whether he received a benefit from the State for testifying. Tr. Vol. 4 pp. 82-84. Additionally, the timing of Bess's admission to Jones, which was nearly three years after the murder, could have been perceived as suspicious or unreliable without the surveillance footage corroborating an exchange between Bess and Jones.
[¶29] The surveillance footage was not unfairly prejudicial. First, State's Exhibits 23A, 23B, and 23C were cumulative of the testimony presented at trial. Jones testified at trial that Bess approached him in the jail and made a statement in which he confessed to killing Damon. Tr. Vol. 4 pp. 78-79. Thus, even without the admission of the surveillance footage, the jury was aware that Bess was incarcerated prior to trial. Additionally, although "requiring a defendant to [personally] appear in jail garb [in the courtroom] has long been held to deny due process," Stephenson v. State, 864 N.E.2d 1022, 1029 (Ind. 2007), cert. denied, the Indiana Supreme Court has held that admitting video of a defendant dressed in jail garb outside of the courtroom is not unfairly prejudicial, see Southern v. State, 878 N.E.2d 315, 320-21 (Ind.Ct.App. 2007), trans. denied; Ritchie v. State, 875 N.E.2d 706, 716-18 (Ind. 2007).
[¶30] In both Southern and Ritchie, Indiana courts addressed the issue of whether a video portraying a defendant dressed in jail clothing was unfairly prejudicial. Southern, 878 N.E.2d at 320-21; Ritchie, 875 N.E.2d at 718. In Ritchie, the trial court allowed video of the defendant dressed in jail clothing during a media interview to be admitted at trial. 875 N.E.2d at 716-18. A panel of this court held that the video was properly admitted and not unfairly prejudicial because the defendant did not appear in jail clothing "during courtroom proceedings." Id. (emphasis original). In Southern, the trial court allowed a video of the defendant dressed in jail clothing while taking a polygraph examination to be admitted into evidence. 878 N.E.2d at 320. Our Supreme Court held that the video was properly admitted, finding that the video was "only a small portion of the [multi-day] trial as opposed to a defendant wearing a jail uniform during his entire trial." Id. at 320-21. The situation in the present case is more similar to the situations in both Southern and Ritchie than where a defendant is compelled to wear jail clothing in the courtroom throughout the proceedings.
[¶31] Here, Bess did not attend trial in jail clothing and was only observed dressed in jail clothing and being present in jail on the surveillance video footage, which was approximately fifteen minutes in length during the five-day jury trial. A reasonable juror would expect that an incarcerated person would be dressed in jail clothing while in jail; all inmates, not just those viewed as particularly dangerous, wear similar jail attire in the jail. See Ritchie, 875 N.E.2d at 718 (citing Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002)) (observing that jurors would reasonably expect a person in police custody to be dressed in jail clothing and restrained). Further, reasonable jurors would also assume that a person charged with murder would be incarcerated pending trial on that charge as pretrial incarceration is standard in all murder cases. See Ind. Code § 35-33-8-2 ("Murder is not bailable if the state proves by a preponderance of the evidence that the proof is evident or the presumption strong."); Fry v. State, 990 N.E.2d 429, 434-35 (Ind. 2013). ("[A]s a general rule, murder and treason shall not be bailable.") (citing Ex parte Jones, 55 Ind. 176, 179 (1876)). We, therefore, disagree that the surveillance video footage was unfairly prejudicial and conclude that the trial court did not abuse its discretion when it admitted State's Exhibits 23A, 23B, and 23C into evidence.
The Indiana Constitution specifically provides that "[o]ffenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong." Ind. Const. art. I, § 17. "This qualification was proper because murder is 'the most serious charge that can be lodged by this [S]tate against an individual and carries with it the possibility of the imposition of a sentence of death, society's harshest penalty,' and the purpose of bail would likely be disserved by an unqualified right in such a case." Fry v. State, 990 N.E.2d 429, 435 (Ind. 2013) (quoting Phillips v. State, 550 N.E.2d 1290, 1294-95 (Ind. 1990.)
II. Failure to Vacate Convictions
[¶32] Bess argues that the State failed to present sufficient evidence to prove that he knowingly or intentionally killed Damon as charged in Count II. The State responds that such a challenge is not ripe because the trial court did not enter judgment of conviction on the murder conviction under Count II. Having reviewed the arguments, we find that the issue is more accurately framed as whether the trial court erred when it merged Bess's convictions for murder and Level 2 felony attempted robbery resulting in serious bodily injury instead of vacating the convictions. We proceed to address this issue.
[¶33] Here, Bess was charged with Count I, felony murder, Count II, murder, and Count III, Level 2 felony attempted robbery, and the jury found him guilty of all three charges at the conclusion of the trial. After the jury was excused, the trial court made the following statement, "Mr. Bess, at this time I am going to enter judgments of conviction for uh, murder, Count I, murder, Count II, and attempted robbery resulting in serious bodily injury, as a level 2 felony, as in Count III." Tr. Vol. 5 p. 187. Such action was reflected in the CCS: "Court enters judgment of conviction pursuant to the verdict of the jury." Appellant's App. Vol. II p. 33. Then, at sentencing and in the sentencing order, it appears that, to avoid double jeopardy concerns, the trial court merged Bess's convictions for murder and attempted robbery resulting in serious bodily injury with his felony murder conviction and only sentenced Bess on his felony murder conviction under Count I. The CCS reflects that, "[c]ourt issues Judgment of Conviction and Sentencing/Order of Probation/Commitment Order and announces sentence as to Count I, Murder, a felony, and merges the remaining counts for the purpose of sentencing." Id. at 34.
We note that, under Trial Rule 77(B), "The CCS is an official record of the trial court ...." Further, "[t]he judge of the case shall cause CCS entries to be made of all judicial events." Id.
It has long been held that "a trial court may not convict and sentence a defendant for both murder and felony murder where only one murder occurs." Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (citing Martinez Chavez v. State, 534 N.E.2d 731, 739 (Ind. 1989)). Likewise, "[i]t is a violation of double jeopardy principles to convict and sentence a defendant for both felony murder and the underlying felony because the conviction for felony murder would necessarily require proof of the underlying felony." Stewart v. State, 945 N.E.2d 1277, 1285 (Ind.Ct.App. 2011) (citing West v. State, 755 N.E.2d 173, 186-87 (Ind. 2001)), trans. denied.
[¶34] "[A] defendant's constitutional rights are violated when a court enters judgment twice for the same offense, but not when a defendant is simply found guilty of a particular count." Green v. State, 856 N.E.2d 703, 704 (Ind. 2006). If a trial court does not formally enter a judgment of conviction on a guilty verdict, then there is no requirement that the trial court vacate the "conviction," and merger is appropriate. Kovats v. State, 982 N.E.2d 409, 414-15 (Ind.Ct.App. 2013). However, if the trial court does enter judgment of conviction on a guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required. Id.; see also Gregory v. State, 885 N.E.2d 697, 703 (Ind.Ct.App. 2008) (where trial court entered judgments of conviction on jury's verdicts of guilty for dealing and conspiracy, then later merged the convictions for double jeopardy reasons, such merging without also vacating the conspiracy conviction was insufficient to cure the double jeopardy violation), trans. denied.
[¶35] Therefore, to the extent that the trial court entered judgment of conviction on Bess's convictions for murder under Count II and attempted robbery resulting in serious bodily injury under Count III, simply merging the offenses was not sufficient, and vacation of the offenses is required. We, therefore, remand this cause to the trial court with an order to vacate the judgments of conviction for murder under Count II and Level 2 felony attempted robbery resulting in serious bodily injury under Count III.
Because we remand to the trial court to vacate Bess's murder conviction under Count II, we need not reach his argument regarding sufficiency of the evidence for that conviction.
Conclusion
[¶36] Because merely merging the judgments of conviction was insufficient to avoid double jeopardy issues, we remand to the trial court with an order to vacate Bess's convictions for murder under Count II and Level 2 felony attempted robbery resulting in serious bodily injury under Count III. Additionally, we conclude that the trial court did not abuse its discretion in admitting the text messages and the surveillance video footage from inside the jail into evidence during the trial. Further, any error in admitting the body camera footage was harmless.
Because we find that the trial court did not abuse its discretion in admitting any of the evidence, we do not reach Bess's cumulative error argument.
[¶37] Affirmed and remanded with instructions.
Vaidik, J. and Weissmann, J., concur.