Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 1 of 30

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Brent R. Dechert

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Supervising Deputy 

Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Emmanuel Arrington,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

November 20, 2019

Court of Appeals Case No.

19A-CR-94

Appeal from the Howard Superior 

Court

The Honorable Hans Pate, Judge

Trial Court Cause No.

34D04-1602-F1-31

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 2 of 30

Case Summary and Issues

[1] Following a jury trial, Emmanuel Arrington was convicted of attempted 

murder, a Level 1 felony, and unlawful possession of a firearm by a serious 

violent felon, a Level 4 felony. The trial court sentenced Arrington to forty 

years for his attempted murder conviction and twelve years for his unlawful 

possession conviction, to be served concurrently. Arrington appeals his 

convictions and sentence and raises four issues for our review: (1) whether 

Arrington knowingly, intelligently, and voluntarily waived his Sixth 

Amendment right to counsel; (2) whether the trial court committed 

fundamental error when it did not remove the jury following the refusal of a 

State’s witness to testify; (3) whether the State presented sufficient evidence to 

support Arrington’s convictions; and (4) whether the trial court abused its 

discretion in sentencing Arrington. Concluding Arrington knowingly, 

intelligently, and voluntarily waived his right to counsel, the State presented 

sufficient evidence to support Arrington’s convictions, and the trial court did 

not commit fundamental error or abuse its discretion in sentencing Arrington, 

we affirm.

Facts and Procedural History 

[2] Steven Landrum, Jeremy Wilson, and Arrington have known each other for 

many years. Early on the morning of February 2, 2016, all three men were at 

Big Daddy’s Show Club in Kokomo, Indiana. At some point, Wilson and 

Landrum got into an argument and began to physically fight. Arrington 
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jumped in and hit Landrum in the back of his head. Security broke up the fight 

and removed Arrington and Wilson from the club.

[3] After the fight, Landrum also left the club and went to Shanika Anderson’s 

house located on East Mulberry Street. At the house, Landrum called Wilson, 

accused him of trying to have sex with Landrum’s wife, and stated that “if 

[Arrington] wanted to fight me he could fight me one on one.” Transcript, 

Volume II at 222. At the time of the call, Wilson and Arrington were together 

and Landrum could hear Arrington calling him names in the background. 

Wilson asked Landrum where he was, and Landrum stated he was “over on 

Mulberry” Street. Id. at 223. Gentry Gittings, Anderson, and Yardana Horton 

were all present at the Mulberry Street house during the phone call and 

Landrum believed they could overhear the conversation because it was on 

speaker phone. Fifteen to twenty minutes later, someone knocked on the door 

of Anderson’s house and “it turned out to be [Arrington and Wilson] and 

another guy. There was three of them, one on the sidewalk, two on the porch.” 

Id. The front door of the house was open, but the storm door was closed. 

Landrum walked over to the door and “tried to open the [storm] door and then 

when I couldn’t get the door open Emanuel Arrington pulled, had his pistol in 

his hand. He up’d it and shot me in the shirt” through the door. Id. at 224. 

After Landrum was shot in the chest, he turned around and both Anderson and 

Horton heard Landrum say that Arrington “just shot me.” Id. at 186, 205. 

[4] Around 2:30 a.m., officers of the Kokomo Police Department (“KPD”) were

dispatched to the scene. Three officers wore body cameras, which recorded 
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their actions. Officers discovered a spent .380 caliber shell casing near a ramp 

that leads to the porch of the home and observed the bottom half of the glass 

storm door had been “shot out” but the top half remained intact. Id. at 146. 

Landrum was taken to St. Vincent’s Hospital in Indianapolis and ultimately 

survived his gunshot wound. However, the bullet remains lodged in Landrum’s

back and spinal cord because removing it could paralyze him. Landrum 

initially refused to tell officers who shot him but later, while in the hospital, 

identified Arrington as the shooter. See Tr., Vol. III at 4. 

[5] On February 3, 2016, the State charged Landrum with attempted murder, a 

Level 1 felony, and unlawful possession of a firearm by a serious violent felon, 

a Level 4 felony. A jury trial was scheduled for November 13, 2018. 

Throughout the proceedings, Arrington had been represented by multiple 

private attorneys. On October 5, 2018, Arrington filed a motion to proceed pro 

se, in which he stated: “I . . . feel[] compe[tent] enough to represent myself[,]”

“I have been researching and preparing my case since I have been 

incarcerated[,]” and “I am prepared and ready to go forth with my trial [set] for 

November 13, 2018[.]” Appellant’s Appendix, Volume 8 at 102. The trial 

court held a status hearing on October 30 and addressed Arrington’s motion:

[Court]: OK. So you absolutely do not want to proceed with 

an attorney representing you, is that correct?

[Arrington]: Mr. Rosselot is a paid attorney. I won’t have the 

money to go forward.
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* * *

[Court]: OK. And again, like I said, just because you didn’t 

pay doesn’t mean, given the timing of where we’re at, I don’t 

have to, again, I know I don’t have to, the law doesn’t allow me 

to allow him to withdraw, you understand?

[Arrington]: Right.

[Court]: So is it because you want to proceed and represent 

yourself or is it because you can’t afford to pay Mr. Rosselot to 

represent you, moving forward?

[Arrington]: I can’t afford to pay Mr. Rosselot.

[Court]: So you would like to have an attorney, you just 

can’t afford one?

[Arrington]: Right.

Tr., Vol. II at 83-84. The trial court asked Arrington a series of questions,

determined that he was indigent, and appointed David Rosselot as a special 

public defender. However, Arrington again requested to proceed pro se. The 

trial court and Arrington engaged in the following colloquy:

[Court]: So, Mr. Arrington, why don’t you tell the Court 

what it is that you want at this point in time? Go ahead.

[Arrington]: I would like to represent myself with standby 

counsel[.]
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* * *

[Court]: So now you’re saying that you want to proceed pro 

se, that’s your position right now?

[Arrington]: Yes, sir.

* * *

[Court]: Alright. Now, your trial is currently set for 

November 13th, 2018. You’ve indicated to me that you want to 

represent yourself at that trial. I want you to understand that you 

do have the right to represent yourself at trial, just as you have 

the right to have counsel represent you and to have the courtappointed counsel for trial . . . if you cannot afford an attorney. 

Before you make that decision final, I want you to understand 

what you will be giving up. You may have any number of 

defenses which apply to your case and which an attorney is 

trying to know. Should you be convicted of this offense you are 

facing a penalty anywhere between 45 and 65 years in jail. There 

are factors which the Court can consider in increasing your 

sentence within that range or in decreasing your sentence within 

that range. These are factors which an attorney would know 

about. An attorney has developed certain skills to assist you in 

presenting a defense to the charge against you. These include 

investigating your case, interrogating witnesses against you, and 

finding favorable witnesses and obtaining their testimony, 

explaining charges in any lesser included offenses, gathering 

documents and other kinds of written evidence, preparing and 

filing motions before trial, such as motions for speedy trial, 

motions for discovery or motions to keep unfavorable 

information from being received as evidence, examining and 

cross-examining witnesses at trial, recognizing objectionable and 

unfavorable evidence and promptly objecting to its use, 

presenting favorable sentencing information and attacking 
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unfavorable sentencing information. In jury trials presenting 

favorable opening and closing statements, preparing appropriate 

written jury instructions and selecting a jury, and training, 

knowledge and skill at properly preserving the record of the case 

for purposes of appeal. An attorney can also evaluate the 

strengths or weaknesses of the case against you and give expert 

advice on whether you should attempt to seek a plea agreement 

with the State of Indiana, which may result in the dismissal of 

some, or [all] of the charges against you and a recommendation 

for a favorable sentence in return for your guilty plea. Do you 

understand each and everything that I have said to you at this 

point? 

[Arrington]: Yes, sir.

[Court]: You must understand that if you decide not to have 

an attorney, you will not receive any special treatment with your 

defense. You will have to follow all the same rules and 

procedures in your case as an attorney would have to. The State 

will be represented by an attorney and will have the advantage 

that an attorney presents. If you decide to represent yourself and 

the result turns out badly, you need to know that you will not be 

able to complain that you were not an effective attorney in your 

own defense. Do you understand that?

[Arrington]: Yes, sir.

[Court]: OK. As I have told you, you have a right to decide 

against having an attorney but you must be aware that deciding 

not to have an attorney can turn out to be a very bad decision. 

Experienced lawyers almost always decide to be represented by 

another lawyer in a criminal case. There are some . . . things that 

you should consider before you appear at trial without an 

attorney and I want to ask you about them now. What skills or 

knowledge do you have that would be helpful to you if you 
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represent yourself? Do you have any special skills or knowledge 

about the law or about your case that would help you represent 

yourself at this time?

[Arrington]: About my case, sir.

[Court]: Alright. Do you have any special skills or 

knowledge about the law?

[Arrington]: No, sir.

[Court]: Have you ever studied criminal law?

[Arrington]: No, sir.

[Court]: Have you had previous experiences with the 

criminal justice system?

[Arrington]: Yes, sir.

[Court]: OK. Have you ever participated in a jury trial 

before?

[Arrington]: No, sir.

[Court]: Alright. And how much education have you had?

[Arrington]: To eleventh grade, sir.

[Court]: OK. Are you able to read and write?

[Arrington]: Yes, sir.
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[Court]: OK. Do you believe you’re a good speaker?

[Arrington]: Yes, sir.

[Court]: Alright. And do you believe that you can quickly 

become familiar with large numbers of special rules and 

procedures and use them the right way in a pressure situation, 

such as your own trial?

[Arrington]: Yes, sir.

[Court]: Alright. Have there been any promises or 

suggestions from anyone that you will receive special treatment 

or a milder sentence if you do not have an attorney?

[Arrington]: No, sir.

[Court]: Alright. Have there been any threats to you that 

you or another will be harmed or disadvantaged in any way if 

you do have an attorney?

[Arrington]: No, sir.

[Court]: OK. You’re not under the influence of any alcohol 

or drugs today, are you?

[Arrington]: No, sir.

Id. at 88-91. The trial court granted Arrington’s request to proceed pro se with 

Rosselot as standby counsel.
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[6] At Arrington’s jury trial, the State called Gittings as a witness. Gittings stated 

his name and that he was being held at a correctional facility for an unrelated 

matter. When the State asked Gittings whether he was at the Mulberry Street 

house on the night of the shooting, Gittings responded, “I don’t have nothing to 

say. I don’t have nothing to say.” Id. at 212. Gittings repeatedly refused to 

answer any questions. The trial court explained, “unless there is some basis or 

some right you’re asserting in not providing this testimony that you simply 

can’t willfully disregard the questions that are being asked. You’ve been 

lawfully subpoenaed. You’re required to be here, you’re required to answer.” 

Id. at 214. The trial court informed Gittings that he could be held in contempt. 

Gittings did not assert a right or privilege and Arrington did not request a 

hearing outside the presence of the jury. Instead, Gittings chose contempt, the 

trial court held him in contempt, and he was escorted from the courtroom in the 

presence of the jury. 

[7] The trial continued and the jury found Arrington guilty as charged. The trial 

court found Arrington’s criminal history and the seriousness of the crime to be 

aggravating circumstances and did not find any mitigating circumstances. The 

trial court sentenced Arrington to forty years for his attempted murder 

conviction and twelve years for his unlawful possession of a firearm by a serious 

violent felon conviction and ordered his sentences to run concurrently. 

Arrington now appeals. Additional facts will be supplied as necessary.

Discussion and Decision 
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I. Waiver of Counsel

[8] Arrington first argues that he did not knowingly, intelligently, and voluntarily

waive his right to counsel. The Sixth Amendment to the United States 

Constitution and Article 1, Section 13 of the Indiana Constitution guarantee a 

defendant the right to be represented by counsel. Kowalskey v. State, 42 N.E.3d 

97, 102 (Ind. Ct. App. 2015). “The purpose of the constitutional guaranty of a 

right to counsel is to protect an accused from conviction resulting from his own 

ignorance of his legal and constitutional rights[.]” Johnson v. Zerbst, 304 U.S. 

458, 465 (1938). This court has previously noted the right to counsel is 

“probably the most important right a defendant has because that right can affect 

a defendant’s ability to assert all his other rights and because most defendants 

do not have the professional legal skills necessary to represent themselves 

adequately.” Henson v. State, 798 N.E.2d 540, 543-44 (Ind. Ct. App. 2003), 

trans. denied.

[9] And a defendant’s right to self-representation is implicit in the Sixth 

Amendment right to counsel. Faretta v. California, 422 U.S. 806, 819-20 (1975)

(“[T]he right to self-representation – to make one’s own defense personally – is 

thus necessarily implied by the structure of the [Sixth] Amendment. The right 

to defend is given directly to the accused; for it is he who suffers the 

consequences if the defense fails.”) (footnote omitted). “[F]orcing a lawyer 

upon an unwilling defendant is contrary to his basic right to defend himself if he 

truly wants to do so.” Id. at 817. When a criminal defendant waives his right 

to counsel and elects to proceed pro se, we must evaluate whether the trial court 
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properly determined that the defendant’s waiver was knowing, voluntary, and 

intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). The defendant 

should be made aware of the dangers and disadvantages of self-representation,

Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011), and ultimately, the record 

should establish the defendant made his choice to proceed pro se with his eyes 

open, Henson, 798 N.E.2d at 544. 

[10] “Waiver of assistance of counsel may be established based upon the particular 

facts and circumstances surrounding the case, including the background, 

experience, and conduct of the accused.” Jones, 783 N.E.2d at 1138. There are 

no “prescribed talking points” that a trial court is required to include when 

advising a defendant. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). 

Instead, a trial court need only determine that the defendant is making a 

knowing, voluntary, and intelligent waiver of counsel, acknowledging the law 

indulges every reasonable presumption against a waiver of this fundamental 

right. Id. To determine whether a defendant’s waiver is knowing, voluntary,

and intelligent, we employ a four-factor test:

(1) the extent of the court’s inquiry into the defendant’s decision, 

(2) other evidence in the record that establishes whether the 

defendant understood the dangers and disadvantages of selfrepresentation, (3) the background and experience of the 

defendant, and (4) the context of the defendant’s decision to 

proceed pro se.

Id. at 1127-28; Hopper, 957 N.E.2d at 618. When applying these factors, we 

acknowledge that the trial court “is in the best position to assess whether a 
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defendant has knowingly and intelligently waived counsel[.]” Poynter, 749 

N.E.2d at 1128 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.

2001)). In addition,

we will most likely uphold the trial judge’s decision to honor or 

deny the defendant’s request to represent himself where the judge 

has made the proper inquiries and conveyed the proper 

information, and reached a reasoned conclusion about the 

defendant’s understanding of his rights and voluntariness of his 

decision.

Id. This court has suggested several guidelines for advising the defendant when 

he considers self-representation, which include:

The defendant should know of the nature of the charges against 

him, the possibility that there may be lesser included offenses 

within these charges, and the possibility of defenses and 

mitigating circumstances surrounding the charges. The 

defendant should be aware that self-representation is almost 

always unwise, that the defendant may conduct a defense which 

is to his own detriment, that the defendant will receive no special 

indulgence from the court and will have to abide by the same 

standards as an attorney as to the law and procedure, and that 

the State will be represented by experienced professional legal 

counsel.

Dowell v. State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), cert. denied, 502 

U.S. 861 (1991); see also Jones, 783 N.E.2d at 1138. However, these guidelines 

“do not constitute a rigid mandate setting forth specific inquiries that a trial 

court is required to make before determining whether a defendant’s waiver of 
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right to counsel is knowing, intelligent, and voluntary.” Jones, 783 N.E.2d at 

1138 (internal quotation omitted). 

[11] The first two Poynter factors focus on whether the defendant had sufficient 

information about the dangers and disadvantages of self-representation, one 

through the trial court’s inquiry, and the other through any other evidence in 

the record. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008). Arrington 

concedes that the trial court reviewed “many advantages [that] being 

represented by an experienced attorney could bring” but takes issue with the 

trial court’s alleged use of a “bench book” advisement. Amended Brief of 

Appellant at 17. He maintains that the trial court failed to engage in a 

meaningful colloquy and did not dive “into the many pitfalls that a layperson 

would expect to experience in representing himself, especially in a complicated 

and serious criminal matter[.]” Id. We disagree.

[12] At the status hearing, the trial court emphasized that, before Arrington made 

the decision to proceed pro se, it “want[ed Arrington] to understand what [he] 

will be giving up.” Tr., Vol. II at 89. The trial court informed Arrington of the 

following: that an attorney would be aware of any applicable defenses; an 

attorney would be aware of the factors the trial court would consider in 

imposing his sentence; and an attorney has skills to assist in defending his case, 

including investigating the case, interrogating witnesses, finding favorable 

witnesses, obtaining documents and written evidence, explaining lesser 

included offenses, preparing and filing motions before trial such as for speedy 

trial or discovery, examining and cross-examining witnesses, recognizing and 
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objecting to certain evidence, preparing jury instructions, preserving the record 

for appeal, evaluating the strengths and weaknesses of the case, and 

determining whether a plea agreement is wise. The trial court advised

Arrington that, if convicted, he faces forty-five to sixty-five years of 

imprisonment, he would not receive special treatment if he proceeded pro se, he 

must follow the same rules and procedures as an attorney is required to do, he 

could not later claim ineffective assistance of counsel, and the State would have 

the advantage of being represented by an attorney. The trial court also 

informed Arrington that “deciding not to have an attorney can turn out to be a 

very bad decision . . . [and e]xperienced lawyers almost always decide to be 

represented by another lawyer in a criminal case.” Id. at 90. Because the trial 

court thoroughly explained the dangers and disadvantages of selfrepresentation, this factor weighs in favor of a knowing, intelligent, and 

voluntary waiver of counsel.

[13] The record also reveals that Arrington was “no stranger to the criminal justice 

system” and confirms that he is an experienced criminal litigant. See Taylor v. 

State, 944 N.E.2d 84, 90-91 (Ind. Ct. App. 2011). The trial court confirmed 

with Arrington that he has had “previous experiences” with the criminal justice 

system, which, according to Arrington’s presentence investigation report, 

includes sixteen felony convictions and ten misdemeanor convictions. Tr., Vol. 

II at 90-91; Appellant’s App., Vol. 8 at 121. The evidence in the record 

demonstrates that Arrington had the requisite background and experience to 

make a knowing, voluntary, and intelligent waiver of counsel. Therefore, this 
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factor weighs in favor of a knowing, voluntary, and intelligent waiver of 

counsel. 

[14] The third factor concerns whether the defendant has the background and 

experience necessary to make a voluntary, knowing, and intelligent waiver of 

his or her right to counsel. Drake, 895 N.E.2d at 394. After the trial court 

explained the many dangers of self-representation, it engaged in a colloquy with 

Arrington regarding his background. The trial court asked Arrington whether 

he had ever studied criminal law, had any special skills or knowledge about the 

law, had ever participated in a jury trial, and had the ability to read and write. 

The trial court also asked about the extent of his education. Although 

Arrington confirmed that he did not have any special skills or knowledge about 

the law or a jury trial, he did confirm that he had an eleventh grade education, 

can read and write, believed he was a good speaker, and that he believed he 

would be able to quickly become familiar with the large number of special rules 

and procedures applicable to a jury trial. The trial court also confirmed that 

Arrington was not under the influence of any substance and had not been 

promised special treatment or a lesser sentence to proceed pro se. 

[15] Finally, we evaluate the context of Arrington’s decision to represent himself. If 

a defendant’s decision to proceed without counsel appears tactical, then this 

factor weighs in favor of finding a knowing and intelligent waiver. Drake, 895 

N.E.2d at 395. Arrington argues that the context in which he elected to 

represent himself reveals that he proceeded pro se solely to avoid further delays 

in his trial as he had been incarcerated since his arrest on February 11, 2016. 
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He maintains that the record demonstrates that he clearly wanted an attorney;

however, the record reveals otherwise. 

[16] Arrington’s lead attorney, Fred Grady, filed a motion to withdraw due to 

medical issues on July 30, 2018, one week prior to a scheduled trial date. In his 

motion, Grady stated that over a year before, Rosselot had entered his 

appearance as “local counsel” on behalf of Arrington and had been assisting 

Grady. Appellant’s App., Vol. 8 at 84. The trial granted Grady’s motion and 

the trial was continued. On October 5, 2018, Arrington filed a motion to 

proceed pro se, in which he stated: “I . . . feel[] compe[tent] enough to represent 

myself[,]” “I have been researching and preparing my case since I have been 

incarcerated[,]” and “I am prepared and ready to go forth with my trial[.]” Id.

at 102. On October 20, 2018, Rosselot filed a motion to withdraw his 

appearance as Arrington wished to represent himself. The same day, the trial 

court held a status hearing and engaged in a colloquy with Arrington regarding 

his decision to proceed pro se. Arrington initially stated he could no longer 

afford Rosselot and the trial court found Arrington indigent and offered to 

appoint a public defender to represent him. Ultimately, the trial court 

appointed Rosselot as Arrington’s stand by public defender. 

[17] The evidence in the record supports a strategic decision by Arrington to proceed 

pro se, rather than to avoid further delay. Arrington stated that he had been 

researching his case, felt prepared for trial, and declined the appointment of 

Rosselot as counsel. Instead, Arrington wanted to represent himself with 

Rosselot as standby counsel. The context of Arrington’s decision to proceed 
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pro se weighs in favor of a knowing, voluntary, and intelligent waiver of 

counsel. 

[18] Arrington is an experienced criminal litigant, had stand by counsel throughout 

his trial, and had been sufficiently warned of the dangers and disadvantages of 

representing himself. Based on all four factors, Arrington’s decision to waive 

counsel and proceed pro se was knowing, voluntary, and intelligent. 

II. Fundamental Error

[19] Arrington next claims the trial court committed fundamental error by failing to 

remove the jury after Gittings refused to testify and by failing to conduct a 

hearing on Gittings’ refusal outside the presence of the jury. Arrington 

concedes that he did not object to the trial court’s procedure and therefore must 

demonstrate fundamental error. 

[20] A claim that has been forfeited by a defendant’s failure to raise a 

contemporaneous objection can nonetheless be reviewed on appeal if 

fundamental error has occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind. 

2010). Fundamental error allows this court to “address an error that made a 

fair trial impossible or constituted a clearly blatant violation of basic and 

elementary principles of due process presenting an undeniable and substantial 

potential for harm[.]” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014)

(internal quotations and alterations omitted), cert. denied, 135 S.Ct. 970 (2015). 

The fundamental error exception is “extremely narrow,” Matthews v. State, 849 

N.E.2d 578, 587 (Ind. 2006), and a “daunting standard[,]” applicable only in 
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egregious circumstances, Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. 

denied, 135 S.Ct. 978 (2015).

[21] Indiana Code section 35-37-3-1 provides the proper procedure when a witness 

refuses to testify:

(a) If a witness, in any hearing or trial occurring after an 

indictment or information has been filed, refuses to answer 

any question . . . , the court shall remove the jury, if one is 

present, and immediately conduct a hearing on the witness’s 

refusal. After such a hearing, the court shall decide whether 

the witness is required to answer the question[.]

(b) If the prosecuting attorney has reason to believe that a witness 

will refuse to answer a question . . . during any criminal trial, 

the prosecuting attorney may submit the question or request 

to the trial court. The court shall hold a hearing to determine 

if the witness may refuse to answer the question[.]

Although we recognize that the trial court did not remove the jury and 

immediately conduct a hearing on Gittings’ refusal to testify as required by the 

statute, Arrington fails to demonstrate that this deprived him of the opportunity 

for a fair trial.

[22] The State claims the statute contemplates that the jury would hear a witness’ 

refusal to testify at least once and therefore, a witness’ continued refusal to 

testify, in the presence of the jury, does not rise to the level of fundamental 

error. Arrington asserts that “[i]t appears likely that the State knew Gittings 

would refuse to testify” based on the following statement Gittings’ made: “I 

tried to contact, I mean as you know, I’ve been trying to contact and have my 
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people contact me and I still got forced to come here so I don’t have nothing to 

say.” Amended Br. of Appellant at 20 (citing Tr., Vol. II at 212). Arrington 

maintains that, because of Gittings’ refusal to testify, the jury could infer that 

Gittings was “somehow unduly influenced by Arrington into not cooperating. 

The State made a conscious and flagrant attempt to build its case on this 

inference.” Amended Br. of Appellant at 20-21. As the State notes, there are 

numerous explanations as to why Gittings may have decided not to testify and 

we are not at liberty to speculate. Ultimately, we are unpersuaded that this sole 

statement presents evidence that the State knew before trial that Gittings would 

refuse to testify and then made the conscious decision to demonstrate that 

Arrington convinced or unduly influenced Gittings into not testifying. 

[23] In State v. Eubanks, a panel of this court held that the witnesses’ invocations of 

the Fifth Amendment did not prejudice the defendant or deprive him of a fair 

trial. 729 N.E.2d 201, 206-07 (Ind. Ct. App. 2000). There, the trial court had 

concluded that the witnesses’ invocations of their Fifth Amendment privilege 

was fundamental error. Id. at 206. In post-conviction proceedings, the 

defendant argued that the State called the witnesses to the stand knowing they 

would invoke the privilege, which constituted fundamental error as he failed to 

object at trial. Id. This court looked to the United States Supreme Court’s 

decision in Namet v. United States, 373 U.S. 179 (1963), in which it indicated that 

to determine whether prejudicial error occurred, courts should look to the 

particular circumstances of each case. Id. at 207. In doing so, courts should 

focus on two factors: (1) error may result from prosecutorial misconduct when 
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the government makes a “conscious and flagrant” attempt to build its case out 

of inferences arising from a witness’s invocation of the privilege; and (2) 

prejudicial error may occur when the inferences from a witness’s refusal to 

testify add “critical weight to the prosecution’s case.” Id. (quoting Namet, 373 

U.S. at 186-87). Although this court disproved of the prosecution’s tactics in 

calling witnesses they knew would invoke the Fifth Amendment, it determined 

there was no evidence that the State attempted to build its case out of the 

inferences, that the State relied on their assertions of privilege to establish the 

elements of the offenses, or that the testimony added critical weight to the 

State’s case. Id. at 207-08. We held that the defendant was not deprived of a 

fair trial because any adverse inference that could be drawn from the witnesses’ 

invocations was merely cumulative, the State’s questioning was of a limited 

nature, and there were a substantial number of witnesses presented. Id. at 208. 

And thus, no fundamental error occurred.

[24] Such is the case here. Even if the State knew Gittings would refuse to testify, as 

Arrington maintains, there is no evidence in the record that the State made a 

“conscious and flagrant” attempt to build its case out of the adverse inferences 

arising from Gittings refusal to testify, that the State relied on Gittings’ refusal 

to establish the elements of the offenses, or that the inferences added critical 

weight to its case. Unlike the witnesses in Eubanks, Gittings did not invoke his 

Fifth Amendment privilege, which would have been arguably more prejudicial

than his refusal to testify. Given the numerous witnesses who testified at trial

and the evidence admitted, including the officers’ body camera footage, we 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 22 of 30

cannot conclude that Arrington was deprived of a fair. He has failed to prove 

that the trial court’s failure to remove the jury and conduct a hearing on 

Gittings’ refusal to testify was a “blatant violation of [his] basic and elementary 

principles of due process presenting an undeniable and substantial potential for 

harm[.]” Brewington, 7 N.E.3d at 974. Accordingly, no fundamental error 

occurred. 

III. Sufficiency of the Evidence

[25] Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957 

N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. In reviewing the sufficiency 

of the evidence required to support a criminal conviction, we do not reweigh 

the evidence or judge the credibility of the witnesses. Bailey v. State, 907 N.E.2d 

1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable 

to the verdict and the reasonable inferences supporting it. Id. Therefore, it is 

not necessary that the evidence overcome every reasonable hypothesis of 

innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “[W]e will affirm 

the conviction unless no reasonable trier of fact could have found the elements 

of the crime beyond a reasonable doubt.” Id.

[26] The State must prove all elements of the charged crime beyond a reasonable 

doubt. Taylor v. State, 587 N.E.2d 1293, 1301 (Ind. 1992); Ind. Code § 35-41-4-

1(a) (“A person may be convicted of an offense only if his guilt is proved 

beyond a reasonable doubt.”). A person who “knowingly or intentionally kills 

another human being” commits murder, a felony. Ind. Code § 35-42-1-1(1). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 23 of 30

Indiana’s attempt statute provides: “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. . . . [A]n attempt to commit murder is a Level 1 

felony.” Ind. Code § 35-41-5-1(a). 

[27] The only element Arrington challenges is his identity as the shooter. He argues 

that the State failed to produce sufficient evidence identifying him as the alleged 

shooter and therefore, his convictions should be reversed. The State produced 

the following testimony and circumstantial evidence to prove Arrington was the 

shooter:

• Wilson and Landrum got into an altercation at Big Daddy’s and 

Arrington jumped in and hit Landrum in the back of the head. Tr., Vol. 

II at 220.

• Following the altercation, Landrum called Wilson and told him if 

Arrington “wanted to fight me he could fight me one on one.” Id. at 222. 

Arrington was with Wilson at the time and Landrum could hear 

Arrington calling him names in the background. Landrum subsequently 

told them he was “over on Mulberry.” Id. at 223.

• Landrum testified that when he heard a knock on the door, he walked to 

the door, witnessed Arrington at the door holding a pistol in his hand, 

and then shot him in the chest. Id. at 224.
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• Anderson and Horton both testified that, after Landrum was shot, he 

turned around and stated,“[Arrington] just shot me.” Id. at 186, 205. 

• Following the shooting, Detective James Nielson presented a photo array 

of six individuals to Anderson and she identified Arrington as the 

shooter. She wrote her initials and date next to the photo she identified 

as Arrington. See id. at 200-01; Exhibits Volume at 10-11.

• KPD Officers Brent Wines and Ryan Shuey testified that, at the scene,

Anderson stated that Arrington shot Landrum. Tr., Vol. II at 133-34, 

170-72. Officer Wines also testified that Anderson stated that she 

witnessed Arrington with a gun on the porch of her home but did not see 

Arrington fire the weapon. Id. at 149.

• On or around February 4, 2016, KPD Officer Purtee visited Landrum in 

the hospital to take his statement during which time Landrum stated that 

Arrington shot him. Tr., Vol. III at 4. Officer Purtee also showed 

Landrum a photo array and asked him to identify who shot him. 

Landrum positively identified Arrington as the shooter. 

• Expert Glenn Bard analyzed and mapped the cell phone records for 

Wilson and Arrington between 2:27 and 2:32 a.m. on February 2, 2016, 

placing them in the area of the scene of the crime. Id. at 18; Exhibit Vol. 

at 83-93.
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[28] Arrington argues that because Landrum had consumed alcohol the night of the 

shooting, he is an unreliable witness and his testimony is “so unbelievable and 

incredible” that it falls under the incredible dubiosity rule. Amended Br. of 

Appellant at 22. 

The incredible dubiosity rule allows this court to impinge upon a 

fact finder’s responsibility to judge the credibility of the witnesses 

only when confronted with “inherently improbable” testimony. 

The rule is applied in limited circumstances, namely where there 

is 1) a sole testifying witness; 2) testimony that is inherently 

contradictory, equivocal, or the result of coercion; and 3) a 

complete absence of circumstantial evidence. Application of the 

incredible dubiosity rule is rare and the standard to be applied is 

whether the testimony is so incredibly dubious or inherently 

improbable that no reasonable person could believe it.

Morris v. State, 114 N.E.3d 531, 536 (Ind. Ct. App. 2018) (emphasis added) 

(internal citations omitted), trans. denied. The second prong is satisfied only 

when the witness’s trial testimony is inconsistent within itself, not when it is 

inconsistent with other evidence or prior testimony. Smith v. State, 34 N.E.3d 

1211, 1221 (Ind. 2015). Accordingly, this rule is inapplicable to the present case 

because, as demonstrated above, the State presented witnesses who 

corroborated Landrum’s testimony and his testimony was not inconsistent 

within itself. 

[29] In sum, the State presented sufficient evidence from which the trier of fact could 

have found the elements of the crimes, including Arrington’s identity as the 

shooter, beyond a reasonable doubt. Arrington argues that it was factually 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 26 of 30

impossible for him to have shot Landrum given Landrum’s height and the fact 

that only the bottom portion of the storm door, not the top half, was shattered. 

Arrington’s argument constitutes a request for this court to reweigh the 

evidence, which we cannot do. See Bailey, 907 N.E.2d at 1005. We conclude 

there was sufficient evidence to support Arrington’s convictions. 

IV. Sentencing

[30] Finally, Arrington asserts that the trial court erred by issuing an inadequate 

sentencing statement, finding an improper aggravating factor, and failing to find

one mitigating factor. We disagree.

[31] 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. Thus, we review only for an abuse of discretion, which occurs if the trial 

court’s decision is “clearly against the logic and effect of the facts and 

circumstances before [it], or the reasonable, probable, and actual deductions to 

be drawn therefrom.” Id. A trial court may abuse its discretion by: (1) failing 

to enter a sentencing statement; (2) entering a sentencing statement that 

explains reasons for imposing the sentence that are unsupported by the record; 

(3) omitting reasons clearly supported by the record and advanced for 

consideration; or (4) finding factors that are improper as a matter of law. 

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). The identification or 

omission of reasons provided for imposing a sentence are reviewable on appeal 

for an abuse of discretion, but the weight given to those reasons is not subject to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 27 of 30

appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), 

trans. denied.

[32] Here, the trial court found Arrington’s criminal history and the seriousness of 

the crime as aggravating circumstances and did not find any mitigating 

circumstances. Arrington argues that the “seriousness of the crime” is an 

improper aggravating circumstance absent “some detailed explanation as to 

how it was more significant than the crime itself.” Amended Appellant’s Br. at 

25. “[A] material element of a crime may not also constitute an aggravating 

circumstance to support an enhanced sentence, but the particularized individual 

circumstances may be considered as a separate aggravating factor.” Williams v. 

State, 619 N.E.2d 569, 573 (Ind. 1993). Although the trial court did not expand 

on this particular aggravating factor, a reasonable interpretation, based on the 

evidence in the record, is that the trial court viewed the nature of the crime and 

injury to the victim, rather than the elements of the crime itself, as very serious. 

The record reveals that the bullet entered Landrum’s chest three inches from his 

heart and remains lodged in his back and spinal cord because removal of the 

bullet could paralyze him. The trial court did not abuse its discretion with 

respect to this aggravating factor. Even so, Arrington does not challenge the 

trial court’s finding that his criminal history, which is comprised of sixteen 

felonies and ten misdemeanors, was an aggravating circumstance. And a single 

valid aggravating circumstance is adequate to justify an enhanced sentence. 

Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001). Accordingly, we find no 

error.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 28 of 30

[33] Arrington also maintains that the trial court failed to identify the undue 

hardship of his incarceration on his four children as a mitigating circumstance.

First, as the State points out, Arrington did not proffer this as a mitigating 

circumstance to the trial court at the sentencing hearing. See Tr., Vol. III at 

196-98. Therefore, Arrington has waived any alleged error with respect to this 

issue. Banks v. State, 841 N.E.2d 654, 659 (Ind. Ct. App. 2006) (defendant 

waived claims of error regarding the trial court’s failure to identify mitigating 

circumstances because the defendant failed to raise them to the trial court at the 

sentencing hearing), trans. denied; see also Bryant v. State, 802 N.E.2d 486, 501 

(Ind. Ct. App. 2004) (failure to present claim that the defendant’s drug abuse 

history should have been a mitigating circumstance rather than an aggravating 

circumstance at the sentencing hearing resulted in waiver on appeal), trans. 

denied. 

[34] Waiver notwithstanding, Arrington’s argument fails. We begin by noting that 

the determination of mitigating circumstances is within the trial court’s 

discretion. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. 

denied. A trial court is not obligated to accept a defendant’s claim as to what 

constitutes a mitigating circumstance, Weedman, 21 N.E.3d at 893, nor is it 

required to weigh a mitigating factor as heavily as the defendant requests, Field 

v. State, 843 N.E.2d 1008, 1010 (Ind. Ct. App. 2006), trans. denied. “An 

allegation that the trial court failed to identify or find a mitigating factor 

requires the defendant to establish that the mitigating evidence is both 

significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 29 of 30

[35] Indeed, we recognize many families of incarcerated individuals suffer hardship

as a result of their incarceration. As this court has explained, “[m]any people 

convicted of serious crimes have one or more children, and absent special 

circumstances, trial courts are not required to find that imprisonment will result 

in an undue hardship.” Ware v. State, 816 N.E.2d 1167, 1178 (Ind. Ct. App. 

2004). Arrington has failed to demonstrate that the undue hardship on his 

children involves special circumstances. Cf. Anglin v. State, 787 N.E.2d 1012, 

1018 (Ind. Ct. App. 2003) (no abuse of discretion in failing to consider the 

impact of the defendant’s incarceration on his child as a mitigating 

circumstance where the mother had care and custody of their ill child and there 

was no evidence that the child’s needs would not be met during defendant’s 

incarceration), trans. denied.

[36] In sum, the trial court properly identified aggravating circumstances and there 

is no evidence in the record revealing special circumstances with respect to the 

undue hardship on Arrington’s children as a result of his incarceration. 

Accordingly, the trial court did not abuse its discretion in sentencing Arrington.

Conclusion

[37] For the reasons set forth above, we conclude Arrington knowingly, intelligently, 

and voluntarily waived his right to counsel and the State present sufficient 

evidence to support Arrington’s convictions for attempted murder and unlawful 

possession of a firearm by a serious violent felon. We also conclude that the 

trial court did not commit fundamental error when it did not remove the jury 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-94 | November 20, 2019 Page 30 of 30

from the courtroom following a State’s witness’ refusal to testify. Finally, the 

trial court did not abuse its discretion in sentencing Arrington. Accordingly, 

the judgment of the trial court is affirmed.

[38] Affirmed.

Mathias, J., and Pyle, J., concur.