Court of Appeals of Indiana | Memorandum Decision 82A01-1507-CR-966 | March 17, 2016 Page 1 of 13

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

Yvette M. LaPlante

Keating & LaPlante, LLP

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Myles K. Martin, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 17, 2016

Court of Appeals Case No.

82A01-1507-CR-966

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert J. Pigman, 

Judge

Trial Court Cause No.

82D02-1404-FB-418

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Defendant, Myles K. Martin (Martin), appeals his conviction for 

carjacking, a Class B felony, Ind. Code § 35-42-5-2(1) (2014); resisting law 

enforcement, a Class D felony, I.C. § 35-44-3-3(a)(1); resisting law enforcement, 

a Class A misdemeanor, I.C. § 35-44-3-3(a)(2); and his adjudication as a

habitual offender, I.C. § 35-50-2-8.

[2] We affirm.

ISSUES

[3] Martin raises two issues on appeal, which we restate as follows: 

(1) Whether the trial court abused its discretion when it admitted certain outof-state documents; and

(2) Whether the State committed prosecutorial misconduct amounting to 

fundamental error.

FACTS AND PROCEDURAL HISTORY

[4] On March 29, 2014, at approximately 8.00 a.m., Pennie Hart (Hart), a 

hairdresser from Evansville, Indiana, drove her silver Lexus SUV to work. 

When she parked the vehicle, a man, later identified as Martin, opened her 

driver’s door, pointed an object that appeared to be a handgun at her, and 

ordered Hart to exit the vehicle. Afraid that she would get shot, Hart complied 
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with the order. Martin entered the vehicle and drove away. Hart immediately 

called the police. 

[5] Shortly thereafter, police officers spotted the SUV outside a nearby apartment 

complex. One of the officers approached the SUV, identified himself as a 

police officer, and commanded Martin to show his hands and exit the vehicle. 

Martin refused, backed the SUV up into a parked car, and drove away. The 

officers shot the tires of the vehicle. After a brief chase, Martin abandoned the 

SUV in a muddy field, leaving his driver’s license in the process, and continued 

to flee on foot. He was apprehended before he was able to cross the field. 

During their investigation, law enforcement recovered a BB gun, which was 

consistent with Hart’s description of the weapon used by Martin, from the 

SUV. 

[6] On April 1, 2014, the State filed an Information charging Martin with Count I, 

armed robbery, a Class B felony; Count II, carjacking, a Class B felony; Count 

III, felon carrying a handgun, a Class C felony; Count IV, resisting law 

enforcement, a Class D felony; and Count V, resisting law enforcement, a Class 

A misdemeanor. On April 2, 2014, the State alleged Martin to be a habitual 

offender. A bifurcated jury trial was commenced on June 8, 2015. During the 

guilt phase of the trial, the jury found Martin guilty of robbery, carjacking, and 

two Counts of resisting law enforcement. During the habitual offender phase of 

the trial, the State alleged that Martin had previously been convicted of two 

unrelated felonies. Martin’s first felony was an unlawful taking of a 1994 

Chrysler automobile on or about June 10 or 11, 1996, in Daviess County, 
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Kentucky. Martin was convicted for theft on January 31, 1997, under Cause 

No. 96-CR-214. His second felony was a car chase on July 2, 2012, in Daviess 

County, Kentucky. Martin was convicted for fleeing or evading police in the 

first degree on January 18, 2013, under Cause No. 12-CR-514. 

[7] To establish Martin’s conviction in Cause No. 96-CR-214, the State offered

certified copies of the indictment, motion to enter guilty plea, the judgment and

sentencing order. Each document was stamped with a certification stating “I 

certify that the foregoing is a full and correct copy as appears in my office, this 

4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk Daviess Circuit Court, by 

J.B. D.C.” (Ex. 1-3); (Appellant’s App. pp. 149-156) (handwritten part 

italicized). The judgment and sentencing order stated Martin’s date of birth and 

his social security number. To prove Martin’s conviction in Cause No. 12-CR514, the State offered certified copies of the indictment, motion to enter guilty 

plea, and the judgment and sentencing order. Each document was stamped 

with a certification stating, “I certify that the foregoing is a full and correct copy 

as appears in my office, this 4[th] day of Feb[.], 2015, Susan W. Tierney, Clerk 

Daviess Circuit Court, by J.B. D.C.” (Ex. 4-6); (Appellant’s App. pp. 163-172)

(handwritten part italicized). The judgment and sentencing order stated 

Martin’s date of birth, and the indictment stated his social security number. 

Martin objected to the admission of Exhibits 1 through 6 claiming that they did 

not comply with Ind. Evidence Rule 902, but the trial court overruled his 

objections.
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[8] During closing arguments, defense counsel acknowledged that the evidence 

admitted by the trial court established Martin’s convictions for two prior 

unrelated felonies. Nonetheless, defense counsel urged the jury to decline 

finding Martin a habitual offender. Defense counsel compared Martin to a 

hypothetical person alleged to be a habitual smoker:

If you smoke, if you are a habitual smoker, you probably smoke 

every day. It’s not where you smoke when you’re 19 years old, 

maybe have a cigar when you’re 19 years old and then you don’t 

have another one until you are 35. Well guess what? That is 

kind of what we have here. [Martin] was 19 when that first 

conviction was entered back in 1997. Nineteen (19) years old. 

Sixteen (16) years pass and he is convicted in 2013. Does that 

make one habitually in trouble? Habitually in trouble such as to 

elevate his sentence before you.

(Transcript p. 156).

[9] In rebuttal, the prosecutor argued:

[Defense counsel] wants you to be swayed by your emotions, he

wants you to um I guess take pity on ... Martin because he did 

one (1) crime once when he was 19 years old and then didn’t do 

anything else, he was a good boy until 2012. Not exactly the

case. He says there were no other convictions in between there. 

He doesn’t have any documents to show that there weren’t. He

committed a crime in [1996], he committed one (1) in 2012 and 

then again in 2014. He wants you to be swayed by your 

emotions. The State Legislature has said you commit crimes in 

our State or anywhere else you are deserving of more 

punishment. We can’t let you run around committing crimes, 

hurting people, some of those crimes where (sic) the same. His 

first one was [t]heft, his next one was [t]heft, [f]leeing from the
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police and now he has done it again. And to have it is behavior 

it is what he does. [The] State Legislature has determined that he 

is a person that needs to be considered [a] Habitual Offender and 

that is why they make the law the way it is. We only have to 

prove two (2) convictions, we picked two (2), we’ve proven to

you those beyond a reasonable doubt. Find him guilty of being 

[a] Habitual Offender. 

(Tr. pp. 158-59). Martin did not object to the State’s rebuttal comments. At the 

conclusion of the jury trial on June 9, 2015, the jury found Martin to be a

habitual offender. On July 15, 2015, the trial court held a sentencing hearing, 

declined to enter judgment for robbery due to double jeopardy concerns, and 

sentenced Martin to an aggregate term of 42 years, which included an 

enhancement of 30 years due to Martin’s habitual offender status, to be 

executed at the Department of Correction. 

[10] Martin now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Authenticity of Documents

[11] Martin argues that the copies of documents showing his prior convictions in 

Kentucky were not properly authenticated, and hence the trial court erred in 

admitting them. The determination of whether evidence has been 

authenticated is within the discretion of the trial court. In re B.J.R., 984 N.E.2d 

687, 694 (Ind. Ct. App. 2013). We will reverse the trial court’s ruling only for 

an abuse of discretion. Id. An abuse of discretion occurs when the decision is 
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clearly erroneous and against the logic and effect of the facts and circumstances 

before the court. Id. 

[12] In Indiana, the determination of whether an order of conviction and sentencing 

from another state is authenticated and may be admitted into evidence is 

governed by the Rules of Evidence. Id. at 694-95; see Ind. Trial Rule 44. Under 

the Rules of Evidence, the requirement of authentication or identification as a 

condition precedent to admissibility is satisfied by evidence sufficient to support 

a finding that the matter in question is what its proponent claims. In re B.J.R., 

984 N.E.2d at 695; see Evid. R. 901(a). Certain documents, however, are selfauthenticating and no extrinsic evidence is necessary for their admission. T.R. 

902. These documents include certified copies of public records pursuant to 

T.R. 902(4). A certification, which states that it is the official original record, or 

a true and accurate copy thereof, by a public officer from the specific 

jurisdiction where the record is kept is sufficient to authenticate the record, and 

there is no mandate that the certification take a particular form. In re B.J.R., 

984 N.E.2d at 695. The certifying officer’s initials are sufficient attestation. 

Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplemented on 

reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000). Moreover, certification under seal 

is required only when proof of the record’s possession is at issue. Id. Finally, 

there is no requirement of extrinsic proof or judicial certification that the 

certifying public official is the record’s custodian. Id. 

[13] Here, our review of the record indicates that the trial court was within its 

discretion in admitting the evidence. Exhibits 1 through 6 were copies of court 
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documents showing Martin’s prior out-of-state convictions and fell within the 

self-authenticating category of the trial rules and do not require proof by 

extrinsic evidence. A proper public officer charged to keep these records was 

the circuit court clerk. See Mercer v. Com., 330 S.W.2d 734, 737 (Ky. Ct. App. 

1959). A deputy clerk was authorized to authenticate court records. See Lucas 

v. Comm., 134 S.W. 456, 457 (Ky. Ct. App. 1911). Further, each Exhibit was 

stamped with a certification statement that left blank space for a date and a 

signature. The signature line ended with “D.C.,” which we find to stand for 

Deputy Clerk. (Ex. 1-6); see, e.g., Stewart v. State, 688 N.E.2d 1254, 1259 (Ind. 

1997) (a record of prior conviction from Kenton County, Kentucky, was 

certified by a deputy clerk of the circuit court with “Marry Ann Woltenberg, 

Clerk. By Judy Stall, D.C.,” where “D.C.” was inferred to be Deputy Clerk). 

Finally, the deputy clerk dated and initialed each certification statement

attesting each copy to be true and correct. Because there is no particular form 

required for the attestations, we find that these certification statements made by 

the custodian of the court records in Daviess County, Kentucky, satisfy our 

rules of evidence. As such, we conclude that the trial court was within its 

discretion to find Exhibits 1 through 6 properly authenticated.

II. Prosecutorial Remarks

[14] Martin alleges that the prosecutor committed misconduct during her rebuttal 

argument. 

In reviewing a claim of prosecutorial misconduct properly raised 

in the trial court, we determine (1) whether misconduct occurred, 
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and if so, (2) whether the misconduct, under all of the

circumstances, placed the defendant in a position of grave peril to 

which he or she would not have been subjected otherwise. A 

prosecutor has the duty to present a persuasive final argument 

and thus placing a defendant in grave peril, by itself, is not 

misconduct. Whether a prosecutor’s argument constitutes 

misconduct is measured by reference to case law and the Rules of 

Professional Conduct. The gravity of peril is measured by 

the probable persuasive effect of the misconduct on the jury’s 

decision rather than the degree of impropriety of the conduct. To 

preserve a claim of prosecutorial misconduct, the defendant 

must—at the time the alleged misconduct occurs—request an 

admonishment to the jury, and if further relief is desired, move 

for a mistrial.

Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g 

denied.

[15] Martin neither raised any objection to, nor sought relief from, the prosecutor’s 

remark during trial. Therefore, now, to avoid procedural default, the defendant 

must establish not only the grounds for prosecutorial misconduct but must also 

establish that the prosecutorial misconduct constituted fundamental error. Id. 

at 667-68. Fundamental error is an extremely narrow exception to the waiver 

rule where the defendant faces the heavy burden of showing that the alleged 

errors are so prejudicial to the defendant’s rights as to make a fair trial 

impossible. Id. at 668. In other words, to establish fundamental error, the 

defendant must show that, under the circumstances, the trial court erred in 

not sua sponte raising the issue because alleged errors (a) constitute clearly 

blatant violations of basic and elementary principles of due process and 
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(b) present an undeniable and substantial potential for harm. Id. The element 

of such harm is not established by the fact of ultimate conviction but rather 

depends upon whether the defendant’s right to a fair trial was detrimentally 

affected by the denial of procedural opportunities for the ascertainment of truth

to which he otherwise would have been entitled. Id. 

In evaluating the issue of fundamental error, our task [then] is to 

look at the alleged misconduct in the context of all that happened 

and all relevant information given to the jury—including 

evidence admitted at trial, closing argument, and jury 

instructions—to determine whether the misconduct had such an 

undeniable and substantial effect on the jury’s decision that a fair trial 

was impossible. 

Id. (emphasis in original). 

[16] Here, pointing to the prosecutor’s rebuttal statement that it was “not exactly the 

case” that Martin had lived a law-abiding life between 1997 and 2012 and that 

the State had “picked two” prior convictions, Martin maintains that the 

prosecutor in essence suggested to the jury that Martin did not live a lawabiding life until 2012, improperly used facts not in evidence, and improperly 

shifted the burden of proof to Martin to show that that he had no convictions 

between 1997 and 2012. (Appellant’s Br. p. 8). 

[17] Our review of the record indicates that the prosecutor’s remark in response to 

defense counsel’s closing argument, when placed within the context of both 

arguments, was not an impermissible inference. Defense counsel compared 

Martin to someone alleged to be a habitual smoker, who smokes every day. He 
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continued his illustration and suggested that smoking three times in many years 

does not make one a habitual smoker. Defense counsel then asserted that, 

likewise, Martin was not “habitually in trouble such as to elevate his sentence 

before [the jury]” and Martin’s “three incidences of criminal activity” in 18 

years did not make him a habitual offender. (Tr. pp. 156-57). Martin was not 

merely stating that the State had not proven additional unrelated felonies; 

rather, he was suggesting that he had not been involved in any criminal conduct 

during those years. The prosecutor’s response mainly amounted to pointing to 

the speculative nature of Martin’s comparison and resulting conclusion. Under 

these circumstances, where defense counsel introduced a hypothetical example, 

compared it to the defendant’s situation, made an inference, and then was 

rebutted with the evidence of his prior convictions, we fail to see the alleged 

prosecutorial wrong, use of facts outside of the evidence, and shift of the burden 

of proof. 

[18] Furthermore, even if the prosecutor’s response had a negative effect on the jury, 

such effect was de minimus because the jury had received proper preliminary and 

final instructions. See, e.g., Neville v. State, 976 N.E.2d 1252, 1263-65 (Ind. Ct.

App. 2012) (the defendant was not placed in grave peril by prosecutor’s 

statement because the trial court’s preliminary and final jury instructions 

diminished any persuasive effect the prosecutor’s comments might have had on 

the jury’s decision if left unanswered), trans. denied; Stephenson v. State, 742 

N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial impropriety 

which may have occurred was de minimus or otherwise overcome by the trial 
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court’s admonishments and instructions, we are unable to conclude that 

Defendant was placed in grave peril.”). In its preliminary instructions, the trial 

court informed the jury that it must base its decision only on the evidence 

presented during the trial and trial court’s instructions on the law. In Court’s 

Preliminary Instruction No. 13, the trial court clearly stated:

When the evidence is completed, the attorneys may make final 

arguments. The final arguments are not evidence. The attorneys 

are permitted to characterize the evidence, discuss the law[,] and 

attempt to persuade you to a particular verdict. You may accept 

or reject those arguments as you see fit. 

(Appellant’s App. p. 55).

[19] During the habitual offender phase of the trial, the State introduced the 

evidence of Martin’s prior felony convictions in Kentucky. In the final 

instructions, the trial court incorporated all previous instructions and thereby 

reiterated that the jury must consider only the evidence admitted by the trial 

court in the jury’s presence and disregard all other information from all other 

sources. Under these circumstances, we find that the jury instructions were 

sufficient to overcome any potential harm to Martin from the prosecutor’s 

remark. We conclude that the prosecutor’s statement made in response to 

defense counsel’s inference of Martin’s good character did not undeniably and 

substantially affect the jury’s decision and make a fair trial impossible. 

Accordingly, no fundamental error occurred. 
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CONCLUSION

[20] Based on the foregoing, we hold that the trial court did not abuse its discretion 

when it admitted properly authenticated records of Martin’s prior convictions in 

Kentucky, and the prosecutor did not commit misconduct amounting to 

fundamental error.

[21] Affirmed.

[22] Najam, J. and May, J. concur