Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 1 of 12

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

Aaron J. Stoll

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Travon R. Fincher,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

October 7, 2020

Court of Appeals Case No.

20A-CR-813

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

Judge

Trial Court Cause No.

02D05-1809-MR-16

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 2 of 12

STATEMENT OF THE CASE

[1] Appellant-Defendant, Travon R. Fincher (Fincher), appeals his conviction for 

murder, a felony, Indiana Code § 35-42-1-1; two Counts of attempted murder, 

Level 1 felonies, I.C. §§ 35-42-1-1; 35-41-5-1; and his adjudication for use-offirearm, I.C. § 35-50-2-11.

[2] We affirm.

ISSUES

[3] Fincher presents this court with three issues, which we restate as:

1. Whether the trial court abused its discretion by denying Fincher’s 

counsel an opportunity to make an offer of proof;

2. Whether Fincher’s constitutional rights to confrontation were violated by 

the admission of an unavailable witness’ prior deposition testimony; and 

3. Whether the trial court abused its discretion by admitting a witness’ 

excited utterance.

FACTS AND PROCEDURAL HISTORY

[4] In August 2018, Rachel Burtz (Burtz) and Jason Sandy (Sandy) were living 

together in Fort Wayne, Indiana. Sandy’s close friend, Rick Pelmear 

(Pelmear), frequently visited the residence and the three would spend time 

together. Burtz and Sandy had met Fincher after they started living together 

because Fincher’s uncle lived nearby. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 3 of 12

[5] On August 30, 2018, Burtz returned home from work at approximately 4:00 

p.m. She went to the grocery store together with Sandy and Pelmear to 

purchase food. After returning home and commencing preparations for dinner, 

Burtz noticed that Fincher was at the house, sitting in the living room with 

Pelmear and Sandy. Over the next couple of hours, Burtz attended to the grill 

and was in and out of the house. At one point, Burtz returned to the living 

room after checking on the french fries cooking in the oven when Fincher 

exited the bathroom. Upon walking into the living room, Fincher pulled out a 

handgun and fired on Burtz, Sandy, and Pelmear. Burtz was shot three times, 

with one shot lodged in her abdomen and two shots in her upper right thigh. 

Sandy was shot in the face, arm, and neck, while Pelmear was shot in the lungs, 

bowel, pancreas, and abdomen. Pelmear attempted to escape the house, but 

collapsed outside and was dead by the time emergency responders arrived. 

Burtz and Sandy survived.

[6] Burtz, laying on the couch and pretending to be dead, heard Fincher rifle 

through Sandy’s pockets and going through the kitchen cabinets where Sandy 

kept marijuana. After Fincher left the house, Burtz called 911. When officers 

arrived at the house and attended to Sandy, Sandy, without being questioned, 

stated “Tray shot him.” (Transcript Vol. III, p. 115). Sandy would remain at 

the hospital for a month and required reconstructive surgery to his face. During 

the first three days, Sandy was in a coma and on life support. On the fourth 

day, Sandy was in and out of consciousness, but on the fifth day, Sandy, who 

could not talk due to a breathing tube, requested pen and paper. He wrote 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 4 of 12

“Tray tried to kill me[.] He rolled me over and took all my money so I just 

layed [sic] still otherwise he would have killed me.” (Tr. Vol. III, p. 44; Exh. 

17). 

[7] On September 10, 2018, the State filed an Information, charging Fincher with 

murder and two Counts of aggravated battery as Level 3 felonies. The State 

also filed a use-of-a-firearm enhancement. The State later amended the charges, 

changing the two Counts of aggravated battery to two Counts of attempted 

murder as Level 1 felonies. On February 25, 2020, a jury trial commenced. 

During voir dire, the State alerted the trial court that Sandy was in custody but 

refused to testify in this cause. When the trial court questioned Sandy, he 

responded that his intent was to refuse to answer questions as he “was not here 

to judge anyone.” (Tr. Vol. II, p. 164). After being questioned by Fincher and 

the State, the trial court found Sandy in contempt and declared him to be an 

unavailable witness. At that point the State, over Fincher’s objection, moved to 

have Sandy’s previously-taken deposition admitted and read at trial. Fincher 

requested to question Sandy as to “when he was testifying at his deposition on 

March 15th if those questions – or if those answers – if the answers he provided 

were true and accurate.” (Tr. Vol. II, pp. 168-69). The State objected to the 

question on relevancy grounds. The trial court denied the question, concluding 

that “the focus of the test is not upon whether the trial court believes the witness 

is telling the truth, but rather upon the process by which the prior statement was 

obtained. Based on that language and my familiarity with the processes of 

deposition conducted in this community, I would find it to be reliable.” (Tr. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 5 of 12

Vol. II, pp. 169-70). At the close of the evidence, Fincher was found guilty as 

charged. On March 20, 2020, the trial court imposed fifty-five years for the 

murder charge, and thirty years each for the two attempted murder charges, 

with sentences to run consecutively. The trial court imposed a ten-year 

enhanced sentence for the use-of-a-firearm charge, to run consecutively to the 

other charges. Fincher’s aggregate sentence amounted to 125 years. 

[8] Fincher now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Offer of Proof

[9] Fincher first contends that the trial court abused its discretion by denying his 

request to make an offer of proof by questioning Sandy about his deposition

after he expressed his intent not to answer any questions. We review a trial 

court’s decision to deny an offer of proof for an abuse of discretion. Bedolla v. 

State, 123 N.E.3d 661, 666 (Ind. 2019). “An offer to prove is the method by 

which counsel places before the trial court (and ultimately the reviewing court) 

the evidence he or she wishes to present, to allow the court to determine the 

relevancy and admissibility of the proposed testimony.” Arhelger v. State, 714 

N.E.2d 659, 664 (Ind. Ct. App. 1999). A trial court’s decision in these matters 

should be upset only when the court reached an erroneous conclusion and 

judgment, one clearly against the logic and effect of the facts and circumstances 

before the court or the reasonable, probable and actual deductions to be drawn 

therefrom.” Bedolla, 123 N.E.3d at 666. Under this deferential standard, we 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 6 of 12

will second-guess the lower court only when it responds to that factual context 

in an unreasonable manner. Id. 

[10] Offers of proof help assure parties receive fundamental fairness at both the trial 

and appellate levels. Id. at 667. When a party asks to make a legitimate offer of 

proof, the trial court should grant that request. Id. Of course, as part of its duty 

to impartially control a proceeding, the trial court may exercise reasonable 

discretion in determining the timing and extent of an offer of proof. Id. 

Nevertheless, absent clear abuse by a party, offers of proof should be allowed. 

Id. 

[11] An offer of proof consists of three parts: (1) the substance of the evidence, (2) 

an explanation of its relevance, and (3) the proposed grounds for its 

admissibility. Duso v. State, 866 N.E.2d 321, 324 (Ind. Ct. App. 2007). Here, 

the trial court declared Sandy to be unavailable as a witness at trial after he 

expressed his refusal to answer any questions. When the State moved to admit 

Sandy’s deposition at the trial proceeding, Fincher’s counsel requested to make 

an offer of proof, and to question Sandy as to the veracity of his answers at the 

deposition. It is well-settled that a prior deposition testimony is admissible 

when the trial court finds (1) the witness is unavailable and (2) the statement to 

be used bears sufficient indicia of reliability. State v. Owings, 622 N.E.2d 948, 

952 (Ind. 1993). These indicia of reliability are generally provided when a 

defendant either cross-examined the unavailable witness whose prior testimony 

the State seeks to admit or had the opportunity to do so. Berkman v. State, 976 

N.E.2d 68, 77 (Ind. Ct. App. 2012). A deposition which comports with the 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 7 of 12

general principals of cross-examination provides sufficient indicia of reliability. 

Owings, 622 N.E. 2d at 952. The focus of the test is not upon whether the trial 

court believes the witness to be telling the truth, but rather upon the process by 

which the prior statement was obtained. Id. The evidence reflects that during 

the deposition Sandy was under oath and cross-examined by Fincher’s counsel. 

The argument that a different attorney represented Fincher at the deposition is 

without merit as the attorney conducted a vigorous cross-examination—the 

reliability test does not require the same attorney to question the witness, 

merely that cross-examination happened or an opportunity to do so presented 

itself. Accordingly, as Fincher’s request to question Sandy about his veracity at 

the deposition is irrelevant to evaluate the deposition’s reliability, we conclude 

that the trial court exercised reasonable discretion by limiting the scope of the 

offer of proof and denying the request. 

[12] Moreover, we note that even if the trial court had allowed Fincher to make an 

offer of proof by questioning Sandy, the trial court could not have compelled 

Sandy to answer Fincher’s questions beyond basic identifying information. See, 

e.g., Pitman v. State, 749 N.E.2d 557, 561 (Ind. Ct. App. 2001) (probationer was 

not entitled to invoke the Fifth Amendment privilege with regard to basic 

identifying information and any disclosures which were necessary to effectively 

monitor her probation), reh’g denied, trans. denied. We conclude that the trial 

court did not abuse its discretion. 

II. Constitutional Rights
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 8 of 12

[13] Next, Fincher contends that the admission of Sandy’s prior deposition during 

the trial proceedings violated his right to confrontation under the Sixth 

Amendment to the United States Constitution and Article 1, Section 13 of the 

Indiana Constitution. 

[14] When a claim of error in the admission of evidence is properly preserved, this 

court will review it for an abuse of discretion. Nicholson v. State, 963 N.E.2d 

1096, 1099 (Ind. 2012). But when a defendant fails to properly preserve such a 

claim, it is waived, and reversal can only occur in the presence of fundamental 

error. Hardley v. State, 905 N.E.2d 399, 402 (Ind. 2009). The bar for proving 

fundamental error is extraordinarily high. Id. The doctrine is meant to cure the 

most egregious and blatant trial errors, not to provide a second bite at the apple 

for defense counsel who ignorantly, carelessly, or strategically fails to preserve 

an error. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Even an error that is 

prejudicial or that implicates a constitutional right is not itself sufficient to 

constitute fundamental error. Hollingsworth v. State, 987 N.E.2d 1096, 1099 

(Ind. Ct. App. 2013). Rather, a fundamental error is such a gross error that it 

renders any possibility of a fair trial impossible. Id. at 1098. Such error only 

occurs when any competent trial court judge would be required to intervene to 

prevent the denial of a fair trial. Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012). 

[15] After the State alerted the trial court about Sandy’s refusal to testify and the trial 

court characterized Sandy as an unavailable witness, the State proceeded to 

summarize the deposition proceeding to the trial court, after which the trial 

court was satisfied that the reliability test to admit Sandy’s deposition at trial 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 9 of 12

was met. Fincher’s counsel asked the trial court to show an objection for the 

record because Sandy’s appearance had been brought before the court by a writ 

of habeas ad testificandum as he was in federal custody at the time of trial and not 

by a subpoena. Fincher’s counsel then added:

And secondly, offer of proof. I – I would like to be able to 

request, to question [Sandy] concerning the truthfulness of his 

testimony at his deposition for the purpose of challenging the 

admission of that deposition.

(Tr. Vol. II, p. 170). The trial court overruled the objection and denied the 

request for offer of proof. During the trial, the State offered Sandy’s deposition 

testimony by having an investigator read Sandy’s answers while the prosecutor 

read the questions. At the onset of the reading of the deposition, Fincher’s 

counsel made his contemporaneous objection, incorporating the prior 

arguments but adding arguments based on the “due process clause [and] 

confrontation clause, both the United States and Indiana Constitution.” (Tr. 

Vol. II, p. 235). After Fincher made his contemporaneous objection, the trial 

court asked both counsels to approach the bench and informed Fincher that he 

was adding new grounds that had not been previously argued. Fincher 

responded that “[w]ell it – well if that’s the [c]ourt’s ruling. But that’s our 

argument.” (Tr. Vol. II, p. 236). Fincher did not request a further hearing, or 

present either argument, or evidence on his new constitutional claims. 

[16] We find that Fincher’s objection was insufficient to preserve his constitutional 

claims. When a defendant does not properly bring an objection to the trial 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 10 of 12

court’s attention so that the trial court may rule on it at the appropriate time, he 

is deemed to have waived that possible error. Ingram v. State, 547 N.E.2d 823, 

829 (Ind. 1989). Moreover, grounds for objection must be specific, and any 

grounds not raised in the trial court are not available on appeal. Id. As Fincher 

merely referred to his constitutional right to confrontation in passing and 

without any further specificity such as applicable facts or case law, we find that 

he has waived the issue for our review. 

III. Excited Utterance

[17] Lastly, Fincher contends that the trial court abused its discretion by admitting 

Sandy’s note, written in the hospital after regaining consciousness and 

implicating Fincher, as an excited utterance. He maintains that because the 

statement was uttered six days after the attack and three days after coming out 

of the coma, Sandy was no longer under the stress or excitement of the event 

and therefore the statement cannot be characterized as an excited utterance. 

The trial court’s decision to admit the evidence is reviewed for an abuse of 

discretion. Nicholson, 963 N.E. 2d at 1099. 

[18] Sandy’s written statement, “Tray tried to kill me[.] He rolled me over and took 

all my money so I just layed [sic] still otherwise he would have killed me,” was 

admitted pursuant to Indiana Evidence Rule 803(2), which allows for 

admission of hearsay when the out-of-court statement relates “to a startling 

event or condition, made while the declarant was under the stress of excitement 

caused by the event or condition.” (Tr. Vol. III, p. 44; Exh. 17). Thus, for a 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 11 of 12

hearsay statement to be admitted as an excited utterance, three elements must 

be shown: (1) a startling event, (2) a statement made by a declarant while under 

the stress of excitement caused by the event, and (3) that the statement relates to 

the event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). This is not a 

mechanical test. Rather, the decision turns on whether the statement was 

inherently reliable because the witness was under the stress of an event and 

unlikely to make deliberate falsifications. Id. “The lapse of time is not 

dispositive,” and “[t]he heart of the inquiry is whether the declarant was 

incapable of thoughtful reflection.” Stinson v. State, 126 N.E.3d 915, 920-21 

(Ind. Ct. App. 2019). 

[19] After being shot by Fincher, Sandy was rushed to the hospital where he 

required constructive surgery to his face and was in a three-day coma. While a 

day passed between him coming out of the coma and writing the note 

implicating Fincher, Sandy was in and out of consciousness on the day before 

the note was written. Once he finally regained the strength and lucidity to 

communicate, Sandy, who could not speak due to a breathing tube, requested 

pen and paper and identified Fincher as the culprit. 

[20] While we agree with Fincher that several days passed between the attack and 

Sandy’s statement, we also recognize that this event is of unimaginable 

magnitude: being shot in the face, being in a coma and on life support, and 

being unable to verbally communicate. Under these circumstances, we highly 

doubt that Sandy had the ability to engage in the thoughtful reflection required 

to fabricate his allegation. See D.B.G. v. State, 833 N.E.2d 519, 527 (Ind. Ct. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-813 | October 7, 2020 Page 12 of 12

App. 2005) (the magnitude of the exciting event relates to the length of time 

that an individual can still be under the stress of the event). Accordingly, the 

trial court did not abuse its discretion by admitting Sandy’s handwritten note 

under the excited utterance exception to the hearsay rule.

[21] Nevertheless, even if the trial court abused its discretion in admitting the note, 

the error was harmless as the evidence was cumulative. Prior to being admitted 

to the hospital and writing the note, Sandy had already informed the officers 

responding to the crime scene that “Tray shot him.” (Tr. Vol. III, p. 115). See 

Hunter v. State, 72 N.E. 3d 928, 932 (Ind. Ct. App. 2017) (The improper 

admission of evidence is harmless error when the erroneously admitted 

evidence is merely cumulative of other evidence before the trier of fact), trans. 

denied. Accordingly, even if the trial court had made an error—which it did 

not—the error was harmless and we decline to reverse the decision.

CONCLUSION

[22] Based on the foregoing, we conclude that the trial court did not abuse its 

discretion by denying Fincher’s counsel an opportunity to make an offer of 

proof; Fincher waived our review of whether his constitutional right to 

confrontation was violated; and the trial court properly admitted a witness’ 

excited utterance.

[23] Affirmed.

[24] May, J. and Altice, J. concur