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: ATTORNEYS FOR APPELLEE:

DAVID W. STONE, IV GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JACOB FULLER, )

)

Appellant-Defendant, )

)

vs. ) No. 48A02-1210-CR-848

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT

The Honorable David A. Happe, Judge

Cause No. 48C01-1103-MR-434

July 10, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
2

Case Summary

Jacob Fuller (“Fuller”) appeals his convictions and sentences for two counts of 

Murder, a felony,1and one count of Robbery, as a Class A felony.2 We affirm. 

Issues

Fuller presents five issues for review:

I. Whether there was a fatal variance between the charging information 

and the evidence presented at trial;

II. Whether the trial court abused its discretion in admitting evidence not 

timely disclosed by the State in discovery;

III. Whether the prosecutor committed misconduct by calling a witness for 

the sole purpose of impeaching his testimony;

IV. Whether improper closing argument constituted fundamental error; and

V. Whether Fuller’s sentence is a product of an abuse of discretion or is 

inappropriate.

 

Facts and Procedural History

In November of 2010, Keya Prince (“Prince”) and Stephen Streeter (“Streeter”) lived 

on Menifee Street in Anderson, Indiana. When a neighbor approached the residence on 

November 29, 2010, she detected a foul odor emanating from an open window. Police were 

summoned to conduct a welfare check. After entering the residence, they found the bodies of 

Prince and Streeter. Prince had died of a gunshot through her torso, piercing her heart. 

Streeter had died of a gunshot to his head. Televisions and electronic equipment were 

missing from the house. Also missing was a large amount of cash that Streeter had recently 

possessed.

 

1

Ind. Code § 35-42-1-1. This section has since been re-codified. We refer to the statute in effect at the time of 

the offense.

2

I.C. § 35-42-5-1. This section has since been re-codified. We refer to the statute in effect at the time of the 

offense.
3

In the very early morning of the next day, Anderson Police Officer Ian Spearman 

(“Officer Spearman”) was patrolling a neighborhood when he stopped Fuller and his 

companion, Na-son Smith (“Smith”) on suspicion of a curfew violation. Smith initially 

provided a false name. Meanwhile, Anderson Police Officer Brandon Grant (“Officer 

Grant”) had been advised of a 9-1-1 call from the same neighborhood. A citizen had 

reported seeing a young man toss away a gun as Officer Spearman approached. Officer 

Grant radioed Officer Spearman to use extreme caution. He also advised as to the correct 

identity of Fuller’s companion. Fuller and Smith were placed under arrest.

During the ensuing police investigation, Fuller was identified as the individual who 

had been observed tossing a gun. The tossed gun was located, examined and determined to 

have been the weapon that had fired a bullet into Prince’s body. Several witnesses reported 

that Fuller, Smith, Martez Brown (“Brown”), and a fourth young man had been seen in 

possession of large amounts of cash and had gone on a shopping spree. Eventually, Brown 

gave a statement to police wherein he claimed that he had gone with Fuller and Smith to the 

Prince-Streeter residence, where Fuller had shot Prince and Smith had shot Streeter.

The State alleged that Fuller, then fifteen years old, was a juvenile delinquent. 

Jurisdiction was waived from the juvenile court and Fuller was charged with Murder, 

Burglary,3 Robbery, and Theft.4 He was brought to trial on July 17, 2012. A jury acquitted 

Fuller of Burglary and convicted him of the remaining charges. Due to double jeopardy 

 

3

I.C. § 35-43-2-1. This statute has since been re-codified. We refer to the statute in effect at the time of the 

offense.

4

I.C. § 35-43-4-2. This statute has since been re-codified. We refer to the statute in effect at the time of the 

offense.
4

concerns, the trial court did not enter a judgment upon the Theft conviction and entered 

judgment upon the Robbery conviction as a Class B felony. Fuller was then given 

consecutive sentences of sixty-five years imprisonment for each of the Murder convictions 

and twenty years imprisonment for the Robbery conviction, providing for an aggregate 

sentence of one hundred fifty years. He now appeals. 

Discussion and Decision

Variance Between Charging Information and Proof

The State first alleged that the crimes at issue were committed on or about November 

27, 2010. Fuller filed a notice of alibi, giving notice that he “was at several locations on 

November 27, 2010” and requesting greater specificity from the State. (App. 42.) On April 

28, 2011, Fuller filed an amended notice of alibi stating that “he was at his home on the date 

and at the time of the alleged offenses” and requesting a more specific statement of the 

alleged time, date, and location. The State did not respond to the alibi notice or amended 

alibi notice. However, in May of 2011, the information was amended to allege that the 

crimes were committed “on or about November 29, 2010.” (App. 53.) The trial court denied 

a final motion by the State to amend the charging information to allege that the crimes were 

committed “on or between November 26, 2010 and November 29, 2010.” (App. 68.)

Indiana Code section 35-36-4-2 provides in relevant part:

When a defendant files a notice of alibi, the prosecuting attorney shall file with 

the court and serve upon the defendant, or upon his counsel, a specific 

statement containing:

(1) the date the defendant was alleged to have committed the crime; and

(2) the exact place where the defendant was alleged to have committed the 

crime;
5

that he intends to present at trial. However, the prosecuting attorney need not 

comply with this requirement if he intends to present at trial the date and place 

listed in the indictment or information as the date and place of the crime.

Indiana Code section 35-36-4-3(b) concerns the consequences of the State’s lack of 

response:

If at the trial it appears that the prosecuting attorney has failed to file and serve 

his statement in accordance with section 2(a) of this chapter, and if the 

prosecuting attorney does not show good cause for his failure, then the court 

shall exclude evidence offered by the prosecuting attorney to show:

(1) that the defendant was at a place other than the place stated in the 

information or indictment; and

(2) that the date was other than the date stated in the information or 

indictment.

At trial, Fuller unsuccessfully objected to evidence relative to dates other than 

November 29, 2010. He also moved for a mistrial and for directed verdicts, claiming that the 

State should have been confined to offer proof of crimes occurring only on that specific date. 

He now argues that the trial court abused its discretion by admitting all evidence of events 

occurring outside November 29, 2010 and that he is entitled to a reversal of his convictions 

on this basis. In essence, Fuller alleges a fatal variance between the proof at trial and the 

charging information.

A variance is an essential difference between proof and pleading. Reinhardt v. State, 

881 N.E.2d 15, 17 (Ind. Ct. App. 2008). When time is not an element of the crime charged, 

or of the essence of the offense, the State is only required to prove that the offense was 

committed during the statutory period of limitations; as such, the State is not required to 

prove the offense occurred on the particular date alleged. Poe v. State, 775 N.E.2d 681, 686 

(Ind. Ct. App. 2002), trans. denied. “[A]lthough time becomes of the essence when the alibi 
6

statute has been invoked, it is also well settled that a variance, in order to be fatal, must be of 

such substantial nature as to mislead the accused in preparing and maintaining his defense or 

be of such a degree as is likely to place him in second jeopardy for the same offense.” 

Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979).

In Sangsland v. State, 715 N.E.2d 875, 879 (Ind. Ct. App. 1999), trans. denied, a panel 

of this Court explained that the mere filing of an alibi notice does not require the State to 

prove, as an element of the offense, that the crimes occurred on a specific date:

Although our supreme court has stated that the filing of a notice of alibi 

defense makes the time of the offense critical or ‘of the essence,’ it has also 

made clear that the mere filing of an alibi defense does not impose a greater 

burden of proof on the State than would be otherwise required absent such a 

filing. . . . [T]he mere fact that a defendant raises an alibi defense does not 

necessarily make time an essential element of an offense. However, where the 

State’s answer to the notice of alibi and evidence points exclusively to a 

specific date, and the defendant presents a defense based on that date, the 

jury’s consideration of the defendant’s guilt should be restricted to that date.

Here, Fuller filed alibi notices to which the State filed no response. The charging 

information, as finally amended, alleged that Fuller had committed crimes “on or about” 

November 29, 2010 as opposed to one specific date. (App. 53.) 

The State’s evidence at trial was not inconsistent with this allegation. The victims 

were found on November 29, 2010, and had evidently been dead for a few days, based upon 

the condition of the bodies, the last known communications with the victims, and the timing 

of Fuller’s shopping spree. Because the challenged evidence concerned events that occurred 

“on or about” November 29, 2010 – that is, they occurred in the preceding days – there was 

no variance between the charging information and the proof at trial. See Poe, 775 N.E.2d at 
7

686-87 (charging information that alleged a crime occurred on or about June 23, 2000 did not 

limit the State to only the events of June 23, 2000). See also Sisson v. State, 985 N.E.2d 1, 

12 (Ind. Ct. App. 2012) (State’s failure to narrow the time frame – the entire month of June –

in response to an alibi notice was not fundamental error), trans. denied.

We also observe that Fuller’s alibi notice and amended alibi notice did not reference 

November 29, 2010. In those notices, Fuller claimed to have an alibi for November 27, 

2010. However, the defense testimony produced at trial was directed toward events of 

November 29, 2010. Fuller’s mother, Doris Fuller, testified that she awoke at 5:00 a.m. and 

checked on Fuller. When she left for work at 5:30 to 6:00 a.m., Fuller was still home. 

According to Doris, when she returned at 3:30 to 4:00 p.m., she saw Fuller walking down the 

street near her house. She lacked knowledge of his whereabouts just prior to that encounter. 

This testimony would, at best, comprise a partial alibi for November 29, 2010, a date 

different from that referenced in Fuller’s notices.

As such, the admission of the State’s evidence at trial as to dates other than November 

29, 2010 did not contravene statutory authority; nor did it circumvent Fuller’s opportunity to 

present an alibi defense. We find no reversible error in this regard.

Alleged Discovery Violations

Fuller contends that the trial court abused its discretion by admitting evidence that the 

State had failed to timely and fully disclose to the defense pursuant to the trial court’s 

discovery order. In particular, he claims that photographs obtained from his cellular 
8

telephone should have been excluded and that one of the State’s witnesses, Wal-Mart loss 

prevention employee Dottie Hart (“Hart”), should not have been permitted to testify.

A trial court exercises broad discretion in ruling on the admissibility of evidence, and 

an appellate court should disturb its ruling only where it is shown that the court abused its 

discretion. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009). Generally, the admission or 

exclusion of evidence will not result in a reversal on appeal absent a manifest abuse of 

discretion that results in the denial of a fair trial. Dorsey v. State, 802 N.E.2d 991, 993 (Ind. 

Ct. App. 2004). The primary factors that a trial court should consider when it addresses a 

claimed discovery violation are whether the breach was intentional or in bad faith and 

whether substantial prejudice has resulted. Cain v. State, 955 N.E.2d 714, 718 (Ind. 2011).

When Fuller was arrested, his cellular telephone was confiscated. At the beginning of 

the trial, the State disclosed that a video had been retrieved from the telephone. On the final 

day of the State’s case-in-chief, the prosecutor expressed an intention to offer photographs 

derived from that video. The photographs, which had been taken in the afternoon of 

November 27, 2010, depicted Fuller and two companions flashing large amounts of cash. 

Fuller objected and requested exclusion of the photographs, claiming a discovery 

violation.5 According to Fuller’s counsel, he had been shown a video clip at the outset of the 

trial, but had not anticipated photographs from the video and was unable to investigate 

 

5 This is not a circumstance in which the prosecutor failed entirely to disclose material and mitigating evidence, 

and thus Fuller is not claiming a constitutional violation under Brady v. Maryland, 373 U.S. 83 (1963). 

Fuller’s counsel advised the trial court that only a discovery violation was being alleged.
9

adequately.6 The trial court inquired of counsel whether he wanted to contact the cellular 

service provider but counsel did not directly respond to the inquiry. Nor did counsel request 

a continuance.

The State now argues that Fuller’s substantial rights were not prejudiced because he 

had to have known what was in his own cellular telephone database and he did not avail 

himself of the opportunity for further investigation during a continuance. Even assuming a 

discovery violation, “the preferred remedy for a discovery violation is a continuance” and 

“exclusion of evidence is only appropriate if the defendant show that the State’s actions were 

deliberate or otherwise reprehensible, and this conduct prevented the defendant from 

receiving a fair trial.” Cain, 955 N.E.2d at 718.

Here, there is no indication that the State engaged in deliberate or reprehensible action 

denying Fuller a fair trial. It appears that, from argument presented to the trial court, Fuller 

and his defense counsel were aware that the cellular telephone was in the State’s possession 

since Fuller’s arrest. The defense made no request to examine it, even after the State 

indicated that a video with evidentiary value had been discovered. We fail to discern how the 

photographs derived from the video were potentially more prejudicial than the video. Indeed, 

Fuller’s counsel did not accept the trial court’s offer to allow further investigation through 

the cellular service provider. Fuller was not blind-sided by the State’s proffer of evidence or 

 

6

It appears that the State obtained a search warrant to search Fuller’s cellular telephone for data around the 

time that the trial commenced and advised Fuller of the video upon discovering it. There is no error when the 

State provides a defendant with evidence as soon as the State is in possession of the evidence. Warren v. State, 

725 N.E.2d 828, 832 (Ind. 2000). Accordingly, Fuller does not allege a discovery violation with respect to the 

video in particular.
10

deprived of recourse. As such, he has failed to demonstrate that the trial court abused its 

discretion by admitting the photographs. 

Fuller also complains that the State was allowed to present Hart as a surprise witness. 

At trial, Fuller requested a bench conference in anticipation of the State calling Hart as a 

witness. Counsel stated that he had been able to “briefly talk with” Hart that morning, but 

indicated he “would object as to the fact the witness was not disclosed prior to trial.” (Tr. 

386.) The State responded that the supplemental witness list had included an entry for a WalMart loss-prevention employee, but at the time of disclosure the State was “still trying to 

figure out what her last name was.” (Tr. 387.)

Over Fuller’s objection, Hart was permitted to testify. According to Hart, while she 

was taking her lunch break on November 27, 2010 at a Subway restaurant inside Wal-Mart, 

she encountered three “loud and obnoxious” teenagers with $100 bills. (Tr. 392.) She 

identified Fuller as one of the group.

We are inclined to agree with Fuller that he could not have learned Hart’s identity and 

conducted a pre-trial interview based upon generic notations in the supplemental witness list 

of March 2011. She was in essence a surprise witness. Nonetheless, “[w]here a party fails to 

timely disclose a witness, courts generally remedy the situation by providing a continuance 

rather than disallowing the testimony.” Barber v. State, 911 N.E.2d 641, 646 (Ind. Ct. App. 

2009). Here, no continuance was requested. Moreover, Fuller’s counsel was able to confer 

with Hart just prior to her testimony. The testimony was brief and cumulative of other 
11

testimony that Fuller and his companions had been in possession of a large amount of cash on

November 27, 2010. We cannot conclude that Fuller sustained substantial prejudice.

Mistrial for Improper Witness Impeachment

Brown was also charged with the murder of Prince and Streeter, but was to be tried 

separately from Fuller. At Fuller’s trial, Brown was called as a witness for the State. In 

anticipation of Brown’s testimony, Fuller objected that Brown would likely be asserting his 

rights under the Fifth Amendment of the United States Constitution and the State was simply 

calling him as a witness to impeach him. After a hearing outside the presence of the jury, 

Brown was permitted to testify. In so doing, he repeatedly acknowledged but contradicted 

his prior police statement. Fuller requested a mistrial, claiming that the prosecutor had 

engaged in misconduct by calling Brown as a witness for the purpose of improper 

impeachment and that a jury admonishment would be inadequate.

In reviewing a claim of prosecutorial misconduct, we determine (1) whether there was 

misconduct by the prosecutor; and (2) whether that misconduct, under the circumstances, 

placed the defendant in a position of grave peril to which the defendant should not have been 

subjected. Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996). The gravity of peril turns on the 

probable persuasive effect of the misconduct on the jury’s decision, not on the degree of 

impropriety of the conduct. Id.

“[I]t is improper for the prosecutor to call as a witness a codefendant when the 

prosecutor knows in advance that the witness will invoke the Fifth Amendment and refuse to 

testify.” Borders v. State, 688 N.E.2d 874, 879 (Ind. 1997). Too, it is improper to call a 
12

witness when the prosecutor knows that useful evidence will not be elicited. Although 

Indiana Rule of Evidence 607 authorizes a party to impeach the credibility of its own witness, 

“the rule is abused if the party is permitted to call a co-defendant as a witness, when the party 

knows that the co-defendant will not give useful evidence, just so the party can introduce 

otherwise inadmissible hearsay evidence against the defendant, ‘in the hope that the jury 

would miss the subtle distinction between impeachment and substantive evidence – or, if it 

didn’t miss it, would ignore it.’” Julian v. State, 811 N.E.2d 392, 397 (Ind. Ct. App. 2004) 

(quoting U.S. v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984), trans. denied. 

To determine whether the State has abused the rule, this Court considers whether the 

prosecutor examined the witness for the primary purpose of placing before the jury 

inadmissible evidence. Id. However, otherwise inadmissible evidence that is placed before 

the jury when the State has a legitimate basis to call the witness will not be considered 

improper. Id.

Here, the trial court conducted a hearing outside the presence of the jury, and the 

following exchange took place:

Prosecutor: Are you planning to testify in this case today?

Brown: Yes, sir.

Prosecutor: Are you requesting, are you gonna take the Fifth Amendment if I 

call you?

Brown: No, sir.

Prosecutor: You’re gonna testify without a grant of immunity? Meaning, if I 

grant, if the State of Indiana grants you immunity, nothing can be used against 

you ah, in your own trial because you’re a defendant in this case as well, right?
13

Brown: Yes, sir.

Prosecutor: Okay. You’ve decided that you do not want immunity for your 

testimony, is that correct?

Brown: Yes, sir.

(Tr. 410-11.) The jury was recalled and Brown declined to seek Fifth Amendment 

protection. Instead, he acknowledged that he had been charged with the murders of Streeter 

and Prince, and that he was “here to testify about [his knowledge of] that case.” (Tr. 412.) 

Brown testified that he had given information to Detective Brooks about the murders. 

However, when asked if he was involved, Brown responded, “No, sir.” (Tr. 414.) He agreed 

that he had told Detective Brooks of his involvement.

Ultimately, Brown admitted having told Detective Brooks: he, Smith, and Fuller had 

robbed Streeter of $7,000, electronics, and marijuana; Fuller had killed Prince with a fortycaliber handgun while Brown waited in the living room; Fuller had admitted to that killing; 

and Smith had shot Streeter in the head. Nonetheless, Brown testified that he did not 

participate in a robbery or murder and Fuller had not confessed to Brown that he had shot 

Prince. He maintained, during cross-examination, that he was testifying truthfully and had 

falsified his statement to Detective Brooks.

Chronologically, Brown admitted making various statements to Detective Brooks 

before he denied their veracity and insisted that he had decided to tell the truth. Nonetheless, 

the cumulative effect was that Brown’s trial testimony was effectively impeached with his 
14

prior statements. Even so, there is no indication of record that the prosecutor anticipated this 

development before calling Brown as a witness. 

Outside the presence of the jury, Brown expressed his intention to testify without 

invoking his Fifth Amendment rights and without immunity. Once he was called as a 

witness, Brown stated that his lawyer was present and he had consulted with him. Brown 

acknowledged that he had given a statement to Detective Brooks, and the prosecutor asked 

Brown “what did you tell him happened?” (Tr. 414.) After a bench conference, the 

prosecutor re-phrased his question as: “were you involved in the murder of Kaya Prince and 

Stephen Streeter?” and Brown inexplicably answered, “No, sir.” (Tr. 414.) 

Although the prosecutor then questioned Brown regarding his prior statement, as 

could be expected under the circumstances, it does not appear that the prosecutor called 

Brown as a witness knowing that he would not provide useful information. There is no 

indication of record that the prosecutor had any reason to believe that, as the testimony 

developed, Brown would ultimately claim the falsity of each incriminating statement he had 

made to police. Fuller has made no showing that the prosecutor called a witness who was 

expected to either seek Fifth Amendment protection or decline to provide useful information. 

And while he asserts that “no curative action was taken,” Appellant’s Brief at 21, Fuller 

requested no curative measure. He has demonstrated no prosecutorial misconduct placing 

him in grave peril.7

 

7

Fuller also claims that a mistrial was warranted because a witness handed a recording to the prosecutor during 

his examination of Brown, and the prosecutor then conducted “a theatrical performance” by waving the 

recording in front of the jury. Appellant’s Brief at 22. According to Fuller, this had an intended effect of 
15

Prosecutorial Misconduct in Closing Argument

Fuller contends that he was deprived of a fair trial by improper closing argument. 

When a defendant alleges that a prosecutor has made an improper argument at the guilt or 

penalty phase of a trial, the defendant should request an admonishment from the trial court. 

Cain, 955 N.E.2d at 721. If he or she believes the admonishment to be insufficient, a mistrial 

should be requested. Id. When a claim of prosecutorial misconduct has thus been properly 

preserved, we examine it pursuant to a two-step process. Id. We determine whether the 

prosecutor engaged in misconduct, and if so, whether the misconduct, under all the 

circumstances, placed the defendant in a position of grave peril to which he or she should not 

have been subjected. Id.

Here, Fuller neither objected nor requested an admonishment. He did not move for a 

mistrial based upon any allegedly improper argument. As such, he may obtain relief only if 

his claim is one of fundamental error, that is, a clearly blatant violation of basic and 

elementary principles that would deny him fundamental due process if left uncorrected. Id. 

The prosecutor’s remarks are to be considered in the context of the argument as a 

whole. Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007). It is proper for a 

prosecutor to argue both law and fact during final argument and to propound conclusions 

 

threatening Brown that he needed to respond appropriately or the recording would be played. To the extent 

that Fuller may be said to have raised a separate issue regarding this matter, he has failed to show his 

entitlement to a mistrial. Following Brown’s testimony, Fuller sought a mistrial on alternate grounds that 

Brown had been improperly impeached and that the prosecutor had raised a “spectacle” by waving something 

around in front of the jury. (Tr. 437.) The prosecutor responded that he did not realize he had been holding a 

recording of a jail call. The trial court offered to instruct the jury “the DVD is not in evidence” and the jury 

was instructed accordingly. (Tr. 440.) We are not persuaded from this record that Fuller was placed in grave 

peril, particularly where Fuller made no offer of proof at trial and has not advised this Court of the substance of 

the allegedly threatening material. 
16

based upon his or her analysis of the evidence. Id. Additionally, a prosecutor is entitled to 

respond to allegations and inferences raised by the defense even if the prosecutor’s response 

would otherwise be objectionable. Id.

First, Fuller challenges the following portion of the prosecutor’s closing argument:

Senseless crime. Senseless. But, he wants you to walk him on a technicality. 

He wants you to walk him out of here on a technicality. . . . Ladies and 

gentlemen, don’t let him sell you with [sic] oceanfront property in Kansas. 

Don’t let him do it.

(Tr. 744-45.) According to Fuller, this is akin to suggesting that he had been trying to trick 

the jury. He directs our attention to Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct. App. 2004) 

(wherein a panel of this Court observed that it was improper for the prosecutor to comment 

that the defendant’s argument was a smoke screen and a tactic used by defense counsel to 

distort facts). We find the reference to a “senseless” crime to be fair commentary upon the 

evidence that the sole motive for two murders was financial gain. See Cooper v. State, 854 

N.E.2d 831, 837 (Ind. 2006) (discussing use of unflattering and accusatory terms and reaffirming prosecutor’s right to comment upon the evidence). Too, we are not persuaded that 

the prosecutor’s comment on oceanfront property in Kansas – albeit suggesting deceit on the 

part of the defense – rises to the level of a blatant violation of elementary principles denying 

Fuller due process.

Fuller also asserts that the prosecutor did not limit his discussion to the facts in 

evidence when he argued:

Well, one of the things that’s really funny about this case, really unusual, is 

usually when you find people that are coming in here, who are inmates and in 

the system, they ain’t helping the police, “I’m not coming to testify,” they’re 
17

not helping nobody over here. When you’ve got criminals coming in here like 

Rashawn Ross and Antoine Skinner testifying against guys like this is cause 

they know this shouldn’t have happened. You don’t go up into people’s house 

like that and murder them. These are people that were well liked in this 

community and they’re not gonna stand for that kind of nonsense. When 

you’ve got people that have been in the system doing, what, twenty-five years, 

that Antoine was doing, coming in and testifying against guys like this cause 

this ain’t right. They came in here to testify cause this kind of stuff should not 

be happening. You don’t go up in somebody’s house, shoot them in the back 

of the head, shoot this woman who had nothing to do with anything. You have 

hardcore criminals coming in to testify in cases like that.

(Tr. 720.) According to Fuller, there was no evidence as to reluctance or willingness of 

criminals to testify and the prosecutor enhanced their credibility by his commentary. It is true 

that “argument of counsel should not invite the jury to consider matters not in evidence as a 

basis for their decision.” Craig v. State, 267 Ind. 359, 366, 370 N.E.2d 880, 883 (1977). We 

are not persuaded, however, that the jury was invited to base their decision on the alleged 

rarity of convicted persons giving trial testimony. Nor did the prosecutor vouch for the 

credibility of the two witnesses he mentioned by name.

Fuller also takes issue with commentary about the propensity of drug users to rent out 

cars:

And then run down Diana Farris, who it came from, through her daughter-inlaw who’s got the drug problem and her husband, Diana’s son, and they rent 

this out. That’s what, that’s what happens all the time, they rent out cars. In 

the drug world, they rent out cars. You get geeked out and you need drugs, 

you’ve got a car, you rent it to people, they give you money or they give you 

drugs and you let them have your car for a while, and that’s what happened 

right here. These guys are out driving that car around on their shopping spree.

(Tr. 723-24.) The State presented evidence that Fuller and his companions exchanged crack 

cocaine for the use of a van owned by Diana Farris, to which Amanda Dean had access. The 
18

evidence suggests that they used the van to go shopping and spend some of the proceeds 

from robbing Streeter and Prince. To the extent that the argument goes beyond a reference to 

this specific instance and suggests it is a common practice to loan a vehicle for drugs, we do 

not find such to be fundamental error.

Fuller also takes issue with the prosecutor’s references to a jail call. The prosecutor 

reminded the jury that Fuller had talked about beating the charge, acknowledged that the 

State had a gun and then admitted “that’s some pretty hard shit.” (Tr. 733.) The prosecutor 

went on to say: “He knows he’s got a problem with that gun cause there is no explanation for 

it. He’s got the murder weapon and there’s no explanation for why he has it.” (Tr. 733.) 

Fuller argues that this constitutes an improper comment upon his failure to testify.

In Griffin v. California, 380 U.S. 609 (1965), the United States Supreme Court held 

that the Fifth Amendment prohibits the prosecution from commenting on a defendant’s 

decision not to testify at trial. A comment on the refusal to testify would amount to a penalty 

imposed by courts for exercising a constitutional privilege against self-incrimination. Id. at 

614. However, our supreme court has explained that if the prosecutor’s comment in its 

totality is addressed to other evidence rather than the defendant’s failure to testify, it is not 

grounds for reversal. Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001). “The 

prosecutor may in fact comment on the uncontradicted nature of the State’s evidence without 

running afoul of the Fifth Amendment.” Owens v. State, 937 N.E.2d 880, 893 (Ind. Ct. App. 

2010), trans. denied. There is no reversible error if the comment, in its totality, focuses on 

evidence other than the defendant’s failure to testify. Hand, 863 N.E.2d at 396. 
19

Here, the prosecutor did not directly mention Fuller’s decision not to testify when he 

reminded the jury that Fuller had verbally acknowledged “that’s some pretty hard shit” with 

reference to his possession of a gun. When the prosecutor went on to comment that the 

unexplained possession was a problem for Fuller, he directed the jury’s attention to the 

pretrial event of a telephone call as opposed to trial testimony or omission. In the context of 

discussing Fuller’s jail conversation, the prosecutor referred to Fuller’s presumed recognition 

– at that point in time – that there was no innocent explanation for his possession of the 

weapon that killed Prince. We do not consider this to be a direct or indirect comment upon 

Fuller’s eventual failure to testify. The prosecutor offered no “invitation to draw an adverse 

inference from a defendant’s silence.” Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004).

Fuller also asserts that the prosecutor played upon the fears of the jury by emphasizing 

that, although Fuller appeared in court clean cut and well dressed, he was much more 

intimidating as an armed intruder confronting Streeter and Prince. However, Fuller develops 

no corresponding argument with regard to this alleged prosecutorial misconduct. 

Finally, Fuller claims that the prosecutor invited a conviction because of the interest of 

the surrounding minority community. More specifically, he challenges the following 

argument:

Stuff like this in the, on the westside in the African American community, 

word goes around quick. Word goes around quick. People start hearing about 

this, talking about this. You saw those people that were out at the scene, the 

word is flying. You saw many people in this courtroom. They’re interested 

because this crime should not have happened and he should not have 

committed that murder. And they’re here because they know what’s happened 

and they want to make sure justice is served. People are interested and the 

word is spreading across the community. . . . You came in here, you all took 
20

an oath to try this case and do justice and do the right thing for this community. 

. . . Do your job, do justice, be just, stand up for this community, stand up for 

these people out here that are looking forward to justice being served.

(Tr. 721, 733-34.) Fuller claims that the prosecutor thereby asked the jury “to convict the 

defendant to please a segment of the community.” Appellant’s Brief at 27. We find the 

prosecutor’s comments akin to those in Hand, 863 N.E.2d at 395, where the prosecutor told 

the jury that they were the “moral conscience of the community and must take into account 

all of the facts and circumstances in this case.” The jury was further urged to convict Hand 

for the sake of his wife (the victim), the couple’s children, and the community as a whole. 

Id. The Hand Court concluded that “the gravamen of those comments was that the evidence 

presented at trial supported the State’s charges and, therefore, Hand should be held 

accountable for his actions and convicted.” Id. at 396. Here, when the prosecutor stated that 

the community had great interest in justice and urged the jury to “do justice,” he essentially 

claimed that the State had met its burden of proof and “justice” would be accomplished by 

convicting Fuller. (Tr. 734.)

In sum, Fuller has not persuaded us that there was prosecutorial misconduct in the 

delivery of closing argument, much less fundamental error.

Sentence

A person who commits Murder faces a sentencing range of between forty-five years 

and sixty-five years with the advisory sentence being fifty-five years. See I.C. § 35-50-2-3. 

The sentencing range for a Class B felony is from five years to twenty years imprisonment, 

with an advisory sentence of ten years. See I.C. § 35-50-2-5. For his convictions of two 
21

counts of Murder and one Class B felony, Fuller received an aggregate sentence of one 

hundred and fifty years, the maximum sentence.

In imposing this sentence, the trial court found five aggravators: Fuller’s history of 

juvenile offenses, his pending unrelated criminal charges, his conspiracy with others to 

commit the robbery and murders, the offenses were committed in the presence of a person 

under age eighteen, and there were multiple deaths. His young age was found to be a 

mitigating circumstance. Fuller contends that the trial court abused its discretion and that his 

sentence is inappropriate.

In arguing that the trial court abused its discretion, Fuller claims that none of the 

aggravators were proper. “So long as the sentence is within the statutory range, it is subject 

to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 

2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the finding of 

an aggravating circumstance and the omission to find a proffered mitigating circumstance. 

Id. at 490-91. When imposing a sentence for a felony, the trial court must enter “a sentencing

statement that includes a reasonably detailed recitation of its reasons for imposing a 

particular sentence.” Id. at 491.

The trial court’s reasons must be supported by the record and must not be improper as 

a matter of law. Id. However, a trial court’s sentencing order may no longer be challenged 

as reflecting an improper weighing of sentencing factors. Id. A trial court abuses its 

discretion if its reasons and circumstances for imposing a particular sentence are clearly 

against the logic and effect of the facts and circumstances before the court, or the reasonable, 
22

probable, and actual deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464 

(Ind. 2007).

A defendant’s history of juvenile adjudications is a proper aggravating circumstance 

for sentencing purposes. Haas v. State, 849 N.E.2d 550, 555 (Ind. 2006). As to this 

aggravator, Fuller claims that “unrelated juvenile offenses do not justify the maximum 

sentence which was imposed.” Appellant’s Brief at 28. This argument presents an invitation 

to reweigh sentencing factors and accord less significance to this aggravator. We may not do 

so. Anglemyer, 868 N.E.2d at 491.

At the time of sentencing, Fuller was facing charges for burglary and armed robbery. 

The charges were based upon events occurring several days before the murders. Fuller 

directs our attention to the language of Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005): “A 

record of arrest, without more, does not establish the historical fact that a defendant 

committed a criminal offense and may not be properly considered as evidence of criminal 

history.” Nonetheless, a record of arrests and charges may reveal that a defendant has not 

been deterred from criminal activity even after having been subject to the police authority of 

the State. Id. A sentencing court may consider the charges as evidence of the defendant’s 

character and the risk that he will reoffend. Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 

1991).

Although he alleges that the trial court should not have considered his conspiracy with 

Brown and Smith to be an aggravator, Fuller makes no specific argument in this regard. 

With respect to the finding that the crimes were committed in the presence of an individual 
23

under age eighteen, Indiana Code section 35-38-1-7.1(4) includes as a specific aggravating 

circumstance the commission of a crime of violence in the presence or within hearing of an 

individual who was less than eighteen years of age and is not the victim of the offense. The 

best evidence of legislative intent is the text of the statute. Adams v. State, 960 N.E.2d 793, 

798 (Ind. 2012). Although Fuller suggests that we read into the statute an exception for a coactor under age eighteen, there is no such statutory exclusion in the language chosen by the 

legislature.

Finally, quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007), Fuller argues that 

the trial court should not have considered the fact that there were multiple murders because 

“It is true that a material element of a crime may not be used as an aggravating factor to 

support an enhanced sentence.” In McElroy, the Court had examined a sentence imposed 

under the presumptive sentencing scheme. Subsequently, our supreme court has explained 

that, “[b]ased on the 2005 statutory changes [enacting an advisory scheme], this is no longer 

an inappropriate double enhancement.” Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008). If, 

however, a trial court imposed a maximum sentence while explaining only that an element 

was the reason, the trial court would have provided an unconvincing reason that might 

warrant revision of the sentence on appeal. Id. (emphasis in original). Such is not the 

situation here. The trial court properly focused upon the commission of multiple crimes with 

multiple victims and also identified other valid circumstances to ultimately support the 

maximum sentence.

Fuller also claims that his sentence is inappropriate. The authority granted to this 
24

Court by Article 7, § 6 of the Indiana Constitution permitting appellate review and revision 

of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The 

Court may revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the 

offense and the character of the offender.” Under this rule, and as interpreted by case law, 

appellate courts may revise sentences after due consideration of the trial court’s decision, if 

the sentence is found to be inappropriate in light of the nature of the offense and the character

of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State, 

798 N.E.2d 852, 856-7 (Ind. 2003). The principal role of such review is to attempt to leaven 

the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, we find no abuse of discretion in the trial court’s finding 

of aggravators, we conclude that the trial court did not impose an inappropriate sentence 

under Appellate Rule 7(B), and the sentence does not warrant appellate revision. 

Accordingly, we decline to disturb the sentence imposed by the trial court.

Conclusion

 We find no fatal variance between the charging information and the evidence 

presented at trial. Fuller has demonstrated no abuse of discretion in the admission of 

evidence; nor has he established prosecutorial misconduct. The trial court did not abuse its 

discretion in sentencing Fuller and his maximum sentence is not inappropriate.

Affirmed. 

NAJAM, J., and BARNES, J., concur.