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 

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR. GREGORY F. ZOELLER

Dyer, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JEREMY K. BLUE, )

)

Appellant-Defendant, )

)

vs. ) No. 45A03-1404-CR-113

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable Clarence D. Murray, Judge

Cause No. 45G02-1203-MR-1

December 12, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Jeremy Blue appeals his convictions and sentence for murder and Class B felony 

robbery. We affirm.

Issues

The issues before us are:

I. whether the trial court properly instructed the jury 

regarding Blue’s presumption of innocence; and

II. whether Blue’s aggregate sentence of eighty years is 

inappropriate.

Facts

The evidence most favorable to the convictions is that, in February 2012, Blue 

asked a friend, Arie Brown, if he could use Brown’s gun to “hit a lick,” which is slang for 

committing a robbery. Tr. p. 296. Brown refused to lend Blue his gun. On March 3, 

2012, Blue approached another friend, Donvell Edwards, asking about acquiring a gun to 

“hit a lick.” Id. at 850. Edwards understood that Blue wanted to rob a Lucky Mart 

convenience store in Merrillville. Edwards introduced Blue to Edward Perry to talk 

about obtaining a gun from Perry.

On March 4, 2012, Blue called Edwards, and Blue, Edwards, and Perry met to 

discuss robbing the Lucky Mart. Edwards had previously been convicted of robbing the 

same Lucky Mart and gave Blue information about the store, including the fact that it had 

a hidden safe and surveillance cameras. Blue then drove with Edwards and Perry to an 

apartment complex near the Lucky Mart. Blue was driving his tan Oldsmobile with a 

distinctive burgundy- or red-colored hood. Perry gave a gun to Edwards, who then gave 
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it to Blue with the safety on, telling Blue, “don’t hurt nobody, just be cool . . . .” Id. at 

877. Edwards also gave Blue a hockey goalie mask to wear.

Blue then went into the Lucky Mart, where Judi Simpson-Beaver was working by 

herself at the time. Blue pulled the gun on Simpson-Beaver and demanded, “b****, give 

me the money.” Id. at 629. Simpson-Beaver gave Blue two cash drawers. Despite 

Blue’s wearing the mask, Simpson-Beaver recognized him from the neighborhood and 

said, “Jeremy, why are you doing this?” Id. at 909. Blue then decided that he had to kill 

Simpson-Beaver, and he shot her twice, once in the chest and once in the face. SimpsonBeaver died in the store from her wounds. Blue ran with the two cash drawers back to 

his car. While running to the car, Blue partially lifted the hockey mask from his face. 

Tyshawn Kidd, who was acquainted with Blue and was walking outside the Lucky Mart, 

saw Blue and recognized him as he went by carrying the cash drawers. Several witnesses 

also recalled seeing Blue’s tan Oldsmobile with a burgundy or reddish hood parked at the 

apartment complex at the time of the robbery. Blue, Edwards, and Perry then drove 

away.

Police obtained the surveillance footage from the Lucky Mart and parts of it were 

broadcast on the news. Two persons acquainted with Blue called police to tell them that 

they believed Blue was the person who committed the robbery, based on body type and 

clothing. One of the tipsters also said that Blue had a unique way of walking that she 

recognized on the surveillance tape.

The State originally charged Blue with murder, felony murder, and Class A felony 

robbery. It later amended the information to charge Blue with Class B felony instead of 
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Class A felony robbery. At Blue’s jury trial, which was held on November 4-15, 2013, 

Blue tendered the following jury instruction:

Under the law of this state, a person charged with a crime is 

presumed to be innocent. This presumption continues in 

favor of the accused throughout the trial of this cause. To 

overcome the presumption of innocence, the [S]tate must 

prove the Defendant guilty of each essential element of the 

crime charged, beyond a reasonable doubt.

The Defendant is not required to present any evidence to 

prove his/her innocence or to prove or explain anything.

You should attempt to fit the evidence to the presumption that 

the Defendant is innocent. If the evidence in this case is 

susceptible of two (2) constructions or interpretations, each of 

which appears to you to be reasonable, and one of which 

points to the guilt of the Defendant, and the other to his/her 

innocence, it is your duty, under the law to adopt that 

interpretation which is consistent with the Defendant’s 

innocence, and reject that which points to his/her guilt.

Id. at 1228. The trial court rejected the instruction, stating:

Courts are very, very, very reluctant to alter pattern 

instructions unless there’s some compelling reason to do so, 

and that’s getting on a very slippery slope to do that. And 

I’m not comfortable in giving that instruction. I think it’s 

adequately [sic]under the patterns that we have. So I’m going 

to reject this.

Id. at 1109.

Edwards and Perry testified against Blue. Perry received use immunity in 

exchange for his testimony. Edwards, who was charged with the same crimes as Blue, 

pled guilty prior to testifying to Class B felony robbery with a sentencing cap of twelve 

years. At the conclusion of trial, the jury found Blue guilty of all three counts. The trial 

court entered judgments of conviction only for murder and Class B felony robbery. It 
5

sentenced Blue to a term of sixty-three years for murder and seventeen years for robbery, 

to be served consecutively for a total term of eighty years. Blue now appeals.

Analysis

I. Jury Instruction

Blue first challenges the trial court’s refusal to give his tendered instruction 

regarding his presumption of innocence. When reviewing a trial court’s decision to give 

or refuse to give a proposed instruction, we consider: (1) whether the instruction 

correctly states the law; (2) whether there was evidence presented at trial that would 

support giving the instruction; and (3) whether the substance of the instruction was 

covered by other given instructions. Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 

2012). “Jury instructions should inform the jury regarding the law applicable to the facts 

without being misleading and should enable the jury to understand the case and arrive at 

a just, fair, and correct verdict.” Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App. 2008), 

trans. denied. When reviewing a claim of instructional error, we must consider the effect 

of the error in light of the jury instructions as a whole. Inman v. State, 4 N.E.3d 190, 200 

(Ind. 2014). Any error in instructing the jury is harmless in a criminal case if a 

conviction is clearly sustained by the evidence and the jury could not properly have found 

otherwise. Id. We will reverse if we cannot say with complete confidence that the jury 

would have found the defendant guilty if it had been properly instructed. Id.

Blue argues that his tendered instruction is identical to Indiana Pattern Instruction 

(Criminal) 1.13. In fact, they are not precisely identical. That pattern instruction reads:
6

Under the law of this State, a person charged with a crime is 

presumed to be innocent. To overcome the presumption of 

innocence, the State must prove the Defendant guilty of each 

element of the crime charged, beyond a reasonable doubt.

The Defendant is not required to present any evidence to 

prove his innocence or to prove or explain anything. [You 

should reconcile the evidence on the theory that the defendant 

is innocent if you can do so.] [or] [You should fit the 

evidence to the presumption that the defendant is innocent if 

you can do so.]

Ind. Pattern Instruction (Criminal) 1.13 (2014) (brackets in original). The comments to 

this instruction state that the bracketed language can instead be included as part of Pattern 

Instruction (Criminal) 1.17, which addresses the credibility of witnesses and the weighing 

of evidence.

The comments also state that the bracketed language was added to the pattern 

instructions in response to this court’s decision in Lee v. State, 964 N.E.2d 859 (Ind. Ct. 

App. 2012), trans. denied. In that case, the defendant tendered an instruction identical to 

the one tendered by Blue, which the trial court refused to give. On appeal, the State 

argued that the substance of the defendant’s tendered instruction was covered by other 

given instructions, including the following:

You should keep an open mind. You should not form or 

express any conclusion or judgment about the outcome of the 

case until the Court submits the case to you for your 

deliberations.

* * * * * *

Under the law of this State, a person charged with a crime is 

presumed to be innocent. To overcome the presumption of 

innocence, the State must prove the defendant guilty of each 

element of the crime charged, beyond a reasonable doubt.
7

The defendant is not required to present any evidence to 

prove his innocence or to prove or explain anything.

Lee, 964 N.E.2d at 864. The trial court in Lee also instructed the jury that all of the 

instructions had to be considered together, that the jury must give the defendant the 

benefit of any reasonable doubt, that it must find the defendant not guilty if the State 

failed to prove each element of the crime beyond a reasonable doubt, and that if there was 

conflicting evidence, it was the role of the jury to decide what testimony to believe and 

what testimony not to believe. Id. 

We held that the instructions cited by the State were insufficient to instruct the 

jury on the defendant’s presumption of innocence. Id. at 865. We relied upon our 

supreme court’s holding in Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983), where it

stated, “An instruction . . . which advises the jury that the presumption of innocence 

prevails until the close of the trial, and that it is the duty of the jury to reconcile the 

evidence upon the theory of the defendant’s innocence if they could do so, must be given 

if requested.” In particular, we concluded that the instructions cited by the State did not 

adequately explain “the jury’s duty to ‘reconcile the evidence upon the theory of the 

defendant’s innocence if they could do so.’” Id. We reversed the defendant’s 

convictions. Id. We did not address whether the defendant was prejudiced by the failure 

to give his tendered instruction because the State did not argue lack of prejudice.

Here, unlike in Lee, the trial court did give an instruction, tracking Pattern 

Instruction (Criminal) 1.17, which stated in part, “You should attempt to fit the evidence 

to the presumption that the defendant is innocent and the theory that every witness is 
8

telling the truth.” App. p. 169 (emphasis added). We have held that this instructional

language satisfies the requirements of the Lee and Robey opinions and is adequate to 

inform the jury of the defendant’s presumption of innocence. Smith v. State, 981 N.E.2d 

1262, 1269 (Ind. Ct. App. 2013) (citing Simpson v. State, 915 N.E.2d 511 (Ind. Ct. App. 

2009), trans. denied), trans. denied. As such, we conclude the substance of Blue’s 

tendered instruction was covered by other given instructions, and the trial court did not 

abuse its discretion in refusing to give that instruction.1

 See id.

Moreover, unlike in Lee, the State does argue here that Blue could not have been 

prejudiced by the trial court’s refusal to give his tendered instruction. The evidence 

against Blue was overwhelming. Blue makes much of the fact that the two primary 

witnesses against him were his cohorts in the robbery, Edwards and Perry, and that they 

received beneficial prosecutorial treatment in exchange for their testimony. The fact 

remains that there was absolutely no evidence presented to suggest that anyone other than 

Blue walked into the Lucky Mart, shot and killed Simpson-Beaver, and absconded with 

two cash drawers. In addition to Edwards and Perry, Kidd also positively identified Blue 

as the person he saw walking from the Lucky Mart wearing a hockey goalie mask and 

carrying two cash drawers; two other witnesses believed Blue was the person seen on the 

surveillance tape; and multiple witnesses saw Blue’s distinctively-colored Oldsmobile 

parked at the apartment complex near the Lucky Mart at the time of the robbery. We 

conclude that, even if the jury could have been more thoroughly instructed regarding its 

 1 To the extent Blue separately argues that the jury was not adequately informed that his presumption of 

innocence was to be maintained throughout trial, we observe that the Lee opinion expressed no concern 

that the other instructions given in that case, which were similar to other instructions given here, were 

inadequate on that point.
9

duty to weigh conflicting evidence in a light most favorable to Blue’s presumption of 

innocence, there simply was no such conflicting evidence. All of the evidence pointed to 

Blue’s guilt. Blue has not established that he was prejudiced by the manner in which the 

trial court instructed the jury.

II. Sentencing

Next, Blue contends that his aggregate eighty-year sentence is inappropriate under 

Indiana Appellate Rule 7(B) in light of his character and the nature of the offenses. 

Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s 

sentencing decision, we still must give due consideration to that decision. Rutherford v. 

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the 

unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a 

defendant bears the burden of persuading the appellate court that his or her sentence is 

inappropriate.” Id.

The principal role of Rule 7(B) review “should be to attempt to leaven the outliers, 

and identify some guiding principles for trial courts and those charged with improvement 

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” 

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of 

counts, or length of the sentence on any individual count.” Id. Whether a sentence is 

inappropriate ultimately turns on the culpability of the defendant, the severity of the 

crime, the damage done to others, and myriad other factors that come to light in a given 

case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B), 
10

we may consider all aspects of the penal consequences imposed by the trial court in 

sentencing the defendant, including whether a portion of the sentence was suspended. 

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

Regarding the nature of the offenses, Blue planned to commit a robbery for a 

period of time, moving forward with his plan after Brown refused to give him a gun and 

finding another person who would provide him with one. Blue then committed the 

robbery of the Lucky Mart and shot and killed Simpson-Beaver in cold blood when she 

indicated that she knew him. In fact, the surveillance tape shows Blue going back to 

shoot Simpson-Beaver a second time, directly in the face, after he had already shot her in 

the chest and he was starting to leave the store. This senseless killing was egregious.

As for Blue’s character, he notes that he was only twenty years old (nearly twentyone) at the time of the crimes. That is not an especially youthful age for purposes of 

sentencing though, especially where, as here, a defendant is “more ‘hardened and 

purposeful’ than ‘clueless.’” Coleman v. State, 952 N.E.2d 377, 385 (Ind. Ct. App. 2011)

(quoting Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000)). Blue has juvenile adjudications 

for Class A misdemeanor criminal mischief, Class C misdemeanor minor consumption of 

alcohol, two counts of Class D felony receiving stolen property, and one count of 

misdemeanor receiving stolen property in California. Blue failed juvenile probation on 

one occasion. He has an adult conviction for Class A misdemeanor possession of 

marijuana. He also admitted to using marijuana heavily since the age of eleven. While 

awaiting trial in the present case, Blue received numerous misconduct reports, including 

for fighting and throwing feces and urine on other inmates, which ultimately led to his 
11

segregation in the jail. While this other, documented criminal misconduct of Blue is not 

nearly as severe as his murder of Simpson-Beaver, it is clearly reflective of an individual 

who “has been regularly flouting the law, whether in jail or prison or outside of them, for 

many years.” See id.

The trial court here also noted that Blue was “defiant” during the sentencing 

hearing and made a “lame effort in apology” to Simpson-Beaver’s family. Tr. p. 1284. 

Indeed, during Blue’s allocution, while purporting to apologize for Simpson-Beaver’s 

death while maintaining his innocence, he accused the prosecutors of lying and told 

Simpson-Beaver’s family, “I know you probably don’t understand that . . . you’re not the 

only person that is really suffering” and suggesting he would suffer from incarceration. 

Id. at 1280. Additionally, Blue wrote a letter to the prosecutor’s office after trial and 

before sentencing in which he said in part that “the masked man was inraged [sic]” by 

Simpson-Beaver supposedly not cooperating during the robbery and further stating, “I 

cannot plead guilty to Robbery because the robber was the one being robbed. I have a 

son at home & honestly looking at both sides he’s the real victim in this case . . . .” App. 

p. 135. Blue’s complete lack of empathy towards Simpson-Beaver and her family, as 

well as his “woe-is-me” self-centeredness, is disturbing. Although a defendant’s decision 

to maintain his or her innocence is not a proper sentencing consideration, a lack of 

remorse and disdain for the system may be. Deane v. State, 759 N.E.2d 201, 205 (Ind. 

2001). Such is the case here. Blue’s character is poor.

Blue also asserts that his mental health warrants a reduction of his sentence. 

Deciding whether a defendant’s mental health problems are entitled to consideration in 
12

sentencing requires “a high level of discernment” by courts. Covington v. State, 842 

N.E.2d 345, 349 (Ind. 2006). Factors to consider include “the extent of the inability to 

control behavior, the overall limit on function, the duration of the illness, and the nexus 

between the illness and the crime.” Id. Here, Blue relies primarily upon a psychological 

evaluation performed upon him in 2006 through a juvenile court order. The psychologist 

noted that Blue was of average intelligence but was delayed in processing thoughts and 

responding to questions; the psychologist thought this delay “may be related to the 

thought disorder, mood disorder, neurological or medical problem or the influence of a 

‘drug-induced’ type of thought disorder.” Sentencing Ex. 5 p. 4. Ultimately, however, 

the psychologist opined that Blue’s “legal problems stem from situational factors rather 

than internal or long-term psychological disorders.” Id. at 7. We do not believe that this 

report, which was over seven years old at the time of Blue’s sentencing, demonstrates any 

nexus between his mental health and the crimes he committed. There was no more recent 

expert evidence presented at the sentencing hearing regarding Blue’s mental health. 

Similarly, to the extent Blue contends he had a troubled childhood, “[o]ur supreme court 

has ‘consistently held that evidence of a difficult childhood warrants little, if any, 

mitigating weight.’” Patterson v. State, 909 N.E.2d 1058, 1062 (Ind. Ct. App. 2009).

Finally, we address Blue’s claim that his sentence is excessive in comparison with 

the State’s treatment of his cohorts, Edwards and Perry. In some cases, we may revise a 

sentence when there is a “stark” contrast between sentences imposed on a defendant and 

his or her co-defendants, especially when the defendant’s culpability is equal to or less 

than a co-defendant who received a considerably lesser sentence. See Coleman, 952 
13

N.E.2d at 385-86 (citing Cardwell, 895 N.E.2d at 1226). Here, the State dismissed the 

murder and felony murder charges against Edwards and offered a plea agreement to Class 

B felony robbery, with a sentencing cap of twelve years. As for Perry, the record 

indicates he was granted “use immunity” for his testimony. Ex. 150. Although Blue 

seems to contend the State granted Perry absolute immunity from any prosecution 

connected with the robbery of the Lucky Mart, use immunity only “prohibits use at a 

subsequent criminal proceeding of testimony compelled of the witness.” Wilson v. State, 

988 N.E.2d 1211, 1219 (Ind. Ct. App. 2013). “Transactional immunity” by contrast is a 

prohibition against prosecution for any transaction concerning that to which the witness 

testifies. Id. Perry was not granted that kind of immunity. There is no evidence Perry 

had in fact been charged with any crimes related to the Lucky Mart robbery at the time of 

Blue’s trial; he was in prison on an unrelated gun charge at the time. However, it does 

not appear that the use immunity agreement would prohibit such charges.

In any event, we believe there is ample justification in the record for treating Blue 

much more harshly than Edwards and Perry. Blue was the instigator and driver of the 

plot to rob the Lucky Mart. He actively sought to obtain a gun for that purpose for 

several weeks. Blue made a phone call to Edwards on March 4, 2012, to carry the plan 

into action. Blue was the only one of the three who actually went into the Lucky Mart 

and, of course, he was the only one who shot Simpson-Beaver. Edwards and Perry did 

not think Blue was actually going to shoot anyone during the robbery. In fact, Edwards 

activated the safety on the gun before giving it to Blue and told him not to hurt anyone. 

At trial, Edwards expressed unequivocal great remorse for what had happened to 
14

Simpson-Beaver, unlike Blue’s own highly equivocal expression of remorse that seemed 

to place the blame for the shooting on the victim. Certainly, there are sound policy 

reasons for the felony murder rule, and it is possible the State could have sought such a 

conviction against Edwards and Perry if it wanted to do so, despite their lack of mens rea

with respect to Simpson-Beaver’s shooting. Still, there is no denying for purposes of 

sentencing that there is abundant evidence of Blue’s much greater culpability for both the 

robbery and the murder. Also unlike Blue, Edwards and Perry cooperated with law 

enforcement and prosecutors, which cannot be ignored. We do not believe that any 

reduction of Blue’s eighty-year sentence is warranted to bring it closer to Edwards’s 

twelve-year sentence or the granting of use immunity to Perry.

Conclusion

The trial court did not abuse its discretion in instructing the jury; even if it had, 

any such error was not prejudicial to Blue. Also, Blue’s eighty-year sentence is not 

inappropriate. We affirm.

Affirmed.

BRADFORD, J., and BROWN, J., concur.