Opinion
Court of Appeals Case No. 20A-CR-2216
10-20-2021
Gerald PINKSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorneys for Appellant: Ian P. Goodman, Jonathan A. Bont, Paganelli Law Group, Indianapolis, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi K. Stein, Josiah J. Swinney, Deputy Attorneys General, Indianapolis, Indiana
Attorneys for Appellant: Ian P. Goodman, Jonathan A. Bont, Paganelli Law Group, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi K. Stein, Josiah J. Swinney, Deputy Attorneys General, Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Defendant, Gerald Pinkston (Pinkston), appeals his convictions and sentence for three counts of murder, felonies, Ind. Code § 35-42-1-1(1), and one count of criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2(a), (b)(1)(A).
[2] We affirm.
ISSUES
[3] Pinkston presents the court with eight issues, which we consolidate and restate as the following six:
(1) Whether the trial court abused its discretion or committed fundamental error when it admitted certain evidence;
(2) Whether the trial court committed fundamental error when it instructed the jury on accomplice liability;
(3) Whether the deputy prosecutor's conduct constituted fundamental error;
(4) Whether the cumulative effect of the admission of the challenged evidence, the accomplice liability instructions to the jury, and deputy prosecutor's statements deprived Pinkston of a fair trial;
(5) Whether the State proved the offenses beyond a reasonable doubt; and
(6) Whether Pinkston's sentence is inappropriate in light of the nature of the offenses and his character.
FACTS AND PROCEDURAL HISTORY
[4] Pinkston and Kameron Joyner (Joyner) were best friends who had known each other since high school. Joyner enjoyed full access to the Pinkston family home in the 4400 block of Warsaw Street in Fort Wayne. On Thanksgiving, November 22, 2018, Pinkston and Joyner got together at Pinkston's home around 8:00 p.m.
[5] The same evening, Colton Messmer (Messmer) hosted a "Friendsgiving" to celebrate the holiday after the day's family celebrations were over. (Transcript Vol. II, p. 162). Messmer lived in a home in the 6000 block of Downingtown Drive in Fort Wayne with his girlfriend, Tracey Andrews (Andrews), Teryle King (King), and King's girlfriend, Crystal Datil (Datil). In addition to Messmer, Andrews, King, and Datil, Messmer's best friend, Kyle Wagner (Wagner), Joevonn Johnson (Johnson), and Johnson's friend, Eric, were in the home that evening. Pinkston, Joyner, King, and Andrews had all known each other since high school. King and Pinkston's mothers socialized together, and King considered Pinkston to be his friend. King and Joyner were also good friends. The group at Messmer's house socialized that evening by eating, drinking alcohol, smoking marijuana, and playing videogames.
[6] Around 10:00 p.m., Pinkston and Joyner were driven in a white SUV by a third party to Messmer's house. Pinkston and Joyner were clad all in black and left the driver of the SUV outside with the SUV's engine running. Pinkston and Joyner were not expected at Messmer's but were greeted warmly by those inside. The group was congregated in the living room and kitchen of the small home, enjoying the evening with no tension or arguments taking place. After Pinkston and Joyner had been there for approximately twenty-five minutes, Joyner exited the kitchen into the living room and opened fire with a .357 caliber revolver. Johnson was shot in the head and upper right arm, killing him instantly. Joyner shot Messmer in the neck, also killing him instantly. Wagner was shot in the face, fracturing his jaw, orbital bone, nose, and sinus. Wagner lay where he fell and played dead. Andrews pleaded for her life but was shot in the chest, flank, back, and arm and died. Pinkston pursued King and Datil down a hallway. King shoved Datil to safety in the bathroom, where she hid. King was shot in the arm. Wagner, who was still prone on the living room floor, observed that Joyner never left the living room. Wagner heard Joyner tell Pinkston, "Shoot that [nigger], too" (Tr. Vol. III, p. 74). In the hallway, King turned and saw Pinkston pointing a gun in his face. King turned away and was shot in the back. King heard Joyner tell Pinkston something like "Grab the bag" and "Let's get out of here." (Tr. Vol. III, p. 50). Joyner and Pinkston grabbed two backpacks and a videogame controller.
[7] Wagner observed Joyner and Pinkston attempt to exit the home's front door, which they were unable to open. Pinkston informed Joyner that the home had a back door. Pinkston and Joyner then ran out the back door and around the house to the street. Messmer's parents, his sister Ashley (Ashley), and brother-in-law lived across the street from him. Pinkston and Joyner were observed by Messmer's brother-in-law running to the white SUV, each with a backpack, and getting into the SUV's rear passenger door. Messmer's brother-in-law was able to see that the white SUV had a specialty license plate, a fact that he communicated to 911. Wagner stumbled out of the home, thinking he was about to die. Eric exited the home behind Wagner and drove away. Ashley rushed into her brother's home and performed CPR on Messmer in an unsuccessful attempt to save his life.
[8] After the shootings, Pinkston and Joyner returned to Pinkston's home, where the Pinkston family Thanksgiving was still taking place. Pinkston's relatives, Sybron Pinkston (Sybron) and Demetre Payton (Payton), were part of the gathering at Pinkston's home after the shootings. Pinkston and Joyner were immediately identified as suspects, and investigators found Pinkston's address just hours later. An officer of the Fort Wayne Police Department (FWPD) surveilled Pinkston's home and observed a white SUV with a specialty license plate parked out front. A short time after the officer's arrival, a group of approximately ten people fled Pinkston's home and drove away in three different directions in separate vehicles. Joyner fled in the white SUV, while Pinkston fled in one of the other vehicles. The officer on the scene followed the white SUV and eventually initiated a stop. Joyner was arrested with a backpack in his possession. In the backpack was a used cigarette pack containing four spent .357 caliber and two .38 caliber spent shell casings.
[9] Pinkston evaded law enforcement, and warrants for his arrest were issued. Pinkston's home was searched pursuant to a search warrant. In an upstairs bedroom believed to be Pinkston's, investigators found a rubber glove containing five rounds of .40-caliber ammunition and a box of .40 caliber ammunition in the bedroom's closet. In a car registered to Pinkston that was parked on the property, investigators found a backpack containing packages of approximately thirty grams of marijuana, commonly referred to as "zips." (Tr. Vol. III, p. 183).
[10] Datil spoke with responding investigators on the night of the offenses. Wagner and King were transported to Lutheran Hospital for treatment. King spoke with investigators and identified Pinkston and Joyner from photo arrays. King also informed investigators that Messmer dealt marijuana in zips. Wagner was unconscious and was later transferred to St. Vincent Hospital in Indianapolis for further treatment. After he regained consciousness, Wagner identified Joyner from a photo array. Wagner also tentatively identified Pinkston from a different photo array.
[11] In his first statement to police, Joyner reported that a fictitious person, "Kejuan", had been the second shooter, and he repeatedly denied that Pinkston had been present during the offenses. (Tr. Vol. IV, p. 150). Andrews's autopsy revealed that she had been shot with both .35 and .40 caliber bullets. Crime scene investigators found seven .40 caliber shell casings in the kitchen, living room, and hallway of the Downingtown Drive home, and a .40 caliber bullet was found lodged in the front door. Although the .40 caliber bullets could not be definitively linked, the .40 caliber shell casings were later determined to have been fired from the same gun.
[12] On November 30, 2018, the State filed an Information, charging Pinkston with three counts of murder and one count of Level 6 felony criminal recklessness. Law enforcement continued to search for Pinkston. On January 10, 2019, which was Datil's birthday, she became intoxicated on alcohol, which jarred her memory. Datil began talking to a close friend and remembered that, as she fled the living room during the shootings, she had turned back and had seen Pinkston reaching into his pants for something, although she could not identify what it was. Datil also remembered that she had heard someone in the living room say, "Shoot that nigger, too" before hearing more gunshots and then had also heard someone say, "Grab that shit, too." (Tr. Vol. II, pp. 196, 210). Datil shared this information with investigators.
[13] On January 26, 2019, the FWPD received a tip that Pinkston was at a home in the 300 block of Dunbar Street in Fort Wayne. The home was associated with Pinkston's relative, Sybron, who arrived at the Dunbar Street home in a car shortly after surveillance had been put in place. Sybron was arrested on an unrelated matter and was told a search warrant would be procured for the Dunbar Street residence. From jail, Sybron made telephone calls attempting to arrange for Payton, who physically resembled Pinkston, to go to Pinkston's suspected hideout and throw investigators off Pinkston's trail. Meanwhile, the owner of the Dunbar Street home reported that Pinkston was indeed inside. Pinkston did not exit the home when hailed by loudspeaker and only came out after flash-bang grenades were deployed. Pinkston was taken into custody and arrested for the offenses. Upon procuring the consent of the owner of the Dunbar Street home to search the residence, officers found .40 caliber ammunition in one bedroom. In another bedroom, searchers found a backpack containing notes handwritten by Pinkston which appeared to be his putative answers to questions he might be asked if caught by law enforcement in connection with the shootings. In one note, Pinkston observed that he had been an accomplice in a murder committed by someone else but that his participation had been minor.
These notes were admitted at trial as Exhibit 63. The record on appeal contains only a photocopy of one of the pages. The deputy prosecutor characterized the contents of the notes in this manner, which Pinkston did not contest at trial.
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[14] On August 5, 2020, Sybron was driving a car that was pulled over by police. Payton was seated behind Sybron in the back seat. Due to issues not relevant to this appeal, the vehicle was to be towed. During an ensuing inventory search, in the pocket attached to the back side of the driver's seat in the immediate vicinity of where Payton had been seated, investigators found a .40 caliber Smith & Wesson semi-automatic handgun that was later determined to be the .40 caliber handgun that was used in the shootings.
[15] On October 20, 2020, the trial court convened Pinkston's four-day jury trial. During voir dire , the deputy prosecutor told one panel of possible jurors in his mini-opening statement that "multiple people in the house put a gun in [Pinkston's] hand." (Tr. Vol. II, p. 21). Ten jurors were selected from the panel that heard this remark. The deputy prosecutor told a second panel of potential jurors that "[y]ou'll hear testimony that surviving witnesses saw [Pinkston] drawing that handgun from his waistband or pocket." (Tr. Vol. II, p. 84). Two jurors and two alternates were selected from the potential jurors that heard this remark. During his opening argument at trial, the deputy prosecutor told the jury that the evidence would show that Pinkston had participated in the taking of three lives and that Datil had seen Pinkston reaching into the waistband of his pants. Pinkston's counsel presented Pinkston's theory of the case that only Joyner was responsible for the offenses, the police had conducted a poor investigation, including leading the witnesses, and that the State's witnesses had changed their stories through the investigation.
[16] Datil testified that after the offenses, she became reliant on alcohol, took anti-depressant medication, and attempted suicide, all in an attempt to avoid thinking about the shootings. Datil was cross-examined at length about the fact that she had spoken with investigators on the night of the offenses but had not reported seeing Pinkston reach into his pants or hearing any of the remarks she later remembered on her 2019 birthday. Pinkston's counsel developed testimony that Datil had discussed the offenses with others after her initial conversation with investigators on November 22, 2018. King also testified at trial about the shootings, including that he had heard Joyner tell Pinkston to "Shoot that nigger, too", "Grab the bag", and "Let's get out of here." (Tr. Vol. III, pp. 48, 50). Pinkston's counsel cross-examined King about the fact that he had not initially reported having heard these comments and that King had not remembered turning and seeing Pinkston pointing a gun in his face until almost a year after the offenses. During his testimony, King related that he had a scar and permanent nerve damage as a result of being shot. King had also experienced PTSD, anxiety, and depression after the offenses.
[17] Officer Will Winston (Officer Winston) of the FWPD testified regarding the August 5, 2020, search of Sybron's vehicle that netted the .40 caliber handgun that was used in the offenses. After the officer had testified about the circumstances of the investigatory stop and the pre-tow inventory, where the handgun was found in the vehicle, and the handgun's chain of custody, the deputy prosecutor moved to have the handgun admitted into evidence, drawing a relevancy objection from Pinkston's counsel. At a sidebar, the deputy prosecutor explained that, although Officer Winston could not testify regarding the handgun's relevance, the foundation for the handgun's admission would be completed through the State's firearms examiner, Michelle Fletcher (Fletcher), who would testify that her examination established that the handgun matched shell casings found at the scene and was of the same caliber as the bullet retrieved from Andrews's body, thus showing that the handgun was one of the murder weapons. The trial court overruled Pinkston's objection and provisionally admitted the handgun, subject to the foundation for its admission being completed by Fletcher. The State did not publish the handgun to the jury at that time. Two more State witnesses testified before Fletcher, who testified as predicted by the deputy prosecutor and who opined that the evidence at the scene showed that at least two guns had been used in the shootings. After this testimony, the deputy prosecutor published the .40 caliber handgun to the jury. During Fletcher's testimony, the deputy prosecutor referred several times to the .40 caliber handgun as having been previously admitted into evidence. Pinkston did not object when the deputy prosecutor referred to the handgun in this manner.
[18] The lead homicide investigator for the FWPD, Detective Brian Martin (Detective Martin), testified regarding the investigation of the offenses. The deputy prosecutor remarked that Datil, King, and Wagner had testified about what they remembered about the offenses and the impact the offenses had on them the day they occurred and after. The deputy prosecutor then asked Detective Martin, "[h]ave you received training in the effects of trauma on law enforcement officers and civilians?" (Tr. Vol. IV, p. 105). Detective Martin responded that he had training, experience, and first-hand knowledge about the effects of trauma. He went on to explain that, in officer-involved shootings, it is standard operating procedure that an officer waits seventy-two hours to give a statement because the officer needs time after a traumatic event to decompress and to be capable of making a statement. Detective Martin began to detail his own experience in giving statements after shootings, which drew a relevancy objection from Pinkston's counsel. The trial court overruled the objection but directed the deputy prosecutor to move on to another topic quickly. After the side bar, Detective Martin finished his answer, and the deputy prosecutor then moved on to other lines of questioning, including eliciting Detective Martin's opinions on why witnesses might be interviewed on more than one occasion and whether witnesses to shootings are reliable in counting the number of shots they heard. Pinkston's counsel did not object to these lines of questioning.
[19] Joyner testified on Pinkston's behalf. By the time of Pinkston's trial, Joyner had already pleaded guilty and had been sentenced for three counts of murder and two counts of attempted murder. According to Joyner's trial testimony in the instant matter, he and Pinkston had decided to go to Messmer's home to purchase marijuana, and for unspecified reasons, Joyner had decided to kill Johnson if he was at Messmer's home. According to Joyner, Pinkston knew they were going to Messmer's to purchase marijuana but not that Joyner was planning to kill Johnson. Joyner testified that he began shooting without warning, he had emptied the .357 caliber revolver he had with him, and that he had grabbed Messmer's .40 caliber handgun that was on the living room coffee table and continued shooting. Joyner claimed that he had chased Pinkston and King down the hallway and that Pinkston had left with him and let him into his home after the offenses because he was afraid of Joyner. On cross-examination, Joyner admitted that he had initially invented a fictitious second shooter, "Kejuan", and had told investigators untruthfully that Johnson had helped orchestrate a plot to murder Messmer. (Tr. Vol. IV, p. 150). Joyner also acknowledged that he had never before stated that he had used Messmer's gun after he had shot all the bullets in his .357 caliber revolver.
[20] At the final instruction conference, the trial court accepted the State's proffered instructions on accomplice liability, which were not pattern instructions, without objection from Pinkston. After the parties rested and provided closing argument, the jury began its deliberations. The jury foreperson sent several notes to the trial court requesting further guidance on the law of accomplice liability. Pursuant to Indiana Jury Rule 28, the parties agreed to provide supplemental closing argument. Pinkston did not object to any of the deputy prosecutor's supplemental argument. After further deliberations, the jury found Pinkston guilty as charged.
[21] On November 16, 2020, the Allen County Probation Department filed the presentence investigation report (PSI) in this matter. Pinkston, who would be twenty-four years old at sentencing, had no criminal record before his convictions for the instant offenses. Pinkston had fathered three children, who were then eight, four, and two years old. Ashley submitted a victim's impact statement for inclusion with the PSI in which she related the trauma of having had her brother die in her arms, that their family had cleaned Messmer's home after the offenses, something they would never forget, and that Messmer's son would "randomly walk up to us and say my daddy was killed by [two] bad men." (Appellant's App. Vol. II, p. 216). Johnson's mother wrote in her impact statement about her deep grief and the fact that she only finds the strength to keep living so that she can raise Johnson's two young children.
[22] On November 20, 2020, the trial court convened Pinkston's sentencing hearing. The trial court found Pinkston's lack of criminal record to be mitigating but did not accord it great weight given the gravity of the instant offenses. The trial court also accepted Pinkston's expressions of remorse as a mitigator. The trial court rejected Pinkston's other proffered mitigating circumstances of undue hardship to his dependents and the offenses being the result of circumstances unlikely to reoccur. The trial court found the nature and circumstances of the offenses, the extraordinary impact of the offenses on the families of the victims, and the number of victims to be aggravating circumstances. The trial court further found that the imposition of concurrent sentences would depreciate the seriousness of the offenses. The trial court sentenced Pinkston to fifty-five years for each murder and to one year for his Level 6 felony criminal recklessness conviction. The trial court ordered Pinkston to serve his sentences consecutively, for an aggregate sentence of 166 years.
[23] Pinkston now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Evidence
[24] Pinkston challenges the admission of the .40 caliber handgun and certain portions of Detective Martin's testimony.
A. Standard of Review
[25] Trial courts have broad discretion to admit or exclude evidence, and we review the trial court's evidentiary rulings for an abuse of that discretion. Combs v. State , 168 N.E.3d 985, 990 (Ind. 2021). A trial court abuses its discretion when its evidentiary ruling is against the facts and circumstances before it and the erroneous ruling affects the party's substantial rights. Schnitzmeyer v. State , 168 N.E.3d 1041, 1044 (Ind. Ct. App. 2021). In conducting our review, we will not reweigh the evidence, and we resolve all conflicts in favor of the trial court's ruling. Id.
B. .40 Caliber Handgun
[26] Pinkston first contends that the .40 caliber handgun was irrelevant and, thus, that the trial court abused its discretion in admitting it into evidence. The admission of evidence is controlled by the Indiana Rules of Evidence. Id. Relevant evidence is generally admissible, while irrelevant evidence is not. Ind. Evidence Rule 402. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Evid. R. 401. In determining whether certain evidence concerns a material fact, we generally look to the nature of the case and the issues being litigated, which are usually set out in the pleadings. Morris v. Crain , 71 N.E.3d 871, 878 (Ind. Ct. App. 2017). In a criminal case, "[i]n order to be admissible, the evidence need only have some tendency, however slight, to make the existence of a material fact more or less probable, or tend to shed any light upon the guilt or innocence of the accused." Simmons v. State , 717 N.E.2d 635, 638 (Ind. Ct. App. 1999).
[27] Here, the State charged Pinkston with murdering Messmer, Andrews, and Johnson, by acting "in concert" with Joyner. (Appellant's App. Vol. II, pp. 25, 27, 29). The State's theory of the murders was that Pinkston was Joyner's accomplice, with Joyner shooting a .357 revolver and Pinkston shooting a .40 caliber semi-automatic handgun. The State also charged Pinkston with criminal recklessness for recklessly, knowingly, or intentionally performing an act which created a substantial risk of bodily injury to those present at Downingtown Drive that evening, all while armed with "a firearm." (Appellant's App. Vol. II, p. 31). In light of the charges and the State's theories of the offenses, whether Pinkston had fired a .40 caliber handgun at the scene of the shootings was a seminal, material issue in the case. Fletcher testified that two handguns were used during the shootings and that the .40 caliber handgun had fired all the .40 caliber shell casings found in the kitchen, living room, and hallway of the home. Andrews was shot with a .40 caliber bullet, and King testified that he observed Pinkston pointing a handgun in his face moments before King was shot in the back in the hallway of the home. Therefore, the admission of the .40 caliber handgun was highly relevant to show Pinkston's participation in, and commission of, the offenses.
[28] In arguing against the relevancy of the .40 caliber handgun, Pinkston does not present us with legal authority suggesting that the admission of a handgun shown to have been discharged at the scene of three murders and an incident of criminal recklessness was an abuse of the trial court's discretion. Rather, Pinkston argues that the .40 caliber handgun was irrelevant because Fletcher did not testify that Pinkston possessed the gun or fired it, neither Pinkston's DNA nor his fingerprints were found on the handgun, and the handgun had been seized in an unrelated criminal investigation. These arguments go more to what weight the jury could ascribe to the handgun rather than indicate that the handgun had no tendency "to make the existence of a material fact more or less probable, or tend to shed any light upon the guilt or innocence of the accused." Simmons , 717 N.E.2d at 638 ; see also Brown v. State , 480 N.E.2d 938, 940 (Ind. 1985) (observing that even where the probative value of evidence is weak, "this affects the weight of the evidence and not its admissibility."). Therefore, we conclude that the trial court did not abuse its discretion in admitting the .40 caliber handgun over Pinkston's relevancy objection. Inasmuch as Pinkston now challenges the timing of the trial court's provisional admission of the handgun during Officer Winston's testimony, that argument depends on Pinkston's contention that the handgun was irrelevant. We therefore conclude that this challenge, brought for the first time on appeal, is also without merit.
[29] Pinkston further argues that, based on Indiana Evidence Rule 403, even if the .40 caliber handgun was relevant, its probative value was outweighed by its danger of unfair prejudice to him. In addressing this contention, we first observe that Pinkston only objected at trial to the relevancy of the handgun and did not raise a Rule 403 objection. "A defendant may not object on one ground at trial and raise another on appeal[.]" Houser v. State , 823 N.E.2d 693, 698 (Ind. 2005) (finding Houser's Rule 403 challenge waived for not having been raised at trial). A defendant who objected to the admission of evidence on one basis at trial but who raises another basis on appeal must establish that fundamental error occurred. Sandifur v. State , 815 N.E.2d 1042, 1045-46 (Ind. Ct. App. 2004), trans. denied. The fundamental error exception to the specific contemporaneous objection requirement is "extremely narrow," and it applies "only when the error constituted a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Halliburton v. State , 1 N.E.3d 670, 678 (Ind. 2013) (citation omitted).
[30] For purposes of his Rule 403 argument, Pinkston does not contend that the admission of the handgun constituted fundamental error. Rather, he contends it amounted to "an abuse of discretion." (Appellant's Br. p. 26). Nevertheless, we conclude that fundamental error did not occur. Rule 403 provides that even relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of [ ] unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." We have observed that all relevant evidence is inherently prejudicial to a defendant and that Rule 403 only prohibits the admission of unfairly prejudicial evidence. Schnitzmeyer , 168 N.E.3d at 1045. Because the bar for exclusion of evidence based on unfair prejudice, rather than on mere prejudice, is high, we err on the side of admissibility and consider whether the jury will substantially overestimate the value of the evidence or whether the evidence will arouse or inflame the passion or sympathy of the jury. Id.
[31] Pinkston maintains that the admission of the .40 caliber handgun was prohibited under Rule 403 because "the jury was always going to overestimate the evidentiary value of the [g]un." (Appellant's Br. p. 26). Essentially, Pinkston maintains that the probative value of the handgun was slight because no physical evidence confirmed he had held the gun or showed that he fired it and that the State's reliance upon the handgun to prove and argue its case unfairly obfuscated the dearth of evidence linking him to the weapon. However, as outlined above, we do not share Pinkston's opinion that the handgun's relevance was minimal, given that it was shown to be one of the two weapons discharged at the scene of the shootings, Andrews was shot with a .40 caliber bullet, and King testified that he saw Pinkston pointing a gun in his face just before he turned and was shot in the back. Pinkston was not entitled to exclusion of the .40 caliber handgun merely because it was highly damaging to his defense. Pinkston has failed to demonstrate why he was unfairly prejudiced by the admission of the handgun, let alone that he was deprived of a fair trial sufficient to establish fundamental error.
C. Detective Martin's Testimony
[32] Pinkston next challenges the admission of the following portions of Detective Martin's testimony:
Deputy prosecutor: We heard from [Datil], we heard from [King], we heard from [Wagner], we had an opportunity to listen to them, not only about what they remember about what happened, but the impact that these events have had on them that day and then moving forward, as well. Have you received training in the effects of trauma on law enforcement officers and civilians?
Detective Martin: I do have training, experience, and unfortunately, first-hand knowledge of this. That training and experience comes into play where, for an example, if we would have an officer-involved shooting, the officer and direct-witness officers in that case have to be interviewed; obviously, they have to be interviewed, but we operate under a procedure, a standard operating procedure, where they will not be directly interviewed and give their statement for 72 hours. And the premise behind that is it's such a traumatic event that they need time to decompress, they need to feel that they're in a safe place, they need to get some sleep and some food in them so that they can process everything that has just happened. I can tell you, I've been involved myself in two separate officer-involved shootings, and if I would have given a statement from the very first moment-
[Pinkston's relevancy objection overruled]
Detective Martin: So in those particular cases where I was directly involved in a situation involving a shooting myself, those initial moments afterwards, I couldn't have told you how many shots I fired, but after going home, getting some food, getting some sleep, and then coming in three days later for that interview, I was much more clear, things had calmed down, my adrenaline was, obviously, down, I'd had a chance to sleep and get food in me, and was in a much better place to give accurate answers.
Deputy Prosecutor: And, Detective, the - kind of transitioning back into investigations, you talked about your focus is to gather as much information as quickly as you can ... is that balance? You know, individuals who have been through extremely traumatic experience[s] versus gathering information, is that why these individuals can be interviewed more than once?
Detective Martin: It is ... It is a very fine line that we walk. Everybody is different, everybody has different life experiences, obviously, and everybody handles those stressors different. Much like everybody sees things different in a traumatic event, they also process that different. There are times I can interview somebody right at the scene to get that initial information that we need to go forward and to develop that case and start working leads, and there's other individuals that will give me a statement and I'm like, "I'm gonna have to come back to this individual and we're gonna have to talk again after they've had little bit of time."
Deputy Prosecutor: [ ] [W]e heard a couple witnesses talk about maybe the number of gunshots that they heard or experienced. In your experience, are individuals reliable as to counting the number of shots they may have heard in investigations?
Detective Martin: It is extremely difficult to count the number of rounds being fired from one gun, much less two, three, or more.
(Tr. Vol. IV, pp. 105-08). Pinkston contends that Detective Martin's testimony regarding his personal experiences was irrelevant and was admitted contrary to Evidence Rules 401, 402, and 403. Pinkston also argues that the State used the cited testimony to "normalize the bizarre nature and timing of [Datil and King's] realizations[,]" the challenged testimony exceeded the limits of permissible lay witness testimony under Evidence Rule 701, and it contravened Evidence Rule 704 ’s prohibition on a witness vouching for the truthfulness of other witnesses’ testimony. (Appellant's Br. p. 27).
[33] In addressing these arguments, we first note that as to his properly-preserved relevancy claim, in order to merit reversal, Pinkston must establish that the admission of the testimony regarding Detective Martin's personal experiences was inconsistent with substantial justice or that his substantial rights were affected. See Ind. Trial Rule 61 ; Lewis v. State , 34 N.E.3d 240, 248 (Ind. 2015). In assessing whether reversible error has occurred as the result of improperly admitted evidence to which a trial objection was raised, we look to the probable impact that the evidence had on the jury. Lewis, 34 N.E.3d at 248. We will find any error in the admission of evidence to be harmless if the conviction is supported by substantial independent evidence of guilt such that we are satisfied that there was no substantial likelihood that the challenged evidence contributed to the conviction. Hoglund v. State , 962 N.E.2d 1230, 1238 (Ind. 2012). We further note that Pinkston did not raise Rule 403, 701, or 704 objections at trial. Therefore, he cannot prevail on those claims unless he can establish that the admission of the testimony constituted fundamental error. See, e.g., Halliburton , 1 N.E.3d at 679-80 (examining the admission of purported vouching testimony to which Halliburton did not object for fundamental error).
[34] Here, even if we were to assume, without deciding, that the challenged evidence was irrelevant, exceeded the bounds of proper lay witness testimony, and constituted impermissible vouching, we would not reverse Pinkston's convictions. As set out more fully below, there was substantial independent evidence of Pinkston's guilt admitted at trial that supported the jury's verdicts apart from Detective Martin's testimony about his personal experiences. Wagner, the surviving witness whose testimony Pinkston does not specifically challenge on appeal, testified that he observed Pinkston enter with Joyner, comply with Joyner's command to shoot King, rummage the home, and suggest the back door exit after the two could not open the front door. Messner's brother-in-law observed Pinkston run with Joyner to the waiting SUV, and Joyner testified that Pinkston and Joyner were together at Pinkston's home after the offenses. Ballistics evidence indicated that two guns were used at the shootings, and one of the guns shown to have been used in the offenses was recovered in the possession of Pinkston's relatives who were with him immediately after the shootings. In addition, Pinkston admitted his involvement in the handwritten notes recovered after he surrendered to police, and Joyner's trial testimony that Joyner shot both .357 and .40 caliber handguns was not credible, as no one else testified that Messmer had a handgun and Joyner had changed his story and had admittedly lied to investigators repeatedly. Given this abundance of probative evidence supporting Pinkston's guilt, we are convinced there was no substantial likelihood that Detective Martin's testimony about his personal experiences impacted the jury's verdicts.
[35] Likewise, we are not persuaded that Pinkston was deprived of a fair trial by the admission of this and the remainder of the challenged testimony. During jury selection, when questioned by the trial court, both panels of potential jurors denied they would give any special credibility to police officer testimony. During trial, Pinkston elicited testimony from an investigating officer that, after Datil had initially failed to identify Pinkston from a photo array, in contravention to FWPD procedures, she had been told by investigators that King had made an identification. Pinkston's counsel thoroughly cross-examined Datil and King about the circumstances and timing of their recollection of events, and Pinkston's counsel argued the lack of credibility of these witnesses in his opening and closing arguments. In addition, the deputy prosecutor did not rely on Detective Martin's testimony in his closing arguments, and the jury was instructed that it was the "exclusive judge[ ] of the evidence, the credibility of the witnesses, and of the weight to be given the testimony of each of them." (Tr. Vol. IV, p. 232). Other than complain that the challenged evidence was "extraordinarily prejudicial" to him, Pinkston does not explain how he was deprived of a fair trial by Detective Martin's brief testimony that occurred in the midst of a four-day proceeding. (Appellant's Br. p. 27). Therefore, even if we were to credit Pinkston's arguments that Detective Martin's testimony violated the cited evidentiary rules, we would not disturb the jury's verdicts because he has not established that his substantial rights were affected or that he was deprived of a fair trial by its admission.
II. Accomplice Liability Instructions
[36] Pinkston contends that the trial court's instructions on accomplice liability were an inaccurate and incomplete statement of the law.
A. Standard of Review
[37] The purpose of jury instruction is to inform the jury of the law applicable to the facts. Townsend v. State , 934 N.E.2d 118, 127 (Ind. Ct. App. 2010), trans. denied. The goal of jury instructions is to refrain from misleading the jury and to enable it to understand the case clearly so that it may arrive at a just, fair, and correct verdict. Id. In reviewing a trial court's decision to give tendered instructions, we consider: "(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given." Id. As Pinkston acknowledges on appeal, he did not object to the trial court's accomplice liability instructions. Failure to object to a jury instruction normally waives the issue for our review. Munford v. State , 923 N.E.2d 11, 13 (Ind. Ct. App. 2010). Where a defendant did not object at trial to the challenged instruction, he must establish that the giving of the instruction constituted fundamental error, namely error so prejudicial to his rights as to have rendered a fair trial impossible. Id. When assessing whether a trial court's instruction to the jury constituted fundamental error, we consider the instructions as a whole to determine if they were adequate. Id. at 14.
B. Analysis
[38] The trial court instructed the jury in relevant part as follows:
JURY INSTRUCTION 6
Accomplice liability is defined by statute as follows: A person who knowingly or intentionally aides, induces, or causes another person to commit an offense, commits that offense, even if the other person: 1. has not been prosecuted for the offense; 2. has not been convicted of the offense; or 3. has been acquitted of the offense.
JURY INSTRUCTION 7
While the Defendant's presence during the commission of the crime or the failure to oppose the crime are, by themselves, insufficient to establish accomplice liability, you may consider them along with other facts and circumstances tending to show participation. You may consider the following factors when determining whether a Defendant aided another in the commission of the crime: (1) presence at the scene of the crime; (2) companionship with another at the scene of the crime; (3) failure to oppose the commission of the crime; and (4) the course of the Defendant's conduct before, during, and after the occurrence of the crime.
JURY INSTRUCTION 8
The acts of one accomplice are imputed to all other accomplices when they knowingly act in concert in the furtherance of the crime. When two or more persons combine to commit a crime, each is criminally responsible for the acts of his confederate(s) which are probable and natural consequence[s] of their common plan, the act of one being the act of all.
(Appellant's App. Vol. II, pp. 181-83). Pinkston posits that these instructions were inadequate because, unlike the Indiana Pattern Jury Instruction, the given accomplice liability instructions did not itemize the elements of accomplice liability, did not provide that the State was required to prove beyond a reasonable doubt that he acted as an accomplice, were not specific to any charge, did not instruct whom Pinkston allegedly aided, and did not instruct what crime Pinkston's accomplice had allegedly committed. As a result, Pinkston argues that the instructions "did not state precisely what the State actually had to prove for the jury to return a verdict on accomplice liability." (Appellant's Br. p. 32).
[39] Pinkston's argument misses the mark. In addition to its specific accomplice liability instructions, the trial court provided the jury with Instructions 2-4, which were all identical save for the name of the victim and provided as follows:
JURY INSTRUCTION 2
The crime of Murder is defined by law as follows:
A person who knowingly or intentionally kills another human being, commits Murder, a felony.
Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant, Gerald Pinkston, while acting in concert with [ ] Joyner; 2. Knowingly or intentionally, 3. Killed, 4. [ ] Messmer.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty. If the State did prove each of these elements beyond a reasonable doubt, you may find the Defendant guilty of Count I, Murder, a felony.
(Appellant's App. Vol. II, p. 177). These instructions informed the jury of all the factors Pinkston contends were missing from the trial court's Instructions 6-8. Pinkston does not acknowledge Instructions 2-4 in his appellate argument, and he is mistaken when he argues that the jury was not instructed that it must consider the trial court's instructions as a whole, as the trial court's Final Instructions included a direction that "[a]ll of the law of this case has not been embodied in any one instruction. Therefore, in construing any single instruction you should consider it with all other instructions given." (Appellant's App. Vol. II, p. 174). Accordingly, we find no error in the trial court's accomplice liability instructions, let alone the fundamental error Pinkston was required to establish.
III. Prosecutorial Misconduct
[40] Pinkston next contends that the deputy prosecutor committed misconduct during opening statements, trial, and supplemental closing argument.
A. Standard of Review
[41] When a defendant has properly preserved a claim of prosecutorial misconduct, we review the claim by determining (1) whether misconduct occurred, and if it did, (2) whether, under all the circumstances, the misconduct placed the defendant in a position of grave peril to which he or she would not otherwise have been subjected. Ryan v. State , 9 N.E.3d 663, 667 (Ind. 2014). However, as he acknowledges on appeal, Pinkston did not properly preserve his prosecutorial misconduct claims for our review. If a defendant has failed to preserve his claim, on appeal, he must establish both the grounds for prosecutorial misconduct and that the misconduct constituted fundamental error, meaning error that clearly and blatantly violated basic and elementary principles of due process, presented undeniable and substantial potential for harm, and made a fair trial impossible. Id. at 667-68. The fundamental error doctrine is meant to allow appellate courts to address the most egregious and blatant of trial errors that would have been procedurally barred; it is not meant to provide defense counsel who failed to address a claimed error at trial a second chance to do so. Id. at 668. To determine whether a prosecutor's conduct constituted misconduct, we will refer to case law and the Rules of Professional Conduct. Id. at 667. In assessing whether fundamental error has occurred, we will examine the alleged misconduct in the context of the totality of the trial, including all that happened, the relevant information given to the jury, the evidence admitted, closing arguments, and the jury instructions. Id. at 668. We observe that, in light of the burden that a defendant must meet to establish fundamental error due to prosecutorial misconduct, it is " ‘highly unlikely’ " that he or she will prevail. Id. (quoting Baer v. State , 942 N.E.2d 80, 99 (Ind. 2011) ).
B. Analysis
[42] Pinkston draws our attention to numerous instances which he argues constituted prosecutorial misconduct, the first of which concerns the deputy prosecutor stating, "You'll hear testimony that multiple people in the house put a gun in [Pinkston's] hand" and "You'll hear testimony that surviving witnesses saw [Pinkston] drawing that handgun from his waistband or pocket." (Tr. Vol. II, pp. 21, 84). Pinkston argues this was misconduct because the deputy prosecutor intentionally misrepresented the evidence in his opening argument to the jury, knowing that only one witness would attest to each of these circumstances. However, we cannot conclude that the deputy prosecutor engaged in any misconduct with these remarks. As a threshold issue, the deputy prosecutor made these statements during voir dire mini-opening statements to two separate jury panels, not to the entire jury during in-trial opening statements, as Pinkston argues. Some jurors heard the first of these remarks, other jurors only heard the second. Pinkston does not explain how jurors who did not hear a remark were improperly influenced by it. In addition, the first of these statements was a fair characterization of the evidence admitted at trial. King testified he saw Pinkston point a gun in his face, and Datil testified that she saw Pinkston remove something from his pants moments before hearing "Shoot that nigger, too" and additional shots being fired, which supports a reasonable inference that Datil saw Pinkston remove a gun from his pants. (Tr. Vol. II, p. 196). Although only one witness, Datil, said that she saw Pinkston remove something from his pants, not multiple witnesses, as stated by the deputy prosecutor, this refence did not constitute reversible, fundamental error. This was a one-time remark which the deputy prosecutor corrected during his actual opening argument to the full jury by stating that only Datil saw Pinkston reach into his waistband. The jury was instructed that the argument of counsel was not evidence, and Pinkston does not explain how he was deprived of a fair trial by a remark which might very well have caused the jury to perceive that the State had promised evidence that it did not deliver. In sum, we have little trouble concluding that this remark had negligible, if any, impact on the jury's verdicts.
[43] Pinkston next argues that the deputy prosecutor twice committed misconduct during trial. First, Pinkston argues that the deputy prosecutor, having had the .40 caliber handgun provisionally admitted through Officer Winston's testimony, committed misconduct by referring to the handgun during Fletcher's testimony as having been already admitted. The Indiana Rules of Evidence provide for the provisional admission of evidence. See Evid. R. 104(b) ("When the relevance of evidence depends on whether a fact exists ... [t]he court may admit the proposed evidence on the condition that the proof be introduced later."). Once the trial court overruled Pinkston's relevancy objection, the handgun was admitted provisionally. We have already concluded that the .40 caliber handgun was relevant to issues at trial and properly admitted, and Pinkston is inaccurate when he states in his appellate brief that the two State witnesses who testified between Officer Winston and Fletcher referred to the .40 caliber handgun as the "murder weapon." (Appellant's Br. p. 37). Therefore, we conclude that the deputy prosecutor did not commit misconduct by referring to the handgun as having been already admitted after it had been provisionally admitted. Pinkston's second-argued instance of prosecutorial misconduct during the trial, namely that the deputy prosecutor "methodically guided Detective Martin in providing improper opinion and vouching testimony" meets a similar fate. (Appellant's Br. p. 35). Because we have concluded that Pinkston failed to meet his burden to prove that fundamental error occurred due to the admission of the challenged testimony, we also conclude that he has failed to demonstrate that fundamental error occurred because of the deputy prosecutor's seeking its admission. (Appellant's Br. p. 35).
[44] Pinkston's last-offered instances of prosecutorial misconduct occurred during supplemental closing argument on the law of accomplice liability, when the deputy prosecutor argued, in relevant part, as follows:
The criminal activity in this case is hand in hand. The act of one is the act of all. The law wouldn't be set up to allow you to look at what [Pinkston] did before, during, and after if it's not relevant. If [Pinkston] is there as crowd control, if he's there to clean up what [ ] Joyner can't do, he's guilty of each and every murder. You can't pick it apart and say, "Well, he didn't intend to kill [Messmer.]" He did. "He didn't intend to kill [Johnson.]" He did. In for a penny, in for a pound.... And it's charged as acting in concert, which sort of sets up the premise that [ ] Joyner is the principle and [Pinkston] is kind of helping him out, but that's not the case, they're working together, equal partners [ ] in the murders that happened in the house that night.
(Tr. Vol. IV, pp. 238-39). We do not agree with Pinkston that these statements constituted misconduct by the prosecutor. The reference to ‘crowd control’ was meant to emphasize that the jury was not required to find that Pinkston fired the gunshots that killed Messmer, Johnson, and Andrews in order to be held liable as an accomplice for their murders, which is an accurate characterization of the law. See Hart v. State , 30 N.E.3d 1283, 1288 (Ind. Ct. App. 2015) (observing in upholding Hart's murder convictions as an accomplice that "[t]o be convicted as an accomplice, it is not necessary for a defendant to have participated in every element of the crime."), trans. denied. We do not understand that remark to mean, as Pinkston argues, that the deputy prosecutor was arguing that the evidence showed that he had acted as crowd control, and we also do not credit Pinkston's seemingly inconsistent contention that the deputy prosecutor offered the jury improper hypotheticals. Pinkston's remaining points on this issue rely on strained interpretations of the deputy prosecutor's argument. The deputy prosecutor did not, as Pinkston attempts to persuade us, inform the jury that it could not find that he did not intend to kill; rather, the deputy prosecutor informed the jury that, under an accomplice liability theory of guilt, Joyner's and Pinkston's intent and actions could not be separated. Neither do we interpret the above-cited reference to the charging Information, as Pinkston urges, as instructing the jury that the Information was "wrong." (Appellant's Br. p. 36). Rather, the deputy prosecutor emphasized that the charge of acting ‘in concert’ meant that Pinkston and Joyner were equally guilty under the law, not that Pinkston was less guilty merely by being an accomplice to the murders. Accordingly, Pinkston has not demonstrated that the deputy prosecutor committed any misconduct, let alone misconduct that deprived him of a fair trial sufficient to overcome his failure to properly preserve his prosecutorial misconduct claims.
IV. Cumulative Error
[45] Pinkston next argues that, even if each of his alleged errors was harmless, the cumulative effect of the admission of the .40 caliber handgun and Detective Martin's testimony, the trial court's instructions on accomplice liability, and the prosecutor's conduct at trial amounted to fundamental error which deprived him of a fair trial. Our supreme court has observed that a defendant is "entitled to a fair trial, not a perfect trial." Inman v. State , 4 N.E.3d 190, 203 (Ind. 2014). We have concluded that Pinkston has not demonstrated any error, harmless or otherwise, resulting from the admission of the .40 caliber handgun, the trial court's instructions, or the majority of the deputy prosecutor's challenged conduct. We have also concluded that Pinkston has failed to demonstrate fundamental error resulting from the admission of Detective Martin's testimony or from the deputy prosecutor's conduct in seeking the admission of that testimony. Therefore, we cannot conclude that the cumulative effect of the alleged errors amounted to fundamental error. See Reaves v. State , 586 N.E.2d 847, 858 (Ind. 1992) ("Trial irregularities which standing alone do not amount to error do not gain the stature of reversible error when taken together.").
V. Sufficiency of the Evidence
A. Standard of Review
[46] It is well-established that when we review the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to assess witness credibility or to weigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Pinkston challenges the evidence supporting each of his convictions.
B. Murder
[47] Murder is the knowing or intentional killing of another human being. I.C. § 35-42-1-1(1). The State charged Pinkston as an accomplice to the murders of Messmer, Johnson, and Andrews for acting "in concert" with Joyner to kill them. (Appellant's App. Vol. II, pp. 25, 27, 29). Indiana law provides that a person who knowingly or intentionally "aids, induces, or causes another person to commit an offense commits that offense[.]" I.C. § 35-41-2-4. To determine whether sufficient evidence supports a finding of accomplice liability, we will consider such factors as the defendant's 1) presence at the scene of the crime; 2) companionship with another at the scene of the crime; 3) failure to oppose commission of the crime; and 4) course of conduct before, during, and after the offense. Tuggle v. State , 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. As previously noted, it is not necessary for the accomplice to have participated in every element of the crime in order to be guilty of that crime. Id.
[48] Here, Pinkston was with Joyner at Pinkston's home before they were driven to Downingtown Drive. Pinkston entered the residence with Joyner. Wagner, Datil, and King's testimony as well as ballistics evidence showed that Pinkston shot Andrews in the living room and shot King in the hallway. Pinkston obeyed Joyner's directives to shoot King and to take property from the scene. Pinkston also suggested an exit route out of the house, and he left the scene with Joyner. Pinkston and Joyner went to Pinkston's home before they fled in a group of people in an attempt to avoid being caught by law enforcement, an attempt which was initially successful for Pinkston. Thus, the State provided highly probative evidence of Pinkston's conduct before, during, and after the offenses which showed that he acted together with Joyner and was thus guilty of the murders of Messmer, Johnson, and Andrews.
[49] Despite this evidence, Pinkston urges us to accept the version of events Joyner told at trial, and he argues that his "poor choice of a close friend, and his presence with [Joyner] during, or even after, a murderous rampage" does not support the murder convictions. (Appellant's Br. p. 41). Pinkston contends that there was no evidence that he engaged in any affirmative action to knowingly or intentionally help Joyner commit the murders. Pinkston essentially asks that we ignore the aforementioned evidence of his actions before, during, and after the murders in favor of Joyner's testimony which attempted to exculpate him. These arguments are unavailing in light of our standard of review, which requires us to consider only the evidence which supports the jury's verdicts. See Drane , 867 N.E.2d at 146. Because substantial probative evidence supported Pinkston's guilt as an accomplice in the murders of Messmer, Johnson, and Andrews, we will not disturb his convictions.
C. Criminal Recklessness
[50] As it was charged by the State in this case, the offense of criminal recklessness occurs when, while armed with a deadly weapon, "[a] person [ ] recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person[.]" I.C. § 35-42-2-2(a), (b)(1)(A). Pinkston argues that his conviction cannot stand because the State failed to prove that he "did something" that created a substantial risk of bodily injury. (Appellant's Br. p. 42) (underline in the original).
[51] However, King testified that, while King was in the hallway where he had fled from the gunfire, he turned and saw Pinkston pointing a gun in his face, King turned away because he was afraid, and that King was then shot in the back. In addition, Wagner testified that Joyner never left the living room, and Wagner heard Joyner say to Pinkston, "Shoot that [nigger], too[.]" (Tr. Vol. III, p. 74). There was no other evidence that anyone but Joyner and Pinkston fired handguns in the home that evening. The totality of this evidence supported the jury's reasonable conclusion that Pinkston committed criminal recklessness by intentionally firing a deadly weapon at King, striking him in the back. See Green v. State , 808 N.E.2d 137, 138 (Ind. Ct. App. 2004) (upholding Green's Class D felony criminal recklessness conviction where circumstantial evidence supported an inference that he shot a gun in his victim's direction). In light of this evidence, we reject Pinkston's argument.
VI. Appropriateness of Sentence
[52] Pinkston lastly argues that his sentence is inappropriately harsh given the nature of his offenses and his character, and he urges us to "revise his sentence, to, at minimum, be served concurrently, and otherwise as the Court sees fit." (Appellant's Br. p. 43). "Even when a trial court imposes a sentence within its discretion, the Indiana Constitution authorizes independent appellate review and revision of this sentencing decision." Hoak v. State , 113 N.E.3d 1209, 1209 (Ind. 2019). Thus, we may revise a sentence if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offenses and the character of the offender. Id. The principal role of such review is to attempt to leaven the outliers. Cardwell v. State , 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant bears the burden to persuade the reviewing court that the sentence imposed is inappropriate. Robinson v. State , 91 N.E.3d 574, 577 (Ind. 2018).
A. Nature of the Offenses
[53] When assessing the nature of an offense, the advisory sentence is the starting point that the legislature selected as an appropriate sentence for the particular crime committed. Childress v. State , 848 N.E.2d 1073, 1081 (Ind. 2006) ; Madden v. State , 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). Pinkston was convicted of three counts of murder and one count of Level 6 felony criminal recklessness. Murder carries a sentencing range of between forty-five and sixty-five years, with an advisory sentence of fifty-five years. I.C. § 35-50-2-3(a). A Level 6 felony carries a sentencing range of between six months and two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). Therefore, Pinkston faced a potential maximum sentence of one hundred ninety-seven and one-half years. The trial court sentenced Pinkston to advisory sentences, fifty-five years for each murder and one year for the Level 6 felony, to be served consecutively, for an aggregate executed sentence of 166 years.
[54] When reviewing the nature of offenses, we look to the "the details and circumstances of the offenses and the defendant's participation therein." Madden , 162 N.E.3d at 564. In conducting our review, we determine whether there is "anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence." Id. Here, on Thanksgiving evening, Pinkston and Joyner opened fire without warning in a small, crowded home, resulting in the cold-blooded murder of three people. Those assembled that evening were not strangers to Pinkston and Joyner; these were people they had known for years who welcomed them when they showed up unexpectedly. Indeed, Pinkston sat and chatted with King about their mutual love of music just before he chased his good friend King down in a hallway and shot him in the back. The fact that Wagner survived and Datil escaped physically unharmed was more likely due to Joyner running out of bullets, Wagner's skill at playing dead, and Datil's ability to hide rather than any mercy shown by Pinkston and Joyner. The survivors of these offenses spoke at trial about the psychological trauma they have experienced resulting in depression, anxiety, PTSD, and suicide attempts. The lives of the families of the victims who perished are forever changed, and three minor children lost parents that day. Pinkston was being more truthful than he intended when he said in his police interview, "I didn't have no reason to harm anybody in the house." (Exh. 125, 31:50). We find the nature of Pinkston's offenses to be egregious and certainly worthy of the advisory sentences he received. Although Pinkston offers no separate argument regarding his consecutive sentences, we find the imposition of consecutive sentences in this case to be just and appropriate. See Wright v. State , 916 N.E.2d 269, 279 (Ind. Ct. App. 2009) (finding Wright's advisory, consecutive sentences for three murder convictions appropriate because "[a]ny lesser sentence would diminish the lives of his victims."), trans. denied.
[55] In arguing in favor of a reduction of his sentence, Pinkston contends that the trial court erred when it did not evaluate or balance his proffered mitigator of the nature of the offenses, in which he argued he had a "comparatively, and relatively, minimal role." (Appellant's Br. p. 43). As the State points out in its brief, the appropriateness of a sentence and claims that the trial court abused its discretion in sentencing are analyzed separately. See King v. State , 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Pinkston does not develop a complete and separate argument on this point. We observe, however, that it is well-established that a trial court is not obligated to accept a defendant's mitigating circumstance, and it only abuses its discretion in rejecting mitigators clearly supported by the record. Sandleben v. State , 22 N.E.3d 782, 796 (Ind. Ct. App. 2014), trans. denied. Given the record before us, we cannot say that Pinkston played a minimal role in the offenses. In short, Pinkston has failed to meet his burden to demonstrate to us that the nature of his offenses merited less-than-advisory, concurrent sentences. See Robinson , 91 N.E.3d at 577.
B. Character of the Offender
[56] Pinkston also urges us to revise his sentence in light of his character, as evinced by his lack of criminal record and his purported status as "an involved father to three dependent children." (Appellant's Br. p. 43). Upon reviewing a sentence for inappropriateness, we look to a defendant's life and conduct as illustrative of his character. Morris v. State , 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. We acknowledge, as did the trial court, that Pinkston had no criminal record before the instant offenses. As a result, we find that the advisory sentences issued by the trial court, rather than enhanced sentences, are appropriate. The heinous nature of these offenses will simply not permit us to reduce Pinkston's sentences below the advisory. In addition, we observe that Pinkston fled from law enforcement on the night of the offenses, was at large for over two months, and only surrendered after law enforcement deployed flash-bang grenades against him, none of which reflects positively upon his character.
[57] As to his status as a father to three dependent children, there is scant evidence in the record regarding Pinkston's involvement in the lives of his children. Pinkston's PSI disclosed that none of his children lived with him, Pinkston was not court-ordered to pay any support for his children, and, at the time of the preparation of the PSI, he could not remember his youngest child's name. Accordingly, we find nothing inappropriate about Pinkston's sentence in light of his character and decline to reduce his 166-year sentence.
CONCLUSION
[58] Based on the foregoing, we conclude that Pinkston has failed to demonstrate reversible error resulting from the admission of the .40 caliber handgun and Detective Martin's testimony, the trial court's accomplice liability instructions, or the deputy prosecutor's conduct. We further conclude that the State proved the offenses beyond a reasonable doubt and that Pinkston's aggregate 166-year sentence is not inappropriate in light of his offenses and his character.
[59] Affirmed.
[60] Najam, J. and Brown, J. concur