Justin C. Cherry v. State of Indiana (mem. dec.)
55A05-1508-CR-1151
| Ind. Ct. App. | Mar 22, 2016Background
- On Jan. 28, 2014 Justin Cherry (age 24) drove to a Mooresville convenience store with two companions; Cherry entered and robbed the clerk at gunpoint, taking ~$460–480. One companion later testified the other committed the robbery; surveillance and witness IDs implicated Cherry.
- Fresh snow preserved shoeprints leading from the store to an apartment complex; shoes recovered at Cherry’s home matched the tread. Surveillance video captured the robber’s image; clerk identified Cherry at trial.
- Cherry was on GPS monitoring at the time; a Marion County monitor testified and GPS exhibits placed Cherry at the gas station at 12:01 p.m. The court limited testimony to avoid revealing Community Corrections supervision or reason for monitoring.
- Cherry moved in limine under Evid. R. 404(b) to exclude GPS evidence as impermissible prior-bad-act proof; the trial court admitted the GPS evidence as relevant to identity/opportunity and subject to limiting instructions.
- Cherry was convicted of armed robbery (Class B) and found to be an habitual offender; the trial court imposed 20 years on the underlying offense plus an additional 20 years for habitual-offender enhancement (total 40 years). Cherry appealed, challenging GPS evidence admission and sentence appropriateness.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cherry) | Held |
|---|---|---|---|
| Admissibility of GPS evidence | GPS testimony and exhibits are relevant to identity/opportunity and corroborate witness testimony | GPS evidence should be excluded under Evid. R. 404(b) as impermissible prior-bad-act evidence; on appeal also argued lack of foundation and reliability | Court affirmed admission: GPS was relevant for identity/opportunity; 404(b) objection addressed by limiting testimony; foundational/reliability objections waived for failure to object at trial and not fundamental error |
| Weight of mitigating evidence at sentencing | N/A (State urged sentence) | Trial court failed to sufficiently weigh Cherry’s jail classes/rehabilitation efforts | Court rejected claim: sentencing discretion not abused; appellate courts defer to trial court’s balancing |
| Appropriateness of sentence under App. R. 7(B) | Sentence within statutory range and supported by offense/character evidence | Sentence (20+20 years) is inappropriate given circumstances/rehabilitation | Court held sentence not inappropriate given serious offense, recent release from prison, extensive criminal history, and high risk of reoffending |
Key Cases Cited
- Rasnick v. State, 2 N.E.3d 17 (Ind. Ct. App.) (trial court’s evidentiary rulings reviewed for abuse of discretion)
- Remy v. State, 17 N.E.3d 396 (Ind. Ct. App.) (Evid. R. 404(b) forbids propensity-inference; explains permitted uses)
- Bishop v. State, 40 N.E.3d 935 (Ind. Ct. App.) (framework for assessing admissibility and Rule 403 balancing)
- Carter v. State, 766 N.E.2d 377 (Ind.) (all relevant evidence is prejudicial; courts balance probative value vs. unfair prejudice)
- Jewell v. State, 887 N.E.2d 939 (Ind.) (fundamental error exception is narrow; requires blatant violation making fair trial impossible)
- Anglemyer v. State, 868 N.E.2d 482 (Ind.) (standards for appellate review of sentencing and claims of improper weighing of aggravators/mitigators)
- Phelps v. State, 969 N.E.2d 1009 (Ind. Ct. App.) (reiterates that failure to weigh mitigation alone is not reversible error)
- Orr v. State, 968 N.E.2d 858 (Ind. Ct. App.) (failure to object contemporaneously waives evidentiary claims on appeal)