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March 18, 2026 Get Citation Alerts Download PDF Add Note

Demarcus Solvontez Davis v. State of Indiana

Indiana Court of Appeals

• Citations: None known
• Docket Number: 25A-CR-00622
• Panel: Paul D. Mathias, Nancy H. Vaidik
• Judges: Pyle III, Vaidik, Mathias

• Disposition: Affirmed

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.5K)

• PDF

Disposition

Affirmed

Combined Opinion

                        by [Paul D. Mathias](https://www.courtlistener.com/person/7268/paul-d-mathias/)

FILED
Mar 18 2026, 9:02 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

IN THE

Court of Appeals of Indiana
Demarcus Solvontez Davis,
Appellant-Defendant

v.

State of Indiana,
Appellee-Plaintiff

March 18, 2026
Court of Appeals Case No.
25A-CR-622
Appeal from the Madison Circuit Court
The Honorable Angela Warner Sims, Judge
Trial Court Cause No.
48C01-2307-MR-2161

Opinion by Judge Mathias
Judges Vaidik and Pyle concur.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 1 of 26
Mathias, Judge.

[1] Demarcus Davis appeals his convictions for murder and Level 3 felony robbery

as well as his resulting sentence.1 Davis raises five issues for our review, which

we reorder and restate as follows:

1. Whether the trial court erred when it granted the State’s
   motion to join Davis and his codefendant for trial.

2. Whether Davis can demonstrate that the trial court erred in
   denying his objection to the State’s use of a peremptory
   challenge.

3. Whether the prosecutor committed fundamental error in her
   closing remarks to the jury.

4. Whether the State presented sufficient evidence to support
   Davis’s convictions.

5. Whether Davis’s ninety-six-year aggregate sentence is
   inappropriate in light of the nature of the offenses and his
   character.

[2] We clarify that an objection to the State’s motion for joinder under Indiana

Code section 35-34-1-9 is, by itself, sufficient to preserve the trial court’s joinder

decision for appellate review. We also clarify that, to demonstrate reversible

error in the trial court’s joinder decision, an appellant must show both that the

1
Davis does not specifically appeal his adjudication as a habitual offender.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 2 of 26
trial court abused its discretion in granting the motion and also that the error

mattered to the trial outcome. In light of those clarifications, we affirm Davis’s

convictions and sentence.

Facts and Procedural History
[3] Davis and Roger Rodriguez, Jr.2 have been friends since 2020. In June 2023,

Rodriguez lived in an upstairs room at a home owned by his second cousin,

Mary Vasquez, on 13th Street in Anderson. On June 22, Rodriguez and Davis

exchanged messages in which they both lamented their need “to get some

money.” Tr. Vol. 4, p. 248.

[4] Five days later, Rodriguez met with a friend named Derrick, and the two

played “[c]ards and dominos” on Vasquez’s front porch. Tr. Vol. 3, p. 31.

Derrick noticed that Rodriguez was on his phone frequently. Around 7:11 p.m.,

Rodriguez texted Davis “[t]hirty thousand,” followed by, “[b]ring the strap.”

Tr. Vol. 4, p. 249. Davis responded: “Let me pop out on him.” Id. at 250. An

investigating officer later testified that those messages were “indicative of a

robbery being set up.” Tr. Vol. 5, p. 10.

[5] Shortly after Davis’s response, Tim Kates arrived at Vasquez’s residence in a

large black vehicle. Rodriguez texted Davis, “[h]e here.” Tr. Vol. 4, p. 250.

Davis immediately responded: “On my way!” Id.

2
Rodriguez was Davis’s codefendant. His appeal is before our Court in case number 25A-CR-623.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 3 of 26
[6] Kates exited his vehicle with a black pouch (“like a child’s pencil bag for

school”). Tr. Vol. 3, p. 190. Kates, Rodriguez, and Derrick chatted for a few

minutes, and then Davis arrived. Rodriguez went out to meet Davis at Davis’s

vehicle; as he did so, Kates took some money out of the black pouch and put it

in his pockets. Rodriguez and Davis then arrived on the front porch, and Davis

and Kates then went inside Vasquez’s residence together. Rodriguez joined

them inside the residence about one minute later.

[7] About two minutes after that, Davis exited the residence, went to his vehicle for

a moment, and then went back inside the residence. Before the front door had

closed behind him, Derrick, who was still on the front porch, heard at least six

“[r]apid” gunshots “[g]rouped together.” Id. at 39, 193. Derrick immediately

fled. Davis exited the residence a few seconds later. As he exited, he was

holding a handgun, and his pockets were stuffed with money. Rodriguez exited

a few seconds after Davis; as he did so, he was holding “a handful of money”

that he was “shoving” into his pocket, and he “picked up a bill” that Davis had

dropped. Id. at 197-98.

[8] Davis promptly left the scene in his own vehicle. Rodriguez, meanwhile, stayed

on the front porch for about an hour. He then went to Kates’s vehicle, removed

a tote and a rifle, and then “wip[ed] the doors and door handles” with his

clothing. Id. at 199. Rodriguez placed the tote and rifle inside the residence and

then returned to the front porch, where he started “counting [the] cash.” Id. at

201.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 4 of 26
[9] Late that evening, Vasquez received a call that the front door to her residence

was sitting open. Vasquez went to the residence, and, upon entering it, she

observed Kates’s body. He had been shot six times and had died as a result of

his wounds; he likely died several minutes after he had been shot, and all of the

bullets entered his body from either the back or the side. Vasquez’s daughter

called local law enforcement.

[10] Investigating officers located ten spent 9mm shell casings inside the residence.

Eight were found on the opposite side of the room from Kates’s body; one was

lying near his body; and one ended up in an adjacent room near the other eight

casings. See Ex. Vol. 1, p. 44. Seven of the shell casings were for Federal-brand

bullets; those seven bullets had been fired from the same firearm. Officers also

observed a 9mm handgun lying near Kates’s body; none of the bullets recovered

from the scene had been fired from that handgun. Kates’s black pouch was

empty, but he had some cash in his clothing.

[11] Officers also learned that Vasquez had four security cameras around the

residence, one for each side. The officers seized that equipment and identified

Davis and Rodriguez as suspects. Indiana officers apprehended Rodriguez in

mid-July, and Mississippi officers apprehended Davis shortly thereafter.

[12] The State ultimately charged both Davis and Rodriguez with the same offenses:

murder, felony murder, Level 3 felony robbery, and for being habitual

offenders. The State then requested the court to join Davis and Rodriguez in the

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 5 of 26
same information 3 in accordance with, in relevant part, Indiana Code section

35-34-1-9(b)(1) (2022), which provides that two or more defendants can be

joined in the same information when each defendant is charged with each

offense included. Davis and Rodriguez both objected to being joined. Davis, in

particular, objected on the ground that there was a “strong likelihood” that he

and Rodriguez would have “conflicting interests at trial,” citing the potential for

finger-pointing and “hearsay statements . . . one of the co-defendants

made . . . .” Tr. Vol. 1, p. 30. The trial court overruled Davis’s and Rodriguez’s

objections. Thereafter, neither Davis nor Rodriguez filed a pretrial motion for a

separate trial, and they did not request separate trials upon the commencement

of their joint trial or afterward.

[13] The trial court held their joint trial in January 2025. During jury selection, the

State used a peremptory challenge to strike Prospective Juror 67, an African-

American. Davis objected and argued that the State’s use of its peremptory

challenge violated his equal protection rights under Batson v. Kentucky, 476 U.S.

79 (1986). The State responded that it had at least four race-neutral reasons for

striking Prospective Juror 67: (1) he said he “would feel responsible for sending

someone away” and that it “would possibly influence his judgement [sic]”; (2)

he said that, “if [the defendant] didn’t pull the trigger, [he] should be guilty of a

lesser charge”; (3) he left multiple answers blank on the jury questionnaire; and

(4) the State’s background check of the juror showed that he had “multiple

3
The State filed its motion to amend the information to join the defendants after the omnibus date.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 6 of 26
family members that had been convicted of crimes,” which the juror did not

disclose. Tr. Vol. 2, pp. 16-17. Following the State’s recitation of its race-neutral

reasons, Davis suggested that other prospective jurors also expressed concern

about the responsibility of being a juror, but he did not address the State’s other

stated reasons. The trial court overruled Davis’s Batson objection.

[14] During the State’s case-in-chief, Vasquez, Derrick, and investigating officers

testified. The State also had Vasquez’s home surveillance videos from the time

of Kates’s murder admitted into evidence. Davis and Rodriguez did not present

any evidence in their own defenses, yet they received a self-defense instruction

and argued to the jury that Kates’s apparent possession of a handgun may have

supported a justified shooting.

[15] On rebuttal, the prosecutor responded to the self-defense theory as follows:

I want you to consider if the actions of these two (2) men after
they killed Timothy Kates are consistent with people who acted
in self-defense. . . . [D]id, they call the police? Did they call the
police when this happened and said, “Oh my God this is some
big misunderstanding I was just going to by [sic] something from
him and he pulled a gun on me.” “It was a big mistake.” Did
they do that, no. Did they tell the neighbor? Did Roger
Rodriguez tell the neighbor the four (4) times he talked to him
after the crime, no. Did they leave Tim Kates[’s] personal
belongings, no. They took all the cash they could see, and they
went and dug through his truck. Are those the actions of men
who act in self-defense? Roger Rodriguez was so cold and callus
[sic] that he sat around while this man was dying on his floor and
counted out the money that he just took from his dead cold
hands essentially and kept stealing when he went to his truck. If
you recall the point in the video where several times Roger

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 7 of 26
Rodriguez opened the front door and just kind [of] peeked in and
was like, “Oh shit[,] I don’t know what to do” [and] that’s
probably what’s going through his head, right. And the one time
he opens the door or looks in the door and something really
scared him because he jumped off the porch [and] ran down
around the side of the house; this was about five (5) minutes after
Tim Kates had been shot. Doctor Watkins said it would’ve taken
minutes for him to die. Roger Rodriguez was probably listening
to Tim Kates taking his last breaths and gurgling and heard that
and ran out the door. Is that the action of men who acted in self-
defense?

Tr. Vol. 5, pp. 87-89. Davis did not object to the prosecutor’s statements on

rebuttal. The jury found Davis guilty, in relevant part, of murder and Level 3

felony robbery, and Davis then admitted to being a habitual offender.

[16] At an ensuing sentencing hearing, Davis argued that his admission to being a

habitual offender was a significant mitigating circumstance. The trial court

disagreed and found that Davis’s admission was simply pragmatic following a

five-day jury trial that had ended unfavorably for him. With respect to

aggravating circumstances, the court found the following: (1) Davis’s

“extensive” criminal history, where “[t]he only gaps” appeared to be while

Davis “was either under some form of court supervision or incarcerated”; (2)

Davis was under an order of court supervision at the time of the instant

offenses; (3) the nature and circumstances of the offenses, in particular the

“multiple shots that the victim sustained”; (4) Davis’s post-shooting “evasive

actions to avoid law enforcement,” most notably “fleeing the State of Indiana”;

(5) Davis had another outstanding warrant for his arrest; and (6) the poor

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 8 of 26
quality of Davis’s character. Id. at 150-52. The court then ordered Davis to

serve an aggregate term of ninety-six years in the Department of Correction.

[17] This appeal ensued.

1. Davis’s objection to the State’s motion for joinder is properly before us, but he has not demonstrated either error or prejudice in the trial court’s decision to grant the State’s motion. [18] On appeal, Davis first argues that he was entitled to have a separate trial from

Rodriguez. We initially note that Davis’s argument here conflates joinder under

Indiana Code section 35-34-1-9 with severance under Indiana Code sections 35-

34-1-11 and -12, and those statutes are materially different from the standpoint

of preservation of error. Further, although Davis argues that the trial court’s

joinder decision was prejudicial to him, he does not argue that the trial court’s

decision was contrary to the facts and circumstances before the court or that the

court misapplied the law in making its decision. The lack of clarity on these

issues in the briefing is reflected in Indiana’s case law.

1.1 An objection to a motion for joinder is sufficient to preserve
appellate review of the correctness of the trial court’s decision to grant
that motion.

[19] We begin with the threshold question of whether Davis’s challenge to the trial

court’s decision to grant the State’s motion for joinder is properly before us.

Indiana Code section 35-34-1-9 permits the State to join offenses or defendants

in one information based on certain circumstances. That statute does not speak

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 9 of 26
to the State needing a trial court’s permission to join offenses or defendants. See

I.C. § 35-34-1-9. That is, under the statute, the State may, at least in an initial

information, join offenses or defendants in one information of the State’s own

accord. See id. Here, however, the State filed a motion to amend the information

(and, in doing so, join the defendants) because the omnibus date had passed,

and, thus, amending the information required the trial court’s approval. See I.C.

§ 35-34-1-5(a); see also Appellant’s App. Vol. 2, p. 139.

[20] Where the State has joined offenses or defendants in an information, Indiana

Code section 35-34-1-11 provides a defendant with an opportunity to file a

motion to sever offenses or for a separate trial. The trial court must grant a

defendant’s motion to sever offenses in some situations. See I.C. § 35-34-1-11(a).

The court must compel the prosecutor to make certain elections upon a

defendant’s motion for a separate trial in other situations. See I.C. § 35-34-1-

11(b). Outside of those mandatory circumstances, the trial court retains

discretion in how to rule on a motion to sever offenses or for a separate trial. See

I.C. § 35-34-1-11. But section 35-34-1-11 does not mention the mechanism by

which the offenses or defendants came to be joined in the same information,

namely, whether joinder occurred of the State’s own accord or by way of a

motion to amend with the trial court. See id.

[21] And the lack of identification of that mechanism continues into Indiana Code

section 35-34-1-12, which provides in relevant part as follows:

(a) A defendant’s motion for severance of crimes or motion for a
separate trial must be made before commencement of trial,
Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 10 of 26
except that the motion may be made before or at the close of all
the evidence during trial if based upon a ground not previously
known. The right to severance of offenses or separate trial is waived by
failure to make the motion at the appropriate time.

(b) If a defendant’s pretrial motion for severance of offenses or
motion for a separate trial is overruled, the motion may be
renewed on the same grounds before or at the close of all the
evidence during trial. The right to severance of offenses or separate trial
is waived by failure to renew the motion.

(Emphases added.)

[22] The waiver provisions of Indiana Code section 35-34-1-12 have caused

confusion among panels of our Court where, as here, the mechanism for joinder

is by way of the State’s motion with the trial court. One panel assessed the

statutory procedure in these circumstances to be as follows:

Once the State’s motion for joinder [i]s granted over [a
defendant’s] objection, proper procedure require[s] him to file a
motion for severance . . . . Then, once his motion for severance
[i]s overruled, it [i]s incumbent upon [the defendant] to renew his
severance motion before or at the close of all the evidence during
trial.

Ennik v. State, 40 N.E.3d 868, 875 (Ind. Ct. App. 2015) (quotation marks

omitted), trans. denied. That is, under Ennik, a defendant must lodge his or her

objection with the State’s request for a joint trial in triplicate: first, object to the

State’s motion for joinder; second, file a pretrial motion for a separate trial; and,

third, renew the motion at trial. See id. Under Ennik, a defendant’s failure to

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 11 of 26
follow each of those steps results in waiver of appellate review of joinder-and-

severance issues. Id.

[23] Another panel of this Court, however, has held that an objection to the State’s

motion for joinder along with a “renew[al]” of that objection at the beginning of

trial under section 35-34-1-12(b) “is sufficient to have the issue” of joinder

“reviewed on its merits.” Taylor v. State, 236 N.E.3d 700, 707 (Ind. Ct. App.

2024), trans. not sought. In so holding, Taylor appears to consolidate Ennik’s first

two steps by treating an objection to the State’s motion for joinder as the

equivalent to a section 35-34-1-12(a) motion for a separate trial. See id. Thus,

under Taylor, the defendant need only repeat him- or herself one time, instead

of twice, by renewing the objection at trial in accordance with Indiana Code

section 35-34-1-12(b) in order to preserve appellate review of the issue. See id.

[24] But the Indiana Supreme Court has not adopted either of those positions. Cf.

Evans v. State, 542 N.E.2d 546, 549 (Ind. 1989) (holding that the defendant

waived appellate review of joinder where he took no steps under sections 35-34-

1-9 or 12 to challenge the State’s motion or the trial court’s decision). To the

contrary, it appears that our Supreme Court has reviewed the merits of a trial

court’s joinder decision based only on the defendant’s objection to the State’s

motion. Peck v. State, 563 N.E.2d 554, 556-58 (Ind. 1990). Our Supreme Court’s

opinion in Peck makes no mention of Indiana Code sections 35-34-1-11 or -12

and makes no mention of whether the defendant in that case either did or did

not file a pretrial motion for a separate trial and lodge a renewed objection at

trial. See id. And at least one other panel of our Court has taken the same

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 12 of 26
approach as Peck and reviewed the merits of a trial court’s joinder decision

based only on the defendant’s objection to the State’s motion. Angulo v. State,

191 N.E.3d 958, 967-68 (Ind. Ct. App. 2022), trans. denied.

[25] We follow our Supreme Court’s approach. As the Court has held in other

contexts: “Requiring additional requests where the trial court already overruled

an objection appears in actuality to be futile, as it only seems logical that those

requests would be denied as well.” Konkle v. State, 253 N.E.3d 1068, 1080-82

(Ind. 2025). Further, Peck is entirely consistent with the purposes of the rule that

an issue is waived for appellate review if it is not presented to the trial court

first:

This rule exists because trial courts have the authority to hear
and weigh the evidence, to judge the credibility of witnesses, to
apply the law to the facts found, and to decide questions raised
by the parties. Appellate courts, on the other hand, have the
authority to review questions of law and to judge the sufficiency
of the evidence supporting a decision. The rule of waiver in part
protects the integrity of the trial court; it cannot be found to have
erred as to an issue or argument that it never had an opportunity
to consider. . . .

GKC Ind. Theatres, Inc. v. Elk Retail Invs., LLC, 764 N.E.2d 647, 651 (Ind. Ct.

App. 2002) (citations omitted).

[26] Thus, although Peck does not explicitly say as much, we conclude that where,

as here, the mechanism for joinder of defendants is by way of the State’s motion

with the trial court, and the defendant timely objects to the State’s motion, the

defendant has preserved for appellate review his argument that the joinder is
Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 13 of 26
improper under Indiana Code section 35-34-1-9.4 Cf. Ind. Evidence Rule 103(b)

(“Once the court rules definitively on the record at trial a party need not renew

an objection . . . to preserve a claim of error for appeal.”). The conclusions in

Ennik and Taylor that more is required for a defendant to preserve appellate

review of the trial court’s joinder decision under section 35-34-1-9 are

inconsistent with Peck and with the purposes of the rule of waiver, and

accordingly, we decline to follow them. 5 Davis timely objected to the State’s

motion for joinder under Indiana Code section 35-34-1-9, and we therefore

proceed to the merits of his argument.

1.2 Davis fails to demonstrate either error or prejudice in the trial
court’s joinder decision.

[27] As for the merits of Davis’s argument on appeal, the parties rely on the

following standard of review from Peck, which has been frequently quoted by

our Court for review of joinder-and-severance issues:

Absent any statutory provision for consolidated trials of
separately-charged defendants,[ 6] it is within the trial court’s

4
For its part, the State agrees that Davis has preserved our review of the merits of his objection to joinder.
Appellee’s Br. at 20 n.4.
5
This is not to say, if new information timely comes to the defendant’s attention that merits reconsideration
of a denied objection to joinder, that the defendant may rely on the prior objection and ruling to preserve
appellate review of the joinder decision in light of those new circumstances. Indeed, Indiana Code section 35-
34-1-12 expressly permits a defendant to request severance based on new information all the way through the
close of all the evidence during trial. Thus, if something that was previously unexpected happens during trial
that the defendant perceives as prejudicial, he or she may move for severance at that time accordingly. I.C. §
35-34-1-12.
6
Again, Indiana Code section 35-34-1-9 speaks to the State’s authority to join offenses or defendants in one
information, not the trial court’s authority.

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 14 of 26
discretion to determine whether defendants’ trials should be
joined. To show an abuse of discretion, an appellant must show
that[,] in light of what occurred at trial, the denial of a separate
trial subjected him to actual prejudice.

563 N.E.2d at 557; see also, e.g., Cotto v. State, No. 23A-CR-252, 2024 WL

175915, at *3 (Ind. Ct. App. Jan. 17, 2024) (mem.), trans. denied. More

traditionally, a trial court abuses its discretion when its decision is contrary to

“the logic and effect of the facts and circumstances before the court” or the

court misapplies the law. E.g., Corcoran v. State, 246 N.E.3d 1223, 1225 (Ind.

2024). And our Supreme Court has made clear that, while Indiana Code section

35-34-1-9 permits the State to join defendants of its own accord, when the State

moves the trial court for joinder the court’s decision remains “well within [its]

discretion . . . .” Hatchett v. State, 503 N.E.2d 398, 401 (Ind. 1987).

[28] Following Peck, Davis argues only that he suffered actual prejudice as a result of

the trial court’s joinder decision. But the standard of review stated in Peck

predates our Supreme Court’s adoption of the modern Indiana Appellate Rules.

In particular, Indiana Appellate Rule 66(A) provides:

No error or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is ground for
granting relief or reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor so as not
to affect the substantial rights of the parties.

Noting inconsistent treatment in Indiana’s prior case law for considering when

reversible error has occurred, our Supreme Court has clarified:

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 15 of 26
Appellate Rule 66(A) . . . defines reversible error for our appellate
courts. When an appellate court must determine whether a non-
constitutional error is harmless, Rule 66(A)’s “probable impact
test” controls. Under this test, the party seeking relief bears the
burden of demonstrating how, in light of all the evidence in the
case, the error’s probable impact undermines confidence in the
outcome of the proceeding below. Importantly, this is not a
review for the sufficiency of the remaining evidence; it is a review
of what was presented to the trier of fact compared to what
should have been presented. And when conducting that review,
we consider the likely impact of the improperly admitted or
excluded evidence on a reasonable, average jury in light of all the
evidence in the case. Ultimately, the error’s probable impact is
sufficiently minor when—considering the entire record—our
confidence in the outcome is not undermined.

Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (citations and footnote omitted).

[29] In other words, to demonstrate reversible error in a trial court’s discretionary

joinder decision, an appellant must show both that the trial court abused its

discretion in joining the defendants and also that the probable impact of that

erroneous decision undermines the confidence we should have in the outcome

of his or her trial. See id. However, Davis’s only argument on appeal is that the

trial court abused its discretion because of the purported after-the-fact impact on

his trial outcome. But that prejudice occurred is of no moment if that prejudice

was the result of the proper application of the law. See, e.g., Firth v. State, 263

Ind. 100, 110, 325 N.E.2d 186, 192 (1975) (“There is no constitutional right to

be protected from damaging evidence.”). Absent a threshold showing of trial

court error—i.e., that the court’s decision to grant the State’s joinder motion

was contrary to the logic and effect of the facts and circumstances before the

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 16 of 26
court at the time it made its decision or was a misapplication of the law—Davis

cannot succeed on this issue. See Ind. Appellate Rule 46(A)(8)(a).

[30] Further, here, any abuse of the trial court’s discretion did not have a

meaningfully probable impact on Davis’s trial. Davis concedes that he and

Rodriguez did not have “antagonistic defenses.” Appellant’s Br. at 29. He

argues that prejudice instead occurred because the State introduced text

messages Rodriguez had made to him, and he could not call Rodriguez to the

stand to challenge those messages or Rodriguez’s credibility. While Davis

frames this as a denial of his right to cross-examine Rodriguez, it is better

framed as Rodriguez’s own protection against self-incrimination, a right that

Rodriguez held regardless of whether he was Davis’s codefendant. See Angulo,

191 N.E.3d at 967-68 (citing Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014)).

And Davis has not established that Rodriguez would have been willing to

waive that right had he been tried separately from Davis.

[31] Davis also asserts that he was prejudiced because the evidence against

Rodriguez was “highly prejudicial,” which the jury may have imputed to

Davis, and because the robbery conviction could have been based on

Rodriguez’s taking of the tote and rifle from Kates’s vehicle rather than the

taking of the money from Kates’s black pouch. Appellant’s Br. at 30. But these

arguments assume that the jury was not capable of following the jury

instructions or parsing the evidence, which assumptions we have no reason to

accept. See, e.g., Hatchett, 503 N.E.2d at 402 (recognizing that a trial court does

not abuse its discretion in refusing to order separate trials on a theory of guilt-

Court of Appeals of Indiana | Opinion 25A-CR-622 | March 18, 2026 Page 17 of 26
by-association where the evidence presents clearly defined and distinctive roles

for each defendant and there is no confusion over who did what) (quoting

Johnson v. State, 423 N.E.2d 623, 629 (Ind. Ct. App. 1981)). Thus, Davis’s

arguments fail.

[32] For all of these reasons, the trial court did not err when it granted the State’s

motion for joinder of the defendants.

1. Davis has not sufficiently challenged the State’s race- neutral reasons in response to his Batson objection. [33] We next consider Davis’s challenge to the trial court’s decision to overrule his

Batson objection. 7 As we have explained:

When a party raises a Batson challenge, the trial court must
engage in a three-step test. Highler v. State, 854 N.E.2d 823, 826
(Ind. 2006). “First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor
exercised a peremptory challenge on the basis of race.” Id. at 826-
27. Second, “the burden shifts to the State to present a race-
neutral explanation for striking the juror.” Id. at 827. Third, the
trial court must evaluate “‘the persuasiveness of the justification’
proffered by the prosecutor, but ‘the ultimate burden of
persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike.’” Id. at 828 (quoting
Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d
834 (1995) (per curiam)). We afford great deference to a trial

7
Davis objected only to the State’s use of a peremptory challenge to strike Prospective Juror 67. Unlike
Rodriguez, Davis did not object to the State’s decision to strike Prospective Juror 15. Thus, his arguments on
appeal notwithstanding, we limit our review to the trial court’s decision to deny his objection to the State’s
striking of Prospective Juror 67.

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court’s determination that a prosecutor’s motivation for striking a
juror was not improper, and will reverse only if we conclude the
trial court’s decision was clearly erroneous. Id.

Schumm v. State, 866 N.E.2d 781, 789 (Ind. Ct. App.), clarified on other grounds on

reh’g, 868 N.E.2d 1202 (Ind. Ct. App. 2007).

[34] As noted above, after Davis raised his Batson objection, the State proffered at

least four race-neutral reasons for striking Prospective Juror 67, namely: (1) that

he “would feel responsible for sending someone away” and that it “would

possibly influence his judgement [sic]”; (2) that he had stated that a codefendant

who “didn’t pull the trigger . . . should be guilty of a lesser charge”; (3) that he

had left multiple answers blank on the jury questionnaire; and (4) that the

State’s background check of the juror showed that he had “multiple family

members that had been convicted of crimes,” which the juror did not disclose.

Tr. Vol. 2, pp. 16-17.

[35] Because the State offered facially race-neutral reasons for striking Prospective

Juror 67, Davis had an additional opportunity to demonstrate that the State’s

reasons were in fact pretextual. See Addison v. State, 962 N.E.2d 1202, 1209-10

(Ind. 2012). But, with that opportunity, he argued only that other prospective

jurors had also expressed hesitation about the weight of the responsibility of

being a juror. Davis presented no argument to the trial court to challenge the

facial validity of the State’s other race-neutral reasons for striking Prospective

Juror 67.

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[36] Likewise on appeal, Davis merely challenges the State’s first race-neutral reason

for striking Prospective Juror 67. Appellant’s Br. at 35. But that is insufficient to

demonstrate that the trial court’s decision to overrule his Batson objection is

clearly erroneous given the State’s other, unchallenged race-neutral

justifications. As for Davis’s statement that the trial court “failed to

meaningfully engage” in the Batson analysis, we conclude that Davis’s assertion

is not an argument supported by cogent reasoning. Id. at 36; see App. R.

46(A)(8)(a). We therefore reject Davis’s Batson arguments.

1. The prosecutor did not commit fundamental error in her rebuttal statements. [37] We next address Davis’s argument that the prosecutor’s statements on rebuttal

were fundamental error. As our Supreme Court has made clear:

Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court. . . . The defendant must
establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted
fundamental error. Fundamental error is an extremely narrow
exception to the waiver rule where the defendant faces the heavy
burden of showing that the alleged errors are so prejudicial to the
defendant’s rights as to make a fair trial impossible. In other
words, to establish fundamental error, the defendant must show
that, under the circumstances, the trial judge erred in not sua
sponte raising the issue because alleged errors (a) constitute clearly
blatant violations of basic and elementary principles of due
process and (b) present an undeniable and substantial potential
for harm. The element of such harm is not established by the fact
of ultimate conviction but rather depends upon whether the

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defendant’s right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth
to which he otherwise would have been entitled. In evaluating
the issue of fundamental error, our task in this case is to look at
the alleged misconduct in the context of all that happened and all
relevant information given to the jury—including evidence
admitted at trial, closing argument, and jury instructions—to
determine whether the misconduct had such an undeniable and
substantial effect on the jury’s decision that a fair trial was
impossible.

We stress that a finding of fundamental error essentially means
that the trial judge erred by not acting when he or she should
have. Fundamental error is meant to permit appellate courts a
means to correct the most egregious and blatant trial errors that
otherwise would have been procedurally barred, not to provide a
second bite at the apple for defense counsel who ignorantly,
carelessly, or strategically fail to preserve an error. See Baer v.
State, 942 N.E.2d 80, 99 (Ind. 2011) (noting it is “highly
unlikely” to prevail on a claim of fundamental error relating to
prosecutorial misconduct); Stevens v. State, 691 N.E.2d 412, 420
n.2 (Ind. 1997); Wilson v. State, 222 Ind. 63, 83, 51 N.E.2d 848,
856 (1943).

Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (citation modified).

[38] Davis complains that the prosecutor committed misconduct that denied him a

fair trial when the prosecutor, in responding to the defendants’ self-defense

theory, described Rodriguez as “so cold and callus [sic] that he sat around while

this man was dying on his floor and counted out the money that he just took

from his dead cold hands,” and further described Rodriguez’s actions in the

surveillance videos as “probably listening to Tim Kates taking his last breaths

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and gurgling and heard that and ran out the door.” Tr. Vol. 5, pp. 88-89.

According to Davis, those comments were designed to inflame the emotions of

the jury, blur the line between the defendants, and, in doing so, obtain a

conviction against him based on something other than the evidence.

[39] We are not persuaded. Notably, Davis does not suggest that the prosecutor

mischaracterized the evidence or improperly responded to his self-defense

theory. Rather, his complaint on appeal is that her colorful description of the

evidence was so over-the-top that it denied him a fair trial. We reject his

argument and conclude that the prosecutor’s comments were neither

misconduct nor fundamental error. Cf. Ryan, 9 N.E.3d at 672-73 (holding that

no fundamental error occurred despite prosecutorial misconduct).

1. The State presented sufficient evidence to support Davis’s convictions. [40] Davis next contends that the State failed to present sufficient evidence to

support his convictions for murder and Level 3 felony robbery. For challenges

to the sufficiency of the evidence, we consider only the probative evidence and

the reasonable inferences therefrom that support the judgment of the trier of

fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh

the evidence nor judge witness credibility. Id. We will affirm a conviction unless

no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id.

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[41] To show that Davis committed murder, the State was required to prove beyond

a reasonable doubt that Davis knowingly or intentionally killed Kates. I.C. § 35-

42-1-1. To show that Davis committed Level 3 felony robbery as charged, the

State was required to prove beyond a reasonable doubt that he knowingly or

intentionally took property from Kates by using force on Kates, and Davis did

so while armed with a deadly weapon. I.C. § 35-42-5-1(a)(1).

[42] Davis argues that the State’s evidence was insufficient to support his

convictions because there was no “direct evidence” that he killed and robbed

Kates. Appellant’s Br. at 37. Davis surmises that the jury was left to “speculate”

on those conclusions based on the State’s evidence. Id. He also argues that the

State’s evidence failed to disprove his theory of self-defense.

[43] Davis is incorrect. The State had admitted into the record text exchanges

between Davis and Rodriguez in which they lamented their needs for cash and

in which they demonstrated a plan to commit armed robbery against Kates. The

State also had admitted into evidence Vasquez’s surveillance videos. Those

videos showed Davis enter the residence where he knew Kates to be, and,

before the door had even closed behind Davis, there were numerous rapid-fire

gunshots. Moments later, Davis fled the residence holding a handgun and

carrying cash. The location of the bullet casings inside the house were

compatible with a gun fired near the door; all the bullets that hit Kates’s body

did so from his back or side; and Kates’s black pouch, which earlier had been

seen with cash inside it, was empty. Accordingly, the State presented sufficient

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evidence to support Davis’s convictions and from which any reasonable fact-

finder would reject his theory of self-defense.

1. Davis’s sentence is not inappropriate. [44] Davis’s final argument on appeal is that his ninety-six-year aggregate sentence

is inappropriate in light of the nature of the offenses and his character. 8 Under

Indiana Appellate Rule 7(B), we may modify a sentence that we find is

“inappropriate in light of the nature of the offense and the character of the

offender.” Making this determination “turns on our sense of 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.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008).

[45] However, sentence modification under Rule 7(B) is reserved for “a rare and

exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per

curiam). Thus, when conducting this review, we will defer to the sentence

imposed by the trial court unless the defendant demonstrates compelling

evidence that portrays the nature of the offense and his character in a positive

light, such as showing a lack of brutality in the offenses or showing substantial

virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

8
Davis asserts that the trial court did not give proper weight to certain proffered mitigators, but the legal
analysis in his brief is an Appellate Rule 7(B) analysis. We construe his comment about the weight of the
proffered mitigators to be a request for our Court to review and revise his sentence under Rule 7(B)
accordingly.

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[46] The sentencing range for murder is forty-five to sixty-five years, with an

advisory term of fifty-five years. I.C. § 35-50-2-3(a). The sentencing range for a

Level 3 felony is three to sixteen years, with an advisory sentence of nine years.

I.C. § 35-50-2-5(b). And, for being a habitual offender, Davis faced an

additional fixed term of between six and twenty years. I.C. § 35-50-2-8(i). Thus,

Davis faced a maximum possible term of 101 years in the Department of

Correction. After finding significant aggravators and no mitigators, the trial

court ordered Davis to serve sixty-five years for murder, sixteen years for Level

3 felony robbery, and fifteen years for being a habitual offender.

[47] Davis’s ninety-six-year aggregate sentence is not inappropriate. He argues that

“the nature of the offense[s] remain[] unclear” and that his plea of guilty to the

habitual offender allegation should have entitled him to some sentencing

mitigation. Appellant’s Br. at 27. We are not persuaded.

[48] Regarding the nature of the offenses, Davis planned an armed robbery of Kates

that resulted in murder when Davis re-entered the residence and Kates was shot

six times in the back and side. He then fled the scene and Indiana altogether.

Regarding his character, Davis does not dispute his lengthy criminal history,

which the trial court characterized as having breaks between offenses only due

to Davis’s incarceration or court supervision. And Davis does not present any

compelling evidence that portrays the nature of the offenses and his character in

a positive light. We therefore conclude that his sentence is not inappropriate.

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Conclusion
[49] For all of these reasons, we affirm Davis’s convictions and sentence.

[50] Affirmed.

Vaidik, J., and Pyle, J., concur.

ATTORNEY FOR APPELLANT
Joshua Cumming
SDHMR Law Group
Noblesville, Indiana

ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana

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