MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 27 2019, 10:47 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court estoppel, or the law of the case. ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Rory Gallagher Attorney General of Indiana Marion County Public Defender Agency Matthew B. MacKenzie – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA Larry J. Thomas, March 27, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1714 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1603-MR-9636 Mathias, Judge. [1] Following a jury trial in Marion Superior Court, Larry Thomas (“Thomas”) was convicted of murder and Level 2 felony attempted robbery resulting in Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019 Page 1 of 16 serious bodily injury. Thomas appeals and presents two issues, which we restate as: (1) whether the prosecuting attorney committed misconduct during the State’s closing argument that amounted to fundamental error; and (2) whether the trial court should have entered a judgment of conviction on the attempted robbery count as a Level 5 felony instead of a Level 2 felony. We conclude that the trial court did not commit fundamental error, but we also conclude that the trial court’s oral sentencing statement clearly indicated the court’s intention to enter judgment of conviction on the attempted robbery count as a Level 5 felony. Accordingly, we affirm Thomas’s conviction for murder but reverse his conviction for attempted robbery as a Level 2 felony, and we remand with instructions that the trial court instead enter judgment of conviction for attempted robbery as a Level 5 felony. Facts and Procedural History [2] On February 29, 2016, the victim in this case, Rito Llamas-Juarez (“Llamas”), went to the home of his step-daughter Xiomara Linares (“Linares”), where she lived with her boyfriend Jose Padilla (“Padilla”), her son M.L., Padilla’s son A.P., and Padilla’s brother-in-law Marcos Hernandez (“Hernandez”). Llamas, who spoke little English, wanted to buy two iPhones for his daughters. He therefore sought the help of M.L., who spoke English and was familiar with the smartphone app Offer Up, which facilitates direct, person-to-person sales between its users. Tr. Vol. II, p. 171. M.L. had previously purchased a phone using the app and found a person with a user name of “Sports” offering for sale two iPhone 6 smartphones for $500. Tr. Vol. II, pp. 173, 243. M.L. negotiated Court of Appeals of Indiana | Memorandum Decision 18A-CR-1714 | March 27, 2019 Page 2 of 16 the price down to $400 and agreed to meet the seller in the parking lot of an apartment complex located near the intersection of 39th Street and Post Road in Indianapolis. [3] Hernandez ...
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