Massa, J.
Derrick Cardosi was charged with crimes arising from the deaths of three acquaintances. A jury found him guilty of murder, among other things, and sentenced him to life without parole for that crime. Cardosi now directly appeals five issues, arguing that (I) insufficient evidence supported his convictions for auto theft and felony murder, (II) the trial court failed to properly admonish the jurors each time they were separated, (III) the trial court improperly admitted his co-conspirator’s post-crime text messages, (IV) the trial court erred by reading a withdrawn accomplice liability instruction, and (V) the trial court improperly considered a non-statutory aggravator when sentencing him to life without parole. Finding each contention without merit, we affirm the trial court.
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When a defendant challenges the sufficiency of the evidence supporting a conviction, “we neither reweigh evidence nor judge witness credibility.” McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018). Instead, this Court will “consider only the evidence most favorable to the judgment together with all reasonable inferences that may be drawn from the evidence.” Id. If substantial evidence supports the judgment, we’ll affirm the convictions. Id.
A defendant is guilty of auto theft if he “knowingly or intentionally exerts unauthorized control over the motor vehicle of another person, with intent to deprive the owner of . . . the vehicle’s value or use.” I.C. § 35-43-4-2.5(b)(1). Ordinarily, “an individual’s mere presence as a passenger in a stolen automobile” can’t support a conviction for auto theft. Irvin v. State, 501 N.E.2d 1139, 1140 (Ind. Ct. App. 1986); …
Cardosi argues that the State provided no evidence that he stole Ricky’s Grand Marquis. Instead, Cardosi insists, only Wedding could be charged with auto theft because it was found near his grandparents’ house and surveillance footage showed him driving the car. The State counters that, despite Wedding driving the vehicle, Cardosi used it for his own purposes without Ricky’s permission.
… When officers found the car, they discovered incriminating evidence in and around it. Finally, after he was in police custody, Cardosi admitted to an investigating officer that he and Wedding discussed how to dispose of the car. Although no evidence shows Cardosi drove the vehicle, substantial evidence supported his conviction for auto theft because he used the car to travel around and to cover up crimes with his co-conspirator.
A defendant commits felony murder if he “kills another human being while committing or attempting to commit,” among other things, burglary or robbery. I.C. § 35-42-1-1(2). The State charged Cardosi with felony murder for killing Ricky while committing burglary and robbery. Cardosi argues that the State failed to provide sufficient evidence to convict him for felony murder because “there was no evidence” that he killed Ricky while committing burglary or robbery.
The State contends that Cardosi’s challenge fails because the trial court merged Cardosi’s felony-murder convictions with the three murder verdicts. We agree. As this Court has held before, when a trial court merges a felony-murder and murder conviction, we don’t need to address the sufficiency of the evidence supporting the felony-murder conviction because there is no judgment on that charge. Cutter v. State, 725 N.E.2d 401, 407 n.2 (Ind. 2000); see also Alford v. State, 699 N.E.2d 247, 252 (Ind. 1998) (“Because the trial court merged the felony murder conviction into the murder conviction any claim of error with respect to the felony murder charge is moot.”). “There being no judgment to appeal from,” Cardosi’s claim fails. …
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Trial courts must “admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day,” to inform them of “their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.” I.C. § 35-37-2-4(a) (1981). Failure to provide this admonishment, however, doesn’t lead to automatic reversal. Instead, a defendant must show he was “harmed by failure of the court to instruct or admonish the jury as to conduct during recess.” …
Cardosi concedes that he “failed to object throughout his trial” to what he considers inadequate jury admonishments, waiving his argument for traditional appellate review. … Waiver aside, Cardosi claims fundamental error. This exception is “extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) …
During Cardosi’s trial, the court admonished the jury (1) after jury selection and before adjournment on the first day, (2) during preliminary instructions, (3) at the end of the second day, (4) at the end of the third day, (5) at the end of the fourth day, (6) before lunch on and at the end of the fifth day, and (7) after the jury returned its verdict on the eighth day. At most, the trial court failed to admonish jurors before six meals and at the end of two days during Cardosi’s eight-day trial.
To be sure, the trial court didn’t strictly adhere to the command of section 35-37-2-4(a). But this deficiency didn’t amount to fundamental error because Cardosi hasn’t shown that any “harm or potential for harm is substantial.” … Because Cardosi failed to show any substantial harm or potential for substantial harm, any trial court error wasn’t “so prejudicial to the rights of the defendant as to make a fair trial impossible.” Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017).
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Cardosi argues that his Sixth Amendment rights were violated when Wedding’s post-crime text messages were admitted because he and Wedding could “reasonably expect” the statements “to be used against them in a criminal prosecution.” …
… Wedding made the statements to try to conceal an ongoing emergency instead of to end one. Wedding made the statements informally over text messages—with most being later deleted—instead of permanently memorializing them in a formal setting. And Wedding made the statements to a co-conspirator instead of to law enforcement personnel. An objective analysis of the circumstances shows that Wedding’s text-message statements weren’t testimonial. Rather than serving as out-of-court substitutes for trial testimony, the messages were created for the primary purposes of planning and covering up crimes. Cf. Bryant, 562 U.S. at 358 … Because Wedding’s text messages weren’t testimonial, their admission didn’t violate Cardosi’s Sixth Amendment rights.
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Cardosi argues simply that the trial court “erred” by inadvertently instructing that “‘particular facts and circumstances of each case must be considered in determining whether a person participated in the commission of the offense as an accomplice.’” … But error alone isn’t enough. … Cardosi points to no prejudice, and we independently find none. “Instructional error is harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise.” Inman v. State, 4 N.E.3d 190, 200 (Ind. 2014) (internal quotation marks removed).
Here, the accomplice instruction was tethered to no specific charge, so it is hard to discern, without his guidance, which conviction Cardosi believes isn’t supportable without the instruction being given. But strong evidence sustains all his convictions. …
Because this mass of evidence supports each of his convictions—for the murders of Justin, Ricky, and Kim, for assisting Wedding by communicating police action at the crime scene and by disposing of evidence, and for auto theft—no error in giving the accomplice instruction prejudiced Cardosi’s substantial rights, so the trial court didn’t abuse its discretion.
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Cardosi asserts that the “trial court erred by considering non-statutory aggravating circumstances” (the “brutality” of the murders) when sentencing him to life without parole. …
But the trial court’s consideration of any non-statutory aggravating circumstance was inconsequential because “there is only one sentencing determination, which is made by the jury, and the judge must apply the jury’s determination.” Stroud v. State, 809 N.E.2d 274, 287 (Ind. 2004). In other words, any later musing by the judge was irrelevant when the court was bound by the jury’s recommendation of life without parole. See, e.g., McCallister, 91 N.E.3d at 565 …
And even if the jury or trial court had considered non-statutory aggravators, a sentence may still be upheld if other valid aggravating circumstances exist. Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016), trans. denied. …
…Because this weighty aggravator found by the jury remains uncontested, Cardosi’s sentence of life without parole is independently supported by a valid statutory aggravating circumstance. We conclude that the trial court didn’t abuse its discretion by sentencing Cardosi to life without parole.
Conclusion
We affirm Cardosi’s convictions and sentence because (I) sufficient evidence supports Cardosi’s auto-theft conviction and we needn’t address his felony-murder challenge, (II) any error in the trial court’s admonishments wasn’t fundamental, (III) the trial court didn’t violate Cardosi’s Confrontation Clause rights, (IV) any error in reading the withdrawn accomplice liability instruction was harmless, and (V) the trial court didn’t manifestly abuse its discretion when it sentenced Cardosi to life without parole.
Rush, C.J., and David, Slaughter, and Goff, JJ., concur.