FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS    STEVE CARTER
Indianapolis, Indiana    Attorney General of Indiana

GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana

PAUL A. MOORE,          )
                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A02-0405-CR-436
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

                         

II.    Whether his convictions are supported by sufficient evidence; and

III.    Whether the trial court properly sentenced him.

The prima facie standard thus prevents two evils which would otherwise undermine the judicial process. First, by requiring the appellant to show some error, we ensure that the court, not the parties, decides the law. Second, by allowing the appellant to prevail upon a showing simply of prima facie error, we avoid the improper burden of having to act as advocate for the absent appellee.

Id. at 593.

Newman v. State, 719 N.E.2d 832, 838 (Ind. Ct. App. 1999) (some citations omitted), trans. denied (2000).
    The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” See footnote The Fourth Amendment protects citizens against unreasonable searches and seizures of persons and property by requiring a warrant based on probable cause. McReynolds v. State, 460 N.E.2d 960, 962 (Ind. 1984). Probable cause exists when an officer has knowledge of facts and circumstances that would lead a reasonably prudent person to believe that a crime has been committed. See Gibson v. State, 518 N.E.2d 1132, 1136 (Ind. Ct. App. 1988), trans. denied.
    “It is axiomatic that warrants, both search and arrest, are required unless probable cause exists along with exigent circumstances rendering it impractical to seek a warrant.” Jones v. State, 409 N.E.2d 1254, 1257 (Ind. Ct. App. 1980). Exigent circumstances may include danger to law enforcement officers or the risk of loss or destruction of evidence. See Zimmerman v. State, 469 N.E.2d 11, 16 (Ind. Ct. App. 1984). Absent probable cause, however, exigent circumstances alone are insufficient to justify a warrantless seizure. Cf. Harless v. State, 577 N.E.2d 245, 248 (noting same with respect to warrantless search: “[E]xigent circumstances justify dispensing with the search warrant, but do not eliminate the need for probable cause.”); Jones, 409 N.E.2d at 1258 (“A search without probable cause is never justified by the need to prevent the disappearance or destruction of evidence of a crime.”). Whether a particular warrantless seizure violates the guarantees of the Fourth Amendment depends upon the facts and circumstances of each case. State v. Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans. denied. “The State bears the burden of proving that the warrantless seizure fell within an exception to the warrant requirement.” Id. See footnote
    Here, Sergeant Wisneski testified that he confiscated Moore’s handgun because he “believed that the crime of criminal gang activity had or may have taken place” and because “things were in a very, very dangerous state at that time, and … there needed to be [a minimum] of cooling off because, you know, anybody that would go get weapons and take them to someone’s house to seek revenge, that’s a danger.” Tr. at 594. Sergeant Wisneski candidly admitted, however, that he “wasn’t sure of the elements of criminal gang activity at the time[,]” id., and Moore points out that the handgun “was not seized as evidence of any crime, not even the ‘gang activity’ that Wisneski thought might be afoot.” See footnote Appellant’s Br. at 11. In other words, Sergeant Wisneski did not have probable cause to seize the handgun, for which Moore had a valid permit. Cf. Cochran v. State, 429 N.E.2d 672, 674 (Ind. Ct. App. 1981) (discussing seizure of property under “plain view” doctrine: See footnote “[A]n officer must have probable cause to believe that the property to be seized is connected to criminal activity.”). As such, the warrantless seizure violated the Fourth Amendment. See footnote
    We need not specifically determine whether the subsequent test-firing of the handgun was a search for purposes of the Fourth Amendment, because the ballistics evidence was clearly derived from the unconstitutional seizure and thus should have been excluded as “fruit of the poisonous tree.”
The “fruit of the poisonous tree” doctrine is one facet of the exclusionary rule of evidence which bars the admissibility in a criminal proceeding of evidence obtained in the course of unlawful searches and seizures. When applied, the doctrine operates to bar not only evidence directly obtained, but also evidence derivatively gained as a result of information learned or leads obtained during an unlawful search or seizure. To invoke the doctrine, a defendant must show that challenged evidence was obtained by the State in violation of the defendant’s Fourth Amendment rights.

Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000) (citations omitted). Moore has made that showing here. We therefore conclude that the trial court erred in admitting the ballistics evidence.
    The State contends that the error was harmless. We agree.
    Admissions of evidence in violation of the Fourth Amendment are subject to harmless error analysis. Harmless error occurs when the conviction is supported by substantial independent evidence of guilt which satisfies the reviewing court that there is no likelihood that the erroneously admitted evidence contributed to the conviction. Violations of the Fourth Amendment must be harmless beyond a reasonable doubt. We must find that there is no substantial likelihood the error contributed to the verdict, or, in other words, that the error was unimportant in relation to everything else before the jury on the issue in question.

Smock v. State, 766 N.E.2d 401, 407 (Ind. Ct. App. 2002) (citations omitted).
    At trial, Moore testified that he last saw the handgun “a little bit before” his home was allegedly burglarized in August 2002, and although he admitted to meeting and being kissed by Johnson several days before his murder, he denied any involvement in the charged crimes. Tr. at 789. The State points out that if the jury had believed Moore’s testimony, “the ballistics test from his gun would have been irrelevant. For if the gun had been stolen and was in another person’s possession in July of 2003, Moore obviously could not be guilty of the murders.” Appellee’s Br. at 9. The ballistics evidence was not inconsistent with Moore’s claim of innocence, nor did it establish ipso facto that Moore used the handgun to kill Coleman and Johnson. The jury chose to believe Ward’s and the Bettises’ testimony that Moore possessed the handgun at the time of the murders, and thus the ballistics evidence was merely cumulative of the evidence establishing that Moore committed the murders. As discussed more fully below, this evidence is sufficiently substantial that we must conclude that the trial court’s error in admitting the ballistics evidence was harmless beyond a reasonable doubt. See Fuller v. State, 674 N.E.2d 576, 578 (Ind. Ct. App. 1996) (“It is well recognized that any error in admitting evidence will be found harmless where the evidence is merely cumulative. This proposition also applies where the alleged error is of a constitutional nature.”) (citation omitted).

Green v. State, 756 N.E.2d 496, 497 (Ind. 2001). “The testimony of a single eyewitness to a crime is sufficient to sustain a murder conviction.” Id.
    Moore disparages Ward’s testimony regarding the crimes, characterizing it as “incredibly dubious.” Appellant’s Br. at 23. “For testimony to be so inherently incredible that it is disregarded based on a finding of ‘incredible dubiosity,’ the witness must present testimony that is inherently contradictory, wholly equivocal or the result of coercion, and there must also be a complete lack of circumstantial evidence of the defendant’s guilt.” Clay v. State, 755 N.E.2d 187, 189 (Ind. 2001). We note that
[a]pplication of this rule is rare; the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
    The testimony of an accomplice is subject to high scrutiny. However, such testimony is by itself sufficient to sustain a conviction. The fact that the accomplice may not be completely trustworthy goes to the weight and credibility of his testimony, something that is completely within the province of the jury and cannot be reviewed on appeal.

Herron v. State, 808 N.E.2d 172, 176 (Ind. Ct. App. 2004) (citations omitted), trans. denied.
    The “incredible dubiosity” rule is inapplicable here. Moore points to Ward’s initial denial of involvement in the crimes, his incentive to implicate Moore and receive favorable treatment from the State, and minor inconsistencies between his testimony and other evidence in the record, but these do not render his testimony inherently improbable such that no reasonable person could believe it. These inconsistencies “were factual issues for the jury to resolve.” Miller v. State, 770 N.E.2d 763, 775 (Ind. 2002). Ward’s account of the crimes was neither inherently contradictory nor equivocal, and there is no indication that it was the result of coercion. The jury found Ward to be a credible witness, and we may not disturb that determination. We conclude that the State presented sufficient evidence from which a jury could find Moore guilty beyond a reasonable doubt.

Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002) (citations omitted). With respect to Moore’s first contention, we note that “[a] finding of mitigating circumstances, like sentencing decisions in general, lies within the trial court’s discretion[,]” and that the court “is not required to give the same weight or credit to mitigating evidence as does the defendant.” Wilkie v. State, 813 N.E.2d 794, 799 (Ind. Ct. App. 2004), trans. denied. Moore cites Loveless v. State, 642 N.E.2d 974 (Ind. 1994), for the premise that a lack of prior criminal convictions is “a strong mitigating factor.” Appellant’s Br. at 28. We observe that the defendant in Loveless apparently had no criminal record whatsoever, but in any event, we cannot conclude that Moore’s minimal criminal history outweighs the “uniquely aggravating” nature and circumstances of his crimes as detailed by the trial court in its sentencing statement. We find no abuse of discretion.
    As for Moore’s Sixth Amendment argument, our supreme court recently held that “[t]here is no constitutional problem with consecutive sentencing so long as the trial court does not exceed the combined statutory maximums” as defined in Blakely – in this case, fifty-five years for the murder convictions and ten years for the class B felony convictions. Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005). There is no constitutional problem here.
    Finally, Moore asks us to revise his sentence pursuant to Appellate Rule 7(B), contending that it is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). We acknowledge Moore’s minimal criminal history, but given his cold-blooded execution and subsequent burning of the victims, we cannot conclude that his 120-year sentence is inappropriate.
    Affirmed.
RILEY, J., and ROBB, J., concur.

Id. at 651 (citing Ind. Code §§ 35-45-9-1, -3) (emphasis added). It would appear that Sergeant Wisneski’s probable cause determination, if any, was based solely on the yelling of gang names by unidentified persons during the fracas at Linda Jordan’s home, at which Moore and two acquaintances were present.