Wilcoxson v. State

132 N.E.3d 27

Damoine WILCOXSON, Appellant/Cross-Appellee/Defendant,

v.STATE of Indiana, Appellee/Cross-Appellant/Plaintiff

Court of Appeals Case No. 18A-CR-1882

Court of Appeals of Indiana.

FILED August 29, 2019

Attorney for Appellant: Matthew D. Anglemeyer, Marion County Public Defender, Appellate Division, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Vaidik, Chief Judge.

Case Summary

[1] A jury found Damoine Wilcoxson guilty of two counts of attempted murder and one count of criminal recklessness for shooting up two police stations in Indianapolis. The trial court, however, entered only a single attempted-murder conviction, along with a criminal-recklessness conviction, finding that the two attempted-murder counts merge. The court then sentenced Wilcoxson to thirty-seven years in prison. Wilcoxson appeals, arguing that the trial court should not have admitted certain evidence at his trial and that therefore his convictions should be reversed. We disagree and affirm his convictions.

[2] The State cross-appeals, contending that the trial court erred by merging the two attempted-murder counts and entering only one conviction. Wilcoxson responds that the State is not authorized to bring such an appeal and that, even if it is, merger of the two counts is proper in this case. We hold that (1) the State is authorized to bring its cross-appeal and (2) the trial court erred by merging the two attempted-murder counts. We therefore remand this matter to the trial court for the entry of a conviction and sentence on the second count.

Facts and Procedural History

[3] Around 11:00 p.m. on October 4, 2016, a person shot up the Indianapolis Metropolitan Police Department's Northwest District building while Sergeant Laura Weida was inside. Thirty spent shell casings and a handwritten note were found in front of the building. The note included threats against "white" people and references to "Yahuah." Ex. 57A.

[4] Nine days later, at about 11:00 p.m. on October 13, a person shot up IMPD's North District building. At the time, Officers Stephen Jones and Justin Keehn were in a room doing paperwork. The lights were on, and the blinds were open so that the officers, who were both in uniform, could be seen from outside. One bullet came through a window and passed within inches of Officer Keehn's right ear. Outside the building, sixteen spent shell casings were found in an area from which the shooter would have been able to see Officers Jones and Keehn sitting inside. In addition to the bullet hole in the window, police found two bullet holes in the exterior wall of the building, a bullet hole in a dumpster outside the building, and a bullet hole in a car parked near the building. Also found was a handwritten note that, like the note found outside the Northwest District building, contained threats against "white" people and references to "Yahuah." Ex. 143A.

[5] Testing revealed that the thirty shell casings found outside the Northwest District building and the sixteen shell casings found outside the North District building were all fired from the same gun. Moreover, Wilcoxson's DNA was found on one of the casings recovered from the Northwest District building and one of the casings recovered from the North District building.

[6] On October 31, an IMPD SWAT team went to the apartment where Wilcoxson had been staying to take him into custody on one or more unrelated warrants. As the team announced its arrival and attempted to enter the apartment, Wilcoxson began shooting—allegedly in the direction of the SWAT officers. Eventually, he surrendered. A handgun and shell casings were found inside the apartment, and testing showed that the gun was the same one used during the October 4 and October 13 shootings. Handwritten notes referring to "Yahuah" were also found in the apartment. Exs. 228-232A. Handwriting analysis showed that all or parts of the notes from the Northwest District, the North District, and the apartment were probably written by Wilcoxson. A Facebook page maintained by Wilcoxson also included references to "Yahuah."

[7] The State charged Wilcoxson in relation to all three incidents under a single cause number. Regarding the October 4 shooting, the State charged Wilcoxson with Level 5 felony criminal recklessness. Regarding the October 13 shooting, the State charged Wilcoxson with two counts of attempted murder—one relating to Officer Keehn and one relating to Officer Jones. And regarding the October 31 SWAT incident, the State charged Wilcoxson with a single count of attempted murder relating to the SWAT officers.

[8] Wilcoxson moved to sever the charges, asking that three separate trials be held for the three incidents. The trial court ruled that the charges arising from the October 4 and October 13 shootings could be tried together but agreed to sever the attempted-murder charge arising from the October 31 SWAT incident.

[9] Shortly after the trial court ordered the severance, the State filed notice that it intended to take the October 4 and October 13 charges to trial first and to present, during that trial, evidence that Wilcoxson shot at police when they went to arrest him on October 31. The State asserted this evidence was admissible under Indiana Evidence Rule 404(b), which provides that evidence of crimes, wrongs, or other acts may be admissible to prove, among other things, "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." The State argued that evidence that Wilcoxson shot at police on October 31 "supports the identification of the defendant as the perpetrator" of the October 4 and October 13 shootings, "as well as his motive, intent, preparation and plan in committing" those shootings. Appellant's App. Vol. II pp. 164-65. Wilcoxson objected, and the trial court ruled that the State could present evidence that Wilcoxson fired a gun when the police arrived to take him into custody but not that he shot at the officers .

[10] During trial, the court twice admonished the jury that evidence that Wilcoxson fired a gun during the October 31 incident was relevant to prove Wilcoxson's motive, identity, and consciousness of guilt with respect to the October 4 and October 13 shootings but not to prove that he has any particular character trait. Tr. Vol. III pp. 220, 236. The court later gave the jury a final instruction that largely tracked those two admonishments, adding that the evidence could also be used to determine Wilcoxson's intent. Appellant's App. Vol. III p. 38.

[11] The jury found Wilcoxson guilty on all charges being tried: one count of criminal recklessness for the October 4 shooting and two counts of attempted murder for the October 13 shooting. The trial court entered a conviction on the criminal-recklessness count but entered a conviction on only one of the two attempted-murder counts, finding that those two counts "merge." Tr. Vol. IV p. 212. The court sentenced Wilcoxson to a fully executed term of thirty-five years on the attempted-murder conviction and a consecutive term of five years, with two years executed and three years suspended to probation, on the criminal-recklessness conviction, for a total of thirty-seven years in prison and three years of probation.

[12] Wilcoxson appeals, and the State cross-appeals.¹

Discussion and Decision

[13] Wilcoxson contends that the trial court should not have allowed the State to present evidence that he fired a gun when the SWAT team came to arrest him on October 31. In its cross-appeal, the State argues that the trial court erred by merging the two attempted-murder counts and entering only one conviction after the jury found Wilcoxson guilty on both counts.

I. Wilcoxson's Appeal

[14] Wilcoxson challenges the trial court's admission of evidence that he fired a gun during the SWAT incident on October 31, which the court allowed pursuant to Evidence Rule 404(b). That rule provides that evidence of a crime, wrong, or other act "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," but it "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Ind. Evidence Rule 404(b). Evidence Rule 403 provides, in turn, that evidence, even if relevant, should be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Therefore, when the State seeks to use evidence of a crime, wrong, or other act, the court must (1) determine whether the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act and, if so, (2) balance the probative value of the evidence against its prejudicial effect. Hicks v. State , 690 N.E.2d 215, 221 (Ind. 1997). We review a trial court's ruling for an abuse of discretion. Spencer v. State , 703 N.E.2d 1053, 1057 (Ind. 1999).

[15] The trial court ruled that evidence that Wilcoxson fired a gun during the October 31 incident was relevant to four issues with respect to the October 4 and October 13 shootings: (1) motive, (2) identity, (3) consciousness of guilt, and (4) intent. Wilcoxson challenges all four grounds. We do not reach the issues of identity and intent, as we affirm the trial court's ruling on the issues of motive and consciousness of guilt.

[16] Regarding motive, we agree with the State that Wilcoxson firing a gun when police went to arrest him tends to prove that he harbors significant hostility toward police. That hostility, in turn, strongly suggests a motive for the October 4 and October 13 shootings. See Hicks , 690 N.E.2d at 222 (holding that defendant's hostility toward...