MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Oct 24 2018, 6:38 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Vincent M. Campiti                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Carter III,                                        October 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1709-CR-2248
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1601-F3-1



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018          Page 1 of 15
[1]   Following a July 2016 jury trial, James Jarrell Carter III was found guilty of

      Level 6 felony pointing a firearm, but the jury deadlocked on four other

      charges. About a year later, Carter was retried by jury and found guilty on the

      four counts: Level 1 felony attempted murder; two counts of Level 5 felony

      battery with a deadly weapon; and Level 5 felony criminal recklessness. The

      trial court entered judgment of conviction and sentenced Carter on the

      attempted murder and pointing a firearm counts only. Carter now appeals and

      raises the following two restated issues:


              I. Whether the trial court abused its discretion when during the
              second jury trial it admitted into evidence testimony from a
              witness that Carter pointed a firearm at him; and


              II. Whether the State presented sufficient evidence to support his
              conviction for attempted murder.


[2]   We affirm.


                                   Facts & Procedural History
[3]   Around 10:00 or 11:00 p.m. on January 2, 2016, Carter’s sister, Zykayia Carter,

      reported to police that her car, a Nissan sedan, had been stolen. That same

      night, four juvenile girls were “hanging out” together at a home in South Bend.

      Transcript Vol. II at 71, 112. The youths were at the home of A.S., age twelve,

      and her sister, A.S.2, age thirteen. Two other girls, A.M. and B.P., who were

      also sisters, were at the house as well. Around midnight, three juvenile males,

      who were a year or two older than the girls, came over to the house at the girls’

      invitation. At some point, one of the males, Q.J., left for a couple of minutes
      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 2 of 15
      and came back in a car, which was a Nissan sedan. The four females got into

      the car, with Q.J. driving. A.S. sat in the front passenger seat, B.P. behind her

      in the back seat, A.S.2 in the middle of the back seat, and A.M. on the driver’s

      side in the back seat.


[4]   After a minute or two, a vehicle sped up behind them. A.S.2 described that

      what looked like “a red van” followed them as they made several turns and,

      when she looked back, she observed “somebody pointed something out the

      window.” Id. at 118. Believing it to be a gun, A.S.2 told the other occupants,

      “there’s a gun” and A.S.2 heard “metal pieces hit the back” of the car. Id. A.S.

      recalled that “everyone was screaming” and she “ducked” down in her seat. Id.

      at 58. At that point, Q.J. began driving “fast down the street” and then crashed

      into a parked truck near Harrison and California Streets. Id. at 59. All the

      occupants jumped out of the car and ran, except A.S., who was pinned by an

      inflated airbag.


[5]   A.S. opened her front passenger-side door, and a woman, later identified as

      Jacquise Carter, who is Carter and Zykayia’s sister, came from the rear of the

      car and started punching and kicking A.S. in the face. While that was

      happening, a man, later identified as Carter, came up and put a gun to A.S.’s

      head and told A.S. that he was following the car “[b]ecause it was his sister’s

      car.” Id. at 62. Meanwhile, A.S.2 returned to the scene and saw Jacquise

      “beating up” A.S. Id. at 122. At some point, A.S. got out of the car. At that

      time, A.S. and A.S.2 tried to show Carter pictures of Q.J. that they had on their



      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 3 of 15
      phones because Carter was asking them who had been driving the car and “to

      tell [Carter] we didn’t steal the car.” Id. at 64.


[6]   Meanwhile, at around 12:30 a.m., Gerald Wellborn heard about “a dozen or so

      gunshots go off,” so he looked out of his bedroom window and saw a car being

      chased by two other vehicles. Transcript Vol. III at 89. He watched as “the lead

      vehicle” crashed into his truck that was parked in front of his house. Id.

      Wellborn, who was familiar with the sound of gunfire, described the gunfire as

      “a high caliber and a low caliber being fired” in quick succession. Id.

      Wellborn heard someone screaming for help, so, with his phone in hand to call

      911, he opened his front door intending to go outside. Wellborn saw a man,

      Carter, standing about fifteen feet away on the sidewalk in front of Wellborn’s

      house, near “a dark red, dark maroon” minivan-type of vehicle. Id. at 94. Over

      Carter’s objection, Wellborn testified, “[A]s soon as I get to open my door there

      was somebody with a gun, and he turned around and pointed it at me in a way

      that I thought I was going to be shot at.”1 Id. at 90. At the same time, Carter

      told Wellborn “to get the f*ck back inside” his house. Id. Wellborn recognized

      the gun as an AK-47, and upon seeing it, he “pretty much hit the floor,”

      crawled back inside, and called 911. Id. at 92.


[7]   Out of concern that someone was hurt, Wellborn armed himself with a

      holstered gun and went back outside. He saw Carter again, but this time,



      1
       Carter had filed a motion in limine to exclude evidence that Carter pointed a gun at Wellborn. The trial
      court denied the motion but directed that the record reflect Carter’s continuing objection to the evidence.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018           Page 4 of 15
      Carter did not have a gun and acted as though he was not the same person who

      had just pointed a gun at Wellborn. Wellborn recalled that after he made it

      clear to Carter that he knew he was the one who had pointed the gun at him,

      Carter “actually tried to shake my hand and apologize.” Id. at 95. Carter

      explained to Wellborn that his “kid sister had been kidnapped by a group of

      people and that was the reason why he was chasing them down and shooting

      them.” Id. at 96. Wellborn talked to Carter for approximately ten to fifteen

      minutes, and then Carter walked away before police arrived. During this time,

      Wellborn saw a couple of women in the street along with a large, white

      Suburban-type vehicle. The red minivan and the white SUV left before police

      arrived.


[8]   South Bend Police Department (SBPD) Officer Luke Pickard responded around

      12:40 a.m. to a report of shots fired. Prior to being dispatched, he had heard

      “several gunshots” and had already started moving to the area when he was

      dispatched. On his way, he encountered two crying and screaming female

      juveniles in the street, later identified as B.P. and A.S.2., both of whom had

      gunshot wounds. A.S.2 had what appeared to be a gunshot wound to her

      shoulder and B.P. also had an apparent gunshot wound to her shoulder as well

      as a laceration to the side of her head. After summoning medical assistance,

      Officer Pickard went to the scene of the accident, a couple of blocks away, and

      he met with and took a statement from Wellborn.


[9]   SBPD Officer Eric Mentz also responded to the crash scene and, upon arriving,

      he realized that the sedan involved in the accident was the car for which a few

      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 5 of 15
       hours prior he had taken the motor vehicle theft report from Zykayia. SBPD

       Officer Paul Daley retrieved six 7.62 x 39-millimeter shell casings in a one-block

       area leading up to the crash site. Ray Wolfenbarger, a firearm and toolmark

       examiner for SBPD, testified that 7.62 x 39 caliber ammunition is “normally

       associated with the AK 47 or the SKS style” of rifle. Id. at 55. He explained

       that, while many other types of weapons also could fire that ammunition, a

       smaller number would have the rifling pattern that he found on the retrieved

       shell casings. The Nissan was towed to the SBPD’s evidence processing

       location because “it had some ballistic damage to the rear.” Transcript Vol. II at

       158. SBPD Officer Andrew Jackson also responded to the scene and learned

       that Jacquise had a maroon-colored van registered in her name, and within

       hours after the crash, the van was located and impounded.


[10]   SBPD Detective James Taylor testified that he interviewed Carter a few days

       after the incident, and Carter stated that he never left his home that night.

       Eventually Detective Taylor obtained a search warrant for Carter’s phone,

       which revealed that, two days after the incident, Carter had obtained a “factory

       reset” of his phone such that it was “totally wiped and started over.” Transcript

       Vol. III at 22. A search warrant for cell phone towers in the area of the chase

       and crash showed that Carter’s phone was “bouncing off two different cell

       phone towers in that area” on the date and time in question. Id. at 23.


[11]   On January 6, Wellborn identified Carter in a photo array and was “110

       percent” confident in his identification. Id. at 98. A.S. did not identify Carter

       in a photo lineup presented to her within days after the incident, but several

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 6 of 15
       days after that, A.S. saw Carter’s face on television news and identified him as

       the person who had put the gun to her head.


[12]   In January 2016, the State filed criminal charges against Carter, which it later

       amended, charging Carter as follows: Count I, Level 1 felony attempted

       murder; Count II, Level 5 felony battery with a deadly weapon; Count III,

       Level 5 felony battery with a deadly weapon; Count IV, Level 5 felony criminal

       recklessness; Count V, Level 6 felony pointing a firearm; and it also alleged that

       Carter was a habitual offender. A jury trial was held in June 2016, and the jury

       found Carter guilty of Count V, pointing a firearm, but it deadlocked on Counts

       I, II, III, and IV, resulting in a mistrial on those charges. The trial court

       withheld entering judgment of conviction on Count V at that time.


[13]   In July 2017, Carter was retried on Counts I, II, III, and IV. During trial,

       Carter filed a motion in limine to exclude “[a]ny evidence that James Carter

       pointed a firearm at Gerald Wellborn” and any evidence that he had been

       convicted of Level 6 felony pointing a firearm. Appellant’s Appendix Vol. 6 at 22.

       Prior to Wellborn testifying, and out of the jury’s presence, counsel for both

       parties presented argument to the trial court on the issue. Carter’s counsel

       conceded that it would be acceptable for Wellborn to testify that he looked

       outside and saw Carter on his sidewalk holding a gun and to describe the gun

       that Carter was holding – as that would go to identification of Carter – but he

       argued that Wellborn should not be allowed to testify that Carter pointed the

       gun at him because that referred to another crime, which was not being tried in

       the current trial, and because its prejudicial effect outweighed any probative

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 7 of 15
       value. The trial court denied the motion, finding, among other things, that the

       evidence that Carter pointed the firearm at Wellborn “reflects this defendant’s

       state of mind,” and it “provide[s] context to and informs [] Mr. Wellborn’s

       ability to both identify the defendant and identify the weapon[.]” Transcript Vol.

       III at 8-9. The trial court also determined:


               The reality is if we look at 404(b), and I’m just using this as an
               analogy, a lot of information can go in or a lot of testimony can
               go in under 404(b) that is a crime, but its probative value
               outweighs the prejudicial value.


               And I think we’re in a unique situation here, because this has
               been tried twice. And what we learned from the first trial is that
               a jury can sort out testimony of a gun being pointed at someone
               to battery charges and an attempted murder charge and a
               criminal reckless charge, because that’s exactly what they did in
               the last trial. They convicted Mr. Carter of pointing a gun, hung
               on the other counts. So clearly they were able to separate out
               that testimony.


       Id. at 9.


[14]   The jury found Carter guilty of the four charged offenses and Carter pled guilty

       to the habitual offender count. The trial court entered judgment of conviction

       on Count I, attempted murder, and Count V, pointing a firearm and sentenced

       Carter to thirty-five years on Count I, enhanced by six years due to the habitual

       offender findings, and to a consecutive sentence of one and one-half years on

       Count V, for a total sentence of forty-two and one-half years. Carter now

       appeals.


       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 8 of 15
                                        Discussion & Decision

                                     I. Admission of Evidence
[15]   Carter argues that the trial court abused its discretion when, during the second

       trial, it permitted Wellborn to testify that Carter pointed a gun at him.

       Specifically, he maintains that the evidence that Wellborn saw Carter point the

       firearm at him was irrelevant to the charges presented to the jury in the second

       trial and, even if relevant, such relevance was outweighed by the danger of

       unfair prejudice. The admission of evidence is within the sound discretion of

       the trial court, and we review the court’s decision only for an abuse of that

       discretion. Smith v. State, 982 N.E.2d 393, 402 (Ind. Ct. App. 2013), trans.

       denied. The trial court abuses its discretion only if its decision is clearly against

       the logic and effect of the facts and circumstances before the court, or if the

       court has misinterpreted the law. Id.


[16]   “Relevant evidence” is defined as “evidence having any tendency to make the

       existence of any fact that is of consequence to the determination of the action

       more probable or less probable than it would be without the evidence.” Ind.

       Evidence Rule 401 (emphasis added). In order to be relevant, the evidence at

       issue “need only have some tendency, however slight, to make the existence of

       a material fact more or less probable, or tend to shed any light upon the guilt or

       innocence of the accused.” Smith, 982 N.E.2d at 402 (citing Simmons v. State,

       717 N.E.2d 635, 638 (Ind. Ct. App. 1999)). Under Ind. Evidence Rule 403,

       relevant evidence may be excluded if its probative value is substantially

       outweighed by the danger of unfair prejudice, confusing the issues, misleading

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 9 of 15
       the jury, undue delay, or needlessly presenting cumulative evidence. Snow v.

       State, 77 N.E.3d 173, 179 (Ind. 2017). This balancing is committed to the trial

       court’s discretion. Id.


[17]   Here, Wellborn heard about “a dozen or so gunshots” in quick succession,

       some of which were fired by what Wellborn believed was a high-caliber gun.

       Transcripts Vol. III at 89. He looked out of his bedroom window and saw a car

       being chased by two other vehicles and observed as the lead vehicle crashed

       into his truck in front of his home. Wellborn opened his door and, before he

       took a step outside he saw Carter holding an AK-47. Carter immediately told

       Wellborn “to get the f*ck back inside” his house. Id. at 90. At this time, Carter

       was standing about fifteen feet away from Wellborn and near the maroon

       minivan-type vehicle. The evidence challenged by Carter was Wellborn’s

       testimony that Carter pointed the firearm at him and did so in a way that

       Wellborn “thought [he] was going to be shot at.” Id. The trial court found, and

       we agree, that Wellborn’s testimony in this regard was relevant as it reflected

       Carter’s aggressive state of mind immediately after the chase, gunshots, and

       crash, and it was relevant to Wellborn’s ability to identify Carter and the type of

       weapon he was carrying.


[18]   We also reject Carter’s claim that the testimony should have been excluded due

       to its prejudicial effect. As this court has recognized, “‘[a]ll evidence that is

       relevant to a criminal prosecution is inherently prejudicial, and thus the

       Evidence Rule 403 inquiry boils down to a balance of the probative value of the

       proffered evidence against the likely unfair prejudicial impact of that

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 10 of 15
       evidence.’” Smith, 982 N.E.2d at 402 (quoting Duvall v. State, 978 N.E.2d 417,

       428 (Ind. Ct. App. 2012)). Here, the jury knew that, after the gunshots and car

       crash, Wellborn saw Carter standing on his front sidewalk, by the maroon van

       that had been chasing the sedan, and Carter, while holding the AK-47, directed

       Wellborn to get “the f*ck back inside” his house. Transcript Vol. III at 90.

       Carter has not shown that Wellborn’s additional statement that Carter pointed

       the gun at him was unduly prejudicial. Accordingly, we find no abuse of

       discretion with the trial court’s decision to allow Wellborn’s testimony that he

       saw Carter point the AK-47 at him.


[19]   Moreover, even if we were to agree with Carter that the relevance of this

       evidence was outweighed by the danger of unfair prejudice, any error in the

       admission of this evidence would have been harmless. An error in the

       admission of evidence is harmless if a conviction is supported by substantial

       independent evidence of guilt so that there is no substantial likelihood the

       challenged evidence contributed to the conviction. Smith, 982 N.E.2d at 403

       n.3. Here, evidence showed that Carter had a motive for the shooting, that he

       was present at the scene and held a gun to A.S.’s head, that shortly after the

       gunshots and car crash, Carter was seen holding an AK-47, which was

       consistent with the shell casings found at the scene, that he admitted to

       Wellborn that he had just fired shots at the vehicle, that he lied to the police

       about his whereabouts, and that two days after the shooting, he had his cell

       phone factory-reset to wipe its contents. Accordingly, we find that, even

       without the challenged evidence, there was substantial independent evidence of


       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 11 of 15
       guilt supporting Carter’s convictions and any error in the admission of evidence

       was harmless.


                                                 II. Sufficiency
[20]   Carter argues that the evidence was insufficient to support his conviction for

       attempted murder.2 Our standard of review with regard to sufficiency claims is

       well settled. In reviewing a sufficiency of the evidence claim, this court does

       not reweigh the evidence or judge the credibility of the witnesses. Perez v. State,

       872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We consider only

       the evidence most favorable to the verdict and the reasonable inferences drawn

       therefrom and will affirm if the evidence and those inferences constitute

       substantial evidence of probative value to support the judgment. Id. at 213.

       Reversal is appropriate only when reasonable persons would not be able to form

       inferences as to each material element of the offense. Id. A conviction may be

       based solely on circumstantial evidence. Id. Although presence at a crime

       scene alone is insufficient to sustain a conviction, presence combined with other

       facts and circumstances, including defendant’s course of conduct before,




       2
        Carter’s brief also asserts that the evidence was insufficient to convict him of Counts II, III, and IV.
       However, as the trial court did not enter judgment of conviction or sentence Carter on those counts, we
       address only the sufficiency for the conviction on Count I, attempted murder. Furthermore, Carter’s
       argument as to sufficiency is the same for all counts, namely, that “no evidence supporting the allegation that
       Mr. Carter was the alleged shooter was offered that could sustain a verdict of guilty beyond a reasonable
       doubt”; in our decision today, we reject that claim. Appellant’s Brief at 14. Carter does not challenge the
       sufficiency of the evidence of his pointing a firearm conviction.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018          Page 12 of 15
       during, and after the offense, may raise a reasonable inference of guilt. Maul v.

       State, 731 N.E.2d 438, 439 (Ind. 2000).


[21]   To convict Carter of attempted murder the State was required to prove that

       Carter, with intent to commit murder, “fire[d] multiple shots into a vehicle at

       B.P and/or A.S. and/or A.S.2 and/or Q.J. and/or A.M. Q.J. [and] that act

       constituted a substantial step toward the commission of the crime of

       [m]urder[.]” Ind. Code §§ 35-41-5-1, 35-42-1-1; Appellant’s Appendix Vol. 4 at 5.

       Carter’s argument on appeal is that there was no evidence that he was the

       shooter. He argues that “no witness can place [him] inside either of the two

       vehicles Wellborn said he saw chasing the lead car” and “[n]othing was offered

       to distinguish Mr. Carter from anyone else in the vehicles during the chase and

       nothing was offered to distinguish any occupant from another with regard to

       being a shooter.” Id. at 14-15. We disagree.


[22]   Upon hearing the high-caliber gunshots, Wellborn looked out and watched the

       sedan being chased by two vehicles including a maroon minivan, which was

       owned by Carter’s sister, Jacquise. After the crash, Wellborn opened his front

       door and saw Carter standing on his front sidewalk holding an AK-47, which

       matched the ammunition and rifling pattern found on the six shell casings

       found on the ground in a one-block area leading up to where the sedan crashed

       into the parked truck. Carter angrily told Wellborn “to get the f*ck back inside”

       his house, and then moments later, when Wellborn went outside, Carter acted

       as though he was not the same person who had just instructed Wellborn to get

       back inside while pointing a gun at him. Transcript Vol. III at 90. When

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 13 of 15
       Wellborn indicated that he knew Carter was the same person who had just

       pointed the gun at him, Carter offered the explanation that he had been

       shooting at the sedan because his “kid sister had been kidnapped by a group of

       people and that was the reason why he was chasing them down and shooting

       them.” Id. at 96. A.S. testified that Carter held a gun to her head and told her

       that the vehicle was “his sister’s car.” Transcript Vol. II at 62. The sedan had

       ballistic damage to the rear, and two of the occupants suffered gunshot wounds

       to the back of their shoulders. Although Carter told police he did not leave

       home that night, cell phone tower records indicate that his phone was used in

       the area on the date and time in question.


[23]   Essentially, Carter’s argument boils down to the premise that no one saw him

       inside one of the vehicles that was chasing the sedan or saw him shooting.

       However, a conviction may be based upon circumstantial evidence alone.

       Perez, 872 N.E.2d at 213. Carter suggests that, from the evidence presented,

       one could reasonably conclude that a different person fired the shots or that

       when the vehicles came to rest “Carter exited whichever vehicle he was in” and

       “retrieved the weapon from someone else.” Appellant’s Brief at 16. As our

       Supreme Court has determined, “It is not necessary that the evidence

       ‘overcome every reasonable hypothesis of innocence.’” Sallee v. State, 51

       N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind.

       1995)). Based on the record before us, we find that the State presented

       sufficient evidence to convict Carter of attempted murder.


[24]   Judgment affirmed.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2248 | October 24, 2018   Page 14 of 15
Brown, J. and Tavitas, J., concur.




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