      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Aug 31 2020, 10:59 am
      court except for the purpose of establishing
                                                                                   CLERK
      the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                                  Court of Appeals
      estoppel, or the law of the case.                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Kelly Starling                                           Attorney General of Indiana
      Marion County Public Defender Agency
                                                               Benjamin J. Shoptaw
      – Appellate Division                                     Deputy Attorney General
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jerrick L. Whitley,                                      August 31, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2833
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Barbara Crawford,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G01-1806-MR-20203



      Mathias, Judge.


[1]   Following a jury trial in the Marion Superior Court, Jerrick Whitley was

      convicted of two counts of murder, Level 3 felony aggravated battery, and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020                  Page 1 of 15
      possession of a firearm. Whitley was sentenced to fifty-five years for each

      murder conviction and nine years for aggravated battery, for an aggregate term

      of 119 years in the Department of Correction. On appeal, Whitley argues that:


        I. The trial court abused its discretion in admitting into evidence two
           statements made during Whitley’s interrogation by police; and,

       II. The evidence is insufficient to support one of Whitley’s convictions for
           murder.

[2]   We affirm.


                                 Facts and Procedural History
[3]   Whitley’s convictions arise from a brawl between patrons of the Sawmill

      Saloon that ended in gunfire. The bar is located at the intersection of Sherman

      Avenue and 14th Street in Indianapolis. In the early hours of January 28, 2018,

      the bar was “basically full.” Tr. Vol. II, p. 232. Among the crowd were Whitley

      and his cousin Marion Glenn (“Marion”), and siblings Deron and Marshe Gray

      (“Deron” and “Marshe”) with their friend Asia Murray (“Asia”). The two

      groups were seated at nearby tables when, shortly after 2:00 a.m., a fight broke

      out between Marion and Deron. Witnesses and security camera footage

      indicated that Marion was the instigator.


[4]   Quickly, other patrons joined the fight, and the scene devolved into “[a] bunch

      of chaos.” Tr. Vol. II, p. 217. The crowd around the fight moved from the main

      bar area to a gated outdoor patio, then to the parking lot and the street. A

      witness later said it was as if “the whole bar came outside.” Tr. Vol. II, p. 231.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 2 of 15
      Sawmill Saloon security guard Christopher Anthony (“Anthony”) and former

      security guard James Ratcliffe (“Ratcliffe”) intervened to try to stop the

      fighting.


[5]   In the moments before the shooting occurred, Marion and Deron were tussling

      on the ground in the parking lot. Anthony and Asia were also on the ground,

      trying to pull the men off one another. Whitley then emerged from around the

      corner of the bar and fired into the group of people on the ground. Anthony

      drew his gun and returned fire in Whitley’s direction.


[6]   From her position near the fight, Asia saw much of the exchange of gunfire.

      She saw Whitley round the corner of the bar and shoot “a whole lot of shots.”

      Tr. Vol. II, p. 220. She saw the security guard, Anthony, draw his gun and

      return fire “once or twice,” striking Whitley in the upper leg area. Tr. Vol. II, p.

      221. Then she saw Whitley limp away behind a house across the street.


[7]   Michael Brandenburg (“Brandenburg”) lived in the house directly across the

      street from the Sawmill Saloon and saw the commotion in the wake of the

      shooting. At the sound of shots fired, Brandenburg looked out his front window

      and saw three people lying on the ground and one man running through his

      yard. Brandenburg saw the running man get shot, briefly stumble, and drop the

      gun he was holding. Then he saw the man get up, grab his gun, and fire the

      weapon. The man staggered up Brandenburg’s driveway, jumped over the

      chain-link fence into his backyard, and disappeared from view. After emergency




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 3 of 15
       personnel arrived, Brandenburg saw a man on a stretcher being wheeled to an

       ambulance in the nearby alley.


[8]    The bar patrons who had gathered to watch the fight scattered when the

       shooting began, ducking and running away. Asia ran and hid behind a parked

       car. Marshe was swept back into the bar with a crowd of others. When she

       heard that someone had been shot and killed, Marshe went back outside and

       discovered Asia hovering over Deron’s body. Deron had been shot three times.

       The women stayed with him until emergency personnel arrived. Deron was

       pronounced dead at the scene.


[9]    The security guard, Anthony, was shot seven times. He lost consciousness and

       was driven to a hospital by a bystander before emergency personnel arrived.

       The weapon he fired was never recovered. Ratcliffe, the former security guard,

       was shot once. Responding Officer Aaron Helton recovered a holstered gun

       that he found tucked into Ratcliffe’s pants. EMTs transported Ratcliffe from the

       scene to a hospital, where he died from his injuries.


[10]   Whitley suffered one gunshot wound to his groin. Responding officers found

       him, unarmed, in an alley by Brandenburg’s house and transported him to a

       hospital. Officers recovered a .40 caliber Zastava under a rake in Brandenburg’s

       backyard. In addition, four other weapons were found in and around the

       Sawmill Saloon that night. A 9-millimeter Smith & Wesson was found in

       Deron’s vehicle, parked outside the bar. A Phoenix Arms .25 caliber was found

       in the driveway behind the bar. The holstered gun recovered from Ratcliffe was


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 4 of 15
       a Hi Point .380. And a Taurus .357 was found in a jacket inside the bar. All of

       the cartridge shell casings recovered from the scene were from the Zastava. The

       bullets and bullet fragments recovered from Anthony, Deron, and Ratcliffe

       were all fired from the Zastava. The bullet that hit Whitley was not recovered.


[11]   Fingerprints collected from the scene and DNA collected from the Zastava were

       unidentifiable. Deron’s DNA was recovered from a shirt discovered on the

       scene that Whitley had worn. Whitley’s blood was found on the fence to

       Brandenburg’s backyard. DNA recovered from the Phoenix Arms gun found in

       the bar’s driveway belonged to an unknown individual.


[12]   Responding officers interviewed Brandenburg, who at first gave the police a

       false ID because there was an active warrant out for his arrest in an unrelated

       criminal case. Brandenburg relayed what he saw that night but later became

       uncooperative in the investigation, requiring the trial court to order the issuance

       of a body attachment warrant before he appeared to testify at trial. Brandenburg

       was unable to identify the man he had seen in his front yard beyond describing

       him as a Black man wearing a red hoodie.


[13]   On February 15, 2018, Anthony, still hospitalized, was interviewed by officers

       with the Indianapolis Metropolitan Police Department (“IMPD”). He

       identified Whitley as the man who shot him but denied having a gun himself

       because he was legally prohibited from possessing a gun. Anthony later

       admitted to shooting Whitley after entering a Use Immunity Agreement with

       the Marion County Prosecutor’s Office. The agreement provided that, in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 5 of 15
       exchange for his testimony, Anthony would not be prosecuted for his

       possession or use of a firearm on the night in question.


[14]   The State filed charges against Whitley on June 22, 2018, as follows: Count I,

       murder; Count II, murder; Count III, Level 3 felony aggravated battery; and

       Count IV, Level 4 felony unlawful possession of a firearm by a serious violent

       felon.


[15]   Whitley was arrested on July 14, 2018. He was interviewed that day by IMPD

       Detective Brian Schemenaur (“Detective Schemenaur”) and gave a videotaped

       statement after reading the probable cause affidavit. Before his arrest, Whitley

       had seen television coverage of the shooting. In the interview, Whitley admitted

       to being shot on January 28 at the Sawmill Saloon and demanded to know who

       shot him. Whitley recounted several versions of what happened the night of the

       shooting and also said that everything he had told Detective Schemenaur

       during the interview was a lie.


[16]   A bifurcated jury trial was held on October 7 through October 9, 2019. During

       the first stage of the trial, Count IV, Level 4 felony unlawful possession of a

       firearm by a serious violent felon, was submitted to the jury as possession of a

       firearm. A redacted version of Whitley’s videotaped statement was played for

       the jury. Whitley objected to two portions of the statement and argued that they

       should be redacted. The first was a statement by Detective Schemenaur in

       which the detective said, “I believe you had a gun and you shot people.” Ex.

       Vol., State’s Exhibit 163, 1:25:15; Tr. Vol. III, pp. 141, 144–146. The trial court


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 6 of 15
       admitted the statement over Whitley’s objection. The second was a statement

       by Whitley himself, in which he said, “They say I went up the dude’s driveway,

       I didn’t go up no [expletive] driveway.” Ex. Vol, State’s Exhibit 163, 1:08:55;

       Tr. Vol. III, p. 143. This statement was also admitted over Whitley’s objection.


[17]   The jury found Whitley guilty on all four counts. The State declined to seek an

       enhancement of the firearm possession count at a second stage of trial and

       asked that it be dismissed. A sentencing hearing was held on October 31, 2019.

       Whitley was sentenced to an aggregate 119-year term of imprisonment: fifty-

       five years for each count of murder and nine years for Level 3 felony aggravated

       battery, all to be served consecutively. This appeal followed. Additional facts

       will be provided as necessary.


                                      Discussion and Decision
[18]   Whitley presents two issues for our review. He asserts that the trial court abused

       its discretion in its admission of evidence, namely, that statements made during

       his videotaped interview with Detective Schemenaur constituted inadmissible

       hearsay. And, he argues that the State presented insufficient evidence to prove

       that Whitley was responsible for the murder of James Ratcliffe. We address

       each issue in turn.


                                              I. Abuse of Discretion

[19]   We review challenges to a trial court’s evidentiary rulings for abuse of

       discretion because the trial court has inherent “discretionary power on the

       admission of evidence.” Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015). Reversal

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 7 of 15
       of a trial court’s decision to admit evidence is warranted where it amounts to an

       abuse of discretion. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012).

       Abuse of discretion occurs only where the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before it. Ballard v. State, 877

       N.E.2d 860, 861–62 (Ind. Ct. App. 2007). Whitley claims that the trial court

       abused its discretion in the admission of evidence on two occasions.


[20]   First, Whitley argues that the trial court abused its discretion in admitting a

       statement made by Detective Schemenaur during Whitley’s videotaped

       interview. Specifically, when Whitley asked, “[d]o you know if I told you some

       untrue stuff? Which part?” Detective Schemenaur responded, “I believe you

       had a gun and you shot people.” Ex. Vol., State’s Ex. 163 at 1:25:13. Whitley

       asserts that the admission of this statement violated Ind. Evidence Rule 704(b).

       The rule provides that “[w]itnesses may not testify to opinions concerning

       intent, guilt, or innocence in a criminal case; the truth or falsity of allegations;

       whether a witness has testified truthfully; or legal conclusions.” Witnesses are

       restricted to “observable fact, leaving any appropriate conclusions as to intent,

       belief, or feelings to the trier of fact.” Weaver v. State, 643 N.E.2d 342, 345 (Ind.

       1994).


[21]   Whitley contends that the detective’s statement about his belief regarding

       Whitley’s involvement in the Sawmill Saloon shooting was an “inappropriate[]

       assert[ion] . . . of Whitley’s guilt.” Appellant’s Br. at 13. Thus, Whitley argues,

       its admission into evidence was an impermissible invasion of the factfinding

       role of the jury and violated Evidence Rule 704(b). We disagree.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 8 of 15
[22]   Hearsay is “a statement that is not made by the declarant while testifying at the

       trial or hearing and is offered in evidence to prove the truth of the matter

       asserted.” Evid. R. 801(c). “A statement is not hearsay if it is not used to prove

       the truth of the matter asserted.” Smith v. State, 721 N.E.2d 213, 216 (Ind.

       1999). On the matter of police questions and comments in interviews, our

       supreme court has noted that such statements “may be designed to elicit

       responses from the defendant and if so, are ‘not offered as proof of the facts

       asserted therein.’” Id. (quoting Strong v. State, 538 N.E.2d 924, 928 (Ind. 1989)).

       Accordingly, such prompting statements are not hearsay. See Lehman v. State,

       926 N.E.2d 35, 38 (Ind. Ct. App. 2010) (holding that an officer’s questions were

       designed to prompt the defendant to speak and thus not hearsay and not

       introduced to prove the truth of the matter asserted), trans. denied; see also

       Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996) (reasoning that a defendant’s

       responses to prompting statements constitute the real “evidentiary weight of the

       conversation”).


[23]   Whitley struck an evasive tone in his interview with Detective Schemenaur,

       repeatedly challenging the detective to divulge more of what he knew about

       Whitley’s involvement in the shooting, while avoiding saying what he had

       done. It was in response to one of Whitley’s numerous requests for information

       that Detective Schemenaur replied with what he thought Whitley had done, in

       an effort to prompt Whitley to abandon his obfuscations and tell the detective

       what happened that night.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 9 of 15
[24]   This dynamic is analogous to an exchange that our supreme court held was

       properly admitted into evidence in Strong, 538 N.E.2d at 928. In that case, a

       detective asserted in an interview that he thought the defendant’s story did not

       match the evidence the detective had. The statement was admitted into

       evidence over the defendant’s hearsay objection. The court agreed that the

       statement was not hearsay because it was not offered as proof of the facts that

       the detective asserted. Rather, the court found that the detective’s statement was

       meant to prompt the defendant into being truthful. Here, Detective Schemenaur

       similarly asserted that he thought Whitley was involved in the shooting to a

       greater extent than what Whitley had so far described, in an effort to prompt

       Whitley to be truthful. And in fact, a short time later in the interview, Whitley

       admitted that he “found” a gun and shot it that night at the Sawmill Saloon.

       Ex. Vol., State’s Exhibit 163 at 1:32:25–1:34:30. And whereas in Strong, the trial

       court granted the defendant’s request to give a limiting instruction to the jury

       regarding the detective’s statement, Whitley made no such request and the trial

       court had no affirmative duty to admonish the jury. Smith, 721 N.E.2d at 216.


[25]   We agree with the State that Detective Schemenaur’s statement was meant to

       elicit a response from Whitley and to “see if he would change his story again.”

       Appellee’s Br. at 12. The statement was shown to the jury to reveal how

       Whitley’s story changed as he gleaned information from the detective about the

       status of the IMPD’s investigation into the shooting. The statement was a

       prompting statement by an officer that was not offered at trial as proof of the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 10 of 15
       facts asserted therein. Accordingly, the trial court did not abuse its discretion in

       admitting the statement into evidence over Whitley’s objection.


[26]   Second, Whitley argues that the trial court abused its discretion in admitting a

       statement he made during the interview because it was inadmissible hearsay.

       During his interview, Whitley refuted a detail that he had read in the probable

       cause affidavit. The affidavit included, in relevant part, Brandenburg’s

       statements to police on the night of the shooting, including that he saw a man

       “cut up a driveway, jump[] two fences, and [fall] in an alley[.]” Appellant’s

       Conf. App. p. 20. In the interview, Whitley stated “they say I went up the

       dude’s driveway, I didn’t go up no [expletive] driveway.” Ex. Vol., State’s Ex.

       163 at 1:08:55. At trial, Whitley objected to the admission of the statement as

       hearsay. The State contended that it went to Whitley’s state of mind and was

       not offered to prove the truth of the matter asserted. The trial court admitted the

       statement over Whitley’s objection.


[27]   Whitley contends that the trial court erred in admitting the statement because it

       repeated Brandenburg’s out-of-court assertion of fact. We agree with the State

       that Whitley’s statement that “they say I went up the dude’s driveway” was not

       offered to prove the truth of the matter. Rather, it was offered to show

       Whitley’s reaction—that is to say, his state of mind during the interview—to

       the contents of the probable cause affidavit. As discussed previously, this was

       part of Detective Schemenaur’s effort to prompt Whitley into telling him what

       happened, as opposed to allowing Whitley to continue demanding that the

       detective tell him what others said had happened.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 11 of 15
[28]   Whitley’s challenge to the admission of his statement is further weakened

       because the second half of his statement, “I didn’t go up no [expletive]

       driveway,” is not hearsay, even if it had been offered to prove the truth of the

       matter. It is a statement about Whitley’s own actions and does not involve a

       comment on out-of-court statements made by any other person.


[29]   In short, the trial court’s admission of Whitley’s statement did not constitute an

       abuse of discretion because it was not offered to prove the truth of the matter

       asserted therein, and because at least part of the statement was not hearsay at

       all.


                                          II. Sufficiency of Evidence

[30]   Whitley also argues that the evidence was insufficient to prove beyond a

       reasonable doubt that he murdered Ratcliffe, the former security guard who was

       shot while trying to break up the fight. Our review of a challenge to the

       sufficiency of evidence to support a criminal conviction respects the factfinder’s

       exclusive province to weigh conflicting evidence. Miller v. State, 106 N.E.3d

       1067, 1073 (Ind. Ct. App. 2018), trans. denied. Accordingly, we neither reweigh

       the evidence nor judge the credibility of witnesses but consider only the

       probative evidence in support of the judgment and reasonable inferences drawn

       therefrom. Id. It is not necessary that the evidence “overcome every reasonable

       hypothesis of innocence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995). We will

       affirm the conviction unless no reasonable factfinder could find the elements of

       the offense proven beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144,

       146 (Ind. 2007).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 12 of 15
[31]   Murder is the knowing or intentional killing of another human being. Ind. Code

       § 35-42-1-1(1). “A person engages in conduct ‘knowingly’ if, when he engages

       in the conduct, he is aware of a high probability that he is doing so.” I.C. § 35-

       41-2-2(b). Whitley contends that his conviction for the murder of Ratcliffe

       cannot be sustained because “no one saw [him] shoot Ratcliffe,” whereas the

       State presented eyewitness testimony that Whitley fired the shots that struck

       Anthony and Deron. Appellant’s Br. p. 16.


[32]   Evidence of Whitley’s participation in the gunfight is plentiful: Asia and

       Anthony identified Whitley as the man who emerged from behind a corner of

       the bar and shot at the group of people fighting on the ground; Anthony

       described returning fire in Whitley’s direction and striking him; and Whitley

       sustained a gunshot wound to his upper leg. Asia corroborated that the security

       guard fired in Whitley’s direction and struck him in the upper leg. Asia and

       Brandenburg testified that they saw a man, who Asia identified as Whitley, get

       shot in the upper leg; Brandenburg described the man running through his front

       yard, being shot, briefly dropping his gun, and then recovering enough to

       retrieve the gun, return fire, and attempt to escape. Whitley’s blood was found

       on the fence to Brandenburg’s backyard, and a discarded gun was discovered in

       his backyard. Whitley was attended to by EMTs in an alley near Brandenburg’s

       home. Asia, Anthony, and Brandenburg described the shooter as wearing a red

       shirt; Whitley was discovered wearing a red shirt, and Anthony was not.

       Finally, in his interview with Detective Schemenaur, Whitley admitted to




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 13 of 15
       getting a gun and shooting at people. Thus, the State presented incontrovertible

       evidence that Whitley fired and was fired upon outside the Sawmill Saloon.


[33]   Whitley’s contention, then, that evidence of there being multiple shooters

       undermines the conclusion that he was the shooter responsible for Ratcliffe’s

       murder is to no avail. The State presented evidence that two men wielded and

       fired weapons on January 28, 2018: Whitley and Anthony, the security guard

       who admitted to firing a gun that night despite being legally prohibited from

       possessing a weapon. Anthony testified that Ratcliffe, a former security guard,

       assisted him in trying to break up the fight between Marion and Deron in the

       parking lot. When he was shot, Ratcliffe fell and was later recovered in the

       street near to where Deron’s dead body lay. It is reasonable to infer based on

       Anthony’s testimony and based on where the men fell that Anthony, Deron,

       and Ratcliffe were all near one another when they were shot. Their proximity

       supports the inference that they were all struck by bullets fired from the same

       shooter, Whitley. Furthermore, bullets and bullet fragments recovered from

       Anthony, Deron, and Ratcliffe indicated that all of the bullets were fired from

       the same gun. And those bullets were determined to have been fired from the

       weapon recovered in Brandenburg’s backyard. Additionally, Anthony testified

       and Asia corroborated that he fired only once or twice in Whitley’s direction.

       While Anthony’s and Ratcliffe’s proximity to one another could give rise to the

       hypothesis that one of Anthony’s shots hit Ratcliffe, that proposition is

       undermined by the bullet fragment evidence and by the sheer volume of shots




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 14 of 15
       intentionally fired into the crowd by Whitley as compared to the few

       intentionally fired at Whitley by Anthony.


[34]   The State presented evidence well beyond Whitley’s “[m]ere presence at the

       crime scene with the opportunity to commit a crime,” and thus the evidence is

       sufficient to sustain his conviction. See Brink v. State, 837 N.E.2d 192, 194 (Ind.

       Ct. App. 2005), trans. denied. Because we decline to reweigh evidence or judge

       witness credibility when reviewing a challenge to the sufficiency of evidence,

       we will not disturb the jury’s conclusion based on the evidence presented here

       that Whitley was responsible for Ratcliffe’s murder.


                                                 Conclusion
[35]   We hold that the trial court’s admission into evidence of statements made by

       Detective Schemenaur and Whitley during the police interview did not

       constitute an abuse of discretion. And, Whitley has not persuaded us that the

       evidence presented was insufficient to support his conviction for the murder of

       James Ratcliffe. For these reasons, we affirm the trial court’s judgment.


[36]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2833 | August 31, 2020   Page 15 of 15
