MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Sep 13 2018, 10:13 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott King                                               Curtis T. Hill, Jr.
Russell W. Brown, Jr.                                    Attorney General of Indiana
King, Brown & Murdaugh, LLC
Merrillville, Indiana                                    Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Gerron,                                          September 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-393
        v.                                               Appeal from the La Porte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff.                                      Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1612-MR-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018                  Page 1 of 9
                                        Statement of the Case
[1]   Charles Gerron appeals his conviction for murder, a felony. Gerron raises four

      issues for our review, which we restate as the following two issues:


              1.       Whether the trial court abused its discretion in the
                       admission of certain evidence.


              2.       Whether the State presented sufficient evidence to support
                       his conviction.


[2]   We affirm.1


                                  Facts and Procedural History
[3]   On July 24, 2011, three girls held a joint Sweet-16 birthday party at Krueger

      Memorial Hall in Michigan City. About 125 people attended, including

      numerous other teenagers. Gerron, a juvenile at the time, attended, as did

      fellow juveniles Cameron Kent, Skyiesha Pender, Ne’Keisha Hodges, James

      Sanders, Michael Cooper, and Jamiela Hodges. Prior to the party that day,

      Kent had seen Gerron with a .38 caliber handgun. And, at the party, Pender

      observed Gerron with a revolver.


[4]   Around 11:00 p.m., the party ended, and a large group of guests—about

      twenty-five to thirty people, including Kent, N. Hodges, and Sanders—began




      1
       Gerron also argues on appeal that he should be released from incarceration “upon remand” under Indiana
      Criminal Rule 4(A). Appellant’s Br. at 19. However, as we affirm Gerron’s convictions and do not remand,
      we need not consider that argument.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018             Page 2 of 9
      walking away from the building and downhill toward Springland Avenue.

      Cooper also left the party and found Gerron near a moped. Gerron stated that

      “[h]e needed the moped started just in[ ]case somethin[g] happened.” Tr. Vol.

      III at 101. Cooper left Gerron and joined the crowd walking toward Springland

      Avenue.


[5]   Gerron then shot his firearm into the crowd three times. Gerron struck and

      killed N. Hodges. He struck and wounded Sanders. Both injuries

      demonstrated a downward trajectory consistent with the shot having been fired

      from a higher elevation. The wounds were inflicted with a .38-caliber bullet.

      Immediately after firing the shots, Gerron ran past Cooper and said, “I just shot

      that n****r,” referring to Sanders. Id. at 106. Cooper then saw Gerron run

      toward his moped. J. Hodges also saw Gerron running after the shots and

      heard him say, “Come on brah we just shot somebody.” Tr. Vol. IV at 250.


[6]   Cooper rode home with Gerron’s mother. Gerron’s cousin, Jerry Lemons, was

      also in the vehicle. While in the car, Cooper told Lemons that Gerron had shot

      N. Hodges and Sanders. The three then went to Lemons’ house, and Gerron

      was there when they arrived. Lemons asked Gerron if Gerron had shot N.

      Hodges and Sanders, and Gerron said, “yeah, I shot three times.” Tr. Vol. III

      at 116. When Lemons told Gerron that Gerron had killed N. Hodges, Gerron

      “asked for some bleach” to “wash his hands.” Id.


[7]   On December 20, 2016, the State charged Gerron with murder, a felony.

      During Gerron’s ensuing jury trial, the State moved to admit a video-recorded


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 3 of 9
      interview police had conducted with Gerron and Gerron’s mother. Gerron

      objected to the interview on the basis that the statements of Gerron’s mother

      during that interview were inadmissible hearsay. The trial court overruled

      Gerron’s objection, but the court instructed the jury that the statements of

      Gerron’s mother in that exhibit “are not testimony or evidence” and


              may only be considered for the purpose of showing . . . the
              context of the defendant’s comments to the extent that he
              responded . . . . You may consider only the statements of the
              defendant as evidence . . . and cannot consider the statements of
              the defendant’s mother . . . as evidence.


      Tr. Vol. VI at 73-74. The court repeated its instruction during its final

      instructions to the jury.


[8]   Also during Gerron’s trial, the State moved to admit evidence of prior bad acts

      under Indiana Evidence Rule 404(b). Specifically, the State sought to admit

      evidence to show that, thirty-four days prior to the shooting, Gerron had been

      admitted to a local hospital’s emergency room after a firearm he had been

      carrying in his pants discharged and wounded him. The State’s evidence also

      showed that, in the course of a police investigation into that incident, Gerron

      had lied to an investigating officer by stating that he had been shot by a third

      party. The trial court admitted the State’s 404(b) evidence over Gerron’s

      objection.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 4 of 9
[9]    Following the trial, the jury found Gerron guilty of murder, a felony. The trial

       court entered its judgment of conviction and sentenced Gerron accordingly.

       This appeal ensued.


                                      Discussion and Decision
                                    Issue One: Admission of Evidence

[10]   On appeal, Gerron first asserts that the trial court abused its discretion in the

       admission of evidence. We review a trial court’s evidentiary rulings “for an

       abuse of discretion.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). “An abuse

       of discretion occurs when the ruling is clearly against the logic and effect of the

       facts and circumstances.” Id. Here, Gerron asserts that the trial court abused

       its discretion when it admitted the unredacted, video-recorded interview, which,

       Gerron argues, contained inadmissible hearsay from Gerron’s mother. Gerron

       also contends that the trial court abused its discretion when it admitted

       evidence of Gerron’s gunshot incident from thirty-four days prior to the

       shooting that resulted in the death of N. Hodges. We address each argument in

       turn.

                                                      Hearsay


[11]   Gerron first asserts that his mother’s statements in the video-recorded interview

       were inadmissible hearsay. Hearsay is a statement “not made by the declarant

       while testifying at the trial or hearing” that is “offered in evidence to prove the

       truth of the matter asserted.” Ind. Evidence Rule 801(c). Out-of-court

       statements offered for a reason other than to prove the truth of the matter

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 5 of 9
       asserted are not hearsay. See id.; Williams v. State, 930 N.E.2d 602, 608 n.3 (Ind.

       Ct. App. 2010), trans. denied. For example, we have recognized that an out-of-

       court statement is “nonhearsay” when it “merely provided context for [the

       defendant’s] own recorded statements.” Williams, 930 N.E.2d at 609.


[12]   Here, the trial court declined to order the State to redact Gerron’s mother’s

       statements from the interview because the court concluded that her statements

       were not being offered for their truth but, rather, for context to Gerron’s own

       recorded statements. Indeed, while on appeal Gerron isolates a handful of

       sentences from the lengthy interview, he ignores the interplay between him, his

       mother, and the investigating officers during the interview. As the State

       summarized to the trial court:


               there are all kinds of statements made during this interview, but
               all of them are necessary for the context of the interview. His
               mother responds to a question, [Gerron] responds to a question[,
               o]ften times elaborating upon or discussing what his mother has
               said. But it’s not offered for the truth of the matter asserted[.
               I]t’s offered for the context of the conversation generally.


       Tr. Vol. V at 197-98. We agree. As Gerron’s mother’s statements were not

       offered for the truth of the matters asserted, they were not hearsay.


[13]   Moreover, Gerron’s argument on appeal disregards the trial court’s limiting

       instruction, in which the court expressly instructed the jury that Gerron’s

       mother’s statements were not evidence, could not be considered as evidence,

       and were being admitted only to provide context to Gerron’s own statements.

       We presume the jury follows the trial court’s instructions. E.g., Harris v. State,
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 6 of 9
       824 N.E.2d 432, 440 (Ind. Ct. App. 2005). We cannot say that the trial court

       abused its discretion when it admitted Gerron’s mother’s statements for

       context, which admission the court coupled with a clear limiting instruction.

       We affirm the court’s admission of this evidence.

                                                  Prior Bad Acts


[14]   Gerron also contends that the trial court abused its discretion when it admitted

       evidence of the gunshot incident that occurred thirty-four days before N.

       Hodges’ death. Gerron’s specific argument on this issue is unclear, but it

       appears to be that the trial court abused its discretion under Indiana Evidence

       Rule 403. Under that Rule, a court “may exclude relevant evidence if its

       probative value is substantially outweighed by a danger of . . . unfair

       prejudice . . . .” Evid. R. 403. “[T]his balancing is committed to the trial

       court’s discretion,” and, where the unfair prejudice is “not so high that it

       overrode the trial court’s wide discretion,” we will not reverse. Snow, 77

       N.E.3d at 179. In other words, we will not “second-guess the trial court’s

       determination” under Rule 403 where the court “could have admitted or

       excluded” the evidence.” Id.


[15]   We cannot say that the danger of unfair prejudice here was so high that it

       overrode the trial court’s wide discretion under Rule 403. The evidence of the

       gunshot incident demonstrated that Gerron had access to a firearm and, thus,

       the opportunity to commit the crime alleged. See Evid. R. 404(b)(2). The trial

       court did not abuse its discretion when it admitted the evidence.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 7 of 9
                                 Issue Two: Sufficiency of the Evidence

[16]   Finally, Gerron argues that the State failed to present sufficient evidence to

       show that he committed murder, a felony. When reviewing a claim of

       sufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of the witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010).

       We look only to the probative evidence supporting the judgment and the

       reasonable inferences that may be drawn from that evidence to determine

       whether a reasonable trier of fact could conclude the defendant was guilty

       beyond a reasonable doubt. Id. If there is substantial evidence of probative

       value to support the conviction, it will not be set aside. Id.


[17]   To prove that Gerron committed murder, the State was required to show that

       Gerron knowingly or intentionally killed another human being. Ind. Code § 35-

       42-1-1(1) (2011). “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). “A knowing killing may be inferred from the use of a

       deadly weapon in a way likely to cause death.” Young v. State, 761 N.E.2d 387,

       389 (Ind. 2002).


[18]   According to Gerron, “[t]he State failed to present any evidence that Gerron

       knew . . . that when he fired three shots blindly down a hill into a

       crowd . . . that there was a high probability [N. Hodges] would die.”

       Appellant’s Br. at 20. We cannot agree. A reasonable trier of fact could readily

       conclude that Gerron knowingly killed N. Hodges when he fired a deadly

       weapon into a crowd. See Young, 761 N.E.2d at 389. Moreover, the State’s
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 8 of 9
       evidence demonstrated that Gerron had a .38 caliber firearm on his person at

       the party. The State’s evidence further demonstrated that, immediately before

       the shooting, Gerron had started his moped “in[ ]case somethin[g] happened,”

       Tr. Vol. III at 101, and that, immediately after the shooting, several witnesses

       observed him fleeing the scene while saying he had fired his gun into the crowd.

       And, later that night, when he learned of N. Hodges’ death, Gerron asked for

       bleach to wash his hands.


[19]   The State presented sufficient evidence to show that Gerron knowingly killed

       N. Hodges. We affirm his conviction for murder, a felony.


[20]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018   Page 9 of 9
