Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                                       GREGORY F. ZOELLER
Office of the Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                            JODI KATHRYN STEIN
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

                                                                                     FILED
                                                                                  Jan 22 2013, 9:10 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                            CLERK
                                                                                          of the supreme court,
                                                                                          court of appeals and
                                                                                                 tax court




AARON DI-SHON WINDOM,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 45A03-1206-CR-253
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Thomas P. Stefaniak, Jr., Judge
                                Cause No. 45G04-1103-FA-8


                                         January 22, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Aaron Di-Shon Windom (“Windom”) appeals his convictions for two counts of

Attempted Battery, as Class C felonies,1 and one count of Criminal Recklessness, a Class C

felony.2 We affirm.

                                               Issue

          Windom presents a single issue for review: Whether the trial court abused its

discretion in admitting testimony that Windom had been captured submerged in water after a

high speed police chase and dog tracking.

                                    Facts and Procedural History

          On February 17, 2011, Robert Lyons (“Lyons”) was driving a vehicle on Highway I-

80/94 and Brenda Driver (“Driver”) was a passenger in the back seat, attending to their two-

month-old infant in his car-seat. When Lyons’ vehicle was in the far left lane, a silver Dodge

Charger rapidly approached and the driver flashed his lights. Lyons responded by “flipping

off” the driver of the Charger. (Tr. 157.)

          Driver watched as the silver Charger pulled beside the vehicle Lyons was driving.

She saw the driver’s face and observed that he had a gun. Driver warned Lyons and put her

arm and head over the car-seat to shield her infant son. The Charger slowed and moved into

a position that was diagonal to Lyons’ vehicle. Driver and Lyons then heard multiple shots.

Lyons pulled over to the side of the road and called 9-1-1. The Charger sped away.



1
    Ind. Code § 35-42-2-1, § 35-41-5-1.
2
    Ind. Code § 35-42-2-2.

                                                 2
Although Lyons, Driver, and their infant son were unharmed, at least eight bullets had struck

their vehicle.

         Driver assisted a police artist in constructing a composite sketch of the shooter, and

the police issued a bulletin with the composite sketch and a description of the Charger.

During the ensuing investigation, Lyons viewed a photographic lineup and was able to

identify Windom as the shooter.

         Five days after the shooting, Indiana State Trooper Sean Swaim (“Trooper Swaim”)

received information from Fountain County authorities that a silver Charger matching the

description of the one involved in the shooting was traveling on Interstate 74. As Trooper

Swaim encountered the vehicle, he saw that the right front tire appeared to have encountered

stop sticks and was shredding. He pursued the vehicle as it traveled at speeds ranging from

80 to 100 miles per hour. The Charger was driven off the side of the highway and into a

ditch.

         Trooper Swaim saw the driver, armed with a gun, exit the vehicle and run into the

woods. Assisted by other officers, he obtained a tracking dog to pursue the suspect, and the

dog alerted upon arrival at a log in a creek. The police located Windom submerged in the

water under the log where the tracking dog had alerted. An Indiana State Police dive team

was able to retrieve a gun from the water near the log. DNA testing revealed that Windom’s

DNA had been deposited upon the abandoned Charger’s interior, and forensic testing

revealed that shell casings inside the Charger had been fired from the pistol retrieved from




                                               3
the creek.3

          The State charged Windom with three counts each of Attempted Murder, Attempted

Battery, and Criminal Recklessness. The State also alleged him to be a habitual offender.

Windom was brought to trial before a jury trial on March 29, 2012. During opening

argument, Windom’s counsel admitted that there were three eyewitnesses (Lyons, Driver, and

Windom’s passenger) to the shooting and that Windom had in fact fired a gun into Lyons’

vehicle. However, counsel argued that Windom’s actions had been reckless as opposed to

intentional.

          The jury acquitted Windom of Attempted Murder and one of the Attempted Battery

counts but convicted him of two counts of Attempted Battery and three counts of Criminal

Recklessness. Windom admitted his status as a habitual offender. The trial court entered a

judgment of conviction on each of the Attempted Battery convictions and a single count of

Criminal Recklessness. Windom was sentenced to five years imprisonment for each

Attempted Battery conviction, to be served consecutively, and nineteen months for the

Criminal Recklessness conviction. He received a ten-year sentence enhancement due to his

habitual offender status, providing for an aggregate sentence of twenty years. This appeal

ensued.

                                        Discussion and Decision

          Windom contends that the trial court erred in admitting evidence of his flight and

capture. Conceding that flight could show consciousness of guilt in some circumstances, he


3
    Bullet fragments recovered from Lyons’ vehicle could not be conclusively matched to the pistol.

                                                      4
argues that it is logical to assume that he was evading capture on a murder charge in an

unrelated case as opposed to the Lyons shooting.4 Based upon this assumption that the flight

was irrelevant to the instant charges, Windom then argues that the challenged evidence

encouraged the jury to find him to be of poor character and to convict him of intentional

conduct instead of merely reckless conduct.

       A trial court has broad discretion in ruling on the admissibility of evidence. Camm v.

State, 908 N.E.2d 215, 225 (Ind. 2009). We will reverse the trial court’s decision only when

it is clearly against the facts and circumstances before the court; moreover, even if the trial

court abused its discretion in admitting evidence, the judgment will be undisturbed if the

decision to admit evidence is harmless error. Granger v. State, 946 N.E.2d 1209, 1213 (Ind.

Ct. App. 2011). “Harmless error occurs ‘when the conviction is supported by such

substantial independent evidence of guilt as to satisfy the reviewing court that there is no

substantial likelihood that the questioned evidence contributed to the conviction.’” Id.

(quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)). Accordingly, we reverse only

when the record as a whole discloses that the evidence admitted in error likely had a

prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Id.

       Windom claims that the trial court admitted the flight and capture evidence in

violation of Evidence Rule 404(b), which provides in relevant part:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,


4
 On February 19, 2011, Windom’s friend was shot to death. The State charged Windom with Murder and
Windom alleged self-defense.

                                                5
       however, be admissible for other purposes, such as proof of motive, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident[.]

       Evidence of extrinsic offenses poses the danger that the jury will convict the

defendant because he or she is a person of bad character generally, or has a tendency to

commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The rationale for the

prohibition against bad act and character evidence is that the jury is precluded from making

the forbidden inference that the defendant had a criminal propensity and therefore engaged in

the charged conduct. Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). When a defendant

objects to the admission of evidence on the grounds that it violates Rule 404(b), and specific

acts evidence is offered for “other purposes,” the trial court is to:

       determine that the evidence of other crimes, wrongs, or acts is relevant to a
       matter at issue other than the defendant’s propensity to commit the charged act
       … determine that the proponent has sufficient proof that the person who
       allegedly committed the act did, in fact, commit the act … and third, balance
       the probative value of the evidence against its prejudicial effect pursuant to
       Rule 403.

Camm, 908 N.E.2d at 223.

       Here, however, the State did not offer specific act evidence extrinsic to the charged

crime. “Flight and related conduct may be considered by a jury in determining a defendant’s

guilt.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). Windom provides no authority for

the exclusion of such evidence where a defendant is fleeing from multiple prosecutions. Too,

evidence of an accused person’s “guilty knowledge” is relevant evidence. Johnson v. State,

472 N.E.2d 892, 910 (Ind. 1985). As such, evidence of attempts to conceal or suppress

implicating evidence is admissible. See id. Accordingly, evidence that Windom abandoned


                                               6
the Charger, fled, and hid his gun in creek waters was admissible for a purpose other than to

merely show his propensity to engage in wrongful acts. Windom has demonstrated no abuse

of discretion in the admission of evidence.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




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