MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                 Feb 19 2020, 10:22 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah K. Smith                                         Curtis T. Hill, Jr.
Thorntown, Indiana                                       Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Damoine Wilcoxson,                                       February 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1021
        v.                                               Appeal from the Boone Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew C.
Appellee-Plaintiff.                                      Kincaid, Judge
                                                         Trial Court Cause No.
                                                         06D01-1610-MR-249



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020               Page 1 of 10
                                       Statement of the Case
[1]   Damoine Wilcoxson appeals his conviction for murder, a felony, following a

      bench trial. He presents two issues for our review:


              1.       Whether the trial court abused its discretion when it
                       admitted evidence of his prior bad acts.

              2.       Whether the trial court abused its discretion when it
                       sentenced him.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 12:30 p.m. on September 28, 2016, John Clements, an eighty-

      two-year-old resident of Zionsville, was outside his house getting his mail when

      an African-American man driving a white Chevrolet Impala drove by and shot

      him multiple times. Three of Clements’ neighbors heard the shots and saw the

      white car drive away. One of those neighbors, Kaitlin Wefler, found Clements

      lying on his driveway. Officers with the Zionsville Police Department (“ZPD”)

      were notified and arrived at the scene, where they found four .223-caliber shell

      casings on Clements’ driveway. Clements died as a result of the gunshot

      wounds.


[4]   In the ensuing weeks, on October 4 and 13, someone “shot up” the

      Indianapolis Metropolitan Police Department (“IMPD”) buildings for the

      Northwest and North districts in Indianapolis. Wilcoxson v. State, 132 N.E.3d

      27, 29 (Ind. Ct. App. 2019) (“Wilcoxson I”), trans. denied. Investigating officers

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 2 of 10
      recovered thirty .223-caliber shell casings outside of the Northwest District

      building and sixteen .223-caliber shell casings outside of the North District

      building. Officers also found handwritten notes outside of each building after

      the shootings that contained “threats against ‘white’ people and references to

      ‘Yahuah.’” Id. Forensic analysis revealed that the same gun was used to fire

      the bullets in both of the incidents at the IMPD buildings, and DNA, later

      matched to Wilcoxson, was found on one of the shell casings from each

      incident.


[5]   On October 31, an IMPD SWAT team executed an arrest warrant for

      Wilcoxson at his apartment. Wilcoxson fired a gun at the officers as they

      entered the apartment, but he ultimately surrendered. During a search of

      Wilcoxson’s apartment, officers found a rifle, which forensic analysis revealed

      had been used in Clements’ murder, the IMPD building shootings, and during

      the SWAT team’s entry of his apartment. In addition, a handwriting analysis

      indicated that Wilcoxson had written the notes left at the IMPD buildings.


[6]   The State charged Wilcoxson with Clements’ murder in Boone County and

      separately charged him with the IMPD shootings in Marion County. Prior to

      trial on Clements’ murder, the State indicated its intent to submit evidence

      related to the shootings at the IMPD buildings and at Wilcoxson’s apartment,

      which occurred in the weeks after Clements’ murder, “for the purposes of

      identifying [Wilcoxson] as the person who used the [same] gun at the time of

      Mr. Clements’ murder and to prove [Wilcoxson’s] motive, opportunity, intent

      and plan in this case.” Appellant’s App. Vol. 2 at 90. Following a hearing, the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 3 of 10
      trial court ruled that the State would be permitted to introduce evidence at trial

      related to the other shootings as “relevant on the question of identity of the

      perpetrator of the crime in this cause[.]” Id. at 107. At trial, Wilcoxson argued

      that the State could not prove that he was the person who shot and killed

      Clements. At the conclusion of a bench trial, the court found Wilcoxson guilty

      as charged, entered judgment of conviction accordingly, and sentenced

      Wilcoxson to sixty-five years executed. The trial court ordered that this

      sentence run consecutive to Wilcoxson’s forty-year sentence (thirty-seven years

      executed and three years suspended to probation) for the Marion County

      shootings. This appeal ensued.


                                     Discussion and Decision
                                    Issue One: Evidence Rule 404(b)

[7]   Wilcoxson contends that the trial court abused its discretion when it admitted

      evidence including “detailed witness accounts from law enforcement regarding

      the specific facts of the offenses that occurred on October 4, 2016, October 13,

      2016, and October 31, 2016” in Marion County. Appellant’s Br. at 23.

      Wilcoxson maintains that that evidence was inadmissible evidence of prior bad

      acts under Indiana Evidence Rule 404(b). As we explained in Wilcoxson’s

      appeal from his Marion County convictions:


              [Evidence Rule 404(b)] 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,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 4 of 10
              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).


      Wilcoxson I, 132 N.E.3d at 31.


[8]   We do not reach the merits of Wilcoxson’s argument on this issue because he

      failed to preserve it for our review. It is well settled that a contemporaneous

      objection at the time the evidence is introduced at trial is required to preserve

      the issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); see also

      Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a

      contemporaneous objection to the admission of evidence at trial results in

      waiver of the error on appeal.”). The purpose of this rule is to allow the trial

      judge to consider the issue in light of any fresh developments and also to correct

      any errors. Brown, 929 N.E.2d at 207. When a defendant fails to object to

      allegedly inadmissible evidence the first time it is offered, no error is preserved.

      Jenkins v. State, 627 N.E.2d 789, 797 (Ind. 1993). Further, a defendant may not



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 5 of 10
       present one ground for an objection at trial and assert a different one on appeal.

       Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002).


[9]    Here, Wilcoxson directs us to two objections he made to the alleged bad acts

       evidence at trial, but neither one was timely, and neither one alleged a violation

       of Evidence Rule 404(b). In particular, Wilcoxson first objected to testimony

       by Erica Christensen, a crime scene specialist with the Marion County Crime

       Lab who testified regarding the evidence she found at Wilcoxson’s apartment

       after his arrest, including the rifle he used to murder Clements. Wilcoxson

       objected to her testimony as irrelevant, but he made no objection based on

       Evidence Rule 404(b).


[10]   Then, after the State’s direct examination of Amanda Smet, another crime scene

       specialist, Wilcoxson stated as follows:


               I object to everything that she, all she did was take a picture of
               the scene and she don’t know when it occurred or et cetera and I,
               they’re just showin’ pictures, that’s what they’re doing, they just
               showin’ little evidence of any, takin’ pictures of things and she
               don’t know even know why she went out there. Every, I object
               to everything they’re doing here Your Honor. It doesn’t show
               the relevance of what we’re here for or not.


       Tr. Vol. 2 at 191-92. The trial court overruled that objection, and Smet was

       excused and the State called its next witness. At that point, Wilcoxson said,

       “Your Honor, if you don’t mind, could they show the relevancy of the . . . what

       they showing today that took place years ago in Indianapolis, what is the

       relevancy of this doing with this case here today?” Id. at 192. The trial court

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 6 of 10
       responded, “The Court has admitted the evidence, it has conducted a hearing

       on 404(b) evidence and has ruled on this subject matter previously and so the

       Court has made its evidentiary rulings and I think the record is preserved.” 1 Id.


[11]   In sum, Wilcoxson did not make contemporaneous objections to the challenged

       evidence. Neither did Wilcoxson make a continuing objection. And he did not

       make a single objection at trial based on Evidence Rule 404(b). Thus, even if

       his objections based on relevance had been timely, they were insufficient to

       preserve the Rule 404(b) issue for our review. See Lashbrook, 762 N.E.2d at 759

       (holding Evidence Rule 404(b) issue waived on appeal where defendant

       objected based on relevance at trial). We hold that Wilcoxson has waived the

       issue of whether the trial court abused its discretion when it admitted the

       challenged evidence at trial. 2 See id.


                                                Issue Two: Sentence

[12]   Wilcoxson next contends that the trial court abused its discretion when it

       sentenced him. Sentencing decisions lie within the sound discretion of the trial

       court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of

       discretion occurs if the decision is “clearly against the logic and effect of the

       facts and circumstances before the court, or the reasonable, probable, and actual




       1
        We reject Wilcoxson’s assertion that this comment indicates that the trial court “was not apt to change its
       mind.” Appellant’s Br. at 31. The contemporaneous and specific objection rules are clear and immutable.
       2
           Wilcoxson neither alleges nor demonstrates fundamental error in the admission of that evidence.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020                Page 7 of 10
       deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[13]   A trial court abuses its discretion in sentencing if it does any of the following:


               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[14]   The sentencing range for a murder conviction is forty-five to sixty-five years,

       with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3 (2019).

       Here, at sentencing, the trial court identified the following aggravating factors:

       Wilcoxson’s criminal history, including a prior conviction for attempted murder

       and a probation violation; Clements’ age and the fact that Clements was the

       primary caregiver for his disabled wife; Wilcoxson’s “character for hatred and

       violence,” including his “espous[al of] hatred” towards white people; and the

       facts and circumstances of Clements’ murder, which the court described as

       “terroristic.” Appellant’s App. Vol. 2 at 39-40. The trial court found

       Wilcoxson’s young age as a mitigating factor entitled to “minimal weight.” Id.

       at 41. After weighing the aggravators and mitigators, the trial court imposed a



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 8 of 10
       sixty-five-year sentence to be served consecutively to Wilcoxson’s sentence for

       the Marion County shootings. As the court explained,


               [r]unning the sentence in this case concurrent with the sentence
               out of Marion County would stand for the proposition that if one
               undertakes a terroristic spree of murdering and attempting to
               murder people several times over a few weeks that such a
               miscreant stands to be punished only once. That is unacceptable.
               It is contrary to the rule of law and to a civil peaceful society.
               Aware that that total length of incarceration for the Defendant on
               this and [his sentence in Marion County] is 102 years, the Court
               FINDS that the imposition of the sentence in this case
               consecutive with that of [the Marion County case] is warranted.


       Id. at 42.


[15]   Wilcoxson contends that the sentencing order “does not support the finding of

       the maximum sentence for murder,” and he states that he “would argue that the

       imposition of consecutive sentences for the Boone case and Marion County

       cases were not supported by the sentencing order and that any sentence

       imposed by Boone County should be concurrent [with] the Marion County

       cases.” Appellant’s Br. at 32, 34. Wilcoxson has not satisfied his burden on

       appeal to show an abuse of discretion.


[16]   First, Wilcoxson does not make cogent argument in support of a reduced

       sentence. To the extent he suggests that the trial court gave too much weight to

       his “character evidence” related to the alleged Evidence Rule 404(b) evidence,

       Wilcoxson’s argument is not well taken. We will not reweigh aggravators and

       mitigators on appeal. See Anglemyer, 868 N.E.2d at 491. Second, we reject

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 9 of 10
       Wilcoxson’s attempt to analogize the aggravators and mitigators in this case to

       those in Landers v. State, 762 N.E.2d 1208 (Ind. 2002), where our Supreme

       Court reversed the trial court’s imposition of consecutive sentences based on

       significant mitigators. Wilcoxson emphasizes his youth and that he is a father

       to young children. But the trial court gave minimal weight to his youth and no

       weight to his fatherhood. And the aggravators, especially the unimaginable

       impact of Clements’ senseless murder on his disabled wife, clearly warrant the

       imposition of consecutive sentences. The trial court did not abuse its discretion

       when it sentenced Wilcoxson.


[17]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020   Page 10 of 10
