MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Jul 22 2020, 10:52 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   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
Kevin Wild                                                Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nikolas S. Shannon,                                       July 22, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1747
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Ruth D. Reichard,
Appellee-Plaintiff.                                       Senior Judge
                                                          Trial Court Cause No.
                                                          49G03-1711-MR-46360



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020              Page 1 of 23
                                        Statement of the Case
[1]   Nikolas Shannon appeals his convictions for murder, a felony, and robbery, as

      a Level 5 felony, following a jury trial. Shannon presents four issues for our

      review, which we revise and restate as follows:


              1.       Whether the trial court erred under Title III of the
                       Omnibus Crime Control and Safe Streets Act of 1968
                       when it allowed a witness to testify.

              2.       Whether the trial court abused its discretion when it
                       admitted certain photographs as evidence.

              3.       Whether the trial court abused its discretion when it
                       declined to instruct the jury on reckless homicide.

              4.       Whether the State presented sufficient evidence to support
                       his convictions.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On November 12, 2017, Jared Dowell picked up Darious Carson, and the two

      went to Shannon’s apartment complex so that Dowell could buy marijuana

      from Stefon McClendon, who is Shannon’s cousin. When they got there,

      Dowell backed his car into a parking space. Shortly thereafter, McClendon and

      his girlfriend, Vinettie Palmer, arrived, and McClendon parked his car near

      Dowell’s. Palmer then went into Shannon’s apartment. Also in the apartment

      were Shannon and his sister. While Palmer was in the apartment, McClendon

      got into the rear passenger side seat of Dowell’s car. McClendon and Dowell

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 2 of 23
      then began to argue about ten dollars that Dowell owed to McClendon. Dowell

      was “nonchalant” and “joking,” but McClendon was “angry” and felt

      “disrespected.” Tr. Vol. II at 191. McClendon tried to get Dowell to fight him,

      but Dowell refused. Dowell then paid McClendon $600 in exchange for one-

      quarter pound of marijuana.


[4]   Following the transaction, Dowell asked McClendon for a cigar that he could

      use to smoke some of the marijuana. McClendon agreed, and he exited the car

      and went into Shannon’s apartment. When he entered the apartment, Palmer

      noticed that McClendon was “irritated.” Tr. Vol. III at 174. Palmer then

      overheard a conversation between McClendon and Shannon, during which

      Palmer believed that McClendon told Shannon that he did not “get what he

      wanted” from Dowell. Id. at 178. Following that conversation, Shannon

      changed into black clothes, and he used “a black item” to “hid[e] a portion of

      his face.” 1 Id. at 215. Shannon then left the apartment through the back door,

      and McClendon left through the front door.


[5]   Approximately five minutes after McClendon had exited the car, Carson saw a

      man dressed in a black hoodie and a black mask walk toward him. The man

      walked to the driver’s side window and asked Dowell for a cigarette. Dowell

      complied, and the man stepped behind the car to smoke it. McClendon then

      returned to Dowell’s car and got into the rear passenger side seat. At the same



      1
        Palmer initially referred to the face covering as a “mask.” Id. at 175. However, she later referred to it as a
      “bandanna.” Id. at 183.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020                       Page 3 of 23
      time, the man in the mask opened the rear driver side door, pointed the gun at

      Dowell, and asked: “[h]ave you ever been robbed before.” Tr. Vol. II at 196.

      The man hit Dowell in the face with a pistol and reached his hand toward

      Dowell’s left pocket in order to grab the marijuana and “anything else” he

      could get. Id. at 197. During the struggle, the man’s mask was “pulled down,”

      and Carson observed that the man had “gold teeth.” Id. at 198. “[A]ll of the

      sudden,” Dowell put the car in drive, and the car “t[ook] off.” Id. at 197. The

      man in the mask “fell,” and the gun “went off,” hitting Dowell in the back. Id.

      at 198. Carson grabbed the steering wheel and pulled the car onto the curb. At

      that point, Carson called 9-1-1, and he saw the man in the mask run toward

      Shannon’s apartment.


[6]   A “couple of minutes” after Shannon and McClendon had left Shannon’s

      apartment, Shannon reentered through the back door. Tr. Vol. III at 183.

      Shannon told Palmer that he “had to shoot him because he was going to ride

      off with” McClendon, who was still sitting in the back seat of the car. Id. at

      184. Shannon then changed out of his clothes and told his sister and Palmer to

      go to a back room.


[7]   Officer Keith Hartman with the Indianapolis Metropolitan Police Department

      (“IMPD”) heard the 9-1-1 call come over the radio. Officer Hartman was

      approximately 250 yards from the location, so he volunteered to respond.

      “Less than thirty seconds” after he had heard the call, Officer Hartman arrived

      at the scene, and he saw a car stopped on the curb. Tr. Vol. II at 140. He then

      watched two men exit the car, and he saw that Dowell was still in the car with

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 4 of 23
      his seat belt on, his hands on the wheel, and his head back against the headrest.

      Officer Hartman checked Dowell for wounds but did not see any, so he

      administered Narcan. Dowell did not respond, so officers removed Dowell

      from the car and discovered the gunshot wound to his back. Medics

      determined that Dowell was deceased.


[8]   Officers then obtained and reviewed security footage from the apartment

      complex. On that footage, officers observed the suspect open the rear driver’s

      side door and start to “assault” Dowell. Tr. Vol. III at 139. Officers were also

      able to see that, as the car started to drive off, the suspect ran toward Shannon’s

      apartment. Based on that footage, IMPD Officer Paul Humphrey went to the

      rear of Shannon’s apartment. Officer Humphrey was able to see into the

      apartment through a glass door, and he observed marijuana on a table. Officer

      Humphrey then saw Shannon in the apartment, the two made eye contact with

      each other, and Shannon “slammed” the blinds shut. Tr. Vol. II at 168. Officer

      Humphrey believed that Shannon was going to exit the apartment through the

      front door, so he went around to the front. As he got there, Shannon opened

      the door, saw Officer Humphrey, and shut the door “very quickly.” Id. Officer

      Humphrey then knocked on the door, but Shannon did not respond.


[9]   Officers set up a perimeter around Shannon’s apartment. Approximately forty-

      five minutes later, Palmer and Shannon’s sister exited. Thirty minutes after

      that, Shannon left his apartment. At that point, officers arrested Shannon and

      searched his apartment. During the search of the apartment, a crime scene



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 5 of 23
       specialist discovered a 9-millimeter pistol with an empty magazine inside the

       bag of a vacuum cleaner.


[10]   Officers also found the following items in Shannon’s apartment: a gun holster

       and magazine with ten 9-millimeter cartridges in a wall vent, five fired

       cartridges on his patio, two fired cartridges in a kitchen trashcan, a plastic bag

       with “residue” from “green vegetation” in the trashcan, remnants of what

       appeared to be marijuana in a toilet, and a gold mouthpiece. Tr. Vol. III at 43.

       Officers also searched Dowell’s vehicle. There, officers found a fired 9-

       millimeter cartridge in the “crevice between where the windshield meets the

       trunk of the car.” Id. at 58.


[11]   Meanwhile, officers escorted Palmer to the police station where they questioned

       her. Palmer told the officers that Shannon had not left his apartment that day.

       Later, Palmer used her mother’s cell phone to make a phone call.

       Unbeknownst to Palmer, her mother had an application on her phone that

       automatically records every call. Palmer’s mother overheard Palmer make

       statements about the offense, so Palmer’s mother provided a copy of the

       recorded call to the police. Based on the content of that recording, the State

       charged Palmer with two counts of assisting a criminal. Thereafter, in

       September 2018, Palmer gave another statement to police. In that statement,

       Palmer recanted her earlier statement and informed the police of Shannon’s

       involvement in the offense.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 6 of 23
[12]   The State charged Shannon with murder, a felony; felony murder, a felony; and

       robbery, as a Level 2 felony. Prior to his trial, Shannon filed a motion to

       exclude the contents of Palmer’s phone call and any testimony from Palmer

       that was different than the statement she had given to police on the day of the

       offense. Specifically, Shannon asserted that Palmer had only changed her

       statement because the State had filed charges against her, which charges the

       State filed based on the content of the phone call that Palmer’s mother had

       recorded without Palmer’s knowledge or consent. Shannon maintained that

       Palmer’s revised statement, which implicated Shannon in the offense, was

       evidence “derivatively related” to the contents of an illegally recorded phone

       call. Appellant’s App. Vol. II at 113. Accordingly, Shannon asserted that it

       was a violation of Title III of the Omnibus Crime Control and Safe Streets Act

       of 1968 for the State to present Palmer’s changed testimony as evidence.

       Following a hearing, the trial court concluded that the State could not introduce

       the recorded phone call as evidence, but the court did not issue a ruling as to

       Palmer’s changed testimony.


[13]   During Shannon’s jury trial, the State called Samantha Kistner, a crime scene

       specialist who had searched Shannon’s apartment, as a witness. Kistner

       testified about the items she and the officers had found in Shannon’s apartment.

       At that point, Shannon objected to the admission of any evidence that depicted

       or referenced the fired cartridges that officers had found on Shannon’s patio and

       in the kitchen trashcan on the ground that those photographs were irrelevant.

       Specifically, Shannon asserted that there was no “direct correlation” between


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 7 of 23
       those fired cartridges and the offense. Tr. Vol. III at 21. Shannon also asserted

       that the prejudicial impact of those photographs substantially outweighed their

       probative value. The State responded and asserted that the fired cartridges were

       relevant because the fired cartridges were the same caliber as the bullet that had

       struck Dowell and, as such, the cartridges connected Shannon to the murder

       weapon. The court noted that it was a “slim call” but found that the probative

       value outweighed the prejudicial impact and overruled Shannon’s objection. Id.

       at 30.


[14]   The State then indicated that it intended to call Palmer as a witness, and

       Shannon again asked the court to exclude any testimony that differed from her

       original statement to police on the ground that that change in testimony was

       derived from an illegally recorded phone call. During a hearing outside the

       presence of the jury, Palmer then testified that, while the criminal charges

       against her “influenced” her decision, she decided to tell police what she had

       actually witnessed on the day of the offense because she had learned that

       Dowell, who was her friend, was the person who had been killed; her mother

       had encouraged her to cooperate; her attorney advised her to give a truthful

       statement; she was no longer in a relationship with McClendon; and she was

       pregnant Id. at 111. The court concluded that Palmer’s statement was not

       derivative of the recorded phone call and denied Shannon’s motion to exclude

       that evidence. Palmer then testified in a manner that was consistent with her

       revised statement to police.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 8 of 23
[15]   The State also called Shelly Crispin, the DNA technical leader at the

       Indianapolis Marion County Forensic Services Agency (“Crime Lab”), as a

       witness. Crispin testified that the DNA from the gold mouthpiece found in

       Shannon’s apartment matched Shannon’s DNA. Douglas Boxler, a firearms

       examiner with the Crime Lab, then testified that he had analyzed both the

       bullet recovered from Dowell’s body and the fired cartridge recovered from

       Dowell’s car, and he concluded that they had both been fired by the pistol

       found in Shannon’s apartment.


[16]   After both parties had rested, Shannon requested that the court instruct the jury

       on reckless homicide as a lesser included offense to murder. Shannon asserted

       that the evidence demonstrated that, as the car drove off, “it was more or less a

       stumble and the gun shot off[.]” Tr. Vol. IV at 106. The State responded that

       Shannon’s actions before the offense and his statement to Palmer after the

       offense demonstrated that Shannon had knowingly or intentionally killed

       Dowell. The court agreed with the State and declined to give Shannon’s

       proffered jury instruction.


[17]   During deliberations, the jury informed the trial court that it was “having a

       struggle” with the “knowingly” element of the murder charge, so it asked the

       court the following question: “If I juggle flaming objects in my home and

       accidentally set fire to the house, did I knowingly set fire to the house?” Id. at

       181. Based on that question, Shannon again asked the court to instruct the jury

       on reckless homicide. The court denied Shannon’s request.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 9 of 23
[18]   The jury found Shannon guilty as charged. Due to double jeopardy concerns,

       the court only entered judgment of conviction for murder, a felony, and

       robbery, as a Level 5 felony. The court then sentenced Shannon to an

       aggregate term of fifty years in the Department of Correction. This appeal

       ensued.


                                      Discussion and Decision
                             Issue One: Admission of Palmer’s Testimony

[19]   Shannon first asserts that the trial court erred when it admitted Palmer’s

       changed testimony, which implicated Shannon in the offense, as evidence. As

       our Supreme Court has stated:


               Generally, a trial court’s ruling on the admission of evidence is
               accorded a great deal of deference on appeal. Because the trial
               court is best able to weigh the evidence and assess witness
               credibility, we review its rulings on admissibility for abuse of
               discretion and only reverse if a ruling is clearly against the logic
               and effect of the facts and circumstances and the error affects a
               party’s substantial rights.


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (internal quotation marks and

       citations omitted). However, where the issue presented on appeal is a question

       of law, we review the matter de novo. Henson v. State, 790 N.E.2d 524, 528 (Ind.

       Ct. App. 2003).


[20]   Shannon contends that the trial court erred when it admitted Palmer’s

       testimony because that testimony violated Title III of the Omnibus Crime


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 10 of 23
       Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 to § 2523 (“Title III”).

       In Henson, which applied Title III in Indiana, this Court explained that Title III


               regulates electronic surveillance by both law enforcement officers
               and private citizens. The purposes of Title III are to protect the
               privacy of wire and oral communications and to delineate “on a
               uniform basis the circumstances and conditions under which the
               interception of wire and oral communications may be
               authorized.” Gelbrad [v. United States], 408 U.S. [41,] 48, 92 S.Ct.
               2357. Under Title III, all interceptions of wire and oral
               communications are prohibited unless the interception is
               authorized.


       790 N.E.2d at 529. Further, when “information is obtained in violation of

       [Title III], ‘no part of the contents of such communication and no evidence

       derived therefrom may be received in evidence in any trial.’” United States v.

       Faulkner, 439 F.3d 1221, 1223 (10th Cir. 2006) (quoting 18 U.S.C. § 2515).


[21]   On appeal, Shannon contends that Palmer only changed her statement and

       implicated him in the offense after the State had charged her with a crime. And

       Shannon contends that the State only charged Palmer with a crime based on the

       content of the phone call that Palmer’s mother had recorded without Palmer’s

       knowledge or consent. Accordingly, Shannon asserts that Palmer’s testimony

       against him was “evidence derived from” an “illegally intercepted phone call”

       in violation of Title III and was, therefore, inadmissible at his trial. Appellant’s

       Br. at 16.


[22]   However, we agree with the State that Shannon lacked standing to challenge

       the admission of any evidence derived from the recorded phone call. Only “an
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 11 of 23
       ‘aggrieved person’ may move to suppress the contents of a wire or oral

       communication intercepted in violation of” Title III. Alderman v. United States,

       394 U.S. 165, 175 n.9 (1969); see also Faulkner, 439 F.3d at 1223. Indeed, 18

       U.S.C. Section 2518(10)(a)(1) provides that “[a]ny aggrieved person in any

       trial . . . may move to suppress the contents of any wire or oral communication

       intercepted” in violation of Title III on the ground that “the communication

       was unlawfully intercepted.” And an “aggrieved person” is defined as “a

       person who was a party to an intercepted wire, oral, or electronic

       communication or a person against whom the interception was directed[.]” 18

       U.S.C. § 2518(10).


[23]   Here, there is no dispute that Shannon was not a party to the intercepted phone

       call. Further, Palmer’s mother installed the application on her own phone in

       order to automatically record any phone call that she makes or receives. There

       is no indication in the record that Palmer’s mother downloaded the application

       in an attempt to record any conversation that would contain information that

       implicated Shannon in an offense. Accordingly, the evidence demonstrates that

       Shannon was not the target of the interception.


[24]   Because Shannon was neither a party to the recorded phone call nor the target

       of the interception, Shannon is not an aggrieved party under Title III. See 18

       U.S.C. § 2518(11). As such, Shannon lacked standing to seek the suppression

       of the contents of Palmer’s phone call or any evidence derived therefrom. See

       Faulkner, 439 F.3d at 1223. The trial court therefore did not err when it

       admitted Palmer’s testimony implicating Shannon in the offense.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 12 of 23
                                  Issue Two: Admission of Photographs

[25]   Shannon next contends that the trial court abused its discretion when it

       admitted as evidence photographs of the fired cartridges that officers had found

       on his patio and in his kitchen trashcan. As discussed above, we review a trial

       court’s ruling on the admission of evidence for an abuse of discretion, and we

       will only reverse if the ruling is clearly against the logic and effect of the facts

       and circumstances and the error affects a party’s substantial rights. See Hall, 36

       N.E.3d at 466. Here, Shannon specifically asserts that the trial court abused its

       discretion when it admitted the photographs of the fired cartridges because

       those photographs were irrelevant and prejudicial.


[26]   Indiana Evidence Rule 401 provides that evidence is relevant if it “has any

       tendency to make a fact more or less probable than it would be without the

       evidence.” Indeed, our Supreme Court has explained that “[e]vidence is

       relevant when it has any tendency to prove or disprove a consequential fact.

       This liberal standard for relevancy sets a low bar, and the trial court enjoys wide

       discretion in deciding whether that bar is cleared.” Snow v. State, 77 N.E.3d

       173, 177 (Ind. 2017) (quotation marks and citations omitted). However, even if

       evidence is relevant, a court may exclude it “if its probative value is

       substantially outweighed by a danger of” unfair prejudice. Ind. Evidence Rule

       403.


[27]   On appeal, Shannon contends that the photographs of the fired cartridges were

       irrelevant because “there was no evidence whatsoever of when or how they got

       [to] where they were found, who put them there, how long they had been there,
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 13 of 23
       where they came from, where they had been fired, whether they have even been

       fired[,] . . . or why they were there[.]” Appellant’s Br. at 23. Accordingly, he

       maintains that there was “simply nothing to make any sense or relevance of the

       casings, and consequently virtually no probative value” to them. Id. at 24. In

       the alternative, he asserts that, even if the photographs were relevant, the

       probative value was substantially outweighed by the danger of unfair prejudice

       because there was “certainly the danger that [the jury] would see casings lying

       all over and be persuaded, on an improper basis, that Mr. Shannon shoots guns

       often and therefore must be the shooter in this case.” Id. at 25.


[28]   However, we need not decide whether the trial court erred when it admitted the

       photographs of the fired cartridges because any error in the admission of that

       evidence was harmless. It is well settled “that a claim of error in the admission

       or exclusion of evidence will not prevail on appeal ‘unless a substantial right of

       the party is affected.’” Troutner v. State, 951 N.E.2d 603, 612 (Ind. Ct. App.

       2011) (quoting Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005)), trans. denied.

       That is, “even if the trial court errs in admitting or excluding evidence, this

       Court will not reverse the defendant’s conviction if the error is harmless.”

       Caesar v. State, 139 N.E.3d 289, 292 (Ind. Ct. App. 2020), trans. denied. An error

       in the admission of evidence is harmless where the “probable impact” of the

       erroneously admitted evidence, “in light of all the evidence in the case, is

       sufficiently minor so as not to affect the substantial right” of the defendant.

       Ind. Appellate Rule 66(A).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 14 of 23
[29]   Here, the evidence demonstrates that, following a conversation with

       McClendon during which McClendon told Shannon that he did not “get what

       he wanted” from Dowell, Shannon changed into all black clothes and used a

       mask to hide a portion of his face. Tr. Vol. III at 178, 215. Shannon then

       exited his apartment.


[30]   The evidence further demonstrates that, a few minutes after McClendon had

       exited Dowell’s car, a man dressed in a black hoodie and black mask

       approached the car, opened the rear passenger side door, pointed a gun at

       Dowell, and asked: “[h]ave you ever been robbed before.” Tr. Vol. II at 196.

       At that point, the man in the mask hit Dowell in the face with a gun and

       reached down to grab the marijuana. During that struggle, the man’s mask was

       pulled down, and Carson observed that the assailant had “gold teeth.” Id. at

       198. Dowell then suddenly put the car in drive, at which point the man in the

       mask stumbled and shot Dowell in the back, killing him. Carson then observed

       the assailant run toward Shannon’s apartment.


[31]   Further, Palmer testified that, a few minutes after Shannon and McClendon

       had left the apartment, Shannon returned and told Palmer that he “had to shoot

       him because he was going to ride off” with McClendon. Tr. Vol. III at 184. In

       addition, Officer Humphrey testified that, after officers had reviewed the

       security footage, he approached Shannon’s apartment and observed marijuana

       on the table.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 15 of 23
[32]   And Kistner testified that, during a search of Shannon’s apartment, officers

       found a 9-millimeter pistol hidden in a vacuum, which a firearms examiner

       confirmed was used to shoot Dowell. Kistner also testified that she found a

       gold mouthpiece, which Crispin testified contained Shannon’s DNA. Further,

       Kistner testified that she found a plastic bag with residue from “green

       vegetation” and the remnants of what appeared to be marijuana in the toilet.

       Id. at 43.


[33]   In light of all of the evidence before the court, we can say with confidence that

       the probable impact of the photographs of the fired cartridges that officers had

       found in and around Shannon’s apartment was sufficiently minor so as not to

       affect Shannon’s substantial rights. See Caesar, 139 N.E.3d at 292.

       Accordingly, we conclude that any error in the court’s admission of that

       evidence was harmless.


                                       Issue Three: Jury Instruction

[34]   Shannon also asserts that the trial court abused its discretion when it declined to

       instruct the jury on reckless homicide as a lesser included offense to murder.

       “Instructing the jury is a matter within the discretion of the trial court, and we’ll

       reverse only if there’s an abuse of discretion.” Cardosi v. State, 128 N.E.3d 1277,

       1284 (Ind. 2019). “[W]e look to whether evidence presented at trial supports

       the instruction and to whether its substance is covered by other instructions.”

       Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019).


[35]   Further,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 16 of 23
               [w]hen a defendant requests an instruction covering a lesser-
               included offense, a trial court applies the three-part analysis set
               forth in Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). The
               first two parts require the trial court to determine whether the
               offense is either inherently or factually included in the charged
               offense. Id. If so, the trial court must determine whether there is
               a serious evidentiary dispute regarding any element that
               distinguishes the two offenses. Id. at 567; see also Brown v. State,
               703 N.E.2d 1010, 1019 (Ind. 1998). Wright held that, “if, in view
               of this dispute, a jury could conclude that the lesser offense was
               committed but not the greater, then it is reversible error for a trial
               court to not give an instruction, when requested, on the
               inherently or factually included lesser offense.” Wright, 658
               N.E.2d at 567. Where a trial court makes such a finding, its
               rejection of a tendered instruction is reviewed for an abuse of
               discretion. Brown, 703 N.E.2d at 1019.


       Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002).


[36]   Murder is defined as a person who “knowingly or intentionally kills another

       human being.” Ind. Code § 35-42-1-1(1) (2020). And reckless homicide is

       defined as a person who “recklessly kills another human being.” I.C. § 35-42-1-

       5. The only distinguishing feature in the elements of murder and reckless

       homicide is the mens rea required of each offense. McDowell v. State, 102 N.E.3d

       924, 931 (Ind. Ct. App. 2018). Reckless homicide is therefore an inherently

       included offense of murder. Id.


[37]   On appeal, Shannon asserts that there was a serious evidentiary dispute as to

       whether he had knowingly or recklessly shot Dowell. Specifically, Shannon

       contends that Carson’s testimony demonstrates that he only shot Dowell when

       the car “suddenly lurched forward,” which caused him to “stumble and fall,” at
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 17 of 23
       which point the gun “discharged.” Appellant’s Br. at 19. Accordingly,

       Shannon asserts that, while it was “reckless and dangerous” for him to point a

       loaded gun at Dowell, Carson’s testimony demonstrates that he had “no known

       intention to shoot the driver” and no “knowledge that it was happening or

       going to happen.” Id. at 21.


[38]   However, the undisputed evidence demonstrates that Shannon shot Dowell

       during the commission of a robbery. Based on that fact, the State also charged

       Shannon with felony murder, which is defined as a person who “kills another

       human being while committing or attempting to commit” robbery. I.C. § 35-

       42-1-1(2). In order to prove that Shannon had committed felony murder, “the

       State need not prove that [Shannon] acted with any particular mental state—the

       killing could be totally accidental—so long as the State does prove that the

       killing occurred while [Shannon] was committing (or attempting to commit) a

       specified felony.” Thomas v. State, 827 N.E.2d 1131, 1133 (Ind. 2005).


[39]   Here, even if Shannon had only shot Dowell accidentally, he would still be

       guilty of felony murder, not reckless homicide. As such, he would not be

       entitled to the instruction on reckless homicide unless he could additionally

       show that there was a serious evidentiary dispute as to whether the shooting

       occurred during the commission of an armed robbery. But Shannon does not

       make any such argument on appeal. Rather, he disregards the fact that he shot

       Dowell while robbing Dowell of $600 worth of marijuana. Shannon has failed

       to acknowledge that the killing occurred during the commission of a robbery

       and, thus, has failed to present an argument supported by cogent reasoning on

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 18 of 23
       this issue. Accordingly, this issue is waived. 2 We therefore affirm the court’s

       denial of his proffered jury instruction.


                                  Issue Four: Sufficiency of the Evidence

[40]   Finally, Shannon contends that the State failed to present sufficient evidence to

       support his convictions. Our standard of review on a claim of insufficient

       evidence is well settled:


               For a sufficiency of the evidence claim, we look only at the
               probative evidence and reasonable inferences supporting the
               verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
               not assess the credibility of witnesses or reweigh the evidence.
               We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693. 696 (Ind. 2017).


[41]   To convict Shannon of murder, the State was required to prove that he had

       knowingly or intentionally killed Dowell. I.C. § 35-42-1-1(a). And to convict

       Shannon of robbery, the State was required to prove that he had knowingly or

       intentionally taken property from Dowell or from Dowell’s presence by using or

       threatening the use of force. I.C. § 35-42-5-1(a)(1).




       2
         Had the State charged Shannon only with murder, his argument regarding a jury instruction on the lesser
       included offense based on a serious evidentiary dispute might have been plausible. But, here, the murder and
       the felony murder charges are intertwined, and Shannon does not dispute that Dowell was killed during the
       commission of a felony. Thus, the trial court correctly declined to give Shannon’s proffered jury instruction
       on reckless homicide.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020                  Page 19 of 23
[42]   On appeal, Shannon contends that the State presented insufficient evidence to

       support his convictions for murder and robbery because the State failed to

       establish his identity as the offender. In the alternative, he contends that the

       State failed to present sufficient evidence to support his conviction for murder

       because the State failed to demonstrate that he had knowingly killed Dowell.

       We address each argument in turn.


                                                      Identity

[43]   Shannon first asserts that the State presented insufficient evidence to prove that

       he was the individual who had committed the offenses. Specifically, Shannon

       asserts that Carson described the shooter as “tall,” “dark skinned,” “large,” and

       “old,” but that Shannon is 21 years old, 5’9”, and 180 pounds, and his booking

       picture “shows an obviously young-looking face.” Appellant’s Br. at 27, 28.

       Shannon also asserts that Carson “could not identify anyone as the shooter

       from a photo array that included Mr. Shannon’s picture.” Id. at 28. Further,

       Shannon contends that Palmer testified that Shannon “got dressed in ‘all

       black’” clothing but that the video footage showed that the shooter was wearing

       “light-colored pants.” Id. at 29, 30 (emphasis in original). Accordingly,

       Shannon contends that both of the State’s star witnesses “gave testimony clearly

       showing that Mr. Shannon and the shooter were two completely different

       people.” Id. at 30. In addition, Shannon contends that Palmer’s testimony

       could not be believed as “she had [a] motive to fabricate” her testimony. Id.

       And Shannon contends that he was “excluded from all fingerprints examined



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 20 of 23
       from the crime scene” and that his DNA “was not found on anything related to

       or used in the crime,” other than the gold mouthpiece. Id. at 32.


[44]   However, the evidence most favorable to the trial court’s judgment

       demonstrates that, after McClendon told Shannon that he did not get what he

       wanted from Dowell, Shannon changed into black clothes, put a mask over his

       face, and left his apartment. Further, Carson testified that, a few minutes after

       McClendon had exited the car, a man dressed in a black hoodie and black mask

       approached Dowell’s car, opened the rear driver’s side door, and pointed a gun

       at Dowell. The man in the mask then hit Dowell in the face with the pistol and

       reached toward Dowell’s left pocket to get the marijuana. Carson also testified

       that, during the struggle, the man’s mask got pulled down, and Carson observed

       that the man had “gold teeth.” Tr. Vol. II at 198. The driver then put the car in

       drive and drove off, at which point the man shot Dowell, killing him. And

       Carson testified that, following the incident, he observed the shooter run toward

       Shannon’s apartment.


[45]   Further, Palmer testified that, a few minutes after Shannon had exited his

       apartment, he returned and told Palmer that he “had to shoot him because he

       was going to ride off” with McClendon. Tr. Vol. III at 184. The evidence also

       demonstrates that, when officers first investigated the incident, officers observed

       marijuana on a table in Shannon’s apartment. Then, during the subsequent

       search of Shannon’s apartment, officers found the gun that was used to shoot

       Dowell, a gold mouthpiece that contained Shannon’s DNA, residue from

       marijuana in a plastic bag, and remnants of marijuana in a toilet.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 21 of 23
[46]   Based on that evidence, a reasonable jury could conclude that Shannon was the

       person who had robbed and killed Dowell. Shannon’s arguments on appeal are

       merely a request that we reweigh the evidence, which we cannot do. We hold

       that the State presented sufficient evidence to demonstrate that Shannon was

       the perpetrator of the offenses.


                                                    Knowingly

[47]   Shannon also contends that, even if the State presented sufficient evidence to

       demonstrate that he was the offender, the State failed to prove that he had

       knowingly killed Dowell. 3 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).


[48]   On appeal, Shannon contends that he was “compelled by” the motion of the car

       to shoot the gun because the movement of the car caused him “to lose his

       balance and squeeze the trigger.” Appellant’s Br. at 31. In other words, he

       contends that the evidence demonstrates that it was “not a conscious choice”

       but rather the “physics of a moving car” that caused him to discharge the gun.

       Id. at 32.


[49]   However, the evidence demonstrates that Shannon pointed a loaded firearm at

       Dowell in an attempt to rob him of $600 of marijuana. Further, Palmer




       3
        In the Information, the State only asserted that Shannon had knowingly killed Dowell. See Appellant’s
       App. Vol. II at 36.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020                Page 22 of 23
       testified that, when Shannon returned to his apartment, he told Palmer that “he

       had to shoot him because he was going to ride off” with McClendon. Tr. Vol.

       III at 184. Based on that evidence, a reasonable jury could conclude that

       Shannon had knowingly killed Dowell. Again, Shannon’s arguments on this

       issue are a request that we reweigh the evidence, which we cannot do. The

       State presented sufficient evidence to support Shannon’s conviction for murder.


                                                    Conclusion

[50]   In sum, we hold that Shannon lacked standing to challenge any evidence

       derived from Palmer’s recorded phone call because he was neither a party to the

       conversation nor the target of any interception. We also hold that any error in

       the trial court’s admission of photographs of fired cartridges that officers had

       found in and around Shannon’s apartment was harmless in light of the totality

       of evidence against him. Further, we hold that Shannon failed to present a

       cogent argument as to whether he was entitled to a jury instruction on reckless

       homicide. And we hold that the State presented sufficient evidence to establish

       that Shannon was the individual who had robbed and killed Dowell and to

       demonstrate that Shannon had knowingly killed Dowell. We therefore affirm

       Shannon’s convictions.


[51]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1747 | July 22, 2020   Page 23 of 23
