                                                                                 FILED
                                                                             Aug 29 2019, 5:34 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                      Curtis T. Hill, Jr.
      Marion County Public Defender                              Attorney General
      Appellate Division                                         Caroline G. Templeton
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Damoine Wilcoxson,                                         August 29, 2019
      Appellant/Cross-Appellee/Defendant,                        Court of Appeals Case No.
                                                                 18A-CR-1882
              v.                                                 Appeal from the
                                                                 Marion Superior Court
      State of Indiana,                                          The Honorable
      Appellee/Cross-Appellant/Plaintiff                         Mark Stoner, Judge
                                                                 Trial Court Cause No.
                                                                 49G06-1612-F1-47060



      Vaidik, Chief Judge.



                                           Case Summary
[1]   A jury found Damoine Wilcoxson guilty of two counts of attempted murder

      and one count of criminal recklessness for shooting up two police stations in

      Indianapolis. The trial court, however, entered only a single attempted-murder

      Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019                            Page 1 of 12
      conviction, along with a criminal-recklessness conviction, finding that the two

      attempted-murder counts merge. The court then sentenced Wilcoxson to thirty-

      seven years in prison. Wilcoxson appeals, arguing that the trial court should

      not have admitted certain evidence at his trial and that therefore his convictions

      should be reversed. We disagree and affirm his convictions.

[2]   The State cross-appeals, contending that the trial court erred by merging the

      two attempted-murder counts and entering only one conviction. Wilcoxson

      responds that the State is not authorized to bring such an appeal and that, even

      if it is, merger of the two counts is proper in this case. We hold that (1) the

      State is authorized to bring its cross-appeal and (2) the trial court erred by

      merging the two attempted-murder counts. We therefore remand this matter to

      the trial court for the entry of a conviction and sentence on the second count.



                             Facts and Procedural History
[3]   Around 11:00 p.m. on October 4, 2016, a person shot up the Indianapolis

      Metropolitan Police Department’s Northwest District building while Sergeant

      Laura Weida was inside. Thirty spent shell casings and a handwritten note

      were found in front of the building. The note included threats against “white”

      people and references to “Yahuah.” Ex. 57A.

[4]   Nine days later, at about 11:00 p.m. on October 13, a person shot up IMPD’s

      North District building. At the time, Officers Stephen Jones and Justin Keehn

      were in a room doing paperwork. The lights were on, and the blinds were open


      Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019        Page 2 of 12
      so that the officers, who were both in uniform, could be seen from outside. One

      bullet came through a window and passed within inches of Officer Keehn’s

      right ear. Outside the building, sixteen spent shell casings were found in an

      area from which the shooter would have been able to see Officers Jones and

      Keehn sitting inside. In addition to the bullet hole in the window, police found

      two bullet holes in the exterior wall of the building, a bullet hole in a dumpster

      outside the building, and a bullet hole in a car parked near the building. Also

      found was a handwritten note that, like the note found outside the Northwest

      District building, contained threats against “white” people and references to

      “Yahuah.” Ex. 143A.

[5]   Testing revealed that the thirty shell casings found outside the Northwest

      District building and the sixteen shell casings found outside the North District

      building were all fired from the same gun. Moreover, Wilcoxson’s DNA was

      found on one of the casings recovered from the Northwest District building and

      one of the casings recovered from the North District building.


[6]   On October 31, an IMPD SWAT team went to the apartment where Wilcoxson

      had been staying to take him into custody on one or more unrelated warrants.

      As the team announced its arrival and attempted to enter the apartment,

      Wilcoxson began shooting—allegedly in the direction of the SWAT officers.

      Eventually, he surrendered. A handgun and shell casings were found inside the

      apartment, and testing showed that the gun was the same one used during the

      October 4 and October 13 shootings. Handwritten notes referring to “Yahuah”

      were also found in the apartment. Exs. 228-232A. Handwriting analysis

      Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019       Page 3 of 12
      showed that all or parts of the notes from the Northwest District, the North

      District, and the apartment were probably written by Wilcoxson. A Facebook

      page maintained by Wilcoxson also included references to “Yahuah.”


[7]   The State charged Wilcoxson in relation to all three incidents under a single

      cause number. Regarding the October 4 shooting, the State charged Wilcoxson

      with Level 5 felony criminal recklessness. Regarding the October 13 shooting,

      the State charged Wilcoxson with two counts of attempted murder—one

      relating to Officer Keehn and one relating to Officer Jones. And regarding the

      October 31 SWAT incident, the State charged Wilcoxson with a single count of

      attempted murder relating to the SWAT officers.

[8]   Wilcoxson moved to sever the charges, asking that three separate trials be held

      for the three incidents. The trial court ruled that the charges arising from the

      October 4 and October 13 shootings could be tried together but agreed to sever

      the attempted-murder charge arising from the October 31 SWAT incident.

[9]   Shortly after the trial court ordered the severance, the State filed notice that it

      intended to take the October 4 and October 13 charges to trial first and to

      present, during that trial, evidence that Wilcoxson shot at police when they

      went to arrest him on October 31. The State asserted this evidence was

      admissible under Indiana Evidence Rule 404(b), which provides that evidence

      of crimes, wrongs, or other acts may be admissible to prove, among other

      things, “motive, opportunity, intent, preparation, plan, knowledge, identity,

      absence of mistake, or lack of accident.” The State argued that evidence that


      Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019         Page 4 of 12
       Wilcoxson shot at police on October 31 “supports the identification of the

       defendant as the perpetrator” of the October 4 and October 13 shootings, “as

       well as his motive, intent, preparation and plan in committing” those shootings.

       Appellant’s App. Vol. II pp. 164-65. Wilcoxson objected, and the trial court

       ruled that the State could present evidence that Wilcoxson fired a gun when the

       police arrived to take him into custody but not that he shot at the officers.


[10]   During trial, the court twice admonished the jury that evidence that Wilcoxson

       fired a gun during the October 31 incident was relevant to prove Wilcoxson’s

       motive, identity, and consciousness of guilt with respect to the October 4 and

       October 13 shootings but not to prove that he has any particular character trait.

       Tr. Vol. III pp. 220, 236. The court later gave the jury a final instruction that

       largely tracked those two admonishments, adding that the evidence could also

       be used to determine Wilcoxson’s intent. Appellant’s App. Vol. III p. 38.

[11]   The jury found Wilcoxson guilty on all charges being tried: one count of

       criminal recklessness for the October 4 shooting and two counts of attempted

       murder for the October 13 shooting. The trial court entered a conviction on the

       criminal-recklessness count but entered a conviction on only one of the two

       attempted-murder counts, finding that those two counts “merge.” Tr. Vol. IV

       p. 212. The court sentenced Wilcoxson to a fully executed term of thirty-five

       years on the attempted-murder conviction and a consecutive term of five years,

       with two years executed and three years suspended to probation, on the

       criminal-recklessness conviction, for a total of thirty-seven years in prison and

       three years of probation.

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019       Page 5 of 12
[12]   Wilcoxson appeals, and the State cross-appeals.1



                                   Discussion and Decision
[13]   Wilcoxson contends that the trial court should not have allowed the State to

       present evidence that he fired a gun when the SWAT team came to arrest him

       on October 31. In its cross-appeal, the State argues that the trial court erred by

       merging the two attempted-murder counts and entering only one conviction

       after the jury found Wilcoxson guilty on both counts.


                                       I. Wilcoxson’s Appeal
[14]   Wilcoxson challenges the trial court’s admission of evidence that he fired a gun

       during the SWAT incident on October 31, which the court allowed pursuant to

       Evidence Rule 404(b). That rule 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, 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




       1
         The State eventually dismissed the severed attempted-murder charge relating to the October 31 SWAT
       incident but refiled it under a new cause number in April 2019. See No. 49G06-1904-F1-015722. That case is
       set for trial this October.

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019                           Page 6 of 12
       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).


[15]   The trial court ruled that evidence that Wilcoxson fired a gun during the

       October 31 incident was relevant to four issues with respect to the October 4

       and October 13 shootings: (1) motive, (2) identity, (3) consciousness of guilt,

       and (4) intent. Wilcoxson challenges all four grounds. We do not reach the

       issues of identity and intent, as we affirm the trial court’s ruling on the issues of

       motive and consciousness of guilt.

[16]   Regarding motive, we agree with the State that Wilcoxson firing a gun when

       police went to arrest him tends to prove that he harbors significant hostility

       toward police. That hostility, in turn, strongly suggests a motive for the

       October 4 and October 13 shootings. See Hicks, 690 N.E.2d at 222 (holding that

       defendant’s hostility toward victim was relevant to prove motive for murder).

[17]   As for consciousness of guilt, Wilcoxson does not dispute that an attempt to

       avoid arrest is evidence of a guilty conscience. See, e.g., Myers v. State, 27

       N.E.3d 1069, 1077 (Ind. 2015). Instead, he notes that at the time of the SWAT


       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019         Page 7 of 12
       incident, besides his “possible involvement in the police district shootings,” he

       “also had two unrelated warrants out for his arrest.” Appellant’s Br. p. 22.2 He

       contends, “While he may have shot because of his involvement in the district

       shootings, it is equally possible that he shot to avoid arrest on the other

       warrants.” Id. But the fact that Wilcoxson might have had a consciousness of

       guilt with regard to other conduct does not mean that he did not also have a

       consciousness of guilt with regard to the October 4 and October 13 shootings.


[18]   Concerning the balancing required under Evidence Rule 403, there was no

       doubt that Wilcoxson would be prejudiced by evidence that he fired a gun when

       the SWAT team went to arrest him. However, trial courts are given wide

       latitude in weighing the probative value of evidence against the prejudice

       caused by its admission, Bishop v. State, 40 N.E.3d 935, 952 (Ind. Ct. App.

       2015), trans. denied, and Wilcoxson has not convinced us that the trial court

       abused its discretion in this regard. While the State was allowed to present

       evidence that Wilcoxson fired a gun, the court barred the State from presenting

       evidence that he shot at the officers. Furthermore, twice during trial and once

       again in final instructions the trial court admonished the jury that the evidence

       of the October 31 shooting could not be considered to establish that Wilcoxson




       2
         In August 2016, a warrant for Wilcoxson’s arrest was issued in a Marion County domestic-violence case
       (charges that were dismissed after this case was filed). See No. 49G17-1608-F6-30211. Then, on October 31,
       2016, the same day as the SWAT incident, a warrant for Wilcoxson’s arrest was issued in Boone County in
       relation to the September 2016 shooting death of an elderly man in Zionsville. See No. 06D01-1610-MR-249.
       Earlier this year, Wilcoxson was convicted of murder in that case and sentenced to sixty-five years, to be
       served consecutive to his sentence in this case. That case is currently on appeal to this Court. See No. 19A-
       CR-1021.

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019                              Page 8 of 12
       is a person of poor character more likely to shoot at law enforcement. Such

       instructions minimize the potential prejudice to the defendant. See Johnson v.

       State, 722 N.E.2d 382, 385 (Ind. Ct. App. 2000).


[19]   The trial court did not abuse its discretion by admitting evidence that

       Wilcoxson fired a gun when the SWAT team went to arrest him.


                                          II. State’s Cross-Appeal
[20]   In its cross-appeal, the State asserts that the trial court erred by merging the two

       attempted-murder counts and entering only one conviction. Initially, we briefly

       address Wilcoxson’s argument that the State’s cross-appeal is not authorized by

       Indiana Code section 35-38-4-2, the statute that sets forth the limited

       circumstances in which the State is allowed to appeal in criminal cases.3 In




       3
           The statute provides:
                  Appeals to the supreme court or to the court of appeals, if the court rules so provide, may
                  be taken by the state in the following cases:
                           (1) From an order granting a motion to dismiss one (1) or more counts of an
                           indictment or information.
                           (2) From an order or judgment for the defendant, upon the defendant’s motion
                           for discharge because of delay of the defendant’s trial not caused by the
                           defendant’s act, or upon the defendant’s plea of former jeopardy, presented and
                           ruled upon prior to trial.
                           (3) From an order granting a motion to correct errors.
                           (4) Upon a question reserved by the state, if the defendant is acquitted.
                           (5) From an order granting a motion to suppress evidence, if the ultimate effect
                           of the order is to preclude further prosecution of one (1) or more counts of an
                           information or indictment.
                           (6) From any interlocutory order if the trial court certifies and the court on
                           appeal or a judge thereof finds on petition that:

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019                                    Page 9 of 12
       State v. Monticello Developers, Inc., a jury found the defendant guilty of criminal

       recklessness, but the trial court, instead of entering a judgment of conviction

       against the defendant, entered a judgment on the evidence in favor of the

       defendant. 527 N.E.2d 1111 (Ind. 1988). The State appealed, and our Supreme

       Court noted that the State’s appeal presented a “legal question” rather than an

       issue of fact and expressly held that, as such, “the State may seek review and

       remedy under Ind. Code § 35-38-4-2.” Id. at 1112. Here, the State’s cross-

       appeal asserts that the trial court erred by merging the two attempted-murder

       counts. This is most certainly a “legal question,” as Wilcoxson himself

       acknowledges. Appellant’s Br. p. 23; Cross-Appellee’s Br. p. 10. Accordingly,

       we conclude that the State’s cross-appeal is properly before us.4

[21]   On the merits, the State’s argument is very straightforward: merger of the two

       attempted-murder counts is improper because the jury found Wilcoxson guilty

       on both counts based on evidence that he fired multiple shots in the direction of




                                   (A) the appellant will suffer substantial expense, damage, or injury if
                                   the order is erroneous and the determination thereof is withheld until
                                   after judgment;
                                   (B) the order involves a substantial question of law, the early
                                   determination of which will promote a more orderly disposition of the
                                   case; or
                                   (C) the remedy by appeal after judgment is otherwise inadequate.
       Ind. Code § 35-38-4-2.
       4
         The State cites several other cases in which our Supreme Court or this Court, without explicitly addressing
       the appealability issue, entertained the merits of a State cross-appeal challenging a trial court’s decision to not
       enter a conviction on a count on which the defendant was found guilty. See Kendall v. State, 849 N.E.2d 1109
       (Ind. 2006); Wright v. State, 828 N.E.2d 904 (Ind. 2005); Kelly v. State, 719 N.E.2d 391 (Ind. 1999), reh’g
       denied; Dilts v. State, 49 N.E.3d 617 (Ind. Ct. App. 2015), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019                                   Page 10 of 12
       two different officers. In response, Wilcoxson contends that the trial court’s

       merger decision is sustainable under two double-jeopardy doctrines. First, he

       cites the continuous-crime doctrine, which prohibits multiple convictions for

       actions that are “so compressed in terms of time, place, singleness of purpose,

       and continuity of action as to constitute a single transaction.” Walker v. State,

       932 N.E.2d 733, 735 (Ind. Ct. App. 2010), reh’g denied. But we have held that

       this doctrine is not implicated where, as here, the charges at issue allege

       different victims. Frazier v. State, 988 N.E.2d 1257, 1264 (Ind. Ct. App. 2013).


[22]   Wilcoxson also invokes what we recently referred to as the “very same act

       test”—the rule that prohibits “conviction and punishment for a crime which

       consists of the very same act as another crime for which the defendant has been

       convicted and punished.” Bradley v. State, 113 N.E.3d 742, 751 (Ind. Ct. App.

       2018), reh’g denied, trans. denied. The problem with this argument is that it starts

       from the premise—not supported by any citation to the record—that the two

       attempted-murder charges and the jury’s guilty verdicts on those charges were

       based on the single shot that went through the window. See Cross-Appellee’s

       Br. p. 18 (“Here, Wilcoxon’s two attempted murder convictions resulted from

       the very same act – shooting a bullet through the roll call window.”). But

       Wilcoxson took fifteen other shots in addition to the one that went through the

       window, including two that hit the building and two that hit a dumpster and a

       car sitting outside the building, and the State specifically pointed to these other

       shots in arguing to the jury that Wilcoxson intended to kill both officers. See Tr.

       Vol. IV p. 158 (“Intent, the number of shots fired. We talked about that earlier.

       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019       Page 11 of 12
       The number of casings. This isn’t an accident. This isn’t a one shot.”).

       Nowhere in his discussion of the merger issue—not once—does Wilcoxson

       acknowledge the evidence that he fired more than one shot. See Cross-

       Appellee’s Br. pp. 10-19. In light of the other shots that Wilcoxson fails to

       address, we cannot say that the entry of two attempted-murder convictions in

       this case would violate the “very same act test.”

[23]   We agree with the State that the trial court should have entered two attempted-

       murder convictions and sentenced Wilcoxson accordingly. We remand this

       matter to the trial court for that purpose.

[24]   Affirmed in part and reversed in part.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1882 | August 29, 2019     Page 12 of 12
