MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Jun 22 2017, 6:26 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christian James Cain,                                    June 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1611-CR-2562
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1601-MR-3840




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017       Page 1 of 16
                                          Case Summary
[1]   Christian James Cain (“Cain”) appeals his convictions for Murder, a felony, 1

      and Possession of a Handgun by a Serious Violent Felon, a Level 4 felony. 2 We

      affirm.



                                                   Issues
[2]   Cain presents three issues for review:


                  I.       Whether the trial court abused its discretion in the
                           admission of evidence;


                  II.      Whether the convictions are supported by sufficient
                           evidence; and


                  III.     Whether Cain was properly sentenced.


                                   Facts and Procedural History
[3]   In 2014, twenty-year-old Ariana Cheeks (“Cheeks”) was romantically involved

      with Cain’s brother, Cory Cain (“Cory”). In April of 2014, Cain’s mother,

      Vivian Cain (“Vivian”), filed a police report accusing Cheeks of stealing her




      1
          Ind. Code § 35-42-1-1.
      2
          I. C. § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 2 of 16
      bank card and withdrawing money from her account. At the time of the alleged

      theft, Cain was incarcerated. He was released to parole in October of 2014.


[4]   During the evening of December 11, 2014, Cain visited a friend, Monterio

      Mack (“Mack”). Cain angrily claimed “the bitch took his momma’s credit card

      with some money on it.” (Tr. Vol. II pg. 112.)


[5]   The following day, at around 6:00 p.m., Cheeks and her brother Daniel Baxter

      (“Baxter”) were at their Indianapolis home with the front door closed and

      locked. Baxter heard a rattling sound at the door and Cheeks approached the

      door. Baxter heard approximately seven gunshots and saw bullets coming

      through the walls. Cheeks, who had been shot in the chest, collapsed in

      Daniel’s arms.


[6]   Neighbors Charles Gilbert and Rodney Evans (“Evans”) were walking home

      when they heard gunshots. They saw someone in a black hoodie run past

      them, jump into a small gold vehicle, and drive away rapidly “spinning their

      tires.” (Tr. Vol. II pg. 29.) Almost immediately afterward, Baxter banged on

      Evans’s door and asked to call 9-1-1 because his sister had been shot. When

      police arrived, they discovered that Cheeks was deceased.


[7]   After dark that evening, Cain arrived at Mack’s house. He was driving a gold

      car. Cain, who seemed to be out of breath, reported to Mack, “I did it.” (Tr.

      Vol. II pg. 96.) Cain elaborated that he had knocked on the door and when

      someone responded, he shot. Cain did not specifically identify his target, but

      Mack understood it to be Cheeks due to the earlier allegation of theft.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 3 of 16
[8]    Cain also visited the Cheeks residence, dressed in black and driving Vivian’s

       gold Impala. He asked Baxter “what was going on” and Baxter replied that

       Cheeks had been shot. (Tr. Vol. II pg. 81.) Baxter invited Cain inside, but Cain

       declined the invitation and immediately left.


[9]    Cain went to see his former girlfriend, Daniesha Miller (“Miller”). Cain told

       Miller that he was the person who shot Cheeks. He said that the bullets had

       been fired through a door.


[10]   One week after the shooting, Cain purchased a gun from Mack. On January 8,

       2015, Cain was arrested on an unrelated matter. During his incarceration, Cain

       spoke with Mack during recorded telephone calls. In one call, Mack stated that

       Cain probably thought he was being arrested for the “M” when police arrived,

       and Cain responded affirmatively. (State’s Ex. 86.) Mack asked whether police

       had found the “whatchamacallit,” and Cain responded in the negative. (State’s

       Ex. 86.)


[11]   On January 29, 2016, Cain was charged with Cheeks’ murder and illegal

       possession of a handgun. He waived his right to a jury trial, and his bench trial

       commenced on September 28, 2016. Cain was found guilty as charged. On

       October 19, 2016, the trial court imposed upon Cain consecutive sentences of

       fifty-eight years for murder and ten years for the handgun conviction. He now

       appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 4 of 16
                                  Discussion and Decision
                                     Admission of Evidence
[12]   The State’s theory of motive was that Cain believed Cheeks had stolen money

       from Vivian. Without objection, the State elicited testimony from Mack that

       Cain had angrily complained of “a bitch [taking] his momma’s credit card.”

       (Tr. Vol. II pgs. 112-13.) Miller also testified, without objection, that there had

       been a theft involving Vivian Cain’s credit card, Cory used the money to buy

       Cheeks a car, and Vivian had intended the money to be saved for Cain.

       However, when the State attempted to elicit testimony as to who relayed this

       information to Miller, Cain lodged a hearsay objection. The State responded

       that the evidence was not being offered for the truth of the matter, and the trial

       court permitted Miller to testify that Vivian had told her that Cheeks and Cory

       stole money that was being held for Cain during his incarceration.


[13]   Subsequently, Detective Dutrieux testified, without objection, that Vivian had

       filed a police report in April of 2014. When the State moved to admit the police

       report, Cain objected, again on hearsay grounds. The trial court admitted the

       police report for “the limited purpose of the fact the report was filed.” (Tr. Vol.

       II pg. 240.) The court observed that the truth or falsity of the internal allegation

       – that Cheeks stole from Vivian – was not relevant; rather, the relevance was

       whether Cain’s belief of theft was formed and provided motive.


[14]   We reverse a trial court’s evidentiary ruling where the appellant demonstrates a

       manifest abuse of discretion resulting in the denial of a fair trial. State v. Hunter,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 5 of 16
       898 N.E.2d 455, 457 (Ind. Ct. App. 2008). We consider only the evidence in

       favor of the evidentiary ruling and the unrefuted evidence in the appellant’s

       favor. Id.


[15]   Cain argues that the testimony describing Vivian’s allegation and the police

       report were inadmissible hearsay not excepted by Indiana Rule of Evidence

       803. The State responds that the challenged evidence is not hearsay and thus

       the exceptions of Rule 803 are not implicated. We agree with the State.


[16]   Evidence Rule 801 defines hearsay as a statement that: “(1) is not made by the

       declarant while testifying at the trial or hearing; and (2) is offered in evidence to

       prove the truth of the matter asserted.” Here, the trial court, also the finder-of-

       fact, specified that the content of the police report and the content of Vivian’s

       allegation were not admitted into evidence for the truth of the assertions. The

       trial court explicitly observed that it was irrelevant whether Cheeks had in fact

       committed a theft; however, the fact that Vivian had made such allegations was

       relevant to motive. Because the challenged evidence was not “offered … to

       prove the truth of the matter asserted,” Evid. Rule 801, it was not hearsay.

       Cain has demonstrated no abuse of discretion in the admission of evidence.


                                  Sufficiency of the Evidence
[17]   Cain contends that the State failed to present sufficient evidence of probative

       value to support either his conviction for Murder or Possession of a Handgun

       by a Serious Violent Felon.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 6 of 16
[18]   Pursuant to Indiana Code Section 35-42-1-1, a person who knowingly or

       intentionally kills another human being commits murder. The State alleged

       that Cain knowingly killed Cheeks. Pursuant to Indiana Code Section 35-47-4-

       5(c), a serious violent felon who knowingly or intentionally possesses a firearm

       commits unlawful possession of a firearm by a serious violent felon. The State

       alleged that Cain is a serious violent felon after having been convicted of

       Battery, as a Class C felony, and that he possessed a handgun after that

       conviction.3 We will affirm a conviction unless no rational fact-finder could

       have found the defendant guilty beyond a reasonable doubt. Tuggle v. State, 9

       N.E.3d 726, 736 (Ind. Ct. App. 2014).


[19]   Cain concedes that the State presented testimony that he confessed to killing

       Cheeks. He also concedes that Mack testified that he sold a gun to Cain

       approximately one week after Cheeks’ shooting. Nonetheless, Cain asserts that

       the testimony of these witnesses should be discarded under the incredible

       dubiosity rule. Cain asserts that Miller was a reluctant witness who provided

       contradictory deposition testimony and was “coerced” by subpoena to testify.

       Appellant’s Br. at 27. He further asserts that Mack was a criminal “coerced

       through his need to escape his own criminal prosecution.” Appellant’s Br. at

       28.




       3
           Cain conceded at trial that he had a prior conviction for Battery, as a Class C felony.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017          Page 7 of 16
[20]   Our supreme court has recently defined and clarified the scope of the incredible

       dubiosity rule in Moore v. State, 27 N.E.3d 749 (Ind. 2015). The Indiana

       Supreme Court stated: “Under this rule, a court will impinge on the jury’s

       responsibility to judge the credibility of the witnesses only when it has

       confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly

       uncorroborated testimony of ‘incredible dubiosity.’” Id. at 755 (quoting Tillman

       v. State, 642 N.E.2d 221, 223 (Ind. 1994). The incredible dubiosity rule applies

       only ‘“where a sole witness presents inherently contradictory testimony which is

       equivocal or the result of coercion and there is a complete lack of circumstantial

       evidence of the appellant’s guilt.”’ Id. (quoting Tillman, 642 N.E.2d at 223)

       (emphasis in original).


[21]   This is not a case in which the State presented a sole witness whose testimony

       was uncorroborated. Mack testified concerning Cain’s possession of a weapon,

       both before and after the shooting. The State also presented photographic

       evidence of Cain in possession of firearms. Mack testified that Cain had been

       angry because of an alleged theft from his mother and he had showed up on the

       evening of Cheek’s murder claiming that he “did it.” (Tr. Vol. II pg. 96.)

       Miller testified that Cain had confessed to shooting Cheeks. She related Cain’s

       report that he had shot through a door. This was corroborated by the physical

       evidence obtained at the scene and by Baxter’s testimony. Also, Cheeks’

       neighbors described seeing someone dressed in black flee in a gold vehicle

       immediately after the shots were fired. Baxter testified that Cain had been

       dressed in black and driving a gold vehicle on the evening of the shooting.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 8 of 16
[22]   In sum, there were multiple witnesses who provided corroborated testimony.

       To the extent that Cain suggests some witnesses had their own motivation for

       testifying, such does not satisfy the criteria for application of the incredible

       dubiosity rule. We will not reweigh the credibility of multiple witnesses.


[23]   Cain also argues that, even if the witnesses against him are to be believed, the

       State at most established his commission of reckless homicide, a lesser included

       offense of murder. The element that distinguishes murder and reckless

       homicide is the level of mens rea required. Sanders v. State, 704 N.E.2d 119, 122

       (Ind. 1999). Either an intentional or a knowing killing is required for a murder

       conviction. Ritchie v. State, 809 N.E.2d 258, 270 (Ind. 2004). Here, the State

       charged that Cain acted knowingly. 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. Id.; I. C. § 35-41-2-2(b). A person engages in conduct “recklessly” if

       he engages in the conduct in plain, conscious, and unjustifiable disregard of

       harm that might result and the disregard involves a substantial deviation from

       acceptable standards of conduct. I. C. § 35-41-2-2(c).


[24]   The intent to commit murder can be inferred from the use of a deadly weapon

       in a manner likely to cause death or serious injury. Williams v. State, 700

       N.E.2d 784, 787 (Ind. 1998). The evidence most favorable to the murder

       conviction suggests that Cain lured his victim to the door by rattling or

       knocking on the door, and he then fired three shots into the door. Several other

       shots were fired through the windows on either side of the door. This evidence

       is sufficient to permit the fact-finder to conclude that Cain knowingly killed

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 9 of 16
       Cheeks. There is sufficient evidence to support Cain’s convictions for murder

       and possession of a handgun by a serious violent felon.


                                                Sentencing
[25]   Indiana Code Section 35-50-2-3 provides that a person convicted of murder

       faces a sentencing range of forty-five to sixty-five years, with the advisory

       sentence being fifty-five years. Indiana Code Section 35-50-2-5.5 provides that

       a person convicted of a Level 4 felony faces a sentencing range of two years to

       twelve years, with the advisory sentence being six years. In imposing

       consecutive sentences of fifty-eight years and ten years, respectively, the trial

       court found one mitigating circumstance, Cain’s family history, and several

       aggravators: criminal history, violation of parole, and endangerment of others

       by firing numerous shots into an occupied residence.


[26]   Cain contends that the trial court abused its discretion by recognizing improper

       aggravators and imposed consecutive sentences in reliance upon those improper

       aggravators. He also contends that his aggregate sixty-eight-year sentence is

       inappropriate.


                                          Abuse of Discretion
[27]   Sentencing decisions are within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. However, a trial court may be found to have abused its sentencing

       discretion in a number of ways, including: (1) failing to enter a sentencing

       statement at all; (2) entering a sentencing statement that explains reasons for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 10 of 16
       imposing a sentence where the record does not support the reasons; (3) entering

       a sentencing statement that omits reasons that are clearly supported by the

       record and advanced for consideration; and (4) entering a sentencing statement

       in which the reasons given are improper as a matter of law. Id. at 490-91. The

       reasons or omission of reasons given for choosing a sentence are reviewable on

       appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,

       i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.


[28]   Cain asserts that the number of shots fired should not have been considered in

       aggravation of his sentence for murder. According to Cain, this is evidence of

       his recklessness and militates toward leniency in sentencing. We have rejected

       Cain’s argument that he acted with mere recklessness, supra. Moreover,

       although Cain killed Cheeks by firing a gunshot, he fired several shots in

       addition to the fatal one. In so doing, he endangered at least one person other

       than his murder victim. A trial court may consider the particularized

       circumstances of a crime as an aggravator. Gellenbeck v. State, 918 N.E.2d 706,

       712 (Ind. Ct. App. 2009). Cain has shown no abuse of discretion in this regard.


[29]   Cain also argues that the trial court abused its discretion by using his 2013

       battery conviction to aggravate his instant sentences. He observes that the

       battery conviction was the same conviction used to establish that he is a serious

       violent felon.


[30]   In its sentencing statement, the trial court said:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 11 of 16
               A significant aggravator for this one [case], however, is the
               conviction for the battery, in the sense that it was a crime of
               violence and was done by means of a deadly weapon, although I
               think in that case the deadly weapon was brass knuckles as
               opposed to a weapon.


       (Tr. Vol. III pgs. 34-35.)


[31]   In Hatchett v. State, 740 N.E.2d 920 (Ind. Ct. App. 2000), trans. denied, a panel of

       this Court held that a defendant who had been convicted of being a serious

       violent felon in possession of a firearm could not have his sentence enhanced by

       the same prior conviction that formed the basis of the firearm charge. The

       Court noted that a factor that constitutes a material element of a crime cannot

       be considered as an aggravating factor. Id. at 928. See also Shell v. State, 927

       N.E.2d 413 (Ind. Ct. App. 2010) (it was improper to rely upon a prior dealing

       conviction as an aggravating factor, where the defendant’s conviction for being

       a serious violent felon in possession of a firearm was based on that dealing

       conviction).


[32]   Here, Cain’s conviction for being a serious violent felon in possession of a

       firearm was based on his 2013 battery conviction. To the extent that the trial

       court relied upon the battery conviction to enhance the sentence for possession

       of a firearm by a serious violent felon, it was improper. However, the trial court

       was free to consider the remainder of Cain’s criminal history. He has been

       adjudicated delinquent on three occasions. He has had convictions for carrying

       a handgun without a license, possession of marijuana, criminal conversion, and

       criminal trespass. He was on parole when he committed the instant offenses.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 12 of 16
       Moreover, in addition to Cain’s criminal history and failure of rehabilitative

       efforts, he has had numerous other contacts with the criminal justice system

       that did not result in convictions.


[33]   When a trial court has abused its sentencing discretion in some regard, remand

       for resentencing is not required if the reviewing court can say with confidence

       that the trial court would have imposed the same sentence based upon proper

       consideration of the reasons supported by the record. Anglemyer, 868 N.E.2d at

       491. Here, in light of Cain’s criminal history and the circumstances of his

       crimes, we are confident that the trial court would have imposed the ten-year

       sentence for possession of a handgun by a serious violent felon absent

       consideration of the battery conviction. A remand for reconsideration of

       aggravating and mitigating circumstances is not warranted.


                                       Consecutive Sentences
[34]   The decision to impose consecutive or concurrent sentences is within the trial

       court’s sound discretion and is reviewed only for an abuse of discretion.

       Gellenbeck, 918 N.E.2d at 712. Although a trial court is required to state its

       reasons for the imposition of consecutive sentences, it may rely upon the same

       reasons to impose an aggravated sentence and to impose consecutive sentences.

       Id. Here, the trial court did not articulate separate reasons for the consecutive

       sentences. Cain asserts that the trial court “by relying on the two invalid

       aggravating circumstances … abused its discretion in entering consecutive

       sentences.” Appellant’s Brief at 41.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 13 of 16
[35]   We have concluded that only one aggravating circumstance was improperly

       found, and that only as to the conviction for possession of a firearm by a serious

       violent felon. There remain valid aggravating circumstances recognized by the

       trial court, including criminal history, failure of rehabilitative efforts, and

       particularized circumstances of the murder. A single aggravating circumstance

       may support the imposition of consecutive sentences. Hampton v. State, 873

       N.E.2d 1074, 1082 (Ind. Ct. App. 2007). We conclude that the trial court did

       not abuse its discretion in imposing consecutive sentences.


                                   Appropriateness of Sentence
[36]   Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In performing our review, we assess “the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

       to attempt to leaven the outliers. Id. at 1225.


[37]   When considering whether a sentence is inappropriate, we need not be

       “extremely” deferential to a trial court’s sentencing decision, but we accord due

       consideration to that decision, recognizing the unique perspective of the trial

       court. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

       Accordingly, a defendant ‘“must persuade the appellate court that his or her


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 14 of 16
       sentence has met th[e] inappropriateness standard of review.”’ Anglemyer, 868

       N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

       In conducting our independent review, we “should focus on the forest – the

       aggregate sentence – rather than the trees – consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Cardwell, 895

       N.E.2d at 1225.


[38]   As to the nature of the offense of murder, Cain made sounds luring his victim to

       her front door. He then fired at least seven shots into a dwelling where Cheeks

       lived with her four-year-old child, her mother, and her brother. This was

       apparently in retaliation for an alleged theft. As to possession of a handgun by

       a serious violent felon, Cain possessed more than one handgun after he had

       been convicted of Battery, as a Class C felony. Within the month prior to

       Cheeks’ murder, Cain had been photographed displaying handguns.


[39]   As to the character of the offender, Cain joined a gang, the Street Family. He

       has not attained a high school diploma, a GED, or gainful employment. He

       has a history of criminal activity without interruption. He was adjudicated

       delinquent on multiple occasions, for having committed acts that would be

       conversion, trespass, theft, and intimidation if committed by an adult. As an

       adult, Cain was twice convicted of possession of marijuana. He was convicted

       of trespass, carrying a handgun without a license, and battery. The battery was

       committed upon a woman who had testified against Cain in a former murder

       trial, where he was acquitted. An evidentiary exhibit presented at the

       sentencing hearing indicated that Cain’s act of retaliation included stomping on

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 15 of 16
       the victim’s face, kicking her in the chest, and punching her in the head while

       he was wearing brass knuckles.


[40]   Cain was on parole when he committed the instant offenses. He has in the past

       violated conditions of probation and a community corrections placement.

       During his current incarceration in the Department of Correction, he accrued

       ten misconduct reports. In sum, the nature of Cain’s offenses and what is

       known of his character do not militate toward a lesser sentence than that

       imposed.


[41]   Having reviewed the matter, we conclude that the trial court did not impose an

       inappropriate sentence under Appellate Rule 7(B), and the sentence does not

       warrant appellate revision.



                                               Conclusion
[42]   Cain has not shown that the trial court abused its discretion in the admission of

       evidence or in sentencing Cain. Cain’s convictions are supported by sufficient

       evidence of probative value. His aggregate sixty-eight-year sentence is not

       inappropriate.


[43]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2562 | June 22, 2017   Page 16 of 16
