MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 21 2019, 6:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darius Montel Bushrod,                                   June 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2769
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1708-MR-5266



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019                  Page 1 of 14
                                                                                  1
[1]   Darius Bushrod appeals his conviction of murder, a felony, and the jury’s
                                                                                        2
      determination that he was eligible for a firearm sentencing enhancement. He

      also appeals his seventy-five-year sentence. We affirm.


                                                    Issues
[2]   Bushrod raises four issues, which we consolidate and restate as:


                 1.       Whether the trial court erred in the admission and
                          exclusion of evidence.


                 2.       Whether Bushrod’s sentence is inappropriate in light of the
                          nature of the offense and the character of the offender.


                                   Facts and Procedural History
[3]   On Sunday, August 27, 2017, at 2:14 a.m., Sergeant Wayne Hunt of the

      Evansville Police Department was on patrol. He heard multiple gunshots and

      identified American Legion Post 354 (“the Post”), which was one block from

      his location, as the source of the shots.


[4]   When he arrived at the Post, Sergeant Hunt saw several people running away

      from the building. Other people directed him to a man slumped on the ground




      1
          Ind. Code § 35-42-1-1 (2017).
      2
          Ind. Code § 35-50-2-11 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 2 of 14
      in the Post’s parking lot. Sergeant Hunt requested an ambulance and additional

      officers to help him deal with the crowd outside the Post.


[5]   Hunt determined the man was alive but unconscious. A security guard told

      Sergeant Hunt that the man had a handgun in his pocket. Sergeant Hunt

      retrieved the gun and secured it. Sergeant Hunt identified the unconscious man

      as Anthony Blaylock after finding an identification card on him.


[6]   Emergency medical personnel and other officers arrived on the scene. They

      determined Blaylock had been shot. After Blaylock was taken away by

      ambulance, officers searched the scene and found several bullet casings.

      Several rounds had struck vehicles in the parking lot, and one round had gone

      through the Post’s wall. Three people other than Blaylock had also been shot,

      but their wounds were minor.


[7]   Detective Peter DeYoung attempted to interview members of the crowd. He

      spoke to ten to twelve people, but they were uncooperative.


[8]   The Post’s management had placed numerous security cameras outside the

      Post, and surveillance recordings were stored on a digital video recorder

      (“DVR”) system with a date and time stamp. Sergeant Hunt and Detective

      DeYoung met with William VanHooks, Jr., the Post’s commander, to review

      recordings of the shooting. The video, which is somewhat blurry, showed a

      person both officers recognized as Bushrod arguing with Blaylock. Bushrod

      walked out of the camera’s field of view before returning to Blaylock,

      brandishing a handgun. Bushrod shot Blaylock several times and fled. A third

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 3 of 14
       person produced a handgun and shot at Bushrod as he fled, inadvertently

       striking the other three victims and several vehicles. Blaylock never drew his

       own handgun.


[9]    Blaylock died in an ambulance on the way to the hospital. A forensic

       pathologist performed an autopsy and determined Blaylock’s cause of death

       was multiple gunshot wounds. One round had entered the base of his neck and

       traveled through the right side of his body before exiting. The examiner found

       soot on Blaylock’s skin near the entrance wound for that round, which

       indicated the gun was less than six inches from Blaylock when Bushrod fired.

       A second round had entered Blaylock’s upper back, passing through his left

       lung, the sac around the heart, and his liver before coming to rest in his torso.

       The injuries caused by that gunshot were “quickly fatal,” and Blaylock “would

       have been beyond being saved after a few seconds to a minute.” Tr. Vol. III,

       pp. 10, 13. The third round entered Blaylock’s torso from left to right and

       passed through his stomach and right kidney before coming to rest in his torso.


[10]   The officers submitted the collected ballistics evidence for analysis. A ballistics

       examiner determined none of the bullets that were fired on that night came

       from Blaylock’s handgun.


[11]   On August 30, 2017, the State charged Bushrod with murder and further

       claimed he was eligible for a sentence enhancement because he used a firearm

       in the course of committing the murder. The case was tried before a jury, and

       Bushrod presented a claim of self-defense. The jury determined Bushrod was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 4 of 14
       guilty of murder and, after a separate proceeding, further determined he was

       eligible for a firearm sentencing enhancement. The trial court imposed a

       sentence of sixty years for the murder conviction plus fifteen years for the

       sentencing enhancement. This appeal followed.


                                    Discussion and Decision
                         I. Admission and Exclusion of Evidence
[12]   Bushrod claims the trial court committed several errors in the admission and

       exclusion of evidence. A trial court is vested with broad discretion in ruling on

       the admissibility of evidence. Sudberry v. State, 982 N.E.2d 475 (Ind. Ct. App.

       2013). We review a court’s evidentiary decisions for an abuse of discretion.

       Griffith v. State, 31 N.E.3d 965 (Ind. 2015). An abuse of discretion occurs when

       the decision “is clearly against the logic and effect of the facts and

       circumstances.” Dunn v. State, 919 N.E.2d 609, 612 (Ind. Ct. App. 2010), trans.

       denied.


[13]   Bushrod first challenges the court’s decision to admit into evidence the Post’s

       surveillance video recordings and photographs derived from the video, claiming

       the State failed to establish an evidentiary foundation. When a party seeks to

       authenticate an item and have it accepted as evidence at trial, the party must

       “produce evidence sufficient to support a finding that the item is what the

       proponent claims it is.” Ind. Evid. Rule 901(a).


[14]   The Indiana Supreme Court has explained that the foundation required to

       authenticate a video recording or a photograph “depends on its use at trial.”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 5 of 14
       Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). If such evidence is intended to

       serve a demonstrative purpose, such as to illustrate testimony, then the

       proponent need only demonstrate through other testimony that the video or

       photo accurately depicts the scene or occurrence as it appeared at the time in

       question. Id. (quotation omitted).


[15]   On the other hand, if the proponent seeks to have the video or photograph

       admitted as substantive evidence “‘as to what activity is being depicted,’” there

       are different foundational requirements. Id. (quoting Smith v. State, 491 N.E.2d

       193, 196 (Ind. 1986)). The proponent need not provide testimony stating that

       the video or photograph accurately represents the scene as it appeared. Id.

       Instead, the proponent should provide identifying testimony of the scene as it

       appears in the video or photograph to persuade the trial court of the video or

       photograph’s “competency and authenticity to a relative certainty.” Id.

       (quotation omitted).


[16]   In Knapp, the State sought to admit into evidence crime-scene photos depicting

       a murder scene. A medical examiner testified he received three photographs

       from the photographer, who was a state police crime technician. The examiner

       further stated he verified when the photographs were taken based on the date

       and time data that was encoded within the image files by the camera. The

       Indiana Supreme Court determined that the examiner’s testimony was

       sufficient to establish the photographs’ competency and authenticity as

       substantive evidence. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 6 of 14
[17]   In the current case, VanHooks testified that he checked the Post’s security

       cameras on a weekly basis. On the day of Blaylock’s death, the surveillance

       cameras and the DVR system were functional. VanHooks further stated that he

       was the only person who had the password to look at live camera footage or to

       review footage stored on the DVR. In addition, he had the only key to the

       locked box in which the DVR was stored.


[18]   Detective Lincoln testified that he downloaded a copy of the recording from the

       DVR system to a USB drive in VanHooks’ presence. VanHooks stated that

       neither he nor Detective Lincoln altered the recording. At that time, Detective

       Lincoln determined the time stamp on the recording was twenty-six minutes

       fast. He later copied the recording onto two DVDs, which he placed in the

       Evansville Police Department’s property room. The State printed off

       photographs from the video recording without altering the recording. Based on

       the holding in Knapp, VanHooks’ and Detective Lincoln’s testimony was

       sufficient to establish the authenticity of the video recording and photographs as

       substantive evidence.


[19]   Next, Bushrod claims the trial court should not have admitted the video

       recording and photographs into evidence because they were “too blurry and

       unclear” for the jury to determine what was being shown. Appellant’s Br. p.

       14. He did not present this argument to the trial court, so it is waived for

       appellate review. See Ferguson v. State, 40 N.E.3d 954 (Ind. Ct. App. 2015)

       (defendant failed to object to trial court’s failure to inform the jury a witness’s



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 7 of 14
       statement had been struck from the record, and the matter was waived on

       appeal), trans. denied.


[20]   Bushrod attempts to avoid waiver by claiming that admission of the video

       recording and photographs was fundamental error. A claim that has been

       waived by a defendant’s failure to raise a contemporaneous objection can be

       reviewed on appeal if the reviewing court determines that fundamental error

       occurred. Brown v. State, 929 N.E.2d 204 (Ind. 2010). An error is fundamental

       if it either makes a fair trial impossible or blatantly violates basic and

       elementary principles of due process. Id. The fundamental error exception is

       available only in “‘egregious circumstances.’” Id. at 207 (quoting Brown v. State,

       799 N.E.2d 1064, 1068 (Ind. 2003)).


[21]   A recording is admissible when, “taken as a whole, [it is] of such clarity that it

       does not lead the jury to speculate about its contents.” Hall v. State, 897 N.E.2d

       979, 981 (Ind. Ct. App. 2008). “Perfect clarity is not required.” Id. Although

       the video recording and the photographs generated from the recording are

       blurry in places, they are sufficiently clear that the jury can determine what

       occurred. Further, during closing arguments both parties reviewed the

       recording with the jury and explained what the recording showed. We cannot

       conclude the video quality was so poor that admission of the video recording

       and photographs amounted to fundamental error.


[22]   For his final claim of evidentiary error, Bushrod argues the trial court erred in

       excluding evidence that Blaylock was a serious violent felon (“SVF”). Bushrod


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 8 of 14
       further argues the SVF evidence would have tended to show that Blaylock was

       the aggressor in their dispute, thus supporting his claim of self-defense.


[23]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Wallace v. State, 725 N.E.2d 837 (Ind. 2000). A defendant claiming self-defense

       must allege, among other elements, “a reasonable fear of death or great bodily

       harm.” Id. at 840. As a result, when self-defense is at issue, any fact which

       reasonably would place a person in fear or apprehension of death or great

       bodily injury is admissible. Russell v. State, 577 N.E.2d 567 (Ind. 1991). “[T]he

       victim’s reputed character, propensity for violence, prior threats and acts, if

       known by the defendant, may be relevant to the issue of whether a defendant had

       fear of the victim prior to utilizing deadly force against him.” Brand v. State, 766

       N.E.2d 772, 780 (Ind. Ct. App. 2002), trans. denied (emphasis added). Further,

       a defendant may not present evidence of the victim’s reputed character for

       violence unless the defendant “first introduce[s] appreciable evidence of the

       victim’s aggression to substantiate the claim of self-defense.” Id.


[24]   In Brand, a panel of this Court determined Brand should have been allowed to

       testify that he knew the victim sold drugs, was a member of a gang, and had

       offered to sell him a handgun. The Court ruled that such evidence was relevant

       to establish the reasonableness of Brand’s fear of the victim. Similarly, in

       Russell, the Indiana Supreme Court determined that Russell should have been

       allowed to testify that the victim had told him he had just been released from

       prison. By contrast, in Bushrod’s case, there was no evidence that he knew that

       Blaylock was a SVF. As a result, Blaylock’s SVF status was irrelevant to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 9 of 14
                                                                                3
       issue of whether Bushrod had a reasonable fear of him. Further, in this case

       Bushrod did not first provide evidence of Blaylock’s aggression sufficient to

       substantiate the claim of self-defense. Blaylock never drew his firearm, and we

       do not know what he and Bushrod said to each other.


[25]   Bushrod cites Chapman v. State, 469 N.E.2d 50 (Ind. Ct. App. 1984), in support

       of his claim that Blaylock’s SVF status should have been admitted into evidence

       regardless of whether Bushrod was aware of it when he killed Blaylock. In

       Chapman, a panel of this Court determined, “When evidence of the victim’s

       violent character is offered for the purpose of showing that the victim was the

       aggressor against the defendant in support of a claim of self-defense, there is no

       requirement of a foundational showing of the defendant’s knowledge of the

       victim’s character.” Id. at 54. The Court cautioned that only reputational

       evidence may be offered for the purpose of showing the victim was the

       aggressor, because other forms of evidence may run the risk of being unfairly

       prejudicial, among other concerns. In Bushrod’s case, there is no evidence that

       Blaylock’s SVF status was public knowledge or part of his reputation in the

       community. In the absence of reputational evidence, the holding in Chapman

       does not require the admission of Blaylock’s SVF status into evidence, and

       Bushrod has failed to demonstrate the trial court abused its discretion.




       3
        On a related issue, Bushrod argues the trial court erred in excluding evidence that Blaylock’s handgun had
       been used in an unsolved shooting. There is no evidence Bushrod was aware that Blaylock had a handgun,
       much less that it had been used in a shooting. The handgun’s history was thus irrelevant to whether Bushrod
       had a reasonable fear of Blaylock.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019                 Page 10 of 14
                                II. Appropriateness of Sentence
[26]   Bushrod argues his seventy-five-year sentence is inappropriately high and asks

       the Court to reduce it to forty-five years, the minimum possible sentence.

       Article seven, section six of the Indiana Constitution authorizes this Court to

       “review and revis[e]” sentences. This constitutional authority is implemented

       through Indiana Appellate Rule 7(B), which provides: “The 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.”


[27]   The principal role of appellate review under rule 7(B) is to attempt to leaven the

       outliers, not to achieve a perceived correct result in each case. Threatt v. State,

       105 N.E.3d 199 (Ind. Ct. App. 2018), trans. denied. As a result, the question is

       not whether another sentence is more appropriate, but whether the sentence

       imposed is inappropriate. King v. State, 894 N.E.2d 265 (Ind. Ct. App. 2008).

       “[W]hether we regard a sentence as appropriate at the end of the day turns on

       our sense of 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). Bushrod has the

       burden of proving his sentence is inappropriate. Howell v. State, 97 N.E.3d 253

       (Ind. Ct. App. 2018), trans. denied.


[28]   At the time Bushrod committed his offense, the maximum sentence for murder

       was sixty-five years, the minimum sentence was forty-five years, and the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 11 of 14
       advisory sentence was fifty-five years. Ind. Code § 35-50-2-3 (2015). In

       addition, if a defendant such as Bushrod was found to have used a firearm in

       the commission of a felony, the court could sentence the defendant to an

       additional fixed term of between five and twenty years. Ind. Code § 35-50-2-11.

       The trial court sentenced Bushrod to sixty years for murder, plus fifteen years

       for the firearm sentencing enhancement. His seventy-five-year sentence is

       lengthy but falls short of the maximum possible sentence of eighty-five years.


[29]   “The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation.” Perry v. State, 78

       N.E.3d 1, 13 (Ind. Ct. App. 2017). Bushrod argues the nature of the offense is

       tragic but not “heinous” because Blaylock died quickly and apparently did not

       suffer extensively. Appellee’s Br. p. 29. We disagree. After arguing with

       Blaylock, Bushrod walked away and returned, thus escalating the dispute. He

       could have refrained from lethal violence but chose to proceed. In addition,

       Blaylock appeared to be unarmed, and there is no evidence Bushrod knew

       Blaylock had a handgun in his pocket. Bushrod nonetheless shot Blaylock three

       times, including once in the back. Finally, Bushrod’s violent act endangered

       not only Blaylock but numerous people inside and outside of the Post. These

       troubling circumstances outweigh Blaylock’s relatively quick death.


[30]   Turning to the character of the offender, Bushrod was almost twenty-one when

       he killed Blaylock, but he had already developed a lengthy criminal record. As

       a juvenile, he was adjudicated a delinquent for acts that, if committed by an

       adult, would have constituted robbery, a Class B felony; battery resulting in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 12 of 14
       bodily injury, a class A misdemeanor; conversion, a Class B misdemeanor;

       theft, a Class D felony; two counts of resisting law enforcement, both Class A

       misdemeanors; and disorderly conduct, a Class A misdemeanor. The juvenile

       courts imposed lesser but escalating sanctions on Bushrod, including a

       suspended commitment to the Indiana Department of Correction (“IDOC”)

       and serving a weekend in secure detention. These lesser sanctions did not deter

       Bushrod from further misbehavior, and he was subsequently placed with the

       DOC on two occasions. In addition, in one case Bushrod was waived to adult

       court, where he pleaded guilty to theft, a Class D felony.


[31]   After Bushrod became an adult, he was convicted of escape, a Class D felony,

       and operating a motor vehicle without obtaining a license, a Class C

       misdemeanor. Over the course of his life, he has accrued new delinquency

       determinations and criminal convictions every few years. In an attempt to

       minimize his lengthy and consistent record of misconduct, Bushrod argues his

       current murder conviction is “only Bushrod’s third felony” as an adult.

       Appellee’s Br. p. 26. We view his history differently, concluding that a twenty-

       one-year old with three felony convictions, one of them for murder, has

       demonstrated an absolute unwillingness to comply with the law despite being

       provided with numerous opportunities to reform his behavior.


[32]   Bushrod claims his relative youth renders his sentence inappropriate. A

       defendant’s youthful age can, in some cases, constitute a significant mitigating

       circumstance warranting a reduced sentence, but that is not automatically the

       case. Coleman v. State, 952 N.E.2d 377 (Ind. Ct. App. 2011). As this Court has

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 13 of 14
       noted, “twenty-one is not especially young.” Id. at 385. Under the facts of this

       case, we cannot conclude his age warrants a reduced sentence. Bushrod has

       failed to demonstrate that his sentence is inappropriate.


                                                Conclusion
[33]   For the reasons stated above, we affirm the judgment of the trial court.


[34]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2769 | June 21, 2019   Page 14 of 14
