                                                                   FILED
                                                                 May 25 2012, 8:55 am
FOR PUBLICATION
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                                 GREGORY F. ZOELLER
Appellate Division                                    Attorney General of Indiana
Office of the Public Defender
Crown Point, Indiana                                  RYAN D. JOHANNINGSMEIER
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TYJUAN J. DIXON,                                      )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )       No. 45A03-1110-CR-482
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Salvador Vasquez, Judge
                               Cause No. 45G01-0910-MR-91


                                           May 25, 2012

                               OPINION - FOR PUBLICATION

BAILEY, Judge


1
  Documents in the Appellant’s Appendix chronicle the trial court cause number as 45G01-0910-MR-9; the
transcript and exhibits list the cause number as 45G01-0901-MR-9.
                                           Case Summary

          Tyjuan J. Dixon (“Dixon”) was convicted of Murder, a Felony,2 and two counts of

Attempted Murder, as Class A felonies.3 He now appeals.

          We affirm.

                                                Issue

          Dixon raises a single issue for our review, which we restate as whether the trial court

abused its discretion when it permitted the State to introduce extrinsic evidence, in the form

of testimony from a police detective, as impeachment of another of the State’s witnesses.

                                     Facts and Procedural History

          On the morning of October 12, 2009, Dixon’s half-brother, Edward Bond (“Bond”)

was living with his girlfriend, Catrenna Walker (“Walker”), in one unit of a two-unit duplex

in the Delaney housing project in Gary. Bond’s car was not operating at the time, and Bond

had asked one of his neighbors, James Smith (“Smith”) for a ride.

          Around 10:00 a.m., Bond went to Smith’s residence and knocked on the door. Smith

was eating breakfast with his wife, Lakeisha Randolph (“Lakeisha”), and sister-in-law,

Gabrielle Randolph (“Gabrielle”). Gabrielle answered the door, and Bond eventually asked

for “the man of the house.” Tr. at 200. Gabrielle told Smith; Smith looked out the window,

saw Bond, and decided not to give Bond a ride at that time.

          Soon afterward, Smith and Gabrielle went outside to clean the interior of Gabrielle’s



2
    Ind. Code § 35-42-1-1.
3
    I.C. §§ 35-41-5-1 & 35-42-1-1.
                                                  2
car. Bond again approached Smith, and an argument ensued that eventually involved both

men, Gabrielle, Lakeisha, and Walker. A crowd assembled in a nearby yard, and at some

point during the argument, Walker called Dixon, hoping that Dixon would calm Bond.

       Dixon arrived soon thereafter and walked to the door of the unit Bond and Walker

shared. Dixon spoke briefly with Bond and Walker and tried to hand Bond a handgun, which

Bond refused to take. Walker moved to push Bond into the home. Dixon, however,

remained outside, turned the handgun on Smith, Lakeisha, and Gabrielle, and began to fire

the weapon.

       All three attempted to flee from Dixon, but were unsuccessful. Smith was shot six

times, with wounds in his head, chest, arm, and hip; Smith died at the scene. Lakeisha was

shot six times, with wounds to her chest and right arm; Lakeisha was hospitalized for five

months because of her injuries, was comatose for some portion of her hospital stay, and after

release from the hospital endured ongoing respiratory problems and medical difficulties

related to the loss of her spleen and injury to her pancreas. Gabrielle was shot twice in her

hip and once on her buttocks, was hospitalized for two weeks, and required rehabilitation.

       On October 14, 2009, Detective Arturo Azcona (“Detective Azcona”) spoke with

Gabrielle and showed her a photographic line-up of individuals matching the description of

the shooter at the scene; Gabrielle identified a photograph of Dixon. On March 22, 2010,

after Lakeisha was released from the hospital, Detective Azcona showed her a different

photographic line-up; Lakeisha also identified Dixon as the shooter.

       On October 23, 2009, the State charged Dixon with one count of Murder and two

                                             3
counts of Attempted Murder. A warrant for Dixon’s arrest was issued that day; Dixon was

arrested on December 23, 2009.

       A jury trial was conducted from July 25, 2011, to July 28, 2011. During the trial,

Walker testified about the incident and stated that she could not recall whether Dixon got out

of his car upon arriving at the duplex. The State showed Walker a signed, written version of

her statement to police wherein she stated that Dixon got out of his car and walked toward

the house. Walker reaffirmed her testimony and indicated that she did not recall telling

police that Dixon had gotten out of his car upon arriving at the duplex. As a result, at the

close of its evidence, the State called Detective Azcona, who had taken Walker’s statement,

to provide extrinsic impeachment of Walker’s testimony. Dixon objected, and the trial court

overruled the objection and instructed the jury that Detective Azcona’s testimony was for

impeachment purposes only.

       At the conclusion of the trial, the jury found Dixon guilty of all three charges. On

October 6, 2011, the trial court entered judgments of conviction against Dixon and sentenced

him to sixty-two years imprisonment for Murder and thirty-seven years imprisonment for

each count of Attempted Murder, with the sentences to be served consecutively, for an

aggregate sentence of 136 years.

       This appeal followed.

                                 Discussion and Decision

       Dixon appeals his conviction, arguing that the trial court erred when, for impeachment

purposes, the court permitted the State to recall Detective Azcona and admitted into evidence

                                              4
the detective’s testimony concerning Walker’s statement to police and the written statement

itself. We review a trial court’s decision concerning the admission of evidence for an abuse

of discretion, which occurs when the trial court’s decision is against the logic and effect of

the facts and circumstances before it. Kendall v. State, 790 N.E.2d 122, 126 (Ind. Ct. App.

2003), trans. denied. Even when a decision on the admissibility of evidence is an abuse of

discretion, we will not reverse a judgment where that error is harmless, that is, where the

error did not affect the substantial rights of a party. Ind. Trial Rule 61; Appleton v. State,

740 N.E.2d 122, 124 (Ind. 2001).

       The Indiana Rules of Evidence govern the use of extrinsic evidence for impeachment

of a witness. “The credibility of a witness may be attacked by any party, including the party

calling the witness.” Ind. Evidence Rule 607. Where a party seeks to examine a witness

concerning a prior statement, the party need not show the statement to the party or disclose

the statement’s contents to the witness, though it must be disclosed to opposing counsel upon

request. Evid. R. 613(a). “Extrinsic evidence of a prior inconsistent statement by a witness

is not admissible unless the witness is afforded an opportunity to explain or deny the same

and the opposite party is afforded and opportunity to interrogate the witness thereon.” Evid.

R. 613(b).    Extrinsic evidence of impeachment is not, however, admissible where

impeachment is complete because the witness “admitted himself a liar,” that is, where the

witness acknowledges having made the prior inconsistent statement. Appleton, 740 N.E.2d

at 126 (citing United States v. Soundingsides, 820 F.2d 1232, 1240-41 (10th Cir. 1987), for

the proposition that there is no basis for introduction of extrinsic evidence of prior

                                              5
inconsistent statement where witness does not deny making the inconsistent statement).

       Here, Dixon contends that Walker’s testimony that she did not remember telling

Detective Azcona that she saw Dixon get out of his car was not inconsistent with her

statement to Detective Azcona that Dixon did get out of his car and a description of Dixon’s

clothes. Dixon directs our attention to Dunlap v. State, 761 N.E.2d 837 (Ind. 2002), in which

our supreme court held that, for the purposes of Rule 613(b), “a statement at trial of ‘I am not

sure’ or ‘I don’t remember’ is not necessarily inconsistent with an earlier statement that

provides the answer to the question being asked.” Id. at 845.

       In Dunlap, a witness testified that she had attempted to turn the defendant around to

prevent a shooting, but was unsure whether she was holding onto or touching the defendant

when the shots were fired. Id. at 844. The defendant confronted the witness with a

transcription of her statement to police, during which she told police that she did not have

hold of the defendant until after the first shot was fired, and asked whether the witness

recalled making that statement to police. Id. The witness did not recall giving police that

description of the events. Id. Dunlap then attempted to introduce into evidence the entirety

of the witness’s transcript for the purpose of impeachment under Rule 613(b); the State

objected that the statements were not inconsistent, and the trial court agreed. Id. Our

supreme court concluded, “the differences between [the witness’s] trial testimony and her

statements in the transcribed police interview [are] within the ambit of the trial court’s

discretion to determine inconsistency,” and thus found no error in the trial court’s decision to

deny admission of the transcript. Id. at 845.

                                                6
        A similar situation obtains here. Walker neither admitted nor denied making the prior

statement regarding Dixon’s attire and conduct, but testified that she did not recall making

the statement, could not recall at trial whether she saw Dixon get out of the car, and reading

the written transcript of her statement did not refresh her memory.4 As in Dunlap, this does

not take the decision on whether to admit Detective Azcona’s testimony and the written

version of Walker’s statement outside “the ambit of the trial court’s discretion to determine

inconsistency.” Id. at 845. We therefore find no error in the trial court’s decision to admit

this evidence.

        Even if the trial court had abused its discretion, however, any error was harmless.

Both Lakeisha and Gabrielle testified that they saw Dixon get out of his car and go toward

the front of the duplex and identified Dixon both at trial and during their respective

statements to police. Gabrielle testified that she saw Dixon attempting to hand a handgun off

to Bond, that she saw Bond refuse to take possession of the firearm, and that she was looking

in Dixon’s direction as he began shooting. Lakeisha testified that the gunshots came from

where Dixon was standing. Both Lakeisha and Gabrielle testified that a large number of

shots were fired at them. Lieutenant Henry Hatch, a ballistics analyst with the Lake County

Sheriff’s Department crime lab, testified that all of the bullets and cartridge casings

recovered from the scene that were capable of being analyzed came from a single firearm.

Thus, there is substantial independent evidence upon which a jury could have convicted



4
 The transcript was labeled as Exhibit 63 at trial, but was not included among the exhibits submitted to this
Court along with the trial record.
                                                     7
Dixon, and we therefore conclude that any error in the admission of Detective Azcona’s

testimony and Walker’s prior statement was harmless. T.R. 61; Appleton, 740 N.E.2d at 126.

      Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




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