MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Jan 23 2018, 8:34 am
regarded as precedent or cited before any
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
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Wilson,                                           January 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1704-CR-830
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1608-MR-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018              Page 1 of 9
                                 Case Summary and Issues
[1]   Following a jury trial, Donald Wilson was convicted of murder and the trial

      court sentenced Wilson to the maximum sentence of sixty-five years in the

      Indiana Department of Correction.1 Wilson appeals his conviction raising two

      issues for our review: 1) whether the trial court abused its discretion in ordering

      Wilson to display his tattoo to the jury; and 2) whether the trial court abused its

      discretion in admitting hearsay testimony pursuant to the excited utterance

      exception. Concluding any error in ordering Wilson to display his tattoo is

      harmless and that the trial court did not abuse its discretion in admitting

      hearsay testimony, we affirm.



                              Facts and Procedural History
[2]   Wilson and Joann Newgent were neighbors in their apartment complex. In the

      late afternoon of August 25, 2016, sixty-seven-year-old Newgent knocked on

      Wilson’s apartment door and asked him to turn down his music. Wilson

      slammed his door in Newgent’s face. Newgent returned to her apartment and,

      within a “matter of minutes,” called her friend and neighbor, Clark Curtis, Jr.

      Transcript, Volume 2 at 96-98. Newgent sounded “very upset” and told Curtis

      she had “asked [Wilson] to turn down his stereo . . . [because it] is her naptime




      1
        Following the guilty verdict, Wilson pleaded guilty to unlawful possession of a firearm by a serious violent
      felon. The trial court sentenced Wilson to six years in the DOC for this offense to run consecutively to his
      conviction for murder.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018              Page 2 of 9
      . . . [and Wilson] slammed the door in [her] face.” Id. at 96, 104. A few

      minutes later, Curtis received another call from Newgent. Curtis answered the

      phone and heard, “oh, my God . . .” and the call ended. Id. at 105. Concerned

      that Newgent may have suffered a medical emergency, Curtis called 911 and

      requested the police conduct a welfare check on Newgent.


[3]   Shortly thereafter, Officer Joshua Watts of the Mishawaka Police Department

      arrived at Newgent’s apartment. Officer Watts knocked on the door and rang

      the doorbell, but received no answer. Since Newgent’s car was in the parking

      lot, Officer Watts assumed she was home and opened the door to her

      apartment. He discovered Newgent laying on the floor in a large pool of blood.

      Officer Watts also observed pieces of broken particle board and a broken table

      leg on the floor of the room. Newgent’s injuries included three major

      lacerations on the right side of her scalp, a broken skull, bruising and abrasions

      on her face, scalp, back, hand, and knee, two fractured ribs, and internal

      bleeding. Newgent later succumbed to her injuries.


[4]   As the police began to evacuate the surrounding area, Jeremy Spencer

      approached them with his observations. Spencer’s wife works at the

      laundromat across the street from the apartments and he regularly visits her at

      work. Before the police arrived at Newgent’s apartment, Spencer observed

      Wilson, whom he had recognized from prior occasions, walk by the

      laundromat on his way to buy dinner from a local restaurant. Spencer stated he

      was “talking to himself [and] kind of looking around.” Id. at 125. As Wilson

      returned carrying two styrofoam containers, Spencer noticed Wilson had a

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018   Page 3 of 9
      rebel flag tattoo. Wilson dropped off the styrofoam containers at his apartment

      and then entered Newgent’s apartment. A few minutes later, Spencer observed

      Wilson exit Newgent’s apartment carrying an oval table and three table legs.

      Wilson carried them to a dumpster and threw them away.


[5]   The police made numerous efforts to engage with Wilson and have him exit his

      apartment, but he did not respond. Following a standoff with Mishawaka’s

      SWAT team, Wilson exited his apartment and was arrested. Corporal Kyle

      Slater, a St. Joseph County Police Department crime scene investigator, noticed

      Wilson had cuts on his knuckles. A search of Wilson’s apartment discovered a

      towel stained with Wilson’s blood and a pair of jeans containing Newgent’s

      blood and DNA. The police also discovered a handgun in Wilson’s apartment.


[6]   The State charged Wilson with murder and unlawful possession of a firearm by

      a serious violent felon, a Level 4 felony. At trial and over Wilson’s objection,

      the court ordered Wilson to display his rebel flag tattoo to the jury. 2 The State

      also offered the testimony of Terrance Peterson, an inmate in the St. Joseph

      County Jail. Peterson testified Wilson confessed to murdering Newgent and

      that he had disposed of evidence. Wilson also told Peterson he “called

      [Newgent] a b**** and slammed the door in her face.” Tr., Vol. 3 at 17. The

      jury found Wilson guilty of murder. Following the guilty verdict, Wilson

      pleaded guilty to unlawful possession of a firearm by a serious violent felon.



      2
        Spencer testified the rebel flag tattoo was located on Wilson’s left calf. Wilson’s tattoo is located on his left
      forearm. See Tr., Vol. 2 at 140, 151.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018                  Page 4 of 9
      The trial court sentenced Wilson to an aggregate term of seventy-one years in

      the DOC. Wilson now appeals.



                                    Discussion and Decision
                                         I. Standard of Review
[7]   We review a trial court’s ruling on the admission of evidence for an abuse of

      discretion. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). A trial court abuses its

      discretion when its decision regarding admissibility is clearly against the logic

      and effect of the facts and circumstances before the court. Id.


                                          II. Rebel Flag Tattoo
[8]   Wilson first argues the trial court abused its discretion in ordering him to

      display his rebel flag tattoo to the jury. Specifically, Wilson alleges the rebel

      flag is a “hate symbol” and its prejudicial impact upon the jury far outweighs its

      probative value.3 Appellant’s Brief at 11-12.


[9]   Evidence is relevant if “it has any tendency to make a fact more or less probable

      than it would be without the evidence” and “the fact is of consequence in

      determining the action.” Ind. Evidence Rule 401. A trial court may exclude

      relevant evidence if its “probative value is substantially outweighed by a danger




      3
        Wilson did not object at trial to Spencer’s testimony that he had a rebel flag tattoo, only its display to the
      jury.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018                  Page 5 of 9
       of . . . unfair prejudice . . . or needlessly presenting cumulative evidence.” Evid.

       R. 403.


[10]   Here, Spencer recognized and identified Wilson as the person he observed

       walking by the laundromat and entering Newgent’s apartment without the

       assistance of the rebel flag tattoo. Spencer testified,


               [Spencer]:       He, [Wilson], was walking. Usually he’s on a black
                                mountain bike. And when he comes across the
                                parking lot he rides down the sidewalk right in front
                                of the building like behind where my truck was.
                                This day he was walking through the parking lot,
                                like in front of where my truck was. So it struck me
                                as odd.

               [State]:         You said [Wilson], is that somebody you had seen
                                before?

               [Spencer]:       Riding his bike. When I’m sitting there at my wife’s
                                work, I would seen [sic] him ride by on his bike.

                [State]:        But it was something you had been seeing?

               [Spencer]:       Yeah. Numerous times. And then this day he was
                                walking.


       Tr., Vol. 2 at 124-25. Spencer clearly identified Wilson as someone he had

       observed pass by the laundromat on prior occasions and not solely based on the

       identifying characteristic of his forearm tattoo. As such, displaying the tattoo

       was cumulative. However, we need not reach the merits of Wilson’s argument

       because any error in displaying the tattoo is harmless.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018   Page 6 of 9
[11]   “Errors in the admission or exclusion of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of the party.” Lewis v.

       State, 34 N.E.3d 240, 248 (Ind. 2015). In determining whether a party’s

       substantial rights have been affected, we assess the probable impact of that

       evidence on the jury. Id. Here, the jury heard evidence that Wilson slammed a

       door in Newgent’s face, was observed entering and exiting her apartment at the

       time of the murder, attempted to discard evidence, had cuts on his knuckles,

       and confessed to a fellow inmate that he attacked Newgent. The State also

       presented evidence that Newgent’s blood and DNA were found on a pair of

       jeans in Wilson’s apartment. In light of this overwhelming evidence, it is

       unlikely the jury was significantly swayed by the display of a rebel flag tattoo.

       Therefore, even if this evidence was improperly admitted, it was not reversible

       error.


                                      III. Excited Utterance
[12]   Wilson also argues the trial court abused its discretion in admitting evidence of

       Newgent’s first phone call to Curtis concerning her interaction with Wilson.

       The trial court admitted this evidence pursuant to the excited utterance

       exception to the rule against hearsay. See Evid. R. 803(2). Wilson alleges no

       “startling event” or “overpowering experience” occurred to support admitting

       the conversation. Appellant’s Br. at 13.


[13]   The excited utterance exception to the rule against hearsay permits the

       admission of hearsay testimony when it is “[a] statement relating to a startling


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018   Page 7 of 9
       event or condition, made while the declarant was under the stress of excitement

       that it caused.” Evid. R. 803(2). Thus, for a hearsay statement to be admitted

       as an excited utterance, three elements must be met: (1) a startling event, (2) a

       statement made by a declarant while under the stress of excitement caused by

       the event, and (3) that the statement relates to the event. Davenport v. State, 749

       N.E.2d 1144, 1148 (Ind. 2001). Application of this exception is not mechanical

       and admissibility should be determined on a case-by-case basis. Brittain v. State,

       68 N.E.3d 611, 620 (Ind. Ct. App. 2017), trans. denied.


[14]   The evidence demonstrates Newgent, a sixty-seven-year-old woman, walked to

       Wilson’s apartment to request that he turn down his music. In response,

       Wilson called her a b**** and slammed his door in her face. Newgent then

       returned to her apartment and called Curtis within a “matter of minutes” and

       informed him of what happened. Tr., Vol. 2 at 98. Curtis testified that

       Newgent sounded “very upset” on the phone and clearly had an emotional

       response to Wilson’s actions. Id. at 96. Under these circumstances, and with

       Newgent’s request to her neighbor being such a simple one—to turn down the

       music, we cannot say Wilson’s unexpected response of insulting Newgent and

       slamming a door in her face was not a startling event to her. The trial court’s

       decision is not clearly against the logic and effects of the facts and

       circumstances before it.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018   Page 8 of 9
[15]   The trial court did not abuse its discretion in admitting evidence. Accordingly,

       we affirm Wilson’s conviction.


[16]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-830 | January 23, 2018   Page 9 of 9
