MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Jul 29 2019, 8:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              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
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clarence Boris Miller,                                   July 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2912
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1704-MR-2236



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019                      Page 1 of 16
                               Case Summary and Issues
[1]   Following a jury trial, Clarence Miller was convicted of murder, a felony, and

      aggravated battery, a Level 3 felony, and was subject to a firearms sentencing

      enhancement. He was sentenced to a total of eighty-two years. Miller now

      appeals his convictions, raising two issues for our review which we reorder and

      restate as follows: whether the trial court erred in admitting certain hearsay

      evidence and whether the evidence was sufficient to support his convictions.

      Concluding the trial court did not abuse its discretion in admitting the hearsay

      statement and there was sufficient evidence to support Miller’s convictions, we

      affirm.



                            Facts and Procedural History
[2]   In the early morning hours of April 15, 2017, Miller and a companion arrived at

      The Pony Gentlemen’s Club in Evansville. Miller was wearing a camouflage

      shirt with light colored sleeves and a hat. Upon entering, Miller spoke for

      several minutes with Melissa Davis, an employee of the club who had known

      Miller for a few months and had been intimate with him a few times. Miller

      then paid for a private dance with a woman known as Holly. Miller and Holly

      went into a private room together.


[3]   While in the private room, Miller touched Holly and asked her to have sex,

      both of which are against club rules. Holly reported the incident to Dave Hill,

      the security manager, who instructed security to remove Miller from the club.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 2 of 16
      Security team member Max Milburn saw Miller exit the private room and

      aggressively approach another security team member. Because it looked to

      Milburn as though Miller was going to take a swing at someone, he put Miller

      in a headlock from behind. The two “tussled a little bit,” with Milburn’s goal

      being to wear Miller out so he would want to leave. Transcript, Volume II at

      232. Ron Chandler, another security team member, approached to assist and

      Miller punched him in the face. Security team member Mario Butler also

      stepped in to help restrain Miller. At 3:18 a.m., Miller and his companion were

      escorted from the building. General manager Scott Winterburn followed them

      out to ensure they left the premises. He described Miller as “pretty angry”

      when he left. Id. at 222. Winterburn also recorded video with his phone of

      Miller leaving to document identifying information in case Chandler wanted to

      press charges. Miller was not wearing a hat as he left.


[4]   Butler heard Miller say, “I’ll shoot this place up[,]” as he walked out the door

      and then repeat it after he went outside. Tr., Vol. III at 34. Chandler heard

      Miller threaten to return and communicated through his radio headset to other

      security team members that the customer “said he’s going to be back[.]” Tr.,

      Vol. II at 165. Chandler died prior to trial in an unrelated event.


[5]   At about the same time Miller and security personnel were scuffling in the back

      of the club, Aaron Jennings, his cousin Daniel Sargent, and two friends arrived

      at the club to celebrate Jennings’ birthday. Sargent went in alone to see if it was

      worth everyone paying the cover. As he walked around, he noticed “some kind

      of altercation.” Id. at 185. Miller walked past Sargent as he was escorted out of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 3 of 16
      the building and Sargent heard him “talking crazy, something about he was

      going to come back, shoot up this place and all this other stuff[.]” Id. at 187.

      Miller may not have used those exact words, but “he insinuated he was coming

      back and shooting the place up.” Id. at 198. Sargent thought “it was just

      somebody talking crap, just I mean drunk.” Id. at 190. Jennings and his friends

      ultimately decided to come into the club.


[6]   Approximately fifteen minutes later, Jennings and Sargent went back outside to

      smoke near the front entrance. Several people, including Gerald Bankston,

      were also outside smoking. Sargent walked toward the east parking lot with

      several other customers who said they had alcohol in their cars.1 Within a

      matter of seconds, Sargent heard what sounded like a firework and then

      Bankston came around the corner of the building screaming and someone

      shouted “get down man, he’s got a gun.” Id. at 192. Sargent ran back to the

      front of the building to find Jennings on the floor just inside the front door of

      the Pony. Jennings had been shot on the left side of his torso. He was

      transported to the hospital where he died from his injuries.


[7]   Bankston had arrived at the Pony close to 3:30 a.m. and stayed outside the front

      entrance to smoke a cigarette and “shoot[] the breeze” before going in. Id. at

      127. About ten minutes after Bankston’s arrival, he was shot three times.

      Bankston crawled along the sidewalk in front of the Pony and around the side




      1
          The Pony is an alcohol-free establishment.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 4 of 16
      of the building, “hollering, screaming at the top of my lungs[.]” Id. Eventually,

      he crawled to his car and drove himself to a nearby gas station where he was

      able to summon help. Bankston suffered the following wounds: “I got shot . . .

      in my spine, it fractured my spine. I got shot in my side, in my thigh, . . . and I

      got grazed in my buttocks.” Id. at 129. Bankston still suffers “[m]ental[ly],

      physically, . . . emotionally, everything. . . . I got shot multiple times for no

      reason, it’s just going to stick with me for the rest of my life. . . . [Pain] keeps

      me from working. It keeps me from doing a lot of stuff.” Id. at 131. Bankston

      did not see who fired the shots.


[8]   Police recovered multiple shell casings from the parking lot to the west of the

      Pony. Two bullet holes were found in a car parked in that lot. Several days

      after the shootings, based partly on the license plate number Winterburn had

      documented as Miller and his friend drove away from the Pony, Miller was

      apprehended in Chicago and his car was impounded. A search of the car

      revealed a camouflage shirt with different colored sleeves in the trunk. DNA

      analysis of the shirt showed “a major profile . . . that was consistent with

      Clarence Miller.” Tr., Vol. III at 86. The weapon used in the shooting was

      never found.


[9]   The State charged Miller with murder, a felony, for the death of Jennings, and

      aggravated battery, a Level 3 felony, for the injuries to Bankston. The State




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 5 of 16
       also sought a sentencing enhancement because Miller used a firearm when

       committing a felony offense.2


[10]   Because Chandler was deceased, the State requested a preliminary ruling from

       the court on whether Hill would be allowed to testify to what Chandler told the

       security team that Miller said as he left the club. The State offered several

       justifications for admission of the statement: present sense impression, excited

       utterance, and evidence of the declarant’s state of mind. The trial court

       preliminarily ruled that the evidence would be admitted as a present sense

       impression. See Appellant’s Appendix, Volume II at 75 (stating Chandler’s

       statement “was made immediately following, or very close in time to, the

       incident, and . . . was based upon [Chandler’s] perception of the event”).

       During the jury trial, prior to the State calling Hill to the stand, Miller renewed

       his motion to exclude Hill “from testifying regarding any hearsay that he was

       told by [Chandler] who is now deceased and unable to testify and who’s [sic]

       testimony was not preserved[.]” Tr., Vol. II at 153-54. The trial court clarified

       with the State that it intended to question Hill only as to what Chandler said

       after Miller was ejected from the club and prior to the shooting;3 on that

       understanding, the trial court overruled Miller’s objection. Hill testified that

       Miller and his friend left the club “and as far as I know they got in the car and




       2
        A third charge, criminal recklessness as a Level 5 felony for shooting a firearm into a “building or place
       where people are likely to gather[,]” Ind. Code § 35-42-2-2(b)(2)(A), was dismissed.
       3
           Chandler gave a statement to the police recounting Miller’s statement at a later time.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019                      Page 6 of 16
       that’s when they said, [Chandler] had said something about [Miller] coming

       back over the radio . . . .” Id. at 163.


[11]   The State also introduced into evidence several DVDs containing surveillance

       videos, including a compilation video from multiple sources and multiple

       angles. The compilation video begins by showing a man wearing a camouflage

       shirt and baseball cap with long hair standing in the Pony’s parking lot with

       another man. At 2:40 a.m., the man and his companion enter the Pony. Davis

       identified Miller as the person entering the club at 2:40 a.m. At 3:18 a.m.,

       Miller leaves the club, no longer wearing the hat. At 3:38:36 a.m., footage from

       Phillips Signs and Graphics, located two buildings to the west of the Pony,

       shows a man whose face is not visible wearing a camouflage shirt with light

       colored sleeves walking past the sign shop and crossing the parking lot toward

       the Pony.4 Security footage from outside the front entrance of the Pony shows

       a group of approximately six men standing under the awning at that same time.

       At 3:38:46 a.m., one man flinches, one man falls down, and several of the men

       run into the club. At around the same time, video from a security camera at the

       Pony facing the west parking lot shows “what looks like a reflection between

       two cars just before the muzzle flash.” Tr., Vol. II at 89. At 3:39:06, footage

       from the sign shop shows a man in a camouflage shirt with light colored sleeves




       4
        The officer who collected the security camera footage determined, by comparing the time on the police “run
       cards” for this incident with the video showing police officers arriving, that the timestamp on the Phillips
       Sign security footage was one hour and nine minutes slow. In other words, if the time stamp showed 2:00
       a.m., it was actually 3:09 a.m. In this particular instance, the timestamp showed a man walking past the sign
       shop at 2:29 a.m., which would translate to an actual time of 3:38 a.m.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019                   Page 7 of 16
       running from the Pony back across the west parking lot toward the sign shop.

       The man is covering his face with his hands, but Davis identified Miller as the

       person running from his hair and his clothing. Tr., Vol. III at 8. Bankston

       identified himself as the man who fell down and crawled along the sidewalk in

       front of the Pony and around the corner. At 3:43:25 a.m., emergency vehicles

       begin arriving at the Pony.


[12]   The jury found Miller guilty as charged. The trial court sentenced Miller to a

       total of eighty-two years in the Indiana Department of Correction. Miller now

       appeals.



                                  Discussion and Decision
                                   I. Admission of Evidence
                                       A. Standard of Review
[13]   Hearsay is any statement made out of court and offered to prove the truth of the

       matter asserted in court. Ind. Evidence Rule 801(c). Hearsay is inadmissible

       unless it falls within one of the exceptions to the rule against hearsay. Evid. R.

       802. We will reverse a trial court’s ruling on hearsay only upon an abuse of

       discretion. Carr v. State, 106 N.E.3d 546, 554 (Ind. Ct. App. 2018), trans. denied.

       An abuse of discretion occurs when the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before the court. Gaby v.

       State, 949 N.E.2d 870, 877 (Ind. Ct. App. 2011). We will affirm the trial court’s




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 8 of 16
       evidentiary ruling on any basis supported by the record. Carr, 106 N.E.3d at

       554.


                                       B. Hearsay Testimony
[14]   Miller contends the trial court erred in admitting Hill’s testimony about what

       Chandler reported to him about Miller’s statements. Because Hill’s testimony

       consists of hearsay within hearsay – Chandler relating to Hill what Miller said

       to Chandler – the statements are not admissible unless “each part of the

       combined statement” falls within a hearsay exception. Myers v. State, 887

       N.E.2d 170, 189 (Ind. Ct. App. 2008), trans. denied; see Evid. Rule 805

       (“Hearsay within hearsay is not excluded by the rule against hearsay if each

       part of the combined statements conforms with an exception to the rule.”).

       Miller’s statement to Chandler was not hearsay because it was made by the

       defendant and offered against him at his trial. Evid. R. 801(d)(2)(A) (a

       statement is not hearsay if it “is offered against an opposing party and . . . was

       made by the party in an individual or representative capacity[.]”). Miller

       concedes his statement to Chandler constitutes a statement by an opposing

       party. See Brief of Appellant at 17. Therefore, we are only concerned with

       Chandler’s statement to Hill.


[15]   In seeking a preliminary ruling on the admissibility of Hill’s testimony, the

       State offered several exceptions to the hearsay rule: present sense impression,

       Evid. R. 803(1); excited utterance, Evid. R. 803(2); and then-existing mental,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 9 of 16
       emotional, or physical condition, Evid. R. 803(3).5 The trial court preliminarily

       ruled the testimony would be allowed as a present sense impression. In

       responding to Miller’s objection at trial, the State primarily relied on that

       exception, and again, the trial court ruled the testimony was admissible.


[16]   Evidence Rule 803(1) provides that “[a] statement describing or explaining an

       event, condition or transaction, made while or immediately after the declarant

       perceived it” is not excluded by the rule against hearsay. In order for a

       statement to be a present sense impression, it must: 1) describe or explain an

       event or condition; 2) be made during or immediately after the event or

       condition’s occurrence; and 3) be based upon the declarant’s perception of the

       event or condition. Minor v. State, 36 N.E.3d 1065, 1070 (Ind. Ct. App. 2015),

       trans. denied.


[17]   The State offered Amos v. State, 896 N.E.2d 1163 (Ind. Ct. App. 2008), trans.

       denied, in support of allowing Hill’s testimony. In Amos, the defendant’s

       girlfriend, Keyonia, was speaking on her land line telephone to her sister,

       Lavonn, when Keyonia received a call on her mobile phone from the

       defendant. Keyonia put Lavonn on hold to speak to the defendant, who told

       Keyonia that he would kill her if she did not give him some money. After

       Keyonia ended her call with the defendant, she immediately returned to her call




       5
        The State also noted that “arguably[,]” Evidence Rule 803(6) describing records of a regularly conducted
       activity, could also apply. Appellant’s App., Vol. II at 49.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019                  Page 10 of 16
       with Lavonn and told Lavonn what the defendant had said. This court held

       that Keyonia’s statements to Lavonn qualified as a present sense impression:


               [W]hen Keyonia spoke to Lavonn, she was describing and
               explaining the event of the cell phone conversation with [the
               defendant]. The declarant, Keyonia, also perceived the event in that,
               during the course of a telephone conversation, a person
               perceives, through listening, the words of the other party.
               Additionally, Keyonia’s statements regarding what [the
               defendant] had told her during their cell phone conversation were
               made immediately after she had completed her cell phone call with [the
               defendant]. . . . This proximity in time between the event and
               Keyonia’s description of the event satisfies the requirement of the
               exception.


       Id. at 1168-69 (emphasis added).


[18]   The facts of Amos are very similar to the facts here and would seem to settle the

       issue, but Miller contends Amos was wrongly decided because “[i]n Amos,

       contrary to the Court’s holding, the declarant was the defendant because it was

       the defendant who made the statement in question. [Keyonia] repeating the

       declarant’s statement does not thereby also become a declarant.” Br. of

       Appellant at 18. Accordingly, Miller asserts that “Chandler was not the

       declarant, Miller was the declarant.” Id. A declarant is defined as “the person

       who made the statement.” Evid. R. 801(b). Miller was the declarant when he

       made the initial statement to Chandler, and then Chandler was the declarant

       when he made a statement to Hill relaying what Miller had said. Miller did not




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 11 of 16
       make a statement to Hill, which is what makes this a case of double hearsay. 6

       We decline Miller’s invitation to revisit the Amos court’s holding.


[19]   As for whether Chandler’s statement to Hill was a present sense impression,

       Miller does not offer an argument other than that discussed above. Hill testified

       that after Miller and his friend left the Pony,


                as far as I know they got in the car and that’s when they said,
                [Chandler] had said something about him coming back over the
                radio and he’d be back.
                Q: Is that immediately after [Miller] left?
                A: Yeah.


       Tr., Vol. II at 163. Chandler was describing the event of Miller leaving the club

       during which he said he would be back. Chandler perceived the event by

       hearing Miller’s words, and he immediately radioed the security staff to relate

       what Miller had said. As in Amos, the trial court did not abuse its discretion in

       determining Chandler’s statement to Hill was admissible as a present sense

       impression.7




       6
        Followed to its logical conclusion, Miller’s argument that he remained the declarant for purposes of the
       hearsay analysis would also mean that the statement remains a statement by a party opponent and it would
       be admissible under that exception.
       7
         We also note that Sargent testified that he heard Miller say he would be back as he exited the club and both
       Butler and Sargent testified they heard Miller say he would shoot the place up. Even if the trial court erred in
       allowing Hill to testify to the double hearsay statement, the error would not be reversible because the
       testimony was cumulative. See Howard v. State, 122 N.E.3d 1007, 1017 (Ind. Ct. App. 2019) (“[T]he
       erroneous admission of evidence that is merely cumulative of other evidence is harmless error.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019                     Page 12 of 16
                               II. Sufficiency of the Evidence
                                       A. Standard of Review
[20]   On appeal, we do not reweigh evidence or judge witness credibility. Negash v.

       State, 113 N.E.3d 1281, 1291 (Ind. Ct. App. 2018). We will consider only the

       evidence and reasonable inferences most favorable to the verdict. Id. “Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt.” Id. The State need not present

       direct evidence to support each element of the crime, as it has long been held

       that a conviction may rest on circumstantial evidence alone. Perry v. State, 78

       N.E.3d 1, 8 (Ind. Ct. App. 2017). “Circumstantial evidence need not overcome

       every reasonable hypothesis of innocence. It is sufficient if an inference drawn

       from the circumstantial evidence reasonably tends to support the conviction.”

       Peters v. State, 959 N.E.2d 347, 355 (Ind. Ct. App. 2011) (citation omitted).


                                    B. Evidence of the Crimes
[21]   Miller was convicted of murder and aggravated battery for firing the shots that

       killed Jennings and wounded Bankston. Miller argues the State’s evidence is

       insufficient to support his convictions because there is no direct evidence of his

       guilt and insufficient circumstantial evidence from which the jury could have

       reasonably drawn an inference that Miller was the shooter without resorting to

       “mere guess, conjecture, surmise, possibility or speculation[.]” Br. of Appellant

       at 13 (quoting Eifler v. State, 570 N.E.2d 70, 75 (Ind. Ct. App. 1991), trans.

       denied).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 13 of 16
[22]   As stated above, a conviction may be sustained on circumstantial evidence

       alone, even a conviction for murder. See Sallee v. State, 51 N.E.3d 130, 134

       (Ind. 2016). In this case, the circumstantial evidence reveals that:


           • Miller was told to leave the Pony at 3:18 a.m. for violating club rules;

           • Miller fought with club security before leaving;

           • Miller was “pretty angry” when he left, Tr., Vol. II at 222;

           • As he left, Miller said that he would be back, and one security guard and

               at least one customer heard him say he would “shoot this place up,” Tr.,

               Vol. III at 34;

           • At 3:38:36 a.m., surveillance video shows a man wearing the same

               clothes that Miller was wearing twenty minutes earlier when he was in

               the Pony walking from the west toward the Pony;

           • At 3:38:46 a.m., surveillance video shows one man outside the Pony

               flinch and dive toward the front door and one man fall down and drag

               himself around the side of the building. Bankston identified himself as

               the man who fell down and described being shot in the back and the leg;

           • At around the same time, surveillance video of the west parking lot

               shows what a police officer described as a reflection between two cars

               and muzzle flashes;

           • At 3:39:06 a.m., surveillance video shows a man in the same clothes

               Miller had been wearing earlier running across the west parking lot and

               away from the Pony;



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 14 of 16
           • Davis identified the man seen in the surveillance video walking toward

               the Pony and then running back less than one minute later as Miller;

           • Shell casings were found in the spot where the reflection and muzzle

               flashes were seen; and

           • The shirt the man in the videos is wearing was found in Miller’s car trunk

               and had his DNA on it.


[23]   No one saw the shooter, and Miller posits that it is “sheer speculation and

       surmise” to conclude from this evidence that Miller is the unidentifiable person

       seen hovering in the west parking lot or that the flashes of light in that area were

       muzzle flashes from a gun. Br. of Appellant at 14. Having viewed the

       surveillance videos, we agree with Miller that the video of the west parking lot

       which purportedly shows a person and muzzle flashes is inconclusive at best.

       But even without that portion of the compilation video, there is sufficient

       evidence from which a reasonable fact finder could determine that the State had

       proven its case. Miller was angry when he left the club at 3:18 a.m. and

       threatened to return and shoot up the place. A man wearing clothing identical

       to what Miller had been seen wearing at the club walks toward the Pony at

       3:38:46 and runs back from the direction of the club at 3:39:06 – less than a

       minute later. In that minute, two men are shot while standing outside the

       Pony. Davis positively identified Miller as the man running away from the

       Pony and the shirt the man is wearing in the videos was found in Miller’s car

       and contained his DNA. A reasonable inference from this evidence is that

       Miller is the person who shot at the Pony, striking both Jennings and Bankston.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 15 of 16
[24]   Miller admits being in the club earlier in the evening but posits that “it is just as

       reasonable” to conclude from the surveillance videos that “Miller was simply

       fleeing for his life” from another person in the area who fired the shots. Br. of

       Appellant at 15-16. This is a request that we reweigh the evidence and

       speculate that there even was another person in the area – one who was not

       visible on any surveillance videos before, during, or after the shooting and one

       who had a perceived reason to shoot at the club. Given the circumstances

       under which Miller left the club, the short frame of time in which Miller was

       seen walking toward the Pony and then running back from the Pony, and the

       fact that a shooting took place during that time, we conclude the evidence was

       sufficient to support his convictions.



                                               Conclusion
[25]   The trial court did not abuse its discretion in admitting Chandler’s hearsay

       statement as a present sense impression and there was sufficient evidence to

       support Miller’s convictions. Accordingly, his convictions are affirmed.


[26]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2912 | July 29, 2019   Page 16 of 16
