MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                  FILED
Memorandum Decision shall not be regarded as                            Nov 30 2017, 8:08 am
precedent or cited before any court except for the
                                                                             CLERK
purpose of establishing the defense of res judicata,                     Indiana Supreme Court
                                                                            Court of Appeals
collateral estoppel, or the law of the case.                                  and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Office of the Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Evan J. Hodge,                                           November 30, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1701-CR-111
        v.                                               Appeal from the Lake County
                                                         Superior Court.
                                                         The Honorable Michael J. Lambert,
State of Indiana,                                        Judge Pro Tempore.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         45G04-1412-MR-11




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017          Page 1 of 12
                                                           1                                                  2
[1]   Following a jury trial, Evan Jauntae Hodge was convicted of murder, a felony,
                                                                                   3
      and carrying a handgun without a license, a Level 5 felony, and was
                                                                      4
      adjudicated and sentenced as a habitual offender. On appeal, he raises three

      issues for our review:


                 1. Whether the trial court erred in admitting into evidence the
                 murder victim’s dying declaration;
                 2. Whether the trial court erred in admitting into evidence two
                 police reports; and
                 3. Whether the State presented sufficient evidence to support
                 Hodge’s murder conviction.


      We affirm.


[2]   The facts most favorable to the judgment reveal that on December 18, 2014,

      Karen Cannon and her fiancé, Martin Joshua, III, spent the night together.

      The following morning, December 19, 2014, Cannon and Joshua went their

      separate ways but kept in contact by phone. Joshua was driving a silver Jaguar

      and had five or six thousand dollars in his possession. Cannon spoke with

      Joshua by phone around 4:00 p.m. and asked who was with him. Joshua




      1
       We note that in the Record on Appeal, Evan Hodge’s middle name is variously spelled as “Jauntay” and
      “Jauntae.” We utilize “Jauntae.”
      2
          Ind. Code § 35-42-1-1(1) (West, Westlaw 2014).
      3
          Ind. Code § 35-47-2-1(e)(2)(B) (West, Westlaw 2014).
      4
          Ind. Code § 35-50-2-8(a) (West, Westlaw 2014).


      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017     Page 2 of 12
      replied, “Tay-Tay and Keyron.” Tr. Vol. 2 p. 36. “Tay-Tay” was Hodge’s

      nickname.


[3]   Cannon next spoke to Joshua around 8:00 or 9:00 p.m., and Joshua said he was

      still with “Tay-Tay and Keyron.” Id. at 39. After Cannon was unable to reach

      Joshua later that evening, she drove to the home of Joe and Ruthie Foster

      located in Gary, Indiana, because she knew that Joshua often spent time at the

      residence. Ruthie is Keyron’s grandmother. When Cannon arrived, she saw an

      ambulance and a police officer.


[4]   The Fosters were at their home on the evening of December 19, 2014, when

      they heard a gunshot. A few minutes later, there was a knock at the front door.

      Joe opened the door, and Joshua fell inside the house. Joshua’s intestines were

      protruding from his abdomen. Joshua tried to stand up but was unable to do

      so. Joshua was “dazed” and “kept on moaning.” Id. at 129. Joshua said,

      “Tay-Tay killed me.” Id. at 130. Joe and Ruthie recognized “Tay-Tay” as a

      nickname for Hodge. A call was placed to 911.


[5]   Corporal Donte Manuel and Corporal Jemel Martin with the Gary Police

      Department responded to the 911 call. The officers saw a silver Jaguar

      automobile parked outside the Fosters’ house. The vehicle was running and its

      headlights were on, but the doors were locked and no one was inside the

      vehicle. When the officers entered the Fosters’ home, they saw Joshua lying on

      the kitchen floor, “rolling around from side to side . . . [, appearing] to be in

      excruciating pain, [and] grabbing his lower abdomen.” Id. at 166. Joshua had


      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 3 of 12
      sustained multiple gunshot wounds, including a graze wound on the left side of

      his chest, a wound to the left of his navel, where his intestines protruded, and a

      wound to his back, just above the hip. Corporal Manuel asked Joshua several

      times who shot him and Joshua replied each time, “Evan Hodge.” Id. at 167.


[6]   When the Gary Fire Department emergency medical technician (EMT) arrived

      at the Fosters’ house, he observed that Joshua was “semi-conscious.” The

      EMT and his partner began life-saving measures and then transported Joshua to

      Northlake Methodist Hospital. When Joshua arrived in the emergency room,

      he did not have blood pressure or a pulse. Medical staff attempted to

      resuscitate Joshua for about an hour before he was pronounced dead. An

      autopsy was performed, and the coroner determined the cause of death was the

      gunshot wound to the abdomen.


[7]   When Corporal Manuel and Corporal Martin investigated the scene of the

      crime, they found a cell phone and one thousand dollars in loose currency on

      the Fosters’ front porch and two shell casings near the Jaguar. Two plastic

      cigar tips and a cigarette butt also were found near the Jaguar. DNA testing of

      the cigar tips and the cigarette butt revealed a profile that was consistent with

      that of Hodge. A sample taken from a “large glob of spit” found at the scene

      indicated an enzyme found in saliva and a DNA profile also consistent with

      that of Hodge. Tr. Vol. 3 p. 17.


[8]   On December 29, 2014, the State charged Hodge with murder. On November

      19, 2015, the State amended the information by adding carrying a handgun


      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 4 of 12
       without a license, as a Level 5 felony, and a habitual offender enhancement. At

       trial, and over Hodge’s objections, the State introduced testimony related to

       statements made by Joshua that he was shot by Hodge. The trial court

       overruled the objections and admitted the statements as dying declarations.

       The trial court also admitted into evidence, over Hodge’s objections, two police

       reports. At the conclusion of the trial, the jury found Hodge guilty as charged.

       He was sentenced to eighty-five years in the Indiana Department of
                     5
       Correction.


[9]    The first issue we address is whether the court abused its discretion in admitting

       certain evidence at trial. Generally, we review the trial court’s ruling on the

       admission or exclusion of evidence for an abuse of discretion. Joyner v.

       State, 678 N.E.2d 386 (Ind. 1997). We reverse only where the decision is

       clearly against the logic and effect of the facts and circumstances. Id.


[10]   Hodge challenges the court’s decision to admit into evidence Joshua’s

       statements identifying Hodge as the person that shot him, and the court’s

       decision to admit into evidence two police reports. We address each of Hodge’s

       challenges separately.


[11]   Hodge argues the trial court erred in admitting Joshua’s statements identifying

       Hodge as the person that shot him. According to Hodge, the statements did not




       5
         Hodge was found to have used a firearm when he committed his crimes, and his sentence was enhanced by
       ten years under Indiana Code Section 35-50-2-11 (West, Westlaw 2014).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017     Page 5 of 12
       qualify as dying declarations and constituted hearsay because no evidence was

       presented that Joshua believed his death was imminent. In support of his

       argument, Hodge points to testimony from Joe Foster that at the time of the

       shooting, Joshua appeared “dazed,” and testimony from the EMT that Joshua

       suffered from “typical gunshot injuries.” Tr. Vol. 2 pp. 129, 225. The State

       maintains that it was apparent from Joshua’s statements and physical condition

       at the time of the shooting that he knew his death was imminent.


[12]   Out-of-court statements offered in court for the truth of the matter asserted are

       generally inadmissible hearsay. See Ind. Evidence Rules 801(c)(2), 802.

       However, one exception to the inadmissibility of hearsay is an out-of-court

       statement that is “[a] statement that the declarant, while believing the

       declarant’s death to be imminent, made about its cause or circumstances.”

       Evid. R. 804(b)(2). The admissibility of such a “‘dying declaration’” is based

       on “the belief that persons making such statements are highly unlikely to

       lie.” Idaho v. Wright, 497 U.S. 805, 820, 110 S. Ct. 3139, 3149, 111 L. Ed. 2d

       638 (1990).


               In order to determine if a declarant made statements with the
               belief that death was imminent while having abandoned all hope
               of recovery, the trial court may consider the general statements,
               conduct, manner, symptoms, and condition of the declarant,
               which flow as the reasonable and natural results from the extent
               and character of his wound, or state of his illness.


       Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009) (quotations

       omitted), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 6 of 12
[13]   We find that Joshua’s statements that Hodge shot him were properly adjudged

       to be dying declarations. Joshua was shot multiple times, including once in the

       abdomen. His intestines were protruding from his abdomen. Joe Foster

       testified that Joshua fell through the front door of his house, was unable to

       stand, appeared “dazed,” “kept on moaning,” and said, “Tay-Tay killed me.”

       Tr. Vol. 2 pp. 129, 130. Police officers testified that when they encountered

       Joshua at around 11:20 p.m., he was writhing on the floor in “excruciating

       pain,” and was “screaming out.” Id. at 166, 199. At that time, Joshua was able

       to tell the officers that Hodge shot him. However, by approximately 11:35

       p.m., the time the EMTs departed the scene with Joshua in the ambulance,

       Joshua was unable to respond when the EMTs asked him his name.


[14]   When Joshua was brought into the emergency room, he did not have blood

       pressure or a pulse. Medical staff had to provide him with “a lot of blood and

       blood products” to resuscitate him so that surgery could be performed. Id. at

       111. Joshua’s right iliac vein was lacerated which caused “larger amounts of

       blood and [a] large amount of hemorrhage inside . . . [his] belly cavity.” Id. at

       124. Just before Joshua entered the operating room his blood pressure and his

       pulse, again, were lost. He “began to code” at 12:58 a.m., and was pronounced

       dead at 1:55 a.m. State’s Ex. 48. The cause of Joshua’s death was the gunshot

       to his abdomen.


[15]   In light of Joshua’s statements, conduct, manner, symptoms, and condition, as

       well as the reasonable and natural results from the extent and character of his

       wounds, the trial court acted within its discretion when it concluded that

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 7 of 12
       Joshua’s statements were admissible dying declarations. No error occurred

       here.


[16]   Hodge next argues that the trial court erred in admitting into evidence two

       police reports that, according to Hodge, contained hearsay. The first report was

       prepared by Corporal Martin, and it contained the following information:

       “[Joshua] had been shot twice in the stomach by a male black [sic] name[d]

       Evan Hodge while he was outside of [the] Foster residence.” State’s Ex. 10.

       The second report was prepared by Corporal Manuel, and it contained the

       following information regarding Joshua’s condition the night of the shooting:

       “He was in extreme pain, while also screaming ‘help me help me’ [sic].” State’s

       Ex. 6. The second report also contained Joshua’s identification of who shot

       him.


[17]   Hodge concedes that he did not object during trial to the admission of the police

       reports on the basis of hearsay, but now claims that the admission amounts to
                                 6
       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 a fundamental error occurred.” Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010). “The fundamental error exception is ‘extremely

       narrow, and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error



       6
        At trial, Hodge objected to the admission of the two police reports on the basis that the reports were
       duplicative. The trial court overruled the objections and admitted the reports into evidence.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017            Page 8 of 12
       denies the defendant fundamental due process.’” Id. (citation omitted). The

       error claimed must either make a fair trial impossible or constitute clearly

       blatant violations of basic and elementary principles of due process, and this

       exception is available only in egregious circumstances. Id.


[18]   Hodge contends that admission of the police reports amounted to fundamental

       error because they “caused him substantial harm in that [the reports] unfairly

       highlighted the amount of pain Mr. Joshua was in as a result of being shot and

       again emphasized that [Mr. Joshua] identified Mr. Hodge as the one who shot

       him.” Appellant’s Br. p. 13. We disagree. To the extent that the police reports

       refer to Joshua’s condition following the shooting and to Joshua’s statements

       that Hodge shot him, the references merely were cumulative of the Fosters’, the

       police officers’, and the EMT’s trial testimony. Therefore, even assuming that

       the admission of the reports was erroneous, their admission was not a blatant

       violation amounting to fundamental error. See Tobar v. State, 740 N.E.2d 106,

       108 (Ind. 2000) (holding evidence that is merely cumulative of other evidence

       presented at trial is not grounds for reversal).


[19]   Hodge further argues that the State’s evidence is insufficient to support his

       conviction for murder. When we review a challenge to the sufficiency of the

       evidence, we neither reweigh the evidence nor judge the credibility of the

       witnesses. Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans.

       denied. Instead, we consider only the evidence most favorable to the verdict and

       any reasonable inferences drawn therefrom. Id. If there is substantial evidence

       of probative value from which a reasonable factfinder could have found the

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 9 of 12
       defendant guilty beyond a reasonable doubt, the verdict will not be disturbed.

       Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App. 2015).


[20]   A conviction of murder may be sustained on circumstantial evidence alone.

       Green v. State, 587 N.E.2d 1314 (Ind. 1992). The reviewing court need not

       determine that circumstantial evidence is adequate to overcome every

       reasonable hypothesis of innocence, but only that an inference may reasonably

       be drawn which supports the finding of guilt. Id. “Elements of offenses and

       identity may be established entirely by circumstantial evidence and

       logical inferences drawn therefrom.” Bustamante v. State, 557 N.E.2d 1313,

       1317 (Ind. 1990).


[21]   Hodge challenges the adequacy of the State’s evidence that he knowingly or

       intentionally killed Joshua. Specifically:


               Mr. Hodge concedes that there is circumstantial evidence in that
               he was with Mr. Joshua during the day of December 18 [sic],
               2014[,] and was at some time in the vicinity of the Foster
               residence where Mr. Joshua was found, but the presence of Mr.
               Hodge’s DNA does not indicate the time when he was in the
               vicinity of the Foster residence. Even assuming that Mr. Hodge
               was the one who shot Mr. Joshua, the evidence was equally
               susceptible to the conclusion that it was done intentionally,
               accidentally, in self-defense, or in sudden heat. . . . Because there
               was no evidence concerning the nature of the shooting, however,
               the elements of knowing or intentional should not be inferred.


       Appellant’s Br. pp. 14-15.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 10 of 12
[22]   To convict Hodge of murder, the State was required to prove beyond a

       reasonable doubt that he knowingly or intentionally killed Joshua. See Ind.

       Code § 35-42-1-1(1) (2014). A person “knowingly” kills when aware of a high

       probability that he is engaged in a killing. See Ind. Code § 35-41-2-2(b)

       (1977). A person acts intentionally if “when he engages in the conduct, it is his

       conscious objective to do so.” Ind. Code § 35-41-2-2(a). “Both intentional and

       knowing actions may be inferred from the circumstances.” Ritchie v. State, 809

       N.E.2d 258, 270 (Ind. 2004).


[23]   Joshua’s fiancée testified that on the day of the shooting, she spoke with Joshua

       at around 8 or 9:00 p.m. and that Joshua told her he was with “Tay-Tay.”

       “Tay-Tay” is Hodge’s nickname. Joshua was shot around 11:00 p.m. Joshua

       was shot at least two times. After Joshua was shot, he stumbled into the

       Fosters’ home and stated “Tay-Tay killed me.” Tr. Vol. 2 p. 130. The Fosters

       recognized “Tay-Tay” as a nickname for Hodge. When police officers arrived

       at the Fosters’ home and spoke to Joshua, Joshua told the officers multiple

       times that he had been shot by Evan Hodge. Hodge’s DNA was found on two

       plastic cigar tips, on a cigarette butt, and in saliva found at the scene of the

       shooting. A police detective testified that the cigar tips “appeared to be fairly

       fresh” and were not crushed or broken. Tr. Vol. 3. p. 32. The outside

       temperature the night of the shooting was twenty-seven degrees, yet testimony

       revealed that when the saliva was discovered shortly after the shooting

       occurred, the saliva still was wet and was not frozen. The jury could have




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 11 of 12
       inferred from the evidence that Hodge knowingly or intentionally killed Joshua.

       Hodge’s conviction for murder was supported by sufficient evidence.


[24]   Based upon the foregoing, the trial court did not abuse its discretion when it

       admitted into evidence Joshua’s dying declaration and the two police reports.

       The State presented sufficient evidence to support Hodge’s conviction for

       murder.


[25]   Judgment affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-111 | November 30, 2017   Page 12 of 12
