MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                        Apr 21 2015, 10:14 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana
                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Javon Thomas,                                             April 21, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A04-1408-CR-362
        v.                                                Appeal from the St. Joseph Superior
                                                          Court.
                                                          The Honorable John M. Marnocha,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 71D02-1302-MR-6




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015       Page 1 of 12
[1]   Javon Thomas appeals his conviction for Murder,1 a felony, the sentence

      enhancement for criminal gang affiliation, and the sentence imposed by the trial

      court. Thomas raises the following arguments: (1) the trial court erroneously

      admitted certain evidence; (2) there is insufficient evidence supporting the

      sentence enhancement for criminal gang affiliation; (3) the sentence is

      inappropriate in light of the nature of the offense and his character; and (4) the

      trial court erred by ordering the sentence in this case to be served consecutively

      to a sentence Thomas is serving in a federal case. Finding no error, we affirm.


                                                     Facts
[2]   In 2010, Thomas was a member and leader of a gang called “Cash Out Boyz.”

      William Williams was a leader of a rival gang called “187.” The relationship

      between these two gangs was so violent that if members of one gang saw

      members of the other, they would shoot at each other.


[3]   On October 31, 2010, Marcia Garcia hosted a party in South Bend for

      approximately fifty people. She was so worried about gang violence that she

      patted down each party attendant for weapons before they entered. Williams

      went to Garcia’s party. Someone called Thomas and informed him that

      Williams was at the party, so Thomas and Brison Williams (Brison), a fellow

      gang member, asked a friend to drive them to the party. The friend dropped




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 2 of 12
      them off a few houses away from the party, and they told her to drive around

      the corner to wait for them.


[4]   Thomas and Brison hid near some bushes adjacent to Garcia’s home.

      Sometime after midnight, Williams and another partygoer exited the house.

      There were multiple people standing outside in the vicinity. Thomas and

      Brison then emerged from hiding and began shooting at Williams. Williams

      pushed the person to whom he was talking to the ground between two parked

      cars and then ran down the street. As he fled, Williams was struck in the back

      and killed by a single .32-caliber bullet. He died on the scene. Thomas and

      Brison had fired approximately four to seven shots with a .32-caliber semi-

      automatic handgun and a .44-caliber revolver.


[5]   After the shooting, Thomas and Brison returned to their friend’s vehicle; it had

      been less than five minutes since she had dropped them off at the party. She

      drove them home, and Thomas told the friend to just say that she “didn’t know

      anything” if she was asked about the incident. Tr. p. 409. Thomas told several

      people that he had killed Williams in retaliation for Williams’s involvement in a

      shooting a day or two earlier. Thomas bragged that he had fired the shot that

      killed Williams and began to call himself “J-Murder.” Id. at 433-34, 462-63,

      464, 544. He also bragged that since the murder, people were afraid of Cash

      Out Boyz. At trial, seven witnesses testified that Thomas had admitted

      shooting Williams.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 3 of 12
[6]   On February 19, 2013, the State charged Thomas with murder. On August 12,

      2013, the State sought to have Thomas’s sentence enhanced because he is a

      member of a criminal gang and committed the crime at the direction of or in

      affiliation with the criminal gang. On June 11, 2014, a jury found Thomas

      guilty as charged and, after a second phase of the trial, found that the State had

      proved that the criminal gang sentencing enhancement applied beyond a

      reasonable doubt.


[7]   On July 9, 2014, the trial court sentenced Thomas to the advisory term of fifty-

      five years, and enhanced that sentence by another fifty-five years as required by

      the criminal gang enhancement. The trial court also ordered that this sentence

      be served consecutively to a sentence Thomas was serving for a separate federal

      crime. Thomas now appeals.


                                  I. Admission of Evidence
[8]   Thomas first argues that the trial court erred by admitting evidence of the gang

      membership of Thomas and Williams at trial. The admission of evidence is

      within the discretion of the trial court, and we will reverse only if the trial

      court’s decision was clearly against the logic and effect of the facts and

      circumstances before it. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App.

      2010).


[9]   Prior to trial, Thomas filed a motion in limine seeking to exclude any testimony

      about his own or Williams’s gang affiliation. The trial court denied the motion.

      At trial, Thomas objected to Garcia’s testimony about Williams’s gang

      Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 4 of 12
       affiliation on the basis of Evidence Rule 403. The objection was overruled.

       Thomas did not object to another witness’s testimony about Thomas’s gang

       affiliation. It is well established that “motions in limine do not preserve errors

       for appeal; the defendant must reassert his objection at trial contemporaneously

       with the introduction of the evidence.” White v. State, 687 N.E.2d 178, 179

       (Ind. 1997). Consequently, Thomas has waived any argument with respect to

       evidence related to his own gang affiliation. Furthermore, with respect to

       Garcia’s testimony, Thomas objected solely on the basis that it was unduly

       prejudicial pursuant to Evidence Rule 403. He has, therefore, waived the

       argument he attempts to make on appeal, which relates to Evidence Rule

       404(b). See Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000) (holding that

       grounds not raised in the trial court are not available on appeal).


[10]   Waiver notwithstanding, we will briefly address Thomas’s arguments. Indiana

       Evidence Rule 403 provides that the trial court “may exclude relevant evidence

       if its probative value is substantially outweighed by a danger of . . . unfair

       prejudice . . . .” Indiana Evidence Rule 404(b) prohibits evidence of prior bad

       acts “to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character,” but further

       provides that the evidence may be admissible for another purpose, including

       proving motive. Our Supreme Court has held that evidence regarding a

       defendant’s membership in a gang may be relevant and admissible where it is

       probative of motive for the commission of a crime. Williams v. State, 690

       N.E.2d 162, 173-74 (Ind. 1997).


       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 5 of 12
[11]   The evidence that Thomas complains of in this case established that:

       (1) Williams was a member of 187; (2) Garcia was so concerned about gang

       violence that she patted down each of her party guests for weapons; (3) Thomas

       was a member of Cash Out Boyz, a rival gang to 187; (4) the gangs frequently

       feuded; (5) Thomas believed that Williams had shot at a Cash Out Boyz

       member a night or two before the incident in question; and (6) Thomas told

       multiple people that he shot Williams as retaliation for Williams’s role in the

       earlier shooting.


[12]   As in Williams, evidence related to the gang membership of both Thomas and

       Williams is relevant and intrinsic to Thomas’s motive for committing the crime.

       And while evidence of gang involvement may, indeed, be prejudicial, in this

       case, the prejudice did not outweigh the probative value of the evidence. Burgett

       v. State, 758 N.E.2d 571, 580 (Ind. Ct. App. 2001). Consequently, the trial

       court did not err by admitting this evidence at trial.


                                              II. Sufficiency
[13]   Next, Thomas argues that there is insufficient evidence supporting the criminal

       gang affiliation sentence enhancement. When we review a challenge to the

       sufficiency of the evidence, we neither reweigh the evidence nor assess witness

       credibility. McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans.

       denied. Instead, we consider only the probative evidence supporting the

       conviction and the reasonable inferences to be drawn therefrom. Id. If there is

       substantial evidence of probative value from which a reasonable factfinder


       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 6 of 12
       could have drawn the conclusion that the defendant was guilty beyond a

       reasonable doubt, then the verdict will not be disturbed. Id.


[14]   Indiana Code section 35-50-2-15(b)2 provides as follows:

                  The state may seek . . . to have a person who allegedly committed a
                  felony offense sentenced to an additional fixed term of imprisonment if
                  the state can show beyond a reasonable doubt that the person
                  knowingly or intentionally:
                  (1)       was a member of a criminal gang while committing the offense;
                            and
                  (2)       committed the felony offense at the direction of or in affiliation
                            with a criminal gang.
       If the jury finds that the State proved these elements beyond a reasonable doubt,

       then the trial court must sentence the defendant to an additional fixed,

       consecutive, non-suspendible term of imprisonment equal to the sentence

       imposed for the underlying felony when, as here, the defendant is sentenced for

       only one felony. I.C. § 35-50-2-15(d).


[15]   Thomas argues that the State failed to prove that he committed the murder at

       the direction of or in affiliation with Cash Out Boyz. Thomas first directs our

       attention to caselaw interpreting and applying Indiana Code section 35-45-9-3,

       which defines the crime of participation in a criminal gang. Indiana courts

       have held that to be convicted of this crime, the State must prove, among other

       things, that the defendant acted with a specific intent to further the group’s




       2
           We apply the version of this statute in effect at the time of the murder.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 7 of 12
       goals. E.g., Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). As Thomas

       acknowledges, however, the gang affiliation sentence enhancement at issue in

       this case is “separate from” the crime defined above. Appellant’s Br. p. 23.

       There is no language of specific intent in the criminal gang affiliation sentence

       enhancement statute, and we decline to read such language into the law.

       Instead, in the plain language of the statute itself, the State was required to

       prove beyond a reasonable doubt that Thomas was a member of a criminal

       gang while committing the offense—which he does not deny—and that he

       committed the murder at the direction of or in affiliation with Cash Out Boyz.


[16]   The phrase “in affiliation with” is not defined by the statute. This Court has

       looked to the plain meaning of “affiliate” in the context of this statute, noting

       that the term is defined as “‘to bring into close association or connection,’ ‘to

       attach or unite on terms of fellowship,’ and ‘to associate oneself; be intimately

       united in action or interest.’” Armstrong v. State, 22 N.E.3d 629, 638 (Ind. Ct.

       App. 2014) (quoting The Random House Dictionary of the English Language,

       Unabriged Edition 24 (1967)), trans. denied. To meet its burden under the statute,

       therefore, the State was required to prove beyond a reasonable doubt that

       Thomas murdered Williams while in a state of close association, connection, or

       fellowship with Cash Out Boyz, or while intimately united in action or interest

       with the gang.


[17]   The record reveals that Thomas was a founding member and leader of Cash

       Out Boyz. Williams was a member of the rival 187 gang. These two gangs had

       an ongoing feud and rivalry in which gang members regularly fought and shot

       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 8 of 12
       firearms at each other. A day or two before the murder, Williams allegedly

       shot at members of Cash Out Boyz, and Thomas told multiple people after the

       murder that he had killed Williams in retaliation for that earlier shooting.

       When Thomas sought out Williams on the night of the murder, he took another

       armed member of the Cash Out Boyz with him. Thomas bragged about the

       murder and began calling himself “J-Murder,” also bragging that after the

       murder, people were scared of Cash Out Boyz because they knew he would

       shoot them. Tr. p. 464, 561. We find that a reasonable jury could infer from

       this evidence that Thomas murdered Williams in affiliation with Cash Out

       Boyz. Consequently, we find that the evidence supporting the sentence

       enhancement is not insufficient.


                                        III. Appropriateness
[18]   Next, Thomas argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offense and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).



       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 9 of 12
[19]   A person who is convicted of murder is eligible for a sentence between forty-five

       and sixty-five years, with an advisory term of fifty-five years. Ind. Code § 35-

       50-2-3. Here, Thomas was sentenced to the advisory term. 3


[20]   Turning first to the nature of the offense, we note that when Thomas learned

       that Williams was at Garcia’s party, he armed himself and took another armed

       gang member with him to find Williams. They instructed the person who drove

       their vehicle to wait for them on another street. Then, Thomas and the other

       gang member hid, waiting for Williams to emerge from the house. When he

       did, Thomas began shooting at Williams with no regard for the other people

       present on the public street. Ultimately, Thomas shot Williams in the back as

       Williams fled for his life. Thomas admitted that the sole reason he killed

       Williams was in retaliation for another act of gang violence that had occurred a

       day or two earlier. We do not find that the nature of the offense in any way

       supports Thomas’s sentencing argument.


[21]   As to Thomas’s character, he was a founder and leader of the Cash Out Boyz

       Gang. Since committing the murder at issue herein, he has been convicted of

       two other felony gun charges. He has a long list of negative contacts with law

       enforcement dating back to his juvenile years. In this case, after killing




       3
         While Thomas also focuses part of his appropriateness argument on the sentence enhancement, we note
       that once a factfinder concludes that the State has met its burden, the enhancement is mandatory and non-
       discretionary. I.C. § 35-50-2-15. Its terms are set by the statute and neither the trial court nor this Court
       retain any jurisdiction to alter those terms. Id. Consequently, we will not factor the enhancement into our
       7(B) analysis.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015              Page 10 of 12
       Williams, Thomas bragged about the murder and even gave himself a new

       nickname as a result. We do not find that Thomas’s character supports his

       sentencing argument. In other words, we do not find that the fifty-five-year

       sentence imposed by the trial court is inappropriate in light of the nature of the

       offense and Thomas’s character. Given that, the trial court was required to

       impose an additional, consecutive fifty-five-year term for the criminal gang

       affiliation enhancement.


                                           IV. Federal Case
[22]   Finally, Thomas argues that the trial court erred by ordering that his sentence

       herein be served consecutively to a sentence he is serving for a separate federal

       conviction. In Thomas’s view, the trial court imposed consecutive sentences

       because it believed it was required to do so. He bases this argument on the

       following comments made by the trial court at sentencing:

               Not only do I believe there is authority that I can run it consecutively,
               but I don’t know if there is authority that I cannot run it consecutive to
               another jurisdiction’s case. So having considered all of that, having
               considered the nature of the federal case and Mr. Thomas’s history,
               the sentence will be served consecutively to the federal case[.]
       Tr. p. 712. It is readily apparent that the trial court was acknowledging that it

       could order consecutive sentences but was uncertain whether it was obligated to

       do so. Regardless, having weighed all of the appropriate considerations, the

       trial court concluded that consecutive sentences were warranted in this case.

       We see no basis to disturb that conclusion, and find no error on this basis.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015   Page 11 of 12
[23]   The judgment of the trial court is affirmed.


       Crone, J., and Brown, J., concur.




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