MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Jul 24 2018, 9:16 am

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
Bruce N. Munson                                          Curtis T. Hill, Jr.
Law Office of Bruce N. Munson, P.C.                      Attorney General of Indiana
Muncie, Indiana
                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deshaun W. Jackson,                                      July 24, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1710-CR-2289
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Kimberly S.
Appellee-Plaintiff.                                      Dowling, Judge
                                                         Trial Court Cause No.
                                                         18C02-1611-F2-19



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018           Page 1 of 13
[1]   Deshaun Jackson appeals his convictions for attempted burglary and conspiracy

      to commit burglary. Jackson raises two issues on appeal which we revise and

      restate as:


          I.        Whether the trial court abused its discretion in admitting certain
                    testimony; and

          II.       Whether there is sufficient evidence to sustain his convictions.


      We affirm.


                                      Facts and Procedural History

[2]   At approximately 8:00 or 9:00 a.m. on June 17, 2016, Marilyn Wilson was

      asleep in her room, woke up to hearing her nineteen-year-old son Arthur calling

      in distress for her, and heard “thumping” coming from the kitchen or back area

      of the house. Transcript Volume II at 100. She turned to her five-year-old child

      who was in the room with her and told him not to leave the room, and at that

      time she heard a “loud pop” in the back area. Id. at 102. She exited her room

      and observed Arthur “coming out of the kitchen like low crawling.” Id.

      Wilson went toward the kitchen and observed that a table had been moved, a

      plant had been knocked over, a window and screen were up, and the blinds

      were blowing. She thought she saw someone but was not sure.


[3]   Wilson observed Arthur at the front door and then move to the bathroom. She

      observed that Arthur was “very upset,” was on his knees throwing up in the

      toilet, was spitting and gasping, and had “a circle mark in his hand with blood.”

      Id. at 104. She asked him what had happened, and he said that he had seen a

      Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 2 of 13
      light under the door to the backroom and “opened the door and Fat Daddy and

      Little Brian was in the backroom,”1 that Little Brian had an assault rifle, and

      that, when Arthur tried to shut the door, Fat Daddy stuck his foot in the door,

      pulled a gun from his waistband, and grabbed Arthur by his dreads. Id. at 106.

      Arthur also told Wilson that he and Jackson had “wrestled with the gun,” that

      Arthur “got it away from him,” that Arthur fired the gun, and the bullet struck

      Goodson. Id. at 107. Law enforcement arrived at Wilson’s house, and Wilson

      subsequently provided a statement to police. Brian Goodson later reported to

      the emergency room with a gunshot wound to his upper leg.


[4]   On November 15, 2016, the State charged Jackson with: Count I, conspiracy to

      commit burglary as a level 2 felony; and Count II, attempted burglary as a level

      2 felony. At Jackson’s jury trial, the following testimony was elicited from

      Wilson:


                 Q. Okay. And Arthur went to the bathroom. Can you describe
                 his demeanor?

                 A. He was upset.

                 Q. And why do you say that?

                 A. He was kneeled down on his knees at the toilet. He was
                 throwing up in the toilet. He was spitting and gasping. I was
                 pulling his dreads out of his face, asking him, what, what just
                 happened.




      1
          Wilson testified that Fat Daddy was Jackson and that Little Brian was Brian Goodson.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018       Page 3 of 13
              Q. Okay. At that time, was there anything else going on with
              Arthur?

              A. He was upset. He was very upset. He got a circle mark in his
              hand with blood. I was checking him. I was asking him was he
              shot.

              Q. And what did he say?

              A. I asked him, “What happened? What’s going on?” He said,
              “That he had got up -

      Id. at 103-104.


[5]   At that point, Jackson’s defense counsel objected on hearsay grounds. The

      prosecutor responded that Wilson had described Arthur’s demeanor and

      testified that he was upset and vomiting and that Arthur was still under the

      distress and excitement of the situation. Jackson’s defense counsel argued that

      it was not clear how much time had passed since the event that had given rise to

      the distress. The prosecutor further questioned Wilson:


              Q. How much time had elapsed since Arthur came back into the
              house that you saw him in the bathroom vomiting?

              A. He was at the door. Straight to the bathroom.

              Q. If you had to guess, you know, within the minutes, hours?

              A. Minutes, then seconds. He was from the door in the
              bathroom.

              [Prosecutor]: Your Honor, I think that was immediately. It was
              an immediate reaction.

              The Court: I’ll overrule the objection. You can go ahead.


      Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 4 of 13
              Q. What did Arthur say?

              A. He said he had gotten up. He thought I was in the backroom
              letting the dog out. He seen (sic) a light under the door. He said
              he opened the door -

      Id. at 105. Jackson’s defense counsel renewed his objection and stated “the

      longer the narrative the less susceptible it is to being interpretive as an excited

      utterance.” Id. The court responded “[w]ell I understand what you’re saying,”

      “[prosecutor], let’s go ahead and - you can re-ask the question,” and “[l]et’s

      establish the amount of time that we’re talking about, all right.” Id. at 105-106.


[6]   The prosecutor resumed questioning Wilson:


              Q. When he was vomiting, did you ask him a question?

              A. I did.

              Q. What was his response to your question?

              A. I asked him what was going on. He said he opened the door
              and Fat Daddy and Little Brian was in the backroom, that Little
              Brian had an assault rifle, that he tried to shut the door, and Fat
              Daddy stuck his foot in the door and came out of his waistband
              with a gun, grabbed him by his dreads.

      Id. at 106. When asked how she knew Goodson, Wilson testified: “That is also

      my cousin’s son, my little cousin, his brother. Deshaun Jackson’s brother.” Id.

      at 107. The prosecutor continued questioning Wilson:


              Q. Okay. And so after Arthur answered your question, what did
              you do next?

      Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 5 of 13
              A. I - he told me that someone shot - he said that he shot one of
              them.

              Q. Who is “he”?

              A. He told me that they were in the backroom, that [Jackson]
              had pulled the gun. He was - they wrestled with the gun. He got
              it away from him. He shot. It shot Brian and I went outside
              from there.

              Q. When you say “he shot Brian,” do you mean Arthur?

              A. Arthur shot Brian.

              Q. Did you give permission for Deshaun Jackson or Brian
              Goodson to be at your home that day?

              A. No.


      Id.


[7]   The State presented evidence that a projectile had been discovered on the floor

      of the laundry room, that a projectile and a buccal swab from Goodson were

      examined, and that a DNA profile of a swab taken from the projectile was

      “consistent with Brian Goodson” and “is estimated to occur once in more than

      eight trillion unrelated individuals.” Id. at 183. It also presented evidence that

      Goodson had arrived at the emergency room and reported a gunshot wound to

      his leg at about 9:20 or 9:30 a.m. on June 17, 2016, that Goodson had been

      dropped off at the hospital by a male driving a white vehicle, and Wilson had

      known Jackson to drive a light-colored Chevrolet Malibu.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 6 of 13
[8]    The jury found Jackson guilty on both counts as charged, and the court

       sentenced him to consecutive terms of ten years on Count I and fifteen years.


                                                    Discussion

                                                          I.


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

       Wilson’s testimony regarding the statements Arthur made to her. The

       admission and exclusion of evidence falls within the sound discretion of the

       trial court, and we review the admission of evidence only for an abuse of

       discretion. Abney v. State, 79 N.E.3d 942, 953 (Ind. Ct. App. 2017) (citing

       Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002)). An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances. Id. (citing Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).


[10]   Jackson claims that “[h]earsay testimony was improperly admitted under the

       guise of the excited utterance exception” and that Wilson “was allowed to

       quote her son at length under the excited utterance exception.” Appellant’s

       Brief at 7-8. Jackson also asserts he was denied the opportunity to confront and

       cross-examine Arthur and that “even Arthur, in the dissertation that passed for

       an ‘excited utterance,’ offered no insight into how and why [Jackson] happened

       to be present in the Wilson residence.” Id. at 8-9. The State responds that

       Jackson has failed to present a cogent argument and that Wilson’s testimony

       was properly admitted as an excited utterance.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 7 of 13
[11]   Hearsay is a statement, other than one made by the declarant while testifying at

       trial, offered in evidence to prove the truth of the matter asserted. Ind.

       Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to a

       recognized exception. Ind. Evidence Rule 802. An excited utterance is such an

       exception and is defined as “[a] statement relating to a startling event or

       condition made while the declarant was under the stress of excitement caused

       by the event or condition.” Ind. Evidence Rule 803(2). For a hearsay

       statement to be admitted as an excited utterance, three elements must be

       shown: a startling event occurs; a statement is made by a declarant while under

       the stress of excitement caused by the event; and the statement relates to the

       event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).


[12]   Application of this rule is not mechanical, and admissibility should generally be

       determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026, 1031

       (Ind. Ct. App. 2010). The heart of the inquiry is whether the statement is

       inherently reliable because the declarant was incapable of thoughtful reflection.

       Id. (citing Yamobi, 672 N.E.2d at 1346). The statement must be trustworthy

       under the specific facts of the case at hand. Id. The focus is on whether the

       statement was made while the declarant was under the influence of the

       excitement engendered by the startling event. Id. “A declaration does not lack

       spontaneity simply because it was an answer to a question.” Yamobi, 672

       N.E.2d at 1346. “Whether given in response to a question or not, the statement

       must be unrehearsed and made while still under the stress of excitement from

       the startling event.” Id. Also, the amount of time that has passed between the


       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 8 of 13
       startling event and the hearsay statement is one factor to be considered in

       determining admissibility as an excited utterance but the factor is not

       dispositive. Id. The central issue is whether the declarant was still under the

       stress of excitement caused by the startling event when the statement was made.

       Id.


[13]   To the extent that Jackson does not present cogent argument that a startling

       event did not occur, that Arthur was not under the stress of excitement caused

       by the event, or that Arthur’s statements to Wilson did not relate to the event,

       his claim is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)

       (finding that Cooper’s contention was not supported by cogent argument and

       was therefore waived).


[14]   The record reveals that Arthur opened the door to the backroom, observed

       Jackson and Goodson and that Goodson was in possession of an assault rifle,

       and that, when Arthur attempted to shut the door, Jackson stuck his foot in the

       door, retrieved a gun from his waistband, and grabbed Arthur by his dreads.

       Arthur and Jackson wrestled with the gun, Arthur pulled the gun away from

       Jackson, Arthur fired the gun, and the bullet struck Goodson’s leg. Following

       the encounter, Arthur went to the front door and then to the bathroom. Wilson

       testified that Arthur was very upset, that he was on his knees vomiting in the

       toilet, that he was spitting and gasping, and that he had a mark in his hand with

       blood. Wilson asked Arthur what occurred, and Arthur identified Jackson and

       described the struggle over the gun and how Goodson had been shot. When

       asked “[h]ow much time had elapsed since Arthur came back into the house

       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 9 of 13
       that you saw him in the bathroom vomiting,” Wilson replied, “[h]e was at the

       door. Straight to the bathroom,” and when asked to estimate the time, she

       answered “[m]inutes, then seconds. He was from the door in the bathroom.”

       Transcript Volume II at 105. The record demonstrates that Arthur was under

       the stress of his violent encounter with Jackson and Goodson when he told

       Wilson what had happened. We cannot say that the trial court abused its

       discretion in admitting Wilson’s testimony.2


                                                            II.


[15]   The next issue is whether there is sufficient evidence to sustain Jackson’s

       convictions. We consider only the probative evidence and reasonable

       inferences supporting the verdicts, without reweighing the evidence or assessing

       witness credibility. Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017). Unless no

       reasonable factfinder could find the defendant guilty, we affirm. Id.


[16]   Jackson argues “[i]nsufficient evidence existed to support a conclusion that [he]

       conspired with anyone to commit burglary.” Appellant’s Brief at 9. He asserts:

       “There is nothing in the record to suggest a ‘breaking and entering’ by [him], or

       to suggest that he entered with the intent to commit a felony or a theft, or that




       2
         To the extent Jackson argues on appeal that he was not afforded an opportunity to confront Arthur, we
       observe that Jackson did not object on Confrontation Clause grounds at trial and that a defendant may not
       raise one ground for objection at trial and argue a different ground on appeal. See Small v. State, 736 N.E.2d
       742, 747 (Ind. 2000) (observing that the defendant objected at trial on grounds that testimony was
       inadmissible hearsay and did not object on Confrontation Clause grounds and that a defendant may not raise
       one ground for objection at trial and argue a different ground on appeal).

       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018             Page 10 of 13
       he conspired with anyone, or attempted, to commit a burglary.” Id. at 9-10. He

       also argues that nothing was missing from the house and that “[t]he incident

       that culminated in the shooting of [Goodson] by Arthur may have begun as a

       social visit and gone awry.” Id. at 10.


[17]   The State argues that Jackson’s actions of entering the exterior room of

       Wilson’s residence and then forcing his foot into the interior door to push it

       open constitutes a breaking for the purposes of the statute. It also argues that

       “[a] reasonable jury could certainly infer that [Jackson] did not sneak into the

       house while armed with the intent to socialize—especially in light of the fact

       that he tried to force the door in, grabbed Arthur’s hair, and pulled out his

       firearm.” Appellee’s Brief at 18-19.


[18]   Ind. Code § 35-43-2-1 provides that a person who breaks and enters the building

       or structure of another person, with intent to commit a felony or theft in it,

       commits burglary as a level 5 felony. The statute further provides that the

       offense is a level two felony if it is committed while armed with a deadly

       weapon. Ind. Code § 35-43-2-1(3). “Using even the slightest force to gain

       unauthorized entry satisfies the breaking element of the crime.” Jenkins v. State,

       34 N.E.3d 258, 261 (Ind. Ct. App. 2015) (citing Davis v. State, 770 N.E.2d 319,

       322 (Ind. 2002), reh’g denied), trans. denied. “For example, opening an unlocked

       door or pushing a door that is slightly ajar constitutes a breaking.” Id.


[19]   Ind. Code § 35-41-5-1(a) provides that a person attempts to commit a crime

       when, acting with the culpability required for commission of the crime, the


       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 11 of 13
       person engages in conduct that constitutes a substantial step toward

       commission of the crime. An attempt to commit a crime is a felony or

       misdemeanor of the same level or class as the crime attempted. Ind. Code § 35-

       41-5-1(a). A substantial step is any overt act beyond mere preparation and in

       furtherance of the intent to commit the offense. Kiplinger v. State, 922 N.E.2d

       1261, 1266 (Ind. 2010); Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct. App.

       1992). Whether a defendant has taken a substantial step toward the

       commission of the crime, so as to be guilty of attempt to commit that crime, is a

       question of fact to be decided by the jury based on the particular circumstances

       of the case. Hughes, 600 N.E.2d at 131.


[20]   Ind. Code § 35-41-5-2(a) provides that a person conspires to commit a felony

       when, with intent to commit the felony, the person agrees with another person

       to commit the felony and that a conspiracy to commit a felony is a felony of the

       same level as the underlying felony. Ind. Code § 35-41-5-2(b) provides that the

       State must allege and prove that either the person or the person with whom he

       or she agreed performed an overt act in furtherance of the agreement. The State

       is not required to show an express formal agreement, and proof of the

       conspiracy may rest entirely on circumstantial evidence. Fry v. State, 748

       N.E.2d 369, 374 (Ind. 2001).


[21]   The State presented evidence that Jackson and Goodson entered Wilson’s

       residence while Jackson was armed with a gun and Goodson was armed with

       an assault rifle and that, when Arthur saw them and attempted to shut the door,

       Jackson stuck his foot in the door, drew his gun from his waistband, and

       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 12 of 13
       grabbed Arthur by his hair. Arthur and Jackson wrestled with the gun, Arthur

       pulled the gun away from Jackson, and Arthur fired the gun, shooting Goodson

       in the leg. The State also presented DNA evidence and evidence of Goodson’s

       hospital visit. Wilson had not given permission for Jackson and Goodson to

       enter her residence. Jackson does not argue on appeal that he was not the

       person who entered Wilson’s house with Goodson, that he and Goodson were

       not armed, or that he did not draw his gun from his waistband and grab Arthur

       by the hair. A reasonable jury could infer from the evidence that Jackson and

       Goodman had agreed to burglarize Wilson’s house and had engaged in conduct

       constituting a substantial step toward the commission of the offense. Based

       upon the record, we conclude that evidence of probative value was presented

       from which the jury could find beyond a reasonable doubt that Jackson

       committed the charged offenses.


                                                   Conclusion

[22]   For the foregoing reasons, we affirm Jackson’s convictions.


[23]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018   Page 13 of 13
