MEMORANDUM DECISION                                                 FILED
                                                               Aug 11 2016, 6:26 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               CLERK
                                                                Indiana Supreme Court
regarded as precedent or cited before any                          Court of Appeals
                                                                     and Tax Court

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
Kevin Wild                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bryant Dowdy,                                            August 11, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-551
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M.
Appellee-Plaintiff.                                      Eisgruber, Judge
                                                         Trial Court Cause No.
                                                         49G01-1302-MR-13442



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 1 of 21
[1]   Bryant Dowdy appeals his convictions and sentence for murder and attempted

      murder. Dowdy raises three issues which we consolidate and restate as:


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

              II.      Whether the court abused its discretion in sentencing him.

      We affirm.


                                      Facts and Procedural History

[2]   On December 17, 2012, Dowdy, Eric Clanton, and Dominique Clanton

      planned to rob Nishant Patel, who had advertised an iPhone for sale on

      Craigslist. Dowdy contacted Patel and sent him a text message with a street

      address of an apartment in Indianapolis as a location to meet. Eric and

      Dominique arrived at the location in Eric’s Camaro, and Eric stayed in the

      vehicle while Dominque exited it. Dominique saw Dowdy and another man,

      who Dominique believed was Dowdy’s cousin, and the three of them entered

      the apartment building. Dowdy was wearing all black including a black hat and

      carried a black shotgun, and neither Dominique nor the other man had a

      weapon. The three men discussed their plan that Dominque and the other man

      would stall Patel until Dowdy came out pointing the shotgun.


[3]   Patel arrived and parked his vehicle in front of the apartment building. Patel

      had with him the iPhone he planned to sell and his firearm, a Bersa Thunder

      380 handgun. Dominique and the man he believed was Dowdy’s cousin

      approached Patel’s vehicle and talked about the iPhone and the selling price,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 2 of 21
      and Dominique saw the iPhone in a white box and a firearm on Patel’s lap.

      The men pulled out their wallets to pretend they were gathering money. At that

      point, Dowdy approached Patel’s vehicle pointing the shotgun, and Dominique

      turned and walked away. Dominique heard “a boom” and then ran to Eric’s

      Camaro. Transcript at 190. Dominque dropped several items including raffle

      tickets from his wallet, attempted to pick them up but did not pick up

      everything, entered Eric’s vehicle, and Eric drove to the house where Dowdy

      was staying. At the house, Dominique soon noticed that Dowdy had the

      iPhone and firearm that belonged to Patel in his hands. Dowdy told

      Dominique that he had dropped his hat at the scene and needed to go back to

      retrieve it, and he left the house. Eric and Dominique left to go the home of

      Dominique’s mother. Patel died as a result of the robbery.


[4]   On December 18, 2012, Dominique contacted Dowdy because he and Eric had

      a buyer lined up for the iPhone, and Dominique and Eric planned to meet

      Dowdy at a certain intersection in Indianapolis. Dominique drove to the

      location in Eric’s Camaro, and Eric rode in the front passenger seat. After

      waiting at the location for about thirty minutes, Dominique and Eric saw

      Dowdy walking up the street again in all black with a black hat. Eric opened

      his door and lifted his seat up so Dowdy could climb in, and Dowdy entered

      the back of the Camaro and sat directly behind Eric. Dowdy handed Eric the

      iPhone still in the box and Dominique started the Camaro. As Dominique

      began to drive, his vision went black and he could not hear anything except a

      loud ringing in his ear, and he felt the door open and himself hit the pavement.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 3 of 21
[5]   A driver of another vehicle heard gunshots and then observed a car come to a

      stop in front of her. The driver observed a black male exit the driver’s side door

      and begin to run northbound, saw Dominique fall out of the car and heard him

      yell for help and collapse, and observed the male that had initially run

      northbound come back, retrieve something from the car, and then run

      northbound again. The driver observed that the male who ran away wore a

      black hooded jacket and a black skull cap. The driver called 911.


[6]   Indianapolis Metropolitan Police officers arrived at the scene and discovered

      Dominique on the road and Eric slumped over in the front passenger seat of the

      vehicle. Dominque made sounds loud enough to attract the attention of one of

      the officers. Eric was unresponsive, and officers discovered the iPhone in its

      box on the floorboard in front of Eric’s body. Dominique had been shot in the

      back of the head, was transported by ambulance to the hospital, and survived.

      Eric suffered three gunshot wounds to his head and died as a result. The

      stippling on Eric indicated the shot was fired from within three feet. Cartridge

      cases recovered from the Camaro revealed that they were fired from the same

      firearm as the test cartridge located in Patel’s Bersa Thunder 380 firearm case.1


[7]   On February 26, 2013, the State charged Dowdy with the murder of Eric and

      the attempted murder of Dominique. On May 27, 2014, the State filed a notice




      1
        Patel’s brother gave law enforcement the test cartridge. The State presented testimony that a test fired
      cartridge is a cartridge case that a manufacturer includes with a particular firearm and that a comparison of
      spent cartridges found in the rear area of the Camaro and under one of the seats to the test case showed that
      all of the cartridges were fired from the same gun.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016             Page 4 of 21
      of intent to offer evidence under Ind. Evidence Rule 404(b) of other crimes to

      show motive, intent, preparation, knowledge, absence of mistake and/or

      identity, namely that Dowdy was charged with murder in another cause, that

      Dominique was his co-defendant in that case, and that Eric was present during

      the events leading up to and after the murder. At a hearing in November 2014,

      the State argued that Dominique was part of the robbery in the first murder,

      and the court stated “I think we’d lay it out as 404B but I guess I’ve always

      viewed these – well, the second one especially, is – is so close in time and so

      inextricably intertwined . . . .” Id. at 475. The court later stated “I think they

      are so intertwined that I don’t even know if it’s 404B but if you do consider it

      404B I think it is motive and identity and any number of reasons why it would

      come in and then obviously your . . . plea agreement would come in too.” Id.

      at 476.


[8]   At a final pre-trial hearing on April 23, 2015, Dowdy argued that a threshold

      requirement is to determine whether or not the evidence consisting of the prior

      case is true, and that at the least the court needed to ascertain the likelihood of

      the truthfulness of the information in the other case. The State argued that it

      would “not mention the term ‘murder’ in its case-in-chief,” that the evidence of

      the December 17, 2012 events related to Dowdy’s motive to shoot Dominique

      and kill Eric, that it would introduce evidence that the casings found at the

      scene showed the shots were fired from the gun of the victim of the robbery,

      that Dominique saw the firearm and iPhone in Patel’s vehicle and in Dowdy’s

      possession the night of the robbery, and that Dowdy gave the iPhone to Eric on


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 5 of 21
       the night Eric was shot. Supplemental Transcript at 5. The court stated “I do

       see where your motive and your identity, clearly you need that evidence from

       the first, so and that does put it within 404(b)” and “I do see it that way, . . . I

       see it through the State’s eyes as far as they’re wanting that evidence for motive

       purposes, identity, and it does corroborate their witness . . . .” Id. at 16. The

       court ruled that it would permit the State to present its requested evidence.


[9]    At the start of Dowdy’s trial on April 27, 2015, the court stated that the State’s

       reliance on evidence of the events of December 17, 2012, “as far as motive . . .

       and identity are appropriate in this circumstance,” noted that the State had

       indicated it would limit the evidence from that incident to not include the

       murder, although the door could be opened, and stated “[y]ou’ve made your

       record as far as your argument on that 404B. I will allow the State to utilize it.”

       Transcript at 4. Later, when the State began to introduce evidence of what

       police observed and recovered at the scene on December 17, 2012, Dowdy

       objected and argued that the evidence “has nothing to do with this case” and

       was impermissible 404(b) evidence, and the court overruled the objection and

       noted that the arguments were made before trial. Id. at 43. Dowdy objected

       again a short time later, and the court stated “I do think you’ve preserved your

       record sufficiently so it is noted.” Id. at 49.


[10]   The State presented evidence related to the events of December 17, 2012, which

       included photographs of a shotgun shell as well as two raffle tickets and two

       business cards from Fifth Third Bank that were discovered on the ground

       around Patel’s vehicle. The State elicited testimony from Dominique that raffle

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 6 of 21
       tickets had fallen from his wallet and that he banked with Fifth Third Bank.

       Dominique testified that he and Dowdy were friends, he had known Dowdy for

       several years, he had met him when they were staying at the same apartment

       complex, his mother and Dowdy’s mother were friends, and that he knew

       Dowdy’s nickname. He also testified that Dowdy directed Patel to a particular

       location in the apartment complex where there were no cameras and that

       Dowdy was armed with a shotgun and Eric and Dominique were not armed.

       Dominique indicated that he was involved in the planning of the robbery of

       Patel, did not think it would be necessary to use a firearm, and was planning to

       take the phone from Patel and run away.


[11]   Dominique further testified that he gave a number of statements to police, and

       that he first spoke to a detective at the hospital, and said: “I said it was just me

       and Eric and I . . . didn’t remember who else was in the car with me.” Id. at

       207. He further testified that this was not true and that he was not truthful with

       the detective because he was scared of Dowdy. He stated that, at some point

       while his mother was visiting him in the hospital, he told her that Dowdy was

       in the car and was the person who shot him and Eric. When asked how long he

       was in the hospital, Dominique answered “I’d say about two weeks.” Id. at

       209. He testified that he gave a second statement to a detective in the homicide

       office a few weeks later and that he still did not tell the detective who was in the

       back seat of the car “[b]ecause . . . Dowdy was still able to get [him] if [he] told

       what happened.” Id. at 211. Dominique indicated that, after the second

       interview, he was arrested for his participation in the robbery of Patel.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 7 of 21
[12]   Dominique also testified that, about a month after the second statement, he

       gave a third statement to the detective during which he told the detective that

       Dowdy was in the back seat of the Camaro on December 18, 2012. He stated

       that, at the time he gave the third statement, he had not entered into a plea

       agreement. He then indicated that, about ten months after the third statement,

       he gave a fourth statement at which detectives and his attorney were present

       and that, before that meeting, he was offered a plea agreement in exchange for

       talking to police regarding the events of December 17, 2012. The plea

       agreement provided that Dominique would plead guilty to conspiracy to

       commit robbery as a class A felony and would fully cooperate and testify

       against Dowdy and that the State would dismiss all remaining counts against

       Dominique.


[13]   Dominique’s mother testified that when Dominique arrived at her house on

       December 17, 2012, he was crying and upset and did not tell her why, and said

       that he would tell her later. Dominique’s mother also testified that she gave

       two statements to police, the first on December 19, 2012, and the second on

       January 10, 2013, and that, in the second statement, she shared new

       information with the detective which was that, while Dominique was

       hospitalized, he had informed her that Dowdy was the person who had shot

       him. The court admitted the testimony of Dominique’s mother regarding

       Dominique’s statement to her on the basis that it was a statement of

       identification.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 8 of 21
[14]   The jury found Dowdy guilty of murder and attempted murder, and the court

       sentenced him to fifty years for the murder of Eric and twenty-five years for the

       attempted murder of Dominique, and ordered that the sentences be served

       consecutively for an aggregate sentence of seventy-five years.


                                                   Discussion

                                                         I.


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

       particular evidence regarding the events of December 17, 2012, and

       Dominique’s statement to his mother. Generally, we review the trial court’s

       ruling on the admission or exclusion of evidence for an abuse of discretion.

       Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only

       when the decision is clearly against the logic and effect of the facts and

       circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

       We may affirm a trial court’s decision regarding the admission of evidence if it

       is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930

       (Ind. 1998), reh’g denied. Even if the trial court’s decision was an abuse of

       discretion, we will not reverse if the admission constituted harmless error. Fox

       v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.


       A. December 17, 2012 Events


[16]   Dowdy contends that, contrary to the State’s assertion that the evidence

       regarding the December 17, 2012 incident showed his motive and identity,

       “[t]he only real similarity between the two incidents was the use of a firearm,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 9 of 21
       and different guns were used in each crime” and that “[t]hey were in part

       different crimes, different circumstances, accomplished by different methods,

       and the individuals allegedly involved had different relationships in each

       incident.” Appellant’s Brief at 14. He argues that the photographs of the crime

       scene and evidence of a shotgun shell, raffle tickets, and business cards found at

       the scene on December 17th did nothing to contribute to showing motive for

       the December 18th shootings. He also contends that the evidence that he had

       Patel go to a location with no cameras, that he was the only person with a

       shotgun, that he stealthily approached Patel, and that Dominque was scared

       and crying after the incident was not related to his motive for the December

       18th crimes and was extremely prejudicial.


[17]   The State notes that the trial court found that the December 17, 2012 crimes

       were inextricably bound up with the charged crimes, and argues that evidence

       of uncharged criminal acts which are intrinsic to the charged offense are

       admissible, and that the court properly allowed evidence of the robbery and

       killing of Patel because it was part of the same criminal conduct and not merely

       propensity evidence. The State maintains that Dowdy, Dominique, and Eric

       met on December 18, 2012 to finish their business related to the robbery,

       Dowdy shot Eric and Dominique with Patel’s gun, the only reasonable

       inference is that Dowdy killed Eric and attempted to kill Dominique to cover

       up his involvement in the robbery and killing of Patel, and that, under these

       circumstances, evidence of the killing of Patel was necessary to complete the

       story of the crimes on trial.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 10 of 21
[18]   In addition, the State asserts that for the first time on appeal Dowdy argues that

       some of the evidence of the December 17, 2012 incident was admissible but that

       other evidence should have been excluded as overly prejudicial or irrelevant,

       that these new arguments are waived, and that, waiver aside, even if evidence

       of the December 17th killing was only admissible to show motive, there is no

       merit to Dowdy’s argument that the State could not present details of the crime.

       The State also contends that any error in the admission of the December 17th

       killing was harmless because Dominique identified Dowdy as the person in the

       car who was in a position to commit the shooting on December 18, 2012, that

       forensic evidence showed Eric was shot in the back of the head from within the

       car at close range, that Dominique had observed Dowdy in possession of the

       Bersa Thunder 380 handgun the previous night, and that the witness who called

       911 observed someone fitting Dowdy’s description exit the backseat of the car

       and run away after the shooting.


[19]   Ind. Evidence Rule 404(b) provides in part:


               (1)      Prohibited Uses. Evidence of a crime, wrong, or other act is
                        not admissible to prove a person’s character in order to
                        show that on a particular occasion the person acted in
                        accordance with the character.

               (2)      Permitted Uses; Notice in a Criminal Case. This evidence may
                        be admissible for another purpose, such as proving motive,
                        opportunity, intent, preparation, plan, knowledge,
                        identity, absence of mistake, or lack of accident. . . .




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 11 of 21
       Ind. Evidence Rule 403 provides: “The court may exclude relevant evidence if

       its probative value is substantially outweighed by a danger of one or more of the

       following: unfair prejudice, confusing the issues, misleading the jury, undue

       delay, or needlessly presenting cumulative evidence.”


[20]   The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

       court must determine that the evidence of other crimes, wrongs, or acts is

       relevant to a matter at issue other than the defendant’s propensity to commit the

       charged act; and (2) the court must balance the probative value of the evidence

       against its prejudicial effect pursuant to Rule 403. Whatley v. State, 908 N.E.2d

       276, 281 (Ind. Ct. App. 2009) (citing Boone v. State, 728 N.E.2d 135, 137-138

       (Ind. 2000), reh’g denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997)), trans.

       denied. The evidence is inadmissible when the State offers it only to produce the

       “forbidden inference” that the defendant has engaged in other, uncharged

       misconduct and the charged conduct was in conformity with the uncharged

       misconduct. Id. (citing Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000)). The

       trial court has wide latitude, however, in weighing the probative value of the

       evidence against the possible prejudice of its admission. Id. If evidence has

       some purpose besides behavior in conformity with a character trait and the

       balancing test is favorable, the trial court can elect to admit the evidence. Id.

       (citing Boone, 728 N.E.2d at 138). For instance, evidence which is necessary for

       the jury to understand the relationships between the victim, various witnesses,

       and the defendant may be admissible. Id. (citing Wilson v. State, 765 N.E.2d




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 12 of 21
       1265, 1270-1271 (Ind. 2002)). In addition, evidence of motive is always

       relevant in the proof of a crime. Fry v. State, 748 N.E.2d 369, 372 (Ind. 2001).


[21]   The challenged evidence regarding Dowdy’s participation in the robbery and

       shooting of Patel on December 17, 2012, was not introduced to show his

       propensity to engage in crime or that his behavior was in conformity with a

       character trait. The testimony of Dominique regarding the events of December

       17, 2012 was necessary for the jury to understand the relationships between

       Dowdy, Dominique, and Eric and the context of the subsequent meeting and

       shooting of Dominique and Eric on December 18, 2012. The testimony further

       explained why Dominique contacted Dowdy on December 18, 2012 to say that

       he had a buyer lined up for the iPhone, why Dominique and Eric arranged a

       meeting with Dowdy, and why Dowdy handed a white box containing an

       iPhone to Eric while seated in the Camaro. Additionally, the challenged

       evidence was offered to establish Dowdy’s motive to commit the crimes against

       Dominique and Eric on December 18, 2012, and Dowdy’s identity as the

       person who committed the crimes. We cannot say the probative value of the

       challenged evidence was substantially outweighed by the danger of unfair

       prejudice, and the admission of the evidence did not violate Rule 404(b). See

       Fry, 748 N.E.2d at 372 (holding that the State offered the evidence of a scheme

       to steal a television involving the defendant and one of the victims to show the

       defendant’s motive for killing the victims and that the admission of the evidence

       did not violate Ind. Evidence Rules 404(b) or 403); Whatley, 908 N.E.2d at 282

       (noting the evidence of the defendant’s drug use and delivery was necessary for


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 13 of 21
       the jury to understand the relationships between the defendant, the victim, and

       the other witnesses and the context of the events which culminated in the

       victim’s death and holding the evidence did not violate Ind. Evidence Rules

       404(b) or 403) (citing Wilson, 765 N.E.2d at 1270-1271 (holding that evidence of

       the defendant’s drug dealing and prostitution-related activities was admissible

       in a murder prosecution and did not violate Ind. Evidence Rules 404(b) or 403

       where the evidence was “necessary for the jury to understand the relationships

       between the victim, various witnesses, and the defendant”); Ross v. State, 676

       N.E.2d 339, 346 (Ind. 1996) (holding that prior misconduct was “admissible

       because it demonstrated the defendant’s motive and intent to commit the

       murder and illuminated the relationship between the defendant and victim”)).


       B. Dominique’s Statement to His Mother


[22]   Dowdy also argues that the trial court erred in allowing Dominique’s mother to

       testify as to the contents of Dominique’s statement to her at the hospital that

       Dowdy was the person who shot him. Ind. Evidence Rule 801 provides that

       hearsay is a statement not made by the declarant while testifying at the trial or

       hearing and is offered in evidence to prove the truth of the matter asserted. Ind.

       Evidence Rule 802 provides that hearsay is not admissible unless these rules or

       other law provides otherwise. Ind. Evidence Rule 801(d)(1) provides that a

       statement is not hearsay if:


               A Declarant-Witness’s Prior Statement. The declarant testifies and is
               subject to cross-examination about a prior statement, and the
               statement:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 14 of 21
                                                    *****

                        (B)     is consistent with the declarant’s testimony, and is
                                offered to rebut an express or implied charge that
                                the declarant recently fabricated it or acted from a
                                recent improper influence or motive in so testifying;
                                or

                        (C)     is an identification of a person shortly after
                                perceiving the person.


[23]   Dowdy asserts that “the main issue is the timing of the claimed motive to

       fabricate.” Appellant’s Brief at 21. He states that Dominique provided

       different information in his first two statements to the detectives than he did in

       the rest and that it is apparent that he did the same when he first talked to his

       mother while in the hospital. He argues that Dominique’s statement to his

       mother “was made after his motive to fabricate arose.” Id. He states that

       Dominique knew he could be charged in connection with the death of Patel on

       December 17th and had “a virtually instant motive to lie about Dowdy’s

       identity and involvement in the December 17 case in an attempt to implicate

       Dowdy instead of himself.” Id. at 23.


[24]   The State contends that the court properly admitted the testimony of

       Dominique’s mother regarding Dominique’s prior identification of Dowdy as

       the shooter, noting that the trial court admitted the testimony under the

       exception to the hearsay rule for statements of identification of a person under

       Ind. Evidence Rule 801(d)(1)(C). The State argues that Dominique’s

       identification was not hearsay because he identified Dowdy as the shooter to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 15 of 21
       his mother a few weeks after the shooting and that, based on Dominique’s

       presence at trial and availability for cross-examination, the prior identification

       was admissible under Ind. Evidence Rule 801(d)(1)(C). The State further

       asserts that Dowdy’s argument on appeal misstates the record by asserting that

       testimony of Dominique’s mother was permitted as a prior consistent statement

       when in fact it was admitted as identification evidence. Additionally, it

       contends that Dominique’s prior statement would have been admissible under

       Evidence Rule 801(d)(1)(B), that Dominique would have had no motive to

       fabricate until he received a benefit for agreeing to testify against Dowdy, and

       that the testimony of Dominique’s mother would also have been admissible to

       rehabilitate Dominique from Dowdy’s suggestion during cross-examination

       that Dominique implicated him in exchange for leniency in the other crime.

       Finally, it states that any error in admitting the identification testimony of

       Dominique’s mother was harmless because Dominique identified Dowdy as the

       shooter at trial, Eric was shot from behind at close range, Dowdy’s use of

       Patel’s gun tied him to the shooting, and a bystander who called 911

       corroborated Dominique’s account.


[25]   Dominique testified before the jury and was subject to cross-examination about

       his prior statement. The record shows that Dominique’s mother gave a second

       statement to police on January 10, 2013, in which she said that Dominique had

       informed her at the hospital that Dowdy was the person who had shot him.

       Dominique testified that he had been hospitalized for approximately two

       weeks, that he had perceived Dowdy enter the backseat of the Camaro, and that


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 16 of 21
       he and Dowdy were friends. We cannot say that the trial court abused its

       discretion in finding that Dominique’s statement to his mother constituted an

       identification of Dowdy shortly after Dominique perceived him pursuant to

       Ind. Evidence Rule 801(d)(1)(C). See Dickens v. State, 754 N.E.2d 1, 6 (Ind.

       2001) (stating that statements of identification are not hearsay if they are made

       shortly after perceiving the person and the declarant is available for cross-

       examination concerning the statement at trial under Ind. Evidence Rule

       801(d)(1)(C), noting that “the term ‘shortly’ is relative rather than precise,” the

       purpose of the rule is to assure reliability, and holding that the statements

       qualified as statements of identification and were not hearsay) (citing Robinson

       v. State, 682 N.E.2d 806, 810-811 (Ind. Ct. App. 1997) (observing that the

       declarant made his statement identifying the defendant as one of the men who

       shot the victims two months and thirteen days after the shootings, noting that

       the declarant testified that he knew the defendant and that the two were friends,

       and holding that the identification was made shortly after perceiving the

       defendant for purposes of Ind. Evidence Rule 801(d)(1)(C))).


[26]   Additionally, we observe that Dominique’s statement to his mother while he

       was hospitalized was consistent with his testimony at trial that Dowdy was the

       person who shot him. The Indiana Supreme Court has stated that whether a

       motive to fabricate has arisen is a fact sensitive issue and we do not

       automatically find that a participant in a crime has a motive to fabricate, even

       where the police are inquiring into the declarant’s involvement in the crime.

       Holsinger v. State, 750 N.E.2d 354, 360 (Ind. 2001). At the time Dominique told


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 17 of 21
       his mother that Dowdy was the person who shot him, Dominique had not been

       arrested for his participation in the robbery of Patel and had not obtained any

       promise of leniency with respect to possible charges for his involvement in the

       robbery. In eliciting testimony from Dominique that he faced a shorter

       sentence because he entered a plea agreement, Dowdy suggested that

       Dominique recently fabricated his testimony against him to obtain leniency. To

       rebut that charge the State was allowed to offer evidence of Dominique’s prior

       statement to his mother pursuant to Ind. Evidence Rule 801(d)(1)(B). See id. at

       359-360 (holding that, at the time an accomplice to a robbery gave a statement

       to police implicating the defendant in the murder of a robbery victim, the

       accomplice did not have a motive to fabricate and that the statement was

       admissible under Ind. Evidence Rule 801(d)(1)(B) to rebut an implied charge of

       fabrication). We cannot say that the trial court abused its discretion in

       admitting Dominique’s statement to his mother under Ind. Evidence Rule

       801(d)(1).


                                                         II.


[27]   Next, Dowdy argues that the court abused its discretion in sentencing him to

       consecutive sentences because it did not articulate a reason for imposing

       consecutive sentences. He also contends that the court provided almost nothing

       to review. The State posits that the trial court’s statement, while brief, was

       adequate because it explained that Dowdy’s consecutive sentences were

       justified by the multiple victims.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 18 of 21
[28]   We review the sentence for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

       abuse of discretion occurs if the decision is “clearly against the logic and effect

       of the facts and circumstances before the court, or the reasonable, probable, and

       actual deductions to be drawn therefrom.” Id. A trial court abuses its

       discretion if it: (1) fails “to enter a sentencing statement at all;” (2) enters “a

       sentencing statement that explains reasons for imposing a sentence—including

       a finding of aggravating and mitigating factors if any—but the record does not

       support the reasons;” (3) enters a sentencing statement that “omits reasons that

       are clearly supported by the record and advanced for consideration;” or (4)

       considers reasons that “are improper as a matter of law.” Id. at 490-491. If the

       trial court has abused its discretion, we will remand for resentencing “if we

       cannot say with confidence that the trial court would have imposed the same

       sentence had it properly considered reasons that enjoy support in the record.”

       Id. at 491. The relative weight or value assignable to reasons properly found, or

       those which should have been found, is not subject to review for abuse of

       discretion. Id.


[29]   The Indiana Supreme Court has stated that “before a trial court can impose a

       consecutive sentence, it must articulate, explain, and evaluate the aggravating

       circumstances that support the sentence.” Monroe v. State, 886 N.E.2d 578, 580

       (Ind. 2008). In reviewing the court’s sentencing decision, we may consider both

       the written and oral sentencing statements. See Corbett v. State, 764 N.E.2d 622,

       631 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 19 of 21
[30]   At sentencing, the court stated:


               I do believe though based on the circumstances of this crime, I
               think each victim should be sentenced individually. When I
               think back to it, the shots were taken, I believe, first at Eric
               Clanton, although I’m not certain, and then the weapon had to be
               turned . . . towards the second victim, and that victim was
               Dominique, if it did occur that way. But regardless, it wasn’t two
               victims in one line of fire, it was two lines of fire at two different
               victims, so they will be sentenced consecutively.

               As to Eric, who is the subject of Count One, I believe the Court
               will sentence a 50-year sentence to the Department of Corrections.
               As to Dominique, the sentence will be a 25-year sentence
               consecutive to a 50-year sentence. Overall, a 75-year sentence
               will be imposed. That is 75 years at the Department of
               Corrections.


       Transcript at 464-465.


[31]   The presence of multiple victims is an aggravating circumstance that justifies

       the imposition of consecutive sentences. See Cardwell v. State, 895 N.E.2d 1219,

       1225 (Ind. 2008) (stating that “[w]hether the counts involve one or multiple

       victims is highly relevant to the decision to impose consecutive sentences”);

       McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (noting that “[i]njury to

       multiple victims has been cited several times by this Court as supporting

       enhanced and consecutive sentences”); Gilliam v. State, 901 N.E.2d 72, 74 (Ind.

       Ct. App. 2009) (stating “a single aggravating circumstance may justify the

       imposition of consecutive sentences” and “[t]he presence of multiple victims is

       one such aggravating circumstance”).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 20 of 21
[32]   Based on the trial court’s comments that multiple victims justified consecutive

       sentences, we cannot say the court abused its discretion in sentencing Dowdy to

       consecutive terms. See Gross v. State, 22 N.E.3d 863, 870 (Ind. Ct. App. 2014)

       (holding the trial court did not abuse its discretion in ordering consecutive

       sentences and noting the court’s support for its decision to impose consecutive

       sentences included that there had been two murder victims), trans. denied.


                                                   Conclusion

[33]   For the foregoing reasons, we affirm Dowdy’s convictions and sentence for

       murder and attempted murder.


[34]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016   Page 21 of 21
