                                                                                      FILED
                                                                                 Jul 16 2018, 10:25 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                           Curtis T. Hill, Jr.
      Marion County Public Defender Agency                       Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Lyubov Gore
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jermaine Jackson,                                          July 16, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1712-CR-2899
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Sheila A. Carlisle,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G03-1701-F1-3202



      Najam, Judge.


                                         Statement of the Case
[1]   Jermaine Jackson appeals his convictions for attempted murder, a Level 1

      felony; three counts of criminal recklessness, as Level 6 felonies; and carrying a

      handgun without a license, as a Class A misdemeanor, following a jury trial.

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018                            Page 1 of 9
      He presents a single issue for our review, namely, whether the trial court abused

      its discretion when it admitted evidence of his prior bad acts. We affirm.


                                  Facts and Procedural History
[2]   Jackson and Tranitra Tipton were previously married and had two children

      together, A.J. and J.J. In January 2016, after Jackson and Tipton had divorced,

      Tipton began dating Troy Pollard, and they had a child together, N.P., who

      was born in November 2016.


[3]   On November 11, 2016, Tipton dropped off A.J. and J.J. at their daycare

      center, and Jackson was there. Jackson saw that J.J.’s hair had been cut and

      asked Tipton who had cut it. When Tipton told Jackson that Pollard had cut

      J.J.’s hair, Jackson “got angry,” yelled at Tipton, threatened to beat her up, and

      threatened to “kill [Pollard] if he touch[ed J.J.’s] hair again.” Tr. Vol. 2 at 239.

      Later that afternoon, when Tipton and Pollard returned to the daycare center to

      pick up the children, Jackson was there and confronted Pollard. Jackson began

      threatening Pollard and said, “N****, I [will] kill you.” Id. at 241. Tipton

      called the police, and Jackson left the scene with the children.


[4]   On January 20, 2017, Pollard, Tipton, A.J., J.J., and N.P. arrived home at 9:45

      p.m. after an evening out. They were about to exit their minivan when Pollard

      saw a man running towards him. As the man got closer, Pollard recognized the

      man as Jackson. Jackson was wearing a black hoodie sweatshirt that he often

      wore, and he was wearing black sweatpants and black tennis shoes. When

      Jackson reached the minivan, he fired a semi-automatic handgun at Pollard

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018    Page 2 of 9
      four or five times,1 striking him twice in his chest and once in his back, near his

      spine. Tipton saw that the shooter was Jackson before he fled the scene, and

      she yelled, “That was Jermaine.” Id. at 230. Tipton then drove Pollard to the

      hospital. On the way there, Pollard called his mother and told her that Jackson

      had shot him.


[5]   At the hospital, officers with the Indianapolis Metropolitan Police Department

      (“IMPD”) interviewed Pollard and Tipton, who both identified Jackson as the

      shooter. Tipton gave the officers Jackson’s address and phone number, and she

      gave them the address for Jackson’s aunt living in Chicago. When Pollard was

      released from the hospital, he, Tipton, and the children went to Michigan to

      stay with relatives, and they stayed there until Jackson was apprehended at his

      aunt’s house in Chicago on January 30. In the course of their investigation,

      IMPD officers discovered that Jackson’s cell phone had “pinged” two cell

      phone towers at 8:56 p.m. and 10:00 p.m. on January 20, at locations

      approximately fifteen minutes and ten minutes away from the scene of the

      shooting, respectively. Tr. Vol. 3 at 120.


[6]   The State charged Jackson with attempted murder, as a Level 1 felony; three

      counts of criminal recklessness, as Level 6 felonies; carrying a handgun without

      a license, as a Class A misdemeanor; unlawful possession of a firearm by a

      domestic batterer, a Class A misdemeanor; and invasion of privacy, as a Class



      1
       Officers found four shell casings at the scene, but Pollard and Tipton found another shell casing in the
      minivan after they returned home from Michigan.

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018                           Page 3 of 9
      A misdemeanor. Prior to trial, the State filed a notice of intent to introduce

      evidence of other crimes, wrongs, or acts under Indiana Evidence Rule 404(b),

      namely, Jackson’s threats to Pollard and Tipton in November 2016. Following

      a hearing, the trial court granted the State permission to introduce the Rule

      404(b) evidence over Jackson’s objection. Also prior to trial, the court

      dismissed the unlawful possession of a firearm by a domestic batterer on the

      State’s motion, and the court ordered that the invasion of privacy charge would

      be severed and the trial would be bifurcated. At trial, Jackson’s defense was

      that he was not the shooter. The first jury trial resulted in a mistrial after the

      jury could not reach a unanimous verdict. After the first phase of the second

      trial, a jury found Jackson guilty of attempted murder, carrying a handgun

      without a license, and three counts of criminal recklessness. The State

      dismissed the invasion of privacy count. The trial court entered judgment of

      conviction accordingly and sentenced Jackson to an aggregate term of thirty-

      five years executed. This appeal ensued.


                                      Discussion and Decision
[7]   Jackson contends that the trial court abused its discretion when it admitted the

      evidence of threats he had made to Pollard and Tipton in November 2016.

      Jackson maintains that the “prior bad act evidence here was a single, isolated,

      one-minute-long incident between [Jackson and Pollard], occurring months

      before the charged offense.” Appellant’s Br. at 14. And he asserts that “the

      challenged evidence is not sufficiently probative of the two men’s relationship



      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018     Page 4 of 9
      to justify its admission, and it unfairly suggested Jackson had a propensity to

      kill.” Id. We cannot agree.


[8]   As our Supreme Court has explained:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded a great deal of deference on appeal. Because the trial
              court is best able to weigh the evidence and assess witness
              credibility, we review its rulings on admissibility for abuse of
              discretion and only reverse if a ruling is clearly against the logic
              and effect of the facts and circumstances and the error affects a
              party’s substantial rights.


      Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks

      omitted).


[9]   Indiana Evidence Rule 404(b) generally prohibits “[e]vidence of a crime,

      wrong, or other act . . . to prove a person’s character in order to show that on a

      particular occasion the person acted in accordance with the character.” But

      such evidence “may be admissible for another purpose, such as proving motive,

      opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

      or lack of accident.” Id.


              Evidence Rule 404(b) is designed to prevent the jury from
              making the “forbidden inference” that prior wrongful conduct
              suggests present guilt. Halliburton v. State, 1 N.E.3d 670, 681
              (Ind. 2013) (citing Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.
              1999)). Or, as stated in Bassett v. State, 795 N.E.2d 1050, 1053
              (Ind. 2003), the purpose behind Evidence Rule 404(b) is to
              “prevent[ ] the State from punishing people for their character,
              and evidence of extrinsic offenses poses the danger that the jury

      Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018       Page 5 of 9
               will convict the defendant because . . . he has a tendency to
               commit other crimes.” (internal quotation omitted). In assessing
               the admissibility of evidence under Evidence Rule 404(b), the
               trial court must first 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 then
               balance the probative value of the evidence against its prejudicial
               effect pursuant to Evidence Rule 403. Halliburton, 1 N.E.3d at
               681-82 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)).
               The effect of Rule 404(b) is that evidence is excluded only when
               it is introduced to prove the forbidden inference of demonstrating
               the defendant’s propensity to commit the charged crime. Rogers
               v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied.


       Laird v. State, --- N.E.3d ---, No. 69A05-1707-CR-1709, 2018 WL 2994579, at *4

       (Ind. Ct. App. June 15, 2018), trans. pending.


[10]   Here, the State contends that the challenged evidence was not admitted to show

       Jackson’s propensity to commit attempted murder; rather, it was admitted to

       show Jackson’s hostility towards Pollard and his motive for shooting him. See

       id.; Evid. R. 404(b). And Jackson “acknowledges that evidence of motive is

       always relevant in the proof of a crime,” citing Ross v. State, 676 N.E.2d 339,

       346 (Ind. 1996). Appellant’s Br. at 17.


[11]   Still, Jackson maintains that the evidence of a single prior incident, specific to

       his anger over a haircut, is not probative of his motive here. In support of that

       contention, Jackson attempts to distinguish this case from those cited by the

       State in its brief on appeal, most notably Iqbal v. State, 805 N.E.2d 401, 408

       (Ind. Ct. App. 2004). In Iqbal, we observed that “[n]umerous cases have held


       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018    Page 6 of 9
       that where a relationship between parties is characterized by frequent conflict,

       evidence of the defendant’s prior assaults and confrontations with the victim

       may be admitted to show the relationship between the parties and motive for

       committing the crime.” 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (emphasis

       added). Here, the evidence does not show a history of frequent conflicts

       between Pollard and Jackson. Indeed, in addition to the November 11, 2016,

       incident, the evidence shows only one other brief encounter between the two

       men prior to the January 2017 shooting.


[12]   However, given the nature of the two separate encounters between the men on

       November 11, 2016—in particular, Jackson’s explicit threats to kill Pollard over

       something as trivial as a child’s haircut—we hold that the evidence of the

       November 11, 2016, incidents is probative of Jackson’s hostility towards

       Pollard and his motive in the shooting only two and a half months later.2 See id.

       (holding that defendant’s prior threat to kill his wife, while holding a gun to her

       head, was “probative of the relationship between [the defendant and his wife]

       and his hostility towards her,” and “highly relevant” to the issue of motive,

       where the threat had occurred more than three months prior to her murder).

       Indeed, defense counsel acknowledged at the Rule 404(b) hearing that the

       evidence “gives an idea [of] what the relationship between the two men” was




       2
         Jackson’s suggestion that, because there was no evidence that Pollard cut J.J.’s hair again after November
       11, 2016, his threats on that date are not probative of motive is not well taken. That Jackson would threaten
       to kill his ex-wife and her boyfriend over a child’s haircut is plainly indicative of a motive to kill regardless of
       whether the condition precedent, i.e., that Pollard cut J.J.’s hair again, did not occur.

       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018                                 Page 7 of 9
       like. Tr. Vol. 2 at 59. And the probative value of that evidence outweighed any

       prejudice to Jackson. See Laird, 2018 WL 2994579, at *4; see also Snow v. State,

       77 N.E.3d 173, 177 (Ind. 2017) (stating trial court has “wide discretion” in

       making Rule 403 determination). Thus, the trial court did not abuse its

       discretion when it admitted the challenged evidence.


[13]   Further, even if the trial court committed error in admitting the evidence of

       Jackson’s prior threats against Pollard, that error was harmless.


               An error is harmless when it results in no prejudice to the
               “substantial rights” of a party. Camm v. State, 908 N.E.2d 215,
               225 (Ind. 2009); Ind. Trial Rule 61.[] While there are important
               contextual variations to this rule,[] the basic premise holds that a
               conviction may stand when the error had no bearing on the
               outcome of the case. At its core, the harmless-error rule is a
               practical one, embodying “the principle that courts should
               exercise judgment in preference to the automatic reversal for
               error and ignore errors that do not affect the essential fairness of
               the trial.”[] United States v. Harbin, 250 F.3d 532, 546 (7th Cir.
               2001) (internal quotation marks omitted).


       Durden v. State, ---N.E.3d---, No. 18S-CR-329, 2018 WL 3040338, at *4 (Ind.

       June 20, 2018).


[14]   Here, at trial, Jackson alleged that Pollard and Tipton could not have identified

       him as the shooter given that it was dark outside and the encounter was brief.

       We disagree and hold that the evidence of Jackson’s guilt was overwhelming.

       Pollard and Tipton, who had known Jackson for five years and had two

       children with him, both saw Jackson shoot Pollard. While the incident


       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018       Page 8 of 9
       occurred at night, and while the shooting happened over the course of seconds

       before Jackson fled the scene, both eyewitnesses identified him immediately,

       and Tipton even recognized the black hoodie sweatshirt Jackson was wearing at

       the time of the shooting. In addition, the cell phone tower records show that

       Jackson was using his cell phone in the area both before and after the shooting,

       which evidence Jackson has not challenged on appeal. In sum, Jackson cannot

       show that the admission of the evidence regarding the November 11, 2016,

       threats prejudiced his substantial rights. See id.


[15]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1712-CR-2899 | July 16, 2018   Page 9 of 9
