      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 FILED
      regarded as precedent or cited before any
                                                                       Jun 19 2017, 5:45 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                               CLERK
                                                                        Indiana Supreme Court
      estoppel, or the law of the case.                                    Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Kristin A. Mulholland                                    Curtis T. Hill, Jr.
      Crown Point, Indiana                                     Attorney General of Indiana

                                                               Monika Prekopa Talbot
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gentry Hervie Jackson,                                   June 19, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1609-CR-2032
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G01-1508-MR-4



      Barnes, Judge.


                                             Case Summary
[1]   Gentry Jackson appeals his conviction for murder. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017      Page 1 of 14
                                                     Issues
[2]   The issues before us are:

              I.       whether the trial court properly allowed the State to
                       present evidence of an alleged threat made to one of its key
                       witnesses by Jackson’s wife;


              II.      whether there is sufficient evidence of the necessary mens
                       rea for a murder conviction; and


              III.     whether there is sufficient evidence to support the jury’s
                       rejection of his self-defense claim.


                                                     Facts
[3]   Jackson is married to Michelle Jackson. Previously, Michelle was married to

      Alec McCloud for eight to nine years and had five children with him. Two of

      those children were Justin McCloud and Alexis McCloud Rogers; Justin was

      twenty-two at the time of trial, and Alexis was nineteen. Michelle asserted that

      Alec had been abusive towards her during their marriage, and Alec and Jackson

      had a very antagonistic relationship. Alec was not welcome at Jackson’s

      residence.


[4]   On August 3, 2015, Alexis was living with Jackson and Michelle in Gary.

      Justin also was at the house that day. At some point on that day, before the sun

      went down, Alexis returned to the house from an outing and had to knock on

      the door because she did not have a key. As she was knocking, she saw Alec

      drive up to the house in his mother’s car. Alexis had not spoken to Alec for

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 2 of 14
      months and was surprised to see him. Justin opened the door for Alexis and

      also saw Alec parked outside; he had spoken to Alec earlier and was aware he

      was in town.


[5]   Alexis got into an argument with Michelle after going into the house and

      mentioning to Justin that their father was outside. Justin went outside while

      Alexis and Michelle continued arguing. When Michelle noticed that Alec was

      outside, she yelled at Alexis, “why did [you] bring him over here.” Tr. Vol. I p.

      136. Alexis noticed Jackson go into his bedroom, come back out carrying a

      gun, and go outside. As Jackson walked past Michelle, she said, “make sure

      that’s him.” Id. at 141. Justin could see that Alec was on his phone, sitting in

      the car, when Jackson approached the car and said, “I got you now.” Id. at 79.

      Justin did not see anything else in Alec’s hands besides his cell phone. Jackson

      then began shooting at the car and eventually fired a total of eight shots. Alec

      began driving away as Jackson opened fire.


[6]   Alec drove for a short distance before wrecking the car. Justin and a friend of

      his arrived on the scene shortly thereafter. Justin and his friend saw Alec’s

      phone in his lap and nothing else, such as a gun. Police never recovered a gun

      from Alec or the car. There were five bullet holes in the driver’s side front door

      and one in the rear door. Alec suffered gunshot wounds to his back, abdomen,

      and buttocks. After undergoing emergency surgery, Alec died.


[7]   After the shooting, Jackson took the chamber out of the gun, called 911,

      reported the shooting, and waited for police to arrive. While waiting, Michelle


      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 3 of 14
      told Alexis, “Look what you made my husband do. My husband better not go

      to jail.” Id. at 157. When police arrived, Jackson told them he had shot Alec

      because he had seen Alec point a gun at him.


[8]   In Alexis’s first statement to police immediately after the shooting, she said that

      Alec had called Jackson to the car and that she saw Alec holding a gun. She

      also said Alec may have shot first. Alexis also made similar statements to

      defense counsel. However, at the end of December 2015, Alexis went to the

      police station with Alec’s mother and said she had lied in her earlier statements,

      and that in fact from where she was standing she could not see if Alec was

      holding anything in his hands. Alexis explained that she felt pressured to lie

      because of Michelle’s perceived threat to her that Jackson “better not go to jail.”

      Id.


[9]   The State charged Jackson with murder. Before his jury trial, Jackson filed a

      motion in limine to prevent the State from presenting evidence of Michelle’s

      threatening statement to Alexis. Initially, the trial court granted this motion but

      later reversed itself. The State presented evidence of Michelle’s statement

      during its direct examination of Alexis to explain why some of her pretrial

      statements differed from later statements and her trial testimony that she did

      not see Alec holding a gun. Before Alexis’s testimony on this point, the trial

      court instructed the jury:

              We are about to go into a line of questioning where the witness
              will be allowed to testify to certain statements attributed to her
              mother, Michelle. Now, typically these are hearsay statements.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 4 of 14
               It would not be admissible, but in this instance, in hearings
               conducted outside your presence, they are now deemed to be
               proper and admissible to show the witnesses, this witness’ state of
               mind and her beliefs at the time that she’s receiving these
               statements from Michelle. They are not intended to prove that
               the statements are actually made. If the intent is to show what
               this witness’ state of mind was at the time of receiving the
               statements were Michelle. I also inform you that these
               statements attributed to her mother, Michelle, are not attributed
               to the defendant.


       Id. at 151-52. Defense counsel also questioned Alexis about her inconsistent

       pretrial statements during cross-examination.


[10]   Jackson testified on his own behalf at trial. He claimed that Alec asked him to

       approach the car, and as he did so, Alec raised a gun and pointed it at him.

       Jackson said he then pulled his gun out the waistband of his pants and began

       firing it at the car, not really aiming, as he ran backwards and attempted to take

       shelter behind his own car. The jury found Jackson guilty as charged, and the

       trial court sentenced him accordingly. Jackson now appeals.


                                                   Analysis
                                   I. Admission of “Threat” Evidence

[11]   The first issue is whether the trial court properly allowed Alexis to testify that

       she felt threatened by statements Michelle made immediately after the shooting,

       which caused her to initially make false statements about the shooting to police

       and defense counsel. “We review evidentiary rulings for abuse of discretion

       resulting in prejudicial error.” Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 5 of 14
       An abuse of discretion occurs if a ruling “is either clearly against the logic and

       effect of the facts and circumstances before the court, or when the court

       misinterprets the law.” Id. We may affirm a decision regarding the admission

       of evidence if it is sustainable on any basis in the record. Johnson v. State, 6

       N.E.3d 491, 499 (Ind. Ct. App. 2014). Also, we will disregard any error in the

       admission of evidence unless it affects the substantial rights of a party. Id. In

       determining the prejudicial effect of an evidentiary ruling on a party’s

       substantial rights, we consider the probable impact of the improperly-admitted

       evidence on the fact finder. Id. “Any error caused by the admission of evidence

       is harmless if the evidence was cumulative of other, appropriately admitted,

       evidence.” Id.


[12]   Before the trial court, Jackson lodged two specific objections against Alexis

       relating what Michelle had told her: (1) it was inadmissible hearsay, and (2) its

       unfair prejudicial effect outweighed its probative value under Indiana Evidence

       Rule 403.1 On appeal, Jackson does not attempt to argue that Alexis’s

       testimony regarding Michelle’s statements was inadmissible hearsay. See Fox v.

       State, 497 N.E.2d 221, 226 (Ind. 1986) (holding testimony that witness had

       made prior inconsistent statements because of threats against his family was

       admissible under “state of mind” exception to hearsay rule). Jackson argues

       only that the evidence was inadmissible under Evidence Rule 403. He is correct



       1
         Evidence Rule 403 states: “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.”

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017              Page 6 of 14
       that Fox did not address the probative value of such evidence versus its

       prejudicial effect, nor does it appear the trial court addressed the Evidence Rule

       403 issue. Still, we may affirm the trial court’s ruling on any basis supported by

       the record. See Johnson, 6 N.E.3d at 499.


[13]   When analyzing a claim of evidence being inadmissible under Evidence Rule

       403 for being too unfairly prejudicial, the inquiry is whether the probative value

       of the proffered evidence is outweighed by the likely unfair prejudicial impact of

       that evidence. Myers v. State, 33 N.E.3d 1077, 1109 (Ind. Ct. App. 2015), trans.

       denied. “‘When determining the likely unfair prejudicial impact, courts will

       look for the dangers that the jury will (1) substantially overestimate the value of

       the evidence or (2) that the evidence will arouse or inflame the passions or

       sympathies of the jury.’” Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App.

       2012) (quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002)), trans. denied.

       The general admissibility of evidence of threats against a witness has been

       addressed in several cases. Most of these cases predate the adoption of the

       Indiana Rules of Evidence and Rule 403 specifically; still, they are helpful in

       evaluating the issue of the unfair prejudicial effect of such evidence versus its

       probative value.


[14]   Our supreme court has stated, “evidence pertaining to bribery, threats and other

       influences which reflect upon the credibility of a witness should be given to the

       jury. . . . Moreover, such evidence should not be viewed as being collateral in

       nature.” Hardin v. State, 275 Ind. 63, 65–66, 414 N.E.2d 570, 572 (1981).

       Shortly after Hardin, this court held, “[s]ince threats tend to show guilty

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 7 of 14
       knowledge or an admission of guilt on the part of the defendant, a proper

       foundation must be laid showing the threats were made either by the defendant

       or with his or her knowledge or authorization.” Cox v. State, 422 N.E.2d 357,

       361–62 (Ind. Ct. App. 1981). “Thus, evidence of threats made by unidentified

       third persons usually lacks a sufficient connection to the defendant to render

       them admissible. Barring such a showing, the highly prejudicial nature of such

       testimony requires its exclusion.” Id. at 362. The main concern in Cox

       appeared to be that the State was implying certain threats made against a

       witness while incarcerated were instigated by the defendant, without any

       evidence to that effect. See Adams v. State, 890 N.E.2d 770, 776-77 (Ind. Ct.

       App. 2008) (distinguishing Cox in part because there was no evidence defendant

       knew of or was connected to threats against victim and State did not prompt

       witness to relate threats on stand), trans. denied.


[15]   Kimble v. State, 451 N.E.2d 302 (Ind. 1983), addressed a situation in which the

       trial court allowed the State to question a witness on re-direct examination

       about threats made to him in prison by friends of the defendant, without the Cox

       foundation of proof that the defendant knew of or authorized the threats. Our

       supreme court affirmed, holding defense counsel had opened the door on cross-

       examination to such evidence by leaving a false or misleading impression about

       why the witness wanted to avoid going to certain prisons as part of a plea deal

       with the State. Kimble, 451 N.E.2d at 306. We also note that Indiana Evidence

       Rule 613(b) now provides, “Extrinsic evidence of a witness’s prior inconsistent

       statement is admissible only if the witness is given an opportunity to explain or

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 8 of 14
       deny the statement and an adverse party is given an opportunity to examine the

       witness about it, or if justice so requires.” This rule does not require the

       presentation of evidence in any particular order regarding the prior inconsistent

       statement and explanations or denials of the statement. See Griffith v. State, 31

       N.E.3d 965, 970-71 (Ind. 2015).


[16]   After considering the caselaw surrounding this issue, as well as Evidence Rules

       403 and 613(b), we cannot say the trial court abused its discretion in permitting

       Alexis to relate the perceived threat Michelle made against her. Clearly, it

       related to explanation of prior inconsistent statements Alexis made regarding

       whether she saw Alec holding a gun before Jackson began shooting. Without

       the testimony about the threat, the jury would have had an incomplete and

       misleading picture about Alexis’s pretrial statements. The testimony about the

       threat had probative value as an explanation of Alexis’s prior inconsistent

       statements. Moreover, the trial court expressly instructed the jury that

       Michelle’s threat was hers and hers alone and was not attributable to Jackson.

       Thus, the apparent concern of cases such as Cox—that the State may attempt to

       sneak in an evidentiary harpoon of implied uncharged misconduct by the

       defendant or an admission of guilt—is absent here. Although the testimony

       about the threat may have been prejudicial to Jackson’s case, we cannot say

       that it was so unfairly prejudicial or encouraged the jury to consider improper

       factors in considering Jackson’s guilt or innocence such that it was

       inadmissible.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 9 of 14
[17]   Additionally, under our current evidence rules, it was not error for the State to

       bring up Michelle’s threat during Alexis’s direct examination, rather than

       waiting for the defense to question her about prior inconsistent statements

       during cross-examination and then to question her about the threats during re-

       direct examination or rebuttal. As noted, Evidence Rule 613(b) does not

       require any particular order in the presentation of evidence. 2 The Seventh

       Circuit, in addressing the Federal Rules of Evidence, has addressed a situation

       similar to this, and held it is proper for the government to anticipate that the

       defense will attempt to introduce evidence of a witness’s prior inconsistent

       statements and to “front” such cross-examination by admitting evidence during

       direct examination that the witness had been threatened by the defendant to

       make false pretrial statements. United States v. Holly, 167 F.3d 393, 394-95 (7th

       Cir. 1999). Although not binding upon us, a federal court’s interpretation of the

       Federal Rules of Evidence, which generally are similar to the Indiana Rules of

       Evidence, is useful. Griffith, 31 N.E.3d at 969. In sum, Holly and the way the

       trial court proceeded here are consistent with our rules of evidence. The trial

       court did not err in allowing the State to question Alexis about Michelle’s threat

       to her.




       2
         A party cannot call a witness for the sole purpose of impeaching them and presenting otherwise
       inadmissible evidence. Griffith, 31 N.E.3d at 973. The State did not call Alexis for the sole purpose of
       impeaching her, but primarily to elicit her testimony that she did not see Alec holding a gun and for other
       evidence related to the shooting.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017             Page 10 of 14
                              II. Sufficiency of the Evidence—Mens Rea

[18]   Next, we address whether there is sufficient evidence Jackson acted with the

       mens rea required to support a conviction for murder; Jackson contends that, at

       the most, he acted recklessly in shooting Alec. When analyzing a claim of

       insufficient evidence to support a conviction, we must consider only the

       probative evidence and reasonable inferences supporting the verdict. Sallee v.

       State, 51 N.E.3d 130, 133 (Ind. 2016). “It is the fact-finder’s role, not that of

       appellate courts, to assess witness credibility and weigh the evidence to

       determine whether it is sufficient to support a conviction.” Id. The evidence

       does not have to overcome every reasonable hypothesis of innocence, and it is

       sufficient if an inference may reasonably be drawn to support the verdict. Id.


[19]   To convict Jackson as charged, the State was required to prove that he

       knowingly or intentionally killed Alec. See Ind. Code § 35-42-1-1(1). The

       requisite intent to kill may be inferred from the nature of the attack and the

       circumstances surrounding the crime. Kiefer v. State, 761 N.E.2d 802, 805 (Ind.

       2002). Also, intent to kill may be inferred from the use of a deadly weapon in a

       manner likely to cause death or great bodily harm. Id.


[20]   Jackson’s argument is largely dependent upon the version of events described in

       his testimony, namely that he fired wildly at Alec’s car after he saw Alec

       holding a gun and while Jackson attempted to take cover behind his own car.

       This testimony conflicts in large measure with other evidence, including

       Justin’s testimony. Justin testified clearly that Jackson ran up to Alec’s car, said

       “I got you now,” and began firing at the car. Tr. Vol. I p. 79. Justin saw Alec
       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 11 of 14
       holding a cell phone and nothing else; no gun ever was found on Alec’s person

       or in his car. Jackson continued firing at Alec’s car as he drove away and did

       not stop until Alec turned a corner. All in all, Jackson fired eight shots, and at

       least six of them struck the car. This evidence is indicative of a deliberate intent

       to kill Alec and is sufficient to sustain his conviction for murder. See Allen v.

       State, 575 N.E.2d 615, 616 (Ind. 1991) (holding that firing multiple shots at

       moving car, at least two of which struck car, was sufficient evidence of intent to

       kill); Ware v. State, 859 N.E.2d 708, 725 (Ind. Ct. App. 2007) (holding there was

       sufficient evidence of intent to kill where defendant fired gun at group of fleeing

       boys and said he was “going to get” them), trans. denied. Jackson’s argument is

       an invitation to reweigh the evidence and judge witness credibility, which we

       must reject.


                            III. Sufficiency of the Evidence—Self-Defense

[21]   Finally, we address Jackson’s claim that he was acting in self-defense in

       shooting Alec. We review such claims as we do any other sufficiency claim:

       we neither reweigh the evidence nor judge witness credibility. Cole v. State, 28

       N.E.3d 1126, 1136-37 (Ind. Ct. App. 2015). A person is justified in using

       deadly force against another person “if the person reasonably believes that the

       force is necessary to prevent serious bodily injury to the person or a third person

       or the commission of a forcible felony.” I.C. § 35-41-3-2(c). The State has the

       burden of negating a claim of self-defense once it is raised and has support in

       the record. Cole, 28 N.E.3d at 1137. “The State may meet this burden by

       rebutting the defense directly, by affirmatively showing the defendant did not

       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 12 of 14
       act in self-defense, or by simply relying upon the sufficiency of its evidence in

       chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). Whether the defense

       has been rebutted is a question for the trier of fact. Cole, 28 N.E.3d at 1137.


[22]   As with his mens rea argument, Jackson’s self-defense claim is dependent upon

       acceptance of his trial testimony that he only began shooting at Alec when he

       saw Alec point a gun at him. This is in direct contravention of Justin’s

       testimony that he only saw Alec holding a cell phone, and the failure to find a

       gun on Alec’s person or in his car. Justin’s testimony that Jackson said “I got

       you now” before opening fire also supports the conclusion that Jackson began

       firing not out of fear of Alec, but as some sort of revenge for years of conflict

       between them and between Alec and Michelle. Tr. Vol. I p. 79. Finally, even if

       Jackson had some initial fear of Alec, there is evidence that Alec himself did

       not have a gun, let alone that he ever fired it at Jackson, yet Jackson fired eight

       shots, at least six of which struck Alec’s car, and continued firing at Alec even

       after he began to drive away. In other words, Jackson continued firing long

       after any threat posed by Alec disappeared. There is sufficient evidence to

       support the jury’s rejection of Jackson’s self-defense claim.


                                                 Conclusion
[23]   The trial court did not abuse its discretion in allowing the State to elicit

       testimony from Alexis that Michelle had threatened her, thus causing Alexis to

       make false pretrial statements. There is sufficient evidence Jackson had the

       requisite mens rea to commit murder and was not acting in self-defense when

       he shot Alec. We affirm.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 13 of 14
[24]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1609-CR-2032 | June 19, 2017   Page 14 of 14
