MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 03 2017, 11:11 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
James H. Voyles                                          Curtis T. Hill, Jr.
Jennifer M. Lukemeyer                                    Attorney General of Indiana
Voyles Vaiana Lukemeyer Baldwin &
                                                         Larry D. Allen
Webb                                                     Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lane G. Dodson,                                          October 3, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         50A03-1702-CR-363
        v.                                               Appeal from the Marshall Superior
                                                         Court
State of Indiana,                                        The Honorable Robert O. Bowen,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         50D01-1503-MR-1



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017         Page 1 of 16
                                                  Case Summary
[1]   Lane Dodson (“Dodson”) appeals his convictions, following a jury trial, for

      count I, attempted murder, a Level 1 felony;1 count II, intimidation, as a Level

      5 felony;2 count III, domestic battery, as a Class A misdemeanor; 3 and count

      IV, domestic battery, as a Class A misdemeanor.4 We affirm.



                                                           Issues
[2]   Dodson raises three issues on appeal which we restate as follows:


                 I.       Whether the trial court erred in admitting evidence of
                          Dodson’s relationship with his wife, Heather Dodson
                          (“Heather”).


                 II.      Whether the trial court erred by failing to sever the charges
                          of battery and intimidation from the charge of attempted
                          murder.


                 III.     Whether the trial court abused its discretion in sentencing
                          Dodson.




      1
          Ind. Code § 35-42-1-1(1) and I.C. § 35-41-5-1.
      2
          I.C. § 35-45-2-1(a)(1) and (b)(2)(A).
      3
          I.C. § 35-42-2-1.3(a).
      4
          Id.


      Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 2 of 16
                            Facts and Procedural History
[3]   In 2011, Dodson and Heather married, and they lived in Plymouth with

      Dodson’s two children from a previous marriage. Heather also had three

      children of her own from a previous relationship. During the marriage, Dodson

      had anger issues, and Heather became afraid of him. On December 23, 2014,

      while both Dodson’s and Heather’s children were in the marital home, Dodson

      confronted Heather about her extra-marital affair with Justin Pointon

      (“Pointon”). Dodson became angry and punched Heather in the eye with his

      fist. Heather assured Dodson that she was not going to call the police, and

      Dodson left the house. After Dodson left, Heather told the children that she

      had fallen.


[4]   Later that night, Dodson returned to the house and again questioned Heather

      about Pointon. Dodson and Heather went out to the shed behind their house

      so that Heather could wrap Christmas presents for the children. Dodson again

      began asking Heather about her affair, and he repeatedly hit her in her

      shoulder, face, arm, chest, stomach, and side. After beating Heather, Dodson

      threw her to the ground. Heather was crying, telling Dodson to stop, and trying

      to shield her face from him. Dodson, who was armed with a semi-automatic

      pistol, drew his gun from its holster and pointed it at Heather’s head. Dodson

      stated that the world would be better off without Heather and that she was a

      bad mother. He then ordered Heather to get down on her knees and beg for her

      life, which she did. At that point, one of Heather’s children knocked on the

      door to the shed and looked through the window, causing Dodson to stop his

      Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 3 of 16
      attack on Heather. Dodson and Heather resumed wrapping presents. Because

      Dodson threatened to further hurt Heather if she told anyone about the beating,

      Heather told others who asked about her injuries that she had fallen.


[5]   On December 28, Dodson confronted Pointon at a mutual friend’s house, and

      he hit Pointon in the head with a pistol, causing injury. A neighbor called the

      police. Plymouth Police Officer Matt Emmenhiser (“Officer Emmenhiser”)

      responded and arrested Dodson and Pointon. Dodson spent the night in jail

      and was released the following day.


[6]   On December 29, Heather’s sister, Samantha Harmon (“Harmon”), was at

      Heather’s neighbor’s, Heather Klinedinst’s (“Klinedinst”), house to pick up

      Harmon’s children. Klinedinst had previously noticed Heather’s injuries and

      she told Harmon about them. Harmon then went to Heather’s house and

      convinced Heather to pack up and come with the children to Harmon’s house.

      On their way to Harmon’s house, Harmon and Heather briefly stopped at their

      grandfather’s, Lawrence Christman’s (“Christman”), house and told him what

      had happened.


[7]   When they subsequently arrived at Harmon’s house, Heather was reluctant to

      call the police, so Harmon did so. Marshall County Sheriff Deputy Jonathan

      Bryant (“Deputy Bryant”) then met with Harmon and Heather at Harmon’s

      house. Heather reported to Deputy Bryant that Dodson had caused her

      injuries. While Heather was talking to Deputy Bryant in his patrol vehicle,

      Harmon received a telephone call from Christman. He informed Harmon that


      Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 4 of 16
       Dodson had come to Christman’s house looking for Heather and that Dodson

       appeared extremely angry. Christman stated that Dodson was on his way to

       Harmon’s house to find Heather.


[8]    Harmon immediately informed Heather and Deputy Bryant that Dodson was

       on his way to Harmon’s house. Deputy Bryant was aware from police records

       that Dodson had been arrested for the battery with a pistol just the previous

       evening, so he took Heather to the police station for her safety. On the way to

       the police station, Deputy Bryant put a call out to other officers to be on the

       lookout for Dodson, who was driving a white van and was possibly armed, and

       to take Dodson into custody. Later, Heather was taken to the hospital where

       her injuries were photographed.


[9]    After receiving the dispatch call, Indiana State Trooper William Ennis

       (“Trooper Ennis”) saw Dodson’s van. Trooper Ennis initiated a traffic stop of

       the van after seeing that Dodson failed to signal a turn. Trooper Ennis called

       for assistance from other officers after he observed Dodson acting anxiously in

       the driver’s seat. Officer Emmenhiser and his partner Officer Bridget Hite

       (“Officer Hite”) then arrived at the scene. Officer Hite’s police vehicle was

       equipped with a dashboard camera, which captured the subsequent interaction

       between Dodson and the officers that evening.


[10]   Officer Emmenhiser joined Trooper Ennis at the driver’s side door of Dodson’s

       vehicle, and the officers asked Dodson to step out of his van. Dodson replied,

       “F--- you.” Tr. Vol. III at 96. Dodson then drew his firearm from his shoulder


       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 5 of 16
       holster, pointed it at Officer Emmenhiser, and fired. Officer Emmenhiser

       retreated toward the front of Dodson’s vehicle and he and the other officers

       returned Dodson’s fire. Dodson was shot, and he collapsed. Dodson’s pistol

       and shell casings were retrieved from inside of the van, and Dodson was taken

       to the hospital to be treated for his wounds.


[11]   On March 13, 2015, the State charged Dodson with the attempted murder of

       Officer Emmenhiser, intimidation of Heather, two counts of domestic battery of

       Heather, and battery, with moderate bodily injury, of Pointon. Prior to

       Dodson’s trial and pursuant to Indiana Rule of Evidence 404(b)(2), the

       prosecutor provided notice of his intent to introduce evidence of Dodson’s and

       Heather’s violent relationship during their marriage. Dodson did not object to

       the admission of that evidence. At the trial, Heather provided testimony about

       the two times Dodson beat her on December 23, and the trial court admitted

       photographs of Heather’s injuries from December 23 without objection. At the

       conclusion of Dodson’s subsequent trial, a jury found him guilty as charged on

       all counts except count V, the battery charge related to Pointon, for which the

       jury found Dodson not guilty.


[12]   At sentencing, the trial court found that Dodson’s minimal criminal history and

       his low risk of re-offense were mitigating factors. The trial court found as

       aggravating factors that Dodson discharged a firearm at police officers without

       provocation, and he failed to take responsibility for his actions against the

       police officers by alleging a plot against him, despite clear video evidence

       showing him initiating gun fire with the officers. The trial court found that the

       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 6 of 16
       aggravating circumstances outweigh the mitigating factors, and it sentenced

       Dodson to an aggregate term of thirty-five years in the Department of

       Correction.


[13]   This appeal ensued.



                                  Discussion and Decision
            Admission of Evidence of Defendant’s and Victim’s
                              Relationship
[14]   Dodson contends that the following evidence that he was abusive toward

       Heather was improperly admitted: Heather’s testimony that Dodson was

       controlling of Heather and that she was afraid of him; and Christman’s

       testimony that he had suspected that Dodson had abused Heather when

       Christman had seen bruises on Heather in the past. The admission of evidence

       is reviewed for an abuse of discretion. E.g., Speybroeck v. State, 875 N.E.2d 813,

       818 (Ind. Ct. App. 2007). However, as Dodson concedes, his failure to object

       to the admission of the evidence waives his right to review unless the admission

       was fundamental error. E.g., Treadway v. State, 924 N.E.2d 621, 633 (Ind.

       2010). The fundamental error exception to waiver is extremely narrow and

       only applies when the error constitutes a blatant violation of basic principles,

       the harm or potential harm is substantial, and the resulting error denies the

       defendant fundamental due process and renders a fair trial impossible.

       Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). “[A]t bottom, the

       fundamental-error doctrine asks whether the error was so egregious and
       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 7 of 16
       abhorrent to fundamental due process that the trial judge should or should not

       have acted, irrespective of the parties’ failure to object or otherwise preserve the

       error for appeal.” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).


[15]   Dodson maintains that the challenged evidence was inadmissible under Indiana

       Rule of Evidence 404(b), which provides, in relevant part:


               (b) Crimes, Wrongs, or Other Acts.


                        (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; … 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.


       When assessing the admissibility of Rule 404(b) evidence, the court must

       determine that the evidence of other crimes or wrongs is relevant to a matter at

       issue other than the defendant’s propensity to commit the charged crime, and

       the court must balance the probative value of the evidence against its prejudicial

       effect pursuant to Indiana Rule of Evidence 403. Hicks v. State, 690 N.E.2d 215,

       221 (Ind. 1997).




       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 8 of 16
[16]   Here, the evidence of Dodson’s and Heather’s tumultuous past relationship5

       was probative of Dodson’s motive for beating and threatening Heather and of

       the nature of their relationship in general. Our Supreme Court has repeatedly

       held that a defendant’s prior bad acts of violence or threats of violence are

       “usually admissible” under Rule 404(b)(2) to show the relationship between the

       defendant and the victim, and to show the defendant’s motive where the charge

       is battery or murder. Hicks, 690 N.E.2d at 222; see also Spencer v. State, 703

       N.E.2d 1053, 1056 (Ind. 1999); Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996);

       Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994); Price v. State, 619 N.E.2d 582,

       584 (Ind. 1993). The challenged evidence of Dodson’s and Heather’s past

       relationship was probative of Dodson’s relationship with Heather and his

       motive for intimidating and battering her on December 23, 2014.


[17]   Moreover, Dodson has failed to articulate how the challenged evidence

       prejudiced him in any way. Parties to an appeal are required to present cogent

       argument. Ind. Appellate Rule 46(A)(8). While Dodson asserts that the

       evidence “had such an impact on the case that it prevented [him] from receiving

       a fair trial on the relevant facts to each count,” Appellant’s Br. at 16, he

       provides no explanation of how this is so. It is especially unclear how the

       challenged evidence would have prejudiced his case when there was a




       5
         We note that Heather’s testimony that she was afraid of Dodson is not a “prior act” of Dodson’s that is
       subject to the 404(b) analysis. See Hicks, 690 N.E.2d at 221, n.11. It is also questionable whether Heather’s
       testimony that Dodson was controlling of her relates to a “bad act;” however, for the sake of argument, we
       assume that it does.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017              Page 9 of 16
       significant amount of unchallenged evidence describing in detail his beatings of

       Heather on December 23 and depicting the injuries from those beatings.

       Dodson has failed to present cogent argument as to how the challenged

       evidence was prejudicial, and we will not attempt to develop such arguments

       for him. Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012), trans.

       denied.


[18]   The trial court did not commit fundamental error when it admitted Heather’s

       testimony that Dodson was controlling of her and Christman’s testimony that

       he had suspected Dodson had abused Heather in the past, as such testimony

       was probative of Dodson’s relationship with Heather and his motive for the

       crimes charged. Furthermore, Dodson failed to show any prejudicial effect

       regarding the admission of that evidence.


                                    Failure to Sever Charges
[19]   Dodson asserts that the trial court erred in failing to sever the charges of battery

       and intimidation from the charge of attempted murder. However, Dodson

       never moved to sever the charges. Therefore, he has waived his appeal on those

       grounds.


[20]   Indiana Code Section 35-34-1-12(a) (emphasis added) provides as follows:


                 A defendant’s motion for severance of crimes or motion for a
                 separate trial must be made before commencement of trial,
                 except that the motion may be made before or at the close of all
                 the evidence during trial if based upon a ground not previously


       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 10 of 16
               known. The right to severance of offenses or separate trial is waived by
               failure to make the motion at the appropriate time.


       We have held that, pursuant to the express language of this statute, a defendant

       waives his right to severance of offenses when he fails to renew a motion for

       severance that was denied before trial. Brown v. State, 683 N.E.2d 600, 603

       (Ind. Ct. App. 1997), trans. denied; see also Hobson v. State, 495 N.E.2d 741, 744

       (Ind. Ct. App. 1986) (noting “the express language of the statute and the

       decisions of our Supreme Court” provide for waiver upon failure to renew a

       motion to sever). Here, Dodson never even made a motion to sever to begin

       with. If a defendant waives severance by failing to renew a motion, he certainly

       waives it by failing to make the motion at all.


[21]   Moreover, it is well-established that we generally will not address an argument

       that was not raised in the trial court and is raised for the first time on appeal.


               [A] trial court cannot be found to have erred as to an issue or
               argument that it never had an opportunity to consider.
               Accordingly, as a general rule, a party may not present an
               argument or issue on appeal unless the party raised that
               argument or issue before the trial court. Marshall v. State, 621
               N.E.2d 308, 314 (Ind. 1993). In such circumstances the
               argument is waived. Id.


       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). By failing to move for

       severance of the charges or raise the issue of severance at all before the trial

       court, Dodson has waived our consideration of that issue on appeal.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 11 of 16
                              Abuse of Discretion in Sentencing
                                                  Standard of Review

[22]   Dodson maintains that the trial court erred in sentencing him. Sentencing

       decisions lie within the sound discretion of the trial court. Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008). 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.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation

       omitted), trans. denied. A trial court abuses its discretion in sentencing if it does

       any of the following:


                (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[6]—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.”


[23]   Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or value




       6
          We note that, under the advisory sentencing scheme that replaced the presumptive sentencing scheme in
       2005, the trial court “no longer has an obligation to weigh aggravating and mitigating factors against each
       other when imposing a sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). However, neither is
       the trial court prohibited from identifying facts in aggravation or mitigation. Id. And, if the trial court does
       find the existence of such factors, “then the trial court is required to give ‘a statement of the court’s reasons
       for selecting the sentence that it imposes.’” Id. (quoting Ind. Code § 35-38-1-3 (2006)).

       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017                Page 12 of 16
       assignable to reasons properly found, or those which should have been found, is

       not subject to review for abuse of discretion, id., and a trial court is under no

       obligation to explain why a proposed mitigator does not exist or why the court

       found it to be insignificant. Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct.

       App. 2014), trans. denied.


                              Reasonably Detailed Sentencing Statement

[24]   Dodson’s first contention is that the trial court’s statement at sentencing was

       not sufficiently detailed. Trial courts imposing felony sentences must make

       statements which may be oral, written, or both, Gleason v. State, 965 N.E.2d

       702, 711 (Ind. Ct. App. 2012), and which include a reasonably detailed

       recitation of the trial court’s reasons for imposing a particular sentence.

       Anglemyer, 868 N.E.2d at 490. And, while the trial court is not required to

       consider aggravating and mitigating factors, if its recitation of its reasons for the

       sentence includes such factors, the trial court “must identify all significant

       mitigating and aggravating circumstances and explain why each circumstance

       has been determined to be mitigating or aggravating.” Id.


[25]   Here, the trial court found that Dodson’s minimal criminal history and his low

       risk of re-offense were mitigating factors. But the trial court also found that

       Dodson shooting, unprovoked, at police officers and failing to show remorse

       for his actions were aggravators that outweighed the mitigating factors. In its




       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 13 of 16
       oral sentencing statement,7 the trial court explained that the discharge of the

       firearm without provocation was an aggravating factor because “[t]he offense

       was against a law enforcement officer and the officers did not pose any threat to

       [Dodson] nor provoke[] any reaction on [Dodson’s] part.” Tr. Vol. IV at 242.

       The trial court further explained that Dodson’s lack of remorse for his crime

       was demonstrated by his continued allegations that the police officers plotted

       against him, despite clear video evidence showing him initiating gun fire with

       the officers. Id. at 242-43. That is a “reasonably detailed sentencing statement

       that explained the trial court’s reasons for imposing the sentence” and the

       record supported those reasons. Kimbrough v. State, 979 N.E.2d 625, 629 (Ind.

       2012) (citing Anglemyer, 868 N.E.2d at 490).


                                     Consideration of Improper Reasons

[26]   Dodson also asserts that the trial court abused its discretion by considering

       improper reasons for his sentence. Specifically, Dodson maintains that the trial

       court erred in finding his use of a firearm and his plea of innocence as

       aggravating factors. However, Dodson misstates what the trial court found to

       be aggravating factors.


[27]   As Dodson points out, a trial court may not use a material element of the crime

       as an aggravating factor. Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000).




       7
         A trial court’s consideration of the mitigating and aggravating factors “may be evidenced in either the
       written order or in an oral sentencing statement.” Anderson v. State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013)
       (citing Gleason, 965 N.E.2d at 711), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017           Page 14 of 16
       However, the trial court may find the nature and circumstances of the offense to

       be an aggravating circumstance. Lemos v. State, 746 N.E.2d 972, 975 (Ind.

       2001). Here, as in Lemos, the fact that a specific weapon was used “is in itself

       not an aggravating circumstance, because some means is used in every

       murder.” Id. However, as in Lemos, it does not appear that the trial court

       concluded that discharging the firearm was a separate aggravating

       circumstance. Rather, the trial court emphasized in both its oral and written

       sentencing statements that Dodson shooting at a police officer without any

       provocation was an aggravating circumstance. That is part of the nature and

       circumstance of the crime, and the trial court did not abuse its discretion in

       finding it to be an aggravating factor. Id.


[28]   Further, while a defendant’s denial of guilt is not a permissible aggravating

       factor, his lack of remorse is. Deane v. State, 759 N.E.2d 201, 205 (Ind. 2001).

       Here, the trial court did not find that Dodson’s plea of innocence was the

       evidence of his lack of remorse. Rather, the court specifically stated that

       Dodson’s continued allegations that the police officers plotted against him,

       despite clear video evidence showing him initiating gun fire with the officers,

       showed his lack of remorse. We cannot say that the trial court abused its

       discretion in reaching that conclusion. Cf. Dockery v. State, 504 N.E.2d 291, 297

       (Ind. Ct. App. 1987) (holding trial court’s use of lack of remorse as an

       aggravating factor was impermissible where it was based solely upon defendant’s

       continued assertion of his innocence).




       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 15 of 16
                                    Failure to Properly Weigh Factors

[29]   Finally, Dodson maintains that the trial court abused its discretion by failing to

       give sufficient weight to his poor physical health and his lack of a criminal

       history. As our Supreme Court stated in Anglemyer, “[b]ecause the trial court

       no longer has any obligation to ‘weigh’ aggravating and mitigating factors

       against each other when imposing a sentence, … a trial court cannot now be

       said to have abused its discretion in failing to ‘properly weigh’ such factors.”

       Anglemyer, 868 N.E.2d at 491 (citations omitted). Therefore, we must decline

       Dodson’s request that we review the relative weight of the proposed mitigating

       factors. Gross, 22 N.E.3d at 869.



                                               Conclusion
[30]   The trial court did not commit fundamental error when it admitted evidence of

       Dodson’s and Heather’s relationship, as that evidence was admissible under

       Indiana Rule of Evidence 404(b)(2). Furthermore, Dodson has waived our

       review of the severance of charges by failing to raise that issue before the trial

       court. And the trial court did not abuse its discretion in its sentencing of

       Dodson.


[31]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1702-CR-363 | October 3, 2017   Page 16 of 16
