Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                         May 09 2013, 9:14 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 MARJORIE LAWYER-SMITH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CARMELL D. NELSON,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A03-1208-CR-349
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                            Cause No. 02D05-1106-FB-135


                                        May 9, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

      Carmell D. Nelson appeals his convictions of attempted murder, a Class A felony,

Ind. Code §§ 35-41-5-1 (1977), 35-42-1-1 (2007), and unlawful possession of a firearm

by a serious violent felon, a Class B felony, Ind. Code § 35-47-4-5 (2006). We affirm.

                                         ISSUE

      Nelson raises one issue, which we restate as: whether the trial court abused its

discretion by allowing evidence of his past wrongdoing to be presented to the jury.

                       FACTS AND PROCEDURAL HISTORY

      In March 2000, Nelson approached Rovon Wilson with a gun as Wilson walked

down the street. Nelson cursed at Wilson, pointed the gun at his head, and pulled the

trigger. Nothing happened, so Nelson pulled the trigger again, to no effect. Next, Nelson

hit Wilson in his face with the gun, leaving a permanent scar. Nelson was convicted of

battery as a Class C felony and sentenced to two years for attacking Wilson.

      On the evening of April 9, 2011, Wilson and his girlfriend, Pearl Paige, went to a

nightclub in Fort Wayne. When they arrived, Wilson saw Nelson. Wilson approached

Nelson to tell him that he did not have a problem with Nelson and was trying to have a

good time. Nelson said to Wilson, “F-you, you sent me to prison.” Tr. p. 203. Wilson

and Paige stayed at the nightclub, but Wilson noticed Nelson looking at him during the

evening.

      After midnight, Wilson and Paige went outside and called a taxi company. As

they waited for a taxi, Wilson saw Nelson in the club’s parking lot and said to Paige that

they should return inside. When Wilson turned to go back inside, Nelson approached

                                            2
him and shot him seven times. Wilson fell to the ground, and as he lay there he saw

Nelson standing over him, holding a gun. Wilson asked Nelson not to kill him, and

Nelson left.   Wilson survived the shooting but suffered severe, permanent injuries,

including losing the use of his legs.

       The State charged Nelson with the crimes identified above and aggravated battery.

At trial, the charges of attempted murder and aggravated battery were presented to the

jury separately from the charge of possession of a handgun by a serious violent felon.

During the attempted murder phase of the trial, Wilson testified over Nelson’s objection

about their March 2000 encounter. After the jury found Nelson guilty of attempted

murder and aggravated battery, the jury considered the charge of possession of a handgun

by a serious violent felon. At that point, the jury learned that Nelson’s attack on Wilson

in March 2000 resulted in a Class C felony conviction and a two-year sentence. The jury

determined that Nelson was guilty of the handgun charge. The trial court merged the

aggravated battery charge into the attempted murder charge and sentenced Nelson for

attempted murder and for possession of a handgun by a serious violent felon. This appeal

followed.

                             DISCUSSION AND DECISION

       Nelson argues the trial court should not have admitted evidence of his March 2000

attack on Wilson during the attempted murder phase of the trial, arguing that the attack

was evidence of a prior crime which unfairly prejudiced the jury against him, in violation

of Indiana Evidence Rule 404(b).



                                            3
        The trial court is afforded wide discretion in ruling on the admissibility and

relevancy of evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). We

review evidentiary decisions for an abuse of discretion and reverse only when the

decision is clearly against the logic and effect of the facts and circumstances. Id.

        Admission of evidence of other acts of misconduct is governed by Rule 404(b),

which provides:

        Evidence of other crimes, wrongs, or acts is not admissible to prove the
        character of a person in order to show action in conformity therewith. It
        may, however, be admissible for other purposes, such as proof of motive,
        intent, preparation, plan, knowledge, identity, or absence of mistake or
        accident, provided that upon request by the accused, the prosecution in a
        criminal case shall provide reasonable notice in advance of trial, or during
        trial if the court excuses pre-trial notice on good cause shown, of the
        general nature of any such evidence it intends to introduce at trial.

        This rule was designed to prevent a jury from assessing a defendant’s present guilt

on the basis of past propensities. Allen v. State, 720 N.E.2d 707, 711 (Ind. 1999). When

a court considers the admissibility of 404(b) evidence, it must: (1) 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) balance the probative value of

the evidence against its prejudicial effect pursuant to Rule 403. Nicholson, 963 N.E.2d at

1100.

        In this case, the trial court concluded that evidence of the March 2000 incident

was admissible to prove Nelson’s motive for shooting Wilson in 2011. Evidence of

motive is always relevant in the proof of a crime. Ross v. State, 676 N.E.2d 339, 346

(Ind. 1996). Furthermore, a defendant’s prior bad acts are also usually admissible to


                                              4
show the relationship between the defendant and the victim. Id. As our Supreme Court

has stated, “Hostility is a paradigmatic motive for committing a crime.” Hicks v. State,

690 N.E.2d 215, 222 (Ind. 1997) (quoting United States v. Russell, 971 F.2d 1098, 1106-

07 (4th Cir. 1992)).

       We agree that evidence of Nelson’s attack in March 2000 was relevant to prove

Nelson’s motive to shoot Wilson and was not admitted to create an inference that Nelson

acted in conformity with prior bad acts.          Wilson’s description of Nelson’s battery,

combined with Nelson’s statement, “F-you, you sent me to prison,” Tr. p. 203, tended to

prove that Nelson was angry at Wilson and wanted revenge. See Hicks, 690 N.E.2d at

222-23 (determining that evidence of prior altercations between Hicks and the victim was

relevant to prove motive).

       Wilson also testified that between the March 2000 incident and the April 2011

shooting, he saw Nelson at a bus stop in 2006 or 2007 and no fights occurred. Nelson

says evidence of this nonviolent interaction undermines the State’s claim of motive. The

bus stop encounter goes to the weight to be given to the March 2000 incident, not its

admissibility. See West v. State, 755 N.E.2d 173, 182 (Ind. 2001) (holding that a police

officer’s lack of reaction to West’s threat to kill a witness went to the weight to be given

to the threat, not its admissibility under Rule 404(b)).

       Next, we must balance the probative value of the evidence of Nelson’s March

2000 assault against its prejudicial effect.        Indiana Evidence Rule 403 provides,

“Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

                                              5
jury, or by considerations of undue delay, or needless presentation of cumulative

evidence.”

      We cannot conclude that the prejudice resulting from evidence of the March 2000

incident outweighed the probative value. At trial, Nelson did not dispute being at the

nightclub on the evening in question, but he argued that he was not the shooter. Evidence

of the March 2000 incident helped to establish the hostile relationship between Nelson

and Wilson. Furthermore, the March 2000 evidence supported and explained Nelson’s

statement to Wilson, “F-you, you sent me to prison.” Tr. p. 203. In addition, the jury

was also told that Nelson and Wilson had encountered one another in 2006 or 2007

without conflict, and it could weigh that encounter against Wilson’s testimony about

Nelson’s statements and conduct on the night of April 9, 2011. For these reasons,

admission of the March 2000 incident during the attempted murder phase of the trial did

not violate Rule 404(b), and the court did not abuse its discretion in admitting the

evidence.

                                    CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

ROBB, C.J., and NAJAM, J., concur.




                                            6
