Damoine Wilcoxson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 19, 2020
• Docket: 19A-CR-1021
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 19 2020, 10:22 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah K. Smith Curtis T. Hill, Jr. Thorntown, Indiana Attorney General of Indiana

Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Damoine Wilcoxson, February 19, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1021 v. Appeal from the Boone Superior Court State of Indiana, The Honorable Matthew C. Appellee-Plaintiff. Kincaid, Judge Trial Court Cause No. 06D01-1610-MR-249

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 1 of 10 Statement of the Case [1] Damoine Wilcoxson appeals his conviction for murder, a felony, following a

bench trial. He presents two issues for our review:

1. Whether the trial court abused its discretion when it admitted evidence of his prior bad acts.

2. Whether the trial court abused its discretion when it sentenced him.

[2] We affirm.

Facts and Procedural History [3] At approximately 12:30 p.m. on September 28, 2016, John Clements, an eighty-

two-year-old resident of Zionsville, was outside his house getting his mail when

an African-American man driving a white Chevrolet Impala drove by and shot

him multiple times. Three of Clements’ neighbors heard the shots and saw the

white car drive away. One of those neighbors, Kaitlin Wefler, found Clements

lying on his driveway. Officers with the Zionsville Police Department (“ZPD”)

were notified and arrived at the scene, where they found four .223-caliber shell

casings on Clements’ driveway. Clements died as a result of the gunshot

wounds.

[4] In the ensuing weeks, on October 4 and 13, someone “shot up” the

Indianapolis Metropolitan Police Department (“IMPD”) buildings for the

Northwest and North districts in Indianapolis. Wilcoxson v. State, 132 N.E.3d

27, 29 (Ind. Ct. App. 2019) (“Wilcoxson I”), trans. denied. Investigating officers

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 2 of 10 recovered thirty .223-caliber shell casings outside of the Northwest District

building and sixteen .223-caliber shell casings outside of the North District

building. Officers also found handwritten notes outside of each building after

the shootings that contained “threats against ‘white’ people and references to

‘Yahuah.’” Id. Forensic analysis revealed that the same gun was used to fire

the bullets in both of the incidents at the IMPD buildings, and DNA, later

matched to Wilcoxson, was found on one of the shell casings from each

incident.

[5] On October 31, an IMPD SWAT team executed an arrest warrant for

Wilcoxson at his apartment. Wilcoxson fired a gun at the officers as they

entered the apartment, but he ultimately surrendered. During a search of

Wilcoxson’s apartment, officers found a rifle, which forensic analysis revealed

had been used in Clements’ murder, the IMPD building shootings, and during

the SWAT team’s entry of his apartment. In addition, a handwriting analysis

indicated that Wilcoxson had written the notes left at the IMPD buildings.

[6] The State charged Wilcoxson with Clements’ murder in Boone County and

separately charged him with the IMPD shootings in Marion County. Prior to

trial on Clements’ murder, the State indicated its intent to submit evidence

related to the shootings at the IMPD buildings and at Wilcoxson’s apartment,

which occurred in the weeks after Clements’ murder, “for the purposes of

identifying [Wilcoxson] as the person who used the [same] gun at the time of

Mr. Clements’ murder and to prove [Wilcoxson’s] motive, opportunity, intent

and plan in this case.” Appellant’s App. Vol. 2 at 90. Following a hearing, the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 3 of 10 trial court ruled that the State would be permitted to introduce evidence at trial

related to the other shootings as “relevant on the question of identity of the

perpetrator of the crime in this cause[.]” Id. at 107. At trial, Wilcoxson argued

that the State could not prove that he was the person who shot and killed

Clements. At the conclusion of a bench trial, the court found Wilcoxson guilty

as charged, entered judgment of conviction accordingly, and sentenced

Wilcoxson to sixty-five years executed. The trial court ordered that this

sentence run consecutive to Wilcoxson’s forty-year sentence (thirty-seven years

executed and three years suspended to probation) for the Marion County

shootings. This appeal ensued.

Discussion and Decision Issue One: Evidence Rule 404(b)

[7] Wilcoxson contends that the trial court abused its discretion when it admitted

evidence including “detailed witness accounts from law enforcement regarding

the specific facts of the offenses that occurred on October 4, 2016, October 13,

2016, and October 31, 2016” in Marion County. Appellant’s Br. at 23.

Wilcoxson maintains that that evidence was inadmissible evidence of prior bad

acts under Indiana Evidence Rule 404(b). As we explained in Wilcoxson’s

appeal from his Marion County convictions:

[Evidence Rule 404(b)] provides that 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,” but it “may be admissible for another purpose, such as proving motive, opportunity, intent,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 4 of 10 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Ind. Evidence Rule 404(b). Evidence Rule 403 provides, in turn, that evidence, even if relevant, should be excluded “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.” Therefore, when the State seeks to use evidence of a crime, wrong, or other act, the court must (1) determine whether the evidence is relevant to a matter at issue other than the defendant’s propensity to commit the charged act and, if so, (2) balance the probative value of the evidence against its prejudicial effect. Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997). We review a trial court’s ruling for an abuse of discretion. Spencer v. State, 703 N.E.2d 1053, 1057 (Ind. 1999).

Wilcoxson I, 132 N.E.3d at 31.

[8] We do not reach the merits of Wilcoxson’s argument on this issue because he

failed to preserve it for our review. It is well settled that a contemporaneous

objection at the time the evidence is introduced at trial is required to preserve

the issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); see also

Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a

contemporaneous objection to the admission of evidence at trial results in

waiver of the error on appeal.”). The purpose of this rule is to allow the trial

judge to consider the issue in light of any fresh developments and also to correct

any errors. Brown, 929 N.E.2d at 207. When a defendant fails to object to

allegedly inadmissible evidence the first time it is offered, no error is preserved.

Jenkins v. State, 627 N.E.2d 789, 797 (Ind. 1993). Further, a defendant may not

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 5 of 10 present one ground for an objection at trial and assert a different one on appeal.

Lashbrook v. State, 762 N.E.2d 756, 759 (Ind. 2002).

[9] Here, Wilcoxson directs us to two objections he made to the alleged bad acts

evidence at trial, but neither one was timely, and neither one alleged a violation

of Evidence Rule 404(b). In particular, Wilcoxson first objected to testimony

by Erica Christensen, a crime scene specialist with the Marion County Crime

Lab who testified regarding the evidence she found at Wilcoxson’s apartment

after his arrest, including the rifle he used to murder Clements. Wilcoxson

objected to her testimony as irrelevant, but he made no objection based on

Evidence Rule 404(b).

[10] Then, after the State’s direct examination of Amanda Smet, another crime scene

specialist, Wilcoxson stated as follows:

I object to everything that she, all she did was take a picture of the scene and she don’t know when it occurred or et cetera and I, they’re just showin’ pictures, that’s what they’re doing, they just showin’ little evidence of any, takin’ pictures of things and she don’t know even know why she went out there. Every, I object to everything they’re doing here Your Honor. It doesn’t show the relevance of what we’re here for or not.

Tr. Vol. 2 at 191-92. The trial court overruled that objection, and Smet was

excused and the State called its next witness. At that point, Wilcoxson said,

“Your Honor, if you don’t mind, could they show the relevancy of the . . . what

they showing today that took place years ago in Indianapolis, what is the

relevancy of this doing with this case here today?” Id. at 192. The trial court

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 6 of 10 responded, “The Court has admitted the evidence, it has conducted a hearing

on 404(b) evidence and has ruled on this subject matter previously and so the

Court has made its evidentiary rulings and I think the record is preserved.” 1 Id.

[11] In sum, Wilcoxson did not make contemporaneous objections to the challenged

evidence. Neither did Wilcoxson make a continuing objection. And he did not

make a single objection at trial based on Evidence Rule 404(b). Thus, even if

his objections based on relevance had been timely, they were insufficient to

preserve the Rule 404(b) issue for our review. See Lashbrook, 762 N.E.2d at 759

(holding Evidence Rule 404(b) issue waived on appeal where defendant

objected based on relevance at trial). We hold that Wilcoxson has waived the

issue of whether the trial court abused its discretion when it admitted the

challenged evidence at trial. 2 See id.

Issue Two: Sentence

[12] Wilcoxson next contends that the trial court abused its discretion when it

sentenced 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

1 We reject Wilcoxson’s assertion that this comment indicates that the trial court “was not apt to change its mind.” Appellant’s Br. at 31. The contemporaneous and specific objection rules are clear and immutable. 2 Wilcoxson neither alleges nor demonstrates fundamental error in the admission of that evidence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 7 of 10 deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

App. 2014) (citation omitted), trans. denied.

[13] 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—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. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

other grounds, 875 N.E.2d 218 (Ind. 2007)).

[14] The sentencing range for a murder conviction is forty-five to sixty-five years,

with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3 (2019).

Here, at sentencing, the trial court identified the following aggravating factors:

Wilcoxson’s criminal history, including a prior conviction for attempted murder

and a probation violation; Clements’ age and the fact that Clements was the

primary caregiver for his disabled wife; Wilcoxson’s “character for hatred and

violence,” including his “espous[al of] hatred” towards white people; and the

facts and circumstances of Clements’ murder, which the court described as

“terroristic.” Appellant’s App. Vol. 2 at 39-40. The trial court found

Wilcoxson’s young age as a mitigating factor entitled to “minimal weight.” Id.

at 41. After weighing the aggravators and mitigators, the trial court imposed a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 8 of 10 sixty-five-year sentence to be served consecutively to Wilcoxson’s sentence for

the Marion County shootings. As the court explained,

[r]unning the sentence in this case concurrent with the sentence out of Marion County would stand for the proposition that if one undertakes a terroristic spree of murdering and attempting to murder people several times over a few weeks that such a miscreant stands to be punished only once. That is unacceptable. It is contrary to the rule of law and to a civil peaceful society. Aware that that total length of incarceration for the Defendant on this and [his sentence in Marion County] is 102 years, the Court FINDS that the imposition of the sentence in this case consecutive with that of [the Marion County case] is warranted.

Id. at 42.

[15] Wilcoxson contends that the sentencing order “does not support the finding of

the maximum sentence for murder,” and he states that he “would argue that the

imposition of consecutive sentences for the Boone case and Marion County

cases were not supported by the sentencing order and that any sentence

imposed by Boone County should be concurrent [with] the Marion County

cases.” Appellant’s Br. at 32, 34. Wilcoxson has not satisfied his burden on

appeal to show an abuse of discretion.

[16] First, Wilcoxson does not make cogent argument in support of a reduced

sentence. To the extent he suggests that the trial court gave too much weight to

his “character evidence” related to the alleged Evidence Rule 404(b) evidence,

Wilcoxson’s argument is not well taken. We will not reweigh aggravators and

mitigators on appeal. See Anglemyer, 868 N.E.2d at 491. Second, we reject

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 9 of 10 Wilcoxson’s attempt to analogize the aggravators and mitigators in this case to

those in Landers v. State, 762 N.E.2d 1208 (Ind. 2002), where our Supreme

Court reversed the trial court’s imposition of consecutive sentences based on

significant mitigators. Wilcoxson emphasizes his youth and that he is a father

to young children. But the trial court gave minimal weight to his youth and no

weight to his fatherhood. And the aggravators, especially the unimaginable

impact of Clements’ senseless murder on his disabled wife, clearly warrant the

imposition of consecutive sentences. The trial court did not abuse its discretion

when it sentenced Wilcoxson.

[17] Affirmed.

Vaidik, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1021 | February 19, 2020 Page 10 of 10