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