Damoine Wilcoxson v. State of Indiana (mem. dec.) ( 2020 )

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.
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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
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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
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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,
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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
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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
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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.
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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
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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
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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.
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