Kevion Golliday v. State of Indiana (mem.dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 20 2017, 9:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevion Golliday, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1701-CR-173
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1701-F2-7
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Kevion Golliday (Golliday), appeals his conviction for
Count I, attempted robbery resulting in serious bodily injury, a Level 2 felony,
Ind. Code §§ 35-41-5-1(a), -42-5-1; and Count II, attempted robbery while
armed with a deadly weapon, a Level 3 felony, I.C. §§ 35-41-5-1(a), -42-5-1.
[2] We affirm.
ISSUES
[3] Golliday raises two issues on appeal, which we restate as follows:
(1) Whether the State presented sufficient evidence beyond a reasonable doubt
to sustain Golliday’s conviction for two Counts of attempted robbery; and
(2) Whether the trial court abused its discretion by admitting certain
photographs into evidence.
FACTS AND PROCEDURAL HISTORY
[4] On the evening of October 11, 2014, seventeen-year-old Golliday and three of
his similarly-aged friends—Nashon Norman (Norman), Valentaus Walker
(Walker), and Monteese Words (Words)—attended a house party on Notre
Dame Avenue, near the Notre Dame University campus in South Bend, St.
Joseph County, Indiana. The teenage boys did not know anybody at the
college party, and, while there, they consumed alcohol and marijuana. At
some point, Golliday and Walker left the party “[t]o go get some more weed”;
however, the party shut down before they returned. (Tr. Vol. III, p. 54).
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[5] By this time, it was almost 3:00 a.m. on October 12, 2014. Golliday and
Walker subsequently reunited with Norman and Words, and the four walked
around the area in search of another party. As they neared the house located at
602 North Notre Dame Avenue (602 North), Walker indicated that he wanted
to “hit a sting”—i.e., commit a robbery. (Tr. Vol. IV, p. 13). It appeared that
there was an ongoing party inside 602 North, and Walker “wanted to go in and
put everybody on the floor”—that is, he wanted to “[g]o in, draw guns, and put
everybody on the floor and take whatever items they had.” (Tr. Vol. III, p. 87).
Norman indicated that he wanted no part of any robbery and walked away
from the other three, heading toward his house. Before leaving home that
evening, Walker had armed himself with a nine-millimeter semiautomatic
handgun, and Words was carrying either a .357 revolver or a BB gun.
Although there is conflicting evidence, the record indicates that Golliday was
armed with either “a little black gun” or a small, silver gun similar to Walker’s.
(Tr. Vol. III, p. 52).
[6] Inside 602 North, several Holy Cross College students were socializing when
they heard “aggressive banging” on the front door. (Tr. Vol. III, p. 159). Ryan
Gallup (Gallup), who lived at 602 North at the time, opened the door and saw
that nobody was there. He, along with his roommate, Michael Pilcher
(Pilcher); his friend, Ciro Taliercio (Taliercio); and Pilcher’s girlfriend, Brenna
Conway (Conway), went outside to investigate. At first, the students did not
notice anyone around the house, but then three black males approached from
around the corner of the fenced yard. The poor lighting made it difficult to
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discern their features, but Gallup observed that the three black males were
dressed in dark clothing and were approximately seventeen to twenty-four years
old. Conway estimated that the males were between fifteen and twenty years
old. The three young men initiated contact with the college students by acting
like they had seen “somebody knocking on our front door and then running
down the street.” (Tr. Vol. III, pp. 22-23). The three strangers then turned the
conversation toward the house party and asked if they could “come inside and
hang out[,] . . . have a drink and relax.” (Tr. Vol. III, p. 23). Pilcher repeatedly
and adamantly refused their requests, which caused the three men to become
“aggravated.” (Tr. Vol. III, p. 161). During this conversation, a motion-
activated light on the side of the house came on. Taliercio instructed Conway
to return inside the house, and he headed toward the backyard to examine why
the light had been activated.
[7] Suddenly, in what seemed to be a “synchronized” manner, all three men
“pulled out guns and started running” toward Pilcher and Gallup. (Tr. Vol. III,
p. 24). They ordered Pilcher and Gallup to “empty [their] pockets,” and one of
the suspects even started searching through Pilcher’s pockets. Gallup, however,
took off running toward the backyard, and as he did so, he heard someone yell,
“Get him.” (Tr. Vol. III, p. 27). Gallup turned and saw that he was being
chased. Gallup, who is licensed to carry a firearm, was also armed at the time.
As he rounded the corner of the house, Gallup withdrew his handgun from his
holster and fired five shots behind him. The man chasing him, later identified
as Walker, dropped to the ground. Moments after Gallup discharged his
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firearm, one of the remaining suspects in the front yard also fired his gun,
striking Pilcher in the head and foot. As Pilcher managed to stagger into the
house, the two would-be robbers fled on foot, leaving Walker to bleed in the
driveway. Inside the house, Conway applied pressure to Pilcher’s wounds as
they waited for emergency personnel.
[8] Upon hearing gunshots across the street, 602 North neighbors, fifteen-year-old
Brandon Rhodes (Rhodes) and his older brother, Adrian Rhodes (Adrian),
looked out their window and “saw two guys running down the street.” (Tr.
Vol. III, p. 108). They also observed a man—i.e., Walker—lying in the
driveway at 602 North. As Adrian dialed 9-1-1, Rhodes ran across the street to
check on Walker, who was barely conscious. Although Walker and Rhodes
had never previously met, Walker did not want to be caught in possession of a
gun, so he asked Rhodes “to take [his] gun.” (Tr. Vol. III, p. 60). Making “a
split second decision,” Rhodes picked up the firearm and went home to hide it
in his bedroom before returning to 602 North.
[9] Police arrived, and the scene was “chaotic” as there were ten to fifteen people
in and around the house. (Tr. Vol. IV, p. 149). When Gallup and Taliercio
heard the sirens, they walked to the front of the house from the backyard.
Gallup immediately identified himself to the police as the person who shot
Walker during the commission of the attempted robbery. Gallup observed that
Walker was being tended to on the ground, and the police were talking to two
African-American males, whom he did not know. Because there had been
three assailants, Gallup “assumed” that the two African-American males
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talking to the police—i.e., Rhodes and Adrian—were the two that had held
them up at gunpoint, and he identified them as the suspects to the police. (Tr.
Vol. III, p. 33). Accordingly, both Rhodes and Adrian were taken into police
custody.
[10] Once the police had secured the scene, the paramedics arrived and transported
Pilcher and Walker to the hospital. Both Pilcher and Walker survived their
wounds. Pilcher experienced “a medical miracle” as the gunshot to his head
entered and exited without causing any internal damage; in fact, it did not even
require surgery. (Tr. Vol. III, p. 143). However, the other gunshot shattered his
foot, as the result of which, Pilcher continues to suffer “a ton” of pain and
requires ongoing rehabilitation. (Tr. Vol. III, p. 142). When he was
interviewed by the police at the hospital, Pilcher identified Rhodes—whom he
knew as his neighbor—as being involved in the attempted robbery. According
to Pilcher, Rhodes and two friends had been at 602 North earlier that day for a
cookout, so he thought “it was probably them.” (Tr. Vol. III, p. 138). On the
other hand, during his police interview, Walker never named Rhodes as a co-
defendant. Rather, the information Walker provided ultimately led to the arrest
of Golliday and Words. Similarly, during his police interview, Words never
mentioned any involvement by Rhodes, and when shown a picture of Rhodes,
Words “didn’t know who it was.” (Tr. Vol. IV, p. 41).
[11] When interviewed by the police, Rhodes did not initially admit to taking the
gun from Walker and hiding it. However, he eventually informed the police,
and a subsequent search of Rhodes’ house revealed a nine-millimeter
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semiautomatic pistol. Rhodes was later convicted of unlawfully carrying a
handgun and sentenced to serve time in a juvenile facility.
[12] On October 17, 2014, the South Bend Police Department arrested Golliday
and, during a subsequent search, recovered Golliday’s cell phone. After
obtaining a warrant, police officers searched through Golliday’s phone, which
contained hundreds of photographs. Of particular interest, at least one
photograph saved to Golliday’s phone depicted the hand of a black individual,
holding a black and silver semiautomatic handgun with a finger on the trigger.
Another photograph depicted Golliday holding onto a black and silver
semiautomatic handgun with his finger on the trigger as he ejected the
magazine.
[13] On December 9, 2014, the juvenile court waived jurisdiction so that Golliday
could be charged as an adult. On December 10, 2014, the State filed an
Information, charging Golliday with robbery resulting in serious bodily injury,
a Level 2 felony, I.C. § 35-42-5-1. On February 3, 2015, the State amended the
Information to charge the offense as attempted robbery resulting in serious
bodily injury, a Level 2 felony, I.C. §§ 35-41-5-1(a), -42-5-1. Then, on April 1,
2015, the State again amended the Information by adding a second Count,
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attempted robbery while armed with a deadly weapon, a Level 3 felony, I.C. §§
35-41-5-1(a), -42-5-1. 1
[14] On October 26, 2016, Golliday filed a motion in limine seeking to prohibit the
State from introducing certain photographs from Golliday’s cell phone into
evidence. In part, Golliday sought to exclude any photographs of him “holding
or otherwise possessing, what appears to [be] marijuana, [a] handgun or other
weapon.” (Appellant’s App. Vol. II, p. 120). According to Golliday, the
admission of such photographs would create a risk of unfair prejudice
outweighing any probative value and constitutes improper character evidence.
On October 31, 2016, prior to trial, the trial court denied Golliday’s motion in
limine with respect to the two photographs depicting a firearm.
[15] On October 31 through November 3, 2016, the trial court conducted a jury trial.
At the close of the evidence, the jury returned a guilty verdict for both Counts,
and the trial court entered a judgment of conviction for a Level 2 felony and a
Level 3 felony. On January 12, 2017, the trial court held a sentencing hearing.
For Count I, attempted robbery resulting in serious bodily injury as a Level 2
felony, the trial court ordered a sentence of ten years, executed in the Indiana
Department of Correction (DOC). For Count II, attempted robbery while
1
Golliday’s co-defendants, Walker and Words, pled guilty to similar offenses. Specifically, Walker pled
guilty to attempted robbery resulting in serious bodily injury to Pilcher and carrying a handgun without a
license, for which he was sentenced to an executed term of seventeen and one-half years. Words pled guilty
to attempted robbery resulting in serious bodily injury to Pilcher and attempted robbery of Gallup; he was
sentenced to twenty-six and one-half years, with only four years of his term to be executed.
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armed with a deadly weapon as a Level 3 felony, the trial court sentenced
Golliday to seven and one-half years, executed in the DOC. The trial court
ordered the sentences to be served consecutively, for an aggregate term of
seventeen and one-half years. The trial court informed Golliday that upon his
completion of the Purposeful Incarceration/Therapeutic Community Program,
it would consider a sentence modification.
[16] Golliday now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
[17] Golliday claims that there is insufficient evidence to support his conviction for
attempted robbery resulting in serious bodily injury to Pilcher, a Level 2 felony,
and attempted armed robbery of Gallup, a Level 3 felony. When reviewing the
sufficiency of the evidence supporting a conviction, our court considers “only
the probative evidence and reasonable inferences supporting the fact-finder’s
decision.” Jenkins v. State, 34 N.E.3d 258, 261 (Ind. Ct. App. 2015), trans.
denied. We do not reweigh evidence or assess witness credibility, and we will
consider any conflicting evidence in a light most favorable to the verdict.
Kenney v. State, 908 N.E.2d 350, 351 (Ind. Ct. App. 2009), trans. denied. We will
affirm a conviction “unless ‘no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt.’” Id. at 351-52 (quoting Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007)). The evidence need not “overcome
every reasonable hypothesis of innocence.” Id. at 352. Rather, it is sufficient
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“if an inference may reasonably be drawn from [the evidence] to support the
verdict.” Id.
[18] In order to convict Golliday of a Level 2 felony for attempted robbery resulting
in serious bodily injury to Pilcher, the State was required to prove that Golliday
“engage[d] in conduct that constitute[d] a substantial step toward” knowingly
or intentionally taking property from Pilcher by using or threatening the use of
force or putting him in fear, which resulted in serious bodily injury to Pilcher.
I.C. §§ 35-41-5-1, -42-5-1. With respect to Golliday’s conviction for Level 3
felony attempted armed robbery of Gallup, the State was obligated to prove that
Golliday, while armed with a deadly weapon, “engage[d] in conduct that
constitute[d] a substantial step toward” knowingly or intentionally taking
property from Gallup by using or threatening the use of force or putting him in
fear. I.C. §§ 35-41-5-1, -42-5-1. On appeal, Golliday contends only that the
evidence fails to establish that it was he (along with Walker and Words) who
attempted to commit the robberies.
[19] In particular, Golliday contends that none of the victims or witnesses identified
him as being involved in the robberies. Furthermore, Golliday points out that
Walker, Norman, and Words testified during the trial that Golliday never
possessed a gun, and Norman and Words added that Golliday was opposed to
committing a robbery when it was suggested by Walker. Thus, Golliday asserts
that “[i]f this [c]ourt sifts and probes the evidence, it will find that the only
reasonable inference that one can draw from the evidence is that [Rhodes] was
the third participant.” (Appellant’s Br. p. 12). He surmises that “[t]he jury’s
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determination that . . . Golliday participated in these crimes, despite the
evidence to the contrary, was nothing more than speculation and conjecture
and most likely the product of juror bias created by the improper admission of
irrelevant, but highly prejudicial photographs taken from . . . Golliday’s cell
phone.” 2
[20] A review of the evidence establishes that Pilcher, Gallup, Taliercio, and
Conway all testified that they were approached by three young black males.
Pilcher, Gallup, and Conway were positive that all three men were armed and
that it appeared to be “rehearsed” when all three brandished their firearms in
unison. (Tr. Vol. III, p. 162). Norman, Walker, and Words all testified that
they had attended a party with Golliday prior to the attempted robbery at 602
North. In their depositions, Walker and Words testified that Golliday
participated in the robbery and was armed with either “a little black gun” or a
silver semiautomatic gun similar to Walker’s. (Tr. Vol. III, p. 52). According
to Walker, when they were talking to the college students in an effort to gain
entry into 602 North, Golliday “said like, bro, stop playing with them or
something”—after which they all withdrew their weapons. (Tr. Vol., III, p. 57).
Walker also stated under oath that Golliday had said “let’s poke them”—i.e.,
“[r]ob them.” (Tr. Vol. III, p. 58). When deposed, Words described that
immediately after the failed robbery attempt, he, Norman, and Golliday
rendezvoused, at which time Golliday exclaimed that “we just got to shooting.”
2
We address the propriety of the admission of these photographs in the next section of this decision.
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(Tr. Vol. IV, p. 129). See Kilgore v. State, 391 N.E.2d 820, 821 (Ind. 1979)
(stating that a co-defendant’s testimony implicating the defendant as an
accomplice would, “[s]tanding alone[,] . . . withstand a challenge to the
sufficiency of the evidence,” while also noting that additional testimony would
certainly serve to bolster the co-defendant’s credibility). In addition to the
testimony of Golliday’s co-defendants, Rhodes testified that while he was
serving his sentence in a juvenile facility for unlawfully carrying a handgun, he
met Golliday at the facility. According to Rhodes, “[Golliday] asked me what I
did. I told him. And he said, ‘That was us.’ He said, ‘You shouldn’t have got
involved.’” (Tr. Vol. III, p. 114).
[21] We acknowledge that the record does suggest involvement by Rhodes. Both
Pilcher and Gallup initially believed that Rhodes was a perpetrator. Pilcher
explained that Rhodes and two other friends had been at 602 North several
hours before the attempted robbery, so he thought “it was probably them.” (Tr.
Vol. III, p. 138). In addition, Pilcher originally thought that one of the suspects
had addressed him by his nickname when they first approached. As for Gallup,
he testified that he identified Rhodes (and Adrian) as the suspects to police
based on the fact that they were two unknown black males standing in his yard
immediately after the incident. Because there had been three individuals
involved in the attempted robbery and one was lying on the ground
unconscious, Gallup, who had been “out of sight for at least a couple minutes
while calling 911 and running away,” “assumed” that Rhodes and Adrian were
the other two suspects. (Tr. Vol. III, p. 33). However, by the time of trial,
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Gallup no longer believed that Rhodes had been one of the perpetrators, and
Pilcher was unsure who was there at that night.
[22] Also, during the trial, Words minimized his own involvement in the crime by
testifying that after leaving the first party, they met up with “a dude named
[Rhodes]” from the neighborhood before arriving at 602 North. (Tr. Vol. IV, p.
13). Based on Words’ version of events, Rhodes participated in the attempted
robbery while Words watched from “behind the fence.” (Tr. Vol. IV, p. 15).
Even if Words’ testimony had any credibility, it still supports a finding that
Golliday was the third perpetrator. Regardless, the jury also heard Words
testify that four days after the robbery, he was shown a picture of Rhodes and
could not identify him, and Walker testified that he did not know Rhodes.
Additionally, Rhodes testified regarding his limited involvement in taking the
firearm away upon Walker’s request, and Adrian’s testimony corroborated the
fact that Rhodes had been at home prior to the attempted robbery at 602 North.
[23] We find that Golliday’s argument wholly amounts to a request to reweigh
evidence, which our court will not do. The jury heard both the evidence
implicating Rhodes and the evidence discrediting such a theory, and it is clear
that the jury believed the evidence establishing that Golliday committed the
charged offenses. We therefore find that there is sufficient evidence to support
the jury’s determination that Golliday participated with Walker and Words in
the attempted robbery resulting in serious bodily injury to Pilcher and the
attempted armed robbery of Gallup.
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II. Admission of Evidence
[24] Gallup claims that the trial court abused its discretion by admitting certain
photographic evidence. Decisions regarding the admission or exclusion of
evidence rest within the sound discretion of the trial court, “and the decision
whether to admit evidence will not be reversed absent a showing of manifest
abuse of discretion by the trial court resulting in the denial of a fair trial.”
Johnson v. State, 831 N.E.2d 163, 168-69 (Ind. Ct. App. 2005), trans. denied. A
trial court’s decision is considered an abuse of discretion “if it is clearly against
the logic and effect of the facts and circumstances before the court.” Id. at 169.
On review, “we consider the evidence in favor of the trial court’s ruling and any
unrefuted evidence in the defendant’s favor.” Id.
[25] Over Golliday’s objection, the trial court admitted the State’s Exhibits 29 and
30. As Golliday describes,
State’s Exhibit 29 is a picture of a black person’s hand clenching
a pistol and was taken on September 7, 2014, over one month
prior to the attempted robbery. State’s Exhibit 30 is a picture of .
. . Golliday with a shadow cast over his face, holding up a gun
while grimacing and ejecting the ammunition clip from the gun.
State’s Exhibit 30 was taken on August 9, 2014, over two months
prior to the date of the alleged crime.
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(Appellant’s Br. p. 13). On appeal, Golliday asserts that the photographs
should have been excluded because they “have zero probative value” pursuant
to Indiana Evidence Rule 401. (Appellant’s Br. p. 15). 3
[26] Evidence Rule 401 provides that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.”
Whereas irrelevant evidence is never admissible, relevant evidence is generally
admissible unless a constitution, statute, or rule provides otherwise. Ind.
Evidence Rule 402. Relevant evidence may nonetheless be excluded if “its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Evid. R. 403.
[27] Here, the State asserts that the two challenged photographs “showing Golliday
posing with the gun were relevant and admissible.” (State’s Br. p. 14).
According to the State, contrary to the testimony of Golliday’s co-defendants
that Golliday was not armed on the night of the robbery, the photographs show
that he “had access to a handgun leading up to the crime and supported the
identification of Golliday as one of the three would-be robbers.” (State’s Br. p.
3
At trial, Golliday objected to the admission of the photographs under Indiana Evidence Rules 401, 403,
and 404. On appeal, he argues that because the photographs at issue “have zero probative value [under
Evidence Rule 401], this [c]ourt need not also consider whether the admission of the photographs was
erroneous under [R]ules 403 [(excluding relevant evidence for prejudice, confusion, or other reasons)] or
404(b) [(prohibiting evidence of a crime, wrong, or other act to show a propensity)].” (Appellant’s Br. p. 15).
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15). On the other hand, Golliday relies on Wilson v. State, 770 N.E.2d 799, 801
(Ind. 2002), in which the trial court admitted a photograph into evidence
“depicting [the defendant] and several other males brandishing various firearms
and flashing what appear to be gang signs.” Our supreme court found that the
trial court erred in admitting the photograph into evidence because it had no
“relevance whatsoever.” Id. at 802. The Wilson court elaborated:
First, because no weapon was introduced at trial, there was no
comparison between the shell casings found at the scene and the
weapon depicted in the photograph. Second, the record shows
[the defendant] possessed the weapon in the photograph two
months before [the victim] was murdered. There is no link
between the shell casings recovered at the crime scene and the
photograph the State introduced at trial. In sum, the photograph
did not make more or less probable any issue before the jury.
Id.
[28] We agree with Golliday that the facts of this case are similar to Wilson. State’s
Exhibit 29 was taken more than one month prior to the attempted robbery, and
State’s Exhibit 30 was taken more than two months prior. The firearm
purportedly used by Golliday during the robbery was never recovered or
introduced at trial, and there is nothing in the record linking the firearm in the
pictures to the firearm utilized during the attempted robbery. Thus, because the
photographs do not serve to make any factual issue before the jury more or less
probable, they are not relevant and should have been excluded.
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[29] Nevertheless, “errors in the admission or exclusion of evidence are to be
disregarded as harmless unless the errors affect the substantial rights of the
party.” Id. In determining whether such an evidentiary error affected the
defendant’s substantial rights, we consider “the probable impact of that
evidence upon the jury.” Id. Here, we have already determined that there is
ample independent evidence of Golliday’s guilt beyond the photographs. Thus,
it is unlikely that the admission of State’s Exhibits 29 and 30 had any impact on
the jury, so the error in their admission was harmless.
CONCLUSION
[30] Based on the foregoing, we conclude that there is sufficient evidence to support
Golliday’s conviction for two Counts of attempted robbery, one as a Level 2
felony and the other as a Level 3 felony. We further conclude that the
admission of State’s Exhibits 29 and 30 amounted to harmless error.
[31] Affirmed.
[32] Najam, J. and Bradford, J. concur
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