Calvin Dshan Baxter v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 04 2019, 7:17 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
Deborah Markisohn Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin Dshan Baxter, September 4, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2879
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Kurt Eisgruber, Judge
Trial Court Cause No.
49G01-1612-MR-46259
Altice, Judge.
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Case Summary
[1] Following a jury trial, Calvin Baxter was convicted of murder and Level 4
felony possession of a firearm by a serious violent felon. Baxter appeals his
conviction and sentence for murder, raising the following two restated issues:
I. Did the State present sufficient evidence to convict Baxter of
murder?
II. Is his sentence inappropriate in light of the offense and the
character of the offender?
[2] We affirm.
Facts & Procedural History
[3] On September 7, 2016, Malcolm McDaniel and his friend Kasie Kemper went
to Emerson Knoll Apartments, where McDaniel intended to sell drugs to
someone who went by the name “40.” 1 Transcript Vol. II at 43-44, 62.
McDaniel was driving a red Ford Escape SUV that belonged to his fiancée,
Jazmine Acquaye.
[4] After they parked, a male got in the back seat of the Ford Escape and sat behind
McDaniel. Kemper was in the front passenger seat. McDaniel, without
turning around, handed a bag of drugs to the man, and the two exchanged
words, with the man complaining that McDaniel gave him “ice,” meaning
1
In some places in the record, the name appears as “Forty.” See Appellant’s Appendix Vol. II at 20.
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methamphetamine, when he wanted “hardware,” meaning cocaine. Id. at 46.
McDaniel responded, “No, that’s not what you said last night,” to which the
man replied, “You’re going to have to come off this, bro” and then, according
to Kemper, the man “leaned back and started shooting.” Id. McDaniel
grabbed a gun from under his seat and began shooting back. Kemper was
“sitting sideways … facing [McDaniel]” and, when the shooting started, she
leaned forward into the dash. Id. at 48. Kemper heard “a lot” of shots and
recalled that “the guy in the back seat was just like shooting wild.” Id. The
man got out of the Escape and ran but Kemper could not see where he went
because they were parked next to a large SUV. Kemper tried to call 911 but
was disconnected, so she yelled “Call 911” to a man who had come out of his
apartment, and he said he had already done so. Id. at 49.
[5] The 911 call was received at 7:36 p.m. and officers arrived on the scene at 7:41
p.m., immediately securing the area and calling for an ambulance. Indianapolis
Metropolitan Police Department (IMPD) Officer Richard Lavish saw a shoe in
the parking lot in proximity to the scene. Another officer stood by the shoe,
which was a red Converse tennis shoe, until it was collected as evidence.
IMPD Detective Harry Dunn arrived at the scene at 7:59 p.m., was advised by
officers about the red shoe, and spoke to Kemper. An ambulance took
McDaniel to a hospital, where he later died. Forensic testing revealed that he
received seven gunshot wounds to his neck, chest, upper chest, and back.
[6] Meanwhile, at 7:43 p.m., police were dispatched to the 3000 block of N.
Colorado Avenue, which is located less than a mile away from the Emerson
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Knoll location, on a report of “a person shot.” Id. at 66. IMPD Officer
Timothy Elliott was the first to respond to the Colorado Avenue location,
arriving at 7:45 p.m. Officer Elliott encountered a man who had been shot in
the leg. He was wearing blood-soaked pants and a red “Chuck Taylor style”
tennis shoe on his left foot, but his right shoe was missing. Id. at 70. The man
identified himself as Baxter and told officers that he was walking down the
street and was randomly shot at an unknown location, which Officer Elliott felt
“didn’t quite make a lot of sense.” Id. at 72. Officer Elliott was aware that a
shooting had just occurred at Emerson Knoll Apartments and the suspect may
have left in a purple or dark blue four-door vehicle. After receiving reports at
the Colorado Avenue scene that Baxter was dropped off in a four-door car,
Officer Elliott contacted officers at the Emerson Knoll scene. Upon doing so,
he learned that one red tennis style shoe, for the right foot, was found and
possibly had been left behind by the suspect. Because Baxter was wearing one
red Chuck Taylor style tennis shoe on his left foot, officers suspected the
Colorado Avenue and Emerson Knoll crime scenes may have been connected.
Officer Elliott thereafter secured Baxter in handcuffs in the ambulance.
[7] Detective Dunn left the Emerson Knoll scene and arrived at the Colorado
Avenue scene at about 8:45 p.m. At that point, Baxter had been transported by
ambulance, but the shoe and pants that Baxter had been wearing were left
behind by medics. Detective Dunn saw the red tennis shoe and believed it
matched the one found at the Emerson Knoll scene.
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[8] Detective Dunn spoke again with Kemper later that evening at IMPD’s
homicide office, where he showed her a photo array of six possible suspects.
Person No. 4 in the array, who was Baxter, had a tattoo on the left side of his
face above his eyebrow and he had a small tattoo on the right side of his face.
Kemper believed that No. 4 looked “familiar” but she was not “sure” that he
was the man in the back seat who shot McDaniel because she did not
remember seeing a tattoo. Id. at 51.
[9] A crime technician was sent to the Emerson Knoll location around 8:30 p.m. to
process the crime scene. Among other things, a red, size 9, Converse brand
low-top right shoe was collected from the parking lot. The technician then went
to the Colorado Avenue scene and, while there, collected a red, size 9,
Converse brand low-top style left shoe.
[10] Later that night, around midnight, Kemper went to Acquaye’s apartment and
the two of them discussed “[t]he whole situation and who did it.” Id. at 52.
Kemper told Acquaye that she believed that the person who shot McDaniel
went by the nickname “40” because McDaniel had talked to Kemper earlier in
the day about meeting and selling drugs to “40.” Id. at 52-53. Acquaye knew
“40” or “40-Cal” as the brother of one of her friends, and they looked up that
person on Facebook and viewed pictures of him. Id. at 52-53, 62, 179.
Believing that she recognized the person, Kemper called Detective Dunn, and
they met days later at which time she showed him the Facebook pictures.
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[11] On November 16, 2016, Detective Dunn met with Baxter, who after waiving
his Miranda rights, agreed to a video-recorded interview, which was admitted
into evidence at trial. 2 Baxter denied having been at the Emerson Knoll
apartment complex on the night of September 7, 2016, and denied knowing
McDaniel. Detective Dunn questioned Baxter about who shot him in the leg
that night and Baxter said that someone robbed and shot him and that, after he
was shot, a man gave him a ride to the Colorado Avenue location, where his
family called for an ambulance. Baxter acknowledged that he owned a pair of
red Chuck Taylor Converse tennis shoes but said that, on the night in question,
he was wearing Jordans No. 5. Later in the interview, Baxter admitted that it
was possible or probable he had been wearing red Chuck Taylors that night.
When asked if his shoe had come off when he was shot in the leg, Baxter
replied that he did not remember.
[12] On December 2, 2016, the State charged Defendant with Count I, murder, a
felony, Count II, felony murder, Count III, Level 3 felony attempted armed
robbery, and Count IV, Level 4 felony unlawful possession of a firearm by a
serious violent felon. At the October 2018 jury trial, Kemper testified that, at
the time that the photo array was shown to her, she was not certain of her
identification of No. 4 (Baxter) because “the tattoo threw [her] off” as she
“didn’t remember seeing it.” Id. at 51, 60. She further testified that, after she
and Acquaye looked up “40” on Facebook later that night, she contacted
2
Due to technical difficulties at trial, only the audio portion was played for the jury.
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Detective Dunn to tell him she had additional information about the shooting.
Acquaye identified Baxter in court as the person she saw on Facebook, and
confirmed that the Facebook page she viewed was titled “SuddenDeath
RaisedMe Baxter.” Id. at 182; State’s Exhibit 5. Evidence was presented that
Baxter lived in an apartment complex that was commonly known by the street
nickname of “Sudden Death.” Transcript Vol. III at 7.
[13] Detective Dunn testified that, although Kemper did not make what he
considered to be a “positive identification” from the photo array, because she
was “not for sure based on tattoos,” he testified that Kemper “believed person
No. 4 looked like the person that was responsible for shooting Malcolm
McDaniel, and she made that known to me at that time[.]” Id. at 225-26.
Detective Dunn testified that, subsequent to their first interview, Kemper
contacted him and that he met with her on September 9, when she showed him
the Facebook pictures of Baxter.
[14] Detective Dunn also testified that the shoe found at the Colorado Avenue scene
was “the opposite shoe to the one that was found on the scene [at Emerson
Knoll]. It matched the exact same color, same shoe size. It was the other
shoe.” Id. at 231. A crime scene specialist for the Marion County Crime Lab
confirmed that the shoes collected from both crime scenes were the “[s]ame
brand, same style, same color and same shoe size.” Id. at 99. A resident of the
Emerson Knoll Apartments testified, under subpoena, that on the night in
question he was in his apartment, heard gunshots, and looked out his window.
He saw a “red car” in front of his apartment and, a couple of parking spots
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down, he saw a purple PT Cruiser that soon drove away. Transcript Vol. II at
208-09. He also saw a red shoe near the passenger side door of the PT Cruiser.
Baxter did not testify at trial, but his audio recorded statement with Detective
Dunn was played for the jury.
[15] The jury found Baxter guilty on Count I, murder, and Count IV, possession of a
handgun without a license, 3 and not guilty on Counts II and III. Baxter then
admitted to being a serious violent felon following an agreement with the State
that Count IV would run concurrently to Count I. After receiving evidence and
argument at the November 2018 sentencing hearing, the trial court sentenced
Baxter to sixty years on Count I and ten years on Count IV, to be served
concurrently. Baxter now appeals.
Discussion & Decision
I. Sufficiency of the Evidence
[16] Baxter claims that the evidence was insufficient to support his conviction for
murder. When reviewing the sufficiency of the evidence supporting a
conviction, we must affirm if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to find
the defendant guilty beyond a reasonable doubt. Abd v. State, 121 N.E.3d 624,
629 (Ind. Ct. App. 2019), trans. denied. “It is not our job to reweigh the
3
The trial was bifurcated for the purposes of Count IV, unlawful possession of a firearm by a serious violent
felon. In the first stage of trial the jury was asked only to decide if Baxter possessed a handgun.
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evidence or to judge the credibility of the witnesses, and we consider any
conflicting evidence most favorably to the trial court’s ruling.” Id. We will
affirm the convictions if there is sufficient probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Dickenson v. State, 835 N.E.2d 542, 552 (Ind. Ct. App. 2005), trans.
denied.
[17] To convict Baxter of murder as charged, the State was required to prove that he
knowingly or intentionally killed McDaniel. See Ind. Code 35-41-1-1(1).
Baxter contends on appeal that the evidence was insufficient to prove that he
was the person who murdered McDaniel. Specifically, he argues that Kemper
was the sole eyewitness and that she was not able to positively identify Baxter
in the photo array, telling police that she did not recall seeing a facial tattoo.
He further notes that Kemper told police that she recalled the shooter was
wearing shorts, when he was wearing dark jeans that night. Baxter also
highlights that no physical evidence recovered from the Emerson Knoll scene
tied Baxter to that location. He maintains that, on the record presented, “a
reasonable jury could not have found that . . . Baxter was the person who shot
and killed McDaniel.” Appellant’s Brief at 19. We disagree.
[18] It is well-settled that “[a] judgment may be sustained based on circumstantial
evidence alone if that circumstantial evidence supports a reasonable inference of
guilt.” Davis v. State, 791 N.E.2d 266, 270 (Ind. Ct. App. 2003) (citing Maul v.
State, 731 N.E.2d 438, 439 (Ind. 2000)), trans. denied. Here, there was ample
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circumstantial evidence presented from which the jury could have inferred that
Baxter was the person who shot and killed McDaniel.
[19] When Kemper told Acquaye that she believed the man who shot McDaniel
went by the name “40,” Acquaye showed Kemper the Facebook page for “40-
Cal,” and Kemper recognized him and contacted Detective Dunn. The
Facebook page was titled “SuddenDeath RaisedMe Baxter” and thus connected
the name “40” to Baxter, who lived in an apartment complex known by the
street nickname of “Sudden Death.” Transcript Vol. II at 182. As for Kemper
not recalling facial tattoos on the shooter, she was in the front seat and facing
McDaniel, not looking at the shooter in the back seat. Additionally, Baxter was
seated behind McDaniel and, to the extent that Kemper turned toward the back
seat or saw Baxter, she may only have seen the right side of Baxter’s face which
had only a small tattoo, with the larger one above his left eyebrow.
[20] Kemper testified that, after the backseat passenger shot at McDaniel, McDaniel
returned fire, at which time the shooter exited the vehicle and ran. Minutes
after McDaniel was shot, Baxter was found approximately a mile away on
Colorado Avenue, having been shot in the leg. Baxter was wearing one red
Chuck Taylor Converse low-top tennis shoe on his left foot, and no shoe on his
right foot. A red Chuck Taylor Converse low-top shoe, for a right foot, was
found at the Emerson Knoll scene. Baxter could not explain to police who shot
him or where it happened. When interviewed at a later time, Baxter said that
he was robbed and shot by an unknown person while riding in a car. He
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admitted to Detective Dunn that he owned red Chuck Taylor shoes and that he
might have been wearing them that night.
[21] Baxter’s claim that the State presented insufficient evidence is merely a request
to reweigh the evidence, which we cannot do. See Abd, 121 N.E.3d at 629. The
State presented sufficient evidence from which the jury could have reasonably
inferred that Baxter was the person who shot and killed McDaniel.
II. Sentencing
[22] Baxter contends that his sixty-year murder sentence is inappropriate. We may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, we find the sentence inappropriate in light of the nature of the
offense and the character of the offender. Ind. Appellate Rule 7(B). Indiana’s
flexible sentencing scheme allows trial courts to tailor an appropriate sentence
to the circumstances presented and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Id. at 1224. Deference to the trial court “prevail[s] unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
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character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The burden is
on the defendant to persuade us his sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[23] When determining whether a sentence is inappropriate as to the nature of the
offense, the advisory sentence is the starting point the Legislature has selected
as an appropriate sentence for the crime committed. Id. at 1081. For his
murder conviction, Baxter faced a sentencing range from forty-five to six-five
years, with the advisory being fifty-five years. See Ind. Code § 35-50-2-3. At the
sentencing hearing, the trial court found that “the criminal history is an
aggravator” and ordered sixty years on the murder conviction, to be served
concurrently to ten years on Count IV. Transcript Vol. III at 71. Baxter urges
that his sentence is “inappropriately harsh” and requests that we reduce it to the
advisory sentence of fifty-five years. Appellant’s Brief at 20.
[24] As this court has recognized, “[t]he nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Here,
Baxter, unhappy with the drugs that he received from McDaniel, began
“shooting wild” in the vehicle, striking McDaniel seven times before fleeing the
scene. Transcript Vol. II at 48. His conduct put not only McDaniel’s life in
danger, but also Kemper’s and that of residents of the apartment complex, with
at least one bullet lodging in an apartment wall. Baxter has not persuaded us
that the nature of the offense warrants revision of his sentence.
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[25] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. When considering the character of the
offender, “‘one relevant fact is the defendant’s criminal history,’ and ‘[t]he
significance of criminal history varies based on the gravity, nature, and number
of prior offenses in relation to the current offense.’” Sanders v. State, 71 N.E.3d
839, 844 (Ind. Ct. App. 2017) (quoting Garcia v. State, 47 N.E.3d 1249, 1251
(Ind. Ct. App. 2015), trans. denied), trans. denied. The trial court may consider
not only the defendant’s adult criminal history but also his juvenile delinquency
record in determining whether his criminal history is significant. Id.[26] Baxter, who was twenty-six at the time of sentencing, admits that he has a
“substantial” criminal history. Appellant’s Brief at 24. As a juvenile, he was
arrested ten times with four true findings for misdemeanors and one true
finding for a status offense, and he had violations of monitoring and probation.
As an adult, he was arrested ten times, accumulating one felony conviction and
three misdemeanor convictions. Baxter has had his probation revoked and he
received numerous conduct violations while incarcerated in the Indiana
Department of Correction (DOC). He was released from the DOC in February
2015, and in September 2016, he murdered McDaniel while purchasing illegal
drugs. We do not find anything about Baxter’s character that makes his
sentence inappropriate.
[27] We reiterate that our task on appeal is not to determine whether another
sentence might be more appropriate; rather, the inquiry is whether the imposed
sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.
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2013), trans. denied. Baxter has failed to carry his burden of establishing that his
sentence is inappropriate in light of the nature of the offense and his character.
[28] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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