Charles Gerron v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 13 2018, 10:13 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott King Curtis T. Hill, Jr. Russell W. Brown, Jr. Attorney General of Indiana King, Brown & Murdaugh, LLC Merrillville, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Charles Gerron, September 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-393 v. Appeal from the La Porte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause No. 46D01-1612-MR-8

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018 Page 1 of 9

Statement of the Case [1] Charles Gerron appeals his conviction for murder, a felony. Gerron raises four

issues for our review, which we restate as the following two issues:

1. Whether the trial court abused its discretion in the admission of certain evidence.

2. Whether the State presented sufficient evidence to support his conviction.

[2] We affirm.1

Facts and Procedural History [3] On July 24, 2011, three girls held a joint Sweet-16 birthday party at Krueger

Memorial Hall in Michigan City. About 125 people attended, including

numerous other teenagers. Gerron, a juvenile at the time, attended, as did

fellow juveniles Cameron Kent, Skyiesha Pender, Ne’Keisha Hodges, James

Sanders, Michael Cooper, and Jamiela Hodges. Prior to the party that day,

Kent had seen Gerron with a .38 caliber handgun. And, at the party, Pender

observed Gerron with a revolver. [4] Around 11:00 p.m., the party ended, and a large group of guests—about

twenty-five to thirty people, including Kent, N. Hodges, and Sanders—began

1 Gerron also argues on appeal that he should be released from incarceration “upon remand” under Indiana Criminal Rule 4(A). Appellant’s Br. at 19. However, as we affirm Gerron’s convictions and do not remand, we need not consider that argument.

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walking away from the building and downhill toward Springland Avenue.

Cooper also left the party and found Gerron near a moped. Gerron stated that

“[h]e needed the moped started just in[ ]case somethin[g] happened.” Tr. Vol.

III at 101. Cooper left Gerron and joined the crowd walking toward Springland

Avenue. [5] Gerron then shot his firearm into the crowd three times. Gerron struck and

killed N. Hodges. He struck and wounded Sanders. Both injuries

demonstrated a downward trajectory consistent with the shot having been fired

from a higher elevation. The wounds were inflicted with a .38-caliber bullet.

Immediately after firing the shots, Gerron ran past Cooper and said, “I just shot

that n****r,” referring to Sanders. Id. at 106. Cooper then saw Gerron run

toward his moped. J. Hodges also saw Gerron running after the shots and

heard him say, “Come on brah we just shot somebody.” Tr. Vol. IV at 250. [6] Cooper rode home with Gerron’s mother. Gerron’s cousin, Jerry Lemons, was

also in the vehicle. While in the car, Cooper told Lemons that Gerron had shot

N. Hodges and Sanders. The three then went to Lemons’ house, and Gerron

was there when they arrived. Lemons asked Gerron if Gerron had shot N.

Hodges and Sanders, and Gerron said, “yeah, I shot three times.” Tr. Vol. III

at 116. When Lemons told Gerron that Gerron had killed N. Hodges, Gerron

“asked for some bleach” to “wash his hands.” Id. [7] On December 20, 2016, the State charged Gerron with murder, a felony.

During Gerron’s ensuing jury trial, the State moved to admit a video-recorded

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interview police had conducted with Gerron and Gerron’s mother. Gerron

objected to the interview on the basis that the statements of Gerron’s mother

during that interview were inadmissible hearsay. The trial court overruled

Gerron’s objection, but the court instructed the jury that the statements of

Gerron’s mother in that exhibit “are not testimony or evidence” and

may only be considered for the purpose of showing . . . the context of the defendant’s comments to the extent that he responded . . . . You may consider only the statements of the defendant as evidence . . . and cannot consider the statements of the defendant’s mother . . . as evidence.

Tr. Vol. VI at 73-74. The court repeated its instruction during its final

instructions to the jury. [8] Also during Gerron’s trial, the State moved to admit evidence of prior bad acts

under Indiana Evidence Rule 404(b). Specifically, the State sought to admit

evidence to show that, thirty-four days prior to the shooting, Gerron had been

admitted to a local hospital’s emergency room after a firearm he had been

carrying in his pants discharged and wounded him. The State’s evidence also

showed that, in the course of a police investigation into that incident, Gerron

had lied to an investigating officer by stating that he had been shot by a third

party. The trial court admitted the State’s 404(b) evidence over Gerron’s

objection.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018 Page 4 of 9 [9] Following the trial, the jury found Gerron guilty of murder, a felony. The trial

court entered its judgment of conviction and sentenced Gerron accordingly.

This appeal ensued.

Discussion and Decision Issue One: Admission of Evidence

[10] On appeal, Gerron first asserts that the trial court abused its discretion in the

admission of evidence. We review a trial court’s evidentiary rulings “for an

abuse of discretion.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). “An abuse

of discretion occurs when the ruling is clearly against the logic and effect of the

facts and circumstances.” Id. Here, Gerron asserts that the trial court abused

its discretion when it admitted the unredacted, video-recorded interview, which,

Gerron argues, contained inadmissible hearsay from Gerron’s mother. Gerron

also contends that the trial court abused its discretion when it admitted

evidence of Gerron’s gunshot incident from thirty-four days prior to the

shooting that resulted in the death of N. Hodges. We address each argument in

turn.

Hearsay [11] Gerron first asserts that his mother’s statements in the video-recorded interview

were inadmissible hearsay. Hearsay is a statement “not made by the declarant

while testifying at the trial or hearing” that is “offered in evidence to prove the

truth of the matter asserted.” Ind. Evidence Rule 801(c). Out-of-court

statements offered for a reason other than to prove the truth of the matter

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asserted are not hearsay. See id.; Williams v. State, 930 N.E.2d 602, 608 n.3 (Ind.

Ct. App. 2010), trans. denied. For example, we have recognized that an out-of-

court statement is “nonhearsay” when it “merely provided context for [the

defendant’s] own recorded statements.” Williams, 930 N.E.2d at 609. [12] Here, the trial court declined to order the State to redact Gerron’s mother’s

statements from the interview because the court concluded that her statements

were not being offered for their truth but, rather, for context to Gerron’s own

recorded statements. Indeed, while on appeal Gerron isolates a handful of

sentences from the lengthy interview, he ignores the interplay between him, his

mother, and the investigating officers during the interview. As the State

summarized to the trial court:

there are all kinds of statements made during this interview, but all of them are necessary for the context of the interview. His mother responds to a question, [Gerron] responds to a question[, o]ften times elaborating upon or discussing what his mother has said. But it’s not offered for the truth of the matter asserted[. I]t’s offered for the context of the conversation generally.

Tr. Vol. V at 197-98. We agree. As Gerron’s mother’s statements were not

offered for the truth of the matters asserted, they were not hearsay. [13] Moreover, Gerron’s argument on appeal disregards the trial court’s limiting

instruction, in which the court expressly instructed the jury that Gerron’s

mother’s statements were not evidence, could not be considered as evidence,

and were being admitted only to provide context to Gerron’s own statements.

We presume the jury follows the trial court’s instructions. E.g., Harris v. State, Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018 Page 6 of 9

824 N.E.2d 432, 440 (Ind. Ct. App. 2005). We cannot say that the trial court

abused its discretion when it admitted Gerron’s mother’s statements for

context, which admission the court coupled with a clear limiting instruction.

We affirm the court’s admission of this evidence.

Prior Bad Acts [14] Gerron also contends that the trial court abused its discretion when it admitted

evidence of the gunshot incident that occurred thirty-four days before N.

Hodges’ death. Gerron’s specific argument on this issue is unclear, but it

appears to be that the trial court abused its discretion under Indiana Evidence

Rule 403. Under that Rule, a court “may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair

prejudice . . . .” Evid. R. 403. “[T]his balancing is committed to the trial

court’s discretion,” and, where the unfair prejudice is “not so high that it

overrode the trial court’s wide discretion,” we will not reverse. Snow, 77

N.E.3d at 179. In other words, we will not “second-guess the trial court’s

determination” under Rule 403 where the court “could have admitted or

excluded” the evidence.” Id. [15] We cannot say that the danger of unfair prejudice here was so high that it

overrode the trial court’s wide discretion under Rule 403. The evidence of the

gunshot incident demonstrated that Gerron had access to a firearm and, thus,

the opportunity to commit the crime alleged. See Evid. R. 404(b)(2). The trial

court did not abuse its discretion when it admitted the evidence.

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Issue Two: Sufficiency of the Evidence [16] Finally, Gerron argues that the State failed to present sufficient evidence to

show that he committed murder, a felony. When reviewing a claim of

sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010).

We look only to the probative evidence supporting the judgment and the

reasonable inferences that may be drawn from that evidence to determine

whether a reasonable trier of fact could conclude the defendant was guilty

beyond a reasonable doubt. Id. If there is substantial evidence of probative

value to support the conviction, it will not be set aside. Id. [17] To prove that Gerron committed murder, the State was required to show that

Gerron knowingly or intentionally killed another human being. Ind. Code § 35-

42-1-1(1) (2011). “A person engages in conduct ‘knowingly’ if, when he

engages in the conduct, he is aware of a high probability that he is doing so.”

I.C. § 35-41-2-2(b). “A knowing killing may be inferred from the use of a

deadly weapon in a way likely to cause death.” Young v. State, 761 N.E.2d 387,

389 (Ind. 2002). [18] According to Gerron, “[t]he State failed to present any evidence that Gerron

knew . . . that when he fired three shots blindly down a hill into a

crowd . . . that there was a high probability [N. Hodges] would die.”

Appellant’s Br. at 20. We cannot agree. A reasonable trier of fact could readily

conclude that Gerron knowingly killed N. Hodges when he fired a deadly

weapon into a crowd. See Young, 761 N.E.2d at 389. Moreover, the State’s Court of Appeals of Indiana | Memorandum Decision 18A-CR-393 | September 13, 2018 Page 8 of 9

evidence demonstrated that Gerron had a .38 caliber firearm on his person at

the party. The State’s evidence further demonstrated that, immediately before

the shooting, Gerron had started his moped “in[ ]case somethin[g] happened,”

Tr. Vol. III at 101, and that, immediately after the shooting, several witnesses

observed him fleeing the scene while saying he had fired his gun into the crowd.

And, later that night, when he learned of N. Hodges’ death, Gerron asked for

bleach to wash his hands. [19] The State presented sufficient evidence to show that Gerron knowingly killed

N. Hodges. We affirm his conviction for murder, a felony.

[20] Affirmed.

Crone, J., and Pyle, J., concur.

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