# Bryant Dowdy v. State of Indiana (mem. dec.)

> Indiana Court of Appeals · August 11, 2016

URL: https://www.frixlaw.com/law-library/cases/4023518

## Case

- **Court:** Indiana Court of Appeals
- **Decided:** August 11, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4023518

## How later opinions describe it (automated extraction)

- holding that, at the time an accomplice to a robbery gave a statement to police implicating the defendant in the murder of a robbery victim, the accomplice did not have a motive to fabricate and that the statement was admissible under Ind. Evidence Rule 801(d)(1)(B
- stating “a single aggravating circumstance may justify the imposition of consecutive sentences” and “[t]he presence of multiple victims is one such aggravating circumstance”
- holding that the State offered the evidence of a scheme to steal a television involving the defendant and one of the victims to show the defendant’s motive for killing the victims and that the admission of the evidence did not violate Ind. Evidence Rules 404(b) or 403
- holding the trial court did not abuse its discretion in ordering consecutive sentences and noting the court’s support for its decision to impose consecutive sentences included that there had been two murder victims
- noting that “[i]njury to multiple victims has been cited several times by this Court as supporting enhanced and consecutive sentences”

## Opinion text

MEMORANDUM DECISION FILED
Aug 11 2016, 6:26 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana

Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Bryant Dowdy, August 11, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-CR-551
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M.
Appellee-Plaintiff. Eisgruber, Judge
Trial Court Cause No.
49G01-1302-MR-13442

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016 Page 1 of 21
[1] Bryant Dowdy appeals his convictions and sentence for murder and attempted

murder. Dowdy raises three issues which we consolidate and restate as:

I. Whether the trial court abused its discretion in admitting
certain evidence; and

II. Whether the court abused its discretion in sentencing him.

We affirm.

Facts and Procedural History

[2] On December 17, 2012, Dowdy, Eric Clanton, and Dominique Clanton

planned to rob Nishant Patel, who had advertised an iPhone for sale on

Craigslist. Dowdy contacted Patel and sent him a text message with a street

address of an apartment in Indianapolis as a location to meet. Eric and

Dominique arrived at the location in Eric’s Camaro, and Eric stayed in the

vehicle while Dominque exited it. Dominique saw Dowdy and another man,

who Dominique believed was Dowdy’s cousin, and the three of them entered

the apartment building. Dowdy was wearing all black including a black hat and

carried a black shotgun, and neither Dominique nor the other man had a

weapon. The three men discussed their plan that Dominque and the other man

would stall Patel until Dowdy came out pointing the shotgun.

[3] Patel arrived and parked his vehicle in front of the apartment building. Patel

had with him the iPhone he planned to sell and his firearm, a Bersa Thunder

380 handgun. Dominique and the man he believed was Dowdy’s cousin

approached Patel’s vehicle and talked about the iPhone and the selling price,

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and Dominique saw the iPhone in a white box and a firearm on Patel’s lap.

The men pulled out their wallets to pretend they were gathering money. At that

point, Dowdy approached Patel’s vehicle pointing the shotgun, and Dominique

turned and walked away. Dominique heard “a boom” and then ran to Eric’s

Camaro. Transcript at 190. Dominque dropped several items including raffle

tickets from his wallet, attempted to pick them up but did not pick up

everything, entered Eric’s vehicle, and Eric drove to the house where Dowdy

was staying. At the house, Dominique soon noticed that Dowdy had the

iPhone and firearm that belonged to Patel in his hands. Dowdy told

Dominique that he had dropped his hat at the scene and needed to go back to

retrieve it, and he left the house. Eric and Dominique left to go the home of

Dominique’s mother. Patel died as a result of the robbery.

[4] On December 18, 2012, Dominique contacted Dowdy because he and Eric had

a buyer lined up for the iPhone, and Dominique and Eric planned to meet

Dowdy at a certain intersection in Indianapolis. Dominique drove to the

location in Eric’s Camaro, and Eric rode in the front passenger seat. After

waiting at the location for about thirty minutes, Dominique and Eric saw

Dowdy walking up the street again in all black with a black hat. Eric opened

his door and lifted his seat up so Dowdy could climb in, and Dowdy entered

the back of the Camaro and sat directly behind Eric. Dowdy handed Eric the

iPhone still in the box and Dominique started the Camaro. As Dominique

began to drive, his vision went black and he could not hear anything except a

loud ringing in his ear, and he felt the door open and himself hit the pavement.

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[5] A driver of another vehicle heard gunshots and then observed a car come to a

stop in front of her. The driver observed a black male exit the driver’s side door

and begin to run northbound, saw Dominique fall out of the car and heard him

yell for help and collapse, and observed the male that had initially run

northbound come back, retrieve something from the car, and then run

northbound again. The driver observed that the male who ran away wore a

black hooded jacket and a black skull cap. The driver called 911.

[6] Indianapolis Metropolitan Police officers arrived at the scene and discovered

Dominique on the road and Eric slumped over in the front passenger seat of the

vehicle. Dominque made sounds loud enough to attract the attention of one of

the officers. Eric was unresponsive, and officers discovered the iPhone in its

box on the floorboard in front of Eric’s body. Dominique had been shot in the

back of the head, was transported by ambulance to the hospital, and survived.

Eric suffered three gunshot wounds to his head and died as a result. The

stippling on Eric indicated the shot was fired from within three feet. Cartridge

cases recovered from the Camaro revealed that they were fired from the same

firearm as the test cartridge located in Patel’s Bersa Thunder 380 firearm case.1

[7] On February 26, 2013, the State charged Dowdy with the murder of Eric and

the attempted murder of Dominique. On May 27, 2014, the State filed a notice

1
Patel’s brother gave law enforcement the test cartridge. The State presented testimony that a test fired
cartridge is a cartridge case that a manufacturer includes with a particular firearm and that a comparison of
spent cartridges found in the rear area of the Camaro and under one of the seats to the test case showed that
all of the cartridges were fired from the same gun.

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of intent to offer evidence under Ind. Evidence Rule 404(b) of other crimes to

show motive, intent, preparation, knowledge, absence of mistake and/or

identity, namely that Dowdy was charged with murder in another cause, that

Dominique was his co-defendant in that case, and that Eric was present during

the events leading up to and after the murder. At a hearing in November 2014,

the State argued that Dominique was part of the robbery in the first murder,

and the court stated “I think we’d lay it out as 404B but I guess I’ve always

viewed these – well, the second one especially, is – is so close in time and so

inextricably intertwined . . . .” Id. at 475. The court later stated “I think they

are so intertwined that I don’t even know if it’s 404B but if you do consider it

404B I think it is motive and identity and any number of reasons why it would

come in and then obviously your . . . plea agreement would come in too.” Id.

at 476.

[8] At a final pre-trial hearing on April 23, 2015, Dowdy argued that a threshold

requirement is to determine whether or not the evidence consisting of the prior

case is true, and that at the least the court needed to ascertain the likelihood of

the truthfulness of the information in the other case. The State argued that it

would “not mention the term ‘murder’ in its case-in-chief,” that the evidence of

the December 17, 2012 events related to Dowdy’s motive to shoot Dominique

and kill Eric, that it would introduce evidence that the casings found at the

scene showed the shots were fired from the gun of the victim of the robbery,

that Dominique saw the firearm and iPhone in Patel’s vehicle and in Dowdy’s

possession the night of the robbery, and that Dowdy gave the iPhone to Eric on

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the night Eric was shot. Supplemental Transcript at 5. The court stated “I do

see where your motive and your identity, clearly you need that evidence from

the first, so and that does put it within 404(b)” and “I do see it that way, . . . I

see it through the State’s eyes as far as they’re wanting that evidence for motive

purposes, identity, and it does corroborate their witness . . . .” Id. at 16. The

court ruled that it would permit the State to present its requested evidence.

[9] At the start of Dowdy’s trial on April 27, 2015, the court stated that the State’s

reliance on evidence of the events of December 17, 2012, “as far as motive . . .

and identity are appropriate in this circumstance,” noted that the State had

indicated it would limit the evidence from that incident to not include the

murder, although the door could be opened, and stated “[y]ou’ve made your

record as far as your argument on that 404B. I will allow the State to utilize it.”

Transcript at 4. Later, when the State began to introduce evidence of what

police observed and recovered at the scene on December 17, 2012, Dowdy

objected and argued that the evidence “has nothing to do with this case” and

was impermissible 404(b) evidence, and the court overruled the objection and

noted that the arguments were made before trial. Id. at 43. Dowdy objected

again a short time later, and the court stated “I do think you’ve preserved your

record sufficiently so it is noted.” Id. at 49.

[10] The State presented evidence related to the events of December 17, 2012, which

included photographs of a shotgun shell as well as two raffle tickets and two

business cards from Fifth Third Bank that were discovered on the ground

around Patel’s vehicle. The State elicited testimony from Dominique that raffle

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tickets had fallen from his wallet and that he banked with Fifth Third Bank.

Dominique testified that he and Dowdy were friends, he had known Dowdy for

several years, he had met him when they were staying at the same apartment

complex, his mother and Dowdy’s mother were friends, and that he knew

Dowdy’s nickname. He also testified that Dowdy directed Patel to a particular

location in the apartment complex where there were no cameras and that

Dowdy was armed with a shotgun and Eric and Dominique were not armed.

Dominique indicated that he was involved in the planning of the robbery of

Patel, did not think it would be necessary to use a firearm, and was planning to

take the phone from Patel and run away.

[11] Dominique further testified that he gave a number of statements to police, and

that he first spoke to a detective at the hospital, and said: “I said it was just me

and Eric and I . . . didn’t remember who else was in the car with me.” Id. at

207. He further testified that this was not true and that he was not truthful with

the detective because he was scared of Dowdy. He stated that, at some point

while his mother was visiting him in the hospital, he told her that Dowdy was

in the car and was the person who shot him and Eric. When asked how long he

was in the hospital, Dominique answered “I’d say about two weeks.” Id. at

209. He testified that he gave a second statement to a detective in the homicide

office a few weeks later and that he still did not tell the detective who was in the

back seat of the car “[b]ecause . . . Dowdy was still able to get [him] if [he] told

what happened.” Id. at 211. Dominique indicated that, after the second

interview, he was arrested for his participation in the robbery of Patel.

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[12] Dominique also testified that, about a month after the second statement, he

gave a third statement to the detective during which he told the detective that

Dowdy was in the back seat of the Camaro on December 18, 2012. He stated

that, at the time he gave the third statement, he had not entered into a plea

agreement. He then indicated that, about ten months after the third statement,

he gave a fourth statement at which detectives and his attorney were present

and that, before that meeting, he was offered a plea agreement in exchange for

talking to police regarding the events of December 17, 2012. The plea

agreement provided that Dominique would plead guilty to conspiracy to

commit robbery as a class A felony and would fully cooperate and testify

against Dowdy and that the State would dismiss all remaining counts against

Dominique.

[13] Dominique’s mother testified that when Dominique arrived at her house on

December 17, 2012, he was crying and upset and did not tell her why, and said

that he would tell her later. Dominique’s mother also testified that she gave

two statements to police, the first on December 19, 2012, and the second on

January 10, 2013, and that, in the second statement, she shared new

information with the detective which was that, while Dominique was

hospitalized, he had informed her that Dowdy was the person who had shot

him. The court admitted the testimony of Dominique’s mother regarding

Dominique’s statement to her on the basis that it was a statement of

identification.

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[14] The jury found Dowdy guilty of murder and attempted murder, and the court

sentenced him to fifty years for the murder of Eric and twenty-five years for the

attempted murder of Dominique, and ordered that the sentences be served

consecutively for an aggregate sentence of seventy-five years.

Discussion

I.

[15] The first issue is whether the trial court abused its discretion in admitting

particular evidence regarding the events of December 17, 2012, and

Dominique’s statement to his mother. Generally, we review the trial court’s

ruling on the admission or exclusion of evidence for an abuse of discretion.

Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only

when the decision is clearly against the logic and effect of the facts and

circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.

We may affirm a trial court’s decision regarding the admission of evidence if it

is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930

(Ind. 1998), reh’g denied. Even if the trial court’s decision was an abuse of

discretion, we will not reverse if the admission constituted harmless error. Fox

v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.

A. December 17, 2012 Events

[16] Dowdy contends that, contrary to the State’s assertion that the evidence

regarding the December 17, 2012 incident showed his motive and identity,

“[t]he only real similarity between the two incidents was the use of a firearm,

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and different guns were used in each crime” and that “[t]hey were in part

different crimes, different circumstances, accomplished by different methods,

and the individuals allegedly involved had different relationships in each

incident.” Appellant’s Brief at 14. He argues that the photographs of the crime

scene and evidence of a shotgun shell, raffle tickets, and business cards found at

the scene on December 17th did nothing to contribute to showing motive for

the December 18th shootings. He also contends that the evidence that he had

Patel go to a location with no cameras, that he was the only person with a

shotgun, that he stealthily approached Patel, and that Dominque was scared

and crying after the incident was not related to his motive for the December

18th crimes and was extremely prejudicial.

[17] The State notes that the trial court found that the December 17, 2012 crimes

were inextricably bound up with the charged crimes, and argues that evidence

of uncharged criminal acts which are intrinsic to the charged offense are

admissible, and that the court properly allowed evidence of the robbery and

killing of Patel because it was part of the same criminal conduct and not merely

propensity evidence. The State maintains that Dowdy, Dominique, and Eric

met on December 18, 2012 to finish their business related to the robbery,

Dowdy shot Eric and Dominique with Patel’s gun, the only reasonable

inference is that Dowdy killed Eric and attempted to kill Dominique to cover

up his involvement in the robbery and killing of Patel, and that, under these

circumstances, evidence of the killing of Patel was necessary to complete the

story of the crimes on trial.

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[18] In addition, the State asserts that for the first time on appeal Dowdy argues that

some of the evidence of the December 17, 2012 incident was admissible but that

other evidence should have been excluded as overly prejudicial or irrelevant,

that these new arguments are waived, and that, waiver aside, even if evidence

of the December 17th killing was only admissible to show motive, there is no

merit to Dowdy’s argument that the State could not present details of the crime.

The State also contends that any error in the admission of the December 17th

killing was harmless because Dominique identified Dowdy as the person in the

car who was in a position to commit the shooting on December 18, 2012, that

forensic evidence showed Eric was shot in the back of the head from within the

car at close range, that Dominique had observed Dowdy in possession of the

Bersa Thunder 380 handgun the previous night, and that the witness who called

911 observed someone fitting Dowdy’s description exit the backseat of the car

and run away after the shooting.

[19] Ind. Evidence Rule 404(b) provides in part:

(1) Prohibited Uses. 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.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. . . .

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Ind. Evidence Rule 403 provides: “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.”

[20] The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

court must determine that the evidence of other crimes, wrongs, or acts is

relevant to a matter at issue other than the defendant’s propensity to commit the

charged act; and (2) the court must balance the probative value of the evidence

against its prejudicial effect pursuant to Rule 403. Whatley v. State, 908 N.E.2d

276, 281 (Ind. Ct. App. 2009) (citing Boone v. State, 728 N.E.2d 135, 137-138

(Ind. 2000), reh’g denied; Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997)), trans.

denied. The evidence is inadmissible when the State offers it only to produce the

“forbidden inference” that the defendant has engaged in other, uncharged

misconduct and the charged conduct was in conformity with the uncharged

misconduct. Id. (citing Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000)). The

trial court has wide latitude, however, in weighing the probative value of the

evidence against the possible prejudice of its admission. Id. If evidence has

some purpose besides behavior in conformity with a character trait and the

balancing test is favorable, the trial court can elect to admit the evidence. Id.

(citing Boone, 728 N.E.2d at 138). For instance, evidence which is necessary for

the jury to understand the relationships between the victim, various witnesses,

and the defendant may be admissible. Id. (citing Wilson v. State, 765 N.E.2d

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1265, 1270-1271 (Ind. 2002)). In addition, evidence of motive is always

relevant in the proof of a crime. Fry v. State, 748 N.E.2d 369, 372 (Ind. 2001).

[21] The challenged evidence regarding Dowdy’s participation in the robbery and

shooting of Patel on December 17, 2012, was not introduced to show his

propensity to engage in crime or that his behavior was in conformity with a

character trait. The testimony of Dominique regarding the events of December

17, 2012 was necessary for the jury to understand the relationships between

Dowdy, Dominique, and Eric and the context of the subsequent meeting and

shooting of Dominique and Eric on December 18, 2012. The testimony further

explained why Dominique contacted Dowdy on December 18, 2012 to say that

he had a buyer lined up for the iPhone, why Dominique and Eric arranged a

meeting with Dowdy, and why Dowdy handed a white box containing an

iPhone to Eric while seated in the Camaro. Additionally, the challenged

evidence was offered to establish Dowdy’s motive to commit the crimes against

Dominique and Eric on December 18, 2012, and Dowdy’s identity as the

person who committed the crimes. We cannot say the probative value of the

challenged evidence was substantially outweighed by the danger of unfair

prejudice, and the admission of the evidence did not violate Rule 404(b). See

Fry, 748 N.E.2d at 372 (holding that the State offered the evidence of a scheme

to steal a television involving the defendant and one of the victims to show the

defendant’s motive for killing the victims and that the admission of the evidence

did not violate Ind. Evidence Rules 404(b) or 403); Whatley, 908 N.E.2d at 282

(noting the evidence of the defendant’s drug use and delivery was necessary for

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the jury to understand the relationships between the defendant, the victim, and

the other witnesses and the context of the events which culminated in the

victim’s death and holding the evidence did not violate Ind. Evidence Rules

404(b) or 403) (citing Wilson, 765 N.E.2d at 1270-1271 (holding that evidence of

the defendant’s drug dealing and prostitution-related activities was admissible

in a murder prosecution and did not violate Ind. Evidence Rules 404(b) or 403

where the evidence was “necessary for the jury to understand the relationships

between the victim, various witnesses, and the defendant”); Ross v. State, 676

N.E.2d 339, 346 (Ind. 1996) (holding that prior misconduct was “admissible

because it demonstrated the defendant’s motive and intent to commit the

murder and illuminated the relationship between the defendant and victim”)).

B. Dominique’s Statement to His Mother

[22] Dowdy also argues that the trial court erred in allowing Dominique’s mother to

testify as to the contents of Dominique’s statement to her at the hospital that

Dowdy was the person who shot him. Ind. Evidence Rule 801 provides that

hearsay is a statement not made by the declarant while testifying at the trial or

hearing and is offered in evidence to prove the truth of the matter asserted. Ind.

Evidence Rule 802 provides that hearsay is not admissible unless these rules or

other law provides otherwise. Ind. Evidence Rule 801(d)(1) provides that a

statement is not hearsay if:

A Declarant-Witness’s Prior Statement. The declarant testifies and is
subject to cross-examination about a prior statement, and the
statement:

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*****

(B) is consistent with the declarant’s testimony, and is
offered to rebut an express or implied charge that
the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying;
or

(C) is an identification of a person shortly after
perceiving the person.

[23] Dowdy asserts that “the main issue is the timing of the claimed motive to

fabricate.” Appellant’s Brief at 21. He states that Dominique provided

different information in his first two statements to the detectives than he did in

the rest and that it is apparent that he did the same when he first talked to his

mother while in the hospital. He argues that Dominique’s statement to his

mother “was made after his motive to fabricate arose.” Id. He states that

Dominique knew he could be charged in connection with the death of Patel on

December 17th and had “a virtually instant motive to lie about Dowdy’s

identity and involvement in the December 17 case in an attempt to implicate

Dowdy instead of himself.” Id. at 23.

[24] The State contends that the court properly admitted the testimony of

Dominique’s mother regarding Dominique’s prior identification of Dowdy as

the shooter, noting that the trial court admitted the testimony under the

exception to the hearsay rule for statements of identification of a person under

Ind. Evidence Rule 801(d)(1)(C). The State argues that Dominique’s

identification was not hearsay because he identified Dowdy as the shooter to

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his mother a few weeks after the shooting and that, based on Dominique’s

presence at trial and availability for cross-examination, the prior identification

was admissible under Ind. Evidence Rule 801(d)(1)(C). The State further

asserts that Dowdy’s argument on appeal misstates the record by asserting that

testimony of Dominique’s mother was permitted as a prior consistent statement

when in fact it was admitted as identification evidence. Additionally, it

contends that Dominique’s prior statement would have been admissible under

Evidence Rule 801(d)(1)(B), that Dominique would have had no motive to

fabricate until he received a benefit for agreeing to testify against Dowdy, and

that the testimony of Dominique’s mother would also have been admissible to

rehabilitate Dominique from Dowdy’s suggestion during cross-examination

that Dominique implicated him in exchange for leniency in the other crime.

Finally, it states that any error in admitting the identification testimony of

Dominique’s mother was harmless because Dominique identified Dowdy as the

shooter at trial, Eric was shot from behind at close range, Dowdy’s use of

Patel’s gun tied him to the shooting, and a bystander who called 911

corroborated Dominique’s account.

[25] Dominique testified before the jury and was subject to cross-examination about

his prior statement. The record shows that Dominique’s mother gave a second

statement to police on January 10, 2013, in which she said that Dominique had

informed her at the hospital that Dowdy was the person who had shot him.

Dominique testified that he had been hospitalized for approximately two

weeks, that he had perceived Dowdy enter the backseat of the Camaro, and that

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he and Dowdy were friends. We cannot say that the trial court abused its

discretion in finding that Dominique’s statement to his mother constituted an

identification of Dowdy shortly after Dominique perceived him pursuant to

Ind. Evidence Rule 801(d)(1)(C). See Dickens v. State, 754 N.E.2d 1, 6 (Ind.

2001) (stating that statements of identification are not hearsay if they are made

shortly after perceiving the person and the declarant is available for cross-

examination concerning the statement at trial under Ind. Evidence Rule

801(d)(1)(C), noting that “the term ‘shortly’ is relative rather than precise,” the

purpose of the rule is to assure reliability, and holding that the statements

qualified as statements of identification and were not hearsay) (citing Robinson

v. State, 682 N.E.2d 806, 810-811 (Ind. Ct. App. 1997) (observing that the

declarant made his statement identifying the defendant as one of the men who

shot the victims two months and thirteen days after the shootings, noting that

the declarant testified that he knew the defendant and that the two were friends,

and holding that the identification was made shortly after perceiving the

defendant for purposes of Ind. Evidence Rule 801(d)(1)(C))).

[26] Additionally, we observe that Dominique’s statement to his mother while he

was hospitalized was consistent with his testimony at trial that Dowdy was the

person who shot him. The Indiana Supreme Court has stated that whether a

motive to fabricate has arisen is a fact sensitive issue and we do not

automatically find that a participant in a crime has a motive to fabricate, even

where the police are inquiring into the declarant’s involvement in the crime.

Holsinger v. State, 750 N.E.2d 354, 360 (Ind. 2001). At the time Dominique told

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his mother that Dowdy was the person who shot him, Dominique had not been

arrested for his participation in the robbery of Patel and had not obtained any

promise of leniency with respect to possible charges for his involvement in the

robbery. In eliciting testimony from Dominique that he faced a shorter

sentence because he entered a plea agreement, Dowdy suggested that

Dominique recently fabricated his testimony against him to obtain leniency. To

rebut that charge the State was allowed to offer evidence of Dominique’s prior

statement to his mother pursuant to Ind. Evidence Rule 801(d)(1)(B). See id. at

359-360 (holding that, at the time an accomplice to a robbery gave a statement

to police implicating the defendant in the murder of a robbery victim, the

accomplice did not have a motive to fabricate and that the statement was

admissible under Ind. Evidence Rule 801(d)(1)(B) to rebut an implied charge of

fabrication). We cannot say that the trial court abused its discretion in

admitting Dominique’s statement to his mother under Ind. Evidence Rule

801(d)(1).

II.

[27] Next, Dowdy argues that the court abused its discretion in sentencing him to

consecutive sentences because it did not articulate a reason for imposing

consecutive sentences. He also contends that the court provided almost nothing

to review. The State posits that the trial court’s statement, while brief, was

adequate because it explained that Dowdy’s consecutive sentences were

justified by the multiple victims.

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[28] We review the sentence for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). 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 deductions to be drawn therefrom.” Id. A trial court abuses its

discretion if it: (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. at 490-491. If the

trial court has abused its discretion, we will remand for resentencing “if we

cannot say with confidence that the trial court would have imposed the same

sentence had it properly considered reasons that enjoy support in the record.”

Id. at 491. The relative weight or value assignable to reasons properly found, or

those which should have been found, is not subject to review for abuse of

discretion. Id.

[29] The Indiana Supreme Court has stated that “before a trial court can impose a

consecutive sentence, it must articulate, explain, and evaluate the aggravating

circumstances that support the sentence.” Monroe v. State, 886 N.E.2d 578, 580

(Ind. 2008). In reviewing the court’s sentencing decision, we may consider both

the written and oral sentencing statements. See Corbett v. State, 764 N.E.2d 622,

631 (Ind. 2002).

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-551 | August 11, 2016 Page 19 of 21
[30] At sentencing, the court stated:

I do believe though based on the circumstances of this crime, I
think each victim should be sentenced individually. When I
think back to it, the shots were taken, I believe, first at Eric
Clanton, although I’m not certain, and then the weapon had to be
turned . . . towards the second victim, and that victim was
Dominique, if it did occur that way. But regardless, it wasn’t two
victims in one line of fire, it was two lines of fire at two different
victims, so they will be sentenced consecutively.

As to Eric, who is the subject of Count One, I believe the Court
will sentence a 50-year sentence to the Department of Corrections.
As to Dominique, the sentence will be a 25-year sentence
consecutive to a 50-year sentence. Overall, a 75-year sentence
will be imposed. That is 75 years at the Department of
Corrections.

Transcript at 464-465.

[31] The presence of multiple victims is an aggravating circumstance that justifies

the imposition of consecutive sentences. See Cardwell v. State, 895 N.E.2d 1219,

1225 (Ind. 2008) (stating that “[w]hether the counts involve one or multiple

victims is highly relevant to the decision to impose consecutive sentences”);

McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001) (noting that “[i]njury to

multiple victims has been cited several times by this Court as supporting

enhanced and consecutive sentences”); Gilliam v. State, 901 N.E.2d 72, 74 (Ind.

Ct. App. 2009) (stating “a single aggravating circumstance may justify the

imposition of consecutive sentences” and “[t]he presence of multiple victims is

one such aggravating circumstance”).

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[32] Based on the trial court’s comments that multiple victims justified consecutive

sentences, we cannot say the court abused its discretion in sentencing Dowdy to

consecutive terms. See Gross v. State, 22 N.E.3d 863, 870 (Ind. Ct. App. 2014)

(holding the trial court did not abuse its discretion in ordering consecutive

sentences and noting the court’s support for its decision to impose consecutive

sentences included that there had been two murder victims), trans. denied.

Conclusion

[33] For the foregoing reasons, we affirm Dowdy’s convictions and sentence for

murder and attempted murder.

[34] Affirmed.

Baker, J., and May, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4023518. Public record. Not legal advice.