Rickie B. Gilliam v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Apr 01 2013, 8:35 am
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:
STEVEN R. KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICKIE B. GILLIAM, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1206-CR-482
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1201-FA-1
April 1, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, the appellant-defendant, Rickie B. Gilliam, is appealing his
convictions for two counts of Attempted Murder,1 a class A felony, and Unlawful
Possession of a Firearm by a Serious Violent Felon,2 a class B felony. Gilliam argues
that the trial court erred in admitting evidence of a prior act of violence against one of the
victims in violation of Indiana Evidence Rule 404(b), that the evidence was insufficient
to support the convictions because the victims did not unequivocally identify him as the
shooter, and that the aggregate sixty-three-year sentence that was imposed on these
offenses and others was inappropriate when considering the nature of the offenses and his
character.
We conclude that the trial court properly admitted evidence of Gilliam’s previous
threat to kill one of the victims to show motive and the nature of the relationship between
him and the victim, that he was properly identified as the perpetrator, and that Gilliam
has failed to show that his sentence was inappropriate. Thus, we affirm the judgment of
the trial court.
FACTS
Heather Short and Gilliam were involved in a romantic relationship for
approximately three years and lived together in Lafayette with their three-year-old son.
In December 2010, the couple argued and Gilliam pulled out a gun. Gilliam stated that
he would “kill [Heather] with the gun if [she] didn’t knock [her] sh*t off.” Tr. p. 147.
1
Ind. Code § 35-41-5-1; Ind. Code § 35-42-2-1.5.
2
Ind. Code § 35-47-4-5(c).
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Heather was scared and would not leave the couple’s bedroom. At some point, Heather
sent a text message to her brother, Jeremiah Short, who came to the house and went to
Heather’s bedroom window. Jeremiah talked to Heather and wanted her to leave with
him; however, Heather declined.
On January 8, 2011, Heather and Gilliam ended their relationship. Heather went
to Jeremiah’s to stay, and at some point, Heather and Jonathan Beard, Jeremiah’s
roommate, began a sexual relationship. On January 14, 2011, Heather drove Beard to
his job at Penguin Liquors. Heather asked Beard if he knew of any place where she could
stay that night because she “was trying to avoid her son’s father.” Tr. p. 254. Beard
offered to rent her a motel room for the weekend. After Beard’s shift ended at 2:00 a.m.,
Heather picked him up and drove to an Economy Inn, where Beard paid for a room.
After pulling up to one of the rooms, Heather and Beard noticed that the number
on the door was not the same room that he had rented. Heather put the car in reverse, but
at that moment, Gilliam drove up in a red vehicle. Gilliam exited his car and started
shooting at Heather and Beard with a handgun. Numerous rounds hit the body of the
vehicle and the windows. Beard hunched down to avoid being shot and Heather
accelerated. Gilliam fired another shot that struck Heather’s windshield.
After Heather drove away, she contacted 911 and reported that Gilliam had tried to
kill her and Beard. Shortly after the call, several police officers went to Gilliam’s
residence and noticed a red Chevy Impala parked in the driveway, but the license plate on
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the vehicle was registered to Gilliam’s red Pontiac Grand Prix. The Impala was slightly
covered in snow, and the engine was cold.
The officers set up a perimeter around the house and although a television was on,
no one was observed entering or exiting the house. Later that morning, a SWAT team
searched the house and confirmed that no one was inside. The officers discovered twelve
rounds of .9mm Ruger ammunition, as well as several bags of marijuana, marijuana
cigarettes, rolling papers, and digital scales. Several .25 caliber shell casings were found
in the motel parking lot where the shooting occurred.
On the day of the shooting, Heather and Beard positively identified Gilliam from a
photo array. Later that week, Jeremiah, who was Gilliam’s friend, observed Gilliam
driving a red Pontiac Grand Prix. On February 14, 2011, the State charged Gilliam with
the following offenses:
Count I—Attempted Murder, a class A felony
Count II—Attempted Murder, a class A felony
Count III—Attempted Aggravated Battery, a class B felony
Count IV—Attempted Aggravated Battery, a class B felony
Count V—Attempted Battery, a class C felony
Count VI—Attempted Battery, a class C felony
Count VII—Criminal Recklessness, a class C felony
Count VIII—Carrying a Handgun Without a License, a class A
misdemeanor
Count IX—Pointing a Firearm, a class D felony
Count X—Pointing a Firearm, a class D felony
Count XI—Dealing in Marijuana, a class D felony
Count XII—Possession of Marijuana, a class D felony,
Count XIII—Maintaining a Common Nuisance, a class D felony
Count XIV—Serious Violent Felon in Possession of a Firearm, a class B
felony
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On December 29, 2011, the State filed a notice under Indiana Evidence Rule
404(b), indicating that the State intended to offer evidence of the previous incident in
December 2010 involving Gilliam’s threat to kill Heather with a handgun.
Following a hearing on December 30, 2011, the trial court ruled that evidence of
the earlier incident would be admissible because it was relevant to show motive, intent,
identity, and absence of mistake and accident. The trial court also noted that it would
give a limiting instruction to the jury.
On April 9, 2012, Beard spoke with Officer Michael Barthelemy and again
identified Gilliam as the shooter. Beard told Officer Barthelemy that Gilliam was
approximately five feet away when the shooting occurred.
Gilliam’s jury trial commenced on April 16, 2012. At trial, Heather’s account of
the events changed in several respects. For instance, Heather had previously told police
that Gilliam had been dealing in marijuana. However, at trial, she claimed that she did
not remember making that statement. When asked about the fact that Gilliam had
threatened to kill her, Heather claimed that she “guessed” that was accurate. Tr. p. 147.
Similarly, although Heather had previously stated that she was afraid of Gilliam when he
threatened to kill her, she claimed at trial that she was not really scared. Finally, although
Heather had previously reported to the police that she had seen Gilliam after the first
gunshot, she claimed at trial that she assumed it was him because she had seen the red
car.
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Laura Berry-Bermann, the Executive Director for the Indiana Coalition Against
Domestic Violence, also testified at trial. Berry-Bermann testified that it is not unusual
for a woman in circumstances similar to those experienced by Heather to subsequently
recant or modify a prior identification of the person who committed the charged offense.
Berry-Bermann stated that there are many possible explanations for this phenomenon,
including a fear of retaliation and future violence, fear of the loss of income and support
for a child that they may share in common, and loyalty to the father of their child.
Following the presentation of evidence, Gilliam was found guilty as charged on all
counts. The trial court conducted a bench trial on the serious violent felon charge, and
Gilliam was also found guilty on that count.
At the sentencing hearing, the trial court entered judgments of conviction on
Counts I, II, XI, XIII and XIV. Gilliam was sentenced to an aggregate term of sixty-three
years of incarceration, and he now appeals.
DISCUSSION AND DECISION
I. Admissibility of Evidence Involving Prior Incident
Gilliam argues that the trial court erred in admitting evidence of his alleged
previous threat to kill Heather. Gilliam argues that the admission of such evidence was
erroneous because it did not demonstrate motive and intent to commit murder or shed any
light on the relationship that he had with Heather.
We review a trial court’s decision to admit or exclude evidence only for an abuse
of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000). Reversal is appropriate
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only when the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). We will
affirm the trial court’s decision to admit evidence if it is sustainable on any basis in the
record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998).
Indiana Evidence Rule 404(b) provides in part that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, intent, preparation, plan, knowledge, [or] identity. . . .” When
assessing the admissibility of evidence under Evidence Rule 404(b), a trial court must: 1)
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) balance the
probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence
Rule 403. Boone v. State, 728 N.E.2d 135, 137-38 (Ind. 2000). 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. Crain v. State, 736 N.E.2d 1223, 1235 (Ind.
2000).
However, we also note that the trial court has wide latitude 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. Boone, 728
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N.E.2d at 138. More specifically, evidence that is necessary for the jury to understand
the relationships between the victim, various witnesses, and the defendant may be
admissible. See Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996) (holding that the
defendant’s statements that the victim “would pay,” and threats to kill the victim made
two months before the murder, were admissible under Indiana Evidence Rule 404(b)
because the evidence demonstrated the defendant’s motive and intent to commit the
murder and shed light on the relationship between the victim and the defendant).
Like the circumstances in Ross, we believe that Gilliam’s statement that he would
“kill [Heather] with the gun if [she] didn’t knock [her] sh*t off,” tr. p. 147, was
admissible to show both motive and the nature of the relationship between Gilliam and
Heather around the time of the shooting.
We also cannot say that the probative value of the evidence was outweighed by the
danger of unfair prejudice. For instance, in Berry v. State, 704 N.E.2d 462, 464 (Ind.
1998), it was held that the defendant’s threat, “I will kill you all and then leave,” made to
the eventual victims six months before their murders, was properly admitted into
evidence at trial and that the danger of unfair prejudice did not outweigh the probative
value of the statements. In other words, this evidence was illustrative of the relationship
between the defendant and the rest of his family. The same is true here. Therefore, we
conclude that the trial court did not abuse its discretion in admitting evidence regarding
the prior threat that Gilliam made against Heather.
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II. Sufficiency of the Evidence
Gilliam next claims that the evidence was insufficient to support his convictions
for attempted murder and possession of a firearm by a serious violent felon. Specifically,
Gilliam contends that his convictions must be set aside because Heather and Beard’s
identification of him at trial as the shooter were equivocal and unreliable.
In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence
nor assess the credibility of the witnesses. Vitek v. State, 750 N.E.2d 346, 352 (Ind.
2001). We look to the evidence most favorable to the judgment and the reasonable
inferences drawn therefrom. Id. We will affirm the conviction if there is probative
evidence from which a reasonable finder of fact could have found the defendant guilty
beyond a reasonable doubt. Id. The testimony of a single eyewitness is sufficient to
sustain a conviction. Badelle v. State, 754 N.E.2d 510, 543 (Ind. Ct. App. 2001).
Identification evidence need not be wholly unequivocal to be sufficient to support a
conviction. Griffin v. State, 501 N.E.2d 1077, 1078 (Ind. 1986).
In this case, even assuming for the sake of argument that Heather’s and Beard’s
identifications of Gilliam during their testimony at trial was equivocal, Gilliam’s claim
would fail. More specifically, there was other evidence besides the trial testimony
establishing that Gilliam was the shooter. Such evidence included the 911 call that
Heather made minutes after the shooting where she positively identified Gilliam as the
shooter. State’s Ex. 8. Heather also identified Gilliam from a photo array.
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Beard also testified that Gilliam was the shooter. Tr. p. 271, 273, 296, 402.
Gilliam was afforded the opportunity to cross-examine Beard and could argue the
reliability of his testimony to the jury.
In sum, any potential errors in eyewitness identification are to be resolved during
trial and not on appeal. Gorman v. State, 968 N.E.2d 845, 850 (Ind. Ct. App. 2012),
trans. denied. Gilliam’s challenge is merely requesting that we reweigh the evidence and
determine witness credibility, which we will not do. We conclude that the evidence was
sufficient to support Gilliam’s convictions beyond a reasonable doubt.
III. Sentencing
Finally, Gilliam argues that the aggregate sixty-three-year sentence that was
imposed was inappropriate considering the nature of the offenses and his character.
Specifically, Gilliam maintains that the sentence was inappropriate because neither
victim was injured, and his criminal history is not significant. Thus, Gilliam requests that
we revise his sentence to an aggregate term of thirty years.
Under Appellate Rule 7(B), we may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.
“[W]hether we regard a sentence as appropriate . . . turns on our sense of the 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.” Cardwell v. State, 895 N.E.2d 1219, 1224
(Ind. 2008). Under appropriateness review, the question is not whether another sentence
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would be more appropriate; rather, the question is whether the sentence imposed was
inappropriate. Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011), trans.
denied. The burden is on the defendant to persuade us that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
As for the nature of the offense, the record shows that Gilliam committed several
offenses, including an attempt to kill both Heather and Beard. Gilliam fired several shots
at the victims and several bullets struck Heather’s vehicle, even shooting out the vehicle’s
windows. Tr. p. 120-24, 243-44, 346-47, 364, 367. When considering the nature of the
offense, the fact that there were multiple victims generally supports the imposition of
enhanced and consecutive sentences. Sanchez v. State, 938 N.E.2d 720, 723 (Ind. 2010).
Here, Gilliam’s aggregate sentence of sixty-three years is well below the maximum
sentence of more than 120 years that could have been imposed for two class A felonies, a
class B felony, and two class D felonies.3 Thus, Gilliam’s nature of the offense argument
avails him of nothing.
With regard to Gilliam’s character, the record demonstrates that he has frequently
engaged in prior criminal behavior. More particularly, Gilliam admitted to using
numerous drugs, including cocaine and marijuana, on a regular basis. He also has a
record of juvenile adjudications and criminal convictions, which include a juvenile
adjudication for theft in 1981, a conviction for burglary, a class B felony in 1985, and a
3
Pursuant to Indiana Code section 35-50-2-4, the maximum sentence for a class A felony is fifty years.
The maximum sentence for a class B felony is twenty years in accordance with Indiana Code section 35-
50-2-5, and the maximum sentence for a class D felony under Indiana Code section 35-50-2-7 is three
years.
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conviction for dealing in cocaine, a class A felony, in 1990. Appellant’s App. p. 164-66.
Gilliam also obtained a withheld judgment for a battery charge in 1990, and he was
arrested for invasion of privacy and operating a vehicle while intoxicated while the
current charges were pending.
In sum, the juvenile adjudications, criminal convictions, and record of arrests,
demonstrate Gilliam’s disdain and disrespect for the law. Gilliam has not benefited even
when our judicial system has shown him leniency. Rather, he has continued to commit
crimes. Also, Gilliam’s failure to take proactive measures to address his drug abuse
reflects poorly on his character. In light of these circumstances, Gilliam has failed to
show that his sentence was inappropriate.
The judgment of the trial court is affirmed.
RILEY, J., and BARNES, J., concur.
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