Nikolas S. Shannon v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 22 2020, 10:52 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nikolas S. Shannon, July 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1747
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ruth D. Reichard,
Appellee-Plaintiff. Senior Judge
Trial Court Cause No.
49G03-1711-MR-46360
Najam, Judge.
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Statement of the Case
[1] Nikolas Shannon appeals his convictions for murder, a felony, and robbery, as
a Level 5 felony, following a jury trial. Shannon presents four issues for our
review, which we revise and restate as follows:
1. Whether the trial court erred under Title III of the
Omnibus Crime Control and Safe Streets Act of 1968
when it allowed a witness to testify.
2. Whether the trial court abused its discretion when it
admitted certain photographs as evidence.
3. Whether the trial court abused its discretion when it
declined to instruct the jury on reckless homicide.
4. Whether the State presented sufficient evidence to support
his convictions.
[2] We affirm.
Facts and Procedural History
[3] On November 12, 2017, Jared Dowell picked up Darious Carson, and the two
went to Shannon’s apartment complex so that Dowell could buy marijuana
from Stefon McClendon, who is Shannon’s cousin. When they got there,
Dowell backed his car into a parking space. Shortly thereafter, McClendon and
his girlfriend, Vinettie Palmer, arrived, and McClendon parked his car near
Dowell’s. Palmer then went into Shannon’s apartment. Also in the apartment
were Shannon and his sister. While Palmer was in the apartment, McClendon
got into the rear passenger side seat of Dowell’s car. McClendon and Dowell
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then began to argue about ten dollars that Dowell owed to McClendon. Dowell
was “nonchalant” and “joking,” but McClendon was “angry” and felt
“disrespected.” Tr. Vol. II at 191. McClendon tried to get Dowell to fight him,
but Dowell refused. Dowell then paid McClendon $600 in exchange for one-
quarter pound of marijuana.
[4] Following the transaction, Dowell asked McClendon for a cigar that he could
use to smoke some of the marijuana. McClendon agreed, and he exited the car
and went into Shannon’s apartment. When he entered the apartment, Palmer
noticed that McClendon was “irritated.” Tr. Vol. III at 174. Palmer then
overheard a conversation between McClendon and Shannon, during which
Palmer believed that McClendon told Shannon that he did not “get what he
wanted” from Dowell. Id. at 178. Following that conversation, Shannon
changed into black clothes, and he used “a black item” to “hid[e] a portion of
his face.” 1 Id. at 215. Shannon then left the apartment through the back door,
and McClendon left through the front door.
[5] Approximately five minutes after McClendon had exited the car, Carson saw a
man dressed in a black hoodie and a black mask walk toward him. The man
walked to the driver’s side window and asked Dowell for a cigarette. Dowell
complied, and the man stepped behind the car to smoke it. McClendon then
returned to Dowell’s car and got into the rear passenger side seat. At the same
1
Palmer initially referred to the face covering as a “mask.” Id. at 175. However, she later referred to it as a
“bandanna.” Id. at 183.
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time, the man in the mask opened the rear driver side door, pointed the gun at
Dowell, and asked: “[h]ave you ever been robbed before.” Tr. Vol. II at 196.
The man hit Dowell in the face with a pistol and reached his hand toward
Dowell’s left pocket in order to grab the marijuana and “anything else” he
could get. Id. at 197. During the struggle, the man’s mask was “pulled down,”
and Carson observed that the man had “gold teeth.” Id. at 198. “[A]ll of the
sudden,” Dowell put the car in drive, and the car “t[ook] off.” Id. at 197. The
man in the mask “fell,” and the gun “went off,” hitting Dowell in the back. Id.
at 198. Carson grabbed the steering wheel and pulled the car onto the curb. At
that point, Carson called 9-1-1, and he saw the man in the mask run toward
Shannon’s apartment.
[6] A “couple of minutes” after Shannon and McClendon had left Shannon’s
apartment, Shannon reentered through the back door. Tr. Vol. III at 183.
Shannon told Palmer that he “had to shoot him because he was going to ride
off with” McClendon, who was still sitting in the back seat of the car. Id. at
184. Shannon then changed out of his clothes and told his sister and Palmer to
go to a back room.
[7] Officer Keith Hartman with the Indianapolis Metropolitan Police Department
(“IMPD”) heard the 9-1-1 call come over the radio. Officer Hartman was
approximately 250 yards from the location, so he volunteered to respond.
“Less than thirty seconds” after he had heard the call, Officer Hartman arrived
at the scene, and he saw a car stopped on the curb. Tr. Vol. II at 140. He then
watched two men exit the car, and he saw that Dowell was still in the car with
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his seat belt on, his hands on the wheel, and his head back against the headrest.
Officer Hartman checked Dowell for wounds but did not see any, so he
administered Narcan. Dowell did not respond, so officers removed Dowell
from the car and discovered the gunshot wound to his back. Medics
determined that Dowell was deceased.
[8] Officers then obtained and reviewed security footage from the apartment
complex. On that footage, officers observed the suspect open the rear driver’s
side door and start to “assault” Dowell. Tr. Vol. III at 139. Officers were also
able to see that, as the car started to drive off, the suspect ran toward Shannon’s
apartment. Based on that footage, IMPD Officer Paul Humphrey went to the
rear of Shannon’s apartment. Officer Humphrey was able to see into the
apartment through a glass door, and he observed marijuana on a table. Officer
Humphrey then saw Shannon in the apartment, the two made eye contact with
each other, and Shannon “slammed” the blinds shut. Tr. Vol. II at 168. Officer
Humphrey believed that Shannon was going to exit the apartment through the
front door, so he went around to the front. As he got there, Shannon opened
the door, saw Officer Humphrey, and shut the door “very quickly.” Id. Officer
Humphrey then knocked on the door, but Shannon did not respond.
[9] Officers set up a perimeter around Shannon’s apartment. Approximately forty-
five minutes later, Palmer and Shannon’s sister exited. Thirty minutes after
that, Shannon left his apartment. At that point, officers arrested Shannon and
searched his apartment. During the search of the apartment, a crime scene
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specialist discovered a 9-millimeter pistol with an empty magazine inside the
bag of a vacuum cleaner.
[10] Officers also found the following items in Shannon’s apartment: a gun holster
and magazine with ten 9-millimeter cartridges in a wall vent, five fired
cartridges on his patio, two fired cartridges in a kitchen trashcan, a plastic bag
with “residue” from “green vegetation” in the trashcan, remnants of what
appeared to be marijuana in a toilet, and a gold mouthpiece. Tr. Vol. III at 43.
Officers also searched Dowell’s vehicle. There, officers found a fired 9-
millimeter cartridge in the “crevice between where the windshield meets the
trunk of the car.” Id. at 58.
[11] Meanwhile, officers escorted Palmer to the police station where they questioned
her. Palmer told the officers that Shannon had not left his apartment that day.
Later, Palmer used her mother’s cell phone to make a phone call.
Unbeknownst to Palmer, her mother had an application on her phone that
automatically records every call. Palmer’s mother overheard Palmer make
statements about the offense, so Palmer’s mother provided a copy of the
recorded call to the police. Based on the content of that recording, the State
charged Palmer with two counts of assisting a criminal. Thereafter, in
September 2018, Palmer gave another statement to police. In that statement,
Palmer recanted her earlier statement and informed the police of Shannon’s
involvement in the offense.
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[12] The State charged Shannon with murder, a felony; felony murder, a felony; and
robbery, as a Level 2 felony. Prior to his trial, Shannon filed a motion to
exclude the contents of Palmer’s phone call and any testimony from Palmer
that was different than the statement she had given to police on the day of the
offense. Specifically, Shannon asserted that Palmer had only changed her
statement because the State had filed charges against her, which charges the
State filed based on the content of the phone call that Palmer’s mother had
recorded without Palmer’s knowledge or consent. Shannon maintained that
Palmer’s revised statement, which implicated Shannon in the offense, was
evidence “derivatively related” to the contents of an illegally recorded phone
call. Appellant’s App. Vol. II at 113. Accordingly, Shannon asserted that it
was a violation of Title III of the Omnibus Crime Control and Safe Streets Act
of 1968 for the State to present Palmer’s changed testimony as evidence.
Following a hearing, the trial court concluded that the State could not introduce
the recorded phone call as evidence, but the court did not issue a ruling as to
Palmer’s changed testimony.
[13] During Shannon’s jury trial, the State called Samantha Kistner, a crime scene
specialist who had searched Shannon’s apartment, as a witness. Kistner
testified about the items she and the officers had found in Shannon’s apartment.
At that point, Shannon objected to the admission of any evidence that depicted
or referenced the fired cartridges that officers had found on Shannon’s patio and
in the kitchen trashcan on the ground that those photographs were irrelevant.
Specifically, Shannon asserted that there was no “direct correlation” between
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those fired cartridges and the offense. Tr. Vol. III at 21. Shannon also asserted
that the prejudicial impact of those photographs substantially outweighed their
probative value. The State responded and asserted that the fired cartridges were
relevant because the fired cartridges were the same caliber as the bullet that had
struck Dowell and, as such, the cartridges connected Shannon to the murder
weapon. The court noted that it was a “slim call” but found that the probative
value outweighed the prejudicial impact and overruled Shannon’s objection. Id.
at 30.
[14] The State then indicated that it intended to call Palmer as a witness, and
Shannon again asked the court to exclude any testimony that differed from her
original statement to police on the ground that that change in testimony was
derived from an illegally recorded phone call. During a hearing outside the
presence of the jury, Palmer then testified that, while the criminal charges
against her “influenced” her decision, she decided to tell police what she had
actually witnessed on the day of the offense because she had learned that
Dowell, who was her friend, was the person who had been killed; her mother
had encouraged her to cooperate; her attorney advised her to give a truthful
statement; she was no longer in a relationship with McClendon; and she was
pregnant Id. at 111. The court concluded that Palmer’s statement was not
derivative of the recorded phone call and denied Shannon’s motion to exclude
that evidence. Palmer then testified in a manner that was consistent with her
revised statement to police.
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[15] The State also called Shelly Crispin, the DNA technical leader at the
Indianapolis Marion County Forensic Services Agency (“Crime Lab”), as a
witness. Crispin testified that the DNA from the gold mouthpiece found in
Shannon’s apartment matched Shannon’s DNA. Douglas Boxler, a firearms
examiner with the Crime Lab, then testified that he had analyzed both the
bullet recovered from Dowell’s body and the fired cartridge recovered from
Dowell’s car, and he concluded that they had both been fired by the pistol
found in Shannon’s apartment.
[16] After both parties had rested, Shannon requested that the court instruct the jury
on reckless homicide as a lesser included offense to murder. Shannon asserted
that the evidence demonstrated that, as the car drove off, “it was more or less a
stumble and the gun shot off[.]” Tr. Vol. IV at 106. The State responded that
Shannon’s actions before the offense and his statement to Palmer after the
offense demonstrated that Shannon had knowingly or intentionally killed
Dowell. The court agreed with the State and declined to give Shannon’s
proffered jury instruction.
[17] During deliberations, the jury informed the trial court that it was “having a
struggle” with the “knowingly” element of the murder charge, so it asked the
court the following question: “If I juggle flaming objects in my home and
accidentally set fire to the house, did I knowingly set fire to the house?” Id. at
181. Based on that question, Shannon again asked the court to instruct the jury
on reckless homicide. The court denied Shannon’s request.
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[18] The jury found Shannon guilty as charged. Due to double jeopardy concerns,
the court only entered judgment of conviction for murder, a felony, and
robbery, as a Level 5 felony. The court then sentenced Shannon to an
aggregate term of fifty years in the Department of Correction. This appeal
ensued.
Discussion and Decision
Issue One: Admission of Palmer’s Testimony
[19] Shannon first asserts that the trial court erred when it admitted Palmer’s
changed testimony, which implicated Shannon in the offense, as evidence. As
our Supreme Court has stated:
Generally, a trial court’s ruling on the admission of evidence is
accorded a great deal of deference on appeal. Because the trial
court is best able to weigh the evidence and assess witness
credibility, we review its rulings on admissibility for abuse of
discretion and only reverse if a ruling is clearly against the logic
and effect of the facts and circumstances and the error affects a
party’s substantial rights.
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (internal quotation marks and
citations omitted). However, where the issue presented on appeal is a question
of law, we review the matter de novo. Henson v. State, 790 N.E.2d 524, 528 (Ind.
Ct. App. 2003).
[20] Shannon contends that the trial court erred when it admitted Palmer’s
testimony because that testimony violated Title III of the Omnibus Crime
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Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 to § 2523 (“Title III”).
In Henson, which applied Title III in Indiana, this Court explained that Title III
regulates electronic surveillance by both law enforcement officers
and private citizens. The purposes of Title III are to protect the
privacy of wire and oral communications and to delineate “on a
uniform basis the circumstances and conditions under which the
interception of wire and oral communications may be
authorized.” Gelbrad [v. United States], 408 U.S. [41,] 48, 92 S. Ct.
2357. Under Title III, all interceptions of wire and oral
communications are prohibited unless the interception is
authorized.
790 N.E.2d at 529. Further, when “information is obtained in violation of
[Title III], ‘no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial.’” United States v.
Faulkner, 439 F.3d 1221, 1223 (10th Cir. 2006) (quoting 18 U.S.C. § 2515).
[21] On appeal, Shannon contends that Palmer only changed her statement and
implicated him in the offense after the State had charged her with a crime. And
Shannon contends that the State only charged Palmer with a crime based on the
content of the phone call that Palmer’s mother had recorded without Palmer’s
knowledge or consent. Accordingly, Shannon asserts that Palmer’s testimony
against him was “evidence derived from” an “illegally intercepted phone call”
in violation of Title III and was, therefore, inadmissible at his trial. Appellant’s
Br. at 16.
[22] However, we agree with the State that Shannon lacked standing to challenge
the admission of any evidence derived from the recorded phone call. Only “an
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‘aggrieved person’ may move to suppress the contents of a wire or oral
communication intercepted in violation of” Title III. Alderman v. United States,
394 U.S. 165, 175 n.9 (1969); see also Faulkner, 439 F.3d at 1223. Indeed, 18
U.S.C. Section 2518(10)(a)(1) provides that “[a]ny aggrieved person in any
trial . . . may move to suppress the contents of any wire or oral communication
intercepted” in violation of Title III on the ground that “the communication
was unlawfully intercepted.” And an “aggrieved person” is defined as “a
person who was a party to an intercepted wire, oral, or electronic
communication or a person against whom the interception was directed[.]” 18
U.S.C. § 2518(10).
[23] Here, there is no dispute that Shannon was not a party to the intercepted phone
call. Further, Palmer’s mother installed the application on her own phone in
order to automatically record any phone call that she makes or receives. There
is no indication in the record that Palmer’s mother downloaded the application
in an attempt to record any conversation that would contain information that
implicated Shannon in an offense. Accordingly, the evidence demonstrates that
Shannon was not the target of the interception.
[24] Because Shannon was neither a party to the recorded phone call nor the target
of the interception, Shannon is not an aggrieved party under Title III. See 18
U.S.C. § 2518(11). As such, Shannon lacked standing to seek the suppression
of the contents of Palmer’s phone call or any evidence derived therefrom. See
Faulkner, 439 F.3d at 1223. The trial court therefore did not err when it
admitted Palmer’s testimony implicating Shannon in the offense.
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Issue Two: Admission of Photographs
[25] Shannon next contends that the trial court abused its discretion when it
admitted as evidence photographs of the fired cartridges that officers had found
on his patio and in his kitchen trashcan. As discussed above, we review a trial
court’s ruling on the admission of evidence for an abuse of discretion, and we
will only reverse if the ruling is clearly against the logic and effect of the facts
and circumstances and the error affects a party’s substantial rights. See Hall, 36
N.E.3d at 466. Here, Shannon specifically asserts that the trial court abused its
discretion when it admitted the photographs of the fired cartridges because
those photographs were irrelevant and prejudicial.
[26] Indiana Evidence Rule 401 provides that evidence is relevant if it “has any
tendency to make a fact more or less probable than it would be without the
evidence.” Indeed, our Supreme Court has explained that “[e]vidence is
relevant when it has any tendency to prove or disprove a consequential fact.
This liberal standard for relevancy sets a low bar, and the trial court enjoys wide
discretion in deciding whether that bar is cleared.” Snow v. State, 77 N.E.3d
173, 177 (Ind. 2017) (quotation marks and citations omitted). However, even if
evidence is relevant, a court may exclude it “if its probative value is
substantially outweighed by a danger of” unfair prejudice. Ind. Evidence Rule
403.
[27] On appeal, Shannon contends that the photographs of the fired cartridges were
irrelevant because “there was no evidence whatsoever of when or how they got
[to] where they were found, who put them there, how long they had been there,
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where they came from, where they had been fired, whether they have even been
fired[,] . . . or why they were there[.]” Appellant’s Br. at 23. Accordingly, he
maintains that there was “simply nothing to make any sense or relevance of the
casings, and consequently virtually no probative value” to them. Id. at 24. In
the alternative, he asserts that, even if the photographs were relevant, the
probative value was substantially outweighed by the danger of unfair prejudice
because there was “certainly the danger that [the jury] would see casings lying
all over and be persuaded, on an improper basis, that Mr. Shannon shoots guns
often and therefore must be the shooter in this case.” Id. at 25.
[28] However, we need not decide whether the trial court erred when it admitted the
photographs of the fired cartridges because any error in the admission of that
evidence was harmless. It is well settled “that a claim of error in the admission
or exclusion of evidence will not prevail on appeal ‘unless a substantial right of
the party is affected.’” Troutner v. State, 951 N.E.2d 603, 612 (Ind. Ct. App.
2011) (quoting Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005)), trans. denied.
That is, “even if the trial court errs in admitting or excluding evidence, this
Court will not reverse the defendant’s conviction if the error is harmless.”
Caesar v. State, 139 N.E.3d 289, 292 (Ind. Ct. App. 2020), trans. denied. An error
in the admission of evidence is harmless where the “probable impact” of the
erroneously admitted evidence, “in light of all the evidence in the case, is
sufficiently minor so as not to affect the substantial right” of the defendant.
Ind. Appellate Rule 66(A).
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[29] Here, the evidence demonstrates that, following a conversation with
McClendon during which McClendon told Shannon that he did not “get what
he wanted” from Dowell, Shannon changed into all black clothes and used a
mask to hide a portion of his face. Tr. Vol. III at 178, 215. Shannon then
exited his apartment.
[30] The evidence further demonstrates that, a few minutes after McClendon had
exited Dowell’s car, a man dressed in a black hoodie and black mask
approached the car, opened the rear passenger side door, pointed a gun at
Dowell, and asked: “[h]ave you ever been robbed before.” Tr. Vol. II at 196.
At that point, the man in the mask hit Dowell in the face with a gun and
reached down to grab the marijuana. During that struggle, the man’s mask was
pulled down, and Carson observed that the assailant had “gold teeth.” Id. at
198. Dowell then suddenly put the car in drive, at which point the man in the
mask stumbled and shot Dowell in the back, killing him. Carson then observed
the assailant run toward Shannon’s apartment.
[31] Further, Palmer testified that, a few minutes after Shannon and McClendon
had left the apartment, Shannon returned and told Palmer that he “had to shoot
him because he was going to ride off” with McClendon. Tr. Vol. III at 184. In
addition, Officer Humphrey testified that, after officers had reviewed the
security footage, he approached Shannon’s apartment and observed marijuana
on the table.
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[32] And Kistner testified that, during a search of Shannon’s apartment, officers
found a 9-millimeter pistol hidden in a vacuum, which a firearms examiner
confirmed was used to shoot Dowell. Kistner also testified that she found a
gold mouthpiece, which Crispin testified contained Shannon’s DNA. Further,
Kistner testified that she found a plastic bag with residue from “green
vegetation” and the remnants of what appeared to be marijuana in the toilet.
Id. at 43.
[33] In light of all of the evidence before the court, we can say with confidence that
the probable impact of the photographs of the fired cartridges that officers had
found in and around Shannon’s apartment was sufficiently minor so as not to
affect Shannon’s substantial rights. See Caesar, 139 N.E.3d at 292.
Accordingly, we conclude that any error in the court’s admission of that
evidence was harmless.
Issue Three: Jury Instruction
[34] Shannon also asserts that the trial court abused its discretion when it declined to
instruct the jury on reckless homicide as a lesser included offense to murder.
“Instructing the jury is a matter within the discretion of the trial court, and we’ll
reverse only if there’s an abuse of discretion.” Cardosi v. State, 128 N.E.3d 1277,
1284 (Ind. 2019). “[W]e look to whether evidence presented at trial supports
the instruction and to whether its substance is covered by other instructions.”
Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019).
[35] Further,
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[w]hen a defendant requests an instruction covering a lesser-
included offense, a trial court applies the three-part analysis set
forth in Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). The
first two parts require the trial court to determine whether the
offense is either inherently or factually included in the charged
offense. Id. If so, the trial court must determine whether there is
a serious evidentiary dispute regarding any element that
distinguishes the two offenses. Id. at 567; see also Brown v. State,
703 N.E.2d 1010, 1019 (Ind. 1998). Wright held that, “if, in view
of this dispute, a jury could conclude that the lesser offense was
committed but not the greater, then it is reversible error for a trial
court to not give an instruction, when requested, on the
inherently or factually included lesser offense.” Wright, 658
N.E.2d at 567. Where a trial court makes such a finding, its
rejection of a tendered instruction is reviewed for an abuse of
discretion. Brown, 703 N.E.2d at 1019.
Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002).
[36] Murder is defined as a person who “knowingly or intentionally kills another
human being.” Ind. Code § 35-42-1-1(1) (2020). And reckless homicide is
defined as a person who “recklessly kills another human being.” I.C. § 35-42-1-
5. The only distinguishing feature in the elements of murder and reckless
homicide is the mens rea required of each offense. McDowell v. State, 102 N.E.3d
924, 931 (Ind. Ct. App. 2018). Reckless homicide is therefore an inherently
included offense of murder. Id.
[37] On appeal, Shannon asserts that there was a serious evidentiary dispute as to
whether he had knowingly or recklessly shot Dowell. Specifically, Shannon
contends that Carson’s testimony demonstrates that he only shot Dowell when
the car “suddenly lurched forward,” which caused him to “stumble and fall,” at
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which point the gun “discharged.” Appellant’s Br. at 19. Accordingly,
Shannon asserts that, while it was “reckless and dangerous” for him to point a
loaded gun at Dowell, Carson’s testimony demonstrates that he had “no known
intention to shoot the driver” and no “knowledge that it was happening or
going to happen.” Id. at 21.
[38] However, the undisputed evidence demonstrates that Shannon shot Dowell
during the commission of a robbery. Based on that fact, the State also charged
Shannon with felony murder, which is defined as a person who “kills another
human being while committing or attempting to commit” robbery. I.C. § 35-
42-1-1(2). In order to prove that Shannon had committed felony murder, “the
State need not prove that [Shannon] acted with any particular mental state—the
killing could be totally accidental—so long as the State does prove that the
killing occurred while [Shannon] was committing (or attempting to commit) a
specified felony.” Thomas v. State, 827 N.E.2d 1131, 1133 (Ind. 2005).
[39] Here, even if Shannon had only shot Dowell accidentally, he would still be
guilty of felony murder, not reckless homicide. As such, he would not be
entitled to the instruction on reckless homicide unless he could additionally
show that there was a serious evidentiary dispute as to whether the shooting
occurred during the commission of an armed robbery. But Shannon does not
make any such argument on appeal. Rather, he disregards the fact that he shot
Dowell while robbing Dowell of $600 worth of marijuana. Shannon has failed
to acknowledge that the killing occurred during the commission of a robbery
and, thus, has failed to present an argument supported by cogent reasoning on
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this issue. Accordingly, this issue is waived. 2 We therefore affirm the court’s
denial of his proffered jury instruction.
Issue Four: Sufficiency of the Evidence
[40] Finally, Shannon contends that the State failed to present sufficient evidence to
support his convictions. Our standard of review on a claim of insufficient
evidence is well settled:
For a sufficiency of the evidence claim, we look only at the
probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh the evidence.
We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable
doubt. Id.
Love v. State, 73 N.E.3d 693. 696 (Ind. 2017).
[41] To convict Shannon of murder, the State was required to prove that he had
knowingly or intentionally killed Dowell. I.C. § 35-42-1-1(a). And to convict
Shannon of robbery, the State was required to prove that he had knowingly or
intentionally taken property from Dowell or from Dowell’s presence by using or
threatening the use of force. I.C. § 35-42-5-1(a)(1).
2
Had the State charged Shannon only with murder, his argument regarding a jury instruction on the lesser
included offense based on a serious evidentiary dispute might have been plausible. But, here, the murder and
the felony murder charges are intertwined, and Shannon does not dispute that Dowell was killed during the
commission of a felony. Thus, the trial court correctly declined to give Shannon’s proffered jury instruction
on reckless homicide.
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[42] On appeal, Shannon contends that the State presented insufficient evidence to
support his convictions for murder and robbery because the State failed to
establish his identity as the offender. In the alternative, he contends that the
State failed to present sufficient evidence to support his conviction for murder
because the State failed to demonstrate that he had knowingly killed Dowell.
We address each argument in turn.
Identity
[43] Shannon first asserts that the State presented insufficient evidence to prove that
he was the individual who had committed the offenses. Specifically, Shannon
asserts that Carson described the shooter as “tall,” “dark skinned,” “large,” and
“old,” but that Shannon is 21 years old, 5’9”, and 180 pounds, and his booking
picture “shows an obviously young-looking face.” Appellant’s Br. at 27, 28.
Shannon also asserts that Carson “could not identify anyone as the shooter
from a photo array that included Mr. Shannon’s picture.” Id. at 28. Further,
Shannon contends that Palmer testified that Shannon “got dressed in ‘all
black’” clothing but that the video footage showed that the shooter was wearing
“light-colored pants.” Id. at 29, 30 (emphasis in original). Accordingly,
Shannon contends that both of the State’s star witnesses “gave testimony clearly
showing that Mr. Shannon and the shooter were two completely different
people.” Id. at 30. In addition, Shannon contends that Palmer’s testimony
could not be believed as “she had [a] motive to fabricate” her testimony. Id.
And Shannon contends that he was “excluded from all fingerprints examined
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from the crime scene” and that his DNA “was not found on anything related to
or used in the crime,” other than the gold mouthpiece. Id. at 32.
[44] However, the evidence most favorable to the trial court’s judgment
demonstrates that, after McClendon told Shannon that he did not get what he
wanted from Dowell, Shannon changed into black clothes, put a mask over his
face, and left his apartment. Further, Carson testified that, a few minutes after
McClendon had exited the car, a man dressed in a black hoodie and black mask
approached Dowell’s car, opened the rear driver’s side door, and pointed a gun
at Dowell. The man in the mask then hit Dowell in the face with the pistol and
reached toward Dowell’s left pocket to get the marijuana. Carson also testified
that, during the struggle, the man’s mask got pulled down, and Carson observed
that the man had “gold teeth.” Tr. Vol. II at 198. The driver then put the car in
drive and drove off, at which point the man shot Dowell, killing him. And
Carson testified that, following the incident, he observed the shooter run toward
Shannon’s apartment.
[45] Further, Palmer testified that, a few minutes after Shannon had exited his
apartment, he returned and told Palmer that he “had to shoot him because he
was going to ride off” with McClendon. Tr. Vol. III at 184. The evidence also
demonstrates that, when officers first investigated the incident, officers observed
marijuana on a table in Shannon’s apartment. Then, during the subsequent
search of Shannon’s apartment, officers found the gun that was used to shoot
Dowell, a gold mouthpiece that contained Shannon’s DNA, residue from
marijuana in a plastic bag, and remnants of marijuana in a toilet.
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[46] Based on that evidence, a reasonable jury could conclude that Shannon was the
person who had robbed and killed Dowell. Shannon’s arguments on appeal are
merely a request that we reweigh the evidence, which we cannot do. We hold
that the State presented sufficient evidence to demonstrate that Shannon was
the perpetrator of the offenses.
Knowingly
[47] Shannon also contends that, even if the State presented sufficient evidence to
demonstrate that he was the offender, the State failed to prove that he had
knowingly killed Dowell. 3 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).
[48] On appeal, Shannon contends that he was “compelled by” the motion of the car
to shoot the gun because the movement of the car caused him “to lose his
balance and squeeze the trigger.” Appellant’s Br. at 31. In other words, he
contends that the evidence demonstrates that it was “not a conscious choice”
but rather the “physics of a moving car” that caused him to discharge the gun.
Id. at 32.
[49] However, the evidence demonstrates that Shannon pointed a loaded firearm at
Dowell in an attempt to rob him of $600 of marijuana. Further, Palmer
3
In the Information, the State only asserted that Shannon had knowingly killed Dowell. See Appellant’s
App. Vol. II at 36.
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testified that, when Shannon returned to his apartment, he told Palmer that “he
had to shoot him because he was going to ride off” with McClendon. Tr. Vol.
III at 184. Based on that evidence, a reasonable jury could conclude that
Shannon had knowingly killed Dowell. Again, Shannon’s arguments on this
issue are a request that we reweigh the evidence, which we cannot do. The
State presented sufficient evidence to support Shannon’s conviction for murder.
Conclusion
[50] In sum, we hold that Shannon lacked standing to challenge any evidence
derived from Palmer’s recorded phone call because he was neither a party to the
conversation nor the target of any interception. We also hold that any error in
the trial court’s admission of photographs of fired cartridges that officers had
found in and around Shannon’s apartment was harmless in light of the totality
of evidence against him. Further, we hold that Shannon failed to present a
cogent argument as to whether he was entitled to a jury instruction on reckless
homicide. And we hold that the State presented sufficient evidence to establish
that Shannon was the individual who had robbed and killed Dowell and to
demonstrate that Shannon had knowingly killed Dowell. We therefore affirm
Shannon’s convictions.
[51] Affirmed.
Kirsch, J., and Brown, J., concur.
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