MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 22 2017, 6:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christian James Cain, June 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2562
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1601-MR-3840
Bailey, Judge.
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Case Summary
[1] Christian James Cain (“Cain”) appeals his convictions for Murder, a felony, 1
and Possession of a Handgun by a Serious Violent Felon, a Level 4 felony. 2 We
affirm.
Issues
[2] Cain presents three issues for review:
I. Whether the trial court abused its discretion in the
admission of evidence;
II. Whether the convictions are supported by sufficient
evidence; and
III. Whether Cain was properly sentenced.
Facts and Procedural History
[3] In 2014, twenty-year-old Ariana Cheeks (“Cheeks”) was romantically involved
with Cain’s brother, Cory Cain (“Cory”). In April of 2014, Cain’s mother,
Vivian Cain (“Vivian”), filed a police report accusing Cheeks of stealing her
1
Ind. Code § 35-42-1-1.
2
I. C. § 35-47-4-5.
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bank card and withdrawing money from her account. At the time of the alleged
theft, Cain was incarcerated. He was released to parole in October of 2014.
[4] During the evening of December 11, 2014, Cain visited a friend, Monterio
Mack (“Mack”). Cain angrily claimed “the bitch took his momma’s credit card
with some money on it.” (Tr. Vol. II pg. 112.)
[5] The following day, at around 6:00 p.m., Cheeks and her brother Daniel Baxter
(“Baxter”) were at their Indianapolis home with the front door closed and
locked. Baxter heard a rattling sound at the door and Cheeks approached the
door. Baxter heard approximately seven gunshots and saw bullets coming
through the walls. Cheeks, who had been shot in the chest, collapsed in
Daniel’s arms.
[6] Neighbors Charles Gilbert and Rodney Evans (“Evans”) were walking home
when they heard gunshots. They saw someone in a black hoodie run past
them, jump into a small gold vehicle, and drive away rapidly “spinning their
tires.” (Tr. Vol. II pg. 29.) Almost immediately afterward, Baxter banged on
Evans’s door and asked to call 9-1-1 because his sister had been shot. When
police arrived, they discovered that Cheeks was deceased.
[7] After dark that evening, Cain arrived at Mack’s house. He was driving a gold
car. Cain, who seemed to be out of breath, reported to Mack, “I did it.” (Tr.
Vol. II pg. 96.) Cain elaborated that he had knocked on the door and when
someone responded, he shot. Cain did not specifically identify his target, but
Mack understood it to be Cheeks due to the earlier allegation of theft.
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[8] Cain also visited the Cheeks residence, dressed in black and driving Vivian’s
gold Impala. He asked Baxter “what was going on” and Baxter replied that
Cheeks had been shot. (Tr. Vol. II pg. 81.) Baxter invited Cain inside, but Cain
declined the invitation and immediately left.
[9] Cain went to see his former girlfriend, Daniesha Miller (“Miller”). Cain told
Miller that he was the person who shot Cheeks. He said that the bullets had
been fired through a door.
[10] One week after the shooting, Cain purchased a gun from Mack. On January 8,
2015, Cain was arrested on an unrelated matter. During his incarceration, Cain
spoke with Mack during recorded telephone calls. In one call, Mack stated that
Cain probably thought he was being arrested for the “M” when police arrived,
and Cain responded affirmatively. (State’s Ex. 86.) Mack asked whether police
had found the “whatchamacallit,” and Cain responded in the negative. (State’s
Ex. 86.)
[11] On January 29, 2016, Cain was charged with Cheeks’ murder and illegal
possession of a handgun. He waived his right to a jury trial, and his bench trial
commenced on September 28, 2016. Cain was found guilty as charged. On
October 19, 2016, the trial court imposed upon Cain consecutive sentences of
fifty-eight years for murder and ten years for the handgun conviction. He now
appeals.
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Discussion and Decision
Admission of Evidence
[12] The State’s theory of motive was that Cain believed Cheeks had stolen money
from Vivian. Without objection, the State elicited testimony from Mack that
Cain had angrily complained of “a bitch [taking] his momma’s credit card.”
(Tr. Vol. II pgs. 112-13.) Miller also testified, without objection, that there had
been a theft involving Vivian Cain’s credit card, Cory used the money to buy
Cheeks a car, and Vivian had intended the money to be saved for Cain.
However, when the State attempted to elicit testimony as to who relayed this
information to Miller, Cain lodged a hearsay objection. The State responded
that the evidence was not being offered for the truth of the matter, and the trial
court permitted Miller to testify that Vivian had told her that Cheeks and Cory
stole money that was being held for Cain during his incarceration.
[13] Subsequently, Detective Dutrieux testified, without objection, that Vivian had
filed a police report in April of 2014. When the State moved to admit the police
report, Cain objected, again on hearsay grounds. The trial court admitted the
police report for “the limited purpose of the fact the report was filed.” (Tr. Vol.
II pg. 240.) The court observed that the truth or falsity of the internal allegation
– that Cheeks stole from Vivian – was not relevant; rather, the relevance was
whether Cain’s belief of theft was formed and provided motive.
[14] We reverse a trial court’s evidentiary ruling where the appellant demonstrates a
manifest abuse of discretion resulting in the denial of a fair trial. State v. Hunter,
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898 N.E.2d 455, 457 (Ind. Ct. App. 2008). We consider only the evidence in
favor of the evidentiary ruling and the unrefuted evidence in the appellant’s
favor. Id.
[15] Cain argues that the testimony describing Vivian’s allegation and the police
report were inadmissible hearsay not excepted by Indiana Rule of Evidence
803. The State responds that the challenged evidence is not hearsay and thus
the exceptions of Rule 803 are not implicated. We agree with the State.
[16] Evidence Rule 801 defines hearsay as a statement that: “(1) is not made by the
declarant while testifying at the trial or hearing; and (2) is offered in evidence to
prove the truth of the matter asserted.” Here, the trial court, also the finder-of-
fact, specified that the content of the police report and the content of Vivian’s
allegation were not admitted into evidence for the truth of the assertions. The
trial court explicitly observed that it was irrelevant whether Cheeks had in fact
committed a theft; however, the fact that Vivian had made such allegations was
relevant to motive. Because the challenged evidence was not “offered … to
prove the truth of the matter asserted,” Evid. Rule 801, it was not hearsay.
Cain has demonstrated no abuse of discretion in the admission of evidence.
Sufficiency of the Evidence
[17] Cain contends that the State failed to present sufficient evidence of probative
value to support either his conviction for Murder or Possession of a Handgun
by a Serious Violent Felon.
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[18] Pursuant to Indiana Code Section 35-42-1-1, a person who knowingly or
intentionally kills another human being commits murder. The State alleged
that Cain knowingly killed Cheeks. Pursuant to Indiana Code Section 35-47-4-
5(c), a serious violent felon who knowingly or intentionally possesses a firearm
commits unlawful possession of a firearm by a serious violent felon. The State
alleged that Cain is a serious violent felon after having been convicted of
Battery, as a Class C felony, and that he possessed a handgun after that
conviction.3 We will affirm a conviction unless no rational fact-finder could
have found the defendant guilty beyond a reasonable doubt. Tuggle v. State, 9
N.E.3d 726, 736 (Ind. Ct. App. 2014).
[19] Cain concedes that the State presented testimony that he confessed to killing
Cheeks. He also concedes that Mack testified that he sold a gun to Cain
approximately one week after Cheeks’ shooting. Nonetheless, Cain asserts that
the testimony of these witnesses should be discarded under the incredible
dubiosity rule. Cain asserts that Miller was a reluctant witness who provided
contradictory deposition testimony and was “coerced” by subpoena to testify.
Appellant’s Br. at 27. He further asserts that Mack was a criminal “coerced
through his need to escape his own criminal prosecution.” Appellant’s Br. at
28.
3
Cain conceded at trial that he had a prior conviction for Battery, as a Class C felony.
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[20] Our supreme court has recently defined and clarified the scope of the incredible
dubiosity rule in Moore v. State, 27 N.E.3d 749 (Ind. 2015). The Indiana
Supreme Court stated: “Under this rule, a court will impinge on the jury’s
responsibility to judge the credibility of the witnesses only when it has
confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly
uncorroborated testimony of ‘incredible dubiosity.’” Id. at 755 (quoting Tillman
v. State, 642 N.E.2d 221, 223 (Ind. 1994). The incredible dubiosity rule applies
only ‘“where a sole witness presents inherently contradictory testimony which is
equivocal or the result of coercion and there is a complete lack of circumstantial
evidence of the appellant’s guilt.”’ Id. (quoting Tillman, 642 N.E.2d at 223)
(emphasis in original).
[21] This is not a case in which the State presented a sole witness whose testimony
was uncorroborated. Mack testified concerning Cain’s possession of a weapon,
both before and after the shooting. The State also presented photographic
evidence of Cain in possession of firearms. Mack testified that Cain had been
angry because of an alleged theft from his mother and he had showed up on the
evening of Cheek’s murder claiming that he “did it.” (Tr. Vol. II pg. 96.)
Miller testified that Cain had confessed to shooting Cheeks. She related Cain’s
report that he had shot through a door. This was corroborated by the physical
evidence obtained at the scene and by Baxter’s testimony. Also, Cheeks’
neighbors described seeing someone dressed in black flee in a gold vehicle
immediately after the shots were fired. Baxter testified that Cain had been
dressed in black and driving a gold vehicle on the evening of the shooting.
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[22] In sum, there were multiple witnesses who provided corroborated testimony.
To the extent that Cain suggests some witnesses had their own motivation for
testifying, such does not satisfy the criteria for application of the incredible
dubiosity rule. We will not reweigh the credibility of multiple witnesses.
[23] Cain also argues that, even if the witnesses against him are to be believed, the
State at most established his commission of reckless homicide, a lesser included
offense of murder. The element that distinguishes murder and reckless
homicide is the level of mens rea required. Sanders v. State, 704 N.E.2d 119, 122
(Ind. 1999). Either an intentional or a knowing killing is required for a murder
conviction. Ritchie v. State, 809 N.E.2d 258, 270 (Ind. 2004). Here, the State
charged that Cain acted knowingly. 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. Id.; I. C. § 35-41-2-2(b). A person engages in conduct “recklessly” if
he engages in the conduct in plain, conscious, and unjustifiable disregard of
harm that might result and the disregard involves a substantial deviation from
acceptable standards of conduct. I. C. § 35-41-2-2(c).
[24] The intent to commit murder can be inferred from the use of a deadly weapon
in a manner likely to cause death or serious injury. Williams v. State, 700
N.E.2d 784, 787 (Ind. 1998). The evidence most favorable to the murder
conviction suggests that Cain lured his victim to the door by rattling or
knocking on the door, and he then fired three shots into the door. Several other
shots were fired through the windows on either side of the door. This evidence
is sufficient to permit the fact-finder to conclude that Cain knowingly killed
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Cheeks. There is sufficient evidence to support Cain’s convictions for murder
and possession of a handgun by a serious violent felon.
Sentencing
[25] Indiana Code Section 35-50-2-3 provides that a person convicted of murder
faces a sentencing range of forty-five to sixty-five years, with the advisory
sentence being fifty-five years. Indiana Code Section 35-50-2-5.5 provides that
a person convicted of a Level 4 felony faces a sentencing range of two years to
twelve years, with the advisory sentence being six years. In imposing
consecutive sentences of fifty-eight years and ten years, respectively, the trial
court found one mitigating circumstance, Cain’s family history, and several
aggravators: criminal history, violation of parole, and endangerment of others
by firing numerous shots into an occupied residence.
[26] Cain contends that the trial court abused its discretion by recognizing improper
aggravators and imposed consecutive sentences in reliance upon those improper
aggravators. He also contends that his aggregate sixty-eight-year sentence is
inappropriate.
Abuse of Discretion
[27] Sentencing decisions are within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. However, a trial court may be found to have abused its sentencing
discretion in a number of ways, including: (1) failing to enter a sentencing
statement at all; (2) entering a sentencing statement that explains reasons for
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imposing a sentence where the record does not support the reasons; (3) entering
a sentencing statement that omits reasons that are clearly supported by the
record and advanced for consideration; and (4) entering a sentencing statement
in which the reasons given are improper as a matter of law. Id. at 490-91. The
reasons or omission of reasons given for choosing a sentence are reviewable on
appeal for an abuse of discretion. Id. at 491. The weight given to those reasons,
i.e. to particular aggravators or mitigators, is not subject to appellate review. Id.
[28] Cain asserts that the number of shots fired should not have been considered in
aggravation of his sentence for murder. According to Cain, this is evidence of
his recklessness and militates toward leniency in sentencing. We have rejected
Cain’s argument that he acted with mere recklessness, supra. Moreover,
although Cain killed Cheeks by firing a gunshot, he fired several shots in
addition to the fatal one. In so doing, he endangered at least one person other
than his murder victim. A trial court may consider the particularized
circumstances of a crime as an aggravator. Gellenbeck v. State, 918 N.E.2d 706,
712 (Ind. Ct. App. 2009). Cain has shown no abuse of discretion in this regard.
[29] Cain also argues that the trial court abused its discretion by using his 2013
battery conviction to aggravate his instant sentences. He observes that the
battery conviction was the same conviction used to establish that he is a serious
violent felon.
[30] In its sentencing statement, the trial court said:
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A significant aggravator for this one [case], however, is the
conviction for the battery, in the sense that it was a crime of
violence and was done by means of a deadly weapon, although I
think in that case the deadly weapon was brass knuckles as
opposed to a weapon.
(Tr. Vol. III pgs. 34-35.)
[31] In Hatchett v. State, 740 N.E.2d 920 (Ind. Ct. App. 2000), trans. denied, a panel of
this Court held that a defendant who had been convicted of being a serious
violent felon in possession of a firearm could not have his sentence enhanced by
the same prior conviction that formed the basis of the firearm charge. The
Court noted that a factor that constitutes a material element of a crime cannot
be considered as an aggravating factor. Id. at 928. See also Shell v. State, 927
N.E.2d 413 (Ind. Ct. App. 2010) (it was improper to rely upon a prior dealing
conviction as an aggravating factor, where the defendant’s conviction for being
a serious violent felon in possession of a firearm was based on that dealing
conviction).
[32] Here, Cain’s conviction for being a serious violent felon in possession of a
firearm was based on his 2013 battery conviction. To the extent that the trial
court relied upon the battery conviction to enhance the sentence for possession
of a firearm by a serious violent felon, it was improper. However, the trial court
was free to consider the remainder of Cain’s criminal history. He has been
adjudicated delinquent on three occasions. He has had convictions for carrying
a handgun without a license, possession of marijuana, criminal conversion, and
criminal trespass. He was on parole when he committed the instant offenses.
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Moreover, in addition to Cain’s criminal history and failure of rehabilitative
efforts, he has had numerous other contacts with the criminal justice system
that did not result in convictions.
[33] When a trial court has abused its sentencing discretion in some regard, remand
for resentencing is not required if the reviewing court can say with confidence
that the trial court would have imposed the same sentence based upon proper
consideration of the reasons supported by the record. Anglemyer, 868 N.E.2d at
491. Here, in light of Cain’s criminal history and the circumstances of his
crimes, we are confident that the trial court would have imposed the ten-year
sentence for possession of a handgun by a serious violent felon absent
consideration of the battery conviction. A remand for reconsideration of
aggravating and mitigating circumstances is not warranted.
Consecutive Sentences
[34] The decision to impose consecutive or concurrent sentences is within the trial
court’s sound discretion and is reviewed only for an abuse of discretion.
Gellenbeck, 918 N.E.2d at 712. Although a trial court is required to state its
reasons for the imposition of consecutive sentences, it may rely upon the same
reasons to impose an aggravated sentence and to impose consecutive sentences.
Id. Here, the trial court did not articulate separate reasons for the consecutive
sentences. Cain asserts that the trial court “by relying on the two invalid
aggravating circumstances … abused its discretion in entering consecutive
sentences.” Appellant’s Brief at 41.
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[35] We have concluded that only one aggravating circumstance was improperly
found, and that only as to the conviction for possession of a firearm by a serious
violent felon. There remain valid aggravating circumstances recognized by the
trial court, including criminal history, failure of rehabilitative efforts, and
particularized circumstances of the murder. A single aggravating circumstance
may support the imposition of consecutive sentences. Hampton v. State, 873
N.E.2d 1074, 1082 (Ind. Ct. App. 2007). We conclude that the trial court did
not abuse its discretion in imposing consecutive sentences.
Appropriateness of Sentence
[36] Under Indiana Appellate Rule 7(B), this “Court 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.” In performing our review, we assess “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). The principal role of such review is
to attempt to leaven the outliers. Id. at 1225.
[37] When considering whether a sentence is inappropriate, we need not be
“extremely” deferential to a trial court’s sentencing decision, but we accord due
consideration to that decision, recognizing the unique perspective of the trial
court. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
Accordingly, a defendant ‘“must persuade the appellate court that his or her
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sentence has met th[e] inappropriateness standard of review.”’ Anglemyer, 868
N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
In conducting our independent review, we “should focus on the forest – the
aggregate sentence – rather than the trees – consecutive or concurrent, number
of counts, or length of the sentence on any individual count.” Cardwell, 895
N.E.2d at 1225.
[38] As to the nature of the offense of murder, Cain made sounds luring his victim to
her front door. He then fired at least seven shots into a dwelling where Cheeks
lived with her four-year-old child, her mother, and her brother. This was
apparently in retaliation for an alleged theft. As to possession of a handgun by
a serious violent felon, Cain possessed more than one handgun after he had
been convicted of Battery, as a Class C felony. Within the month prior to
Cheeks’ murder, Cain had been photographed displaying handguns.
[39] As to the character of the offender, Cain joined a gang, the Street Family. He
has not attained a high school diploma, a GED, or gainful employment. He
has a history of criminal activity without interruption. He was adjudicated
delinquent on multiple occasions, for having committed acts that would be
conversion, trespass, theft, and intimidation if committed by an adult. As an
adult, Cain was twice convicted of possession of marijuana. He was convicted
of trespass, carrying a handgun without a license, and battery. The battery was
committed upon a woman who had testified against Cain in a former murder
trial, where he was acquitted. An evidentiary exhibit presented at the
sentencing hearing indicated that Cain’s act of retaliation included stomping on
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the victim’s face, kicking her in the chest, and punching her in the head while
he was wearing brass knuckles.
[40] Cain was on parole when he committed the instant offenses. He has in the past
violated conditions of probation and a community corrections placement.
During his current incarceration in the Department of Correction, he accrued
ten misconduct reports. In sum, the nature of Cain’s offenses and what is
known of his character do not militate toward a lesser sentence than that
imposed.
[41] Having reviewed the matter, we conclude that the trial court did not impose an
inappropriate sentence under Appellate Rule 7(B), and the sentence does not
warrant appellate revision.
Conclusion
[42] Cain has not shown that the trial court abused its discretion in the admission of
evidence or in sentencing Cain. Cain’s convictions are supported by sufficient
evidence of probative value. His aggregate sixty-eight-year sentence is not
inappropriate.
[43] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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Christian James Cain v. State of Indiana (mem. dec.)
Combined Opinion