COA: Reasonable probability phone belonged to Indy man in drive-by shooting case

The admission of a cellphone confiscated at the same time an Indianapolis man was arrested for aiding a criminal in a drive-by shooting was not an error, the Indiana Court of Appeals ruled Tuesday in affirming his felony conviction.

After back-and-forth badmouthing about each other over social media, relatives Jada, Aubrieanna and Rashade Duerson were prepared to fight with their cousins, Damon Jones and Kevin Calvert.

Videos livestreamed on Facebook showed Jones talking negatively about the Duersons, and Jada responding in turn, which resulted in a planned meeting where Jada and Jones’ girlfriend were intended to fight each other at 28th and Dearborn streets in Indianapolis.

Right before the fight, Jones, as a passenger in a vehicle driven by Calvert, shot at and hit Jada in the arm, grazing Aubrieanna in the chest. Calvert was subsequently charged with Level 6 felony assisting a criminal and being a habitual offender. When U.S. Marshals later apprehended him, they also seized a Samsung cellphone at the house he was located at.

Search warrants for the Samsung and Damon’s phone were granted, which revealed  Damon’s phone had a contact for a person named “K.J.”—Clavert’s nickname— with the same number as the Samsung cell phone; both phones called each other several times before the shooting; and both phones were near the scene of the shooting at the time of the shooting.

Despite the defense counsel’s objection to the admission of that evidence as “meaningless,” the trial court granted its admission and a jury found Calvert guilty of the felony. He admitted to being a habitual offender and the trial court sentenced Calvert to five years behind bars.

The Indiana Court of Appeals affirmed in Kevin Antwon Calvert v. State of Indiana, 21A-CR-00875, finding the trial court did not abuse its discretion in admitting the Samsung cell phone and related records.

“Kevin points out the phone was ‘registered’ to someone other than him, but such information goes only to the weight of the evidence, not its admissibility,” Judge Nancy Vaidik wrote for the appellate court. “And defense counsel argued during closing argument the jury should give no weight to the phone. Nevertheless, the jury found Kevin guilty of assisting Damon.”

It also declined to accept Calvert’s argument that the trial court erred in not instructing the jury its verdict had to be unanimous as required by the Indiana Supreme Court in Baker v. State, 948 N.E.2d 1169 (Ind. 2011).

The COA specifically did away with his argument that the trial court should have given a Baker-type instruction because, based on the “and/or” language in the assisting-a-criminal instruction, “it is entirely possible that some of the jury members decided [Kevin] was guilty of assisting [Damon] commit the battery while other jury members found him to be guilty of assisting [Damon] commit criminal recklessness.”

“To convict Kevin of Level 6 felony assisting a criminal, the State had to prove Damon committed a Level 3, 4, 5, or 6 felony. Because the State was permitted to present the jury with alternative ways to find Kevin guilty as to this element, the jury did not have to unanimously decide whether Damon committed Level 5 felony battery or Level 5 felony criminal recklessness,” it concluded.

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