Virgil L. King, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Daqwan Walker was shot and killed in front of his home. After investigating the murder scene, law enforcement officers found Micah Sanders and Virgil King hiding in a nearby apartment. Sanders and King were later charged with Walker's murder. At trial, the State presented substantial evidence linking King to one of the firearms used to kill Walker. King was found guilty of murder as well as unlawful possession of a firearm and sentenced to 55 years of incarceration. King now appeals and presents three issues for our review:

1. Whether the trial court committed fundamental error by allowing a substitute forensic analyst to testify;

2. Whether the State presented sufficient evidence to support King's murder conviction; and

3. Whether the trial court considered improper aggravators at sentencing.

[2] We affirm.

Facts and Procedural History

[3] On the morning of January 25, 2023, Zsakenja Mathews was at her home in Gary, Indiana, while her son Daqwuan Walker was outside smoking. Mathews then heard “more than ten” gunshots “back to back,” Tr. Vol. II at 199; she went outside, found Walker “laying there mumbling and moaning,” id. at 200, and saw two men running away from the scene. Walker had sustained multiple gunshots wounds and died at the scene. A few blocks away, Albert Smith was preparing for his day when he looked out his window and saw two men wearing hoodies and masks climb the fence into his backyard where his dog was tied to a tether. Smith heard “two pops” and saw the two men run across the street. Tr. Vol. III at 9. Smith walked outside to find that his dog had been shot. Video footage taken from a nearby alleyway on the morning of January 25 showed two men dressed in all black, wearing masks, and going in and out of backyards.

[4] That same morning, Keisha Higgins received a text from her cousin, which said, “Cuz, can [Sanders] come over? He's just getting off work and I'm his ride to pick him up.” Tr. Vol. IV at 148. Higgins agreed that Sanders could come over. Id. at 150. Shortly thereafter, Sanders and King showed up to Higgins's apartment both wearing all black with Sanders in a mask. Higgins, her brother Marvin Lee, and her children were at the apartment when Sanders and King arrived. Initially, Higgins noticed that Sanders and King “[had] guns and they were trying to hide them.” Id. King began “pacing the floor back and forth, looking out the living room window[,] and looking out the kitchen window going back and forth.” Tr. Vol. III at 125.

[5] Back at the crime scenes, law enforcement had responded to calls about the shootings at Walker's and Smith's homes. Using footprints discovered at the scenes and the help of a police K-9 tracking the scent, officers were able to track the shooters’ path to Higgins's apartment where they knocked on the door and announced themselves. As Higgins went to let officers inside, King “tried to prevent [Higgins] from opening the door” and said, “Don't open up the door, they got to have a warrant to come in here.” Tr. Vol. IV at 153. Higgins replied, “No, they don't need no warrant because I'm going to open the door. I don't know what's going on.” Id. Then, Sanders and King continued to “try[ ] to hide their guns and everything,” id., with King hiding a Glock in a laundry basket. King eventually made his way to Higgins's children's bedroom where “he ended up getting in the bed with the kids acting like he lived there.” Tr. Vol. III at 126.

[6] Higgins allowed law enforcement officers to enter the residence, and officers escorted Lee, Sanders, and King out of the apartment in handcuffs, taking them to the police station for questioning. Lee was released after questioning. Two days later, Lee found the Glock that King had hidden in the laundry basket and turned it over to law enforcement. The State charged King with (1) murder, (2) unlawful possession of a firearm by a serious violent felon as a Level 4 felony, (3) unlawful carrying of a handgun as a Level 5 felony, and (4) unlawful carrying of a handgun as a Class A misdemeanor.

[7] At King's four-day jury trial, the State presented ballistics evidence showing that shell casings from two different guns were found near Walker's body, seven casings from a Stoeger and one casing from a Glock. Additionally, Lee testified that King walked into the apartment with the Glock on the morning of the murder. The State called DNA analyst Lindsay Skipton to testify. Her testimony included the following exchange:

Q. Did you complete DNA testing for this case we're here for today?

A. No, I did not.

Q. Who did?

A. Scott Grammar (phonetic) did. He is a coworker of mine at the Indiana State Police Laboratory.

Q. And did you review his work?

A. Yes, I did.

Q. Is that common?

A. Yes. After the completion of all of a case and all of your testing and writing of a report, and all that good stuff, a peer has to review your entire case file and your results and make sure that they are accurate and consistent with the lab's test method.

Q. And why is he not testifying today?

A. I believe he's on vacation.

Tr. Vol. IV at 92. Skipton testified regarding the results of Grammar's testing which included a sample taken from the Glock. The testing revealed that this sample showed “moderate support” that King's DNA was included on Glock. Id. at 118. Ultimately, King was found guilty of murder and unlawful possession of a firearm.

[8] At sentencing the trial court issued the following statement on aggravators and mitigators:

As far as aggravators, I'll find that the -- you have six juvenile adjudications, one misdemeanor, and three felony convictions, and that you violated conditions of probation, parole pardon, community correction placement and/or pretrial release in the past. I do find that the nature and circumstances of the crime to be a significant aggravating factor.

Now, when you talk about mitigators, it's difficult for me to find, because the ones that are statutory I'm just not finding that they fit in this circumstance. But having sat through the trial and the evidence that was presented, I do find that you were significantly less culpable. And if I had to use a mitigator, that would be the most that I could pull at this point.

So I find that the aggravators are outweighed by the mitigators ․

Tr. Vol. V at 101. The trial court sentenced King to 50 years for murder and 5 years for unlawful possession of a firearm by a serious violent felon, for a total of 55 years of incarceration. King now appeals.

Discussion and Decision

1. Any Error in Admitting Skipton's Testimony Was Harmless

[9] King claims that the trial court erred by allowing Skipton to testify. However, at trial, King did not object to Skipton's testimony or any exhibits admitted during her testimony. When a defendant “fails to object” he “waives appellate review.” Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). Consequently, King argues that the trial court committed fundamental error. Fundamental error is a “narrow exception to waiver,” and “[a]n error is fundamental if it ‘made a fair trial impossible’ or constituted a ‘clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.’ ” Id. (quoting Miller, 188 N.E.3d at 874).

[10] King argues that the trial court committed fundamental error by allowing Skipton to testify regarding DNA testing conducted by Grammar, arguing that this testimony violated his right to confrontation under the United States and Indiana Constitutions. Although King points to alleged constitutional errors, “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Koenig v. State, 933 N.E.2d 1271, 1273–74 (Ind. 2010) (citing Debro v. State, 821 N.E.2d 367 (Ind. 2005); Reed v. State, 748 N.E.2d 381, 391 (Ind. 2001)) (applying harmless error analysis to an alleged violation of the United States Constitution); see also Christopher v. State, 248 N.E.3d 1243, 1244–46 (Ind. Ct. App. 2024) (applying harmless error analysis to an alleged violation of the Indiana Constitution), trans. not sought. In conducting a harmless error analysis on an alleged confrontation error, we look to a number of factors, including

the importance of the witness’[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted and, of course, the overall strength of the prosecution's case.

Koenig, 933 N.E.2d at 1273 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

[11] Regardless of whether the trial court erred in allowing Skipton to testify, King has failed to show fundamental error occurred, and the record reveals that any error would be harmless. King argues that “the State's case was threadbare” without Skipton's testimony, Appellant's Br. at 22, and that the DNA evidence is the only evidence suggesting that he had the Glock at the scene of the murder. We cannot agree. The State presented video and testimonial evidence showing that two men matching Sanders's and King's descriptions were near Walker's house around the time he was murdered. Further, ballistics testing showed that Walker was shot with two guns, including the Glock, and Lee testified that King arrived at Higgins's apartment with the Glock in his pocket. We also note that the DNA evidence showed only “moderate support” for the conclusion that King's DNA was included on the Glock, meaning this evidence could have been of limited importance in the jury's determination. Tr. Vol. IV at 118, 123. Based on the foregoing, we conclude that any error in the admission of Skipton's testimony was harmless beyond a reasonable doubt, so we cannot say it was fundamental error for the trial court to allow Skipton to testify about the DNA evidence.

2. The State Presented Sufficient Evidence to Support King's Murder Conviction

[12] King argues that the State presented insufficient evidence at trial to support his murder conviction. Our Supreme Court has recently explained our standard of review for such a claim as follows:

Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that “[i]t is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). “A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising, 226 N.E.3d at 783.

Konkle v. State, --N.E.3d --,2025 WL 782333, at *16 (Ind. 2025).

[13] In order to convict King of murder, the State had to prove beyond a reasonable doubt that King knowingly or intentionally killed Walker. See Ind. Code § 35-42-1-1(1). Notably, “it is well-settled that ‘circumstantial evidence alone’ can sustain a murder conviction.” Hancz-Barron, 235 N.E.3d 1237, 1244–45 (Ind. 2024) (quoting Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016)). Additionally, “[t]hough presence at the scene alone is not sufficient to show guilt beyond a reasonable doubt, a defendant's presence combined with other circumstantial evidence is.” Id. at 1245 (citing Pratt v. State, 744 N.E.2d 434, 436 (Ind. 2001)).

[14] First, King argues that the State failed to provide sufficient evidence because there is “little evidence” linking King to the murder weapon. Appellant's Br. at 24. However, as described above, the record provides ample evidence suggesting that King used the Glock firearm in the commission of the murder. Ballistics evidence taken from the murder scene indicated that Walker had been shot by two firearms, a Glock and a Stoeger. Further, Lee testified that King had the Glock in his pocket while he was in Higgins's apartment shortly after the murder. Thus, the evidence supports the reasonable inference that King had possession of the murder weapon.

[15] Second, King claims that the State failed to prove he murdered Walker because no one witnessed the shooting and “[t]he most that could be said is King was at the scene.” Appellant's Br. at 24. King's presence at the scene, testimony showing he possessed the handgun shortly after the murder, and his attempts to hide himself and the Glock from law enforcement when he arrived at Higgins's apartment are sufficient to support King's guilt. See Hancz-Barron, 235 N.E.3d at 1245. We conclude that the State presented sufficient evidence to support King's conviction for murder.

3. Any Error in Identifying the Nature and Circumstances of King's Offense as an Aggravating Factor Was Harmless

[16] King claims that the trial court erred by identifying improper aggravating circumstances. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023). We also note that the trial court's oral sentencing statement identifies King's lesser culpability as a mitigating factor while its written sentencing statement does not identify any mitigators. “When oral and written sentencing statements conflict, we examine them together to discern the intent of the sentencing court.” Skipworth v. State, 68 N.E.3d 589, 593 (Ind. Ct. App. 2017) (citing Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010)). Based on the trial court's ultimate mitigated sentence and its oral finding that “that the aggravators are outweighed by the mitigators,” Tr. Vol. V at 101, we determine that the trial court's intent was to find King's lesser culpability as a mitigating factor, see Skipworth, 68 N.E.3d at 593.

[17] King challenges only the trial court's finding that the nature and the circumstances of the crime as an aggravating factor. “[W]hen a defendant challenges some, but not all, of the aggravating circumstances found by the trial court, we will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators.” Owens, 210 N.E.3d at 269–70 (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)). The trial court noted two other aggravating factors: (1) King's criminal history and (2) King's multiple probation violations. King had six juvenile adjudications, one misdemeanor conviction, and three felony convictions. As discussed above, the trial court issued King a mitigated sentence. Accordingly, even if the trial court erroneously identified as an aggravating circumstance the nature and circumstances of the crime, any error was harmless because the unchallenged aggravating factors support the mitigated sentence.

Conclusion

[18] Any error that the trial court committed by allowing Skipton to testify or in identifying aggravators was harmless, and the State provided sufficient evidence to convict King of murder. We affirm the trial court on all issues raised.

[19] Affirmed.

Felix, Judge.

Judges Mathias and Foley concur. Mathias, J., and Foley, J., concur.