Terrence D. Wintrode, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Terrence D. Wintrode appeals following his conviction of murder.¹ Wintrode raises two issues on appeal, which we restate as:

1. Whether the trial court committed fundamental error when it admitted two statements from bystanders through the testimony of a police officer; and

2. Whether Wintrode's sentence is inappropriate in light of the nature of his offense and his character.

We affirm.

Facts and Procedural History

[2] In 2017 and 2018, Wintrode dealt marijuana to Robert Giliberto, and Giliberto owed Wintrode $370 from those transactions. In the late afternoon on November 12, 2018, Giliberto received a Snapchat message from Wintrode asking about the money Giliberto owed to Wintrode. At that time, Giliberto was hanging out with Eugene Berry and Brinden Fletcher. Wintrode and Giliberto agreed to meet in the parking lot of a shopping complex in Fort Wayne that contained a Kroger, a Dollar Tree, and a Pizza Hut, so that Fletcher could buy marijuana from Wintrode. Around 5:30 p.m., Berry drove Giliberto and Fletcher to the parking lot to meet Wintrode.

[3] Upon arriving at the parking lot, Wintrode parked his vehicle next to Berry's vehicle and entered Berry's car. Berry sat in the driver's seat, Fletcher sat in the front passenger seat, Giliberto sat in the back seat behind Fletcher, and Wintrode sat in the back seat behind Berry. Wintrode and Fletcher began discussing strains of marijuana, and Fletcher asked Wintrode if he could see the marijuana that Wintrode was selling. Wintrode responded by asking, “Where's the money?” (Tr. Vol. 2 at 213.) Berry heard “the slide of a gun” as soon as Wintrode asked for the money. (Id. at 182.) Someone said, “Oh shit,” and then Wintrode fired shots toward Fletcher. (Id. at 213.) Giliberto jumped on Wintrode to wrestle the gun away from him. Berry, still in the driver's seat, turned around, fired his own gun at Wintrode, opened the back door, and pushed Wintrode out of the vehicle. Berry and Giliberto then drove Fletcher to the hospital, where he was pronounced dead.

[4] Wintrode reentered his vehicle and drove across the parking lot to the Kroger Fuel Center. At the fuel center, Wintrode exited his vehicle and told a nearby woman that he had been shot. The woman directed Wintrode to lay on the ground so she could put pressure on his wounds while someone else called 911. Officer Stephen Ealing of the Fort Wayne Police Department arrived at the fuel center and discovered Wintrode on the ground surrounded by a group of people. Wintrode had gunshot wounds in his abdomen and thigh. Officer Ealing took control of Wintrode's medical care until paramedics arrived and transported Wintrode to the hospital.

[5] Fort Wayne Police interviewed multiple people who had been in the area during the shooting. Jessica Watkins, a Kroger employee, was retrieving carts from corrals in the parking lot at the time of the incident and noticed a vehicle “bouncing” in the parking lot near the Pizza Hut. (Id. at 125.) Watkins heard “popping noises” and then noticed a man stumble out of the back of a small passenger car, climb into another vehicle, and drive away. (Id.) Paul Salas reported he had come to Kroger to return a movie, had observed a dark SUV pull up next to a small passenger car by the Pizza Hut, watched a man get out of the SUV and into the small car, and shortly thereafter, he heard three gunshots. Justin Holland reported he had heard gunfire coming from the parking lot near Pizza Hut and then saw a dark-colored SUV fleeing the scene.

[6] On November 9, 2023, the State charged Wintrode with murder, felony murder,² and Level 2 felony attempted robbery,³ and alleged he was subject to a sentence enhancement for the use of a firearm.⁴ The trial court held a jury trial on March 5, 6, and 7, 2024. When Officer Ryan Nystuen testified at trial, he relayed the statements made by Salas and Holland at the crime scene. Defense counsel did not object to Officer Nystuen's testimony. Wintrode exercised his right to testify. Wintrode admitted that he shot Fletcher, but he asserted he did so in self-defense. The jury found Wintrode committed murder and was eligible for the firearm enhancement, but it acquitted him of the other charges.

[7] The trial court held Wintrode's sentencing hearing on April 19, 2024. After evidence was presented, the trial court found one mitigator – Wintrode's veteran status – and several aggravators, including Wintrode's criminal history, his failure to successfully complete probation in the past, the nature of the offense, and Wintrode's conduct during jail phone calls, when he workshopped false stories to avoid criminal liability and attempted to convince his girlfriend and brother to lie for him during trial. The trial court declined to find Wintrode's mental health to be a mitigator because “there is no nexus [between mental health] and the offense that you've been convicted of.” (Tr. Vol. 3 at 154.) The trial court also noted Wintrode's mental health had not prevented him from being employed or joining the Army. The trial court sentenced Wintrode to sixty years for murder, which the court enhanced by twenty years for the firearm enhancement, for an aggregate sentence of eighty years in the Indiana Department of Correction (“IDOC”).

Discussion and Decision

1. Admission of Evidence

[8] Wintrode argues that the trial court committed fundamental error when it allowed statements made by witnesses Salas and Holland to be presented through the testimony of Officer Nystuen. Trial courts enjoy wide discretion in admitting or excluding evidence. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). We generally review evidentiary decisions under an abuse of discretion standard and will reverse only if the decision is “clearly against the logic and effect of the facts and circumstances.” Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).

[9] However, parties may not raise arguments or objections on appeal that were not raised before the trial court. Finnegan v. State, 201 N.E.3d 1186, 1197 (Ind. Ct. App. 2023), trans. denied; see also Byrd v. State, 592 N.E.2d 690, 691 (Ind. 1992) (“It is well settled that Indiana's appellate courts look with disfavor upon issues that are raised by a party for the first time on appeal or in original actions without first raising the issue at first opportunity in the trial court.”). When a defendant fails to contemporaneously object to evidence presented at trial, he waives his right to challenge the objectionable evidence on appeal. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). Wintrode failed to object to the statements at trial; thus, he has waived this claim of error.

[10] Wintrode may, nevertheless, ask us to review his claim of error if “fundamental error” occurred. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The fundamental error exception is ‘extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.’ ” Delarosa, 938 N.E.2d at 694 (quoting Matthew v. State, 849 N.E.2d 578, 587 (Ind. 2006)). “This exception is available only in ‘egregious circumstances.’ ” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

[11] Here, Wintrode challenges the testimony of Officer Nystuen, who repeated statements made by Salas and Holland at the scene. Officer Nystuen testified that Salas reported he had come to the Kroger shopping complex to return a movie, had noticed a dark-colored SUV pull up next to a small passenger car, had observed a male exit the SUV and enter a passenger car, and then shortly thereafter heard three gunshots. Officer Nystuen testified that Holland reported he came to the Kroger shopping complex and heard gunfire coming from the parking lot. Holland then observed a dark-colored SUV with its door swinging open fleeing out of the north driveway of the parking lot.

[12] Wintrode alleges that testimony included hearsay statements and its admission constituted fundamental error. Hearsay is a statement that “is not made by the declarant while testifying at the trial or hearing and ․ is offered in evidence to prove the truth of the matter asserted.” Ind. Evid. R. 801(c). Hearsay is generally not admissible unless it falls under a hearsay exception. Ind. Evid. R. 802; Stott v. State, 174 N.E.3d 236, 242 (Ind. Ct. App. 2021). The State argues we need not consider whether the challenged statements elicited through Officer Nystuen constituted hearsay because their admission was harmless, and we agree.

[13] A trial court's erroneous evidentiary rulings do “not require reversal if the error was harmless.” Hayko v. State, 211 N.E.3d 483, 491 (Ind. 2023). When we must determine whether an error was harmless, the “probable impact test” of Indiana Appellate Rule 66(A) applies. Id. Under this test, Wintrode bears the burden of showing the impact of the impermissibly admitted hearsay statements “undermines confidence in the outcome of the proceeding below.” See id. at 492. The analysis requires us to review “what was presented to the trier of fact compared to what should have been presented” and to “consider the likely impact of the improperly admitted ․ evidence on a reasonable, average jury in light of all the evidence in the case.” Id. “[T]he error's probable impact is sufficiently minor when – considering the entire record – our confidence in the outcome is not undermined.” Id.

[14] The statements at issue here are unlikely to have had any probable impact on the jurors at Wintrode's trial because they contain very little information that was not admitted by Wintrode on the witness stand. Wintrode acknowledged that he parked next to Berry's car and climbed into it. (Tr. Vol. 3 at 78.) Wintrode admitted that shots were fired when he was in Berry's car. The only other fact asserted in Officer Nystuen's reiteration was that Salas saw a dark-colored SUV with its door swinging open fleeing out of the north driveway of the parking lot – and that fact was testified to by Berry, who was fleeing the scene to get Fletcher to a hospital.

[15] Moreover, the central issue at trial was whether Wintrode's shooting of Fletcher occurred in self-defense. Wintrode testified at trial that he intentionally discharged his gun toward Fletcher while inside the car, but he testified that he shot Fletcher in self-defense. Berry and Giliberto both testified that Wintrode shot first. Officer Nystuen testified neither Salas nor Holland indicated he was able to see who was responsible for the shooting in the parking lot. Thus, neither of the alleged hearsay statements could have undermined Wintrode's claim of self-defense. For all these reasons, our confidence in the jury's decision has not been undermined. The challenged statements were harmless, and the trial court did not commit fundamental error when it admitted the statements. See, e.g., J.Q.R. v. State, 252 N.E.3d 919, 929-30 (Ind. 2025) (erroneous admission of evidence was harmless and did not require reversal when other evidence properly admitted demonstrated elements in question).

2. Sentence

[16] Wintrode asserts his eighty-year sentence is inappropriate.⁵ Indiana Appellate Rule 7(B) permits us to perform an independent appellate review and revise a sentence imposed by the trial court 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.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (quoting App. R. 7(B)), clarified on reh'g 875 N.E.2d 218 (Ind. 2007). The trial court has discretion in imposing a sentence and the “court's judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stevenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The primary goal of appellate review is to “leaven the outliers, ․ not to achieve a perceived ‘correct’ result.” Cardwell, 895 N.E.2d at 1225. “Whether a sentence should be deemed inappropriate ‘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.’ ” McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell, 895 N.E.2d at 1224). The appellant bears the burden of persuading us that the sentence is inappropriate under this standard. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[17] “When considering the nature of the offense, we first look to the advisory sentence for the crime.” McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). When a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). The sentencing range for murder is forty-five to sixty-five years, with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3. An additional term between five and twenty years may be added for the firearm enhancement. Ind. Code § 35-50-2-11. The trial court imposed an eighty-year sentence – sixty years for the murder conviction, which the court enhanced by twenty years for the firearm enhancement.

[18] Wintrode concedes the nature of his offense “is, of course, egregious.” (Appellant's Br. at 15.) Wintrode had previously conducted business with Giliberto. Wintrode fired upon Fletcher without warning, and Giliberto believed Wintrode would have fired upon Giliberto and Berry as well if they had not wrestled the gun from Wintrode's hands. Fletcher was only twenty-five-years-old when he was killed by Wintrode, and his murder occurred during a drug deal. The record indicates Wintrode displayed a lack of remorse during trial by smirking at friends and making hand gestures. Fletcher's father testified at Wintrode's sentencing and described the immense pain inflicted upon the Fletcher family by the loss of their son. Given these circumstances, Wintrode's sentence is not inappropriate for the nature of his offense.

[19] Wintrode's character also warrants an enhanced sentence. “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Wintrode has a substantial criminal history, involving four juvenile adjudications as a delinquent for acts that, if committed by an adult, would be crimes – two for theft,⁶ one for disorderly conduct,⁷ and one for false informing.⁸ In all of his juvenile cases, Wintrode failed to successfully complete probation and had to be placed in the Logansport Juvenile Correctional Facility. As an adult, Wintrode has convictions of Level 5 felony sexual misconduct with a minor,⁹ Class B misdemeanor possession of marijuana,¹⁰ and Level 6 felony auto theft.¹¹ Wintrode's probation was revoked to IDOC in his sexual misconduct case. An offender's continued criminal behavior after judicial intervention reveals a disregard for the law that reflects poorly on his character. Kayser v. State, 131 N.E.3d 717, 724 (Ind. Ct. App. 2019).

[20] Further, during this case, Wintrode asked his girlfriend and his brother to perjure themselves at trial to bolster his defense and manipulate the trial court proceedings. Wintrode's conversations over the jail phones, in which he engaged in this behavior, are egregious and reflect very poorly on his character.

[21] As for Wintrode's alleged mental health issues, we note that Wintrode's father testified during sentencing that the two struggle with similar health issues. However, the recorded phone calls from the county jail demonstrate that Wintrode had plans to falsify the breadth of his mental health issues. While Wintrode may deal with mental health issues, the conversations between Wintrode and his girlfriend demonstrate that Wintrode wished to manipulate his competency to achieve an acquittal or a lesser sentence. Wintrode readily agrees to several suggestions by his girlfriend to “play-up” his mental health to be deemed incompetent. (State's Ex. 85 at 10:45). Most unsettling, the pair agreed at trial that telling Wintrode's counsel what they are planning is a bad idea “because obviously he won't follow along with it.” (Id. at 11:38.) Any mental health issues Wintrode may have are insufficient to rehabilitate the damage to his character done by his criminal history and his pre-trial telephone calls. We cannot say Wintrode's sentence is inappropriate. See, e.g., Messel v. State, 80 N.E.3d 230, 233 (Ind. Ct. App. 2017) (affirming as not inappropriate an eighty-year sentence for murder and habitual offender enhancement when crime was “appalling” and defendant had lengthy criminal history), trans. denied.

Conclusion

[22] The trial court did not commit fundamental error by admitting alleged hearsay statements from bystanders through the testimony of Officer Nystuen because those statements were harmless and did not undermine our confidence in the jury's decision. Furthermore, the sentence imposed by the trial court was not inappropriate in light of the nature of Wintrode's offense and his character. We accordingly affirm his conviction and sentence.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1). The jury also determined Wintrode was subject to a sentence enhancement because he committed his crime using a firearm, see Ind. Code § 35-50-2-11, but Wintrode does not challenge that determination on appeal.

2.   Ind. Code § 35-42-1-1(2).

3.   Ind. Code §§ 35-42-5-1; 35-41-5-1.

4.   Ind. Code § 35-50-2-11.

5.   Wintrode's full issue statement is: “Wintrode's aggravated sentence is inappropriate as the trial court failed to properly weigh the mitigating factors presented during sentencing.” (Appellant's Br. at 14.) Sentencing reviews under the inappropriate sentence standard and the abuse of discretion standard are unique claims that must be analyzed separately. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). A sentence review under Appellate Rule 7(B) is not a review of the trial court's consideration of mitigators and aggravators but rather an examination of the appellant's sentence in light of the nature of the offense and the character of the offender. Id. As Wintrode provided a standard of review for analysis pursuant to Appellate Rule 7(B), but not for abuse of discretion, we analyze under only Appellate Rule 7(B). If Wintrode intended to present an argument regarding the trial court's finding of mitigators under the abuse-of-discretion standard, any possible argument was waived by his failure to provide a cogent argument. See Ind. App. R. 46(A)(8)(a) (requiring “cogent reasoning”). Moreover, an argument that a trial court did not “properly weigh” aggravators and mitigators has been unavailable since 2007. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (“a trial court can not now be said to have abused its discretion in failing to ‘properly weigh’ such factors”) (quoting Jackson v. State, 728 N.E.2d 147, 155 (Ind. 2000)), clarified on reh'g 875 N.E.2d 218 (Ind. 2007).

6.   Ind. Code § 35-43-4-2(a).

7.   Ind. Code § 35-45-1-3(a)(2).

8.   Ind. Code § 35-44.1-2-3(d)(1).

9.   Ind. Code § 35-42-4-9.

10.   Ind. Code § 35-48-4-11.

11.   Ind. Code § 35-43-4-2(a)(1)(B)(ii).

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.