JOHNSON v. STATE (2025)

MEMORANDUM DECISION

[1] Tymani Jamal Johnson (“Johnson”) was convicted after a jury trial of unlawful carrying of a handgun ¹ as a Level 5 felony and attempted obstruction of justice ² as a Level 6 felony and was sentenced to an aggregate sentence of six years with five years executed in the Indiana Department of Correction (“the DOC”) and one year suspended to probation. Johnson appeals his sentence, arguing that the trial court abused its discretion when it sentenced him and raising the following restated issues for our review:

I.  Whether the trial court erred when it allowed the State to present evidence consisting of rap videos made by Johnson; and

II. Whether the trial court abused its discretion when it made statements concerning acquitted conduct during its pronouncement of sentence.

[2] We affirm.

Facts and Procedural History

[3] On July 14, 2022, Keana Stephenson (“Stephenson”), her boyfriend, Johnson, and his friend, Olivia Mendoza (“Mendoza”), were preparing to leave on a road trip to Houston, Texas. Before leaving, Stephenson needed to drop off her three-year-old son (“Son”) with his father, Micah Anderson (“Anderson”). When they went to drop off Son, Stephenson was driving, Johnson was in the front passenger seat, and Mendoza and Son were in the backseat. At the time, Johnson was armed with a loaded Glock ten-millimeter handgun that was unholstered and tucked into his waistband.

[4] About a week earlier, Anderson accused Johnson of burning Son with a cigarette. Johnson maintained that he had nothing to do with the injury. Stephenson believed the injury was accidental and had occurred when Son was with Anderson's family. When Stephenson arrived to drop off Son, she parked on the street one house down from Anderson's house. Stephenson got out of the vehicle and walked Son to Anderson's house while Johnson and Mendoza stayed in the vehicle. She told Anderson that her mom would pick up Son later that evening and returned to the vehicle. Anderson followed her, and after Stephenson got back into the driver's seat of the vehicle, Anderson leaned on the driver's side door while speaking to Stephenson. Anderson was shirtless and had a gun tucked into his waistband. When Anderson saw Johnson in the vehicle, he became “hostile” and “got angry” and mentioned the cigarette burning incident. Tr. Vol. IV pp. 16, 67. An argument ensued between Anderson and Johnson, and Anderson stated, “You burned my son. I'm going to burn you.” Id. at 18, 69. Anderson reached for the gun in his waistband, but Johnson “got to [his] gun before [Anderson] could get his gun” and fired what Johnson described as a “warning shot” that struck Anderson in the chest. Id. at 18, 30.

[5] After Johnson fired the shot, Stephenson quickly drove away. Johnson was “freaking out” and told Stephenson and Mendoza not to say anything. Tr. Vol. III p. 84. They drove to Johnson's apartment where he lived with his brother. Once there, Johnson put the Glock he had used to shoot Anderson in his closet, and his brother gave him a different handgun which Johnson took back to the vehicle and placed under the rear passenger seat. Johnson also retrieved some luggage and placed it in the vehicle. After stopping at a gas station, Mendoza agreed to drive as the three set out on the highway.

[6] Officers with the Indianapolis Metropolitan Police Department responded to the shooting scene and discovered Anderson face down in the middle of the street. Anderson was declared dead at the scene. Investigators later determined that Anderson's gun was loaded, and the safety was off, but there was no bullet in the chamber, meaning the gun could not have been fired without first pulling the slide to chamber a bullet. Around 8:00 p.m., Indiana State Troopers stopped Johnson, Stephenson, and Mendoza on I-70 in Vigo County and arrested Johnson.

[7] On July 19, 2022, the State charged Johnson with murder and Level 5 felony unlawful carrying of a handgun. While in jail, Johnson contacted Stephenson through both messages and calls. On August 17, 2022, Johnson sent a message to an account operated by Stephenson in which he stated,

․ I think about moving and being free everyday crazy ․ its gon happen pretty soon u need be on red no need to scare just let MF kno we not mad it only matter about the finish line the same plan u just said tell red or jus to not answer at all and don't be no where a MF know wen its time to win the championship but we gon be on the beach smiling thinking bout this I promise ․

Ex. Vol. I p. 105 (all errors in original). On the same date, Johnson video called Stephenson and asked her if she had seen his message “about red.” State's Ex. 55 at 00:35. He then told Stephenson, “Let [her] know ․ be Casper or ․ if anything, just switch it up ․ They can't do nothing ․ for switching it up.” Id. at 01:00–01:05, 01:23–01:30. Later, he also sent another message to Stephenson in which he wrote, “we got [sic] get that bitch excluded[;] dad [sic] how we win.” Ex. Vol. I p. 107. The “red” that Johnson was speaking about was Mendoza, who had red hair. Tr. Vol. IV p. 39. On another call, Johnson and Stephenson talked about Son's deposition and whether he would be excluded as a witness. During a later call, Stephenson told Johnson that Son would be excluded as a witness.

[8] On September 6, 2023, the State amended the charges against Johnson and added two counts of Level 6 felony attempted obstruction of justice. The State charged Stephenson as a co-defendant, and they were tried together in a three-day jury trial commencing on September 9, 2024. At the trial, Johnson testified that when Anderson became hostile on the date of the shooting, Johnson felt “threatened” and “scared.” Id. at 16, 17. He also stated that, “I could tell [Anderson] was like out of it, like he's just like too aggressive like I could tell he probably was drunk because he ․ wasn't trying to hear me out.” Id. at 17. Evidence was presented that, at the time of his death, Anderson's blood alcohol level was 0.308. About shooting Anderson, Johnson testified that, “I feel like if I wouldn't have got to my gun first, he was going to pull his gun out and shoot me and kill me.” Id. at 24. As to the calls and messages about “red” or Mendoza, Johnson testified that when he said to let Mendoza be “Casper,” he meant that she should not “come [testify], ghost.” Id. at 41. He also stated that he referred to Mendoza as red as an “evasive tactic.” Id. at 42. At the conclusion of the trial, the jury found Johnson guilty of Level 5 felony unlawful carrying of a handgun and one count of Level 6 felony attempted obstruction of justice by attempting to interfere with Mendoza's testimony. However, the jury acquitted Johnson of murder and the second count of Level 6 felony attempted obstruction of justice by attempting to interfere with Son's testimony.

[9] The sentencing hearing was held on October 4, 2024. Johnson's mother testified on his behalf. The State then presented a PowerPoint presentation that included some rap videos that Johnson had made under the stage name, “Lil Mani,” along with a selection of lyrics and still images from the videos. State's Sentencing Ex. 1. Johnson objected to the videos, arguing that the videos had not previously been disclosed to the defense. The trial court then allowed a short recess for the defense to review the presentation. After the recess, there was no further objection to the State's presentation or the videos and lyrics contained within, and the State continued to make its sentencing argument, including displaying the PowerPoint slides and playing the videos. Relying on the videos, the State argued that Johnson was a member of a gang, showed disdain for the court's authority, and glorified guns and gun violence.

[10] After the State's argument, Johnson made his allocution. In it, he stated that he wished to have a second chance and had grown up since being arrested. He also testified that the videos were “just for entertainment,” that he had matured since then, and that the group that the State characterized as a gang was just “a rap group.” Tr. Vol. IV p. 187. The trial court found Johnson's criminal history and probation violations and the probation department's assessment that Johnson was a “very high risk to reoffend” as aggravating factors. Id. at 190. As mitigating factors, the trial court found Johnson's admission to his prior felony conviction for a handgun charge and the undue hardship that incarceration would cause his dependents. The trial court found that the aggravating factors outweighed the mitigating factors. The trial court then sentenced Johnson to four years for his Level 5 felony unlawful carrying of a handgun conviction with three years executed and one year suspended to probation and to two years for his Level 6 felony attempted obstruction of justice conviction. The sentences were ordered to be served consecutively for an aggregate sentence of six years with five years executed in the DOC and one year suspended to probation. After pronouncing Johnson's sentence, the trial court further commented:

The handgun charge, you were charged with murder. You did not get convicted of murder. The defense or the jurors found that there was a self-defense claim that you made in that situation that they honored and found you not guilty of that. All true. What is also true is that you did kill a human being and you killed a human being with a weapon, a weapon that you were never supposed to have ever at that point in time, and you knew you weren't supposed to be carrying a weapon. So sure, you didn't get convicted of murder, and that's how the jury decided that count and how it should result, and I have no dispute with that. But the fact is, if you had been obeying the law in the first place and not had the weapon in the first place, you weren't really at danger. The guy wasn't going to shoot you. He didn't have a weapon that was going to be able to do that. And so you both would be alive and you wouldn't be facing any charges. But you violated the law and you put yourself in that situation.

Id. at 191. Johnson now appeals.

Discussion and Decision

[11] Johnson argues that the trial court abused its discretion at sentencing. Sentencing decisions lie within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion will be found where the decision is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn from them. Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019). If a trial court abused its discretion in sentencing a defendant, “remand for resentencing may be the appropriate remedy if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

I. Admission of Videos

[12] Johnson asserts that the trial court erred when it admitted Johnson's rap videos as evidence during the sentencing hearing. He contends that this admission was erroneous in two ways. First, he argues that the trial court abused its discretion in admitting the videos because the State failed to provide the defense adequate notice of the videos prior to the hearing, and second, he maintains that the trial court committed fundamental error in admitting the videos because doing so violated his right to free expression under both the United States and Indiana Constitutions as the videos were irrelevant.

[13] “We review challenges to the admission of evidence for an abuse of the trial court's discretion.” Jones v. State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023) (citing Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021), cert. denied), trans. denied. A trial court abuses its discretion only if its decision on the admission of evidence is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Howard v. State, 236 N.E.3d 735, 742 (Ind. Ct. App. 2024) (citing Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024)). “Although an issue is generally waived on appeal if not raised at the trial level, an appellate court may address the issue if a party alleges fundamental error occurred.” Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).

[14] Johnson initially argues that the trial court abused its discretion when it admitted the videos during the sentencing hearing because the State violated Criminal Rule 2.5(B)(2), which governs discovery in criminal cases, because it failed to disclose the videos prior to the sentencing hearing. Criminal Rule 2.5 provides that, “The state must disclose ․ [a]ny books, papers, documents, photographs, or tangible objects that the prosecuting attorney intends to use in the hearing or trial.” Ind. Criminal Rule 2.5(B)(2)(e). However, at the sentencing hearing, Johnson raised only a general objection when the State introduced the evidence, stating, “Judge, I'd object. I've never seen these.” Tr. Vol. IV p. 180. “[A] claim of trial court error in admitting evidence may not be presented on appeal unless there is a timely trial objection ‘stating the specific ground of objection, if the specific ground was not apparent from the context.’ ” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008) (quoting Ind. Evidence Rule 103(a)(1)). To preserve a claimed error in the admission of evidence, a contemporaneous objection “that is sufficiently specific to alert the trial judge fully of the legal issue” must be made. Id. A mere general objection, or an objection on grounds other than those raised on appeal, is ineffective to preserve an issue for appellate review. Id. Johnson has, therefore, waived his argument that the trial court erred in admitting the videos because the State failed to disclose them prior to the hearing.³

[15] Further, the remedy for failure to disclose evidence is generally either a continuance or the exclusion of the evidence. See State v. Lyons, 211 N.E.3d 500, 505 (Ind. 2023). Here, after Johnson objected to the admission of the rap videos as evidence, the trial court allowed a recess during which Johnson was allowed to view the videos with his attorney. See Tr. Vol. IV p. 180. After viewing the videos, the sentencing hearing resumed, and Johnson made no further objection regarding the videos, nor did he request a continuance or the exclusion of the evidence. See id. at 180–81. And when Johnson made his allocution, he specifically addressed the videos when he stated that the “music videos is [sic] just, that's just for entertainment, just music videos, but I have matured since then, but 30 Boys is not a gang. It's a rap group, just like for entertainment.” Id. at 187. In his sentencing argument, Johnson's attorney argued that the videos were made solely for entertainment purposes and should not be considered by the court for sentencing. Id. at 187–88. Thus, based upon Johnson's objection, the trial court paused the sentencing hearing and allowed Johnson and his attorney to view the videos before continuing with the sentencing hearing, where Johnson was permitted to argue as to why they should not have been considered in sentencing Johnson. We, therefore, conclude that the trial court did not abuse its discretion in admitting the videos based on the State's failure to disclose them prior to sentencing.

[16] Johnson next asserts that the trial court erred in admitting the videos because doing so violated his rights to free speech under the First Amendment to the United States Constitution and Article 1, section 9 of the Indiana Constitution. However, as Johnson concedes, he did not object to the evidence on this basis at the sentencing hearing. “Failure to object at trial waives the issue for review unless fundamental error occurred.” Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010). Thus, Johnson must establish that the trial court committed fundamental error in its admission of the evidence. 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. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). The exception is only available in egregious circumstances where the claimed error either makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process. Id. (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)).

[17] Johnson argues that the trial court committed fundamental error when it allowed the videos to be admitted at sentencing. He contends that “[b]y improperly admitting Johnson's music videos, the trial court created an undeniable and substantial potential for harm” because much of the State's sentencing argument relied on those videos. Appellant's Br. p. 24. Based on this, Johnson maintains that the erroneous admission of the videos made a fair sentencing hearing impossible, pointing to the fact that the trial court was asked to “consider Johnson's creative expression, and [the trial court] issued an aggravated sentence on both counts.” Id.

[18] To prove fundamental error, the defendant must meet the heavy burden of demonstrating that the claimed error made fair proceedings impossible. Halliburton, 1 N.E.3d at 678. Johnson has not met this heavy burden. He has not shown that he suffered any prejudice as the trial court did not refer to the videos prior to sentencing Johnson and found sufficient aggravating factors, which Johnson does not challenge, for the sentence imposed. Additionally, Johnson was given ample opportunity to argue against consideration of the videos and explain that they were made solely for entertainment. Any error in allowing the State to use the videos in its sentencing argument was harmless as the trial court did not consider them as aggravating factors in sentencing Johnson. And “harmless error cannot be considered fundamental.” Smith v. State, 190 N.E.3d 462, 466 (Ind. Ct. App. 2022), trans. denied. We therefore conclude that Johnson has not established that fundamental error existed such that remand for resentencing is warranted.

II. Sentencing Statement

[19] Johnson asserts that the trial court abused its discretion in sentencing him. He contends that, in its sentencing statement, the trial court relied upon Johnson's acquitted conduct to aggravate his sentence. One of the ways that a trial court may abuse its discretion is by entering a sentencing statement that includes reasons improper as a matter of law. Anglemyer, 868 N.E.2d at 491. It is an abuse of discretion for a trial court to rely on a defendant's acquitted conduct to aggravate his sentence. See Chastain v. State, 165 N.E.3d 589, 599 (Ind. Ct. App. 2021), trans. denied.

[20] Johnson argues that the trial court relied upon the killing of Anderson as an aggravating factor even though he was acquitted of murder in his jury trial. For support of his argument, Johnson relies on McNew v. State, 391 N.E.2d 607 (Ind. 1979), and Walden v. State, 216 N.E.3d 1165 (Ind. Ct. App. 2023), trans. denied. In McNew, the trial court considered a prior acquittal for armed robbery as part of the defendant's prior criminal activity, which our Supreme Court found to be error but did not revise the defendant's sentence because it was only one improper factor in the trial court's overall sentencing statement. Id. at 612. In Walden, the trial court's consideration of defendant's two prior acquittals for child molesting “as bearing on his likelihood of re-offense” and “as part of a pattern of like behavior” that culminated in his convictions was found to be improper as a matter of law, and the case was remanded for resentencing because it was not clear that the trial court would have ordered consecutive sentences if it had not considered the erroneous factor due to the “prominence of [the] prior acquittals” in the trial court's sentencing statements.” Id. at 1177–78.

[21] Here, in its oral sentencing statement, the trial court described the aggravating and mitigating factors it considered in determining Johnson's sentence. The trial court identified Johnson's criminal history, including his multiple violations of probation, and his very high risk to reoffend as aggravating factors. Next, the trial court found Johnson's acceptance of responsibility for admitting his prior handgun conviction and that his dependents would suffer undue hardship as mitigating factors. Concluding that the aggravating factors outweighed the mitigating factors, the trial court imposed an aggregate sentence of six years with five years executed. It was only after the trial court pronounced Johnson's sentence that it made comments regarding Johnson's unlawful carrying of a handgun conviction and how it related to his acquitted charge of murder. In its statements, the trial court did not question Johnson's acquittal for murder and stated, “the jurors found that there was a self-defense claim that you made ․ and found you not guilty of [murder]” and that the trial court “ha[d] no dispute” with the acquittal for murder. Tr. Vol. IV p. 191. Therefore, the trial court did not consider Johnson's acquittal for murder when it sentenced him, especially in light of the fact that the statements that Johnson challenges occurred after the trial court had already pronounced his sentence based on two unchallenged aggravating factors.

[22] Johnson also contends that the trial court relied on a misinterpretation of the evidence when it sentenced him. After making the above statements about Johnson's murder acquittal, the trial court continued on by stating that, although Johnson was acquitted of murder, he did have a weapon that he was not supposed to be carrying and “if [he] had been obeying the law in the first place and not had the weapon,” both he and Anderson would be alive, and Johnson would not be facing any charges because Johnson was not “really at danger” as Anderson's weapon was not able to shoot Johnson. Id. However, as we do above, we likewise conclude that the trial court did not consider this alleged misinterpretation of the evidence when it sentenced him. Again, the challenged statement occurred after the trial court had already pronounced his sentence based upon two unchallenged aggravating factors.

[23] Further, even if the trial court abused its discretion by considering the acquitted charges in sentencing Johnson, such error was harmless. Indiana courts have repeatedly noted that a single aggravating circumstance is enough to justify an enhancement or the imposition of consecutive sentences. Chastain, 165 N.E.3d at 599. We will remand for resentencing only if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances. Id. Here, the trial court found two valid aggravating factors that Johnson does not challenge. Under these circumstances, we can say with confidence that the trial court would have imposed the same sentence, even without the consideration of the alleged improper aggravating statements to which Johnson objects. The trial court, therefore, did not abuse its discretion in sentencing Johnson.

Conclusion

[24] The trial court did not err in its admission of evidence at the sentencing hearing, and it did not abuse its discretion when it sentenced Johnson.

[25] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-47-2-1.5(b), (e)(2)(B).

2.   I.C. §§ 35-44.1-2-2(a)(1)(A); 35-41-5-1.

3.   Johnson does not argue fundamental error as to this assertion.

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.