DiMorriea D. Turner, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] DiMorriea D. Turner appeals his convictions for Level 1 felony attempted murder, Level 3 felony aggravated battery, and Level 5 felony domestic battery by means of a deadly weapon. He presents the following restated issues for review:

1. Did the trial court abuse its discretion by admitting certain evidence of other bad acts in violation of Ind. Evidence Rule 404(b)?

2. Was the attempted murder conviction supported by sufficient evidence?

3. Did the trial court err when it merged the lesser included offenses into the attempted murder for sentencing purposes but did not vacate the convictions?

[2] We affirm in part, reverse in part, and remand.

Facts & Procedural History

[3] H.R. graduated from high school a year early in the spring of 2019. She was seventeen years old at the time, and Turner was two years older. They met in high school during H.R.’s freshman year and began a romantic relationship. By at least May 2018, Turner began being violent toward H.R. at times.

[4] On the morning of June 19, 2019, after a loud argument in which Turner accused H.R. of cheating on him, Turner angrily walked out of the Muncie residence where they were living. H.R. then gathered her personal belongings in a laundry basket and told Tasha Bradshaw, her ex-stepmother who was staying at the home, that she was leaving Turner. Bradshaw, also a victim of domestic violence, gave H.R. a knife to protect herself from Turner.

[5] H.R. left the house with her belongings around 6:10 a.m. and walked in the opposite direction from where she believed Turner had gone. She headed south on Liberty Street, past a few houses, and then turned west onto 23rd Street toward railroad tracks about a block away. This was a longer route to her destination, but she wanted to avoid Turner.

[6] Minutes after H.R. left, Turner walked past Bradshaw, who was on the porch, and headed in the same direction as H.R. Turner caught up with H.R. and tried to convince her to come home. While they talked, Turner and H.R. crossed the railroad tracks a few times. At this same time, about 6:20 a.m., a Norfolk Southern train was approaching the crossing from the north at just under 20 mph. The train engineer, Kyle Baker, made “excessive blasts” of the horn to ensure the train's presence was known to them. Transcript Vol. 2 at 96. The safety lights and arms were also activated at the crossing.

[7] The train's onboard dash camera recorded the incident from roughly the same perspective as Baker. When the train was about ten seconds from crossing the intersection, Turner and H.R. were still inside the safety arm on the west side of the tracks. Turner physically blocked H.R. as she neared the safety arm with her laundry basket of possessions and then pushed her backwards toward the tracks. H.R. proceeded to walk around Turner toward the safety arm again, but he grabbed her and turned her around so that her back was toward the safety arm. As H.R. struggled to get away from Turner and move away from the approaching train, he grabbed her by the hair with his right hand and put his left arm around her. Turner then thrust H.R. past him and headfirst toward the train. At this same time, Baker heard “a large thud” on the front corner of the engine. Id. at 115. He pulled the train to a stop.

[8] H.R. suffered life-threatening injuries from her head striking the train. She had a large laceration on the right side of her forehead, with exposed skull, and significant trauma to her brain. She also had a large abrasion to her left hip and back that was consistent with road rash, and other abrasions and contusions to her right leg and foot.

[9] Muncie Police Officer Andrew Sell was the first on the scene, and he had to climb between the train cars to get to H.R. because the train was blocking the intersection. On the other side of the train, Officer Sell observed H.R. lying on the ground, with personal items strewn around, and Turner standing over her and then “frantic[ally] screaming and pacing around back and forth.” Id. at 123. H.R. was disoriented and speaking in confused sentences due to her head injury. She was taken by ambulance to the local hospital and then by helicopter to Riley Hospital in Indianapolis for pediatric neurological specialty care.

[10] Bradshaw came to the scene upon hearing the police sirens, and she attempted to help calm H.R. while waiting for the ambulance. Thereafter, Bradshaw spoke with Officer Sell and told him that this was “domestic abuse” and that Turner and H.R. had argued that morning. Id. at 132.

[11] Upon inspecting the outer front side of the train, Muncie Police Officer Kyle Temple discovered a cell phone, Turner's eyeglasses, and what appeared to be human hair like H.R.’s. Officer Temple also noticed superficial injuries to one of Turner's legs and forearms and that Turner was walking with a slight stagger. While H.R.’s injuries were consistent with being struck by a train, Officer Temple did not believe, based on his training and experience investigating accident scenes, that Turner's injuries were caused by direct contact with the train. Turner's injuries looked more consistent with falling to the ground.

[12] After H.R.’s recovery, H.R. and Turner eventually began seeing each other again, which worried her family. On October 22, 2019, H.R.’s father obtained an ex parte order for protection on H.R.’s behalf to keep Turner from her.¹ But Turner continued to violate the protective order, including on November 1 and 2. On the latter date, Turner struck H.R. in the face during an argument, resulting in her sister calling police and H.R. reluctantly filing a police report.

[13] On November 15, 2019, the State charged Turner with attempted murder (Count 1), aggravated battery (Count 2), and domestic battery by means of a deadly weapon (Count 3). Each charge was based on the train incident.

[14] Turner's three-day jury trial commenced on July 28, 2025. Before trial, the State filed a notice of intent to introduce 404(b) evidence and specified that it wanted to introduce evidence of the protective order, Turner's battery of H.R. and violation of the protective order in November 2019, and another domestic violence incident from May 12, 2018. The May 2018 incident was caught on home surveillance video, which showed Turner violently beating H.R. for what H.R. described at trial as her wanting to wear a shirt that he did not like. H.R.’s younger cousin, K.F., tried to intervene, but Turner chased her out of the room. He then went back to striking H.R. Over Turner's objection, this evidence – through testimony, documents, and/or video – was admitted at trial.

[15] Though Turner did not testify, his theory of defense was that he misjudged how close the train was to the intersection and that his intent was not to kill H.R. but simply to stop her from leaving him. That is, according to the defense, Turner was attempting to get control of H.R. to force her back across the tracks to head home and that moving her too close to the train was accidental. To support this theory, Turner called a railroad accident reconstructionist, Robert Halstead, who testified regarding large object illusion, which he described as “the phenomenon by which an approaching object that is large appears to be moving at a slower speed” than it is. Transcript Vol. 2 at 237.

[16] The jury found Turner guilty as charged, and the trial court entered judgments of conviction on all three counts. At sentencing on September 3, 2025, the parties agreed that “the convictions of Counts 2 and 3 would merge into Count l for sentencing purposes.” Appendix Vol. III at 25. Without vacating those lesser convictions, the trial court imposed a sentence only on the attempted murder conviction, sentencing him to thirty-six years in prison.

[17] Turner now appeals. Additional information will be provided below as needed.

Discussion & Decision

1. Admissibility of 404(b) Evidence

[18] Turner contends that the trial court abused its discretion by admitting evidence of certain other bad acts that he committed against H.R. before and after the train incident. He argues that the evidence was not admitted for a proper purpose under Evid. R. 404(b) and, alternatively, any probative value of the evidence was substantially outweighed by its prejudicial effect.

[19] Aside from pure questions of law, we review evidentiary rulings for an abuse of discretion, reversing only when the admission is clearly against the logic and effect of the facts and circumstances. See Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019), cert. denied. “On issues of relevance and unfair prejudice, a trial court's discretion is wide.” Hill v. State, 91 N.E.3d 1078, 1081 (Ind. Ct. App. 2018) (citing Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017)), trans. denied.

[20] Evid. R. 404(b) addresses the admissibility of evidence of other bad acts by a defendant, and provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident․.

The rule's purpose is to prevent the jury from making the forbidden inference that the defendant must be guilty of the charged crime because, at other times, he acted badly. Fairbanks, 119 N.E.3d at 565.

[21] In assessing the admissibility of evidence under Evid. R. 404(b), a trial court must: (1) determine whether the evidence is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Ind. Evidence Rule 403.² Hill, 91 N.E.3d at 1081. That is, even if the evidence is relevant for a proper purpose other than propensity, it may still be excluded under Evid. R. 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id.

[22] To establish the crime of attempted murder, the State was required to prove, among other things, that Turner had the specific intent to kill H.R. when he forced her into the train's path. Other-bad-act evidence is admissible to show intent or lack of accident, but only if the defendant goes beyond denying the charged culpability and affirmatively contests the issue of intent at trial (or the State has a reliable assurance before trial that such a defense will be raised). See Fairbanks, 119 N.E.3d at 569-71 (observing that lack of accident is a subset of intent).

[23] Turner clearly placed his intent at issue, arguing to the jury that H.R.’s injury was an accident because Turner misjudged the closeness of the train as he was attempting to physically force her to come home with him. Further, he called an expert to testify regarding railroad accidents and the tendency of individuals to misjudge the speed or distance away from an oncoming train. In sum, Turner's argument to the jury was that the evidence failed to show that he intended to force H.R. into the path of the oncoming train and that her being struck by the train was accidental.

[24] In light of Turner's accident defense, the State was properly permitted to present evidence of other bad acts to help establish intent or lack of accident. Further, as has been explained several times, “where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.” Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (quoting Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004), trans. denied), trans. denied; see also Hicks v. State, 690 N.E.2d 215, 221-23 (Ind. 1997).

[25] The 404(b) evidence admitted below showed the volatile nature of the relationship between Turner and H.R. before and after the train incident and the cycle of abuse that H.R. endured. The evidence of the May 2018 domestic violence and the violations of the subsequent protective order with additional domestic violence in November 2019 were relevant to establishing the relationship between the parties, motive, intent, and lack of accident. And we reject Turner's suggestion that these other bad acts were too remote or different from the train incident to be relevant. See Hicks, 690 N.E.2d at 222 (evidence of prior domestic violence incidents between defendant and victim, including one occurring three years prior to the charged crime, “was neither too remote nor too dissimilar to be relevant” to showing hostility between the parties and motive to kill).

[26] Although relevant, the challenged evidence may still be inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. Our Supreme Court has recognized that although relevant, “at some point testimony about every incident of [domestic] violence between the [parties] becomes more prejudicial than probative.” Id. at 223. In Hicks, the Court upheld the admission of evidence of two prior domestic violence incidents but held that evidence of a third incident that took place three and one-half years before the July 1994 murder should have been excluded. The Court explained:

The 1992 and 1994 incidents and Hicks’ statements to the police illustrated the hostile relationship that could have been a motive for murder. However, testimony about the January 1991 incident was graphic, prejudicial, and of low probative value. Shane and his wife at the time testified that Hicks, who was living next door with Koontz, broke into their home at about 3:00 a.m., covered in blood, and yelled “Call 911․ I think I killed her this time.” Shane and his wife called 911, went next door, and found Koontz lying semi-conscious in a pool of blood. Shane said that her head was “busted open.” This testimony, though relevant to show the hostility of the relationship, was of fairly low probative value in view of its remoteness in time. Its probative value was further reduced because the State had ample evidence of hostility, including the other two more recent incidents and Hicks’ own statements, upon which it could rely. The prejudicial impact of the testimony, however, was sure to be high and substantially outweighed its probative value.

Id. Despite the error in admitting the most remote instance of domestic violence, the Court concluded that the error was harmless. See id. (“However, considered in light of all the other evidence about the relationship, testimony about this one incident of domestic violence was cumulative and is not grounds for reversal.”).

[27] In this case, the State presented evidence of only two other specific instances of domestic violence – one prior in May 2018 and one subsequent in November 2019. Unlike in Hicks, these were not especially remote in time from the train incident, and the State did not present evidence of more recent incidents of domestic violence to establish the relationship between the parties. The video of the May 2018 battery, which is Turner's primary focus on appeal, had substantial probative value in providing the jury with insight into Turner's volatile behavior toward H.R. when she did not do what he wanted.

[28] Further, we disagree with Turner's suggestion that the evidence of the May 2018 battery introduced “alleged bad acts committed by Turner against K.F.” Appellant's Brief at 20. Leaving aside that Turner does not appear to have made this argument below, we observe that the video evidence showed Turner beating H.R. but only chasing K.F. out of the room when she tried to come to H.R.’s aid. In other words, the evidence was not particularly inflammatory with respect to his actions against K.F.

[29] Turner also has not shown that the evidence related to the subsequent protective order obtained by H.R.’s father on her behalf and Turner's violation thereof created a substantial risk of unfair prejudice. His arguments regarding this evidence are sparse and do not establish reversible error.

[30] In sum, we reject Turner's argument that the State “flood[ed] the courtroom” with irrelevant and excessive evidence of domestic violence. Id. at 18. The trial court did not abuse its broad discretion when determining that the challenged evidence was relevant and not unduly prejudicial and thus admissible.

2. Sufficiency of the Evidence

[31] When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses, instead leaving those matters to the province of the jury. Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024); see also Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022) (“When there are conflicts in the evidence, the jury must resolve them.”). With this deferential review in mind, we will consider only the probative evidence and reasonable inferences supporting the conviction. Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind. Ct. App. 2023), trans. denied. And we will affirm “unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022) (Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016)). In sum, the evidence does not need to overcome every reasonable hypothesis of innocence; it is sufficient if an inference may be reasonably drawn from the evidence to support the conviction. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

[32] Turner challenges the sufficiency of the evidence supporting his attempted murder conviction, arguing only that the State failed to establish that he acted with specific intent to kill.

In a prosecution for attempted murder, the State must show a specific intent to kill. Intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. Additionally, the trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm.

Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002).

[33] In support of his argument, Turner directs us to evidence that, minutes before the train incident, he had been calmly trying to persuade H.R. to return home; that he stayed at the scene after H.R. was hit by the train, administering first aid to H.R.;³ and that he pleaded with first responders to save her life. Turner acknowledges that he was exercising physical control over H.R.’s body when she was struck by the train, but he contends that his aim was only to gain control of her so that she would not leave him. According to Turner:

[G]iven the close proximity to the train, the low-light conditions, the difficulty one would have in determining the width of the train as it approached, Turner's behavior after the fact, the similarity of the movement to the non-lethal incident in May, 2018, Turner's stated intent, per [H.R.], that she go home with him – it all points towards a conclusion that Turner did not intend for [her] to die that [morning].

Appellant's Brief at 25 (emphasis in original). Further, Turner asserts that it is “impossible to tell” from the video evidence whether H.R.’s contact with the train was “intended by Turner, or merely accidental.” Id. at 26.

[34] Turner made these same arguments to the jury, and the jury determined that he acted with specific intent to kill H.R. The strongest evidence of Turner's intent at the time he forced H.R. in front of the train is the video from the train's dash camera. In the ten seconds before H.R. was struck by the train, Turner is seen on the video standing inside the safety arm and physically blocking H.R. from moving away from the tracks. He then pushes her backwards closer to the tracks with the approaching train. All the while, the train engineer is repeatedly sounding the horn, and the crossing lights are activated at the intersection. H.R. then immediately walks past Turner toward the safety arm again, causing Turner to grab her and, as she struggles to get away, Turner forcefully and with both arms moves her past his body and headfirst into the train's path. A reasonable person viewing this video could find beyond a reasonable doubt that Turner intentionally moved H.R. into the path of the oncoming train to kill her.

[35] Further, the incident occurred in the context of H.R. trying to leave an abusive relationship and refusing to return home with Turner. Caryn Burton, the homicide reduction strategies coordinator for the Indiana Coalition Against Domestic Violence, testified that, in the cycle of domestic abuse, escalation of violence often happens when a survivor pushes back against the power and control of her abuser.

[36] Turner suggests that his actions immediately following H.R. being struck by the train were inconsistent with an intent to kill her. That is, he appears to have provided aid to her, and he was distraught over her injuries. Turner may very well have regretted his actions after the fact, or maybe he was just seeking to avoid prosecution by appearing concerned. It was the province of the jury to weigh this evidence along with other evidence to determine his intent, and we will not entertain Turner's request for us to reweigh the evidence. The evidence was sufficient to establish specific intent.⁴

3. Failure to Vacate the Lesser Offenses

[37] Following the jury verdicts, the trial court entered convictions on all three counts – attempted murder, aggravated battery, and domestic battery by means of a deadly weapon. At sentencing, the trial court merged the lesser counts into the attempted murder conviction and entered a sentence only for attempted murder. The trial court did not, however, vacate the lesser convictions.

[38] There is no dispute that entry of convictions on all three counts violates principles of double jeopardy, as the battery convictions stem from precisely the same actions as the attempted murder conviction. The trial court attempted to avoid double jeopardy concerns by merging the convictions, but, as the State concedes, the court should have vacated the lesser convictions. See Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (reversing and remanding for vacation of convictions on lesser offenses where trial court entered convictions on jury's guilty verdicts and later merged without vacating those convictions); see also Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017). Accordingly, we remand with instructions that the trial court vacate the judgments of conviction on the battery convictions, Counts 2 and 3.

[39] Judgment affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   H.R. was still a minor.

2.   This two-part test applies whether the evidence is of prior or subsequent bad acts. See Davis v. State, 186 N.E.3d 1203, 1211 (Ind. Ct. App. 2022), trans. denied.

3.   Contrary to his suggestion on appeal, the evidence does not establish that first responders witnessed him administering first aid to H.R. Rather, Officer Sell, the first on the scene, testified that he did not see Turner holding a cloth to H.R.’s head injury and that Turner was merely standing over H.R. when he arrived.

4.   Turner also challenges the sufficiency of the evidence supporting his other convictions and makes the same claim that he did not intend for her to be struck by the train. These challenges would fail for the same reasons addressed above, but we need not reach them directly because, as set out in the next section, the lesser convictions must be vacated.

Altice, Judge.

Brown, J. and DeBoer, J., concur.