Court of Appeals of Indiana | Memorandum Decision 71A04-1408-CR-362 | April 21, 2015 Page 1 of 12

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Marielena Duerring

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Javon Thomas,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 21, 2015

Court of Appeals Case No.

71A04-1408-CR-362

Appeal from the St. Joseph Superior 

Court.

The Honorable John M. Marnocha, 

Judge.

Cause No. 71D02-1302-MR-6

Baker, Judge.
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[1] Javon Thomas appeals his conviction for Murder,1 a felony, the sentence 

enhancement for criminal gang affiliation, and the sentence imposed by the trial 

court. Thomas raises the following arguments: (1) the trial court erroneously 

admitted certain evidence; (2) there is insufficient evidence supporting the 

sentence enhancement for criminal gang affiliation; (3) the sentence is 

inappropriate in light of the nature of the offense and his character; and (4) the 

trial court erred by ordering the sentence in this case to be served consecutively 

to a sentence Thomas is serving in a federal case. Finding no error, we affirm.

Facts

[2] In 2010, Thomas was a member and leader of a gang called “Cash Out Boyz.” 

William Williams was a leader of a rival gang called “187.” The relationship 

between these two gangs was so violent that if members of one gang saw 

members of the other, they would shoot at each other.

[3] On October 31, 2010, Marcia Garcia hosted a party in South Bend for 

approximately fifty people. She was so worried about gang violence that she 

patted down each party attendant for weapons before they entered. Williams 

went to Garcia’s party. Someone called Thomas and informed him that 

Williams was at the party, so Thomas and Brison Williams (Brison), a fellow 

gang member, asked a friend to drive them to the party. The friend dropped 

 

1

Ind. Code § 35-42-1-1.
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them off a few houses away from the party, and they told her to drive around 

the corner to wait for them.

[4] Thomas and Brison hid near some bushes adjacent to Garcia’s home. 

Sometime after midnight, Williams and another partygoer exited the house. 

There were multiple people standing outside in the vicinity. Thomas and 

Brison then emerged from hiding and began shooting at Williams. Williams 

pushed the person to whom he was talking to the ground between two parked 

cars and then ran down the street. As he fled, Williams was struck in the back 

and killed by a single .32-caliber bullet. He died on the scene. Thomas and 

Brison had fired approximately four to seven shots with a .32-caliber semiautomatic handgun and a .44-caliber revolver.

[5] After the shooting, Thomas and Brison returned to their friend’s vehicle; it had 

been less than five minutes since she had dropped them off at the party. She 

drove them home, and Thomas told the friend to just say that she “didn’t know 

anything” if she was asked about the incident. Tr. p. 409. Thomas told several 

people that he had killed Williams in retaliation for Williams’s involvement in a 

shooting a day or two earlier. Thomas bragged that he had fired the shot that 

killed Williams and began to call himself “J-Murder.” Id. at 433-34, 462-63, 

464, 544. He also bragged that since the murder, people were afraid of Cash 

Out Boyz. At trial, seven witnesses testified that Thomas had admitted 

shooting Williams.
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[6] On February 19, 2013, the State charged Thomas with murder. On August 12, 

2013, the State sought to have Thomas’s sentence enhanced because he is a 

member of a criminal gang and committed the crime at the direction of or in 

affiliation with the criminal gang. On June 11, 2014, a jury found Thomas 

guilty as charged and, after a second phase of the trial, found that the State had 

proved that the criminal gang sentencing enhancement applied beyond a 

reasonable doubt. 

[7] On July 9, 2014, the trial court sentenced Thomas to the advisory term of fiftyfive years, and enhanced that sentence by another fifty-five years as required by 

the criminal gang enhancement. The trial court also ordered that this sentence 

be served consecutively to a sentence Thomas was serving for a separate federal 

crime. Thomas now appeals.

I. Admission of Evidence

[8] Thomas first argues that the trial court erred by admitting evidence of the gang 

membership of Thomas and Williams at trial. The admission of evidence is 

within the discretion of the trial court, and we will reverse only if the trial 

court’s decision was clearly against the logic and effect of the facts and 

circumstances before it. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App. 

2010).

[9] Prior to trial, Thomas filed a motion in limine seeking to exclude any testimony 

about his own or Williams’s gang affiliation. The trial court denied the motion. 

At trial, Thomas objected to Garcia’s testimony about Williams’s gang 
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affiliation on the basis of Evidence Rule 403. The objection was overruled. 

Thomas did not object to another witness’s testimony about Thomas’s gang 

affiliation. It is well established that “motions in limine do not preserve errors

for appeal; the defendant must reassert his objection at trial contemporaneously 

with the introduction of the evidence.” White v. State, 687 N.E.2d 178, 179 

(Ind. 1997). Consequently, Thomas has waived any argument with respect to 

evidence related to his own gang affiliation. Furthermore, with respect to 

Garcia’s testimony, Thomas objected solely on the basis that it was unduly 

prejudicial pursuant to Evidence Rule 403. He has, therefore, waived the 

argument he attempts to make on appeal, which relates to Evidence Rule 

404(b). See Grace v. State, 731 N.E.2d 442, 444 (Ind. 2000) (holding that 

grounds not raised in the trial court are not available on appeal).

[10] Waiver notwithstanding, we will briefly address Thomas’s arguments. Indiana 

Evidence Rule 403 provides that the trial court “may exclude relevant evidence 

if its probative value is substantially outweighed by a danger of . . . unfair 

prejudice . . . .” Indiana Evidence Rule 404(b) prohibits evidence of prior bad 

acts “to prove a person’s character in order to show that on a particular 

occasion the person acted in accordance with the character,” but further 

provides that the evidence may be admissible for another purpose, including 

proving motive. Our Supreme Court has held that evidence regarding a 

defendant’s membership in a gang may be relevant and admissible where it is 

probative of motive for the commission of a crime. Williams v. State, 690 

N.E.2d 162, 173-74 (Ind. 1997).
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[11] The evidence that Thomas complains of in this case established that: 

(1) Williams was a member of 187; (2) Garcia was so concerned about gang 

violence that she patted down each of her party guests for weapons; (3) Thomas 

was a member of Cash Out Boyz, a rival gang to 187; (4) the gangs frequently 

feuded; (5) Thomas believed that Williams had shot at a Cash Out Boyz 

member a night or two before the incident in question; and (6) Thomas told 

multiple people that he shot Williams as retaliation for Williams’s role in the 

earlier shooting. 

[12] As in Williams, evidence related to the gang membership of both Thomas and 

Williams is relevant and intrinsic to Thomas’s motive for committing the crime. 

And while evidence of gang involvement may, indeed, be prejudicial, in this 

case, the prejudice did not outweigh the probative value of the evidence. Burgett 

v. State, 758 N.E.2d 571, 580 (Ind. Ct. App. 2001). Consequently, the trial 

court did not err by admitting this evidence at trial.

II. Sufficiency

[13] Next, Thomas argues that there is insufficient evidence supporting the criminal 

gang affiliation sentence enhancement. When we review a challenge to the 

sufficiency of the evidence, we neither reweigh the evidence nor assess witness 

credibility. McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. 

denied. Instead, we consider only the probative evidence supporting the 

conviction and the reasonable inferences to be drawn therefrom. Id. If there is 

substantial evidence of probative value from which a reasonable factfinder 
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could have drawn the conclusion that the defendant was guilty beyond a 

reasonable doubt, then the verdict will not be disturbed. Id.

[14] Indiana Code section 35-50-2-15(b)2 provides as follows:

The state may seek . . . to have a person who allegedly committed a 

felony offense sentenced to an additional fixed term of imprisonment if 

the state can show beyond a reasonable doubt that the person 

knowingly or intentionally:

(1) was a member of a criminal gang while committing the offense; 

and

(2) committed the felony offense at the direction of or in affiliation 

with a criminal gang.

If the jury finds that the State proved these elements beyond a reasonable doubt, 

then the trial court must sentence the defendant to an additional fixed, 

consecutive, non-suspendible term of imprisonment equal to the sentence 

imposed for the underlying felony when, as here, the defendant is sentenced for 

only one felony. I.C. § 35-50-2-15(d). 

[15] Thomas argues that the State failed to prove that he committed the murder at 

the direction of or in affiliation with Cash Out Boyz. Thomas first directs our 

attention to caselaw interpreting and applying Indiana Code section 35-45-9-3, 

which defines the crime of participation in a criminal gang. Indiana courts 

have held that to be convicted of this crime, the State must prove, among other 

things, that the defendant acted with a specific intent to further the group’s 

 

2 We apply the version of this statute in effect at the time of the murder.
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goals. E.g., Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). As Thomas 

acknowledges, however, the gang affiliation sentence enhancement at issue in 

this case is “separate from” the crime defined above. Appellant’s Br. p. 23. 

There is no language of specific intent in the criminal gang affiliation sentence 

enhancement statute, and we decline to read such language into the law. 

Instead, in the plain language of the statute itself, the State was required to 

prove beyond a reasonable doubt that Thomas was a member of a criminal 

gang while committing the offense—which he does not deny—and that he 

committed the murder at the direction of or in affiliation with Cash Out Boyz.

[16] The phrase “in affiliation with” is not defined by the statute. This Court has 

looked to the plain meaning of “affiliate” in the context of this statute, noting 

that the term is defined as “‘to bring into close association or connection,’ ‘to 

attach or unite on terms of fellowship,’ and ‘to associate oneself; be intimately 

united in action or interest.’” Armstrong v. State, 22 N.E.3d 629, 638 (Ind. Ct. 

App. 2014) (quoting The Random House Dictionary of the English Language, 

Unabriged Edition 24 (1967)), trans. denied. To meet its burden under the statute, 

therefore, the State was required to prove beyond a reasonable doubt that 

Thomas murdered Williams while in a state of close association, connection, or 

fellowship with Cash Out Boyz, or while intimately united in action or interest 

with the gang.

[17] The record reveals that Thomas was a founding member and leader of Cash 

Out Boyz. Williams was a member of the rival 187 gang. These two gangs had 

an ongoing feud and rivalry in which gang members regularly fought and shot 
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firearms at each other. A day or two before the murder, Williams allegedly 

shot at members of Cash Out Boyz, and Thomas told multiple people after the 

murder that he had killed Williams in retaliation for that earlier shooting. 

When Thomas sought out Williams on the night of the murder, he took another 

armed member of the Cash Out Boyz with him. Thomas bragged about the 

murder and began calling himself “J-Murder,” also bragging that after the 

murder, people were scared of Cash Out Boyz because they knew he would 

shoot them. Tr. p. 464, 561. We find that a reasonable jury could infer from 

this evidence that Thomas murdered Williams in affiliation with Cash Out 

Boyz. Consequently, we find that the evidence supporting the sentence 

enhancement is not insufficient.

III. Appropriateness

[18] Next, Thomas argues that the sentence imposed by the trial court is 

inappropriate in light of the nature of the offense and his character. Indiana 

Appellate Rule 7(B) provides that this Court may revise a sentence if it is 

inappropriate in light of the nature of the offense and the character of the 

offender. We must “conduct [this] review with substantial deference and give 

‘due consideration’ to the trial court’s decision—since the ‘principal role of 

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived 

‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) 

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal 

citations omitted).
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[19] A person who is convicted of murder is eligible for a sentence between forty-five 

and sixty-five years, with an advisory term of fifty-five years. Ind. Code § 35-

50-2-3. Here, Thomas was sentenced to the advisory term.3

[20] Turning first to the nature of the offense, we note that when Thomas learned 

that Williams was at Garcia’s party, he armed himself and took another armed 

gang member with him to find Williams. They instructed the person who drove 

their vehicle to wait for them on another street. Then, Thomas and the other

gang member hid, waiting for Williams to emerge from the house. When he 

did, Thomas began shooting at Williams with no regard for the other people 

present on the public street. Ultimately, Thomas shot Williams in the back as 

Williams fled for his life. Thomas admitted that the sole reason he killed 

Williams was in retaliation for another act of gang violence that had occurred a 

day or two earlier. We do not find that the nature of the offense in any way 

supports Thomas’s sentencing argument.

[21] As to Thomas’s character, he was a founder and leader of the Cash Out Boyz 

Gang. Since committing the murder at issue herein, he has been convicted of 

two other felony gun charges. He has a long list of negative contacts with law 

enforcement dating back to his juvenile years. In this case, after killing 

 

3 While Thomas also focuses part of his appropriateness argument on the sentence enhancement, we note 

that once a factfinder concludes that the State has met its burden, the enhancement is mandatory and nondiscretionary. I.C. § 35-50-2-15. Its terms are set by the statute and neither the trial court nor this Court 

retain any jurisdiction to alter those terms. Id. Consequently, we will not factor the enhancement into our 

7(B) analysis.
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Williams, Thomas bragged about the murder and even gave himself a new 

nickname as a result. We do not find that Thomas’s character supports his 

sentencing argument. In other words, we do not find that the fifty-five-year 

sentence imposed by the trial court is inappropriate in light of the nature of the 

offense and Thomas’s character. Given that, the trial court was required to 

impose an additional, consecutive fifty-five-year term for the criminal gang 

affiliation enhancement.

IV. Federal Case

[22] Finally, Thomas argues that the trial court erred by ordering that his sentence 

herein be served consecutively to a sentence he is serving for a separate federal 

conviction. In Thomas’s view, the trial court imposed consecutive sentences 

because it believed it was required to do so. He bases this argument on the 

following comments made by the trial court at sentencing:

Not only do I believe there is authority that I can run it consecutively, 

but I don’t know if there is authority that I cannot run it consecutive to 

another jurisdiction’s case. So having considered all of that, having 

considered the nature of the federal case and Mr. Thomas’s history, 

the sentence will be served consecutively to the federal case[.]

Tr. p. 712. It is readily apparent that the trial court was acknowledging that it 

could order consecutive sentences but was uncertain whether it was obligated to 

do so. Regardless, having weighed all of the appropriate considerations, the 

trial court concluded that consecutive sentences were warranted in this case. 

We see no basis to disturb that conclusion, and find no error on this basis.
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[23] The judgment of the trial court is affirmed.

Crone, J., and Brown, J., concur.