Court of Appeals of Indiana | Memorandum Decision 18A02-1710-CR-2289 | July 24, 2018 Page 1 of 13

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

Bruce N. Munson

Law Office of Bruce N. Munson, P.C.

Muncie, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Deshaun W. Jackson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 24, 2018

Court of Appeals Case No.

18A02-1710-CR-2289

Appeal from the Delaware Circuit 

Court 

The Honorable Kimberly S. 

Dowling, Judge

Trial Court Cause No.

18C02-1611-F2-19

Brown, Judge.
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[1] Deshaun Jackson appeals his convictions for attempted burglary and conspiracy 

to commit burglary. Jackson raises two issues on appeal which we revise and 

restate as:

I. Whether the trial court abused its discretion in admitting certain 

testimony; and

II. Whether there is sufficient evidence to sustain his convictions. 

We affirm. 

Facts and Procedural History

[2] At approximately 8:00 or 9:00 a.m. on June 17, 2016, Marilyn Wilson was 

asleep in her room, woke up to hearing her nineteen-year-old son Arthur calling 

in distress for her, and heard “thumping” coming from the kitchen or back area 

of the house. Transcript Volume II at 100. She turned to her five-year-old child

who was in the room with her and told him not to leave the room, and at that 

time she heard a “loud pop” in the back area. Id. at 102. She exited her room 

and observed Arthur “coming out of the kitchen like low crawling.” Id. 

Wilson went toward the kitchen and observed that a table had been moved, a 

plant had been knocked over, a window and screen were up, and the blinds 

were blowing. She thought she saw someone but was not sure. 

[3] Wilson observed Arthur at the front door and then move to the bathroom. She

observed that Arthur was “very upset,” was on his knees throwing up in the 

toilet, was spitting and gasping, and had “a circle mark in his hand with blood.” 

Id. at 104. She asked him what had happened, and he said that he had seen a 
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light under the door to the backroom and “opened the door and Fat Daddy and 

Little Brian was in the backroom,”

1

that Little Brian had an assault rifle, and 

that, when Arthur tried to shut the door, Fat Daddy stuck his foot in the door, 

pulled a gun from his waistband, and grabbed Arthur by his dreads. Id. at 106. 

Arthur also told Wilson that he and Jackson had “wrestled with the gun,” that 

Arthur “got it away from him,” that Arthur fired the gun, and the bullet struck 

Goodson. Id. at 107. Law enforcement arrived at Wilson’s house, and Wilson 

subsequently provided a statement to police. Brian Goodson later reported to 

the emergency room with a gunshot wound to his upper leg. 

[4] On November 15, 2016, the State charged Jackson with: Count I, conspiracy to 

commit burglary as a level 2 felony; and Count II, attempted burglary as a level 

2 felony. At Jackson’s jury trial, the following testimony was elicited from 

Wilson:

Q. Okay. And Arthur went to the bathroom. Can you describe 

his demeanor?

A. He was upset. 

Q. And why do you say that?

A. He was kneeled down on his knees at the toilet. He was 

throwing up in the toilet. He was spitting and gasping. I was 

pulling his dreads out of his face, asking him, what, what just 

happened. 

 

1 Wilson testified that Fat Daddy was Jackson and that Little Brian was Brian Goodson. 
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Q. Okay. At that time, was there anything else going on with 

Arthur?

A. He was upset. He was very upset. He got a circle mark in his 

hand with blood. I was checking him. I was asking him was he 

shot. 

Q. And what did he say?

A. I asked him, “What happened? What’s going on?” He said, 

“That he had got up -

Id. at 103-104. 

[5] At that point, Jackson’s defense counsel objected on hearsay grounds. The 

prosecutor responded that Wilson had described Arthur’s demeanor and 

testified that he was upset and vomiting and that Arthur was still under the 

distress and excitement of the situation. Jackson’s defense counsel argued that 

it was not clear how much time had passed since the event that had given rise to 

the distress. The prosecutor further questioned Wilson:

Q. How much time had elapsed since Arthur came back into the 

house that you saw him in the bathroom vomiting?

A. He was at the door. Straight to the bathroom. 

Q. If you had to guess, you know, within the minutes, hours? 

A. Minutes, then seconds. He was from the door in the 

bathroom. 

[Prosecutor]: Your Honor, I think that was immediately. It was 

an immediate reaction. 

The Court: I’ll overrule the objection. You can go ahead. 
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Q. What did Arthur say?

A. He said he had gotten up. He thought I was in the backroom 

letting the dog out. He seen (sic) a light under the door. He said 

he opened the door -

Id. at 105. Jackson’s defense counsel renewed his objection and stated “the 

longer the narrative the less susceptible it is to being interpretive as an excited 

utterance.” Id. The court responded “[w]ell I understand what you’re saying,” 

“[prosecutor], let’s go ahead and - you can re-ask the question,” and “[l]et’s 

establish the amount of time that we’re talking about, all right.” Id. at 105-106. 

[6] The prosecutor resumed questioning Wilson:

Q. When he was vomiting, did you ask him a question?

A. I did. 

Q. What was his response to your question?

A. I asked him what was going on. He said he opened the door 

and Fat Daddy and Little Brian was in the backroom, that Little 

Brian had an assault rifle, that he tried to shut the door, and Fat 

Daddy stuck his foot in the door and came out of his waistband 

with a gun, grabbed him by his dreads. 

Id. at 106. When asked how she knew Goodson, Wilson testified: “That is also 

my cousin’s son, my little cousin, his brother. Deshaun Jackson’s brother.” Id. 

at 107. The prosecutor continued questioning Wilson: 

Q. Okay. And so after Arthur answered your question, what did 

you do next? 
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A. I - he told me that someone shot - he said that he shot one of 

them.

Q. Who is “he”? 

A. He told me that they were in the backroom, that [Jackson] 

had pulled the gun. He was - they wrestled with the gun. He got 

it away from him. He shot. It shot Brian and I went outside 

from there.

Q. When you say “he shot Brian,” do you mean Arthur? 

A. Arthur shot Brian. 

Q. Did you give permission for Deshaun Jackson or Brian 

Goodson to be at your home that day?

A. No.

Id. 

[7] The State presented evidence that a projectile had been discovered on the floor 

of the laundry room, that a projectile and a buccal swab from Goodson were 

examined, and that a DNA profile of a swab taken from the projectile was 

“consistent with Brian Goodson” and “is estimated to occur once in more than 

eight trillion unrelated individuals.” Id. at 183. It also presented evidence that 

Goodson had arrived at the emergency room and reported a gunshot wound to 

his leg at about 9:20 or 9:30 a.m. on June 17, 2016, that Goodson had been 

dropped off at the hospital by a male driving a white vehicle, and Wilson had 

known Jackson to drive a light-colored Chevrolet Malibu. 
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[8] The jury found Jackson guilty on both counts as charged, and the court 

sentenced him to consecutive terms of ten years on Count I and fifteen years.

Discussion

I.

[9] The first issue is whether the trial court abused its discretion in admitting 

Wilson’s testimony regarding the statements Arthur made to her. The 

admission and exclusion of evidence falls within the sound discretion of the 

trial court, and we review the admission of evidence only for an abuse of 

discretion. Abney v. State, 79 N.E.3d 942, 953 (Ind. Ct. App. 2017) (citing 

Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002)). An abuse of discretion 

occurs where the decision is clearly against the logic and effect of the facts and 

circumstances. Id. (citing Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)). 

[10] Jackson claims that “[h]earsay testimony was improperly admitted under the 

guise of the excited utterance exception” and that Wilson “was allowed to 

quote her son at length under the excited utterance exception.” Appellant’s

Brief at 7-8. Jackson also asserts he was denied the opportunity to confront and 

cross-examine Arthur and that “even Arthur, in the dissertation that passed for 

an ‘excited utterance,’ offered no insight into how and why [Jackson] happened 

to be present in the Wilson residence.” Id. at 8-9. The State responds that 

Jackson has failed to present a cogent argument and that Wilson’s testimony 

was properly admitted as an excited utterance. 
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[11] Hearsay is a statement, other than one made by the declarant while testifying at 

trial, offered in evidence to prove the truth of the matter asserted. Ind. 

Evidence Rule 801(c). Hearsay is inadmissible unless admitted pursuant to a 

recognized exception. Ind. Evidence Rule 802. An excited utterance is such an 

exception and is defined as “[a] statement relating to a startling event or 

condition made while the declarant was under the stress of excitement caused 

by the event or condition.” Ind. Evidence Rule 803(2). For a hearsay 

statement to be admitted as an excited utterance, three elements must be 

shown: a startling event occurs; a statement is made by a declarant while under 

the stress of excitement caused by the event; and the statement relates to the 

event. Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). 

[12] Application of this rule is not mechanical, and admissibility should generally be 

determined on a case-by-case basis. Palacios v. State, 926 N.E.2d 1026, 1031 

(Ind. Ct. App. 2010). The heart of the inquiry is whether the statement is 

inherently reliable because the declarant was incapable of thoughtful reflection. 

Id. (citing Yamobi, 672 N.E.2d at 1346). The statement must be trustworthy 

under the specific facts of the case at hand. Id. The focus is on whether the 

statement was made while the declarant was under the influence of the 

excitement engendered by the startling event. Id. “A declaration does not lack 

spontaneity simply because it was an answer to a question.” Yamobi, 672 

N.E.2d at 1346. “Whether given in response to a question or not, the statement 

must be unrehearsed and made while still under the stress of excitement from 

the startling event.” Id. Also, the amount of time that has passed between the 
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startling event and the hearsay statement is one factor to be considered in 

determining admissibility as an excited utterance but the factor is not 

dispositive. Id. The central issue is whether the declarant was still under the 

stress of excitement caused by the startling event when the statement was made. 

Id. 

[13] To the extent that Jackson does not present cogent argument that a startling 

event did not occur, that Arthur was not under the stress of excitement caused 

by the event, or that Arthur’s statements to Wilson did not relate to the event, 

his claim is waived. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)

(finding that Cooper’s contention was not supported by cogent argument and 

was therefore waived). 

[14] The record reveals that Arthur opened the door to the backroom, observed 

Jackson and Goodson and that Goodson was in possession of an assault rifle,

and that, when Arthur attempted to shut the door, Jackson stuck his foot in the 

door, retrieved a gun from his waistband, and grabbed Arthur by his dreads. 

Arthur and Jackson wrestled with the gun, Arthur pulled the gun away from 

Jackson, Arthur fired the gun, and the bullet struck Goodson’s leg. Following 

the encounter, Arthur went to the front door and then to the bathroom. Wilson 

testified that Arthur was very upset, that he was on his knees vomiting in the 

toilet, that he was spitting and gasping, and that he had a mark in his hand with 

blood. Wilson asked Arthur what occurred, and Arthur identified Jackson and

described the struggle over the gun and how Goodson had been shot. When 

asked “[h]ow much time had elapsed since Arthur came back into the house 
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that you saw him in the bathroom vomiting,” Wilson replied, “[h]e was at the 

door. Straight to the bathroom,” and when asked to estimate the time, she 

answered “[m]inutes, then seconds. He was from the door in the bathroom.” 

Transcript Volume II at 105. The record demonstrates that Arthur was under 

the stress of his violent encounter with Jackson and Goodson when he told 

Wilson what had happened. We cannot say that the trial court abused its 

discretion in admitting Wilson’s testimony.2 

II.

[15] The next issue is whether there is sufficient evidence to sustain Jackson’s 

convictions. We consider only the probative evidence and reasonable 

inferences supporting the verdicts, without reweighing the evidence or assessing 

witness credibility. Jones v. State, 87 N.E.3d 450, 454 (Ind. 2017). Unless no 

reasonable factfinder could find the defendant guilty, we affirm. Id. 

[16] Jackson argues “[i]nsufficient evidence existed to support a conclusion that [he] 

conspired with anyone to commit burglary.” Appellant’s Brief at 9. He asserts: 

“There is nothing in the record to suggest a ‘breaking and entering’ by [him], or 

to suggest that he entered with the intent to commit a felony or a theft, or that 

 

2 To the extent Jackson argues on appeal that he was not afforded an opportunity to confront Arthur, we 

observe that Jackson did not object on Confrontation Clause grounds at trial and that a defendant may not 

raise one ground for objection at trial and argue a different ground on appeal. See Small v. State, 736 N.E.2d 

742, 747 (Ind. 2000) (observing that the defendant objected at trial on grounds that testimony was 

inadmissible hearsay and did not object on Confrontation Clause grounds and that a defendant may not raise 

one ground for objection at trial and argue a different ground on appeal). 
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he conspired with anyone, or attempted, to commit a burglary.” Id. at 9-10. He 

also argues that nothing was missing from the house and that “[t]he incident 

that culminated in the shooting of [Goodson] by Arthur may have begun as a 

social visit and gone awry.” Id. at 10. 

[17] The State argues that Jackson’s actions of entering the exterior room of 

Wilson’s residence and then forcing his foot into the interior door to push it 

open constitutes a breaking for the purposes of the statute. It also argues that 

“[a] reasonable jury could certainly infer that [Jackson] did not sneak into the 

house while armed with the intent to socialize—especially in light of the fact 

that he tried to force the door in, grabbed Arthur’s hair, and pulled out his 

firearm.” Appellee’s Brief at 18-19. 

[18] Ind. Code § 35-43-2-1 provides that a person who breaks and enters the building 

or structure of another person, with intent to commit a felony or theft in it, 

commits burglary as a level 5 felony. The statute further provides that the 

offense is a level two felony if it is committed while armed with a deadly 

weapon. Ind. Code § 35-43-2-1(3). “Using even the slightest force to gain 

unauthorized entry satisfies the breaking element of the crime.” Jenkins v. State, 

34 N.E.3d 258, 261 (Ind. Ct. App. 2015) (citing Davis v. State, 770 N.E.2d 319, 

322 (Ind. 2002), reh’g denied), trans. denied. “For example, opening an unlocked 

door or pushing a door that is slightly ajar constitutes a breaking.” Id. 

[19] Ind. Code § 35-41-5-1(a) provides that a person attempts to commit a crime 

when, acting with the culpability required for commission of the crime, the 
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person engages in conduct that constitutes a substantial step toward 

commission of the crime. An attempt to commit a crime is a felony or 

misdemeanor of the same level or class as the crime attempted. Ind. Code § 35-

41-5-1(a). A substantial step is any overt act beyond mere preparation and in 

furtherance of the intent to commit the offense. Kiplinger v. State, 922 N.E.2d 

1261, 1266 (Ind. 2010); Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct. App. 

1992). Whether a defendant has taken a substantial step toward the 

commission of the crime, so as to be guilty of attempt to commit that crime, is a 

question of fact to be decided by the jury based on the particular circumstances 

of the case. Hughes, 600 N.E.2d at 131. 

[20] Ind. Code § 35-41-5-2(a) provides that a person conspires to commit a felony 

when, with intent to commit the felony, the person agrees with another person 

to commit the felony and that a conspiracy to commit a felony is a felony of the 

same level as the underlying felony. Ind. Code § 35-41-5-2(b) provides that the 

State must allege and prove that either the person or the person with whom he 

or she agreed performed an overt act in furtherance of the agreement. The State 

is not required to show an express formal agreement, and proof of the 

conspiracy may rest entirely on circumstantial evidence. Fry v. State, 748 

N.E.2d 369, 374 (Ind. 2001). 

[21] The State presented evidence that Jackson and Goodson entered Wilson’s 

residence while Jackson was armed with a gun and Goodson was armed with 

an assault rifle and that, when Arthur saw them and attempted to shut the door, 

Jackson stuck his foot in the door, drew his gun from his waistband, and 
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grabbed Arthur by his hair. Arthur and Jackson wrestled with the gun, Arthur 

pulled the gun away from Jackson, and Arthur fired the gun, shooting Goodson 

in the leg. The State also presented DNA evidence and evidence of Goodson’s 

hospital visit. Wilson had not given permission for Jackson and Goodson to

enter her residence. Jackson does not argue on appeal that he was not the 

person who entered Wilson’s house with Goodson, that he and Goodson were 

not armed, or that he did not draw his gun from his waistband and grab Arthur

by the hair. A reasonable jury could infer from the evidence that Jackson and 

Goodman had agreed to burglarize Wilson’s house and had engaged in conduct 

constituting a substantial step toward the commission of the offense. Based 

upon the record, we conclude that evidence of probative value was presented 

from which the jury could find beyond a reasonable doubt that Jackson 

committed the charged offenses.

Conclusion

[22] For the foregoing reasons, we affirm Jackson’s convictions.

[23] Affirmed.

Bailey, J., and Crone, J., concur.