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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.

FILED
Dec 22 2008, 9:18 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN PINNOW Greenwood, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAYMON HOLBERT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A04-0802-CR-106

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge Cause No. 49G01-0601-MR-10054

December 22, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

Daymon Holbert was convicted of murder1 and robbery2 as a Class B felony after a jury trial and was sentenced to sixty years and twenty years respectively, which were to run concurrently. He appeals, raising the following restated issue: whether the trial court abused its discretion when it allowed a witness to testify as to what she was told by Holberts codefendant regarding a statement made by the victim just after she had been shot. We affirm. FACTS AND PROCEDURAL HISTORY LaShawn Campbell was a drug dealer and was often in possession of both drugs and large amounts of money. On June 18, 2004, Holbert, who was known by the nickname "D," met with Campbell in a parking lot, and the two completed a drug transaction. Tr. at 536, 720. Prior to this meeting, Holbert had told some people that he did not have any money and was looking "for a lick," which meant he was looking for someone to rob. Id. at 532, 727. Around the date of this drug transaction, Holbert frequently spent time with Jacque Johnson. On June 20, 2004, Holbert and Johnson had a conversation in the apartment of Dana Foley, Johnsons girlfriend, regarding a potential robbery. Holbert suggested that they rob a nearby gas station, but Johnson rejected the idea because he was worried about the cameras and layout of the gas station. The next morning, on June 21, Holbert came over to Foleys apartment, and Johnson left with him. Johnson returned approximately twenty minutes later. Shortly thereafter,

1

See Ind. Code

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