COA upholds convictions of man who targeted Burmese

An Alabama man was unable to convince the Indiana Court of Appeals that he was not behind several attacks on members of the Burmese community in Indianapolis two years ago. The judges affirmed Danny Cherry’s 80-year sentence for various crimes, including attempted murder.

Cherry was convicted of attempted murder as a Class A felony, two counts of unlawful possession of a firearm by a serious violent felon as Class B felonies, criminal recklessness as a class C felony, three counts of child exploitation as Class C felonies, stalking as a Class C felony, three counts of intimidation as Class D felonies, and eleven counts of dissemination of matter harmful to a minor as Class D felonies. The convictions stem from his creation of Facebook accounts using Burmese names in order to attempt to send and solicit graphic pictures and threaten several Burmese families Indianapolis as well as violent attacks. Cherry seemed to blame Burmese people for his inability to find a job, and claimed one of the people he met on a gay chat line had called him gay slurs.

The home of one family was shot up several times in January 2014. Two days later, James Len was shot at his home by a tall black man in dark clothing. The shooting caused a stroke, leaving him unable to speak.

In February 2014, Cherry called a school and said he was looking for a specific Burmese boy and if the principal didn’t send him out, he was going to go in and kill everyone. The principal was able to record one of the phone calls.

Police were able to track the accounts to Danny Cherry in Alabama based on his cellphone service provider and phone. Cherry agreed to talk to an Indianapolis detective who traveled to Alabama. At the Madison County Sheriff’s Department in Huntsville, detectives turn recording equipment on and off by toggling a switch outside of the interview room. A portion of Cherry’s interview did not record, including the part where he waived his Miranda rights, so he argued none of the video should be admitted.

The detectives testified that the video equipment could have malfunction and that the toggle switch was replaced within a few months of Cherry’s interview; or that it’s possible one detective had hit the switch without the other knowing it was already on, inadvertently shutting off the recording equipment. The Court of Appeals found the exception in Indiana Evidence Rule 617(a)(3) applies, which allows for admission when there is good faith to make the recording.

There is also sufficient evidence to sustain his convictions, Judge Elaine Brown noted, pointing out Cherry stayed in an Indianapolis hotel in January when the shootings occurred and Cherry knew what kind of gun was used to shoot Len.

The case is Danny Cherry v. State of Indiana, 49A02-1505-CR-340.