Rodney Evans v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                         FILED
    regarded as precedent or cited before any                                Oct 29 2019, 9:22 am
    court except for the purpose of establishing                                  CLERK
    the defense of res judicata, collateral                                   Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Michael R. Fisher                                        Curtis T. Hill, Jr.
    Marion County Public Defender Agency                     Attorney General of Indiana
    Indianapolis, Indiana
    Samantha M. Sumcad
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Rodney Evans,                                            October 29, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    19A-CR-958
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Sheila A. Carlisle,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    49G03-1708-MR-31041
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019                   Page 1 of 10
    Case Summary
    [1]   Rodney Evans appeals his five-year sentence in the Department of Correction
    (“DOC”) imposed for his conviction for the level 5 felony involuntary
    manslaughter of his friend Rodney Lewis. Evans argues that his sentence is
    inappropriate based on the nature of the offense and his character. Concluding
    that Evans has failed to carry his burden to show that his sentence is
    inappropriate, we affirm.
    Facts and Procedural History
    [2]   On April 21, 2017, sixty-year-old Evans lived at 2450 North Webster Avenue,
    Indianapolis, with Darrell Holton and Darrell’s girlfriend Tishawn Blackwell.
    Evans has spinal stenosis and arthritis in both of his knees. In 2011, the Social
    Security Administration determined that he was disabled under the Social
    Security Act. Evans uses a cane to walk and had several canes in his home.
    That night, Evans, Lewis, and two of Evans’s female friends drank alcohol and
    smoked marijuana at Evans’s home. Holton and Blackwell were in Holton’s
    bedroom.
    [3]   On April 22, 2017, at about 4:00 a.m., Indianapolis Metropolitan Police
    Department (“IMPD”) Officers Samuel House and Ross Allison were
    dispatched to the 2400 block of North Webster Avenue to investigate the report
    of a person down. The officers found a black male, later identified as Lewis,
    who was “severely beaten” and lying in the front yard of 2456 North Webster
    Avenue. Tr. Vol. 2 at 71. Lewis was bleeding from the head and appeared to
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 2 of 10
    have suffered “severe head trauma.” Id. at 60. His “face was all bloody,
    swollen,” and his “[c]lothes were bloody.” Id. at 71. Lewis was grunting or
    moaning. He was also wet and shivering from being out in the cold. The
    officers immediately called for an ambulance.
    [4]   Lewis was taken by ambulance to the hospital. He suffered extremely severe
    injuries to his face and head. He never regained consciousness and was
    transferred to a hospice facility where he died of his injuries in August 2017.
    An autopsy revealed that edema resulting from his head trauma caused his
    brain to stop controlling his vital organs, he was unable to swallow, and sputum
    aspirated in his lungs. Id. at 167.
    [5]   After locating Lewis, Officers Allison and House investigated the area and
    observed “drag marks” that appeared to lead to Evans’s house. Id. at 61, 72.
    Following the drag marks, the officers observed blood on the driveway and
    Evans’s front porch. IMPD Detective Christopher Edwards arrived, and the
    officers showed him where Lewis had been found and the drag marks.
    Detective Edwards observed “blood drops from the sidewalk [in front of
    Evans’s house] into the driveway, and then further into the driveway, and then
    on the porch and the little sidewalk area that led up to the porch, and then on
    the handrail, and then even on the outside of the door.” Id. at 87. Detective
    Edwards knocked on the door, and Evans answered. Detective Edwards
    immediately saw blood on the floor inside the house, blood spatter on the wall,
    and blood on Evans’s shirt, pants, and socks. Id. at 89. Police got everyone out
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 3 of 10
    of the house, took Evans, Holton, and Blackwell to the police station for
    questioning, and obtained a search warrant for Evans’s house. 1
    [6]   Evans was advised of and waived his rights and agreed to speak to the police.
    His statement was recorded. State’s Ex. 28; State’s Ex. 29 (transcript of
    statement). Evans told Detective Edwards three versions of what happened,
    finally admitting that he hit Lewis with his cane and that Lewis was so injured
    he was unable to walk out of the home. Conf. Ex. Vol. 1 at 65-99; Tr. Vol. 3 at
    83. In summary, Evans told police that on April 21, he smoked crack cocaine.
    Sometime later, two lady friends came to his home, and the three drank alcohol
    and smoked marijuana. That evening, Lewis joined the group and also drank
    alcohol and smoked marijuana. During the night, Evans consumed a pint and
    a couple of beers. 2 Conf. Ex. Vol. 1 at 76. At some point, Holton and
    Blackwell entered the home and went into Holton’s bedroom.
    [7]   Late in the evening, Lewis began to get on Evans’s nerves, and Evans told
    Lewis to leave. Id. at 73; Tr. Vol. 3 at 79. Lewis refused. Evans grabbed
    Lewis, and the two men began grabbing and pushing each other. Lewis
    grabbed a board and started swinging it at Evans. Conf. Ex. Vol. 1 at 81-82.
    Evans hit the board out of Lewis’s hands, and the men fell against the wall and
    broke chairs. Evans was very angry. Id. at 81. At one point, Holton came out
    1
    The record is unclear as to when Evans’s two female friends left the home.
    2
    At trial, Evans testified that he was drinking gin and beer. Tr. Vol. 3 at 55.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019      Page 4 of 10
    of his bedroom, but Evans told him that he did not need his help, and Holton
    returned to the bedroom. Id. at 80. Evans eventually pulled Lewis over to the
    side door and out of the house.
    [8]   Lewis returned, knocked on the front door, and started yelling. Evans opened
    the door, and Lewis pushed his way into the house. Id. at 92. The two started
    fighting again. Evans hit Lewis with his cane five to ten times. Id. at 94. Lewis
    was on the ground, attempting to cover himself from the beating. Id. at 95.
    Evans dragged Lewis out of the house, down the porch, and over to the
    adjacent yard. Id. at 95-96. Evans’s cane was broken, so he threw it in the
    trash can outside his house where police found it. Id. at 98.
    [9]   The State charged Evans with murder. A jury trial was held. During the
    State’s case in chief, the trial court admitted the recording of Evans’s statement
    and a transcript of that statement into evidence. State’s Exs. 28 and 29. Evans
    took the stand and asserted that he hit Lewis in self-defense. His trial testimony
    was different in several respects from the statement that he gave to police. Tr.
    Vol. 3 at 83. Most significantly, he testified that in addition to drinking alcohol
    and smoking marijuana, Lewis smoked synthetic marijuana and afterward
    started acting strangely. Id. at 79. Evans testified that he had to physically
    force Lewis out of his home twice, and Lewis forced himself into the home the
    second time he returned. Evans testified that while he and Lewis were
    wrestling, Holton came out of his bedroom and used Evans’s cane to hit Lewis
    several times, and that it was Holton who broke Evans’s cane. Id. at 71. Evans
    testified that Holton asked Blackwell to bring him his pistol, which he used to
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 5 of 10
    hit Lewis, and that was why Lewis had such severe injuries. Id. at 72-74.
    Evans also testified that Holton was the person who dragged Lewis outside, and
    when Holton came back in the house, he washed his hands and changed his
    clothes. 3 Id. at 74-75, 82.
    [10]   The jury found Evans guilty of the lesser included offense of level 5 felony
    involuntary manslaughter. At sentencing, the trial court found that Evans had
    used crack cocaine, marijuana, and alcohol on the day of his offense, and that
    Evans had a history of drug and alcohol abuse that had “virtually consumed”
    his adult life. Id. at 186. That history included a dishonorable discharge from
    the Army in 1984 due to possession of marijuana, a 1999 conviction for class D
    felony maintaining a common nuisance, and three inpatient stays in facilities
    for substance abuse treatment. The trial court noted that despite that history,
    Evans had indicated in the presentence investigation report (“PSI”) that he had
    never had a problem with alcohol or drugs. Further, Evans was initially offered
    probation for his class D felony conviction, but he violated the conditions of
    probation, and it was revoked. The trial court also observed that Lewis was
    Evans’s friend, yet Evans had beat him and left him “discarded in a front lawn
    to lay there and suffer after the beating that he endured.” Id. at 188. The trial
    court also noted that Evans’s trial testimony and deposition were inconsistent,
    3
    Holton testified as a witness for the State via deposition. Tr. Vol. 2 at 219-50. He testified that he broke up
    “a little scuffle” between Evans and Lewis, that he never saw Evans hit Lewis with a cane or other object,
    that Lewis fell in the house and broke a chair, that Lewis fell down at least two times outside, that Lewis was
    yelling that someone was chasing him, and that he did not know how Lewis ended up in the condition he
    was in. Id. at 225, 231, 234, 238, 242-43, 248, 250.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019                     Page 6 of 10
    and that Evans had lied. Finally, the trial court observed that although Evans
    was disabled, his disability did not prevent him from beating Lewis and
    inflicting injuries so serious that they resulted in Lewis’s death. The trial court
    found that a slightly aggravated sentence was appropriate and sentenced Evans
    to five years, all executed. This appeal ensued.
    Discussion and Decision
    [11]   Evans asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),
    which states, “The Court may revise a sentence authorized by statute if, after
    due consideration of the trial court’s decision, the Court finds that the sentence
    is inappropriate in light of the nature of the offense and the character of the
    offender.” When reviewing a sentence, our principal role is to leaven the
    outliers rather than necessarily achieve what is perceived as the correct result in
    each case. Cardwell v. State, 
    895 N.E.2d 1219
    , 1225 (Ind. 2008). “We do not
    look to determine if the sentence was appropriate; instead we look to make sure
    the sentence was not inappropriate.” Conley v. State, 
    972 N.E.2d 864
    , 876 (Ind.
    2012). “[S]entencing is principally a discretionary function in which the trial
    court’s judgment should receive considerable deference.” Cardwell, 895 N.E.2d
    at 1222. “Such deference should prevail unless overcome by compelling
    evidence portraying in a positive light the nature of the offense (such as
    accompanied by restraint, regard, and lack of brutality) and the defendant’s
    character (such as substantial virtuous traits or persistent examples of good
    character).” Stephenson v. State, 
    29 N.E.3d 111
    , 122 (Ind. 2015). In conducting
    our review, we may consider all aspects of the penal consequences imposed by
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 7 of 10
    the trial court in sentencing, i.e., whether it consists of executed time,
    probation, suspension, home detention, or placement in community
    corrections, and whether the sentences run concurrently or consecutively.
    Davidson v. State, 
    926 N.E.2d 1023
    , 1025 (Ind. 2010). In addition, as we assess
    the nature of the offense and character of the offender, “we may look to any
    factors appearing in the record.” Boling v. State, 
    982 N.E.2d 1055
    , 1060 (Ind.
    Ct. App. 2013). Evans has the burden to show that his sentence is
    inappropriate. Anglemyer v. State, 
    868 N.E.2d 482
    , 490 (Ind. 2007), clarified on
    reh’g, 
    875 N.E.2d 218
    .
    [12]   Turning first to the nature of the offense, we observe that “the advisory sentence
    is the starting point the Legislature selected as appropriate for the crime
    committed.” Pierce v. State, 
    949 N.E.2d 349
    , 352 (Ind. 2011). The sentencing
    range for a level 5 felony is one to six years, with an advisory sentence of three
    years. 
    Ind. Code § 35-50-2-6
    (b). The trial court imposed a sentence above the
    advisory and ordered it fully executed in the DOC. Evans contends that a fully
    executed sentence above the advisory is inappropriate.
    [13]   Specifically, Evans asserts that the sentence is inappropriate because the jury
    concluded that he did not commit murder or voluntary manslaughter, and
    Lewis’s death was the tragic, unintended consequence of a conflict between two
    friends, which was precipitated by Lewis’s drug-induced behavior. Evans’s
    argument relies on his self-serving trial testimony, which was inconsistent with
    his police statement. Undeniably, Evans contributed to the brutal beating of his
    friend, much of it delivered while Lewis cowered on the ground. Then, Lewis
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 8 of 10
    was dragged outside and abandoned on the ground in the cold in the middle of
    the night. Despite the severity of Lewis’s injuries, Evans made no attempt to
    obtain medical help for Lewis. The nature of Evans’s crime does not persuade
    us that an executed sentence above the advisory is inappropriate.
    [14]   As to Evans’s character, he points to his relatively inconsequential criminal
    history. However, he ignores that his class D felony maintaining a common
    nuisance was based on his use of drugs and that he committed the current
    offense after using drugs and alcohol. Thus, although he has but one prior
    felony, it is significant because of its similarity to the current offense.
    Additionally, although Evans was granted the benefit of probation, he was
    unable or unwilling to obey the conditions of his probation, and it was revoked.
    None of this reflects well on Evans’s ability to conform his behavior to the law.
    [15]   Evans argues that commitment to the DOC is unsuitable because he needs
    genuine drug treatment and is disabled. Although he now argues that he needs
    drug treatment, Evans failed to acknowledge that he had a drug problem in the
    PSI. Should Evans decide to address his substance abuse issues, he can receive
    substance abuse treatment while incarcerated by participating in the Purposeful
    Incarceration program as recommended by the trial court. Evans’s disability
    did not prevent him from committing the current offense, and he does not
    specifically articulate why his disability makes incarceration inappropriate. We
    further observe that Evans appears to have a deceitful character, as shown by
    the significant differences between his trial testimony and his statement to
    police. His lack of compassion toward Lewis, his friend, reflects poorly on his
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 9 of 10
    character as well. Evans presents no evidence of virtuous traits or persistent
    examples of good character. Accordingly, Evans’s character does not persuade
    us that a term of incarceration in the DOC above the advisory sentence is
    inappropriate.
    [16]   We conclude that Evans has failed to carry his burden to show that his sentence
    is inappropriate based on the nature of the offense and his character.
    Therefore, we affirm.
    [17]   Affirmed.
    Baker, J., and Kirsch, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 10 of 10
    

Document Info

Docket Number: 19A-CR-958

Filed Date: 10/29/2019

Precedential Status: Precedential

Modified Date: 10/29/2019