Brian L. Blevins, Sr. v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Oct 26 2016, 8:56 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amber M. Neal Gregory F. Zoeller
Muncie, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian L. Blevins, Sr., October 26, 2016
Appellant-Defendant, Court of Appeals Case No.
18A05-1603-CR-714
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Linda Ralu Wolf,
Appellee-Plaintiff Judge
Trial Court Cause No.
18C03-1304-FA-03
Crone, Judge.
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Case Summary
[1] Brian L. Blevins, Sr., appeals his conviction for class A felony conspiracy to
commit murder following a jury trial. He contends that the evidence is
insufficient to support his conviction and that the forty-year sentence imposed
by the trial court is inappropriate in light of the nature of the offense and his
character. Finding the evidence sufficient and that Blevins has not met his
burden to demonstrate that his sentence is inappropriate, we affirm.
Facts and Procedural History
[2] In February 2013, Billy Hartman’s residence in Eaton was burglarized.
Approximately $30,400 in cash was taken from a safe in the home and several
firearms were stolen. Blevins was arrested for that crime, booked into the
Delaware County Jail, and placed in cell block D. While in jail, Blevins
became acquainted with Jeffrey Markham, who had been arrested a few
months earlier for battery with a deadly weapon and had also been placed in
cell block D.
[3] Blevins and Markham spent a considerable amount of time talking in order to
“pass the time.” Tr. at 119. Markham told Blevins that he hoped to get a job
driving taxi cabs in Muncie when he was released from jail. Blevins told
Markham that he knew a guy that owned a taxi cab company in Muncie “that
always carried a lot of money and what an easy mark he would be to rob.” Id.
at 121. While Blevins talked about robbery at first, his focus quickly turned to
murder. Blevins explained to Markham about how the cab company owner
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“was a pretty large fella, you’d have to subdue him somehow and then that
progressed [to] … you’d have to kill the man.” Id. Blevins discussed with
Markham how Markham could accomplish a robbery, and the plan went from
Markham shooting the owner “in the leg” to subdue him, to shooting him “in
the head.” Id. at 122. Blevins eventually told Markham that the name of the
intended victim was Billy Hartman, the individual whose home Blevins had
recently been arrested for burglarizing. Blevins told Markham that he would
probably need to kill Hartman, his wife, and his seven-year-old granddaughter
who lived in the home as well.
[4] Over the next month, Blevins continued to try to enlist Markham’s help to rob
and murder Hartman. He gave several handwritten notes to Markham stating
that he was “dead serious” about wanting Markham to help him. State’s Ex. 5.
He told Markham that Markham would have to be “ruthless most likely” and
stated, “[I] don’t care if you got to take out the whole family LOL.” State’s
Exs. 3, 5. In one note, Blevins questioned Markham’s desire to participate in
the crimes and asked Markham for assurances that he wasn’t going to “screw”
Blevins. State’s Ex. 2. Blevins told Markham that he had found someone else
in the jail that would commit the crimes if Markham would not, but told
Markham that he just “felt better” about Markham doing it. Id. Markham
responded to the note, reassuring Blevins “I AM REAL!!! Not my 1st Rodeo.”
Id.
[5] Once Blevins was satisfied that Markham had agreed to participate in the
crimes, Blevins told him that he would call his parents so that they would come
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post bail for Markham. Blevins told Markham that on the night of his release,
he should go straight to Hartman’s residence and kill him and his family.
Blevins instructed Markham to then come back and stand outside the jail at
midnight and signal Blevins with a “thumbs up that the job was done.” Tr. at
133. Blevins told Markham that his “cut was going to be a third” of whatever
money was stolen, but instructed him that he would need to give some of the
money to Blevins’s parents and that he should give the rest to Blevins’s
girlfriend to hold until Blevins was released from jail. Id. at 125. Blevins said
he would “divvy up the funds” with Markham after his release. Id. Blevins
drew Markham a map to show him exactly where Hartman lived in Eaton.
State’s Ex. 1.
[6] On April 3, 2013, Markham decided that he wanted no part in Blevins’s plan,
so he informed guards at the jail that he needed to talk to someone. Markham
met with Delaware County Sheriff’s Investigator Kurt Walthour and told him
what Blevins was planning. Investigator Walthour wired Markham with a
recording device and sent him back to cell block D. Markham and Blevins
continued to discuss the details of the plan, including how Markham would
enter Hartman’s residence and kill Hartman and his family. State’s Ex. 6 & 7.
Markham asked Blevins numerous times whether he was sure that he wanted
“them all dead.” Tr. at 151. “Every single time, without fail, [Blevins] said yes
….” Id. Later that day, Blevins called his father from the jail, and on April 4,
2013, Blevins’s father posted bail for Markham.
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[7] The State charged Blevins with class A felony conspiracy to commit murder.
Following a trial, the jury found Blevins guilty as charged. The trial court
imposed a forty-year sentence. This appeal ensued.
Discussion and Decision
Section 1 – The evidence is sufficient to support Blevins’s
conviction.
[8] Blevins first contends that the State presented insufficient evidence to support
his conviction. When reviewing a claim of insufficient evidence, we neither
reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,
499 (Ind. 2015). We look to the evidence and reasonable inferences drawn
therefrom that support the verdict and will affirm if there is probative evidence
from which a reasonable factfinder could have found the defendant guilty
beyond a reasonable doubt. Id. In short, if the testimony believed by the trier
of fact is enough to support the verdict, then the reviewing court will not disturb
the conviction. Id. at 500.
[9] The charging information here provided as follows:
The undersigned says that between March 1, 2013, and April 4,
2013, in Delaware County, State of Indiana, Brian Lee Blevins
Sr. did knowingly agree with another person or persons, to-wit:
Jeff Markham or other unnamed co-conspirators, to commit the
crime of murder, and either Blevins or the other person or
persons with whom he agreed did perform one or more overt acts
in furtherance of the agreement, to-wit:
1. exchange handwritten notes;
2. drew a map;
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3. possessed a map;
4. called Ovia Blevins;
5. made arrangements to bail Jeff Markham out of jail,
contrary to the form of the statutes in such cases made and
provided by I.C. 35-42-1-1(1) and I.C. 35-41-5-2 and
against the peace and dignity of the State of Indiana.
Appellant’s App. Vol. II at 21. Indiana Code Section 35-41-5-2 provides in
relevant part,
(a) A person conspires to commit a felony when, with intent to
commit the felony, he agrees with another person to commit the
felony. A conspiracy to commit a felony is a felony of the same
class as the underlying felony. However, a conspiracy to commit
murder is a Class A felony.
(b) The state must allege and prove that either the person or
person with whom he agreed performed an overt act in
furtherance of the agreement.
Further, Indiana Code Section 35-42-1-1 provides that a person who
“knowingly or intentionally kills another human being … commits murder, a
felony.”
[10] Accordingly, to convict Blevins of conspiracy to commit murder, the State had
to prove beyond a reasonable doubt that Blevins, (1) with the intent to commit
murder, (2) agreed with Markham to commit murder, and (3) either Blevins or
Markham performed an overt act in furtherance of the agreement. See Ind.
Code § 35-41-5-2. The State need not “present direct evidence of a formal
express agreement. The agreement as well as the requisite guilty knowledge and
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intent may be inferred from circumstantial evidence alone, including overt acts
of the parties in pursuance of the criminal act.” Erkins v. State, 13 N.E.3d 400,
407 (Ind. 2014) (citation omitted).
[11] Here, Markham gave detailed testimony regarding his agreement with Blevins
to rob and murder Hartman, and the numerous overt acts that they each
performed in furtherance of that agreement, including the exchange of
handwritten notes, a map drawn by Blevins with directions to Hartman’s
residence, and Blevins’s call to his father to arrange to have Markham bailed
out of jail. Blevins concedes that there was sufficient evidence to establish that
he conspired with Markham to commit robbery or burglary, but maintains that
there was insufficient evidence that he conspired to commit murder.
Essentially, Blevins contends that the plan to commit murder was Markham’s
plan alone. Blevins’s argument is merely a request for this Court to reweigh the
evidence and reassess witness credibility, which we cannot do. In short, based
upon Markham’s unequivocal testimony and the circumstantial evidence
presented, a reasonable factfinder could have found Blevins guilty beyond a
reasonable doubt of conspiracy to commit murder. The evidence is sufficient to
support his conviction.
Section 2 – Blevins has not met his burden to demonstrate that
his sentence is inappropriate.
[12] Blevins next claims that his sentence is inappropriate and invites this Court to
reduce his sentence pursuant to Indiana Appellate Rule 7(B) which provides
that we may revise a sentence authorized by statute if, after due consideration
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of the trial court’s decision, we find that the sentence “is inappropriate in light
of the nature of the offense and the character of the offender.” The defendant
bears the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented, and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
turns on “our sense of the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other facts that come to light in a given
case.” Id. at 1224.
[13] Regarding the nature of the offenses, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range
for a class A felony is between twenty and fifty years, with an advisory sentence
of thirty years. Ind. Code § 35-50-2-4. The trial court here imposed an
aggravated sentence of forty years.
[14] As for the nature of the offense, the evidence indicates that Blevins sought out
Markham to enlist his help with the plan to rob and murder Hartman. Blevins
worked hard to cultivate a relationship with Markham and then, for more than
a month, continued to plan with and instruct Markham on how to carry out the
scheme. The plan included the murder of not just Hartman, but his whole
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family if necessary. Blevins’s apparent motive was pure greed, and perhaps the
desire to eliminate Hartman as the main witness against him in a pending case.
Nothing about the nature of this offense warrants a reduction in Blevins’s forty-
year sentence.
[15] Blevins does not fare much better regarding his character. When considering
the character of the offender, one relevant consideration is the defendant’s
criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
Blevins has a moderately lengthy criminal history consisting of both felony and
misdemeanor convictions involving crimes of violence. Indeed, he was in jail
and on probation for a felony conviction when he committed the instant
offense. Blevins’s history demonstrates his utter disdain for the law and does
not reflect favorably upon his character. Moreover, Blevins was clearly the
principal in this serious crime and was calling all the shots. While Blevins
attempts to excuse his past and present behavior by pointing to his longstanding
untreated substance abuse problem, we defer to the trial court’s decision to
attribute minimal mitigating weight to this circumstance. Blevins has not
persuaded us that a sentence reduction is warranted based upon his character.
[16] In sum, the State presented sufficient evidence to support Blevins’s conviction,
and he has not met his burden to establish that the forty-year sentence imposed
by the trial court is inappropriate. We therefore affirm his conviction and
sentence.
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[17] Affirmed
Kirsch, J., and May, J., concur.
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