William Levi Abel v. State of Indiana (mem. dec. ) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 29 2018, 5:45 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Levi Abel, November 29, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-857
v. Appeal from the Greene Circuit
Court
State of Indiana, The Honorable Erik C. Allen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28C01-1702-MR-1
Darden, Senior Judge.
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Statement of the Case
1
[1] William Levi Abel primarily appeals his conviction of murder, a felony.
However, he also appeals the eighty-year aggregate sentence the trial court
imposed following his convictions of murder; obstruction of justice, a Level 6
2 3 4
felony; theft, a Level 6 felony; and, a firearm sentencing enhancement. We
affirm.
Issues
[2] Abel raises three issues, which we restate as:
I. Whether the State presented sufficient evidence to rebut
Abel’s claim of self-defense.
II. Whether the trial court abused its discretion at sentencing.
III. Whether Abel’s sentence is inappropriate in light of the
nature of the offense and the character of the offender.
Facts and Procedural History
[3] In January 2017, twenty-one-year-old Chase Aliano lived with his mother,
Bambi Aliano, in Lawrence County. He drove a red Chevrolet Tracker vehicle.
1
Ind. Code § 35-42-1-1 (2014).
2
Ind. Code § 35-44.1-2-2 (2014).
3
Ind. Code § 35-43-4-2 (2014).
4
Ind. Code § 35-50-2-11 (2016).
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Chase enjoyed shooting guns, and his family and friends were aware that he
kept several firearms in his car, including a .40 caliber handgun, a .44 caliber
handgun, a shotgun, and a .22 caliber AR rifle. In addition, Chase’s friends
knew that he used and sometimes sold controlled substances, including
methamphetamine.
[4] Also, in January 2017, twenty-four-year-old William Abel lived with his
parents, John and Kay Abel, and other family members on the family’s 211-
acre farm in Greene County. The family lived in a large house, but there was
also a cabin on the property. The cabin was located a quarter of a mile from the
house in a wooded portion of the property, but it did not have electrical service.
John and Kay had previously kicked Abel out of their house, but he moved
back in 2016 while they were on vacation, and they were afraid to ask him to
leave again. Tr. Vol. 3, p. 126. Abel used speed, a form of methamphetamine.
He had not maintained had a regular job in nine months, and he did not have a
drivers’ license.
[5] Chase and Abel had met in 2016 through a mutual friend. On January 27,
2017, Chase arrived at the farm to visit Abel. Abel had previously told Lynn
Alexander, who also lived in the Abels’ house, that he needed money for
Chase, and Alexander gave Abel $200 before Chase arrived. Chase brought
methamphetamine with him and smoked it with Abel and Alexander in Abel’s
room. Chase and Abel were friendly to one another and talked about guns.
Chase left the house early in the morning on January 28, 2017.
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[6] Abel had dated Tina Holland for several years, but she had ended their
relationship in December 2016. Abel continued to call and text Holland even
though she had told him that she did not want to communicate with him
anymore. He told Holland that he wanted her to visit him at the farm on his
birthday, January 30, 2017. In addition, Abel told his parents that Holland was
coming to visit on that day, and he cleaned up his bedroom. Holland initially
told him she would come to visit with him but later told him that she had
changed her mind. Abel became “really upset.” Tr. Vol. 4, p. 177. Holland
stated that had never heard that kind of language coming from him before.
[7] Abel’s father, John, noticed that Abel appeared depressed after Holland decided
not to visit, and Abel wrote Tina’s name on “[j]ust about everything up in his
room.” Tr. Vol. 3, p. 88. Kay later stated, “[Y]ou can’t imagine how many
times Tina was written on something.” Tr. Vol. 3, p. 140. Alexander noticed
Abel “was acting paranoid” and was angry. Tr. Vol. 4, p. 142.
[8] On January 31, 2017, Chase and Abel exchanged twenty-nine text messages
between 9:24 p.m. and 11:41 p.m. The contents of the messages have not been
included in the record. In addition, there were seven mobile phone calls
between the two men that evening, starting at 9:14 p.m. and ending at 11:17
p.m.
[9] That same evening, Chase spoke with his friend, Riley Donica, and told him he
was going to sell his .44 caliber handgun to “Billy Abel.” Tr. Vol. 2, p. 223.
Donica asked Chase to meet him and others later at a bar to celebrate another
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friend’s birthday. Chase agreed to meet Donica after the sale. In addition,
Chase told Bambi, his mother, that he was going to Greene County to sell a
handgun and would then return to Lawrence County to attend a friend’s
birthday party. Chase left his mother’s house at 10:45 p.m.
[10] Chase and Donica continued to communicate through a social media
messaging website on the night of January 31, 2017, until around eleven
o’clock; after which Chase stopped sending messages and did not respond to
Donica’s messages. Chase’s other friends also sent him numerous messages, to
which he failed to respond. Chase never appeared at the birthday celebration.
[11] On the night of January 31, 2017, Abel’s father, John, saw Abel leave the house
at 11:30 p.m. and get into a vehicle. John could not identify the vehicle or the
driver because it was dark outside, but he saw the vehicle’s taillights as it drove
through a field on the farm. John did not see Abel again until 8:00 a.m. the
following morning, when Abel entered the house as John was eating breakfast.
Later that day, Abel and John went to a store, where Abel purchased .40
caliber, .44 caliber, and .22 caliber ammunition. Abel paid with cash. During
the trip to the store, Abel told John that he had traded with someone for several
handguns.
[12] Within a few days after January 31, 2017, Abel texted Holland photographs of
Chase’s Tracker and of Chase’s .44 caliber handgun. Abel indicated he wanted
her to have the vehicle and the handgun. She asked him to text her a
photograph of the Tracker’s title, however, the title he texted her was for a
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different vehicle. Holland knew Abel did not have a job, and she was
concerned that his possession of the Tracker may not have been “legal.” Tr.
Vol. 4, p. 179. In the past, Holland had told him that she liked handguns and
wanted to own a four-wheel-drive vehicle, and she thought Abel may have been
offering her those items to encourage her to “start coming around” again. Id. at
182.
[13] On February 2, 2017, Abel texted a neighbor, William Schulz, to tell him he
was putting scopes on several guns, including a .44 magnum handgun. He
texted Schulz a picture of a rifle. Abel further told Schultz he had received a
great deal on the guns and had purchased every gun that the seller had owned.
[14] Shortly after January 31, 2017, Abel’s father, John, noticed his tractor was
missing, and he asked Abel about it. Abel told him he had driven the tractor
down to a pasture on the farm to help move a Chevy Tracker, which Abel
claimed had broken down while he and Chase were “doing donuts in the field.”
Tr. Vol. 3, p. 93. John found the Tracker at the rear of his barn, in a spot that
was not visible from the house or the nearby road. At that time, the Tracker did
not have a license plate on it. Abel told John and Kay that he was waiting for
Chase to return with a part to fix the Tracker. Abel further told John, but not
Kay, that Chase was in Indianapolis “with his girlfriend getting more drugs.”
Id. at 98.
[15] John wrote down the Tracker’s vehicle identification number (VIN) and gave it
to Kay. Kay shared the VIN with a friend and asked the friend to find out
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whether the vehicle was stolen. The friend told John and Kay that the Tracker
was registered to Chase Aliano.
[16] Sometime between January 31 and February 3, 2017, Abel had entered the
house and told John he thought there was a drone following him and that he
was worried “cops could hear through the walls.” Id. at 104. John suspected
Abel was under the influence of controlled substances.
[17] On the evening of February 3, 2017, Bambi called Chase’s father, Steve Aliano,
to tell him she was deeply concerned because she had not heard from Chase
since January 31, 2017. She further told Steve that Riley Donica had told her
that Chase had not contacted him either since January 31, 2017. Chase’s
absence and failure to communicate was highly unusual. Steve had electronic
access to Chase’s mobile phone records. As he prepared to access the records,
Steve called Donica, who told Steve that on the night of January 31, 2017,
Chase had gone “to Billy Abel’s house to sell him a .44 magnum” handgun.
Tr. Vol. 2, p. 161.
[18] Steve learned from Chase’s mobile phone records that Chase had repeatedly
called and texted one particular number on the evening of January 31, 2017.
The records further showed that Chase had sent a text to the same number at
11:41 p.m. on that night, and then there were no further calls or texts to or from
Chase’s mobile phone. Steve did not recognize the number, so he placed a call
to it.
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[19] Abel answered Steve’s telephone call and identified himself. Steve asked Abel
if Chase had been at his home on January 31, 2017, and Abel told him that
Chase had never arrived at the farm. Upon further questioning by Steve, Abel
stated Chase had called him to say that he needed to go help a “girl” who had
called Chase and told him her “vehicle broke down.” Id. at 164. Abel further
stated he had been trying to contact Chase without success. Steve knew from
reviewing Chase’s mobile phone records that Chase had not received a call
from an unknown female during the period of time Abel said the call had
occurred.
[20] Meanwhile, Donica also called Abel on February 3, 2017. Abel told him that
Chase had never arrived at the farm but had instead called Abel to tell him he
needed to go help a girl whose car had broken down. Abel further stated that
Chase had borrowed one of his handguns, and he did not “want that gun
involved in something.” Id. at 228.
[21] Meanwhile, also on the evening of February 3, 2017, Abel told his parents that
he needed to move the Tracker because Chase called and told him that Chase’s
mother, Bambi, was angry. Abel further told his parents that Chase wanted
Abel to hide the Tracker so that Chase’s mother could not find it. Abel later
admitted to law enforcement that he had in fact wanted to hide the Tracker
because he knew the police would soon be looking for it. John and Abel used
John’s tractor to tow the Tracker down a hill to a concealed location. John was
not happy about hiding the Tracker, but Abel convinced him that Chase wanted
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them to do it. Next, Abel further attempted to hide the Tracker by concealing it
behind a mattress, a pallet, and other debris.
[22] Steve, who lived in Lawrence County, called the Lawrence County Sheriff’s
Department (LCSD) on the evening of February 3, 2017, to file a missing
person’s report for Chase. A sheriff’s deputy arrived at Steve’s house. The
deputy spoke with Steve and took photographs of Chase’s telephone records.
[23] After speaking with Steve, the deputy requested a Lawrence County dispatcher
to contact the Greene County Sheriff’s Department (GCSD) to send officers to
Abel’s house to search for Chase and the Tracker. Greene County Sheriff’s
Deputies Bobby Pierce and Davis Arne arrived at the Abels’ farm at 4:49 a.m.
on February 4, 2017.
[24] Abel spoke with the deputies, and Deputy Pierce recorded their conversation.
Abel told the deputies he knew they were looking for Chase. He further stated
that Chase had arrived at his family’s farm on the evening of January 31, 2017.
According to Abel, he had purchased controlled substances from Chase in the
past, and on the night of January 31, he and Chase met in a field on the
property and talked about buying more controlled substances. Abel stated that
he gave Chase money for drugs, and Chase left to go to Indianapolis to make
the purchase. In addition, Abel further told the deputies that he had lied to
Chase’s father when he said that Chase had not been at the farm on January 31,
2017. Abel explained he did not want to tell Steve about Chase’s involvement
in controlled substances. Abel further told the deputies that he had repeatedly
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called Chase since January 31, 2017, but he had not made contact with Chase.
Abel never mentioned that he had argued or fought with Chase after they met,
and the deputies did not see any injuries on Abel.
[25] Deputy Pierce contacted the LCSD to report his conversation with Abel.
Captain Andrew Phillips of the LCSD called Abel at 7:45 a.m. on February 4,
2017, to ask him to come to the sheriff’s office to answer questions and provide
a statement. John drove Abel to the office, and they arrived at 9:00 a.m. that
morning. Abel continued to tell John that he believed Chase was in
Indianapolis.
[26] Captain Phillips interviewed Abel outside of John’s presence and recorded the
interview using his body camera. He advised Abel that he was not in custody
and was free to leave at any time. During the interview, Phillips typed a
statement for Abel to review and sign. Abel told Phillips that he had been
purchasing controlled substances from Chase about once a month for the prior
sixth months. Abel further stated that Chase arrived at the farm in a red
Chevrolet SUV on the night of January 31, 2017, for a potential gun sale. Abel
stated the two met in a field and smoked “speed” together. Tr. Vol. 6, State’s
Ex. 11, at 3:26. Abel told Phillips that after further discussion, Chase decided
not to sell his handgun to Abel. Instead, they agreed that Chase would put a
scope on Abel’s .357 Smith & Wesson handgun.
[27] Abel further stated that Chase accepted $350 from him to go to Indianapolis to
buy more controlled substances. According to Abel, Chase left with Abel’s
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money and Abel’s handgun, and Abel never saw him again. Abel also told
Phillips that Chase had mentioned that he planned to meet some friends at a
bar after he went to Indianapolis. Abel denied arguing or fighting with Chase
on January 31, 2017; however, he told Phillips that in late autumn 2016, Chase
had taken money from him, supposedly to buy controlled substances, and had
then failed to contact him for a month.
[28] In addition, Abel conceded he had lied to Steve and to one of Chase’s friends
when he told them that Chase had never arrived at the farm on January 31,
2017. Abel told Phillips that Chase might be staying with a woman. In
addition, he expressed concern that Chase had not returned his handgun. Abel
described for Phillips several guns that he said Chase always had with him,
including a .44 caliber handgun and an AR-15 rifle.
[29] After the interview, Phillips attempted to locate Chase’s mobile phone by using
cell phone towers to triangulate the mobile phone’s signal. Phillips learned the
mobile phone had last sent a signal from an area in Greene County. Next, at
3:18 p.m. that day, he contacted the GCSD and requested that someone be sent
to search for Chase’s phone in that area.
[30] At some point on February 4, 2017, Abel had called Holland and informed her
the police had contacted him about the Tracker. According to Holland, Abel
was “really upset,” and he told her “none of this would have happened if you’d
just came [sic] and saw me, I did this for you.” Tr. Vol. 4, p. 183. At that
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moment, Holland believed that Abel might have stolen the gun and the
Tracker.
[31] At 4:43 p.m. on February 4, 2017, Green County Sheriff’s Deputies Anthony
Pope and Blake McKamey were dispatched to an area identified by Captain
Phillips to search for Chase’s mobile phone. The Abels’ farm was in the
tracked area to be searched. The deputies went to the Abels’ house and spoke
with Abel and John. During the discussion, Abel admitted the Tracker was on
the farm. John gave the deputies permission to view the vehicle. They found
the Tracker in a sunken area of the farm, behind a mattress, a pallet, and brush.
In addition, someone had put a license plate on the vehicle. The deputies
notified a Greene County detective of their discovery and cordoned off the area.
[32] At that point, Deputy Pope spoke with Abel again, recording the conversation.
Abel stated that Chase’s car had broken down while the two were driving across
the field. Abel insisted he had offered to help Chase fix the vehicle on the night
of January 31, 2017, but Chase instead called an unidentified female to come
get him and told Abel he would return later.
[33] Abel further stated that Chase had told him he was in trouble with the law.
Deputy Pope noted that the vehicle had a lot of body damage. Abel conceded
that he tried to hide the Tracker because he was scared. Deputy Pope noticed
that Abel’s “body language was just off” and that Abel did not seem concerned
about Chase’s whereabouts. Tr. Vol. 3, p. 53. Abel did not indicate that he and
Chase had fought, and Abel showed no signs of injury.
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[34] Next, detectives from both Greene County and Lawrence County arrived at the
Abel farm. Detective Tyler Phillips of the LCSD ran the Tracker’s license plate
through online records, which revealed that the plate was not registered to the
Tracker but to a different person and vehicle. Next, Detective Phillips then
looked up the Tracker’s VIN, and the records showed that the VIN was
registered to Chase Aliano. The officers noted that someone had removed the
roof rack from the Tracker.
[35] Detective Phillips and Detective Sergeant James O’Malley of the GCSD took
Abel to the GCSD’s office for questioning. The recorded interview began
around 9:00 p.m. on February 4, 2017. The detectives read Abel an advisement
of his rights, he indicated he understood, and he signed the advisement.
[36] Initially, Abel told the detectives that Chase arrived at his house in the red
Chevrolet Tracker at 10:30 p.m. on “Monday or Tuesday” to show him a .44
magnum Ruger handgun for a possible sale. Tr. Vol. 6, State’s Ex. 17, at 2:40.
Abel further stated that Chase told him he had no paperwork or receipts for the
handgun and Abel decided not to buy it because he was concerned it might be
stolen. The handgun allegedly had a laser scope that Abel admired, and Abel
stated that they agreed Chase would sell the scope to Abel for $150 and, further,
that Chase would install it on Abel’s .357 magnum handgun. Abel further told
the detectives that Chase also offered to purchase controlled substances for
them if Abel gave him additional money.
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[37] According to Abel, the two men shot firearms in several locations on the farm
as they talked. Chase had brought with him a .40 caliber handgun along with
the .44 caliber handgun. Abel told the detectives that he and Chase smoked
speed together and drove across the field in the Tracker. He further stated the
Tracker broke down in a rugged part of the farm, and that he had offered to
help fix it that night. Chase purportedly declined Abel’s offer and instead called
a “girl” to come pick him up. Id. at 6:30.
[38] Abel claimed that after Chase made a mobile phone call, an unknown female
arrived in a white Pontiac sedan and parked in a field on the farm. Abel stated
that he did not know how the female knew where to find them on the farm.
Abel told the detectives that he then brought a tractor down to the Tracker, and
Chase loaded up the tractor with his possessions. Abel stated he saw an AR-15
rifle, a shotgun, handguns, and tools among Chase’s possessions. Next, Abel
told the detectives he drove the tractor to the woman’s car, and Chase put his
personal property inside her car.
[39] Abel further told the detectives that when Chase left with the unknown female,
he took with him Abel’s .357 caliber handgun to install the scope on it. Abel
further stated he gave Chase $350 to go to Indianapolis to buy controlled
substances. According to Abel, Chase was supposed to go Indianapolis and
come back with more controlled substances and the part they needed to fix the
Tracker.
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[40] Abel next stated that Chase called him the next day at approximately 3:30 or
4:00 from a different phone number. According to Abel, Chase said he was not
coming back because he needed to go “MIA” for a while with the woman, and
he asked Abel to look after the Tracker. Id. at 10:28. Abel further stated that
Chase then told him that the Tracker was stolen and that, if he told anyone
about the Tracker, Chase would tell the police that Abel had stolen the Tracker.
[41] In addition, Abel told the detectives that he took the Tracker back to the barn
and tried to fix it. He asserted he got the Tracker running and drove it back out
into the field, where it broke down again. Next, Abel told the detectives he
attempted to hide the Tracker in a low area on the farm behind a mattress and
pallet after he heard that the police were coming to the property.
[42] Abel told the detectives that they would likely find shell casings near the cabin
on the property. He also claimed that Chase had sold him controlled
substances several times over the prior six months.
[43] At that point, the detectives took a break and left the interview room to speak to
other witnesses and discuss the case. When they returned to the interview
room, Abel told the detectives his parents did not know about the Tracker. The
detectives told him that Abel’s father, John, had already told them that he
helped Abel attempt to hide the Tracker on the property. The detectives
accused Abel of deceiving them. After further questioning, Abel admitted that
he had lied to Chase’s family and friends when he told them that Chase had
never arrived at the farm.
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[44] When the detectives told Abel they were going to get a search warrant for
Abel’s phone, Abel admitted he had texted pictures of the Tracker to his
girlfriend sometime after January 31, 2017. Abel denied that he fought with
Chase that night or that there had been an accident. The detectives again
accused Abel of withholding the truth and told him they would get a search
warrant for the farm, including his parents’ house.
[45] At that point, Abel stated for the first time that after he had given Chase the
money to buy controlled substances, Chase “for absolutely no reason at all”
suddenly pointed his .40 caliber handgun at him and shot at him at least twice.
Id. at 56:22. Abel claimed that he then positioned himself behind the Tracker
before shooting and fatally wounding Chase with Chase’s .44 caliber handgun.
Abel admitted he did not have .357 handgun and had fabricated his claim that
Chase took his handgun. In response to further questions from the detectives,
Abel stated that the .44 caliber handgun was hidden in his parents’ barn,
Chase’s other firearms were hidden in the house, and Chase’s body was buried
on the property. Abel offered no explanation as to why Chase allegedly shot at
him, denying that the two men had argued prior to the shooting.
[46] Abel told the detectives he would be willing to show them where he had shot
Chase and buried him. After the interview, Detective Phillips called the
Indiana State Police for assistance. At the same time, Greene County police
officers obtained a search warrant for the Abel farm. Detective Phillips,
Detective O’Malley, Abel, and several other officers from the Indiana State
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Police, the GCSD, and the LCSD returned to the farm. The sun had set by the
time they arrived on the night of February 4, 2017.
[47] The officers began their search of the farm at the cabin. One of the officers
carried a video recorder, and another brought a camera and took photographs.
Abel was in handcuffs. The area around the cabin was heavily wooded, and
there were no light sources other than what the officers had brought with them.
Abel told the officers that Chase’s vehicle had been parked in front of the cabin,
with the driver’s side door facing the cabin. He further stated that Chase had
been standing near the front door of the cabin, and Abel had been standing near
the Tracker, when they exchanged gunfire. Abel stated Chase shot three times,
and he did not remember how many times he fired back after he took cover
behind the Tracker. Abel further stated that one of the shots had gone through
the Tracker. Several officers later testified that given how dark it was at that
location, it was difficult to believe that Abel and Chase could have seen each
other well enough to have had a gunfight on the night of January 31, 2017.
[48] At that point, Abel led the officers on foot to another wooded portion of the
property, where he showed them a burn pile. Abel explained that he had tied
Chase’s body to the back of the Tracker with a sheet. He then dragged Chase’s
body to the site of the burn pile, where he had removed most of Chase’s clothes
from his body and burned them. Next, Abel then led the officers approximately
380 feet further south to a small, partially dry creek bed. Abel told the officers
that he had dragged Chase’s body to that spot by hand and had buried him
there in a shallow grave.
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[49] During the walk, Abel had explained that he left the Tracker in a field and had
taken Chase’s possessions out of the Tracker the day after he shot him. He also
said that he had thought about his “ex” a lot after the shooting. Tr. Vol. 6,
State’s Ex. 115, at 34:34. He stated she had not been around for months and
played no part in the shooting.
[50] After Abel showed the burial site to the officers, the group went to the barn.
Abel said he had buried some of Chase’s property in the barn’s dirt floor and
had placed a couch over the spot. He also showed them a chest where he
claimed he had placed other items he took from the Tracker.
[51] Next, Abel took them into the house. Abel showed them an upstairs hallway
closet, where he had hidden a GPS unit and a tool he had admitted he took
from Chase’s Tracker. He also opened a vent cover in the hallway. Once the
vent was open, the officers had to reach deep into the ducts with implements to
retrieve property that Abel admitted he had placed there. The officers retrieved
a .40 caliber Ruger handgun, knives, drug paraphernalia, and a holster, all of
which Abel conceded he had taken from Chase. Abel had written his initials on
the holster.
[52] At that point, Abel led the officers to his bedroom. He pointed out another
knife he admitted taking from Chase’s vehicle. Abel had written his initials on
the knife’s handle. Abel also had a sweatshirt in his closet that he admitted
belonged to Chase. In addition, inside Abel’s closet he had nailed a board over
an opening to an adjacent attic space and had placed caulk around the edges of
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the board. Abel kicked in the board at the officers’ request. The officers
searched the attic space and recovered cowboy boots, a pool cue, two rifles, a
shotgun, a tool box, and a gun case, all of which Abel admitted belonged to
Chase. Abel had written his initials on the tool box and the gun case.
[53] Next, the officers returned to the barn, where they moved a sleeper sofa and
dug a hole in the area Abel had identified. They uncovered a red bag and a
blue bag. The red bag contained a .44 caliber handgun. Abel had written his
initials on the handgun and admitted it belonged to Chase. The red bag
contained ammunition, knives, and drug paraphernalia. The blue bag
contained what appeared to be a phone charger. Throughout this process, Abel
appeared to be “relaxed” and did not show any remorse or sorrow for Chase’s
death. Tr. Vol. 3, p. 69; Tr. Vol. 4, p. 200.
[54] While the officers searched the house and barn, Detective O’Malley returned to
the GCSD offices with Abel and interviewed him at 3:30 a.m. on February 5,
5
2017. Abel admitted that Chase had traveled to the farm to smoke
methamphetamine and to discuss a gun sale. Abel further admitted he did not
give Chase $350. He said he had burned Chase’s wallet along with Chase’s
clothes but later used some of Chase’s money for cigarettes. He told the
detective that he had burned his own clothes as well.
5
At the beginning of this interview and all subsequent interviews, the officers read an advisement of rights to
Abel, and he signed the advisement of rights.
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[55] According to Abel, the shooting occurred after the two men had fired guns from
the back porch of the cabin. Abel said he used a .44 caliber handgun, which he
claimed Chase had offered to sell to him for $600. Next, Abel told Detective
O’Malley he and Chase walked through the cabin and out the front door, with
him in the lead and Chase following. Abel then stated that he turned and saw
Chase raising a handgun to point it at him. He next claimed that Chase shot at
him as he ran, first behind a tree and then behind the Tracker. Abel asserted
that he then picked up the .44 handgun, which, according to Abel, had been on
the hood of the Tracker, and shot back, fatally wounding Chase.
[56] After further questioning, Abel conceded that he had been carrying the
handgun when he left the cabin because he had been shooting with it from the
back porch of the cabin. He next admitted that he shot Chase at least twice
before Chase fell to the ground, walked over to where Chase lay, and then shot
him once again at close range, while Chase was face down and not moving, but
allegedly still holding a handgun in his hand.
[57] Abel insisted he and Chase had not argued or fought, saying “Nothing bad
happened between us.” Tr. Vol. 6, State’s Ex. 129, at 30:55. Abel theorized at
one point that Chase may have intended to rob him because he had $500, and
he stated that Chase knew it. Abel also said Chase may have pointed the gun at
him as “a joke.” Id. at 39:15. When Detective O’Malley asked him where the
$500 had gone, Abel stated that he spent some of the money on ammunition
and may have lost the rest on the property or accidentally burned it with the
clothing. Abel admitted he had not held a regular job for the past nine months.
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[58] Next, Abel admitted he had photographed the Tracker and texted the
photograph to Holland. Later, he conceded he may have shot Chase first after
Chase pointed a gun at him. Id. at 55:54. He continued to maintain that he
shot Chase a final time while Chase lay on the ground.
[59] Meanwhile, the officers at the farm finished their initial search of the house and
barn at 5:00 a.m. on February 5, 2017 and decided to wait until after sunrise to
continue searching the outdoor areas of the property. Some officers remained
at the cabin to secure the scene, and other officers returned to the farm at 9:00
a.m. to continue the search. The officers sealed the Tracker’s doors and had it
towed to the Greene County Sheriff’s Department. Next, they went to the site
where Abel said he had buried Chase’s body. They found two shovels nearby.
The officers removed enough dirt and other materials to confirm that a body
was present and contacted the coroner, who arrived and exhumed Chase’s
remains.
[60] Meanwhile, another officer noted a trail between the burn pile and the burial
site and observed several spots of what appeared to be blood. The officer also
examined the burn pile and found buttons and scraps of fabric in it.
[61] At that point, other officers went back to the cabin, where they again searched
the area using metal detectors. They found two shell casings for .40 caliber
rounds near the front door of the cabin. They found a .44 caliber shell casing
inside the cabin. There also was a railroad tie embedded in the ground outside
the front door of the cabin, with spots of what appeared to be blood on it.
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There was no indication that any bullets struck the cabin, despite Abel’s claim
that Chase had been standing directly in front of it when he was shooting at
Chase.
[62] At approximately 2:00 p.m. on February 5, 2017, Detective O’Malley
questioned Abel again to follow up on what other officers had learned while
searching the cabin. Abel stated Chase fell face down on the wooden railroad
tie after he shot him. Also, he claimed that as he tried to take the handgun out
of Chase’s hand after the shooting, it went off and a bullet went straight into the
ground. Abel further asked Detective O’Malley if he hit Chase every time he
shot at him. Detective O’Malley stated he did not yet know, but the autopsy
would reveal if he did.
[63] On the next day, February 6, 2017, Detective O’Malley questioned Abel at
10:00 a.m. By this time, Abel was in custody and explained where he had
disposed of Chase’s mobile phone on the farm. He stated he had used Chase’s
AR-22 rifle to shoot the mobile phone multiple times before throwing it into a
field. Abel also repeated his theory that Chase may have intended to rob him.
He admitted he had used some of Chase’s money to buy ammunition for each
of Chase’s guns on the day after the shooting. Abel further stated that Chase’s
keys to the Tracker were in his bedroom, in the pockets of a jacket. He also
admitted to Detective O’Malley that his phone would show that he had not
spoken with Chase on the day after the shooting, and that he had further texted
photos of a gun to a neighbor and photos of a gun and the Tracker to Holland.
In addition, Abel explained he had installed scopes on two of Chase’s guns after
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the shooting. Finally, he told the detective that he had owned the
methamphetamine that he and Chase smoked on January 31, 2017. Abel
claimed he had bought it from Chase several days prior to the shooting.
[64] Later, on February 6, 2017, officers returned to the Abel farm with Abel,
whereby he could assist them in finding Chase’s mobile phone and the keys to
the Tracker. When they arrived, they found Abel’s parents and several of his
siblings cleaning out his bedroom. One of Abel’s brothers found the keys to the
Tracker and a piece of U.S. Mail with Chase’s name on it in Abel’s room, and
he gave it to the officers. Next, Abel took the officers to the field where they
found Chase’s mobile phone. It had been shot ten to thirteen times, and Abel
admitted he had done it and had thrown the mobile phone into the field
because he was afraid the police would be able to locate it remotely.
[65] Next, on February 6, 2017, officers examined the Tracker at the Greene County
Sheriff’s Department. The tie rod for the right front tire was broken, with the
tire was pointing sideways, and the left front tire was flat. The vehicle was
covered in dirt and mud, and several windows were broken. There were bullet
holes both in the driver’s side front door and the passenger’s side front door.
An officer opined that one shot had entered through the driver’s side front door,
passed through the vehicle, and exited through the passenger’s side front door.
Both holes were approximately two feet and six inches above ground level,
indicating the bullet had traveled along a nearly level trajectory. Officer Jason
Cobb estimated that, based on the size of the bullet hole, the round was bigger
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than a .22 caliber round but smaller than a shotgun slug, possibly a .40 or .44
caliber round.
[66] Also, on February 6, 2017, Dr. Roland Kohr performed an autopsy on Chase’s
remains. Dr. Kohr determined Chase’s cause of death was homicide by six or
seven gunshot wounds. One bullet had entered Chase’s right jaw and traveled
through his brain stem, and stopped in his skull. This gunshot would, by itself,
would have been fatal. Based on the condition of the entry wound, Dr. Kohr
concluded the shooter fired the shot at least eighteen inches from Chase, and
possibly a little further away.
[67] A second bullet had entered the right side of Chase’s body, passing through his
neck and spine, and traveling in a downward angle. This gunshot wound,
standing alone, also would have been fatal without immediate medical care.
Contrary to the head wound, this particular gunshot was a contact wound,
meaning that it was fired within a half an inch of Chase’s skin.
[68] In addition, there was a third bullet that had entered Chase’s liver and stomach
on the right side of his body, and that wound also would have been fatal by
itself, absent immediate medical treatment. A fourth gunshot perforated
Chase’s intestines, entering on the right side of his body, and it also would have
been fatal without immediate medical care. Chase was shot two or three
additional times, but none of those wounds would have been fatal by
themselves.
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[69] Dr. Kohr was unable to establish whether Chase was shot a total of six or seven
times because one of the gunshots struck his arm, and the same bullet could
have also entered Chase’s torso. Dr. Kohr recovered the bullet that remained in
Chase’s skull, but the police were unable to locate any rounds that passed
through Chase’s body. Dr. Kohr could not determine the order in which Chase
sustained his wounds. However, he concluded that based on the majority of the
bullet entry wounds being inflicted upon Chase’s right side, the wounds were
inconsistent with being struck while Chase was directly facing another person.
In addition, beside the head wound, most of the bullets pierced Chase’s body in
a downward direction and would have been consistent with Chase lying on the
ground while he was being shot.
[70] Dr. Kohr also collected samples from Chase’s body for a toxicology screen.
The tests revealed Chase had hydrocodone, amphetamine, and
methamphetamine in his bloodstream at the time of death. The level of
methamphetamine was “very high,” reflecting that Chase had ingested or
snorted it. Tr. Vol. III, p. 190.
[71] Several officers had collected DNA swabs during the search of the property and
sent the swabs to a state laboratory for testing. The parties stipulated that
Chase’s DNA was found on leaves, grass, and a railroad tie at the cabin, and
Abel’s DNA was found on the Tracker’s driver’s side front door handle. In
addition, subsequent ballistics testing revealed that the bullet that was found in
Chase’s brain had been fired by the .40 caliber Ruger handgun that Abel had
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hidden in a vent in the Abels’ house. Further, the .40 caliber shell casings that
were recovered at the cabin had also been fired by that same handgun.
[72] Detective O’Malley interviewed Abel a final time on February 6, 2017, at 8
p.m. He confronted Abel with Dr. Kohr’s autopsy report, accusing Abel of
lying when he said he shot Chase three times when the autopsy report showed
that he shot Chase at least six times. Detective O’Malley further noted that
most of the bullets entered Chase’s body from the right side at a downward
angle, so he could not have been shot by someone directly facing him. Abel
expressed disbelief that he had shot Chase six times but ultimately
acknowledged that he must have shot Chase multiple times as he lay on the
ground. He further said that he “should have bolted and ran” from the
confrontation. Tr. Vol. 6, State’s Ex. 131, at 23:59. Abel again stated there was
no quarrel between him and Chase, and that they were friends. He also
repeatedly told the detective that Holland planned to visit him in jail the next
day.
[73] After Abel was incarcerated, he tried to contact Holland by telephone calls and
letters every day. He also asked his parents to contact Holland every day.
[74] On February 7, 2017, the State charged Abel with murder; obstruction of
justice; theft; and false informing, a Class A misdemeanor. The State further
requested a sentencing enhancement, alleging Abel used a firearm while
committing a felony that resulted in death or serious bodily injury.
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[75] On February 10, 2017, Detective O’Malley and several other officers returned
to the farm. John Abel gave them permission to search the property. They
examined the burn pile with a metal detector and found a .44 caliber shell
casing. They also examined the back of the cabin again and found additional
.44 caliber shell casings on the ground. Subsequent testing revealed that the .44
caliber shell casings been fired from the .44 caliber handgun that Abel buried in
the barn. They did not find any bullets embedded in the ground in front of the
cabin.
[76] The State dismissed the charge of false informing before trial. A jury found
Abel was guilty of murder, and also obstruction of justice and theft, both as
Level 6 felonies. Next, Abel waived his right to trial by jury on the firearm
sentencing enhancement. The parties presented evidence and argument on the
enhancement, and the trial court found regarding the enhancement that Abel
used a firearm in the commission of a felony, specifically murder.
[77] The trial court sentenced Abel to sixty years for the murder conviction,
enhanced by sixteen years for the use of a firearm. The trial court further
sentenced Abel to two years for obstruction of justice and two years for theft,
both as Level 6 felonies. The trial court ordered Abel to serve all sentences
consecutively, for an aggregate sentence of eighty years. This appeal followed.
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Discussion and Decision
I. Sufficiency of the Evidence – Self-Defense
[78] Abel does not dispute that he shot and killed Chase. He instead argues that his
murder conviction must be reversed because the State failed to disprove his
claim of self-defense. Self-defense is recognized as a valid justification for an
otherwise criminal act. Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999). “[I]t is
the policy of this state that people have a right to defend themselves and third
parties from physical harm and crime.” Ind. Code § 35-41-3-2 (2013). Thus,
“[a] person is justified in using reasonable force against any other person to
protect the person or a third person from what the person reasonably believes to
be the imminent use of unlawful force.” Id. Further, a person “is justified in
using deadly force . . . and . . . does not have a duty to retreat . . . if the person
reasonably believes that that force is necessary to prevent serious bodily injury
to the person . . . .” Id.
[79] The statutory right of self-defense is not unlimited, as the governing statute
explains:
[A] person is not justified in using force if:
(1) the person is committing or is escaping after the commission
of a crime;
(2) the person provokes unlawful action by another person with
intent to cause bodily injury to the other person; or
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(3) the person has entered into combat with another person or is
the initial aggressor unless the person withdraws from the
encounter and communicates to the other person the intent to do
so and the other person nevertheless continues or threatens to
continue unlawful action.
Id.
[80] In addition, the Indiana Supreme Court has determined, “Self defense is
established if a defendant: (1) was in a place where the defendant had a right to
be; (2) did not provoke, instigate, or participate willingly in the violence; and (3)
had a reasonable fear of death or great bodily harm.” Brown v. State, 738
N.E.2d 271, 273 (Ind. 2000).
[81] Once a defendant asserts a claim of self-defense, the State must prove that the
defendant’s use of force was unjustified. Milam v. State, 719 N.E.2d 1208, 1210
(Ind. 1999). The State meets this burden by disproving beyond a reasonable
doubt at least one element of self-defense. Id. The State may carry this burden
either by rebutting the defense directly or by relying on the sufficiency of the
evidence in its case-in-chief. Id.
[82] We review a challenge to the sufficiency of the evidence to rebut a claim of self-
defense using the same standard as for any claim of insufficient evidence.
Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001). We neither reweigh the
evidence nor assess the credibility of the witnesses. Brown, 738 N.E.2d at 273.
We instead look to the evidence most favorable to the verdict and reasonable
inferences drawn therefrom. Id. We will affirm the conviction if there is
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probative evidence from which a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Id.
[83] Abel argues that: (1) he had a right to be on his family’s farm; (2) Chase
provoked the shooting by Chase pointing a handgun at him; and (3) he had a
reasonable fear of death at the hands of a well-armed “drug dealer.” Reply Br.
p. 5. Viewing the facts in the light most favorable to the judgment, we disagree
with Abel’s last two points.
[84] At the time of the shooting, Abel had been out of work for nine months and did
not have a drivers’ license. He relied on his parents for food and shelter. Abel
told a detective that he had $500 on the night of the shooting, but there is no
evidence in the record to support that amount of money other than his self-
serving statement. Further, Abel was despondent that Holland had ended their
long-term relationship a month before the shooting and wanted to win her back.
He knew Holland liked handguns and four-wheel drive vehicles, and Chase had
a .44 caliber handgun and a four-wheel drive Chevrolet Tracker. In addition,
Abel told law enforcement that he had thought about Holland a lot in the days
after the shooting, and he had repeatedly tried to contact her from jail. There is
ample evidence from which a jury could have reasonably inferred that Abel had
a motive to kill Chase in an effort to gain his valuable personal property.
[85] The evidence also reveals that Chase had no motive to attack Abel. Further,
Chase did not have a reputation for violent behavior or robbery. Also, Abel
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repeatedly insisted that he and Chase were friends and had gotten along fine on
the night of January 31, 2017, without arguing before the shooting.
[86] Abel’s claim that Chase provoked him to shoot Chase is further undercut by the
evidence and circumstances of the shooting. Abel’s tale of the shooting
drastically changed several times during his interviews with law enforcement,
but he is essentially claiming that the two men were standing outside the cabin
at night when Chase suddenly and unexpectedly pointed a gun at him. Abel
then allegedly responded by taking cover behind the Tracker and shooting
Chase with the .44 caliber handgun while Chase shot at him through the
Tracker’s doors.
[87] Evidence was presented that at the site where Abel said the shooting occurred,
the cabin lacked electricity and it would have been extremely dark in the woods
at night. Further, the bullet that struck the Tracker passed through it at a height
of two feet, six inches above ground level, which is inconsistent with being fired
by a standing adult. There was no evidence presented to show that Chase fired
the .40 caliber handgun at Abel in the manner Abel described to law
enforcement. In addition, most of Abel’s bullets passed through the right side
of Chase’s body at a downward angle, which is inconsistent with Abel’s claim
that he shot at Chase straight on. Dr. Kohr opined that the shots could have
instead struck Chase while he was lying in a prone position. Further, although
Abel repeatedly told officers that he shot at Chase with the .44 caliber handgun,
the bullet that was found in Chase’s body had come from the .40 caliber
handgun, which Abel said Chase had in his possession. Finally, Abel conceded
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at one point that he shot Chase as he lay face-down on the ground, unmoving,
however, he could not explain how Chase was shot in the chest at close contact.
The jury could reasonably find, based on Abel’s numerous lies and
inconsistencies, that Chase did not point his handgun at Abel first and that Abel
did not have a reasonable fear of harm to himself before shooting and killing
Chase.
[88] The jury also heard evidence that after the shooting, instead of telling anyone or
seeking help from his family or the police, Abel made extensive efforts to cover
up the shooting. He moved the Tracker away from the alleged location of the
shooting and attempted to hide and disguise it by removing its license plate and
luggage rack. Abel initially attempted to hide the Tracker in a barn, and later in
a sunken portion of the farm, behind debris.
[89] In addition, Abel moved Chase’s body from the scene of the shooting, stripped
clothing from the body, and buried him in a shallow, unmarked grave on a
remote portion of the property. He also burned Chase’s identification and most
of Chase’s clothing, along with his own. Abel also destroyed Chase’s mobile
telephone and hid the murder weapon, along with numerous other items of
valuable property that belonged to Chase.
[90] Chase’s credibility was a major factor in this case. Abel was caught by various
law enforcement officers in numerous lies and inconsistencies about what
happened on the night of January 31, 2017. His story constantly changed, from
first alleging that Chase was never at the farm, to next claiming that Chase was
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there but drove off in the Tracker, to then alleging that Chase was there but left
with an unknown woman after the Tracker broke down, to admitting that he
shot Chase and buried him on the farm. The jury could have reasonably
determined from this evidence that Abel’s behavior and conduct was an attempt
to destroy incriminating evidence and cover up an unjustified shooting.
[91] The jury also received extensive evidence demonstrating that Abel took Chase’s
valuable personal property, including guns, knives, clothing, and boots, and
claimed those items as his own. On the day after the shooting, Abel and John
went shopping, and Abel purchased ammunition for Chase’s firearms. In
addition, Abel wrote his initials on several items of property and hid them in his
bedroom or an adjacent attic. He texted a neighbor to boast that he had
acquired several firearms. Next, he also offered the Tracker and the handgun to
Holland as a gift to win her affections; claiming at one point that “none of this
would have happened if you’d just came [sic] and saw me, I did this for you.”
Tr. Vol. 4, p. 183. The jury could have reasonably determined that Abel’s theft
of Chase’s personal property, and his attempt to give some of the property to
Holland, was proof that Abel intended to murder Chase for his property.
Furthermore, Abel was unable to explain how he had not held a regular job for
several months before allegedly had $500 when he met with Chase.
[92] Further, the firing of multiple shots belies Abel’s claim of self-defense. Brown v.
State, 738 N.E.2d at 273. Abel shot Chase six or seven times. In addition, one
of the bullets that struck Chase in the chest was a contact wound. The jury
could have reasonably inferred from that wound that, contrary to Abel’s version
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of events, Abel either: (1) ambushed Chase in the dark; or (2) shot Chase while
he was lying prone on the ground and no longer posed a threat to him. In
either case, self-defense would be inapplicable.
[93] Under these extensive facts and particular circumstances, we conclude that the
State presented sufficient evidence to the jury to disprove Abel’s claim of self-
defense. See King v. State, 61 N.E.3d 1275, 1284 (Ind. Ct. App. 2016) (State
disproved claim of self-defense; autopsy of victim showed that he was shot in a
manner that contradicted defendant’s version of events; evidence showed
defendant had an incentive to take victim’s property), trans. denied.
II. Sentencing - Discretion
[94] Abel argues the trial court erred in identifying certain aggravating factors at
sentencing and in imposing a sixteen-year sentencing enhancement for use of a
firearm. A trial court may impose any sentence that is authorized by statute
and permissible under the Constitution of the State of Indiana. Ind. Code § 35-
38-1-7.1 (2015). Whenever a trial court imposes a sentence for a felony offense,
the sentencing statement must include a reasonably detailed recitation of the
trial court’s reasons for imposing a particular sentence unless the court imposes
the advisory sentence. Ind. Code § 35-38-1-1.3 (2014).
[95] Subject to the review and revise power discussed below, sentencing decisions
rest within the sound discretion of the trial court and are reviewed on appeal
only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-857 | November 29, 2018 Page 34 of 43
2007), clarified on reh’g, 875 N.E.2d 218 (2007). The Indiana Supreme Court has
explained:
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy if we cannot say with confidence that the
trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Id. at 490-91.
[96] Abel first argues the trial court abused its discretion in determining his criminal
record was an aggravating circumstance. “In determining what sentence to
impose for a crime, the court may consider the following aggravating
circumstances . . . . The person has a history of criminal or delinquent
behavior.” Ind. Code § 35-38-1-7.1(a). The significance of a criminal history
varies based on the gravity, nature, and number of prior offenses as they relate
to the current offenses. Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App.
2012).
[97] In Abel’s case, he had a juvenile adjudication in 2006 for an act that would
have constituted burglary, a Class B felony, if committed by an adult. During
sentencing, Detective O’Malley testified, without objection from Abel, that he
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had reviewed the records from that case and had learned that Abel had broken
into a vehicle and had stolen firearms, among other items. Next, in 2013 Abel
was convicted of theft as a Class D felony. Detective O’Malley testified, again
without objection from Abel, that he stole a “4 wheeler” and scrapped it for
money. Tr. Vol. 5, p. 73. Abel admitted to stealing the vehicle only after
several interviews. Finally, in 2015 Abel was convicted of the illegal taking of a
wild animal, a Class B misdemeanor. The trial court stated as follows:
The aggravating factors the Court will find the Defendant’s prior
history of juvenile adjudications or adult criminal convictions
specifically the 28C01-0609-JD-95, adjudication as a juvenile for
a Burglary, circumstance which involved dealing with firearms
which I do believe is a violent type offense and is relevant and
certainly significant aggravating factor with the current offense
involving firearms as well the prior adult conviction for Theft
under 28C01-1307-FD-127, again a relevant and consistent type
prior criminal history to the current offense, defendant did have a
conviction for illegal taking of wild game as I believe a B
Misdemeanor under 28D01-1412-CM-276 is prior criminal
history, but that particular conviction does not have the weight of
the other two the adjudication and the theft conviction, I think
the consistently [sic] of the particular type of crime of dishonesty
and the Burglary involving firearms is again particular relevant to
the instant offenses and it is indicative of likelihood of substantial
likelihood of reoffending and poor character of the
Defendant . . . .
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Tr. Vol. 5, pp. 84-85. Based on the evidence presented, we agree with the trial
court that Abel’s prior convictions, although neither numerous nor as severe as
his murder conviction, are significant in relationship to the facts of the current
case because they establish Abel’s willingness to take property from others,
particularly firearms and vehicles, and to lie about it after the fact.
Furthermore, Abel’s adult criminal history is noteworthy because he appears to
have established a pattern of committing criminal offenses (including the
current convictions) approximately every two years, demonstrating an
unwillingness to conform his behavior to the requirements of the law. The trial
court did not abuse its discretion in citing Abel’s criminal history as an
aggravating factor. See Field v. State, 843 N.E.2d 1008, 1011 (Ind. Ct. App.
2006) (trial court properly cited criminal history as aggravating factor in
sentence for dealing in controlled substance; prior misdemeanor convictions
involving controlled substances were similar in nature), trans. denied.
[98] Next, Abel argues the trial court abused its discretion in imposing a sixteen-year
sentencing enhancement for use of a firearm. A defendant who is found to
have knowingly or intentionally used a firearm in the commission of certain
offenses (including murder) may receive a sentencing enhancement of between
five and twenty years. Ind. Code § 35-50-2-11.
[99] Abel argues that the trial court should have taken into consideration that Abel
did not own the firearm that fired at least one of the bullets that struck Chase
(the .40 caliber handgun), and that the handgun was brought to the farm by
Chase. We find nothing in the plain language of Indiana Code section 35-50-2-
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11 that requires a sentencing court to consider whether a defendant owned the
firearm that was used to commit a predicate felony. The statute simply
provides additional punishment for those who use firearms to commit certain
felonies regardless of the gun’s ownership status.
[100] Next, Abel concedes the murder conviction and the sentencing enhancement do
not violate “the prohibition against double jeopardy or constitute an illegal
double enhancement,” but he claims the sixteen-year enhancement is “unduly
harsh” because he has already been punished for murdering Chase. We will
consider this argument as being relevant to whether the sentence is
inappropriate and subject to revision, and address it below. As to whether the
trial court properly cited Abel’s criminal history as an aggravating factor, we
conclude the trial court did not abuse its discretion in imposing a sixteen-year
sentencing enhancement under Indiana Code section 35-50-2-11.
III. Sentencing - Inappropriateness
[101] Abel argues his sentence is inappropriate and asks this Court to revise it to an
aggregate sentence of sixty years.
[102] Even when a trial court has acted within its sentencing discretion, article VII,
section 6 of the Indiana Constitution authorizes this Court to review and revise
sentences. This authority is implemented through Indiana Appellate Rule 7(B),
which provides that we “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, [we find] that the sentence is
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inappropriate in light of the nature of the offense and the character of the
offender.”
[103] As we conduct our review, we consider not only the aggravators and mitigators
found by the trial court, but also any other factors appearing in the record.
Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied. The
appellant must demonstrate that the sentence is inappropriate. Id. The
principal role of such review is to attempt to leaven the outliers. Curry v. State,
90 N.E.3d 677, 691 (Ind. Ct. App. 2017), trans. denied. We conduct our
sentencing review under Appellate Rule 7(B) with “substantial deference” to the
trial court’s sentencing decision. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014).
[104] At the time Abel murdered Chase, the minimum sentence for murder was forty-
five years, the maximum sentence was sixty-five years, and the advisory
sentence was fifty-five years. Ind. Code § 35-50-2-3 (2015). In addition, for a
Level Six felony conviction, the minimum sentence was six months, the
maximum sentence was two and a half years, and the advisory sentence was
one year. Ind. Code § 35-50-2-7 (2016). As noted above, when enhancing a
sentence for use of a firearm under Indiana Code section 35-50-2-11, a trial
court may impose an enhancement between five and twenty years.
[105] In this case, the trial court sentenced Abel to sixty years for the murder
conviction (five years less than the maximum sentence), enhanced by sixteen
years (four years less than the maximum enhancement) for the use of a firearm.
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The trial court further sentenced Abel to two years for obstruction of justice and
two years for theft (six months less than the maximum for each offense), both of
which were Level Six felonies. The trial court directed Abel to serve all
sentences consecutively, for an aggregate sentence of eighty years. The trial
court thus imposed an aggravated sentence for each offense, but the totality of
the sentences is well short of the maximum possible sentence of ninety years.
[106] We begin with the nature of the offenses. Abel characterizes his killing of
Chase as the murder of “a drug dealer[ ] during an arranged gun sale when both
were heavily under the influence of drugs.” Appellant’s Br. p. 29. The
circumstances of the crime are more troubling than he indicates. According to
Abel, he and Chase were friends and got along well. Despite their friendship, it
appears Abel killed Chase because he wanted Chase’s valuable property, in part
for himself and in part to impress his ex-girlfriend, Holland. The forensic
evidence indicates Abel shot Chase six or seven times, perhaps with the element
of surprise, using Chase’s own gun. Instead of ending his criminal conduct
after the murder, Abel further desecrated Chase’s body by dragging it behind
the Tracker for several hundred yards to a location where he stripped most of
the clothes from Chase’s body; however, choosing to keep Chase’s boots and a
belt buckle for himself. He then burned Chase’s clothes and, purportedly, his
own clothes before further dragging Chase’s nearly naked body to a dried-up
creek bed, where he buried it in a shallow grave. Abel further buried the
murder weapon and attempted to hide the Tracker, convincing his father to
help him under false pretenses.
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[107] In addition, Abel deployed a staggering array of lies to obstruct the
investigation of Chase’s disappearance. He lied to Chase’s father and friend
and told law enforcement ever-changing stories to deflect scrutiny from the
farm. Abel displayed absolute disregard for the law, his friend Chase, and for
Chase’s family by committing these horrific acts.
[108] In addition, after burying Chase’s body in the dried-up creek bed, Abel looted
Chase’s Tracker of valuable personal property, appropriating its contents for
himself. He then offered the Tracker and a handgun to Holland in an attempt
to impress and win her affection back; however, he clearly intended to keep the
rest of Chase’s valuable property for himself. Abel purchased ammunition for
Chase’s guns the day after the shooting. In addition, he texted a neighbor to
inform him that he had obtained some guns and was putting scopes on some of
them. Abel went so far as to put his personal initials on many of Chase’s items.
He placed Chase’s boots and a shirt in his own closet. Abel told law
enforcement that he was distraught at allegedly having to shoot Chase, but he
had no qualms about keeping Chase’s personal property, including the murder
weapon.
[109] Next, we turn to Abel’s character. He was twenty-five-years old at the time of
sentencing. As previously discussed, Abel had a criminal history that, although
not particularly extensive, demonstrates that he had no compunction against
taking other people’s valuable property and lying about it. In addition to his
record of convictions, Abel engaged in extensive use of methamphetamine and
other drugs since age sixteen, using methamphetamine daily since age twenty-
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three. Abel has also used Spice, a synthetic form of marijuana. He had not
lived a law-abiding life as an adult for several years.
[110] Abel argues he had a difficult childhood. Evidence of “a difficult childhood
warrants little, if any, mitigating weight.” Ritchie v. State, 875 N.E.2d 706, 725
(Ind. 2007). Further, we cannot conclude he suffered from abuse or neglect.
Abel’s parents chose to homeschool him. Perhaps this was far from an ideal
arrangement, due to Abel’s diagnosis of Attention Deficit Hyperactive
Disorder, and he may have benefitted more from specialized training and
assistance. Instead, when he was thirteen years old he refused to continue his
education, although his parents allegedly tried to convince him that it was in his
own best interests. As a result, Abel’s formal education essentially ended at the
sixth-grade level. Nevertheless, the record establishes that Abel’s parents loved
him and provided a home and for all of his basic needs. There is no evidence
that they were abusive or neglectful toward him.
[111] Abel further claims his parents allowed him to begin a romantic relationship
with Holland (who is twenty-seven years his senior) when he was under
eighteen; however, Holland emphatically denied his assertion and testified that
Abel was an adult when they began their relationship. We conclude Abel has
failed to meet his burden of establishing that his sentence in this matter is
inappropriate.
Conclusion
[112] For the reasons stated above, we affirm the judgment of the trial court.
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[113] Affirmed.
[114] Vaidik, C.J., and Kirsch, J., concur.
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