Caleb Kirk Singer v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Nov 19 2019, 6:21 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Caleb Kirk Singer, November 19, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-788
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff David D. Kiely, Judge
Trial Court Cause No.
82C01-1803-MR-1704
Vaidik, Chief Judge.
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Case Summary
[1] Caleb Kirk Singer appeals his conviction for murder, arguing that the evidence
is insufficient to support it. He also appeals his fifty-five-year sentence,
asserting that the trial court relied on improper aggravators and that his
sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
Facts and Procedural History
[2] In 2015, Singer met Summer Smith when they worked together at Wendy’s,
after graduating from high school in Evansville. A few months later, they
started dating, and Singer moved in with Summer and her parents. In January
2017, Summer became pregnant with Singer’s child. Around July 2017, Singer
moved into his own apartment, which was paid for by the Department of
Family Services. He was not allowed to have anyone else live in the apartment
with him, so although Summer technically lived at her sister’s apartment she
often stayed at Singer’s apartment with their son.
[3] In February 2018, Summer ended her relationship with Singer and began living
fulltime at her sister’s apartment with their four-month-old son. Although
Singer and Summer had broken up before, this time was different as Summer
had told Singer that “[she] was done,” they were “never getting back together,”
and she would not let Singer see their son. Tr. Vol. III pp. 137, 187. About a
week after the break up, Singer sent Summer several text messages, saying
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“who are you with”; “who are you at Walmart with”; and “hello.” Id. at 196-
97. At first Summer did not respond, but after Singer sent her more messages
asking who she was with and where she was, she responded “leave me alone
please.” Id. at 197.
[4] The morning of March 6, Singer texted Summer that “if I find out you’re
talking to other people, I’m going to kill you and your whole family, and I’m
destroying everything you have, so hope you’re happy right now, ignoring me
and treating me like shit.” Id. at 195. Throughout the remainder of the day,
Singer sent Summer numerous text messages asking her to come to his
apartment and to stay the night with him. Summer told Singer that she was not
feeling well but that “he could come get his son if he wanted to spend time with
him.” Id. at 139. Singer continued asking Summer to stay the night with him.
She eventually responded “we’ll see” and told him that she would let him know
her decision around 10:00 p.m. Id. At 8:00 p.m., Singer got off work. He
called and texted Summer, but she did not respond. He then went to Summer’s
apartment and texted her sister to see if he could come inside to see his son.
Summer’s sister did not respond.
[5] While Singer was waiting outside Summer’s apartment, he had a phone
conversation with his best friend, Uriel Williams. During their conversation,
Singer was agitated and angry and told Uriel that he believed Summer was
cheating on him. After the call, Uriel met Singer at the apartment, and Singer
borrowed his phone and used it to try to contact Summer. Once again, she did
not respond. Singer and Uriel then drove a few blocks away, and Singer tried
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to find Summer’s location on his phone—they had previously shared their
phone’s locations with each other. Singer became increasingly frustrated and
angry and told Uriel, “[I]f [Summer’s] with another guy I [am] going to kill
him.” Id. at 160. After about ten minutes of searching, Singer saw that
Summer was at her apartment, so he drove to her apartment to find her.
[6] Meanwhile, that same evening, Summer’s friend, Nicholas Belcher, picked her
up from her apartment, and they spent time together driving around town.
Summer and Nicholas were friends in high school but had lost touch after
graduation. Recently, they rekindled their friendship when Summer’s son
started going to Nicholas’s mother’s in-home daycare. Around 10:00 p.m.,
Nicholas drove Summer back to her apartment. When they got close to the
apartment, Summer saw Singer’s car in the driveway, so she told Nicholas to
drive around the block. After about ten minutes, they drove back to the
apartment, and Summer saw that Singer’s car was gone. Nicholas parked his
car in the apartment’s driveway, walked Summer to the door, gave her a hug,
and said goodbye. Summer walked inside the building and upstairs into her
apartment.
[7] Nicholas went back to his car and started to back out of the driveway when
Singer arrived and used his car to block Nicholas’s car from getting out of the
driveway. Singer was driving, and Uriel was in the passenger seat. Singer
grabbed his handgun, got out of his car, and walked to the driver’s side window
of Nicholas’s car. Uriel saw Singer use his gun to motion for Nicholas to roll
down his window. When Nicholas rolled the window down about six inches,
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Singer asked, “[W]ho are you, are you Nathan or Nick, what’s your name?” Id.
at 121. Nicholas said his name was Jim. Singer also asked if he had just
dropped off Summer, and Nicholas said, “No.” Then, Singer reached inside
the car window and shot Nicholas in the face, killing him. Uriel saw Singer
walk toward Summer’s apartment before he returned to the car. Uriel asked,
“[I]s he dead?,” and Singer responded, “Yeah.” Id. at 164. Singer also said
that “[h]e was going to kill Summer too, but he didn’t know which apartment
she was in.” Id.
[8] Singer drove a few blocks away, and Uriel got out of the car. Once Singer left,
Uriel called the police. When officers arrived at the scene, they found Nicholas
slumped over, dead in his car. Later that night, Singer called Summer and told
her that he loved her and their son and that he was sorry, but he had to leave.
At that point, Summer did not know that Singer had shot Nicholas. Singer
then left town and threw his gun off a bridge into the Ohio River. The next
morning, Singer was apprehended in Kentucky. During his interview with
police, Singer admitted that he shot Nicholas. Singer was then charged with
murder.
[9] In February 2019, a two-day jury trial was held. The jury was instructed on
murder and voluntary manslaughter, including the requirement for sudden
heat. Ultimately, the jury found Singer guilty of murder. At the time of the
sentencing hearing in March 2019, Singer was twenty years old and had no
prior criminal history. Singer’s aunt testified that he had a difficult childhood
and that when he was nine, he found his mother dead from an overdose. See
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Tr. Vol. II p. 38. Singer’s aunt said that after Singer’s mother died, he was
placed with his father, who also struggled with addiction, and eventually, he
ended up in foster care. See id. After Singer’s aunt testified, the trial court
noted that it had received about twenty letters from Nicholas’s family and
friends describing their loss. The trial court also heard testimony from
Nicholas’s mother, father, cousin, fifteen-year-old brother, and others. During
some witnesses’ testimony, Singer smirked. Nicholas’s father pointed this out,
telling Singer that after the jury’s verdict:
[Y]ou sat there and smirked in front of my entire family with a
smile on your face. I’ve watched other testimonies up here
already today, and people when they mention you should get the
max sentence, what’s your reaction, you smile, just like you’re
doing now. . . .
Id. at 48. The trial court then identified mitigating and aggravating
circumstances. As for mitigators, the court found that Singer was twenty years
old, had no prior criminal history, and experienced childhood trauma. The
court then noted that “[Singer] had an opportunity to apologize to the family,
and [he] elected not to do that.” Id. at 53. The court found that Singer’s lack of
remorse and the nature of the offense were aggravating circumstances. The trial
court sentenced Singer to fifty-five years in the Department of Correction, the
advisory sentence. See Ind. Code § 35-50-2-3(a).
[10] Singer now appeals.
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Discussion and Decision
I. Sufficiency of the Evidence
[11] Singer contends that the evidence is insufficient to convict him of murder.
Specifically, he argues that he acted under sudden heat and therefore he should
have been found guilty of voluntary manslaughter instead.
[12] When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind.
2016). It is the fact-finder’s role, not that of appellate courts, to assess witness
credibility and weigh the evidence to determine whether it is sufficient to
support a conviction. Id. It is not necessary that the evidence “overcome every
reasonable hypothesis of innocence.” Id. (quotation omitted). The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
[13] To determine whether the evidence is sufficient, we must consider the elements
of murder and voluntary manslaughter. A person commits murder when they
knowingly or intentionally kill another human being. Ind. Code § 35-42-1-1. A
person commits voluntary manslaughter when they knowingly or intentionally
kill another human being while acting under sudden heat. Ind. Code § 35-42-1-
3(a). The existence of sudden heat is a mitigating factor that reduces what
otherwise would be murder to voluntary manslaughter. Id. at (b). “Sudden
heat exists when a defendant is ‘provoked by anger, rage, resentment, or terror,
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to a degree sufficient to obscure the reason of an ordinary person, prevent
deliberation and premeditation, and render the defendant incapable of cool
reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom v.
State, 31 N.E.3d 469, 486 (Ind. 2015)). It involves an “impetus to kill” that
arises “suddenly.” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App.
2010), trans. denied. Words alone, however, are not sufficient provocation to
reduce murder to manslaughter. Id. Once a defendant presents evidence of
sudden heat, the State bears the burden of disproving its existence beyond a
reasonable doubt. Whitt v. State, 91 N.E.3d 1082, 1093 (Ind. Ct. App. 2018),
trans. denied. The existence of sudden heat is a classic question of fact to be
determined by the jury. Id.
[14] Singer’s sudden-heat theory is based on the premise that “he blacked out and
could not control his actions” after Nicholas “lied” to him because he thought
that Nicholas “was the reason he would no longer be able to see his son.”
Appellant’s Br. pp. 15-16. Here, the trial court instructed the jury on voluntary
manslaughter, including the requirement for sudden heat. The fact that the jury
convicted Singer of murder was a rejection of his sudden-heat contention, and
there is ample evidence to support the jury’s verdict. First, Summer told Singer
that she was done and that he would no longer be able to see their son. See
Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (an expression of
one’s desire to end a relationship cannot, as a matter of law, constitute
sufficient provocation to induce passion that renders a reasonable person
incapable of cool reflection). Then, Singer sent Summer text messages
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threatening to kill her and her whole family. When Summer did not respond to
Singer’s text messages, he told Uriel that if he found out that Summer was with
another man, he would kill them. And when Singer saw Nicholas in Summer’s
driveway, he approached Nicholas’s car and asked him two questions, and
when Nicholas answered with lies, Singer shot him. Again, words alone, even
if they are lies, are not enough to provoke sudden heat. This evidence was
sufficient for the jury to conclude that there was a lack of sudden heat beyond a
reasonable doubt. Accordingly, we affirm Singer’s murder conviction.
II. Sentencing
a. Aggravators
[15] Singer next contends that the trial court considered improper aggravating
factors when sentencing him. Sentencing decisions rest within the sound
discretion of the trial court and are reviewed only for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
[16] First, Singer asserts that there is no evidence to support the trial court’s finding
that he showed a lack of remorse. A trial court may consider a defendant’s lack
of remorse as an aggravator. Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App.
2014). A lack of remorse is displayed when a defendant shows disdain or
recalcitrance, the equivalent of “I don’t care.” Id. Singer claims that he did not
“show recalcitrance or disdain” but instead was “maintain[ing] his innocence.”
Appellant’s Br. p. 19. However, the evidence shows that during the sentencing
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hearing, Singer was smiling and smirking as the victim’s family and friends
testified. Nicholas’s father pointed this out, saying, “I’ve watched other
testimonies up here already today, and people when they mention you should
get the max sentence, what’s your reaction, you smile, just like you’re doing
now.” Tr. Vol. II p. 48. As such, the trial court did not abuse its discretion in
finding Singer’s lack of remorse to be an aggravating factor.
[17] Next, Singer argues that the trial court erred by identifying the nature of the
offense as an aggravator. Singer alleges that he “did not commit the offense
with any brutality than is [sic] already inherent in any murder offense.”
Appellant’s Br. p. 19. Singer’s interpretation of the nature of his offense is
inaccurate. That is, the evidence shows that Singer shot Nicholas, whom he
did not even know, in the face at point-blank range. Killing someone execution
style is a brutal way of committing the offense of murder. See McCallister v.
State, 91 N.E.3d 554, 566 (Ind. 2018) (condemning execution-style murder); see
also Krempetz v. State, 872 N.E.2d 605, 616 (Ind. 2007) (expressing outrage over
execution-style killing committed against a defenseless victim). As such, we
find that the trial court did not abuse its discretion.
b. Inappropriateness
[18] Singer also argues that his sentence is inappropriate and asks us to revise it to
the minimum of forty-five years pursuant to Indiana Appellate Rule 7(B),
which provides that an appellate 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
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character of the offender.” “Whether a sentence is inappropriate ultimately
turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[19] The sentencing range for the crime of murder is forty-five to sixty-five years,
with an advisory sentence of fifty-five years. Singer received the advisory
sentence.
[20] With regard to the nature of the offense, as discussed above, Singer shot
Nicholas, a man he did not know, at point-blank range because he suspected his
ex-girlfriend was cheating on him. Furthermore, after he shot Nicholas, Singer
told Uriel that he was going to kill Summer too, but he didn’t know which
apartment was hers. Finally, Singer shot Nicholas after spending two days
texting and threatening Summer because she decided to end their relationship.
[21] As for Singer’s character, it is true that he had no criminal history and a difficult
childhood. However, at the sentencing hearing, he did not present any
evidence of his “virtuous traits” or provide any “examples of good character.”
See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Furthermore, when
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given the opportunity to express remorse for what happened, he chose to smile
and smirk as Nicholas’s family and friends testified about their loss.
[22] Singer has not convinced us that his sentence is inappropriate.
[23] Affirmed.
Riley, J., and Bradford, J., concur.
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