Kevin Taylor v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Jul 12 2012, 8:56 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
CLERK
case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GARY L. GRINER GREGORY F. ZOELLER
Griner & Company Attorney General of Indiana
Mishawaka, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN TAYLOR, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1112-CR-563
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry Shewmaker, Judge
Cause No. 20C01-0407-MR-96
July 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Kevin Taylor appeals his conviction and sixty-five-year sentence for felony
murder. We affirm.
Issues
Taylor raises four issues, which we restate as:
I. whether there is sufficient evidence to support the
underlying robbery;
II. whether several witnesses‟ testimony was incredibly
dubious and insufficient to support the felony murder
conviction;
III. whether the manner in which the jury was instructed
on felony murder amounts to fundamental error; and
IV. whether his sentence is inappropriate.
Facts
Gwendolyn Hunt was a drug dealer in Elkhart. On May 19, 2003, Taylor and
Kelly Thomas asked Stacy Orue, a friend of Hunt‟s, to buy cocaine from Hunt instead of
the person she had been buying from that day. When Orue knocked on Hunt‟s door using
a special knock, Thomas pushed his way into Hunt‟s apartment. Taylor also went into
the apartment and, at one point, Taylor pinned Hunt against the wall so she could not
enter the main part of the apartment. Eventually, Taylor grabbed Orue‟s arm, and they
ran from the apartment to Taylor‟s truck. Thomas followed them to the truck, and they
left. Hunt was shot in head during the incident.
A neighbor, Andrea Micklevitz, heard the gun shot, looked out the window, and
saw two men running down the alley. One of the men had a small white grocery sack in
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his hand. Another woman, Carolyn Keeney, was walking down the street when she heard
a loud noise and saw Taylor and Orue and then Thomas hurry out of Hunt‟s apartment
building and into Taylor‟s truck. Keeney saw Taylor drop something rolled with rubber
bands that looked like money. As Thomas jumped into the truck, his shirt came up,
revealing the handle of a gun.
Hunt‟s upstairs neighbors also heard a loud noise, investigated, and found Hunt on
the floor still breathing but making a choking noise and spitting blood. They called 911,
and Hunt was taken to a hospital where she died of a gunshot wound to the head.
After Taylor, Thomas, and Orue left Hunt‟s apartment, they went to another
apartment on Sherman Street. When they arrived, Angela Salazar, who dated Thomas,
heard Taylor tell Thomas that “he shouldn‟t have shot her.” Tr. p. 508. Taylor, Thomas,
and Orue went into a bedroom, and Thomas had “a large amount” of cocaine with him.
Tr. p. 418. Orue guessed that Thomas had at least an ounce, which she considered
unusual. Orue gave Thomas $30, and Thomas gave her at least $150 worth of cocaine.
Orue also considered this to be unusual.
Keeney was also at the Sherman Street apartment when Taylor, Thomas, and Orue
arrived there with a shoe box. She saw them with a larger amount of cocaine than normal
and saw them counting money. Salazar later saw Thomas with an unusual amount of
money and drugs and a gun. Taylor and Orue also had drugs that night. Later that night,
Taylor became upset when he saw Orue walking around wearing one of Hunt‟s scarves.
When police investigated Hunt‟s apartment, they found a dresser drawer in Hunt‟s
bedroom open all the way and a kitchen drawer open all the way. Hunt was known to
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keep drugs and money in these two drawers. She was also known to keep her money
rolled up with rubber bands. No drugs or money was found in Hunt‟s apartment.
On July 24, 2004, the State charged Taylor, Thomas, and Orue with felony murder
for killing Hunt while committing robbery. In 2005, the three were tried together and
convicted. Taylor‟s conviction was affirmed on direct appeal. See Taylor v. State, No.
20A03-0507-CR-319 (Ind. Ct. App. Sept. 25, 2005). In 2006, however, a panel of this
court reversed Thomas‟s felony murder conviction because the jury was not instructed on
the elements of robbery, the underlying offense. See Thomas v. State, No. 20A03-0503-
CR-138 (Ind. Ct. App. Feb. 3, 2006). After Thomas‟s conviction was reversed, Taylor
filed a petition for post-conviction relief, which was denied. On appeal, we concluded
that Taylor was denied a procedurally fair post-conviction relief hearing because of post-
conviction counsel‟s performance, and we reversed and remanded for a new post-
conviction relief hearing. See Taylor v. State, 882 N.E.2d 777 (Ind. Ct. App. 2008).
Following a hearing, the post-conviction court denied Taylor‟s petition, and Taylor
appealed again. On appeal, we reversed Taylor‟s conviction because of the jury
instruction issue. See Taylor v. State, 922 N.E.2d 710 (Ind. Ct. App. 2010). Although
our supreme court initially granted transfer, it later determined that transfer was
improvidently granted and denied transfer. At some point after Thomas was retried, Orue
agreed to dismiss her post-conviction relief petition in exchange for the suspension of
part of her fifty-five-year sentence.
Taylor was retried in October 2011, and a jury found him guilty of felony murder.
The trial court sentenced Taylor to sixty-five years. Taylor now appeals.
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Analysis
I. Sufficiency of Evidence of Robbery
Taylor argues that there is insufficient evidence to support the underlying robbery.
The standard of review for claims of insufficient evidence is well settled. We do not
reweigh the evidence or judge the credibility of the witnesses, and we respect the jury‟s
exclusive province to weigh conflicting evidence. Jackson v. State, 925 N.E.2d 369, 375
(Ind. 2010). We consider only the probative evidence and reasonable inferences
supporting the verdict and affirm if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Id. “A verdict may be sustained based upon
circumstantial evidence alone if that circumstantial evidence supports a reasonable
inference of guilt.” Lacey v. State, 755 N.E.2d 576, 578 (Ind. 2001).
The State charged Taylor with killing Hunt while committing robbery. See Ind.
Code § 35-42-1-1(2). A person who knowingly or intentionally takes property from
another person or from the presence of another person by using or threatening the use of
force on any person or by putting any person in fear commits robbery, a Class C felony.
I.C. § 35-42-5-1.
Taylor argues, “[t]he State presented no evidence that any property was taken
from Hunt.” Appellant‟s Br. p. 10. He contends that the State did not present any
evidence that Hunt had money or drugs at her apartment immediately prior to her death.
He also argues that the fact that Taylor may have been seen with a roll of money and the
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fact that Taylor and Thomas were seen with drugs are too speculative to support the
conviction because money and drugs are fungible and cannot be tied directly to Hunt.
The State produced evidence detailing Hunt‟s drug dealing operation through the
testimony of her associate, Joshua Shaw, who testified that he learned the business of
dealing cocaine from Hunt. He described the cooking and packaging process, which took
place at Hunt‟s apartment, and explained that Hunt did not sell drugs from her apartment
but instead maintained other apartments from which she sold drugs. Hunt taught Shaw to
organize his money with the bills going in the same direction, facing up, and rolled with a
rubber band. Shaw explained that Hunt kept drugs and money at her apartment and that,
as the amount of cocaine diminished, Hunt would have more money. Shaw testified that
Hunt stored her money and drugs in the dresser drawer in her bedroom and in the kitchen
drawer, both of which were found open by police. Shaw testified that he had previously
seen Orue in Hunt‟s house accessing the kitchen drawer. Evidence was also presented
that no drugs or money was found in Hunt‟s apartment after she was shot.
This evidence of Hunt‟s drug operation taken with the evidence of Taylor
dropping a rubber banded roll as he fled Hunt‟s apartment, one of the men running from
Hunt‟s apartment with a bag in hand, Thomas having an unusual amount of cocaine and
money that night, Taylor and Thomas counting money, and Orue wearing one of Hunt‟s
scarves is more than mere speculation or conjecture that Taylor or his cohorts took
Hunt‟s property. From this evidence, the jury could reasonably infer that Hunt was killed
during the commission of a robbery. There is sufficient evidence to support the robbery
underlying the felony murder conviction.
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II. Incredible Dubiousity
Taylor also argues that his conviction is based on the incredibly dubious testimony
of Orue, Salazar, and Keeney. Within the narrow limits of the “incredible dubiosity”
rule, we may impinge upon a jury‟s function to judge the credibility of a witness. Love v.
State, 761 N.E.2d 806, 810 (Ind. 2002). If a sole witness presents inherently improbable
testimony and there is a complete lack of circumstantial evidence, we may reverse a
defendant‟s conviction. Id. “This is appropriate only where the court has confronted
inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity.” Id. “Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or inherently improbable that no
reasonable person could believe it.” Id.Regarding Orue‟s testimony, Taylor asserts that Orue maintained her innocence
until shortly before Thomas‟s retrial when the chief deputy prosecutor met with her in
jail. After Orue testified against Thomas, the State agreed to suspend ten years of her
fifty-five-year sentence in exchange for her agreeing to dismiss her petition for post-
conviction relief and not pursuing a new trial. According to Taylor, Orue‟s testimony
was coerced by a “wink and nod” agreement and her hope that she would get a deal from
the State, which she ultimately did.
This is argument is unavailing. First, because the three were originally tried
together and Thomas and Taylor‟s convictions had been reversed based on an
instructional error, it is quite possible that Orue would have been successful in her post-
conviction relief proceedings, which were pending when she testified against Thomas.
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As such, the State may have had good reason to agree to the suspension of a portion of
Orue‟s sentence to avoid having to retry her. Further, Orue repeatedly testified at
Taylor‟s trial that she was not promised anything in exchange for her testimony against
Thomas. Finally, the jury was fully aware of Orue‟s lies to police, her prior declarations
of innocence, her testimony at Thomas‟s retrial, and the subsequent suspension of a
portion of her sentence. It was for the jury, not us, to assess Orue‟s credibility in light of
these events.
Taylor‟s also attacks Orue‟s, Salazar‟s, and Keeney‟s testimony because they were
all addicted to and under the influence of cocaine at the time of Hunt‟s death and because
they gave inconsistent statements or lied to police. However, the incredible dubiousity
rule does not apply here because this is not a circumstance where a sole witness gave
inherently improbable testimony. Further, Orue‟s, Salazar‟s, and Keeney‟s drug use,
criminal histories, and prior inconsistent statements were presented to the jury, and the
jury was free to assess their credibility accordingly. We will not interfere in the jury‟s
role of assessing witness credibility.
IV. Felony Murder Instruction
Taylor argues that the manner in which the jury was instructed on felony murder
amounted to fundamental error. Taylor acknowledges that he did not object to this
instruction. A defendant who fails to object to an instruction or fails to tender an
instruction waives any challenge to that instruction on appeal. Baker v. State, 948 N.E.2d
1169, 1178 (Ind. 2011). To avoid waiver, Taylor argues that the felony murder
instruction resulted in fundamental error. See id. (“The fundamental error doctrine
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provides a vehicle for the review of error not properly preserved for appeal.”). “In order
to be fundamental, the error must represent a blatant violation of basic principles
rendering the trial unfair to the defendant and thereby depriving the defendant of
fundamental due process.” Id. The error must be so prejudicial to the defendant‟s rights
that it makes a fair trial impossible. Id.The jury was instructed:
The crime of felony murder as alleged in the information is
defined by statute as follows:
A person who
kills another human being while committing or
attempting to commit . . . robbery . . . commits felony
murder.
The underlying offense of robbery, as alleged in the
Information, is defined by statute as follows:
A person who knowingly . . . takes property from
another person or from the presence of another person:
(1) by using or threatening the use of force on any
person; or
(2) by putting any person in fear; commits robbery .
..
To convict the Defendant of felony murder, the State must
prove the following elements beyond a reasonable doubt:
The Defendant:
1. knowingly
2. took or attempted to take property from another
person or from the presence of another person;
3. by using or threatening the use of force on any
person or by putting any person in fear; and
4. while doing so, another human being was
killed.
If the State fails to prove any of these elements beyond a
reasonable doubt, you should find the Defendant not guilty.
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If the State did prove each of these elements beyond a
reasonable doubt, you may find the Defendant guilty of
felony murder.
App. p. 65 (ellipses in original). The trial court did not instruct the jury on attempt.
Taylor argues that, based on the lack of evidence regarding the actual taking of property,
the jury could have determined that it could return a guilty verdict even if no property
was actually taken from Hunt. According to Taylor, the jury was left to fend for itself
and make up its own rules regarding what constituted an attempt.
We do not believe that any error in the manner in which the jury was instructed
made a fair trial impossible so as to rise to the level of fundamental error. Taylor was not
charged with attempted robbery and the State did not argue to the jury that Hunt was
killed during an attempted robbery. The State‟s theory of the case was that Thomas,
Taylor, and Orue robbed Hunt, taking cocaine and money from her, and the evidence
supports this theory. Because the State did not proceed on a theory of attempted robbery,
Taylor has not established that the failure to instruct the jury on the elements of attempt
was fundamental error.
V. Sentence
Taylor argues that his sixty-five-year sentence is inappropriate. Indiana Appellate
Rule 7(B) permits us to revise a sentence authorized by statute if, after due consideration
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. Although Rule 7(B) does not
require us to be “extremely” deferential to a trial court‟s sentencing decision, we still
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must give due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007). We also understand and recognize the unique perspective a trial
court brings to its sentencing decisions. Id. “Additionally, a defendant bears the burden
of persuading the appellate court that his or her sentence is inappropriate.” Id.The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived „correct‟ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224. When reviewing the appropriateness of a sentence under Rule 7(B),
we may consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence was suspended.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
Taylor argues that his maximum sentence is inappropriate because he was not the
shooter and is not the worst offender. Although our supreme court has observed that the
maximum possible sentence is generally most appropriate for the worst offenders, it has
also explained that it is not a guideline to determine whether a worse offender could be
imagined. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).
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Although the evidence indicates that Thomas, not Taylor, was the shooter, Taylor
was actively involved in the commission of the offense. It was Taylor who suggested
that Orue, Hunt‟s friend, buy cocaine from Hunt that day. During the ordeal, Taylor
entered Hunt‟s apartment and at one point pinned Hunt against the wall to keep her from
going further into the apartment. During the robbery, Hunt was shot in the head at close
range. Taylor then drove Orue and Thomas from the scene in his truck and was seen with
money and drugs after the shooting. Nothing about the nature of the offense warrants a
reduction of Taylor‟s sentence.
Regarding Taylor‟s character, he has had constant contact with law enforcement
since 1981. He has at least three misdemeanor convictions and felony convictions for
possession of cocaine and robbery and was on probation at the time of this offense. His
felony criminal history is closely related to this offense and does not bode well for his
character. Although Taylor completed a drug addiction program while incarcerated and
has earned college credits, we do not believe that these accomplishments render his
sentence inappropriate.1 Taylor has not established that his sixty-five-year sentence is
inappropriate.
Conclusion
There is sufficient evidence that Taylor and/or his cohorts took property from
Hunt. The incredible dubiousity rule does not apply to Orue‟s, Salazar‟s, and Kenney‟s
1
To the extent Taylor argues the trial court failed to recognize his drug addiction as a mitigator, the trial
court expressly found his addiction issues and accomplishments while incarcerated as mitigators. See
App. p. 89. The trial court also refused to consider a risk assessment tool because it was not available
under the previous sentencing scheme and reflected Taylor‟s criminal history, which the trial court had
already considered. Without more, Taylor has not established that the trial court erroneously considered
the mitigators in this case.
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testimony. The manner in which the jury was instructed does not amount to fundamental
error. Finally, Taylor did not establish that his sixty-five-year sentence is inappropriate.
We affirm.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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