Michael Kucholick v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Jun 08 2012, 8:31 am
regarded as precedent or cited before any
court except for the purpose of CLERK
of the supreme court,
establishing the defense of res judicata, court of appeals and
tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRADLEY K. MOHLER GREGORY F. ZOELLER
Ponton & Mohler Attorney General of Indiana
Frankfort, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL KUCHOLICK, )
)
Appellant-Defendant, )
)
vs. ) No. 12A02-1109-CR-907
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLINTON CIRCUIT COURT
The Honorable Linley Pearson, Judge
Cause No. 12C01-1003-FC-062
June 8, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Michael Kucholick (Kucholick), appeals his conviction and
sentence for Count I, criminal recklessness, a Class C felony, Ind. Code § 35-42-2-
2(b)(1) and Count II, criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a)(1).
We affirm in part, reverse in part, and remand.
ISSUES
Kucholick raises two issues for review on appeal, which we restate as:
(1) Whether the evidence was sufficient to convict Kucholick of criminal recklessness
and criminal mischief beyond a reasonable doubt; and
(2) Whether Kucholick’s sentence is inappropriate in light of the nature of his
offenses and his character.
FACTS AND PROCEDURAL HISTORY
On March 3, 2010, David Lawler (Lawler) was at home, a two-story farmhouse
surrounded by open fields on County Road 900 East in Kirklin, Indiana. Lawler heard a
truck driving past his home several times. Lawler looked out his window and saw the
truck pulling around behind grain bins located off to the side of his house. Lawler
observed the truck sitting there with its lights and ignition turned off. After seeing a
silhouette, Lawler got his rifle and fired a warning shot into the air outside the back door.
Lawler waited a few minutes, and then called 911.
While on the phone with the 911 dispatch operator, Lawler saw someone reenter
the truck, then drive away. The truck turned around and headed back towards Lawler’s
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house, slowing down. Lawler left the house to find a flashlight to identify the truck’s
license plate. The driver fired two shots from a pistol and then drove away. Although
Lawler did not see the gun, he saw the flash from the gun’s muzzle coming from the
truck’s window. Lawler told the operator that he recognized the truck as belonging to
Mindy Oliver’s (Oliver) father and that the people in the truck were probably Oliver and
her boyfriend, Kucholick, whom Lawler had never met. Lawler also told the dispatch
operator that he had recently collected a judgment of $2500 from Oliver for unpaid rent.
Police were soon dispatched to Lawler’s house and Lawler remained on the phone.
The police located a rifle shell at the back of his house. A nine millimeter bullet casing
was found near Lawler’s mailbox on County Road 900 East. Two bullet holes were
found in and around the side door to Lawler’s home. The first bullet had passed through
the screen door and into the side door; the other bullet was found lodged in the home’s
siding. The police retrieved only one of the bullets. The police also found tire tracks
near the grain bins.
The police went to Oliver’s home and identified a truck that matched the
description given by Lawler. The truck’s tires matched tracks found around Lawler’s
home. Kucholick, Oliver’s boyfriend, and Oliver were both at home. Both Kucholick
and Oliver denied visiting Lawler’s home. Kucholick admitted that he owned a nine
millimeter pistol, but told police that the pistol was at his father’s home. The police
traveled with Kucholick to his father’s home and obtained the pistol, but not the
magazine.
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On March 5, 2010, Kucholick met with an investigator at the police station.
Kucholick admitted that he had lied to police on the night of the shooting. In particular,
Kucholick explained that he had driven with Oliver to Lawler’s home to see if Lawler’s
wife was there. After being fired upon by Lawler, Kucholick fired two shots in the air
and heard three to five more shots as he drove off. Kucholick also admitted that the
pistol had been at Oliver’s home, but he secretly retrieved it to take with him to his
father’s house during police questioning.
On March 10, 2010, the State charged Kucholick with Count I, criminal
recklessness, a Class C felony, I.C. § 35-42-2-2(b)(1); and Count II, criminal mischief, a
Class B misdemeanor, I.C. § 35-43-1-2(a)(1). On January 25 and 26, 2011, a jury trial
was held. The jury found Kucholick guilty as charged. On August 29, 2011, Kucholick
was sentenced to seven years’ incarceration at the Department of Correction on Count I,
with three years suspended, and 180 days incarceration on Count II, with both Counts to
run concurrently.
Kucholick now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Kucholick contends that there was insufficient evidence to support his conviction
on both Counts. Our standard of review for sufficiency of the evidence claims is well-
established. We do not reweigh the evidence or judge the credibility of the witnesses.
Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. Only that
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evidence which is most favorable to the verdict as well as reasonable inferences drawn
therefrom will be considered. Id. at 213. We will affirm if the evidence and those
inferences constitute substantial evidence of probative value to support the judgment. Id.We will reverse only if reasonable persons could not form inferences for each material
element of the crime. Id. Circumstantial evidence by itself is sufficient to support a
conviction. Id.To convict Kucholick of criminal recklessness, the State was required to prove
beyond a reasonable doubt that he recklessly, knowingly, or intentionally performed an
act that created a substantial risk of bodily injury to another person. I.C. § 35-42-2-
2(b)(1). If a deadly weapon was used to commit that act, the offense is a Class C felony.
I.C. § 35-42-2-2(c)(2)(A). To convict Kucholick of criminal mischief, the State was
required to prove beyond a reasonable doubt that Kucholick (1) recklessly, knowingly, or
intentionally; (2) damaged or defaced another person’s property; (3) without such
person’s consent. I.C. § 35-43-1-2(a)(1).
On appeal, Kucholick argues that the evidence was insufficient to prove that the
bullets fired at Lawler’s home were from his nine millimeter pistol. Although the police
retrieved a nine millimeter bullet from Lawler’s home, the police did not order ballistic
testing. Without ballistic testing, Kucholick argues that the State failed to provide “solid
evidence to link the retrieved bullet to Kucholick’s gun.” (Appellant’s Br. p. 10). We
disagree.
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It is well established that “circumstantial evidence will be deemed sufficient if
inferences may reasonably be drawn that enable the trier of fact to find the defendant
guilty beyond a reasonable doubt.” Green v. State, 808 N.E.2d 137, 138 (Ind. Ct. App.
2004). Here, the State presented sufficient circumstantial evidence allowing the jury to
draw a reasonable inference that Kucholick shot two bullets from his nine millimeter
pistol at Lawler’s home. Kucholick admitted to driving past Lawler’s home and firing
two shots from his nine millimeter pistol. Lawler’s 911 call was recorded and
memorialized the sound of bullets fired at his home. Nine millimeter bullets were found
in the side doors and siding of Lawler’s home. We find this circumstantial evidence
sufficient to allow a reasonable inference that Kucholick fired those shots. Although
Kucholick’s defense focused on the lack of ballistic testing, the jury weighed the
evidence and found this omission inconsequential. Thus, Kucholick’s argument is
merely an invitation to reweigh the evidence, which we decline to do on appeal. Perez,
872 N.E.2d at 212-13. We therefore conclude that Kucholick has not shown the
existence of insufficient evidence to disturb his conviction.
II. Appropriateness of the Sentence
Kucholick also challenges his sentence as inappropriate in light of the nature of
the offense and his character. Specifically, he requests this court to reduce his sentence
to no more than four years, with two years suspended to probation and the remainder
served through community corrections.
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Kucholick was convicted of criminal recklessness, a Class C felony, and criminal
mischief, a Class B misdemeanor. A sentence for a Class C felony ranges from two to
eight years, with an advisory sentence of four years. I.C. § 35-50-2-6(a). The maximum
sentence for a Class B misdemeanor is six months. I.C. § 35-50-3-3. The trial court
sentenced Kucholick to seven years executed and three years suspended to probation on
the Class C felony as well as a concurrent sentence of six months on the Class B
misdemeanor. The trial court thus imposed an aggregate sentence three years greater
than the advisory sentence for a Class C felony.
Sentences within the statutory range are subject to review 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). An abuse of discretion occurs if the decision is clearly against
the logic and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. Under Ind. Appellate Rule
7(B), we may revise a sentence authorized by statute if we find that it is inappropriate in
light of the nature of the offense and the character of the offender. Id. However, it is the
defendant's burden to persuade us that the sentence imposed by the trial court is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
As the trial court expressed during Kucholick’s sentencing, we note the
recklessness of his actions. The risk that Lawler or someone inside Lawler’s home could
have been hit by gunfire cannot be ignored. Thus, the nature of the offense, by itself,
does not provide a persuasive reason to revise Kucholick’s sentence.
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On the other hand, Kucholick’s character presents an arguable case for a lesser
sentence. He argues that imprisonment would deprive him of the opportunity to support
his family, which includes Oliver and their new-born child. Kucholick also points to his
relatively youthful age, his prior success with obtaining employment, and his lack of
criminal history, save a conviction for illegal consumption of alcohol. In contrast, the
State points to Kucholick’s deception of police officers, the partial cancellation of the
first trial day based upon the presence of residual alcohol in his system, and his apparent
lack of remorse.
While Kucholick’s lack of truthfulness and the recklessness of his criminal act
would ordinarily not persuade us to revise his sentence, the combination of his age, his
professed commitment to support his family, and his desire to be a father to his new born
daughter, weigh in favor of giving him a chance to prove such commitment. We
therefore reduce his sentence to the advisory sentence of four years, of which two years
will be suspended to probation and two years will be executed at community corrections.
CONCLUSION
Based on the foregoing, we find that there was sufficient evidence from which the
jury could conclude that Kucholick fired shots at Lawler’s residence. However, we find
Kucholick’s sentence to be inappropriate in light of his character.
Affirmed in part, reversed in part, and remanded.
DARDEN, J. concurs
NAJAM, J. concurs in part and dissents in part with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
MICHAEL KUCHOLICK, )
)
Appellant-Defendant, )
)
vs. ) No. 12A02-1109-CR-907
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
NAJAM, Judge, concurring in part and dissenting in part.
I concur in the majority’s conclusion that the trial court imposed an inappropriate
sentence in light of the nature of the offense and Kucholick’s character. See Ind.
Appellate Rule 7(B). I disagree with my colleagues, however, on their decision to revise
Kucholick’s sentence from seven years, with three years suspended, to four years, with
two years suspended to probation and two years executed at community corrections.
Instead, I would vote to impose an executed term of four years, the advisory sentence for
Kucholick’s criminal recklessness.
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The advisory sentence is the starting point the legislature has selected as an
appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019
(Ind. 2012). The advisory sentence for a Class C felony is four years. Ind. Code § 35-50-
2-6. And to prove criminal recklessness, as a Class C felony, the State had to show that
Kucholick, by shooting a firearm into an inhabited dwelling, intentionally performed an
act that created a substantial risk of bodily injury to another person. I.C. § 35-42-2-
2(b)(1), (c)(3)(A).
The nature of Kucholick’s offense closely corresponds to the elements of the
crime. While trespassing onto Lawler’s property, Kucholick fired two shots towards
Lawler’s house, which was occupied and where Lawler was standing. Kucholick’s
conduct was intentional. Both shots hit the house.
The majority bases Kucholick’s new sentence on his “arguable” character. Slip
op. at 8. But the majority recognizes that Kucholick deceived police officers during their
investigation and did not accept responsibility for his actions. Kucholick also was
underage and had consumed alcohol prior to the offense. I would find Kucholick’s
character equivocal and not in itself substantial enough to warrant an executed term less
than the advisory sentence.
Accordingly, I concur in part and dissent in part.
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