Derrick Mays v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
FILED
Apr 18 2012, 8:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS MCMATH GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DERRICK MAYS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1107-CR-669
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol Orbison, Judge
Cause No. 49G22-1004-FB-34157
April 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Derrick Mays appeals his convictions for Class B felony robbery, Class D felony
criminal recklessness, and Class C felony carrying a handgun without a license. We
affirm.
Issues
Mays raises four issues, which we restate as:
I. whether fundamental error occurred during the
investigating officer’s testimony;
II. whether the trial court abused its discretion by limiting
Mays’s cross-examination of the investigating officer;
III. whether the evidence is sufficient to sustain his
conviction for criminal recklessness; and
IV. whether his sentence is inappropriate in light of the
nature of the offense and the character of the offender.
Facts
Mays and Nicolas Yturralde grew up in the same neighborhood, but they rarely
had interaction with each other over the past several years. On April 26, 2010, Yturralde
was visiting a friend when Mays and two of his friends drove past. Mays yelled for
Yturralde, and they talked for a few minutes. Mays asked Yturralde if he could get a
pound of marijuana, and Yturralde said he would try. Yturralde could only get half an
ounce of marijuana, and he arranged to meet Mays at a friend’s apartment. Mays did not
want to enter the apartment, and they met in the parking lot and went to Yturralde’s
vehicle. Yturralde retrieved the marijuana from his vehicle, and Mays pulled out a
handgun and pointed it at Yturralde. Yturralde started laughing, and Mays said, “this just
2
ain’t no game.” Tr. p. 66. Mays then said, “come on ya’all, come on ya’all,” and two
other men came from between the apartment buildings. Id. The two men also pulled out
guns, and one man put a gun to Yturralde’s head, while the other put a gun to his side.
The men asked Yturralde where the rest of the marijuana was, and Yturralde said, “that’s
all I got.” Id. at 70. The men then took Yturralde’s money, wallet, phone, and keys. The
men got into Yturralde’s vehicle and told him to walk away. As Yturralde was walking
and the men were driving away in his car, Yturralde heard a couple of gunshots.
Yturralde went inside the apartment and called 911.
Yturralde told the police that Mays robbed him, but he did not mention the
marijuana. Detective Benjamin Bierce prepared a photographic lineup, and Yturralde
identified Mays’s picture. Yturralde eventually told the police about the marijuana. The
State charged Mays with Class B felony robbery, Class B felony carjacking, Class D
felony criminal recklessness, and Class A misdemeanor carrying a handgun without a
license. The State also alleged that Mays had a prior conviction for carrying a handgun
without a license and that the Class A misdemeanor should be elevated to a Class C
felony.
A jury found Mays guilty as charged. Mays then pled guilty to the enhanced
handgun charge. The trial court entered judgment of conviction for Class B felony
robbery, Class D felony criminal recklessness, and Class C felony carrying a handgun
without a license. The trial court found Mays’s criminal history, the fact that he was on
parole at the time of the offense, the fact that he had twice had his probation revoked, and
the fact that he received three incident reports while incarcerated at the Marion County
3
Jail as aggravators. The trial court acknowledged Mays’s argument that he had a
dependent child and that he pled guilty to the handgun enhancement but found that those
factors were not substantial mitigators. The trial court sentenced Mays to concurrent
sentences of twenty years for the Class B felony robbery conviction, three years for the
Class D felony criminal recklessness conviction, and eight years for the Class C felony
carrying a handgun without a license conviction, for an aggregate sentence of twenty
years in the Department of Correction. Mays now appeals.
Analysis
I. Fundamental Error
Mays argues that fundamental error occurred as a result of Detective Bierce’s
testimony. Detective Bierce testified that, after hearing that Mays was a suspect in the
robbery, he “searched the database of known photographs to see if there was a recent
photograph and found one and generated a photo lineup for Mr. Mays.” Tr. p. 163.
Mays did not object at trial to this testimony.
The failure to object to the admission of evidence at trial generally results in
waiver and precludes appellate review unless its admission constitutes fundamental error.
Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). The fundamental error exception is
extremely narrow and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010).
The error claimed must either make a fair trial impossible or constitute clearly blatant
4
violations of basic and elementary principles of due process. Id. This exception is
available only in egregious circumstances. Id.According to Mays, Detective Bierce’s testimony was “tantamount to telling the
jury that the picture of Mays was a mug shot.” Appellant’s Br. at 6. “ʻMug shots’ are not
per se inadmissible.” Jenkins v. State, 677 N.E.2d 624, 626 (Ind. Ct. App. 1997) (quoting
Andrews v. State, 536 N.E.2d 507, 509 (Ind. 1989)). Instead, they are admissible if: 1)
they are not unduly prejudicial; and 2) they have substantial independent probative value.
Id. “When the State has made an effort to disguise the nature of the photographs by
redacting criminal information and any other information which obviously identifies the
photograph as a ‘mug shot,’ the photograph is not unduly prejudicial.” Id. “In addition,
when the perpetrator’s identification is at issue, the photographs have probative value.”
Id.We addressed a similar issue in Jenkins. There, the defendant argued that the trial
court abused its discretion by admitting a photographic array. A police officer testified
that the photos were taken from “our” files. Jenkins, 677 N.E.2d at 626. The defendant
argued that the police officer’s testimony “amounted to telling the jury that the photos
were ‘mug shots.’” Id. at 626 n.3. We noted that “[n]o witness explicitly testified that
the photograph was a “mug shot” from police files.” Id. at 626. The officer’s statement
was “not an unequivocal reference to ‘mug shots’ such that it was likely to have a
significant impact upon the jury.” Id. at 626 n.3.
Similarly, here, Detective Bierce merely stated that he had “searched the database
of known photographs to see if there was a recent photograph and found one and
5
generated a photo lineup for Mr. Mays.” Tr. p. 163. He did not explicitly testify that the
photograph was a mug shot. The “database of known photographs” could have referred
to photographs other than mug shots. Mays has failed to demonstrate that Detective
Bierce’s testimony made a fair trial impossible or constituted a clearly blatant violation of
basic and elementary principles of due process. We conclude that Detective Bierce’s
testimony did not result in fundamental error.
II. Limitation of Cross-Examination
Next, Mays argues that the trial court abused its discretion by limiting his cross-
examination of Detective Bierce. We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.
1997), cert. denied. An abuse of discretion occurs if a trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court. Joyner v.
State, 678 N.E.2d 386, 390 (Ind. 1997). However, if a trial court abuses its discretion by
excluding evidence, we will reverse only if that error affects “the substantial rights of the
parties.” Ind. Trial Rule 61.
During cross-examination of Detective Bierce, Mays made an offer of proof
regarding a line of questioning that the trial court had ruled was inadmissible.
Specifically, Mays sought to question Detective Bierce regarding whether “people
involved in drug deals kind of make up robbery claims . . . .” Tr. p. 177-78. During the
offer of proof, Detective Bierce stated that it “happens with some frequency.” Id. at 178.
Mays argues that the trial court abused its discretion by limiting his cross-
examination of Detective Bierce on this subject. The right to cross-examine witnesses is
6
“subject to reasonable limitations placed at the discretion of the trial judge.” Marcum v.
State, 725 N.E.2d 852, 860 (Ind. 2000). The trial court retains wide latitude to impose
reasonable limits based on concerns about, among other things, harassment, prejudice,
confusion of issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant. Id.Mays argues that this line of questioning was relevant because his defense was
that Yturralde was falsely accusing him. The State argues that this evidence was
inadmissible pursuant to Indiana Evidence Rule 704(b), which provides that “[w]itnesses
may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the
truth or falsity of allegations; whether a witness has testified truthfully; or legal
conclusions.” Our supreme court recently analyzed Indiana Evidence Rule 704(b) and
held that testimony concerning whether an alleged child molestation victim is not prone
to exaggerate or fantasize about sexual matters is an indirect but nonetheless functional
equivalent way of saying the child is telling the truth. Hoglund v. State, 962 N.E.2d
1230, 1236 (Ind. 2012). Similarly, the line of questioning at issue here—that people
involved in drug deals often falsely accuse others of robbery—is an implication that
Yturralde testified falsely. The trial court did not abuse its discretion by limiting Mays’s
cross-examination of Detective Bierce on this subject.
III. Sufficiency of the Evidence
Mays argues that the evidence is insufficient to sustain his conviction for Class D
felony criminal recklessness. When reviewing the sufficiency of the evidence needed to
support a criminal conviction, we neither reweigh evidence nor judge witness credibility.
7
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from such
evidence.” Id. We will affirm if there is substantial evidence of probative value such that
a reasonable trier of fact could have concluded the defendant was guilty beyond a
reasonable doubt. Id.The offense of criminal recklessness is governed by Indiana Code Section 35-42-
2-2(b), which provides: “A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person . . . commits
criminal recklessness.” The offense is a Class D felony if it is committed while armed
with a deadly weapon. Ind. Code § 35-42-2-2(c)(2)(A). The charging information
provided that Mays “while armed with a deadly weapon, that is: a gun or guns, recklessly
performed an act that created a substantial risk of bodily injury to Nicolas Yturralde, that
is: fired a gun or guns at or in the direction or proximity of Nicolas Yturralde.” App. p.
22.
Mays first argues that the evidence is insufficient because there is no evidence that
Mays or one of the men with him fired the gun. The State presented evidence that Mays
and his accomplices robbed Yturralde at gunpoint and stole Yturralde’s car.1 As they
drove away, Yturralde heard two gunshots. The jury could have reasonably concluded
that Mays or one of his accomplices fired the shots.
1
The jury was instructed regarding accomplice liability. See Ind. Code § 35-41-2-4.
8
Next, Mays argues that there is no evidence anyone was in the line of fire or near
the person or persons shooting. According to Mays, this case is like Elliot v. State, 560
N.E.2d 1266 (Ind. Ct. App. 1990), and Boushehry v. State, 648 N.E.2d 1174 (Ind. Ct.
App. 1995). In Elliot, we reversed a defendant’s conviction for criminal recklessness
where he fired his gun over uninhabited fields and woodlands. We concluded that the
defendant’s actions “did not create a substantial risk of bodily injury to another person
because there were no people in or near his line of fire.” Elliot, 560 N.E.2d at 1267. In
Boushehry, we reversed a defendant’s conviction for criminal recklessness when he fired
his gun across a vacant lot.
We conclude, however, that this situation is more like Smith v. State, 688 N.E.2d
1289 (Ind. Ct. App. 1997), and Woods v. State, 768 N.E.2d 1024 (Ind. Ct. App. 2002).
In Smith, we affirmed a defendant’s conviction for criminal recklessness where he fired
his weapon multiple times in his backyard in a residential neighborhood and a festival at
a nearby park had just ended. In Woods, we affirmed a defendant’s conviction for
criminal recklessness where he fired shots in a residential neighborhood in close
proximity to adults and children.
Here, the State presented evidence that Mays or one of his accomplices robbed
Yturralde at gunpoint in an apartment complex parking lot in Indianapolis, took his
vehicle, and fired two shots as they drove away. A reasonable jury could have concluded
that a substantial risk of bodily injury arose by Mays or one of his accomplices firing the
weapon in such a highly populated area. The evidence is sufficient to sustain Mays’s
conviction for Class D felony criminal recklessness.
9
IV. Inappropriate Sentence
Mays also argues that his twenty-year sentence is inappropriate in light of the
nature of the offense and the character of the offender. Indiana Appellate Rule 7(B)
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 inappropriate in light of the nature
of the offense and the character of the offender. When considering whether a sentence is
inappropriate, we need not be “extremely” deferential to a trial court’s sentencing
decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must
give due consideration to that decision. Id. We also understand and recognize the unique
perspective a trial court brings to its sentencing decisions. Id. Under this rule, the burden
is on the defendant to persuade the appellate court that his or her sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
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. 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).
10
The nature of the offenses are unremarkable. After asking his friend Yturralde to
obtain marijuana for him, Mays and his two accomplices pointed guns at Yturralde and
stole his marijuana, his wallet, keys, cash, cell phone, and car. As they drove away from
the apartment parking lot, they fired two gunshots. However, twenty-six-year-old Mays
has a significant criminal history. He has juvenile adjudications for theft, criminal
mischief, and two adjudications for battery. Twice he was found to have violated
probation or a suspended commitment. As a adult, he has convictions for Class C felony
possession of cocaine, Class D felony dealing in marijuana, and two convictions for Class
C felony carrying a handgun without a license. Mays had his probation revoked twice,
and he was on parole at the time of these offenses. Although Mays argues that his
sentence should be reduced because he has a dependent child and he pled guilty to the
enhanced handgun charge, the trial court considered those factors but did not find them to
be significant. Mays presented no evidence that he supports his child, and he only pled
guilty to the enhancement. Given Mays’s significant criminal history, which is similar to
the current offenses, we conclude that Mays has failed to demonstrate that his sentence is
inappropriate in light of the nature of the offense and the character of the offender.
Conclusion
Detective Bierce’s testimony did not result in fundamental error, and the trial court
properly limited Mays’s cross-examination of Detective Bierce. Further, the evidence is
sufficient to sustain Mays’s conviction for Class D felony criminal recklessness, and his
sentence is not inappropriate in light of the nature of the offense and the character of the
offender. We affirm.
11
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
12