Michael Damien Howell v. State of Indiana ( 2018 )

FILED
Mar 13 2018, 7:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Damien Howell, March 13, 2018
Appellant-Defendant, Court of Appeals Case No.
82A05-1707-CR-1474
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff Judge
Trial Court Cause No.
82D03-1604-MR-2081
Crone, Judge.
Case Summary
[1] Michael Damien Howell was convicted of level 2 felony voluntary
manslaughter, level 6 felony criminal recklessness while armed with a deadly
weapon, level 3 felony attempted robbery while armed with a deadly weapon,
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and level 6 felony auto theft. On appeal, he contends that his voluntary
manslaughter conviction must be reversed because an allegedly erroneous jury
instruction resulted in fundamental error. He also argues that his convictions
for criminal recklessness and attempted robbery violate double jeopardy
principles and requests that we vacate his criminal recklessness conviction.
[2] In addition, Howell raises three challenges to his fifty-seven-year aggregate
sentence. He argues that the trial court improperly enhanced his sentence for
voluntary manslaughter for using a firearm in the commission of the offense.
He also asserts that the trial court abused its discretion in sentencing him by
finding improper aggravating factors. Finally, he argues that his sentence is
inappropriate based on the nature of the offenses and his character.
[3] We conclude that the jury instructions as a whole did not mislead the jury, and
therefore we affirm his voluntary manslaughter conviction. However, we
conclude that his criminal recklessness conviction and his attempted robbery
conviction run afoul of the constitutional protection against double jeopardy,
and therefore we remand with instructions to vacate his criminal recklessness
conviction. As for his sentencing challenges, we conclude that the trial court
did not err in enhancing his voluntary manslaughter sentence and did not abuse
its discretion in finding aggravating factors, and we conclude that he has failed
to carry his burden to show that his sentence is inappropriate. Therefore, we
affirm Howell’s sentence.
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Facts and Procedural History
[4] In February 2016, Howell and his wife, with whom he has two children,
separated. While Howell was staying with a friend, he was introduced to
Beverly Karns. Howell moved in with her. Other individuals also lived with
Karns including Brandon Davis and Abigail Autry. Howell and Karns used
marijuana and methamphetamine together. While Howell lived with Karns,
her drug use increased and she became paranoid that someone was stealing
from her. Karns sometimes carried a gun in her purse. She owned a .38
Special revolver and a .22 rifle. Howell went with Karns to buy a .45 caliber
handgun. Karns also bought a 9-millimeter handgun. Howell and Karns
practiced shooting together. Karns began making romantic advances toward
Howell, but he was not interested.
[5] In early April 2016, Karns and Howell were in her kitchen when she
accidentally fired one of her guns in Howell’s direction. After that, Howell
moved out of Karns’s residence and stayed at a hotel. In the hotel parking lot,
while in a vehicle with his wife and children, Howell had a confrontation with
Karns, Davis, and Autry, during which Karns accused Howell of stealing her
property. During the confrontation, Autry pointed a gun at Howell and
demanded that he open his trunk, Karns pointed a gun at Howell’s wife, and
Howell pointed a gun at Davis. Eventually, Davis persuaded Karns and Autry
to back off, and Howell drove away. Later Karns called Howell to apologize.
[6] In the early morning hours of April 9, 2016, Howell was staying with Coty
Clark and his wife in Vanderburgh County. Karns came to Clark’s house, and
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she and Howell talked and used drugs. Karns left and returned to Clark’s home
around 8:00 or 9:00 a.m. with some of Howell’s belongings. Karns told Howell
that she wanted him to move back in with her and expressed her desire to have
a romantic relationship with him. Howell told her that he was not interested
and that he never wanted to see her again. Karns became angry, and she and
Howell argued in the middle of the living room. At some point, Karns started
going through her purse. Howell saw her pull something out of her purse that
flashed like it was chrome, and he heard a clinking noise of metal on metal. He
thought that she was going to pull a gun on him, and he was frightened. He
pulled his gun from his waistband and shot Karns in the head. Tr. Vol. 3 at
175-76. Karns fell to the floor, and Howell saw that she had an e-cigarette and
not a weapon. Howell “freaked out.” Id. at 179. Karns died because of the
gunshot wound.
[7] Clark was home at the time, and Howell’s father had come to visit Howell.
Howell’s father drove Karns’s truck to the back of Clark’s house, and he and
Clark loaded Karns into the back of her truck. Howell gave his father a hug
and removed his wedding band and gave it to his father. Howell’s father told
Howell to wait a minute while he pulled his car around and they would figure
out what to do. By the time Howell’s father retrieved his car and drove it to the
back of the house, Howell had taken Karns’s truck and left.
[8] While driving in Warrick County, Howell lost control of the truck. It flipped
and landed in a ditch. Howell’s head was injured, and he was still under the
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influence of methamphetamine and marijuana. He got out of the truck,
grabbed some stuff, and ran from the scene into a wooded area.
[9] A witness saw Howell flip the truck and land in the ditch, and she called 911.
While she talked to the dispatcher, she saw Howell get out of the truck, grab
some stuff, and run up the hill and into the woods. She went to the accident
site to see if anyone else was hurt, and she found Karns’s body wrapped in a
carpet in the truck’s camper shell, which had come off when the truck flipped.
[10] While still in Warrick County, Howell came out of the woods as Charles Scales
was backing his truck out of a driveway. A witness noticed Howell standing by
Scales’s truck. She observed Scales briefly pause from backing out and Howell
reach for the back door of Scales’s truck. She saw Howell pull a gun and start
firing at Scales. Scales quickly resumed backing out. Howell fired at Scales five
times. One of the bullets hit Scales’s leg, but he was able to drive away.1 The
witness ran to get her phone and call 911. Meanwhile, Howell noticed a Ford
Explorer, saw that the keys were in the ignition, and drove it away.
[11] Law enforcement in multiple counties were dispatched, the Explorer was
located, and a car chase ensued. Eventually, Howell pulled over somewhere in
Dubois County and surrendered to police. In Vanderburgh County, the State
charged Howell with the murder of Karns and sought a sentencing
enhancement for his use of a firearm in the commission of the offense. The
1
Scales survived the encounter but died before trial from unrelated causes.
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State also charged Howell with level 1 felony attempted murder of Scales, level
3 felony attempted robbery of Scales while armed with a deadly weapon, and
level 6 felony auto theft. Howell filed a motion to dismiss the counts for the
offenses that were committed in Warrick County. The trial court denied his
motion to dismiss, finding that his Warrick County offenses for purposes of
venue and/or joinder2 were “part of the series of events that constituted the
commission” of the offenses committed in Vanderburgh County. Appellant’s
App. Vol. 2 at 44.
[12] A jury found Howell guilty of level 2 felony voluntary manslaughter of Karns
as a lesser-included offense of murder, guilty of level 6 felony criminal
recklessness as a lesser-included offense of attempted murder of Scales, and
guilty of attempted robbery and auto theft as charged. Howell admitted to
using a firearm in the commission of voluntary manslaughter.
[13] In sentencing Howell, the trial court found the following aggravating factors:
Scales was injured and was over sixty-five years old; Howell’s history of
substance abuse; Howell’s continued abuse of drugs after completing a forensic
diversion program; children were present when he committed voluntary
manslaughter; his attempted disposal of Karns’s body; and police were forced to
engage in a high-speed chase before Howell eventually surrendered. Id. at 187-
88. The trial court found no mitigating circumstances. The trial court
2
The specific basis for Howell’s motion to dismiss is uncertain because neither his motion to dismiss nor the
supporting and opposing authorities the parties submitted to the trial court are in the record.
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sentenced Howell as follows: twenty-five years for his voluntary manslaughter
conviction, plus fifteen years for using a firearm in its commission; two years
for his criminal recklessness conviction and fifteen years for his attempted
robbery conviction, to be served concurrent to each other but consecutive to his
sentence for voluntary manslaughter; and two years for his auto theft
conviction, to be served consecutive to the other counts, for an aggregate
sentence of fifty-seven years. This appeal ensued. Additional facts will be
provided as necessary.
Discussion and Decision
Section 1 – The jury instruction on voluntary manslaughter
did not result in fundamental error.
[14] Howell contends that his conviction for voluntary manslaughter, the lesser-
included offense of his murder charge, must be reversed because the trial court
erred in giving Final Instruction 9 (“Instruction 9”),3 which addressed lesser-
included offenses as follows:
If you find that the State has failed to prove any one of the essential
elements of the charged crimes of Murder and Attempted Murder, you
should then decide whether the State has proved beyond a
reasonable doubt all elements of the included crimes of Voluntary
Manslaughter and Criminal Recklessness which have been defined
for you.
3
Although Howell was charged with the attempted murder of Scales and was found guilty of the lesser-
included offense of criminal recklessness, he does not challenge his criminal recklessness conviction on this
basis.
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If the State failed to prove each of the essential elements of the
included crime beyond a reasonable doubt, the defendant should
be found not guilty. If the State did prove each of the elements of
the included crime beyond a reasonable doubt, you should find
the defendant guilty of the lesser included crime. You must
resolve reasonable doubt in favor of the accused downward from
the specific crime charged through the included offenses. You
may not find the defendant guilty of more than one of the
offenses. Where there is a reasonable doubt existing in your
minds as to which degree of an offense the defendant may be
guilty of, he must be convicted of the lower degree only. If there
is reasonable doubt as to all, then you must find the defendant
not guilty.
Id. at 92 (emphases added).
[15] In reviewing Howell’s contention, we observe that
[t]he manner of instructing a jury is left to the sound discretion of
the trial court. We will not reverse the trial court’s ruling unless
the instructional error is such that the charge to the jury misstates
the law or otherwise misleads the jury. Jury instructions must be
considered as a whole and in reference to each other, and even
an erroneous instruction will not constitute reversible error if the
instructions, taken as a whole, do not misstate the law or
otherwise mislead the jury.
Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct. App. 2012) (citations omitted).
[16] Howell acknowledges that he failed to object to Instruction 9, and thus seeks to
win reversal by claiming that it constitutes fundamental error. See Knapp v.
State, 9 N.E.3d 1274, 1281 (Ind. 2014) (“Failure to object at trial waives an
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issue on appeal unless the appellant can show fundamental error.”). The
fundamental error exception to the contemporaneous objection rule 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. The error claimed must either make a
fair trial impossible or constitute clearly blatant violations of
basic and elementary principles of due process. This exception is
available only in egregious circumstances.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations and quotation marks
omitted).
[17] Specifically, Howell contends that Instruction 9 erroneously instructs the jury
that it “should” decide whether he was guilty of the lesser-included offense of
voluntary manslaughter “[i]f you find that the State has failed to prove any one
of the essential elements of the charged crime[] of Murder.” Appellant’s App.
Vol. 2 at 92. Generally, conviction of a lesser-included offense must be
supported by proof of some, but not all, of the elements of the charged crime.
Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct. App. 2013). However, voluntary
manslaughter is different.
[18] Indiana Code Section 35-42-1-3 defines voluntary manslaughter as follows:
(a) A person who knowingly or intentionally:
(1) kills another human being;
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...
while acting under sudden heat commits voluntary
manslaughter, a Level 2 felony.
(b) The existence of sudden heat is a mitigating factor that reduces
what otherwise would be murder under section 1(1) of this
chapter to voluntary manslaughter.
(Emphasis added.)
[19] “Voluntary manslaughter is a lesser included offense of murder, distinguishable
by the factor of a defendant having killed, while acting under sudden heat.”4
Evans v. State, 727 N.E.2d 1072, 1077 (Ind. 2000). To obtain a conviction for
voluntary manslaughter, the State must prove all the elements of murder and
disprove the existence of sudden heat if the defendant places sudden heat in
issue. Id.; see also Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001) (“[T]he
defendant bears no burden of proof with respect to sudden heat, but only bears
the burden of placing the issue in question where the State’s evidence has not
done so.”). Here, Instruction 9 incorrectly stated that if the State did not prove
all the elements of murder, the jury should then decide whether Howell
committed voluntary manslaughter. Nevertheless, we reject Howell’s
contention that Instruction 9 made a fair trial impossible.
4
To establish sudden heat, the defendant must show “sufficient provocation to engender ... passion.”
Johnson v. State, 518 N.E.2d 1073, 1077 (Ind. 1988). Sufficient provocation is demonstrated by “such
emotions as anger, rage, sudden resentment, or terror [that are] sufficient to obscure the reason of an ordinary
person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.” Id.
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[20] As previously mentioned, “an erroneous instruction will not constitute
reversible error if the instructions, taken as a whole, do not misstate the law or
otherwise mislead the jury.” Quiroz, 963 N.E.2d at 41. Here, the trial court
also provided Final Instruction Number 3 (“Instruction 3”), which provided,
The crime of murder is defined by law as follows:
A person who knowingly or intentionally kills another human
being, commits murder a felony.
Included in the charge in this case is the crime of voluntary
manslaughter, which is defined by law as follows:
A person who knowingly or intentionally kills another human
being while acting under sudden heat commits voluntary
manslaughter, a Level 2 Felony.
Sudden heat is a mitigating factor that reduces what otherwise
would be murder to voluntary manslaughter. The State has the
burden of proving beyond a reasonable doubt that the Defendant
was not acting under sudden heat.
Before you may convict [Howell] on Count 1 [(murder of Karns)]
the State must have proved each of the following beyond a
reasonable doubt:
1. [Howell]
2. Knowingly or intentionally
3. Killed
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4. Beverly Karns
5. And [Howell] was not acting under sudden heat.
If the State failed to prove each of the elements 1 through 4
beyond a reasonable doubt, you must find the Defendant not
guilty of murder as charged in Count 1.
If the State did prove each of the elements 1 through 4 beyond a
reasonable doubt, but the State failed to prove beyond a
reasonable doubt element 5[5] you may find the Defendant guilty
of voluntary manslaughter, a Level 2 Felony, a lesser included
offense of Count 1.
If the State did prove each of the elements 1 through 5 beyond a
reasonable doubt, you may find the Defendant guilty of murder,
a Felony, as charged in Count 1.
Appellant’s App. Vol. 2 at 85.
[21] Howell concedes that Instruction 3 correctly states the law, but argues that it
did not cure Instruction 9, citing Roberson v. State, 982 N.E.2d 452 (Ind. Ct.
App. 2013). However, Roberson does not support Howell’s argument. In that
case, the issue was whether Roberson’s trial counsel provided ineffective
assistance in failing to object to jury instructions. The Roberson court concluded
that the trial court erroneously instructed the jury that “[i]f the State proves
5
To be clear, although Instruction 3 refers to “element 5”, the existence of sudden heat is a mitigating factor,
not an element. Brantley v. State, No. 18S-CR-98, 2018 WL 915130, at *6 (Ind. Feb. 16, 2018). “However,
once a defendant places sudden heat into issue, the State then bears the burden of negating the presence of
sudden heat beyond a reasonable doubt.” Evans, 727 N.E.2d at 1077.
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[Roberson] guilty of Murder, you must not consider the included crimes.” Id. at
458 (citation omitted). In addition, the jury received another instruction, which
likewise provided, “If you find that [Roberson] is not guilty of the crime of
Murder ..., you may then consider whether [Roberson] is guilty of the included
offense of Voluntary Manslaughter....” Id. at 460 (citation omitted). The
Roberson court observed that “the jury instructions as a whole indicated to the
jury that it could only consider convicting Roberson of voluntary manslaughter
if it first found him not guilty of murder.” Id. (emphasis added). The Roberson
court concluded that trial counsel’s failure to object to the jury instructions
constituted ineffective assistance. Id. at 461.
[22] Here, Instruction 3 correctly informed the jury of the definitions of murder and
voluntary manslaughter, that sudden heat is a mitigating factor that reduces
murder to voluntary manslaughter, and that the State had the burden of proving
that Howell was not acting under sudden heat, and Instruction 3 laid out
specifically the circumstances under which the jury was required to find him not
guilty of murder, guilty of voluntary manslaughter, or guilty of murder based on
the State’s success or failure to prove the required elements. Therefore, the
instructions taken as a whole did not mislead the jury. As such, Instruction 9
did not result in reversible error, let alone fundamental error. Therefore, we
affirm Howell’s voluntary manslaughter conviction.
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Section 2 – Howell’s convictions for attempted robbery and
criminal recklessness violate the Indiana Constitution’s
double jeopardy provision.
[23] Howell asserts that his convictions for both attempted robbery with a deadly
weapon and criminal recklessness while armed with a deadly weapon violate
the Indiana Constitution’s prohibition against double jeopardy and requests that
we vacate his criminal recklessness conviction. “Questions of double jeopardy
implicate fundamental rights and, as such, may be raised for the first time on
appeal, or even by this court sua sponte. Whether convictions violate double
jeopardy is a pure question of law, which we review de novo.” Street v. State, 30
N.E.3d 41, 46 (Ind. Ct. App. 2015), trans. denied. The Indiana Constitution
provides, “No person shall be put in jeopardy twice for the same offense.” IND.
CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause ... prevent[s] the State
from being able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). “[T]wo or
more offenses are the ‘same offense’ in violation of Article I, Section 14 of the
Indiana Constitution, if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Id.
[24] Howell’s double jeopardy challenge is based on the actual evidence used to
convict him. Under the “actual evidence” test, the actual evidence presented at
trial is examined to determine whether each challenged offense was established
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by separate and distinct facts. Id. at 53. To show that two challenged offenses
constitute the “same offense” in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also have been used
to establish all the essential elements of a second challenged offense. Spivey v.
State, 761 N.E.2d 831, 833 (Ind. 2002). Our supreme court has explained,
[A] reasonable possibility that the jury used the same facts to
reach two convictions requires substantially more than a logical
possibility. The reasonable possibility standard fairly implements
the protections of the Indiana Double Jeopardy Clause and also
permits convictions for multiple offenses committed in a
protracted criminal episode when the case is prosecuted in a
manner that insures that multiple guilty verdicts are not based on
the same evidentiary facts. The existence of a reasonable
possibility turns on a practical assessment of whether the fact
finder may have latched on to exactly the same facts for both
convictions. We evaluate the evidence from the jury’s perspective
and may consider the charging information, jury instructions,
and arguments of counsel
Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013) (citations, quotation marks,
and brackets omitted).
[25] To convict Howell of level 3 felony attempted robbery while armed with a
deadly weapon, the State was required to prove that he knowingly or
intentionally engaged in conduct that constituted a substantial step toward taking
property from Scales or from the presence of Scales by using or threatening the
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use of force on Scales while armed with a deadly weapon.6 Ind. Code §§ 35-42-
5-1 (robbery) and 35-41-5-1 (attempt). To convict Howell of level 6 felony
criminal recklessness while armed with a deadly weapon, the State was required
to prove that he recklessly, knowingly, or intentionally performed an act that
created a substantial risk of bodily injury to Scales while armed with a deadly
weapon. Ind. Code § 35-42-2-2. Specifically, Howell asserts that the actual
evidence that established the substantial step for the attempted robbery charge is
the same evidence that established that he performed an act that created a
substantial risk of bodily injury to Scales, namely the evidence that he
discharged a firearm into a vehicle occupied by Scales and/or in his direction.
We agree.
[26] A comparison of the charging informations and the jury instructions supports
Howell’s assertion. In charging Howell with attempted robbery with a deadly
weapon, the State alleged that Howell “engag[ed] in conduct that constituted a
substantial step toward the commission of the crime of Robbery, by knowingly or
intentionally attempting to take the property of [Scales] from or from the
presence of [Scales], by discharging a firearm into a vehicle occupied by [Scales]
and/or in the direction of [Scales].” Appellant’s App. Vol. 2 at 54 (emphases
added). The State did not charge Howell with criminal recklessness, but
because the jury convicted Howell of criminal recklessness as a lesser-included
6
Robbery is a level 5 felony and is raised to a level 3 felony if it is committed while armed with a deadly
weapon or results in bodily injury to any person other than a defendant. Ind. Code § 35-42-5-1(b).
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offense of attempted murder, we consider the charging information for
attempted murder. In the charging information, the State alleged that Howell
“knowingly or intentionally discharg[ed] a firearm into a vehicle occupied by [Scales]
and/or in the direction of [Scales] with the intent to kill, which conduct constituted
a substantial step toward the commission of said crime of Murder.” Id. at 38
(emphases added). Similarly, the jury was instructed that to convict Howell of
attempted murder, the State must have proved that he, acting with the specific
intent to kill Scales, “[d]id knowingly or intentionally discharge a firearm into a
vehicle occupied by [Scales] and/or in the direction of [Scales] with the intent to kill[,]
which [] conduct constituted a substantial step toward the commission of the
intended crime of killing [Scales].” Id. at 86 (emphases added). Therefore, the
charging information for attempted robbery, the charging information for
attempted murder, and the jury instruction for attempted murder are based on
Howell’s conduct of discharging a firearm.7
[27] Turning to closing argument, we note that the prosecutor told the jury that she
would address the attempted robbery charge and the attempted murder charge
“together.” Tr. Vol. 4 at 131. The prosecutor argued,
[Howell] had already driven [Karns’s] vehicle, had a wreck, took
off running to continue his escape and now he needed another
vehicle and [Scales] was in the way of him taking off in [Scales’s]
7
The jury instruction for attempted robbery did not specify what conduct constituted the substantial step.
That instruction advised the jury that to convict Howell of attempted robbery, the State must have proved
that he knowingly or intentionally engaged in conduct constituting a substantial step toward committing
robbery while armed with a deadly weapon. Appellant’s App. Vol. 2 at 88.
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truck. [Howell] admitted to shooting [] Scales because he got
angry. He shot five rounds at [Scales] and [Scales] was lucky that
only one of those rounds struck him. [Howell] wanted that truck
to continue his escape and [Scales] was in the way and he had to
shoot at [Scales] so that he could get that truck.
Id. at 132. Thus, consistent with the charging informations and jury instruction,
closing argument reflects that the substantial step to support both attempted
robbery and attempted murder was based on Howell’s discharging a firearm
into a vehicle while Scales was in it and/or in Scales’s direction.
[28] Howell’s conviction for criminal recklessness, as a lesser-included offense, was
based on the charging information and jury instructions for attempted murder.
The jury was instructed that “[i]f you find that the State failed to prove any one
of the essential elements of the charged crime of Attempted Murder as set out in
this count you should then decide whether the State has proved beyond a
reasonable doubt all elements of the included crime of Criminal Recklessness.”
Appellant’s App. Vol. 2 at 86. To convict Howell of criminal recklessness, the
jury was instructed that the State was required to prove that he recklessly,
knowingly, or intentionally “[p]erform[ed] an act that created a substantial risk
of bodily injury to Scales” while armed with a deadly weapon. Id. at 87.
Because the criminal recklessness conviction was based on the charges and jury
instructions for the attempted murder charge, the act that created a substantial
risk of bodily injury to Scales refers to Howell’s conduct in discharging a
firearm into a vehicle occupied by Scales and/or in the direction of Scales.
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That is the same conduct that constitutes the substantial step that supports
Howell’s attempted robbery conviction.
[29] The State argues that the crimes of attempted robbery and criminal recklessness
each include
evidence or facts not essential to the other. The attempted taking
of property from Scales supports the attempted robbery, but is not
[an] element of the other crime. Further, in order to convict
Howell of criminal recklessness, the jury had to find that he
performed an act that created a substantial risk of bodily injury to
Scales, which it did not need to find in order to convict Howell of
attempted robbery.
Appellee’s Br. at 17. But the State’s argument merely echoes the obvious point
that the statutory elements of the two crimes are different. The State fails to
discuss the actual evidence that the jury might have reasonably relied on to
decide that the State proved these statutory elements. We conclude that based
on the charging informations, jury instructions, and closing arguments, there is
a reasonable possibility that the evidentiary facts used to establish that Howell
took a substantial step toward committing robbery may also have been used to
establish that Howell performed an act that created a substantial risk of bodily
injury to Scales. See Stewart v. State, 866 N.E.2d 858, 864-65 (Ind. Ct. App.
2007) (concluding that there was reasonable possibility that trial court used the
same evidence—Stewart fired at or into occupied vehicle—to establish all
elements of both attempted battery and criminal recklessness): Rutherford v.
State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007) (same); but see Lee v. State, 892
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N.E.2d 1231, 1237 (Ind. 2008) (concluding that convictions of burglary and
attempted armed robbery did not violate double jeopardy where there was
distinct evidence that Lee barged into a residence to support the burglary
conviction and evidence that he made threats to establish the substantial step of
attempted armed robbery). Accordingly, Howell’s convictions for attempted
robbery and criminal recklessness violate the prohibition against double
jeopardy.
[30] “When two convictions are found to contravene double jeopardy principles, a
reviewing court may remedy the violation by reducing either conviction to a
less serious form of the same offense if doing so will eliminate the violation. If
it will not, one of the convictions must be vacated.” Richardson, 717 N.E.2d at
54 (citation omitted). Here, even if we reduced the attempted robbery to a level
5 felony, the substantial step element, and thus the double jeopardy violation,
would remain. Therefore, because the violation cannot be eliminated by
reducing either conviction to a less serious form of the same offense, we remand
with instructions to vacate Howell’s conviction for criminal recklessness.
Section 3 – The trial court did not err in enhancing Howell’s
sentence for voluntary manslaughter pursuant to the Firearm
Enhancement Statute.
[31] Howell argues that the trial court improperly applied Indiana Code Section 35-
50-2-11 (“the Firearm Enhancement Statute”) to enhance his sentence for
voluntary manslaughter for using a firearm in the commission of the offense.
His argument raises a question of statutory interpretation.
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When interpreting a statute, our primary goal is to fulfill the
legislature’s intent. [T]he best evidence of that intent is the
statute’s language. If that language is clear and unambiguous,
we simply apply its plain and ordinary meaning, heeding both
what it does say and what it does not say.
Day v. State, 57 N.E.3d 809, 812 (Ind. 2016) (citations and quotation marks
omitted).
[32] The Firearm Enhancement Statute provides as follows:
(b) As used in this section, “offense” means:
(1) a felony under IC 35-42 that resulted in death or
serious bodily injury;
(2) kidnapping; or
(3) criminal confinement as a Level 2 or Level 3 felony.
….
(d) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.
….
(g) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
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reasonable doubt that the person knowingly or intentionally used
a firearm in the commission of the offense under subsection (d),
the court may sentence the person to an additional fixed term of
imprisonment of between five (5) years and twenty (20) years.
….
(i) A person may not be sentenced under subsections (g) and (h)[8] for
offenses, felonies, and misdemeanors comprising a single episode of
criminal conduct.
(Emphasis added).
[33] Howell does not dispute that his voluntary manslaughter conviction qualifies as
an “offense” for purposes of the Firearm Enhancement Statute pursuant to
subsection (b). However, he argues that pursuant to subsection (i), the statute
cannot be applied to him because his offenses constitute a single episode of
criminal conduct. According to Howell, his sentence for voluntary
manslaughter may not be enhanced because that offense and his offenses for
attempted robbery and auto theft comprise a single episode of criminal conduct.
Howell interprets subsection (i) to bar a sentencing enhancement for an offense
when that offense was committed with other offenses comprising a single
episode of criminal conduct. We disagree.
8
Subsection (h) deals with pointing and discharging a firearm in the commission of felonies and
misdemeanors against police officers.
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[34] By its plain language, subsection (i) states that a person may not be sentenced
under subsection (g) for offenses—plural—comprising a single episode of
criminal conduct. Thus, subsection (i) prohibits a trial court from imposing a
sentence enhancement on more than one conviction where a defendant is
convicted of multiple offenses comprising a single episode of criminal conduct,
even if more than one of the offenses would otherwise be eligible for a
sentencing enhancement. To read subsection (i) as Howell suggests would lead
to the absurd result that a person who was convicted of committing a single
qualifying offense, say voluntary manslaughter, would be subject to a
sentencing enhancement, but a person who committed voluntary manslaughter
as part of an episode of criminal conduct could not be subject to a sentencing
enhancement. Accordingly, we conclude that subsection (i) simply means that
not more than one offense in a single episode of criminal conduct is subject to
the sentencing enhancement. Thus, even if Howell’s offenses can be said to
comprise a single episode of criminal conduct, the Firearm Enhancement
Statute permits a sentencing enhancement of one of his offenses (as long as that
offense meets the definition provided in subsection (b), and as noted, there is no
dispute that voluntary manslaughter qualifies).
[35] That said, even if we were to accept Howell’s interpretation of subsection (i),
we are unpersuaded by his argument that his offenses constitute a single episode
of criminal conduct. He claims that the trial court has already found that his
offenses comprise a single episode of criminal conduct because in denying his
motion to dismiss the offenses committed in Warrick County, the trial court
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found that his Warrick County offenses were “part of the series of events that
constituted the commission” of the offenses committed in Vanderburgh
County. Appellant’s App. Vol. 2 at 44. Howell asserts that the trial court’s
language meets the definition of “episode of criminal conduct” as defined in the
statute governing consecutive and concurrent terms, Indiana Code Section 35-
50-1-2. His argument contains two underlying assumptions: (1) that Section 35-
50-1-2(b)’s definition of episode of criminal conduct applies to the Firearm
Enhancement Statute; and (2) that the standard that the trial court applied to
determine whether his crimes should be prosecuted together is the same
standard that applies for purposes of sentencing under Section 35-50-1-2. We
address each assumption in turn.
[36] Subsection (i) of the Firearms Enhancement Statute provides, “A person may
not be sentenced under subsections (g) and (h) for offenses, felonies, and
misdemeanors comprising a single episode of criminal conduct.” The Firearm
Enhancement Statute does not define a single episode of criminal conduct. The
only definition of episode of criminal conduct in Title 35, Criminal Law and
Procedure, is provided by Section 35-50-1-2-(b), which reads, “As used in this
section, ‘episode of criminal conduct’ means offenses or a connected series of
offenses that are closely related in time, place, and circumstance.” 9 (Emphasis
added). The Firearm Enhancement Statute is not in that section, but rather in
9
Section 35-31.5-2-121 unhelpfully provides, “‘Episode of criminal conduct’, for purposes of IC 35-50-1-2,
has the meaning set forth in IC 35-50-1-2(b).” We also note that Indiana Code Sections 35-38-9-2 and -5 refer
to “the same episode of criminal conduct” but do not cite the definition in Section 35-50-1-2(b) or provide an
independent definition.
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Chapter 35-50-2. Nor does Subsection (i) of the Firearm Enhancement Statute
refer to 35-50-1-2(b). However, another section of Chapter 35-50-2, Section 35-
50-2-1.3 (“Advisory sentence”), refers to “an episode of criminal conduct, in
accordance with IC 35-50-1-2.” In addition, “‘[s]tatutes relating to the same
general subject matter are in pari materia [on the same subject] and should be
construed together so as to produce a harmonious statutory scheme.’” Taylor v.
State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014) (quoting State v. Vankirk, 955
N.E.2d 765, 767 (Ind. Ct. App. 2011), trans. denied (2012)). Because both
Section 35-50-1-2 and the Firearm Enhancement Statute deal with sentencing,
we conclude that the definition of episode of criminal conduct in Section 35-50-
1-2(b) is applicable to the Firearm Enhancement Statute.
[37] As for the trial court’s finding that Howell’s Warrick County offenses were
“part of the series of events that constituted the commission” of the
Vanderburgh County offenses, we are unpersuaded that it is equivalent to a
finding that Howell’s offenses comprise a single episode of criminal conduct as
defined in Section 35-50-1-2-(b). Appellant’s App. Vol. 2 at 44. While Section
35-50-1-2-(b) describes an episode of criminal conduct in part as “offenses or a
connected series of offenses,” it requires more than that the offenses be merely
connected; the offenses must be “closely related in time, place, and
circumstance.” We find it instructive that this Court has previously declined to
treat the analysis of crimes for joinder purposes the same as that for sentencing.
In Slone v. State, 11 N.E.3d 969, 973 (Ind. Ct. App. 2014), another panel of this
Court rejected the defendant’s argument that the State’s successful effort to join
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two causes for trial proved that his crimes arose out of an episode of criminal
conduct. In doing so, the Slone court observed,
We have previously stated that while the phrase “episode of
criminal conduct” may involve somewhat similar language to
Indiana Code section 35-34-1-9(a), “we decline to conflate the
‘episode of criminal conduct’ analysis for sentencing defendants
with the ‘single scheme or plan’ analysis for charging them.”
State v. Dixon, 924 N.E.2d 1270, 1273 n.4 (Ind. Ct. App. 2010)
(citing Deshazier v. State, 877 N.E.2d 200, 213 n.12 (Ind. Ct. App.
2007) (declining to apply “single scheme or plan” analysis to
consecutive sentencing case), trans. denied ).
Id. Accordingly, the trial court’s denial of Howell’s motion to dismiss is not
conclusive as to whether his offenses constitute a single episode of criminal
conduct for purposes of sentencing.
[38] Turning to the merits of Howell’s claim that his offenses comprise a single
episode of criminal conduct, we reiterate that an “episode of criminal conduct”
is defined as “offenses or a connected series of offenses that are closely related
in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). “Whether certain
offenses constitute a ‘single episode of criminal conduct’ is a fact-intensive
inquiry.” Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).
In determining whether multiple offenses constitute an episode of
criminal conduct, the focus is on the timing of the offenses and
the simultaneous and contemporaneous nature, if any, of the
crimes. Additional guidance on the question can be obtained by
considering whether the alleged conduct was so closely related in
time, place, and circumstance that a complete account of one
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charge cannot be related without referring to the details of the
other charge.
Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (citations, quotation
marks, and brackets omitted).
[39] Here, it is undisputed that the offenses were not committed simultaneously or
contemporaneously. In addition, they were not closely related in place; Howell
committed voluntary manslaughter in Vanderburgh County, but committed
attempted robbery and auto theft in Warrick County. We also cannot say that
they are closely related in circumstance. Howell shot Karns because they were
arguing, he knew she owned guns, and he thought she was drawing a gun.
After Coty and Howell’s father loaded Karns’s body into her truck, Howell
drove the truck away. He testified that he drove in the direction of his wife’s
home because he wanted to see her and his children again before he called the
police. Tr. Vol. 3 at 183. However, he wrecked the truck. He testified that he
was hurt and scared and was still under the influence of methamphetamine and
marijuana. Id. at 185. He fled the scene and ran into the woods. When he
came out of the woods, he encountered Scales. When he was unable to take
Scales’s truck, he stole the Explorer. Howell’s attempt to rob Scales’s truck and
his theft of the Explorer appear to flow from his vehicle accident and use of
drugs. Although the attempted robbery and theft may be closely related in
time, place, and circumstance, those two offenses are not closely related in
time, place, and circumstance to the shooting of Karns. As such, we conclude
that Howell’s voluntary manslaughter offense is not part of a single episode of
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criminal conduct for purposes of the Firearm Enhancement Statute.
Accordingly, we conclude that the trial court did not err in enhancing Howell’s
sentence for voluntary manslaughter.
Section 4 – The trial court did not abuse its discretion in
finding aggravating factors.
[40] Howell asserts that the trial court abused its discretion in sentencing him by
finding invalid aggravating factors. We note that sentencing decisions rest
within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as the sentence
is within the statutory range, it is subject to review only for an abuse of
discretion. Id. 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. at 491.
A trial court abuses its discretion during sentencing by: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91.
[41] Specifically, Howell claims that the trial court improperly found as aggravating
factors that he lacked remorse and that he intended to harm Scales. At the
sentencing hearing, the trial court considered Howell’s expressions of remorse
and concluded as follows:
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There’s nothing about anything you did from the moment you
pulled that trigger that suggests you had even an ounce of
remorse for what you did. …. I have no idea today whether any
of your statements of remorse [are] genuine or not. I hope they
are. I hope sincerely that you have found personal redemption for
the horrific thing that you’ve done here but I can’t — I will not
base my judgment on that because you’re the only one that can
possibl[y] know that with any degree of certainty. Therefore the
Court finds no mitigating circumstance.
Tr. Vol. 4. at 227-28. Howell contends that the first part of this quote suggests
that the trial court considered lack of remorse as an aggravating factor. We find
nothing in the trial court’s statement that suggests that it considered lack of
remorse as an aggravating factor. Further, lack of remorse was not listed as an
aggravating factor in the written sentencing order.
[42] As for Howell’s claim that the trial court found that he intended to harm Scales,
the trial court stated,
I have no doubt that you intended to harm Mr. Scales or at a
minimum, acted with a callous disregard of whether you were
going to harm him or not when you fired into his truck in an
effort to get control of that truck so you could evade
responsibility for this act.
Id. at 227. Howell asserts, “Contrary to the trial court’s statement, the only
conclusion to be drawn from the jury’s verdict was that [Howell] did not intend
to harm Scales when he fired into his vehicle.” Appellant’s Br. at 43. We
disagree. The jury acquitted Howell of the attempted murder of Scales.
[43] Further, our supreme court has explained,
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When evaluating the nature of the offense, the trial court may
properly consider the particularized circumstances of the factual
elements as aggravating factors. The trial court must then detail
why the defendant deserves an enhanced sentence under the
particular circumstances. Generally, this aggravator is thought to
be associated with particularly heinous facts or situations.
McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (citations and quotation
marks omitted). Here, Howell did not merely threaten Scales or use physical
force to compel Scales to relinquish control of his truck, he fired at Scales five
times at close range. That is significantly more than required to support a
conclusion that he intended to harm Scales. We conclude that the trial court
did not abuse its discretion in sentencing Howell.
Section 5 – Howell has failed to meet his burden to show that
his sentence is inappropriate.
[44] Howell asks us to reduce his fifty-seven-year aggregate sentence10 pursuant to
Appellate Rule 7(B), which states, “The 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
character of the offender.” When reviewing a sentence, our principal role is to
leaven the outliers rather than necessarily achieve what is perceived as the
correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).
“We do not look to determine if the sentence was appropriate; instead we look
10
Although we vacate Howell’s conviction for criminal recklessness, it will not affect his aggregate sentence
because the sentence for that conviction was concurrent to his sentence for attempted robbery.
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to make sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d
864, 876 (Ind. 2012). “[S]entencing is principally a discretionary function in
which the trial court’s judgment should receive considerable deference.”
Cardwell, 895 N.E.2d at 1222. “Such deference should prevail unless overcome
by compelling evidence portraying in a positive light the nature of the offense
(such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). In
conducting our review, we may consider all aspects of the penal consequences
imposed by the trial court in sentencing, i.e., whether it consists of executed
time, probation, suspension, home detention, or placement in community
corrections, and whether the sentences run concurrently or consecutively.
Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess
the nature of the offense and character of the offender, “we may look to any
factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.
Ct. App. 2013). Howell has the burden to show that his sentence is
inappropriate. Anglemyer, 868 N.E.2d at 490.
[45] Turning first to the nature of the offenses, we observe that “the advisory
sentence is the starting point the Legislature selected as appropriate for the
crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Howell’s
fifty-seven-year aggregate sentence comprises three consecutive sentences, all of
which are above the advisory sentence. Howell received a twenty-five-year
sentence for level 2 felony voluntary manslaughter plus a fifteen-year firearm
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enhancement, a fifteen-year sentence for level 3 felony attempted robbery, and a
two-year sentence for level 6 felony auto theft. The penalty for a level 2 felony
is ten to thirty years, with an advisory sentence of seventeen and a half years.
Ind. Code § 35-50-2-4.5. The penalty for a level 3 felony is three to sixteen
years, with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). The
penalty for a level 6 felony is six months to two and a half years, with an
advisory sentence of one year. Ind. Code § 35-50-2-7(b).
[46] Howell argues that the nature of the offenses shows that he is not a cold-
blooded killer, but a person who made tragic mistakes based on fear and panic.
Although the jury acquitted him of the murder and attempted murder charges,
Howell’s crimes were nevertheless brutal and he showed no restraint. He shot a
woman in the head and then fled with her body. After he wrecked her vehicle,
he attempted to rob another victim of his vehicle by firing multiple shots at him
resulting in bodily injury to the victim’s leg. He then stole a third victim’s
vehicle. The existence of multiple crimes and victims justifies imposition of
enhanced and consecutive sentences “to vindicate the fact that there were
separate harms and separate acts against more than one person.” Serino v. State,
798 N.E.2d 852, 857 (Ind. 2003). On balance, we cannot say that Howell has
shown compelling evidence portraying the nature of the offenses in a positive
light.
[47] As for Howell’s character, he argues that he has a “minor” criminal history of
two felony convictions both related to substance abuse and that the current
offenses mark a substantial departure from his character. However, his
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substance abuse has a long history and he was under the influence of drugs
when committing the current offenses. We conclude that Howell has failed to
carry his burden to show that his sentence is inappropriate based on the nature
of the offenses and his character. Accordingly, we affirm his aggregate
sentence.
Conclusion
[48] Based on the foregoing, we remand with instructions to vacate Howell’s
conviction for level 6 felony criminal recklessness. In all other respects, we
affirm.
[49] Affirmed and remanded.
Robb, J., and Bradford, J., concur.
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