Kori F. Rice v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 30 2018, 8:00 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dale W. Arnett Curtis T. Hill, Jr.
Winchester, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kori F. Rice, August 30, 2018
Appellant-Defendant, Court of Appeals Case No.
68A01-1706-CR-1314
v. Appeal from the Randolph Circuit
Court
State of Indiana, The Honorable Jay L. Toney,
Appellee-Plaintiff. Judge
Trial Court Cause No.
68C01-1611-F3-750
Pyle, Judge.
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Statement of the Case
[1] Kori F. Rice (“Rice”) was convicted, following a jury trial, of Level 3 felony
robbery1 and Class A misdemeanor theft2 and was found to be an habitual
offender.3 He now appeals his sentence and contends that the trial court abused
its discretion in its determination of aggravating and mitigating circumstances.
Concluding that the trial court did not abuse its discretion when sentencing
Rice, we affirm his sentence.
[2] We affirm.
Issue
Whether the trial court abused its discretion when sentencing Rice.
Facts
[3] On October 31, 2016, Rice spent the evening at his girlfriend’s apartment
drinking and smoking marijuana with his friend, Morgan Thompson
(“Thompson”); Morgan’s cousin, Joseph Ashbrook (“Ashbrook”); and a
seventeen-year-old male neighbor named J.Q. (“J.Q.”). Rice and the others,
who were all intoxicated, left the apartment around midnight. They got into
Thompson’s car, and Rice drove.
1
IND. CODE § 35-42-5-1(1).
2
I.C. § 35-43-4-2(a).
3
I.C. § 35-50-2-8.
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[4] As they were in driving, Ashbrook called his father (“Ashbrook’s father”) on his
cell phone. Ashbrook’s father could tell that Ashbrook was “very upset” and
appeared to have “been crying.” (Tr. Vol. 2 at 226). Ashbrook told his father
that he was “scared” and that Rice and Thompson were “robbing him.” (Tr.
Vol. 2 at 227). Ashbrook also asked his father to take his shotgun and be at
Ashbrook’s house when he arrived home. The phone call then disconnected,
and Ashbrook’s father was unable to reconnect with Ashbrook.
[5] Thereafter, around 12:30 a.m., Ashbrook called his mother (“Ashbrook’s
mother”). Ashbrook, who sounded “very shaken[] and frightened[,]” told his
mother that he was on his way home and that she should call the sheriff
because he was getting beaten up and robbed. (Tr. Vol. 2 at 235). The phone
call then disconnected. About ten minutes later, Rice called his mother back.
Ashbrook again said that he was getting beaten and robbed, told her to call the
sheriff, and said he was getting close to home. The phone call again
disconnected while he was talking.
[6] Ashbrook’s mother watched from the front window and saw a car pull up and
stop on the road across from her house. She saw that three of the car doors
opened and saw that some people, including the driver, got out and went to the
side of the road. Five to ten minutes later, the people got back into the car, and
Ashbrook’s mother saw that the driver was the last person to get back into the
car. After the car sped away, Ashbrook’s mother saw Ashbrook’s head pop up
from the ditch on the side of the road. Ashbrook got out of the ditch, “weaved
across the road[,]” and eventually went into his mother’s house. (Tr. Vol. 2 at
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239). Ashbrook, who was crying and limping from pain in his leg, had red
marks on various parts of his body, including his face, neck, and ribs. He told
his mother that, during the drive home, Rice, Thompson, and “some other kid”
had “decided to rob him.” (Tr. Vol. 2 at 241). Ashbrook told her that after
Rice, Thompson, and J.Q. had pulled Ashbrook out of the car, they threw him
into the ditch and “took about fifteen blows each on him.” (Tr. Vol. 2 at 241).
They then took Ashbrook’s phone and wallet.
[7] Ashbrook’s mother called the Randolph County Sheriff’s Department.
Ashbrook told the sheriff dispatcher that Rice and Thompson had taken his
phone and money and beat him up, and he gave identifying information about
Thompson’s car. When a sheriff deputy arrived at Ashbrook’s home, Ashbrook
gave the deputy identifying information about Rice and Thompson. Ashbrook
was later taken by ambulance to the hospital.4
[8] Meanwhile, after leaving Ashbrook in the ditch, Rice drove to a convenience
store and, using some of the money taken from Ashbrook, bought some
marijuana from someone in the parking lot. At that same time, police officers,
who had received the identifying information given by Ashbrook, spotted
Thompson’s car in the convenience store parking lot and stopped to investigate.
4
Ashbrook was released from the hospital that same morning. He died later that day, but his death was not
attributable to the injuries he sustained during the roadside beating. Due to Ashbrook’s death, the State was
unable to call him as a witness during Rice’s jury trial.
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The officers found Morgan and J.Q. in Thompson’s car and arrested them.
Rice, who went into the store when the police arrived, got away from the area.
[9] Days later, Rice was interviewed by the police. Rice told the officer that he had
not been involved with the crimes against Ashbrook. In fact, Rice denied that
he had been with Ashbrook, Thompson, and J.Q. Rice claimed that he had
been with his girlfriend when the offenses against Ashbrook had occurred, and
he convinced his girlfriend to confirm that story to the police. Rice’s girlfriend
initially lied to police and told them that Rice had been with her, but a few
weeks later, she told the police the truth and stated that she could not be Rice’s
alibi.
[10] The State charged Rice with Level 3 felony robbery and Class A misdemeanor
theft and alleged that he was an habitual offender. 5 In April 2017, the trial
court held a two-day jury trial. During the trial, the State’s witnesses included
Thompson, Ashbrook’s father, Ashbrook’s mother, Rice’s girlfriend, and some
police officers, who provided testimony regarding the facts above.
[11] Thompson, who had been granted use immunity for his testimony, testified that
he had passed out in the car when Rice drove the group home and stated that
he had woken up when he had heard a commotion, which was Rice and J.Q.
kicking and punching Ashbrook by the side of the road. Thompson further
testified that, after he had gotten out of the car, Rice told him to grab
5
Thompson and J.Q. were also charged with robbery and theft.
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Ashbrook’s money. Thompson admitted that he took Ashbrook’s money out of
Ashbrook’s pocket, and he testified that J.Q. took Ashbrook’s phone.
[12] During Rice’s case-in-chief, he called J.Q. as a witness. J.Q., who had been
offered a deal to have his case remain in juvenile court, pled guilty to robbery
and was placed on probation. J.Q. corroborated Ashbrook’s father’s testimony
that Ashbrook had used his cell phone in the car and had mentioned Rice’s and
Thompson’s names. However, J.Q.’s testimony regarding the offenses against
Ashbrook conflicted with Thompson’s testimony. J.Q. testified that the group
pulled to the side of the road to urinate, and he stated, that while there, he saw
Thompson and Ashbrook “look like they [we]re about to fight.” (Tr. Vol. 3 at
135). J.Q. testified that he went over by them in case Thompson needed help
and that they all then started fighting. J.Q. admitted that he struck Ashbrook
and took his phone. J.Q. testified that he saw Thompson hit Ashbrook but that
he did not see Rice strike him. Additionally, J.Q. testified that Rice did not ask
anyone to take anything from Ashbrook’s pockets. When the State cross-
examined J.Q., he admitted that he had previously told a police officer and had
told the juvenile court, as part of his factual basis, that Rice, along with J.Q.
and Thompson, had hit Ashbrook. J.Q. testified that he assumed Rice was
hitting Ashbrook but that he did not specifically observe Rice hitting Ashbrook.
[13] During closing argument, Rice’s defense theory was that the State could not
prove its case because Rice did not personally take Ashbrook’s phone or wallet
from him and because there was conflicting evidence of whether Rice had hit
Ashbrook. The State argued that the jury should find Rice guilty based on
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accomplice liability. The jury found Rice guilty as charged and determined that
he was an habitual offender.
[14] When sentencing Rice, the trial court determined that there were no mitigating
circumstances. When discussing aggravating circumstances, the trial court
focused on Rice’s criminal history, which the trial court categorized as “quite
serious.” (Tr. Vol. 3 at 247). Rice’s criminal history was comprised of multiple
alcohol-related offenses, including two operating a vehicle while intoxicated
convictions and an habitual substance offender adjudication; two convictions
for Class B felony conspiracy to commit robbery, for which he received a
twenty-year sentence and later violated his probation; a battery conviction; and
criminal mischief conviction. The trial court also stated that Rice’s lack of
remorse “to this date” was an aggravating circumstance, but it did not elaborate
any further on this aggravator. (Tr. Vol. 3 at 248). The trial court imposed a
fourteen (14) year sentence, with twelve (12) years executed and two (2) years
suspended to probation, for Rice’s Level 3 felony robbery conviction and
enhanced this sentence by twelve (12) years for Rice’s habitual offender
adjudication. The trial court also imposed a one (1) year sentence for Rice’s
Class A misdemeanor theft conviction and ordered it to be served concurrently
to his robbery conviction. Thus, the trial court ordered Rice to serve an
aggregate sentence of twenty-six (26) years with twenty-four (24) years executed
and two (2) years suspended to probation. Rice now appeals.
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Decision
[15] Rice argues that the trial court abused its discretion in its determination of
aggravating and mitigating circumstances. 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 (Ind. 2007). 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 will be found where 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. A trial
court may abuse its discretion in a number of ways, including: (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.
[16] Rice contends that the trial court abused its discretion by failing to consider his
family support as a mitigating circumstance. A trial court is not obligated to
accept a defendant’s claim as to what constitutes a mitigating circumstance.
Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court
failed to find a mitigating circumstance requires the defendant to establish that
the mitigating evidence is both significant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 493.
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[17] Here, however, Rice cannot show that the trial court abused its discretion
regarding its consideration of mitigating circumstances because he did not
proffer family support as a mitigating circumstance. A “trial court does not
abuse its discretion in failing to consider a mitigating factor that was not raised
at sentencing.” Anglemyer, 868 N.E.2d at 492. See also Creekmore v. State, 853
N.E.2d 523, 530 (Ind. Ct. App. 2006) (explaining that where a “defendant fails
to advance a mitigating circumstance at sentencing,” our appellate courts “will
presume that the factor is not significant,” and the defendant will be “precluded
from advancing it as a mitigating circumstance for the first time on appeal”).
During the sentencing hearing, Rice’s counsel generally asked the trial court “to
take everything in consideration” when sentencing Rice. (Tr. Vol. 3 at 246).
His counsel did not, however, specifically advance family support as a
mitigating circumstance for consideration by the trial court. Because Rice did
not raise this mitigating circumstance and, moreover, because he has failed to
show that it was both significant and clearly supported by the record, we
conclude that the trial court did not abuse its discretion when it did not identify
family support as a mitigating circumstance.
[18] Rice also argues that the trial court abused its discretion by finding lack of
remorse to be an aggravating circumstance. Specifically, he contends that trial
court’s consideration of lack of remorse as an aggravating circumstance was
improper because he “maintained his innocence[.]” (Rice’s Br. 8). Rice
contends that he “did not actively participate in the robbery and beating” of the
victim and that he “demonstrated empathy” to the victim’s family at sentencing
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and expressed “regret that he had placed himself in the situation he was in.”
(Rice’s Br. 8).
[19] A trial court may consider a defendant’s lack of remorse as an aggravating
circumstance. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000).
Furthermore, “it is not error for a trial court to consider as an aggravating factor
the lack of remorse by a defendant who insists upon his innocence.” Id. “A
lack of remorse is displayed by a defendant when he displays disdain or
recalcitrance, the equivalent of ‘I don’t care.’” Cox v. State, 780 N.E.2d 1150,
1158 (Ind. Ct. App. 2002). “This is distinguished from the right to maintain
one’s innocence, i.e., ‘I didn’t do it.’” Id. “We have suggested that a
defendant's assertion of innocence may support a finding of lack of remorse if
there is sufficient independent evidence of guilt.” Hollen v. State, 740 N.E.2d
149, 159 (Ind. Ct. App. 2000) (citing Bluck v. State, 716 N.E.2d at 513 (Ind. Ct.
App. 1999) and Dockery v. State, 504 N.E.2d 291, 297 (Ind. Ct. App. 1987)),
opinion adopted, 761 N.E.2d 398 (Ind. 2002).
[20] Assuming without deciding that the trial court improperly considered Rice’s
lack of remorse to be an aggravating circumstance, any such impropriety would
not require this Court to remand for resentencing given the trial court’s finding
of another valid aggravating circumstance. If a trial court abuses its discretion
by improperly considering an aggravating circumstance, we need to remand for
resentencing only “if we cannot say with confidence that the trial court would
have imposed the same sentence had it properly considered reasons that enjoy
support in the record.” Anglemyer, 868 N.E.2d at 491. Here, our review of the
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record shows that the trial court’s discussion of aggravating circumstances
focused on Rice’s criminal history, which the trial court categorized as “quite
serious[,]” and that the trial court’s imposition of slightly enhanced sentences
was essentially based on this undisputed criminal history aggravating
circumstance. (Tr. Vol. 3 at 247). Thus, we are confident that the trial court
would have imposed the same sentence even without the lack of remorse
aggravator. Accordingly, we conclude that the trial court did not abuse its
discretion when sentencing Rice. See Georgopulos, 735 N.E.2d at 1146
(explaining that “[o]nly one aggravator is necessary for the trial court to impose
an enhanced sentence”).
[21] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
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