Matthew Bryant v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
Mar 15 2013, 8:53 am
IN THE
COURT OF APPEALS OF INDIANA
MATTHEW BRYANT, )
)
Appellant-Defendant, )
)
vs. ) No. 03A04-1205-CR-283
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT
The Honorable Chris D. Monroe, Judge
Cause No. 03D01-1108-FB-4453
March 15, 2013
OPINION - FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Matthew Bryant appeals his conviction and sentence for aggravated battery, a
Class B felony, and for being a habitual offender. We affirm.
ISSUES
Bryant raises four issues, which we expand and restate as:
I. Whether Bryant was deprived of his right to a speedy trial under the federal
and state constitutions.
II. Whether the trial court abused its discretion in admitting evidence.
III. Whether the evidence is sufficient to sustain Bryant’s conviction for
aggravated battery.
IV. Whether the trial court abused its discretion in sentencing Bryant.
V. Whether Bryant’s sentence is appropriate.
FACTS AND PROCEDURAL HISTORY
On June 4, 2011, Bryant was incarcerated on unrelated charges in the
Bartholomew County Jail. As the inmates ate lunch in their cellblock, Bryant perceived
that fellow inmate Roosevelt Crowdus was eating spaghetti too loudly. Bryant told him,
“[L]et’s go to the room,” which Crowdus interpreted as a challenge to go fight in
Bryant’s cell. Tr. p. 199. Crowdus followed Bryant to the cell. Although disputed,
Crowdus testified that Bryant threw the first punch but missed. The combatants
exchanged punches with their fists and then fell to the floor struggling with one another.
Bryant put Crowdus in a headlock, but Crowdus grabbed Bryant’s groin. At that point,
they broke apart from one another.
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Bryant told Crowdus that Crowdus “don’t got [sic] enough heart for [Bryant],”
which Crowdus took to mean that Bryant did not think Crowdus could beat him. Id. at
202. Crowdus offered to shake hands to establish a truce, but Bryant rejected the offer,
stating, “I don’t shake up,” and “Aryans don’t shake up.” Id. at 203. The two resumed
fist-fighting, and at some point Crowdus put his hands around Bryant’s neck. Later in the
altercation, while Crowdus was holding onto the top bunk, Bryant grabbed a pencil and
swung it at Crowdus, stabbing him in the left ear. Crowdus fell to the floor, and Bryant
walked out of the cell. As Bryant exited the cell, he told an inmate, “[I]f you want to see
a kill, that’s a kill.” Id. at 281. Crowdus subsequently obtained assistance from jail staff,
who summoned an ambulance. Despite undergoing surgery, Crowdus permanently lost
all hearing in his left ear.
The State charged Bryant with the instant offense, aggravated battery, and with
being an habitual offender. A jury found Bryant guilty of aggravated battery but
deadlocked on the habitual offender determination. The trial court declared a mistrial and
ordered that Bryant be retried on the habitual offender enhancement. A jury determined
at a subsequent trial that Bryant was an habitual offender. The court sentenced Bryant to
an aggregate term of fifty years, and this appeal followed.
DISCUSSION AND DECISION
I. RIGHT TO A SPEEDY TRIAL
Bryant filed a motion for speedy trial on October 26, 2011, and the court released
him on his own recognizance on December 13, 2011, while trial was pending. Bryant
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argues that the court nonetheless infringed upon his right to a speedy trial despite being
released in this case because he remained incarcerated on other charges.
The Sixth Amendment to the Constitution of the United States and article one,
section twelve of the Indiana Constitution both protect the right of an accused to a speedy
trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). This right is a fundamental
principle of constitutional law and has been “zealously guarded” by our courts. Id. The
provisions of Indiana Criminal Rule 4 implement a defendant’s right to a speedy trial.
Otte v. State, 967 N.E.2d 540, 545 (Ind. Ct. App. 2012), trans. denied. That rule
provides, in relevant part:
If any defendant held in jail on an indictment or an affidavit shall move for
an early trial, he shall be discharged if not brought to trial within seventy
(70) calendar days from the date of such motion, except where a
continuance within said period is had on his motion, or the delay is
otherwise caused by his act, or where there was not sufficient time to try
him during such seventy (70) calendar days because of the congestion of
the court calendar.
Ind. Crim. Rule 4(B). It is well established that Criminal Rule 4 places an affirmative
duty on the State to bring a defendant to trial. Cundiff, 967 N.E.2d at 1028. Bryant’s
speedy trial claim presents a question of law, which we review de novo. Id. at 1027.
Here, the relevant facts are not in dispute. The trial court held an initial hearing in
the instant case on August 29, 2011, and scheduled a jury trial for February 7, 2012.
Bryant filed a speedy trial request on October 26, 2011. That is the date upon which the
seventy-day period set forth in Indiana Criminal Rule 4(B) began to run.
On November 29, 2011, the State filed a motion requesting the trial court to
release Bryant on his own recognizance in this case, noting that he would remain
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incarcerated due to another pending case. The trial court held a hearing on the State’s
motion on December 13, 2011, within the seventy-day deadline. On the same day, the
trial court granted the State’s motion and ordered Bryant released upon his own
recognizance in this case. Bryant remained incarcerated due to another case until his trial
in this case commenced on February 7, 2012. That date was beyond the seventy-day
period that began running on October 26, 2011.
We find guidance in our Supreme Court’s opinion in Cundiff. In that case, the
Court specifically “address[ed] the question of whether an incarcerated defendant has the
right to be tried within seventy days under Criminal Rule 4(B) when he is being held for
an unrelated offense and not on the charges for which speedy trial is demanded.”
Cundiff, 967 N.E.2d at 1028-29. Cundiff was arrested for driving while intoxicated and
other charges, and he was released on bond after a brief period of incarceration.
However, he was soon incarcerated again on a separate probation revocation matter.
Next, Cundiff filed a motion for speedy trial in the drunken driving case, and he
subsequently filed a motion for discharge. The trial court denied his motion for
discharge, and our Supreme Court affirmed. The Court reviewed its precedent and
concluded: “[F]or Rule 4(B) to apply, the defendant must be incarcerated on the charge
for which he seeks a speedy trial, and as long as that requirement is met, the availability
of Rule 4(B) is not affected if the defendant is also incarcerated on other grounds.” Id. at
1031. Thus, Cundiff’s right under Criminal Rule 4(B) was not violated because he was
not incarcerated on the charges for which he sought a speedy trial.
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In this case, applying the reasoning in Cundiff, we find that the trial court did not
violate Criminal Rule 4(B). Bryant was released on his own recognizance in this case
within seventy days of requesting a speedy trial. Bryant argues that this interpretation of
Criminal Rule 4 is too narrow and undermines a defendant’s right to a speedy trial.
Specifically, he believes the State will have no incentive to try a defendant quickly if it
knows the defendant can be released in one case because the defendant will still remain
incarcerated for another case. We acknowledge Bryant’s argument, but we cannot reject
our Supreme Court’s clear holding in Cundiff.
Bryant also claims that even if the trial court did not violate the terms of Criminal
Rule 4, his right to a speedy trial has been violated because the court did not comply with
“the spirit” of that rule. Appellant’s Br. p. 23. He cites State v. Roberts, 171 Ind. App.
537, 358 N.E.2d 181 (1976), in support of his claim, but that case is distinguishable.
There, a juvenile court waived jurisdiction over Roberts on March 19, 1975, and ordered
that he be transferred to the custody of the sheriff to stand trial as an adult for the crime
of escape. However, the State did not file an information until May 8, 1975. Upon
review, a panel of this Court noted that Roberts’ detention from March 19 through May 8
was not the result of an arrest or caused by a felony charge. Thus, the trial court should
have applied procedural safeguards that would have protected Roberts’ right to a speedy
trial. The Court determined that Criminal Rule 4(B) applied to Roberts’ detention and
that the State’s failure to timely charge and try Roberts violated the spirit of the rule.
In this case, there is no dispute that Bryant’s initial hearing on the charge was held
in a timely manner. Consequently, it cannot be said that Bryant experienced an
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unreasonable delay, as Roberts did, and Roberts is not controlling. We conclude that the
court did not violate Bryant’s right to a speedy trial.
II. ADMISSION OF EVIDENCE
Bryant argues that the trial court erred by allowing a detective to tell the jury what
Crowdus said at the hospital and by admitting a recording of Bryant’s telephone
conversation with a friend. The admission or exclusion of evidence rests within the
sound discretion of the court, and we review for an abuse of discretion. Conley v. State,
972 N.E.2d 864, 871 (Ind. 2012). An abuse of discretion occurs when the court’s
decision is clearly against the logic and effect of the facts and circumstances before it. Id.A. ADMISSION OF CROWDUS’ STATEMENT AT THE HOSPITAL
Detective Christopher Roberts was dispatched to investigate Crowdus’ stabbing
after jail staff reported it. He went to the jail and spoke with the staff, and then he
followed the ambulance that took Crowdus to the hospital. Roberts interviewed Crowdus
before he began receiving treatment. At trial, the following colloquy occurred:
[STATE:] What, if anything, did Roosevelt tell you in terms of what
occurred during the assault?
[ROBERTS:] He told me that he was invited to the cell, where they started
a fight. He said that he was not the first one that threw a
punch, but the Defendant . . . , [sic] Excuse me.
....
[BRYANT:] I’m going to object to this questioning. Mr. Crowdus has
already testified as to what happened. This is hearsay.
[THE COURT:] Overruled.
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[ROBERTS:] Roosevelt Crowdus told me that he was invited into the cell
where they commenced to fight and it was over what he
believed was that he was eating too loudly. And when he got
into the cell, he said that the Defendant threw the first punch,
which he missed, and he retaliated with a strike to the face.
Tr. p. 341.
Bryant contends that Roberts’ account of what Crowdus told him is inadmissible
hearsay. We agree. Hearsay is a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matter
asserted. Ind. Evidence Rule 801. Hearsay is not admissible except as provided by the
Indiana Rules of Evidence or by law. Ind. Evidence Rule 802. Roberts’ description of
Crowdus’ statement is an out-of-court statement, and it reasonably could be construed to
have been offered to prove the truth of Crowdus’ statement.
The State argues that Roberts’ testimony about Crowdus’ statement is not hearsay
because the statement was “one of identification of a person made shortly after
perceiving a person,” pursuant to Indiana Evidence Rule 801(d)(1)(C). We disagree.
There was no dispute at trial that Bryant stabbed Crowdus; thus, Crowdus’ statement was
one of explanation rather than identification.
The State also argues that Roberts’ account of Crowdus’ statement was admissible
as an excited utterance. Indiana Evidence Rule 803(2) allows the admission of “a
statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Here, Crowdus returned to his
cell after the stabbing and lay in his bunk until another inmate summoned jail staff. The
record does not disclose how long Crowdus was in his cell until staff arrived. The jail
8
officers requested assistance from their supervisor. After an undisclosed period of time,
the supervisor went to Crowdus’ cell, reviewed the situation, and summoned paramedics.
The record does not reflect how long it took the paramedics to arrive at the jail. The
paramedics took Crowdus to the hospital, and the record does not indicate how long the
trip to the hospital took. Thus, the State has failed to establish how much time elapsed
between the stabbing and Crowdus’ conversation with Roberts, which is essential to
determining whether a witness was still under the stress of the event or condition.
Furthermore, at the hospital Crowdus talked to Roberts in a “low and slow” tone of voice
rather than in an excited manner. Tr. p. 339. We cannot conclude that Crowdus was still
under the stress of the stabbing when Roberts interviewed him, so Crowdus’ statement
was not an excited utterance and should not have been admitted.
Generally, errors in the admission of evidence are to be disregarded unless they
affect the substantial rights of a party. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012). The improper admission is harmless error if the conviction is supported by
substantial independent evidence of guilt, satisfying the reviewing court there is no
substantial likelihood the challenged evidence contributed to the conviction. Id.Here, Crowdus and Bryant both testified at trial, and there is no dispute that
Bryant stabbed Crowdus in the ear. Furthermore, Crowdus’ statement to Roberts was, for
the most part, cumulative of Crowdus’ testimony. We cannot conclude that there is a
substantial likelihood that Roberts’ hearsay testimony contributed to the conviction.
Consequently, admission of the testimony was harmless error.
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B. BRYANT’S TELEPHONE CALL
Bryant remained incarcerated in the Bartholomew County Jail after his fight with
Crowdus. When an inmate places a telephone call, an automatic message informs the
inmate at the beginning of the call that the call will be recorded. On July 4, 2011, the jail
recorded a phone call that Bryant initiated to a friend. A redacted portion of the
recording was admitted into evidence at trial. The portion provides, in relevant part:
Male: I heard there is some f*****g dud [sic] that f*****g in there that
f*****g like beat you up or something that’s what somebody was
telling me that.
Male: Huh? Beat me up?
Male: Yeah there was some . . . yeah.
Male: No.
Male: I-I told the girl I was like, I told that chick I was like man, I said, I
don’t know I said I’ve known Matt for awhile, I said I’ve never seen
anybody beat up Matt. (laughs)
Male: Who-who was, which was the chick?
Male: Uh, some girl at my work. I don’t know her name, but she uh, she
dates f*****g Matt Brantley.
Male: Oh, black dude, Matt Brantley. No I beat up . . .
Male: Yeah.
Male: [A] black dude. I-I mean I beat this mother f*****g rug up
decent. I mean I stabbed him in the ear with a pencil and everything.
I f****d him up.
Male: Yeah, see I heard that too and then that’s what she was telling me
she’s like yeah she’s like I guess a couple of them f*****g black
dudes got a hold of him or something and . . .
Male: Man no . . .
Male: [G]ot back at him or something.
Male: I . . .
Male: I was just like oh, I don’t know about that.
Male: Where do you work at?
Male: Uh, The Garage downtown.
Male: Oh, The Garage. Oh, no, who . . .
Male: Yeah.
Male: [A]in’t none of the dudes, there ain’t no black dude . . . I called
them all in the room once and told them I said if we’re going to get
it, let’s get it. And Dirk Neal . . .
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Male: Yeah.
Male: [H]e – he was like f**k it, let’s get it mother f*****s. And-and . . .
Male: Yeah, I mean that’s what I told her I said man . . . I’ve known Matt
forever and I said I ain’t never . . . heard not nobody [sic] beating
him up. (laughs)
Male: Let, about . . .
Male: Are you there?
Male: But yeah . . . they [sic], let her know I am 7 and 0 in the county jail.
So . . .
Male: What’s that?
Male: Tell her that I am 7 and 0, there is [sic] 7 wins and 0 loses [sic]
so . . .
Male: (laughs)
Male: . . . I’ve been running through mother f*****s left and right. I
mean . . .
Male: Oh, I’m sure you have. (laughs)
Male: . . . [T]hey had to carry old boy out to the mother f*****g [sic], on a
stretcher man. So . . .
Male: (laughs)
State’s Ex. 11 (recording), Defendant’s Ex. A pp. 9-11 (transcript of recording).
Bryant argues that the recording contains inadmissible hearsay, specifically
statements by Bryant’s friend and a woman with whom Bryant’s friend had spoken. In
Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996), Williams contended that the trial
court should not have admitted recordings of Williams’ conversations with a confidential
informant, asserting that the informant’s statements were hearsay. Our Supreme Court
determined that the informant’s statements were largely intended to prompt Williams to
speak and were not admitted for the truth of the matter asserted. Consequently, the
statements were not hearsay.
In this case, as in Williams, the statements by Bryant’s friend, including his
account of what a female co-worker told him, served to prompt Bryant to speak.
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Bryant’s statements constituted the evidentiary weight of the conversation. Thus, we
conclude that the recording was not inadmissible hearsay.
Next, Bryant claims that even if the recording was not hearsay, the trial court
should not have admitted it because it was unfairly prejudicial. Indiana Evidence Rule
403 provides, “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.” The balancing of the probative value against the danger of unfair
prejudice must be determined with reference to the issue to be proved by the evidence.
Brim v. State, 624 N.E.2d 27, 35 (Ind. Ct. App. 1993), trans. denied. Evaluation of
whether the probative value of an evidentiary matter is substantially outweighed by the
danger of unfair prejudice is a discretionary task best performed by the trial court. Baer
v. State, 866 N.E.2d 752, 763 (Ind. 2007).
Bryant asserts that the recording painted him “as a racist with a criminal history,
violent propensity, and penchant for fighting in jail.” Appellant’s Br. p. 35. However,
the key issue at trial was whether Bryant stabbed Crowdus in self defense. Bryant’s
statement in the recording that he “beat [Crowdus] up decent” and stabbed him in the ear
helped to establish that Bryant was a willing participant in the fight. Furthermore, Bryant
initiated the call and was aware that it was being recorded, so there is no question of
surprise or coercion. In addition, other testimony at trial established that Bryant referred
to himself as an Aryan, so the jury was already made aware that he may have had racist
beliefs. Balancing the issue to be proved by the recording, specifically Bryant’s intent,
12
against the danger of unfair prejudice, we cannot say that admission of the recording
violated Indiana Evidence Rule 403. See Baer, 866 N.E.2d at 763 (determining that
admission of a recording of Baer’s jailhouse phone call was not unduly prejudicial
because Baer was pursuing a defense of guilty but mentally ill, and the recording was
highly probative to establish whether he was faking mental illness).
Finally, Bryant argues that the recording improperly informed the jury of prior,
uncharged misconduct. Indiana Evidence Rule 404(B) provides, in relevant part:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .” Our Supreme Court has stated as follows with
respect to the intent exception:
The intent exception in Evid. R. 404(b) will be available when a defendant
goes beyond merely denying the charged culpability and affirmatively
presents a claim of particular contrary intent. When a defendant alleges in
trial a particular contrary intent, whether in opening statement, by cross-
examination of the State’s witnesses, or by presentation of his own case-in-
chief, the State may respond by offering evidence of prior crimes, wrongs,
or acts to the extent genuinely relevant to prove the defendant’s intent at the
time of the charged offense. The trial court must then determine whether to
admit or exclude such evidence depending upon whether “its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.”
Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993) (quoting Ind. Evidence Rule 403).
In this case, the State alleged that Bryant committed the crime of aggravated
battery. Bryant presented evidence of a contrary intent at trial, specifically that he acted
13
in self defense. He sought to establish that Crowdus violated jail rules by entering
Bryant’s cell. Next, Bryant extensively cross-examined Crowdus, and Crowdus admitted
that he could have asked the guards for help rather than going into Bryant’s cell to fight.
Crowdus also admitted during cross-examination that he struck Bryant during the fight.
Thus, Bryant was attempting to prove that Crowdus was the initial aggressor and he was
merely defending himself. Given Bryant’s claim of self defense, the court properly
allowed the State to present evidence of prior acts, specifically Bryant’s prior jail fights,
to prove his intent. See Evans v. State, 727 N.E.2d 1072, 1080 (Ind. 2000) (determining
that the trial court’s admission of Evans’ act of strangulation was admissible under Rule
404(b) in Evans’ attempted murder prosecution because Evans had claimed self defense,
and Evans’ act of strangulation rebutted his claim that the attempted murder victim was
the aggressor). Furthermore, we have already determined that Evidence Rule 403 does
not bar admission of the recording. For these reasons, the trial court did not abuse its
discretion by admitting the recording.
III. SUFFICIENCY OF THE EVIDENCE
Bryant argues there is insufficient evidence to support his aggravated battery
conviction because he believes the State failed to rebut his claim of self defense. When a
claim of self defense is raised and finds support in the evidence, the State has the burden
of negating at least one of the necessary elements beyond a reasonable doubt. Wilson v.
State, 770 N.E.2d 799, 800 (Ind. 2002). The standard of review for a challenge to the
sufficiency of the evidence to rebut a claim of self defense is the same as the standard for
any sufficiency of the evidence claim. Id. at 801. We do not reweigh the evidence or
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judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011).
We consider only the probative evidence and reasonable inferences drawn from the
evidence that support the verdict. Id. If a defendant is convicted despite a claim of self
defense, we reverse only if no reasonable person could say that self defense was negated
by the State beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.
A valid claim of defense of oneself or another person is legal justification for an
otherwise criminal act. Ind. Code § 35-41-3-2 (2006). To prevail on a claim of self
defense, the defendant must present evidence that he: (1) was in a place he had a right to
be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had a
reasonable fear of death or great bodily harm. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.
Ct. App. 2011), trans. denied. A person is not justified in using force if the person has
entered into combat with another person or is the initial aggressor unless the person
withdraws from the encounter and communicates to the other person the intent to do so
and the other person nevertheless continues or threatens to continue unlawful action. Ind.
Code § 35-41-3-2(e).
In this case, although some portions of the evidence are disputed, Bryant
challenged Crowdus to fight in his cell. According to Crowdus, once they were in the
cell Bryant threw the first punch but missed, and Crowdus then struck Bryant with his
fist. It is undisputed that Bryant also struck Crowdus several times with his fist and put
him in a headlock. It is further undisputed that when the combatants broke away from
each other, Crowdus offered a truce. However, Bryant rejected the offer, and the two
continued fist-fighting. Crowdus never used or reached for a weapon, but Bryant
15
grabbed a pencil and stabbed Crowdus with it, resulting in permanent injury to Crowdus’
left ear. This evidence reasonably establishes that Bryant provoked the fight, or at least
participated willingly in it, which undermines his claim of self defense. Furthermore,
when Crowdus communicated his intent to withdraw from combat, Bryant rejected it and
continued to fight. Consequently, the jury could have reasonably concluded that under
the circumstances herein, Bryant was not justified in using the pencil as a weapon to stab
Crowdus in the ear, causing permanent damage. See Ind. Code § 35-41-3-2(e); Huls v.
State 971 N.E.2d 739, 747 (Ind. Ct. App. 2012) (determining that the State carried its
burden of negating Huls’ claim of self defense when Huls continued to shoot at the
victims even after they asked him to stop shooting and said they were leaving), trans.
denied. Bryant argues that he continued to fight because Crowdus was preventing him
from leaving the cell or seeking assistance from the guards, but this is a request for us to
reweigh the evidence, which we cannot do. We conclude that the State put forth
sufficient evidence to negate Bryant’s claim of self defense beyond a reasonable doubt.
IV. SENTENCING – ABUSE OF DISCRETION
Bryant contends that the trial court overlooked mitigating factors he submitted at
sentencing. Subject to the review and revision power discussed below, sentencing
decisions rest within the sound discretion of the trial court and are reviewed on appeal
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 (2007). One way in which a trial court may abuse its
discretion is failing to enter a sentencing statement at all. Id. Other examples include
entering a sentencing statement that explains reasons for imposing a sentence—including
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a finding of aggravating and mitigating factors if any—but the record does not support
the reasons, or the sentencing statement omits reasons that are clearly supported by the
record and advanced for consideration, or the reasons given are improper as a matter of
law. Id. at 490-91.
Bryant claims the trial court should have determined that his difficult childhood
and his mental illness were mitigating factors. However, Bryant did not cite those factors
at sentencing. Instead, Bryant’s entire argument at sentencing was as follows:
We’d just ask the, the Court to consider the pre-sentence investigation
report and the background of the Defendant as well as the fact that he’s
currently serving a prolonged sentence in prison. So we’d ask the Court to
review those facts and sentence him accordingly.
Tr. p. 701. Although the trial court is obligated to review the presentence investigation
report and consider all aggravating and mitigating circumstances presented in that
document, the court is not required to comb through it and present mitigating arguments
on behalf of the defendant when the defendant fails to act. Failure to present a mitigating
circumstance to the trial court waives consideration of the circumstance on appeal.
McKinney v. State, 873 N.E.2d 630, 646 (Ind. Ct. App. 2007), trans. denied.
Consequently, Bryant’s claims with respect to mitigating factors are waived.
Waiver notwithstanding, our Supreme Court has consistently held that evidence of
a difficult childhood warrants little, if any, mitigating weight. Ritchie v. State, 875
N.E.2d 706, 725 (Ind. 2007). Here, the court noted that Bryant had a difficult childhood,
but it was not a mitigating circumstance because “a number of attempts have been made
17
in the juvenile area to try to provide services to you. That was not successful.” Tr. p.
704. We find no abuse of discretion with respect to Bryant’s childhood.
Turning to Bryant’s mental illness, there are four factors that bear on the weight to
be given to mental illness at sentencing:
(1) the extent of the defendant’s inability to control his or her behavior due
to the disorder or impairment; (2) overall limitations on functioning; (3) the
duration of the mental illness; and (4) the extent of any nexus between the
disorder or impairment and the commission of the crime.
Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998). Here, the presentence investigation report
indicated that Bryant had received counseling for mental illnesses, including bipolar
disorder and substance abuse, since 1995. However, the report provides no evidence that
relates to the other three factors set forth in Weeks. Consequently, even if Bryant had
raised his mental illness as a mitigating factor, based on the evidence here the trial court
would not have been obligated to find that it was a mitigating circumstance. The trial
court did not abuse its discretion by failing to find that Bryant’s mental illness is a
mitigating factor.
V. SENTENCING – APPROPRIATNESS OF SENTENCE
Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B), which
provides that a 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.” Reid
18
v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer, 868 N.E.2d at 491). The
defendant has the burden of persuading us that his sentence is inappropriate. Id. (citing
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). In making this determination, we
may look to any factors appearing in the record. Calvert v. State, 930 N.E.2d 633, 643
(Ind. Ct. App. 2010).
We first look to the statutory range established for the class of the offense. The
advisory sentence for a Class B felony is ten years, with a minimum of six years and a
maximum of twenty years. Ind. Code § 35-50-2-5 (2005). In addition, the habitual
offender determination carried an enhancement of ten to thirty years in this case. Ind.
Code § 35-50-2-8 (2005). Bryant received fifty years, the maximum possible sentence.
We next look to the nature of the offense and the character of the offender. Our
review here of the nature of the offense shows that Bryant provoked a fight with a fellow
inmate over a trivial matter. Crowdus testified that Bryant threw the first punch, refused
to stop fighting when Crowdus offered a truce, and subsequently permanently destroyed
Crowdus’ hearing in one ear. It is particularly troubling that Bryant committed this crime
while he was already incarcerated on other serious felony charges, because his actions
displayed contempt for the law and a willingness to commit serious crimes even when
incarcerated. In addition, Bryant told another inmate his attack on Crowdus was a “kill”
and subsequently bragged about the fight in a phone call with a friend.
Our review here of the character of the offender shows that Bryant has a lengthy
criminal history. As a juvenile, he committed several acts that would have constituted
battery had they been committed by an adult. As an adult, Bryant has been convicted of
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ten felonies, including burglary, strangulation, invasion of privacy, and possession of
methamphetamine. At the time Bryant committed his current crime, he was already
incarcerated on very serious felony charges including Class A felony battery, Class C
felony battery, two counts of criminal confinement, and two counts of intimidation. He
was subsequently convicted of those charges and sentenced to ninety-three years prior to
sentencing in the current case. In addition, Bryant has violated the terms and conditions
of his probation on multiple occasions. In summary, Bryant has a lengthy history of
violent crimes, and prior, shorter sentences and terms of probation did not cause him to
alter his behavior. To the contrary, over the course of his life his crimes have escalated
and become more and more serious. Bryant also has a history of using methamphetamine
and marijuana.
Bryant notes that he had a troubled childhood because he witnessed domestic
abuse. He also asserts that he has a history of mental illness. Finally, he has sporadic
employment when he is not incarcerated, and he has two daughters. In light of the
vicious nature of the crime and Bryant’s demonstrated unwillingness to reform, none of
these circumstances render his sentence inappropriate. Consequently, we decline to
revise his sentence.
CONCLUSION
For the reasons stated above, we affirm the judgment of the court.
Affirmed.
ROBB, C.J., and BAKER, J., concur.
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