MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 13 2017, 9:01 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jonathan D. Harwell Curtis T. Hill, Jr. Harwell Legal Counsel LLC Attorney General of Indiana Indianapolis, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chase E. Mourey, Jr., September 13, 2017 Appellant-Defendant, Court of Appeals Case No. 41A05-1703-CR-461 v. Appeal from the Johnson Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. K. Mark Loyd, Judge Trial Court Cause No. 41C01-1510-F6-455
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 1 of 13 [1] Following a jury trial, Chase E. Mourey, Jr. (“Mourey”) was convicted of Level
6 felony assisting a criminal.1 He raises two issues on appeal, which we restate
as:
I. Whether the State presented sufficient evidence to convict him; and
II. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History [3] At around 10:30 a.m. on October 22, 2015, deputies from Johnson County
Sheriff’s Department and an investigator with the Johnson County Prosecutor’s
Office went to a mobile home park to locate and serve a warrant on Justin Delk
(“Delk”), who was wanted for felony non-support of a dependent child. The
deputies had received information that he might be in the residence of a woman
named Kara Harter (“Harter”), who was married to Mourey, although the two
had been separated for a year or more at that time.
[4] Upon arrival at Harter’s residence, deputies observed a vehicle in the driveway
that matched the description of Delk’s vehicle. Deputy Charles Murphy
(“Deputy Murphy”) knocked loudly on the door, and although no one
1 See Ind. Code § 35-44.1-2-5(a)(1).
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 2 of 13 answered, deputies heard “a loud crashing noise,” which sounded like
“crashing furniture,” inside. Tr. Vol. I at 166. Deputies made contact with
Harter by phone, and, thereafter, she and Mourey answered the door and
stepped out. Deputies explained that they were there looking for Delk, and
they presented a search warrant to Harter. The warrant did not reflect the
correct address for Harter’s residence, and Harter and Mourey requested a
corrected warrant before they would allow entry.
[5] In the course of the conversation, Mourey and Harter acknowledged that they
knew Delk, but said he was not in the residence. Mourey told Deputy Murphy
that they had not seen Delk “in several months,” but because deputies had seen
a picture “that hadn’t been taken long ago” of Mourey and Delk in a vehicle
together, they believed Mourey was lying. Id. at 167-68. Mourey repeatedly
denied that Delk was inside Harter’s residence.
[6] As deputies were waiting for the hard copy of the amended warrant to be
brought to the scene, they again knocked, and Mourey and Harter came out.
Deputies told them that the warrant had been changed, and “If [Delk] is in
there . . . [j]ust have him come outside[,]” and they urged, “[I]t’s not worth
going to jail over a friend[.]” Id. at 169. Mourey was “adamant” that Delk was
not inside. Id.
[7] At some point before the warrant arrived, Mourey opened the door, came
outside, and said he “was tired of [deputies] being around” the residence, at
which time the deputies were allowed to enter. Id. at 170. Deputy Murphy
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 3 of 13 suggested, “[I]f he’s in here, please, just let us know[,]” and “[I]t’s not worth
anybody getting hurt over it.” Id. at 171. Mourey again stated that Delk was
not there. Eventually, Delk was found hiding under a bed in one of the
children’s bedrooms. Shortly after Delk was apprehended, Mourey made a
statement to the effect that Delk was his friend and “what else am I supposed to
do.” Id. at 220, 224; Tr. Vol. II at 18. Before he was taken to jail, Delk put on
his shoes, which were near the front door.
[8] The State charged Mourey with Level 6 felony assisting a criminal. At the jury
trial, Deputy Murphy described that, while he was talking to Mourey and
Harter, and as they were denying that Delk was inside, Mourey appeared
“really nervous,” did not make eye contact, and his “voice was cracking.” Tr.
Vol. I at 168. Deputy Murphy stated that once he and other deputies were in
the residence, which he described as being “in complete disarray[,]” with
“clutter, clothes, trash laying everywhere,” he looked into one bedroom and
saw that the bed was “perfectly made” and stuffed animals were placed on it,
which he found “odd,” given the state of the rest of the home. Id. at 172, 174.
He then noticed that the bed was “kind of off the ground” and that dresser
drawers were placed under the bed, which raised the deputies’ suspicions that
Delk was under the bed. Id. at 174. The deputies pulled up the mattress and
found Delk. Deputy Murphy said that, when he brought out Delk from the
bedroom, Mourey did not have any reaction, “He wasn’t shocked like, oh, my
God, I didn’t know you were in there. He just sat there and looked defeated.”
Id. at 177.
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 4 of 13 [9] Lieutenant Perry Wilson (“Lieutenant Wilson”) testified to entering the home
and waiting inside the front door, with the occupants, while Deputy Murphy
and another deputy entered a bedroom and came out with Delk. Lieutenant
Wilson testified that Mourey was not surprised, he seemed apologetic, and he
uttered a statement the gist of which was “[H]e’s my friend, what else am I
supposed to do.” Id. at 220, 224; Tr. Vol. II at 18. At the conclusion of the
State’s evidence, Mourey made a motion for a directed verdict, which the trial
court denied.
[10] Mourey testified that the lease of the residence was in Harter’s name, and he
had no property interest in it. He testified that, although he and Harter were
separated, he went to her residence two or three times per week on weekdays to
assist Harter, who was legally blind, with getting the children ready for school.
He testified that on the day in question he arrived at the home at about 6:00
a.m., and, upon arrival, he went to the bedroom, watched television, fell asleep
and remained asleep for several hours until deputies called.2 Tr. Vol. I at 247.
He did not wake up to or hear any large crashing sound. Mourey stated that
Delk’s shoes were not by the door when Mourey arrived at 6 a.m. and that he
did not notice them there when he was talking to deputies at the door on several
occasions.
2 Mourey stated that the children did not attend school that day, and he believed it was fall break.
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 5 of 13 [11] Mourey testified that Delk had been helping with a bathroom remodeling job
for the last several weeks and that Mourey expected Delk to arrive at 10:00 or
11:00 a.m. When Mourey was asked if Delk was at the residence when he
arrived at 6:00 a.m., Mourey said no. He also stated that, when deputies were
asking him if Delk was in the home, he was unaware of Delk’s presence. When
he was asked if any of the children told him that Delk was inside, Mourey
replied, “Not that I can remember.” Tr. Vol. II at 5. Mourey stated that his
sister-in-law owned a vehicle of the same make and model as Delk’s, and it was
in the driveway.
[12] The jury found Mourey guilty as charged. At sentencing, the trial court found
that Mourey’s criminal history was an aggravator and the undue hardship on
his dependents was a mitigator. The trial court sentenced Mourey to 910 days,
of which 545 days was to be served on home detention and 365 days were
suspended to probation. Appellant’s App. Vol. II at 54; Tr. Vol. II at 86-88.
Following the denial of his motion to correct error, Mourey now appeals.
Discussion and Decision
I. Sufficiency of the Evidence [13] Mourey asserts that the State failed to present sufficient evidence to convict
him. In reviewing a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of witnesses. Jones v. State, 22
N.E.3d 877, 879 (Ind. Ct. App. 2014). Instead, we consider only the evidence
supporting the conviction and the reasonable inferences to be drawn therefrom.
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 6 of 13 Id. If there is substantial evidence of probative value from which a reasonable
trier of fact could have drawn the conclusion that the defendant was guilty of
the crime charged beyond a reasonable doubt, then the judgment will not be
disturbed. Id. It is not necessary that the evidence overcome every reasonable
hypothesis of innocence; rather, the evidence is sufficient if an inference may
reasonably be drawn from it to support the conviction. Drane v. State, 867
N.E.2d 144, 147 (Ind. 2007). Accordingly, the question on appeal is whether
the inferences supporting the verdict were reasonable, not whether other, “more
reasonable” inferences could have been drawn. Thompson v. State, 804 N.E.2d
1146, 1150 (Ind. 2004). Because reaching alternative inferences is the function
of the trier of fact, we may not reverse a conviction merely because a different
inference might plausibly be drawn from the evidence. Id.
[14] Indiana Code section 35-44.1-2-5, criminalizing assisting a criminal, provides in
relevant part:
(a) A person not standing in the relation of parent, child, or spouse to another person who has committed a crime or is a fugitive from justice who, with intent to hinder the apprehension or punishment of the other person, harbors, conceals, or otherwise assists the person commits assisting a criminal, a Class A misdemeanor. However, the offense is:
(1) a Level 6 felony, if:
(A) the person assisted has committed a Class B, Class C, or Class D felony before July 1, 2014, or a Level 3, Level 4, Level 5, or Level 6 felony after June 30, 2014[.]
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 7 of 13 Here, to convict Mourey as charged, the State was required to prove that he
harbored, concealed, or assisted Delk, who had committed Class D felony
nonsupport of a dependent, with the intent to hinder the apprehension of Delk.
[15] Mourey’s primary claim is that there was insufficient evidence that Mourey
knew of Delk’s presence in the home. He relies on his testimony that he denied
knowledge of Delk’s whereabouts and that he had been asleep for at least two
hours before deputies arrived, noting that no evidence was presented
concerning how long Delk was at the residence. The State asserts, however,
that sufficient evidence was presented from which the jury could have inferred
that Mourey knew Delk was in the residence. We agree.
[16] Mourey testified that he regularly came to Harter’s home to help get their kids
ready for school, but on the day in question, they did not have school, and he
fell asleep shortly after he arrived. Deputy Murphy testified that Mourey
appeared nervous when the deputies were asking whether Delk was in the
residence. Mourey told deputies that he had not seen Delk in several months,
which deputies suspected was false, because they had seen a picture “that
hadn’t been taken long ago” of Mourey with Delk in a vehicle. Tr. Vol. I at 168.
Deputies heard a loud commotion inside the house resembling the sound of
crashing furniture after they knocked, but Mourey claimed to not have heard
any commotion inside the residence which was, at most, 1000 square feet. A
vehicle matching the description of Delk’s was in the driveway when deputies
arrived around 10:30 a.m., as well as when Mourey arrived at 6:00 a.m. Delk’s
shoes were inside the house and near the front door, where Mourey entered and
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 8 of 13 exited several times when speaking with deputies. Mourey testified that he had
expected Delk to arrive between 10:00 and 11:00 a.m., but he acknowledged on
cross-examination that he did not mention this information to deputies when
they arrived around 10:30 a.m. and repeatedly asked him if Delk was in the
home.
[17] Also, the evidence was that Mourey and Delk had been friends for four or five
years, and when Delk was apprehended, Mourey did not appear surprised;
rather, he seemed “defeated.” Id. at 177. Lieutenant Wilson heard Mourey
make a comment that Delk was his friend and “what else was I supposed to
do.” Id. at 220, 224, Tr. Vol. II at 18. The State argues, and we agree, that from
the evidence presented, the jury could have inferred that Mourey knew that
Delk was in the home, and he felt, as a friend, he should lie to deputies to cover
up for his friend.
[18] In support of his argument that the evidence was insufficient, Mourey relies on
Taylor v. State, 445 N.E.2d 1025, 1026 (Ind. Ct. App. 1983), where police came
to serve a warrant on an individual named Louis Jordan (“Jordan”), and Taylor
told officers that she did not know Jordan or his whereabouts. Officers later
found Jordan in a storage trunk in the living room of the home. Id. The Taylor
court reversed Taylor’s conviction for assisting a criminal on the basis that it
was unreasonable under the circumstances for the fact-finder “to infer
knowledge of Jordan’s presence within the residence without other indicia of
knowledge.” Id. at 1027. In doing so, the court outlined a list of examples of
such indicia, including: (1) length of time the defendant and fugitive were
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 9 of 13 within the dwelling before the officer’s presence was known; (2) the place the
fugitive was hidden; (3) the fugitive’s secretion in a room where his presence
and activity were available to defendant’s senses of sight or sound; (4) the
existence of a relationship between or among the parties; (5) the reasons the
police officers had for going to the house where the fugitive was found; (6) the
length of time the dwelling was under surveillance by the law enforcement
authorities; or (7) the physical layout of the house. Id. at 1027.
[19] We consider Taylor, but do not find that it controls our decision today or
demands a reversal of Mourey’s conviction. First, the Taylor court’s list of
factors to consider was non-exhaustive. Id. (“This listing is not exhaustive but
merely illustrative.”). Second, evidence was presented in the current case from
which the jury could have inferred that Mourey knew that Delk was in the
home and opted not to tell deputies. Based on the record before us, we
conclude that the State presented sufficient evidence to sustain Mourey’s
conviction for Level 6 felony assisting a criminal.
II. Sentencing [20] The trial court sentenced Mourey to a total sentence of 910 days with 535
served on home detention and 365 days on probation. Appellant’s App. at 54-57;
Tr. Vol. II at 87. Mourey claims that the trial court “inappropriately sentenced
[him] to the maximum sentence.” Appellant’s Br. at 10. Pursuant to Indiana
Appellate Rule 7(B), this Court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the Court finds that the
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 10 of 13 sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Our supreme court has explained that the principal role of
appellate review should be to attempt to leaven the outliers, “not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). We independently examine the nature of Mourey’s offense and his
character under Appellate Rule 7(B) with substantial deference to the trial
court’s sentence. Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015).
[21] “In conducting our review, we do not look to see whether the defendant’s
sentence is appropriate or if another sentence might be more appropriate; rather,
the test is whether the sentence is ‘inappropriate.’” Barker v. State, 994 N.E.2d
306, 315 (Ind. Ct. App. 2013), trans. denied. “In assessing whether a sentence is
inappropriate, appellate courts may take into account whether a portion of the
sentence is ordered suspended or is otherwise crafted using any of the variety of
sentencing tools available to the trial judge.” McFall v. State, 71 N.E.3d 383,
390 (Ind. Ct. App. 2017). Mourey bears the burden of persuading us that his
sentence is inappropriate.
[22] “As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory
sentence for Mourey’s Level 6 felony conviction is one year, with a range of
between six months and two and a half years. Ind. Code § 35-50-2-7(b).
Although Mourey claims his sentence was the maximum, this court has
explained, “[A] maximum sentence is not just a sentence of maximum length,
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 11 of 13 but a fully executed sentence of maximum length” and that “[a]nything less
harsh, be it placement in community corrections, probation, or any other
available alternative to prison, is simply not a maximum sentence.” Jenkins v.
State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), trans. denied.
[23] The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation. Croy v. State, 953
N.E.2d 660, 664 (Ind. Ct. App. 2011). Mourey argues that the nature of his
offense was non-violent and that Delk was not wanted for a violent offense,
suggesting that “there was no evidence [] of Mourey or Delk being of a violent
character or presenting a known danger to officers.” Appellant’s Br. at 11.
However, as Deputy Murphy testified, serving warrants is a dangerous
undertaking for law enforcement and that, sometimes, situations escalate and
suspects become scared and take a “fight-or-flight” approach, either trying to
run or fighting with law enforcement. Tr. Vol. I at 162-63. Here, deputies had
information that Delk was in Harter’s residence, and they went there to serve
the felony warrant on Delk. Deputies asked multiple times whether Delk was
present, and in fact “pleaded” with Mourey to just send Delk outside, but,
instead, Mourey steadfastly denied having any knowledge that Delk was at the
premises. Id. at 173.
[24] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. Mourey argues that evidence was
presented that he is the sole breadwinner for the family, has been employed for
many years, and that the letters submitted to the trial court showed that he is
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 12 of 13 “an individual that is a positive member of the community and a family man.”
Appellant’s Br. at 11. However, the record before us reflects that Mourey has a
criminal history, including felony convictions for possession of
methamphetamine, non-support of a dependent child, and theft. Appellant’s
App. Vol. II at 20-22. He also has at least four misdemeanor convictions and
was charged with misdemeanor theft while the current case was pending. Id.
His prior participation in community corrections was revoked. We cannot say
that his character warrants revision of his sentence.
[25] In reviewing a sentence, Indiana courts may consider all aspects of the penal
consequences found in a trial court’s sentence, including 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). Here,
Mourey’s sentence was 910 days, of which 535 days were to be served on home
detention and 365 days were suspended to probation. Mourey has failed to
carry his burden of establishing that his sentence is inappropriate in light of the
nature of the offense and his character.
[26] Affirmed.
Najam, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A05-1703-CR-461 | September 13, 2017 Page 13 of 13