D'Angelo A. Honorable v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 11, 2019
• Docket: 18A-CR-2345
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 11 2019, 10:15 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

D’Angelo A. Honorable, April 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2345 v. Appeal from the Elkhart Circuit Court State of Indiana, The Hon. Michael A. Christofeno, Judge Appellee-Plaintiff. Trial Court Cause No. 20C01-1702-MR-2

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 1 of 11 Case Summary [1] In November of 2016, D’Angelo Honorable, born on June 11, 2002, got into an

argument with his friend’s ex-girlfriend that all started with a post the ex-

girlfriend made on Facebook. The conflict culminated in Honorable shooting

five bullets into the ex-girlfriend’s house, which was occupied by numerous

individuals including four children, killing her mother. Honorable was tried as

an adult for murder, convicted as charged, and sentenced to sixty-four years of

incarceration with five suspended to probation. Honorable contends that the

State failed to produce sufficient evidence to sustain his conviction, his sentence

is inappropriately harsh, and the trial court abused its discretion in refusing to

impose alternative juvenile sentencing. Because we disagree with all of

Honorable’s contentions, we affirm.

Facts and Procedural History [2] In November of 2016, Breanna Humphries lived with her mother Teketa

Hixson and several others in a house at 201 Park Avenue in Elkhart, while

Humphries’s ex-boyfriend Clarence Sims lived nearby at 2014 Roys Avenue.

On the afternoon of November 30, 2016, Sims and Humphries exchanged

angry text messages over something she had posted about him on Facebook.

When Humphries texted Sims that she wanted to spit on him, he dared her to

try, and she left 201 Park to confront Sims at his aunt’s house at 130 West

Cleveland Avenue.

[3] When Humphries arrived with a friend, she argued with Sims and the then-

fourteen-year-old Honorable through an open window, but Sims and

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 2 of 11 Honorable refused to come outside. Humphries left and returned with her male

cousin, who told Sims and Honorable to come outside. Honorable responded,

“No, we’re waiting on E-Dub. We have a mission to do.” Tr. Vol. III p. 106.

E-Dub was a friend of Humphries’s aunt who frequently visited at 130 West

Cleveland. Humphries and the others eventually left, and she returned home to

201 Park at approximately 8:00 p.m.

[4] At approximately 9:00 p.m., Humphries, wanting to have the last word, started

a text conversation with Honorable. The exchange was acrimonious, with

Humphries generally ridiculing Honorable and Sims for being too cowardly to

come outside when she had come over to confront Sims, and Honorable, inter

alia, threatening to “f*** yo house up.” Tr. Vol. III p. 121. Shortly after 9:15

p.m., Hixson’s nephew Tyquan Page encountered Honorable, who was

carrying a handgun, in an alleyway near 201 Park. When Page asked

Honorable what he was doing, he replied that he was “gonna shoot up the

house.” Tr. Vol. IV p. 10. Honorable also indicated that he had obtained the

handgun from E-Dub. Page called to warn Hixson about Honorable, but she

was skeptical.

[5] At 201 Park, Hixson had just ended her telephone call with Page when the

shooting began. Honorable had concealed himself behind a nearby garage and

fired five shots into the house. Approximately ten persons were inside the

house at the time, and lights were on in many rooms, including at least one

upstairs bedroom, a downstairs bedroom, a family room, and the kitchen. The

bullets all struck the house near the family room window, with three entering

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 3 of 11 the family room, one becoming embedded in the house’s framing, and one

entering an upstairs sitting area. Evidence indicated that the curtain on the

family room window was open at the time. One of the bullets that entered the

family room passed through a wall into a bedroom, striking Hixson in the head.

Hixson eventually succumbed to her wound.

[6] On February 1, 2017, the State charged Honorable with murder following the

juvenile court’s waiver of jurisdiction. On August 8, 2018, a jury found

Honorable guilty as charged, and, on August 30, 2018, the trial court sentenced

him to sixty-four years of incarceration with five suspended to probation. The

trial court found Honorable’s age and statements to be mitigating. The trial

court found, as aggravating circumstances, his prior criminal history, including

five adjudications for violent behavior; his violent behavior at the juvenile

detention center, including attacking a staff member; his use of alcohol and

marijuana; his repeated use of a firearm; his failure to take advantage of various

past alternative sanctions and resources; the circumstances of the crime,

including the presence of children; and the senselessness of the crime. The trial

court also denied Honorable’s request for alternative juvenile sentencing.

Discussion and Decision I. Sufficiency of the Evidence [7] Honorable contends that the State failed to present evidence sufficient to sustain

his conviction for murder. When a defendant challenges the sufficiency of the

evidence used to convict him of a crime, we consider only the probative

evidence and reasonable inferences arising therefrom supporting the conviction.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 4 of 11 Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm a conviction

unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct.

App. 2012). Put another way, reversal of a defendant’s conviction “is

appropriate only when a reasonable trier of fact would not be able to form

inferences as to each material element of the offense.” Purvis v. State, 87 N.E.3d

1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g, 96 N.E.3d 123 (Ind. Ct. App.

2018). This standard of review does not permit us to reweigh the evidence or

allow us to judge the credibility of the witnesses. McCallister v. State, 91 N.E.3d

554, 558 (Ind. 2018). In cases where there is conflicting evidence in the record,

we consider the evidence in the light most favorable to the trial court’s

judgment. Drane, 867 N.E.2d at 146.

[8] Here, the State was required to establish that Honorable knowingly killed

Hixson, and Honorable challenges only the State’s proof that he did it

“knowingly.” Ind. Code § 35-42-1-1(1). “A person knowingly kills when he is

aware of a high probability that he is engaged in killing.” Lehman v. State, 730

N.E.2d 701, 704 (Ind. 2000); see also Ind. Code § 35-41-2-2(b) (“A person

engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware

of a high probability that he is doing so.”). A defendant’s state of mind can be

established “by the circumstances surrounding the killing and the method of

killing.” Ronk v. State, 470 N.E.2d 1337, 1339 (Ind. 1984). “[K]nowing killing

may be inferred from a defendant’s use of a deadly weapon in a manner likely

to cause death.” Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 5 of 11 [9] The circumstances allowed the jury to find that Honorable knew that his

actions were likely to cause death. Honorable shot five bullets into a house

being fully aware that Humphries lived there with her mother and siblings and

which, at the time of the shooting, was occupied by at least four children and

many adults, several of whom were in the family room. Moreover, the record

contains ample evidence that the house was occupied at the time. Lights were

on in many rooms, including at least one upstairs bedroom, the living room, a

downstairs bedroom, and the kitchen. Televisions were on in the family room

and downstairs bedroom, and a laptop computer was on upstairs. From his

position nearby, it is reasonable to infer that Honorable saw the lights on in the

family room, the kitchen, and the upstairs bedroom, at the very least, and very

likely the flickering of televisions.

[10] Despite indications of current occupation, Honorable’s bullets all struck the

house near the family-room window, with one becoming embedded in the

house’s framing, three entering the family room in which several persons were

sitting, and one entering an upstairs sitting area. While there was a curtain on

the family-room window, the evidence indicated that the curtain was open at

the time. Even if the curtain had been drawn, a witness described the curtain as

“thin-like” and explained that an observer would have been able to see if there

was somebody in the room. Tr. Vol. IV p. 40. We conclude that the evidence

supports a conclusion that Honorable shot at the house aware of a high

probability that somebody inside would be killed.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 6 of 11 [11] Honorable points to his testimony that he believed the house was unoccupied

when he fired five shots into it and that he was aiming at the brick near the

bottom of the house. The jury, however, was not required to credit either of

these claims and did not. We conclude that the State produced sufficient

evidence to sustain a finding that Honorable had a knowing intent to kill.

Honorable’s argument amounts to nothing more than an invitation to reweigh

the evidence, which we will not do. See McCallister, 91 N.E.3d at 558.

II. Whether Honorable’s Sentence is Inappropriate [12] Honorable contends that his sentence is inappropriately harsh. We will revise a

sentence only if, upon “due consideration of the trial court’s decision” it

nonetheless appears that “the sentence is inappropriate in light of the nature of

the offense and the character of the offender.” Ind. Appellate Rule 7(B);

Anglemyer v. State, 868 N.E.2d 482, 490–91 (Ind. 2007), clarified on reh’g, 875

N.E.2d 218 (2007). The “nature of the offense” refers to the defendant’s acts in

comparison with the elements of his offense, Cardwell v. State, 895 N.E.2d 1219,

1224 (Ind. 2008), while “character of the offender” refers to general sentencing

considerations and the relevant aggravating and mitigating circumstances.

Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Honorable has the burden to

show his sentence is inappropriate in light of both the nature of the offense and

his character. Gil v. State, 988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013). This

can only be done with “compelling evidence portraying in a positive light the

nature of the offense […] and the defendant’s character.” Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015). The trial court sentenced Honorable to sixty-four

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 7 of 11 years of incarceration, with five suspended to probation. The sentencing range

for murder is forty-five to sixty-five years, with an advisory sentence of fifty-five

years. Ind. Code § 35-50-2-3.

[13] The nature of Honorable’s offense is disturbing. Honorable fired five bullets

into a house occupied by approximately ten persons, including four children.

When Hixson—a mother of four—was shot, she was sitting on a bed next to a

one-year-old child. While Honorable’s actions only resulted in one death, the

consequences could have been far worse. Even so, as the trial court noted, the

shooting destroyed two families by leaving Hixson’s four children without a

mother and by causing despair to Honorable’s own family. Moreover, as the

trial court also noted, the shooting was particularly senseless with Honorable

wanting “to get street cred […] to show how tough [he is] so that […]

everybody better know[s] not to mess with” him. Tr. Vol. V p. 65. While

Honorable attempts to characterize his crime as insuring that Humphries would

not hurt his grandfather, the text message evidence shows that this shooting was

mere retaliation for Humphries taunting him for not coming outside during her

argument with Sims. In any event, Honorable told police that Humphries had

only threatened to hurt his grandfather’s truck. The nature of Honorable’s

offense suggests that his sentence is not inappropriate.

[14] Honorable’s character does not bode well for his argument. The character of

the offender is found in what is learned regarding a defendant’s life and

conduct. See Lindsey v. State, 916 N.E.2d 230, 241–42 (Ind. Ct. App. 2009)

(reviewing the defendant’s criminal history, probation violations, and history of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 8 of 11 misconduct while incarcerated), trans. denied. Despite being only sixteen years

old at the time of sentencing, Honorable already had a significant history of

delinquency including an informal adjustment for theft, four adjudications for

battery, and one adjudication for battery resulting in bodily injury. Honorable

behaved violently while placed in juvenile detention, attacking a staff member.

As the trial court observed, “[e]very time [Honorable] get[s] the choice, [he]

choose[s] violence.” Tr. Vol. V. p. 65.

[15] Moreover, Honorable has shown little to no interest in reforming himself to

date. Honorable has been provided with resources and alternative sanctions

aimed at modifying his behavior, all to no avail, including informal adjustment,

shoplifting clinic, juvenile detention, non-reporting probation, supervised

probation, community service, counseling, restitution, random drug screens,

and education. Honorable has an admitted history of alcohol and marijuana

use, including daily use of marijuana and use of both alcohol and marijuana on

the day of the shooting.

[16] Finally, the trial court properly considered Honorable’s statements of remorse.

As we have observed, “the trial court is in the best position to judge the

sincerity of a defendant’s remorseful statements.” Stout v. State, 834 N.E.2d

707, 711 (Ind. Ct. App. 2005), trans. denied. Here, while the court did find

Honorable’s statements to be mitigating, it also observed Honorable’s conduct

during trial and sentencing and found that he “never showed remorse for [his]

actions[.]” Tr. Vol. V pp. 65–66. The trial court observed that “there is a

hollowness to your words when you say you’re sorry.” Tr. Vol. V p. 66. This

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 9 of 11 finding was within the trial court’s discretion. See Stout, 834 N.E.2d at 711. In

light of the nature of his offense and his character, we conclude that Honorable

has failed to establish that his sentence is inappropriately harsh.

III. Whether the Trial Court Abused is Discretion in Declining to Impose Alternative Juvenile Sentencing [17] Indiana Code section 31-30-4-2 provides that when an offender under the age of

eighteen is convicted of a felony in criminal court, the trial court “may […]

impose a sentence upon the conviction of the offender under this chapter[,]”

which allows for suspended sentences or juvenile commitments instead of a

criminal sentence. The statute explicitly leaves application of alternative

juvenile sentencing to the discretion of the trial court. Id. In Legg v. State, 22

N.E.3d 763 (Ind. Ct. App. 2014), trans. denied, we concluded that while there

are no mandatory considerations for a trial court making this determination, the

criteria listed in Indiana Code section 31-30-3-2 regarding waiver into adult

court “are good examples of the kinds of criteria a trial court may consider in

reaching its decision on this issue.” Id. at 767. That waiver provision sets out

five considerations:

(1) the child is charged with an act that is a felony: (A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or (B) that is a part of a repetitive pattern of delinquent acts, even though less serious; (2) the child was at least fourteen (14) years of age when the act charged was allegedly committed;

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 10 of 11 (3) there is probable cause to believe that the child committed the act; (4) the child is beyond rehabilitation under the juvenile justice system; and (5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult. Ind. Code § 31-30-3-2.

[18] Here, we conclude that the same circumstances that supported waiver into

adult court also supported denial of alternative sentencing. Honorable’s

criminal conduct of firing repeatedly into a home occupied by approximately

ten persons, including four children, was heinous, and more than one death

could easily have resulted. Honorable also has a significant record of

delinquency, including prior acts of violence and failed efforts at rehabilitation.

The trial court had more than enough evidence to implicitly conclude that the

juvenile rehabilitation system could no longer help Honorable and that it was in

the best interests of the community that he receive an adult sentence. Based

upon the seriousness of the offense and Honorable’s failure to reform his

conduct in the juvenile system, we conclude that the trial court was within its

discretion to decline his request to apply the alternative juvenile sentencing

statute. See Legg, 22 N.E.3d at 767 (concluding that the trial court did not abuse

its discretion in refusing to alternatively sentence a sixteen-year-old who

committed murder as part of a pattern of other delinquent acts).

[19] We affirm the judgment of the trial court.

Crone, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2345 | April, 11, 2019 Page 11 of 11