MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 29 2018, 10:06 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gregory L. Fumarolo Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana
Angela N. Sanchez Assistant Section Chief, Criminal Appeals
Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darvon L. Smith, October 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-505 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 02D05-1710-F1-16
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 1 of 14 Statement of the Case [1] Darvon L. Smith appeals his five convictions for rape, each as a Level 1 felony;
his three convictions for criminal confinement, each as a Level 3 felony; his
adjudication as a habitual offender; and his aggregate sentence of 179 years,
following a jury trial. Smith raises five issues for our review, which we restate
as follows:
1. Whether Smith preserved for appellate review his argument that the trial court denied his right to a speedy trial under Indiana Criminal Rule 4(B).
2. Whether he preserved for appellate review his argument that the trial court erred when it instructed the jury.
3. Whether the trial court violated Smith’s right to confront a witness when it admitted the witness’s deposition testimony into evidence after the witness had failed to appear at trial.
4. Whether the State presented sufficient evidence to support his convictions.
5. Whether his 179-year aggregate sentence is inappropriate in light of the nature of the offenses and Smith’s character.
[2] We affirm.
Facts and Procedural History [3] In August and September of 2017, Smith lived in apartment 410 at the East
Central Towers in Fort Wayne. William Hackett lived down the hallway in Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 2 of 14 apartment 415, but he had been absent from the apartment for some time.
Other people had forced the door to apartment 415 open, breaking the locking
mechanism in the process, and they used the apartment for various purposes.
[4] On August 19, Smith responded to an online advertisement for “escort”
services from T.J. Tr. Vol. 2 at 33-34. T.J. met Smith at the East Central
Towers and they entered apartment 415. There, Smith “snatched” T.J.’s
phone, told her she was “not going back outside,” “pulled out a knife,” and told
her he was going to “slice [her] neck from the left to the right.” Id. at 41. T.J.
thought the knife “looked like a steak knife.” Id. at 43. Smith “told [T.J.] to
give him oral sex,” and she complied. Id. at 44. Smith then gave T.J. the knife
and told her to “throw it across the room,” which she did, “but [T.J.] was still
scared out of her mind.” Id. Smith then “put his penis in [T.J.’s] vagina.” Id.
at 46. At some point thereafter, T.J. gouged Smith in the eyes and escaped the
apartment by moving a television that he had placed to block the door. She ran
naked down the hallway “screaming for help” and saying, “he’s trying to rape
me, he’s trying to kill me.” Id. at 48. She escaped into apartment 410, but
Smith also went to apartment 410 and found her there. T.J. then jumped out of
the window to escape him. She later woke up at Lutheran Hospital with
multiple broken bones, a concussion, and a lacerated liver.
[5] On September 2, Smith responded to another online advertisement for “escort”
services, this time from L.R. L.R. met Smith at the East Central Towers and
accompanied him into apartment 415. There, Smith blocked the front door
with a television and “pulled a knife” on L.R., and she felt she did
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 3 of 14 “not . . . ha[ve] a choice” in how to proceed from there. Id. at 217. L.R.
thought the knife “was like . . . a serrated steak knife.” Id. at 218. Smith then
had L.R. perform oral sex on him, after which he compelled her to engage with
him in sexual intercourse. L.R. was “scared” and “d[id not] want to,” but she
complied. Id. at 223. Afterwards, Smith told L.R. that “if [she] were ever going
to call the police that he would kill [her].” Id. at 225. Not long after her
encounter with Smith, L.R. moved to California.
[6] On September 18, Smith once again responded to an online advertisement for
“escort” services, this time from A.Y. A.Y. met Smith at the East Central
Towers and accompanied him into apartment 415. As soon as they were in the
apartment, Smith put “a knife . . . in [A.Y.’s] face.” Tr. Vol. 3 at 20. A.Y.
“started crying and . . . shaking,” and she told Smith to “just put the knife
down . . . . You’ll get what you want, . . . just put the knife down.” Id. at 21.
Smith then compelled A.Y. to engage with him in sexual intercourse, which
A.Y. “didn’t want.” Id. Afterwards, Smith refused to let A.Y. leave the
apartment until the next morning, when he again compelled her to engage with
him in sexual intercourse.
[7] On October 6, the State charged Smith with five counts of rape, each as a Level
1 felony; three counts of criminal confinement, each as a Level 3 felony; and
with being a habitual offender. On October 11, Smith requested a speedy trial.
On October 20, the trial court set Smith’s trial for January 3, 2018, over Smith’s
speedy trial objection. However, Smith did not move for discharge or dismissal
prior to his trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 4 of 14 [8] At his ensuing trial, T.J. and A.Y. appeared in person and testified against
Smith. However, L.R. refused to board a plane from California to Indiana
despite the court’s order for her to appear and despite the State’s payment for
her plane tickets and local accommodations. Due to her failure to appear, the
State sought to admit L.R.’s pretrial deposition, which Smith’s counsel had
taken two weeks prior to Smith’s trial. Smith objected on the grounds that
L.R.’s failure to appear at trial in person violated his state and federal
constitutional rights to confront her. The trial court overruled Smith’s objection
and admitted the deposition testimony.
[9] Following the presentation of evidence and closing arguments, the court
instructed the jury. In particular, the court gave the following instruction with
respect to the evidence of Smith’s use of a knife: “It is not required that the
deadly weapon be held on the victim at all times. The initial showing of deadly
force and the victim’s awareness of the defendant’s continued constructive
possession of the weapon may be sufficient to satisfy the ‘armed with a deadly
weapon’ element.” Appellant’s App. Vol. II at 111. Smith objected to that
instruction on the grounds that “the concept is adequately covered by the
Court’s pattern instructions . . . and it gives undue emphasis and support to the
State’s argument to give that as an instruction.” Tr. Vol. 3 at 114. The court
overruled Smith’s objection and instructed the jury accordingly.
[10] The jury found Smith guilty as charged, including on the habitual offender
allegation, and the court entered judgment of conviction against Smith on each
count. The court then held a sentencing hearing, after which it concluded that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 5 of 14 “there are no mitigating circumstances” but “[t]here are substantial aggravating
circumstances.” Sent. Tr. at 25-26. In particular, the court found that Smith’s
“criminal history, the fact that there are multiple victims, and multiple acts of
sexual violence” to be aggravating circumstances. Id. at 26. The court then
ordered Smith to serve the advisory sentence for each conviction. However, the
court ordered the sentence for each rape conviction to be served consecutive to
the others. The court further ordered Smith’s sentence for his criminal
confinement conviction with respect to T.J. to be served consecutive to his
other sentences “because of the extraordinary injuries she suffered in order to
escape that confinement.” Id. The court ordered the other two sentences on
the criminal confinement convictions to be served concurrent with Smith’s
sentences for his rape convictions, and the court enhanced Smith’s sentence for
his rape of T.J. by twenty years based on Smith being a habitual offender.
Thus, the court ordered Smith to serve an aggregate term of 179 years in the
Department of Correction. This appeal ensued.
Discussion and Decision Issue One: Speedy Trial
[11] On appeal, Smith first asserts that the trial court erred when, over his objection,
it did not hold his trial within seventy days of his speedy trial request pursuant
to Indiana Criminal Rule 4(B). However, it is well established that, even
though a defendant may object to the trial court’s setting of a trial date outside
the seventy-day window of Rule 4(B), “this [i]s not sufficient to preserve” a
Rule 4(B) issue for our review. Parker v. State, 965 N.E.2d 50, 52 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 6 of 14 2012), trans. denied. Rather, “a defendant waives review of a speedy trial
request” if he does not also “make a motion for discharge or motion for
dismissal prior to trial.” Id. (quotation marks omitted). The record here does
not indicate or otherwise reflect that Smith moved for discharge or dismissal
prior to trial. Therefore, his purported issue under Rule 4(B) has not been
preserved for our review, and we do not consider it. See id.
Issue Two: Jury Instruction
[12] Smith next asserts that the trial court abused its discretion when it instructed the
jury, over his objection, on Smith’s use of a deadly weapon. In particular,
Smith asserts on appeal that, although the instruction was “a correct statement
of the law,” the court erred because the instruction was “misleading” and
“incomplete.” Appellant’s Br. at 37-38. However, in the trial court Smith
objected to the instruction on the ground that the instruction was covered by
other instructions and that it gave undue emphasis and support to the State’s
case. Tr. Vol. 3 at 114. In other words, Smith objected to the instruction on
one ground at trial but asserts a different ground for error on appeal. “A
defendant may not raise one ground for objection at trial and argue a different
ground on appeal.” Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998). Thus,
Smith has waived this issue for our review. See id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 7 of 14 Issue Three: Admission of L.R.’s Deposition
[13] Smith next asserts that the trial court violated his right under the Sixth
Amendment to the United States Constitution1 to confront L.R. when it
admitted her deposition testimony over his objection. The Sixth Amendment
provides that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” However, the
Supreme Court of the United States has explained that this does not prohibit
the admission of testimonial statements of a witness who has not appeared at
trial when the witness was unavailable to testify at the trial and the defendant
had had a prior opportunity to cross-examine the witness. See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). Because Smith’s argument alleges a
constitutional violation, our standard of review is de novo. E.g., Ackerman v.
State, 51 N.E.3d 171, 177 (Ind. 2016).
[14] Smith first asserts that L.R. was available to testify at trial but simply chose not
to appear. “With regard to unavailability, our Supreme Court has provided
that ‘[a] witness is unavailable for purposes of the Confrontation Clause
requirement only if the prosecution has made a good faith effort to obtain the
witness’s presence at trial.’” Tiller v. State, 896 N.E.2d 537, 543 (Ind. Ct. App.
2008) (quoting Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002)) (alteration
original to Tiller), trans. denied. Here, Smith’s arguments aside, the State made a
1 Although Smith also references Article 1, Section 13 of the Indiana Constitution, he does not separately analyze that provision on these facts. We limit our review accordingly.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 8 of 14 good faith effort to obtain L.R.’s presence at trial. The State served her with a
subpoena for trial, it purchased her plane tickets, it paid for her local
accommodations during the trial, and it confirmed those arrangements with
L.R. prior to the trial. And, aside from suggesting that the State should have
also sought to have L.R. held in contempt, Smith offers no suggestions for what
more the State reasonably might have done to attempt to secure L.R.’s presence
at trial. We cannot say that the trial court erred when it deemed L.R.
unavailable.
[15] Smith also argues on appeal that he was denied the right to examine L.R. at her
deposition. But L.R.’s deposition was held at Smith’s request, and his counsel
examined her at that deposition. Thus, he was not denied his right to confront
L.R.
[16] Insofar as Smith further asserts that the manner in which L.R.’s deposition
occurred denied him his right to confront her or otherwise rendered the
deposition inadmissible, Smith did not preserve that issue either for the trial
court’s review or for our review. Indiana Trial Rule 32(D)(3)(b) states:
Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.
Smith did not make any such objections during L.R.’s testimony. Accordingly,
we do not consider this purported issue on appeal. Likewise, Smith did not Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 9 of 14 object to the manner in which the trial court presented L.R.’s deposition to the
jury, and thus his purported argument on that issue also has not been preserved
for our review.
Issue Four: Sufficiency of the Evidence
[17] We next turn to Smith’s argument that the State failed to present sufficient
evidence to support his rape and criminal confinement convictions.2 In
reviewing the sufficiency of the evidence, we consider only the evidence and
reasonable inferences most favorable to the convictions, neither reweighing the
evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958
(Ind. 2016). We will affirm the judgment unless no reasonable fact-finder could
find the defendant guilty. Id.
[18] Smith argues on appeal that the evidence shows that each of the alleged rapes
was in fact consensual, that they were financial transactions for “escort”
services, that none of the three women were in fact confined, and that he did
not threaten T.J. or L.R. with a knife. In support of those arguments, Smith
relies on his own testimony at trial and on perceived weaknesses in his victims’
testimonies. Smith’s arguments are contrary to our standard of review, and we
reject them.
2 Smith does not suggest that the State failed to present sufficient evidence to support his habitual offender adjudication.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 10 of 14 [19] Considering only the evidence most favorable to his convictions, as we must,
we conclude that the State readily presented sufficient evidence to support each
of Smith’s convictions. The testimony of a victim deemed credible by the finder
of fact is, itself, sufficient evidence to support a conviction. See, e.g., Sallee v.
State, 51 N.E.3d 130, 135 (Ind. 2016). T.J. testified that Smith had compelled
her against her will to engage with him in sexual intercourse and to perform
oral sex on him, which were the bases for Count I and Count II, respectively.
She further testified that Smith had blockaded the front door to the apartment in
which he assaulted her, and, in that apartment, he had threatened her with a
knife, which was the basis for Count VI. L.R. similarly testified that Smith had
compelled her against her will to engage with him in sexual intercourse and to
perform oral sex on him, which were the bases for Count III and Count IV,
respectively. And she further testified that Smith had blockaded the front door
to the apartment in which he assaulted her, and, in that apartment, he had
threatened her with a knife, which was the basis for Count VII. Finally, A.Y.
testified that Smith had compelled her against her will to engage with him in
sexual intercourse, which was the basis of Count V, and that he had confined
her in the apartment to do so, which was the basis for Count VIII.
Accordingly, we affirm Smith’s convictions.
Issue Five: Appellate Rule 7(B)
[20] Finally, Smith asserts that his 179-year aggregate sentence is inappropriate in
light of the nature of the offenses and his character. Indiana Appellate Rule
7(B) provides that “[t]he Court may revise a sentence authorized by statute if,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 11 of 14 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.” As the Indiana Supreme Court has explained, the “principal
role of appellate review” under Rule 7(B) “should be to attempt to leaven the
outliers” and not to “achieve a perceived ‘correct’ result in each case.” Cardwell
v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant has the burden to
persuade us that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d
482, 494 (Ind. 2007).
[21] For his five Level 1 felony convictions, his three Level 3 felony convictions, and
the habitual offender adjudication, Smith faced a maximum possible term of
268 years. See Ind. Code §§ 35-50-2-4(b), -5(b), -8(i)(1) (2018). In imposing
Smith’s sentence, the trial court concluded that there were no mitigating
circumstances, but the court concluded that the following aggravating
circumstances did exist: Smith’s criminal history, that there were multiple
victims, and that Smith had conducted multiple acts of sexual violence. The
court further found the extraordinary injuries suffered by T.J. to be an
additional aggravating circumstance. In light of those findings, the court
ordered Smith to serve the advisory sentence for each conviction, but the court
ordered the sentences for each rape conviction, and the sentence for the
criminal confinement conviction relating to T.J., to run consecutively, for an
aggregate term of 179 years.
[22] Smith asserts that his 179-year term is inappropriate because “these offenses
were not particularly heinous”; because “the offenses . . . were a part of a single
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 12 of 14 episode of criminal conduct”; because neither L.R. or A.Y. “needed
hospitalization”; because he was not “factually or legally responsible for [T.J.’s]
injuries”; and because his criminal history is “not the ‘worst of the worst.’”
Appellant’s Br. at 53-54. Smith goes on to state that his sentence “smacks of
vindictive justice” and that, “if the trial court wanted to impose a sentence that
ensured that [he] die in prison, it could have come up with a sentence without
the fanfare of a 179 year term.” Id. at 55.
[23] We initially note that Smith’s arguments that his sentence fails to account for a
single episode of criminal conduct, is the result of unconstitutional vindictive
justice, or is inappropriate “fanfare” are not supported by cogent reasoning. See
Ind. Appellate Rule 46(A)(8)(a). Thus, we do not consider those purported
arguments.
[24] We cannot say that Smith’s sentence is inappropriate in light of the nature of
the offenses. Smith thrice lured women into an abandoned apartment on the
fourth floor of a residential tower, where he confined them, brandished a knife,
and compelled them to engage him in multiple sex acts. And, in escaping from
her confinement, T.J. suffered substantial injuries. Nothing about the nature of
Smith’s offenses renders his consecutive, advisory terms inappropriate.
[25] We also cannot say that Smith’s sentence is inappropriate in light of his
character. Smith has five prior felony convictions and five prior misdemeanor
convictions spanning twenty years. He committed the instant offenses while on
parole for a prior felony offense. He has also previously had his probation
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 13 of 14 revoked. And he owes more than $100,000 in child support. Smith’s sentence
is not inappropriate in light of his character. We affirm his 179-year aggregate
sentence.
Conclusion [26] In sum, we affirm Smith’s convictions and sentence.
[27] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018 Page 14 of 14