David Burnett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 10, 2015
• Docket: 49A02-1409-CR-674
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 10 2015, 9:15 am Memorandum Decision shall not be regarded as precedent or cited before any 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 APPELLEE Michael G. Moore Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Jonathan R. Sichtermann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Burnett, June 10, 2015

Appellant-Defendant, Court of Appeals Cause No. 49A02-1409-CR-674 v. Appeal from the Marion Superior Court Cause No. 49G04-1305-MR-30562 State of Indiana, Appellee-Plaintiff. The Honorable Lisa Borges, Judge

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-674| June 10, 2015 Page 1 of 5 Case Summary [1] David Burnett appeals his sixty-year sentence for murder and Class A

misdemeanor carrying a handgun without a license. We affirm.

Issue [2] Burnett raises one issue, which we restate as whether his sixty-year sentence is

inappropriate in light of the nature of the offense and the character of the

offender.

Facts [3] On May 6, 2013, Tyron Woods and Rayshawn Tunstill had an argument near

the Hearts’ Landing apartment complex in Indianapolis. Tunstill left but later

returned with sixteen-year-old Burnett and Burnett’s older brother, Robert

Tibbs. Woods and Tunstill prepared to fight, and Woods handed his gun to his

girlfriend, Leesha Taylor. Tibbs then pointed his gun at Taylor, and Burnett

took the gun from Taylor. Woods and Tibbs also struggled for Tibbs’s gun, but

Woods was unable to take it. Woods and Taylor then tried to flee, but Burnett

shot Woods in the back. Woods and Taylor reached Taylor’s apartment, and

Burnett and Tibbs followed and continued shooting at them. Woods died from

his injuries.

[4] The State charged Burnett with murder and Class A misdemeanor carrying a

handgun without a license. A jury found Burnett guilty, and the trial court

sentenced him to sixty years for the murder conviction and a concurrent

sentence of one year for the handgun conviction. Burnett now appeals. Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-674| June 10, 2015 Page 2 of 5 Analysis [5] Burnett argues that his sixty-year sentence is inappropriate under Indiana

Appellate Rule 7(B). Appellate Rule 7(B) provides that we may revise a

sentence authorized by statute if, after due consideration of the trial court’s

decision, we find that the sentence is inappropriate in light of the nature of the

offenses and the character of the offender. When considering whether a

sentence is inappropriate, we need not be “extremely” deferential to a trial

court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). Still, we must give due consideration to that decision. Id. We also

understand and recognize the unique perspective a trial court brings to its

sentencing decisions. Id. Under this rule, the burden is on the defendant to

persuade the appellate court that his or her sentence is inappropriate. Childress

v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[6] The principal role of Rule 7(B) review “should be to attempt to leaven the

outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). We “should focus on the forest—the aggregate sentence—rather than

the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. When reviewing the appropriateness of

a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-674| June 10, 2015 Page 3 of 5 whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

[7] A review of the nature of the offense reveals that sixteen-year-old Burnett shot

Woods, who was unarmed, in the back as a result of Woods’s altercation with

one of Burnett’s friends. After shooting him, Burnett pursued Woods and his

girlfriend into an apartment and fired several more shots. On appeal, Burnett

argues that the offense was not planned and was merely a “fight gone out of

control.” Appellant’s Br. p. 5. We disagree and conclude that the trial court

properly found that Burnett and his brother had “inserted themselves into a

situation where they had no business and no right to be.” Tr. p. 389-90.

[8] As for Burnett’s character, we note that, despite his young age, he has a

substantial juvenile history. He was arrested eight times as a juvenile, resulting

in five true findings. Burnett has three true findings for criminal trespass, one

for battery resulting in serious bodily injury, and one for resisting law

enforcement. Burnett had numerous probation violations and several urine

drug screens positive for marijuana. Sergeant Ed Bruce of the Indianapolis

Metropolitan Police Department testified at Burnett’s sentencing hearing that

Burnett was a member of the Blockburner gang.1 On appeal, Burnett argues

that he was young and was under the influence of his older brother. The trial

1 Burnett argues that the evidence of gang activity was “stale and without proper foundation.” Appellant’s Br. p. 6. However, Burnett does not challenge the admissibility of the evidence concerning his gang activity. Consequently, we may consider it in our analysis.

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-674| June 10, 2015 Page 4 of 5 court took Burnett’s age into consideration, and we see no evidence in the

record that Burnett’s actions were controlled by his brother.

[9] Given Burnett’s juvenile history and the senseless nature of his crimes, we

conclude that the sixty-year sentence imposed by the trial court is not

inappropriate.

Conclusion [10] The sentence imposed by the trial court is not inappropriate in light of the

nature of the offense and the character of the offender. We affirm.

[11] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-674| June 10, 2015 Page 5 of 5