Harley R. Sims v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2016
• Docket: 49A02-1507-CR-768
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), Feb 17 2016, 8:45 am this 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 R. Fisher Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harley R. Sims, February 17, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-768 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff Judge Trial Court Cause No. 49G03-1401-MR-694

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 1 of 10 [1] Harley Sims (“Sims”) was convicted of murder in Marion Superior Court. Sims

was ordered to serve fifty-five years in the Department of Correction, with two

years suspended. Sims appeals and presents two issues, which we restate as:

I. Whether the evidence was sufficient to support Sims’s murder conviction and; II. Whether Sims’s 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] In the Fall of 2013, Kristopher Griner (“Griner”) met Tiffany Cooney

(“Cooney”), and they developed a close friendship. It was a friendship that

often involved the use of drugs.

[4] On the evening of January 1, 2014, Griner called Cooney and asked her to pick

him up because he wanted to hang out with her, but he was stranded in

Columbus, Indiana. Thereupon, Cooney drove to Columbus, picked up Griner,

and they drove to a friend’s house on the west side of Indianapolis.

[5] After they arrived at the home, Cooney determined that she needed money for

gas and drugs. Sims was also at the friend’s house when Cooney and Griner

arrived. This was the first time that Cooney and Sims had met. Sims offered to

buy Cooney some gas if she helped him run a few errands. Cooney agreed, and

she and Sims left Griner at the friend’s house because he was taking a nap. Both

Cooney and Sims used methamphetamine before leaving the house.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 2 of 10 [6] Sims and Cooney drove around Indianapolis for several hours, making various

stops in her black Ford Ranger pickup truck. Cooney allowed Sims to drive

after they stopped to get gas because her legs were “tired.” Tr. p. 45. Later in

the evening, Griner began impatiently texting Cooney and asked her to come

pick him up from the friend’s house because he was “sick” for heroin. Tr. p. 50.

So, Sims and Cooney picked up Griner and continued to run errands for Sims.

This was the first occasion that Sims met Griner. Cooney sat in the middle seat

next to Sims, who drove, and Griner sat in the passenger seat. Griner was

agitated and repeatedly told Cooney that they needed to hurry up and that Sims

was “taking too much time.” Tr. p. 51. Griner elbowed Cooney in the ribs

several times, but he stopped after she told him that he was hurting her. Cooney

observed that Sims was bothered by Griner’s behavior and shook his head in

disapproval.

[7] Around the same time, Sims suggested that they find a Wi-Fi network so that

he could contact a friend on Facebook. Sims pulled into the parking lot at the

Hyatt hotel near the airport because he knew it would have an unrestricted Wi-

Fi network. After pulling into the parking lot, Sims leaned Cooney forward

until her face hit the radio, reached behind her, and stabbed Griner in the neck

with a pocketknife that Cooney kept near the driver side seatbelt in her truck.

Cooney initially thought that Sims hit Griner, but when she sat up she saw

Sims holding her knife with Griner’s blood on it. Griner screamed profanities at

Sims, jumped out of the truck, and ran toward the hotel. Cooney attempted to

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 3 of 10 follow Griner to see what had happened, but Sims pulled Cooney back into the

truck and quickly drove away from the hotel.

[8] Griner entered the hotel lobby around 2:30 a.m. on January 2, 2014, and called

for help. Night auditor, Curtis Baker (“Baker”), was on duty at the Hyatt hotel

that evening. Baker saw blood coming out of Griner’s neck, so he helped him

sit down on a couch, went to get Griner some towels, and called 911. While

Baker was on the phone, Griner became unconscious and slid off the couch and

onto the floor. The lobby video surveillance captured this entire incident. When

Indianapolis Metropolitan Police Department (“IMPD”) Officer James Barrow

(“Officer Barrow”) arrived at the hotel lobby, Griner was unresponsive and “his

clothing was heavily drenched in blood.” Tr. p. 32. Griner was transported to

the hospital, where he was pronounced dead after attempts to resuscitate him

were made. The coroner determined that a stab wound to the neck severed

Griner’s left subclavian artery and vein, causing his death. Tr. p. 180-81.

[9] Cooney stayed with Sims for several days after Griner was stabbed because

Sims threatened that if she tried to leave, call the police, or speak to anyone

about the incident that “he wouldn’t think twice to do the same to [her].” Tr. p.

63. He also took Cooney’s cell phone, and when the police called for her, Sims

hung up the phone. Sims and Cooney stopped at various locations around

Indianapolis, looking for money and a place to stay. A friend of Sims’s mother,

R. Thomas Garrett (“Garrett”), finally agreed to let them stay at his house,

where the two were finally apprehended by police on January 6, 2014.

Detective Brian Lemond (“Detective Lemond”) interviewed both Cooney and

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 4 of 10 Sims. Cooney told Detective Lemond that Sims stabbed Griner. Sims admitted

that he “took a swipe at him” with a pocketknife. Tr. p. 351.

[10] The State charged Sims with murder on January 8, 2014. A jury trial was held

on February 9 and 10, 2015. The jury convicted Sims. A sentencing hearing

was held on June 24, 2015, and the trial court ordered Sims to serve fifty-five

years in the Department of Correction, with two years suspended to probation.

The trial court determined Sims’s sincere apology to Griner’s family and history

of childhood abuse to be mitigating factors. The court considered Sims’s

previous theft conviction and arrest for domestic battery as an aggravating

factor. The trial court also gave significant aggravating weight to the the nature

of the offense. Sims now appeals.

I. Sufficiency of the Evidence

[11] Sims argues that his murder conviction was not supported by sufficient

evidence. “Upon a challenge to the sufficiency of evidence to support a

conviction, a reviewing court does not reweigh the evidence or judge the

credibility of witnesses, and respects the jury’s exclusive province to weigh

conflicting evidence.” Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider

only probative evidence and reasonable inferences supporting the verdict. Id.

We must affirm if the probative evidence and reasonable inferences drawn from

the evidence could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 5 of 10 [12] Sims was charged with “knowingly killing another human being, namely:

Kristopher Griner by stabbing at and against the person of Kristopher Griner

with a knife, thereby inflicting mortal injuries upon Kristopher Griner, causing

[him] to die.” Appellant’s App. p. 25. Indiana Code section 35-42-1-1(1)

provides:

A person who knowingly or intentionally kills another human being commits murder, a felony.

[13] Sims specifically contends that the Stated failed to prove that he acted

knowingly. One “knowingly” kills when he is “aware of a high probability” that

his conduct might kill. Griffin v. State, 963 N.E.2d 685, 692 (Ind. Ct. App. 2012)

(citing Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999)); Ind. Code § 35-41-2-

2(b). “The requisite intent to commit murder may be inferred from the

intentional use of a deadly weapon in a manner likely to cause death.” Davis v.

State, 558 N.E.2d 811, 812 (Ind. 1990).

[14] Cooney testified at trial that in the early morning hours of January 2, 2014,

Sims leaned her all the way forward in her truck until her head touched the

radio, reached behind her, and hit Griner. However, when she looked at Sims

to tell him to stop fighting, she saw a bloody knife in Sims’s hand and Griner

was screaming in pain. When Cooney attempted to exit the truck to determine

if Griner was injured, Sims pulled her back in the truck, quickly drove off, and

threatened her not to discuss the incident with anyone. He also later admitted

to police that he “took a swipe” at Griner with a pocketknife. Tr. p. 351.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 6 of 10 [15] Sims was aware of a high probability that his conduct might kill Griner because

he lunged at his neck with a knife. Cooney’s testimony establishes that Sims

knowingly killed Griner. Sims relies on his own testimony that he acted in self

defense because Griner swung a hammer at him. The jury had the discretion to

weigh Cooney’s testimony against Sims’s testimony. We must respect this

discretion. See McHenry, 820 N.E.2d at 126.

[16] Sims also argues that the State failed to prove that he was not acting in sudden

heat when he stabbed Griner with a knife. Under Indiana Code section 35-42-1-

3(a)(1)1,

A person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by means of a deadly weapon.

(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.

“Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to

obscure the reason of an ordinary person, preventing deliberation and

premeditation, excluding malice, and rendering a person incapable of cool

reflection. Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010).

1 We note that, effective July 1, 2014, the statute was amended. However, because Sims committed his crime prior to this revision, we refer to the statute in effect at that time.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 7 of 10 Sudden heat requires more than mere words and must be sufficient to meet an

objective standard. Id. at 1282-83.

[17] Cooney testified that after she and Sims picked up Griner, Sims was frustrated

by Griner’s need for heroin and shook his head in disapproval. Griner also

elbowed Cooney in the ribs to express his frustration with how long Sims’s

errands were taking. However, Cooney asked Griner to stop and he did. Based

on these facts and circumstances, the jury determined that Sims did not act in

sudden heat when he stabbed Griner in the neck. Again, we respect the jury’s

discretion and will not reweigh the evidence. See McHenry, 820 N.E.2d at 126.

For all of these reasons, we conclude that the State presented sufficient evidence

to support Sims’s murder conviction.

II. Inappropriate Sentence

[18] Sims further argues that his sentence is inappropriate in light of the nature of

the offense and the character of the offender. Under Indiana Appellate Rule

7(B):

[We] 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.

When reviewing a sentence, our principal role is to “leaven the outliers” rather

than necessarily achieve what is perceived as the “correct” result. Conley v. State,

972 N.E.2d 864, 876 (Ind. 2012). We do not look to determine if the sentence

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 8 of 10 was appropriate; instead we look to make sure the sentence was not

inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

Sentencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.

1996)). Therefore, the defendant has the burden of persuading us that his

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

[19] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed in assessing the nature of the

offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). The “character of

the offender” portion of the sentence involves consideration of the aggravating

and mitigating circumstances and general considerations. Clara v. State, 899

N.E.2d 733, 736 (Ind. Ct. App. 2009).

[20] Sims was convicted of murder. At the time of Sims’s offense, the sentencing

range for murder was forty-five to sixty-five years, with fifty-five years being the

advisory sentence. See Ind. Code § 35-50-2-3. The trial court imposed a fifty-

five-year sentence to be served in the Department of Correction, with two years

suspended to probation.

[21] In considering the nature of the offense, we observe that Sims stabbed Griner in

the neck because he was frustrated with Griner’s behavior toward Cooney and

his repeated requests for heroin. Instead of determining if Griner was injured or

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 9 of 10 seeking help for him after Griner exited the truck, Sims drove off, and evaded

the police for four days. When the police called Cooney’s cell phone and asked

to speak to her, Sims hung up the phone. He threatened Cooney that if she told

anyone what had happened that “he wouldn’t think twice to do the same to

[her].” Tr. p. 63. Sims also lied in his statement to the police. These are all

actions that properly enhance the nature of the offense.

[22] At the sentencing hearing, in addition to the offense-based aggravators, the trial

court determined that Sims’s prior criminal history did not speak well for his

character. We give considerable deference to the trial court’s sentencing

discretion and conclude the court’s imposition of an advisory fifty-five-year

sentence with two years suspended to probation was not inappropriate in light

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

Conclusion

[23] The State presented sufficient evidence to support Sims’s murder conviction.

Additionally, Sims’s fifty-five-year sentence imposed by the trial court was not

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

offender.

[24] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016 Page 10 of 10