Keenan Allan Arnold v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2020
• Docket: 20A-CR-97
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 20 2020, 7:40 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 Bryan M. Truitt Curtis T. Hill, Jr. Valparaiso, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keenan Allan Arnold, November 20, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-97 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause No. 46D01-1901-F2-83

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 1 of 12 [1] A jury found Keenan Arnold guilty of Level 2 felony burglary and Level 3

felony robbery, and the court imposed an aggregate twenty-year sentence. On

appeal, Keenan1 asserts that: (1) insufficient evidence supports his convictions

under the incredible-dubiosity rule; and (2) his sentence is inappropriate in light

of the nature of the offense and his character.

[2] We affirm.

Facts and Procedural History [3] On the evening of March 7, 2018, Jabar Wilson was inside the home he shared

with his wife Neka and the family’s three children. Neka was at nearby casino

that night, but the children were at home. Around 7:15 p.m., the Wilson’s

video-surveillance system captured three men in hooded sweatshirts walking up

the driveway toward the home’s side door. Jabar —who was washing dishes at

the time—heard a knock and asked, “Who is it?” Tr. Vol. 3, p. 82. A man

responded, “Dontu.” Id. at 83. Because Dontu was the name of a family friend,

Jabar opened the door. When he did, a man entered the home brandishing a

firearm. As Jabar started backing up, two other men with guns followed the

initial intruder inside. Id. at 84. Jabar’s primary concern at that point was to get

out of the house “because all those kids [were] in there.” Id. at 92. Though he

was injured in the process, Jabar was able to evade the three men and run to his

1 We refer to the defendant and others by their first names because several people involved in this case share surnames.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 2 of 12 neighbor’s home. There, Jabar told his neighbor that someone was “trying to

rob him,” and she called the police. Tr. Vol. 2, p. 211.

[4] Meanwhile, inside the Wilson home, the initial intruder stood by the side door

while the other two men moved from room to room. Twelve-year-old J.W.,

who was in her basement-level bedroom at the time, heard a commotion

upstairs. When she looked up the stairs, she saw two men she did not recognize

walk past: “a dark-skinny guy in dreads” and a “light-skinned guy with a

beard.” Tr. Vol. 3, p. 143. On the home’s main level, nine-year-old D.W.

“didn’t know what was happening” when a man “with dreads” kicked open his

bedroom door and pointed a gun at him. Id. at 151–52, 156. The man did not

enter D.W.’s room; he instead went into Jabar and Neka’s room where he

opened drawers and lifted up the bed like he was “looking for something.” Id. at

152.2 The three men then fled the house with Jabar’s wallet and several hundred

dollars in cash. They were gone by the time police arrived.

[5] About a week later, Detective Melissa Sopher interviewed members of the

Wilson family about the robbery. Jabar described the three suspects: the first

“was a lighter skinned black male” carrying a gun, who he believed was Cary

Arnold Jr.; the second “was a dark[-]skinned black male with [dreadlocks]”;

and the third was a black male with “a thick beard.” Conf. App. Vol. 2, p. 25.

Jabar then told the detective that, after looking at pictures on Facebook, he

2 The family’s other child, fourteen-year-old J.F., was taking a shower at the time of the robbery.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 3 of 12 believed the second suspect was Cary’s older half-brother Keenan. Id. at 26.

And Neka told the detective that, after reviewing the video-surveillance footage,

she believed “the suspect with the beard” was LaShawn Manns. Id.

[6] The detective showed Jabar three separate photo lineups that included pictures

of the men. Jabar pointed to Keenan’s picture “and said that his eyes looked

familiar,” but he “would not confirm that 100 percent it was the suspect.” Tr.

Vol. 3, p. 186. Jabar similarly picked out Manns’s picture because “he

recognized the beard,” but “he could not be positive” that Manns was one of

the robbers. Conf. App. Vol. 2, p. 26. Jabar did however positively identify

Cary as “the suspect who entered his house first.” Id. at 27. At that point, the

detective tried to locate Cary.

[7] A few months later, in August, law enforcement found and arrested Cary, and

Detective Sopher interviewed him about the Wilson home burglary. Cary

denied any involvement and said that he was out of state at the time. But in

December, Cary requested a second interview during which his story changed.

In that interview, Cary admitted involvement and said that he carried out the

crime with Keenan and Manns. The two men were subsequently arrested, and

the State charged each with one count of Level 2 felony burglary and one count

of Level 3 felony robbery.

[8] In October 2019, over a four-day period, the State jointly tried Keenan and

Manns in front of a jury. The State called several witnesses, including members

of the Wilson family, law enforcement, and Cary. The defense called three

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 4 of 12 inmates who had been incarcerated with Cary prior to trial. Each inmate

described conversations with Cary that tended to show neither Keenan nor

Manns was involved with the robbery; Cary denied having these conversations.

The jury ultimately found both men guilty as a charged.

[9] The court subsequently imposed on Keenan an aggregate sentence of twenty-

years, to be fully executed: concurrent terms of twenty years for the Level 2

felony burglary and ten years for the Level 3 felony robbery. Keenan now

appeals.3

Discussion and Decision [10] Keenan raises two issues on appeal. He first challenges the sufficiency of the

evidence supporting his convictions, arguing that his presence at the crime

scene is based only on the incredibly dubious testimony of his half-brother

Cary. He also asserts that his twenty-year sentence is inappropriate in light of

the nature of the offense and his character. We disagree with each contention

and explain why below.

I. The incredible-dubiosity rule does not apply and sufficient evidence supports Keenan’s convictions.

[11] Keenan challenges the sufficiency of the evidence supporting his convictions,

arguing that he was convicted “solely based upon” Cary’s testimony, which he

3 Though Kennan and Manns were tried together, their cases were not consolidated on appeal. A panel of this Court recently issued an opinion in Manns’s appeal, Manns v. State, No. 20A-CR-105, 2020 WL 6479603 (Ind. Ct. App. Nov. 4, 2020), but that opinion has no effect on our decision today.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 5 of 12 asserts “was dubious.” Appellant’s Br. at 10–11. Keenan is raising a particular

sufficiency claim that is premised on application of the incredible-dubiosity

rule.

[12] The incredible-dubiosity rule is an exception to well-settled law mandating that

we will not judge witness credibility on appeal. See, e.g., Jacobs v. State, 148

N.E.3d 1175, 1178 (Ind. Ct. App. 2020). The rule is limited to cases with the

following three conditions: (1) the defendant’s conviction is based on the

testimony of a single witness; (2) that witness’s testimony is inherently

contradictory, equivocal, or the result of coercion; and (3) there is a complete

lack of circumstantial evidence. Smith v. State, 34 N.E.3d 1211, 1221–22 (Ind.

2015) (citing Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015)). If all three

conditions are satisfied, reversal is warranted because the evidence is

insufficient, as a matter of law, to establish guilt beyond a reasonable doubt.

Moore, 27 N.E.3d at 755 (citing Gaddis v. State, 253 Ind. 73, 80–81, 251 N.E.2d

658, 661–62 (1969)). But making this showing is no easy task—while

application of the incredible-dubiosity rule is “not impossible,” it is “a rare

occasion.” Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001).

[13] This case is not one of those rare occasions because Keenan has failed to show

that the rule’s second and third conditions are satisfied: Cary’s trial testimony

was not internally contradictory; and there was circumstantial evidence of

Keenan’s guilt. We address each in turn.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 6 of 12 [14] The incredible-dubiosity rule is only applicable when the sole witness’s trial

testimony is “inconsistent within itself.” Smith, 34 N.E.3d at 1221 (citing Moore,

27 N.E.3d at 758–59). And here, Cary’s trial testimony was not inconsistent: he

unequivocally identified Keenan, on multiple occasions, as one of the robbers;

he never changed his story; and he did not contradict himself on the witness

stand. Keenan acknowledges Cary’s consistent trial testimony but points to his

inconsistent pretrial statements, his “motivation to frame other people,” and his

alleged exculpatory comments to prison inmates. Appellant’s Br. at 11–12. Yet,

none of these circumstances satisfy the rule’s second condition.

[15] It is true that Cary’s trial testimony varied in some respects with pretrial

statements, but those discrepancies do not render the trial testimony incredibly

dubious. See Murray v. State, 761 N.E 2d 406, 409 (Ind. 2002). The jury was

made aware of the inconsistences, Tr. Vol. 3, pp. 26–37, and it was up to them

to weigh that evidence against Cary’s uncontradictory trial testimony, see Smith,

34 N.E.3d at 1222. It is also true that Keenan presented evidence showing

Cary’s “motivation to frame” others, and testimony from two inmates that

tended to support Keenan’s innocence. But again, this evidence was all

presented at trial. Cary was thoroughly questioned on what he hoped to gain in

exchange for his testimony. Tr. Vol. 3, pp. 38–41, 44, 63–68. And the jury

heard each inmate detail alleged jailhouse conversations with Cary, id. at 246–

48; Vol. 4, pp. 14–16, as well as Cary’s response that those conversations never

happened, Tr. Vol. 3, pp. 46, 49, 61–63; Vol. 4, pp. 86–87. It was for the jury to

evaluate this evidence and determine who to believe. See Moore, 27 N.E.3d at

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 7 of 12 759; Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001). In short, Keenan has

failed to show that Cary’s trial testimony was so “inherently improbable that no

reasonable person could believe it.” Love v. State, 761 N.E.2d 806, 810 (Ind.

2002). And thus, for this reason alone, the incredible-dubiosity rule does not

apply. But it is also inapplicable for a second reason.

[16] When there is circumstantial evidence of a defendant’s guilt, “reliance on the

incredible dubiosity rule is misplaced.” Majors v. State, 748 N.E.2d 365, 367

(Ind. 2001); see also Smith, 34 N.E.3d at 1221 (recognizing that there does not

need to be circumstantial evidence to “independently establish guilt” to render

the rule inapplicable). And here, there is circumstantial evidence of Keenan’s

guilt.

[17] Cary’s identification of Keenan was corroborated by both video surveillance

and physical descriptions from the Wilson family. At trial, Cary was shown a

still photograph from video-surveillance footage taken just before the robbery

that showed three men walking up the Wilson’s driveway. Ex. Vol. at 10; Tr.

Vol. 3, pp. 10–11. When Cary was asked, “Who’s the second person?”, he

responded, “That’s Keenan.” Tr. Vol. 3, p. 13. In addition, members of the

Wilson family provided a physical description of one of the intruders that was

consistent with Keenan’s appearance. J.W. described one of the men as a

“dark-skinny guy in dreads,” id. at 143, and D.W. similarly recalled

“[s]omebody with dreads” kicking open his bedroom door, id. at 151–52.

Though Jabar did not recall a man with dreadlocks, he described a “tall guy”

with a “darker . . . complexion.” Id. at 102. Consistent with these descriptions,

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 8 of 12 the evidence at trial revealed the following about Keenan’s appearance: he had

dreadlocks around the time of the crime, Ex. Vol. at 18, 20; his skin is darker in

complexion then Cary or Manns, id. at 14, 18; Tr. Vol. 4, pp. 63–64, 116–17;

and he is the tallest of the three men, Ex. Vol. at 14, 16; Tr. Vol. 4, pp. 63, 98.

Because there is evidence corroborating Cary’s identification of Keenan as one

of the men involved in the robbery, this is not a case with a “complete absence

of circumstantial evidence.” Moore, 27 N.E.3d at 756.

[18] In sum, for two independent reasons the incredible-dubiosity rule does not

apply, and Cary’s testimony—supported by other evidence—is sufficient to

sustain Keenan’s convictions.

II. Keenan has failed to show that his sentence is inappropriate.

[19] Keenan also argues that his aggregate twenty-year sentence is inappropriate

under Indiana Appellate Rule 7(B), which allows us to revise a sentence that is

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

offender.” Determining whether a sentence is inappropriate “turns on our sense

of the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). In making this determination, we

generally defer to the trial court’s judgment: Rule 7(B) requires us to give “due

consideration” to that judgment, and we understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Merriweather v. State,

128 N.E.3d 503, 517 (Ind. Ct. App. 2019), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 9 of 12 [20] Our role when reviewing a sentence under Rule 7(B) is “not to achieve a

perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Instead,

we attempt to “leaven the outliers, and identify some guiding principles for trial

courts and those charged with improvement of the sentencing statutes.” Id. We

accomplish these goals by focusing “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. Ultimately, it is the defendant’s

burden to persuade us that the sentence imposed is inappropriate. Robinson v.

State, 91 N.E.3d 574, 577 (Ind. 2018).

[21] Before explaining why Keenan has failed to persuade us this that his aggregate

twenty-year sentence is inappropriate, we first note that his sentence is far less

than what he could have received. Keenan was convicted of Level 2 felony

burglary and Level 3 felony robbery. The former carries a sentencing range of

ten to thirty years with an advisory sentence of seventeen-and-one-half years,

Ind. Code § 35-50-2-4.5; the latter carries a sentencing range of three to sixteen

years with an advisory sentence of nine years, I.C. § 35-50-2-5. And because

each conviction is for a “crime of violence,” the court could have ordered the

sentences served consecutively. I.C. § 35-50-1-2 (13), (14). Thus, Keenan faced

a possible forty-six-year sentence, but he received less than half that: the court

imposed consecutive sentences of twenty years for the Level 2 felony—three

years above the advisory—and ten years for the Level 3 felony—one year above

the advisory. And Keenan has failed to show that this aggregate twenty-year

sentence is inappropriate in light of the nature of the offense and his character.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 10 of 12 [22] To the nature of the offense, Keenan asserts that “there is nothing aggravating

about the crime itself.” Appellant’s Br. at 18. We cannot agree. When looking at

the offense, we do not turn a blind eye to “facts of the incident that brought the

defendant before” us or the “nature and circumstances of the crime as well as the

manner in which the crime is committed.” Bethea v. State, 983 N.E.2d 1134, 1145

(Ind. 2013). Those facts and circumstances here reveal the following: Keenan

broke into a family home where three children were present; he was armed; the

homeowner was injured while attempting to flee and get help; and Keenan

kicked open then-nine-year-old D.W.’s bedroom door, pointed a BB gun at the

child, and stated, “pow pow.” Conf. App. Vol. 2, p. 26. The nature of this crime

and the manner in which it was committed does not warrant a reduction in

Keenan’s sentence. See McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020).

[23] Turning to the character of the offender, Keenan directs us only to his criminal

history, noting that “as an adult there are no crimes of violence” and that prior

to this arrest he had “nothing greater” than a Class D or Level 6 felony.

Appellant’s Br. at 18. Though this is true, we find Keenan’s attempt to

minimize his criminal history unavailing. And, after reviewing that history, we

find no support for Keenan’s assertion that a “short term of incarceration with a

lengthy term of probation would be an adequate deterrent.” Id.

[24] Keenan’s fifteen-plus-year criminal record reveals a concerning pattern of illegal

behavior despite multiple chances for deterrence and rehabilitation. As a

juvenile, Keenan received three referrals for delinquent behavior. Conf. App.

Vol. 3, pp. 28–29. He was placed on probation and home detention; he was

Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 11 of 12 ordered to complete community service; and he served time in nonsecure

detention. Id. Yet, none of these consequences deterred Keenan. He was twice

released unsatisfactorily from probation for committing a new offense, and his

disregard for the law continued into adulthood. Id. Indeed, over an eight-year

period, Keenan was arrested five times, charged with five misdemeanors and

four felonies, and convicted of two felonies and one misdemeanor. Id. at 29–30.

Aside from incarceration, Keenan served time on both work release and

electronic monitoring; he was ordered to complete community service; and he

had time suspended to probation. But again, none of these consequences or

alternative placements deterred Keenan from crime. In fact, he was on

probation when he committed the current offense—one that represents an

increase in severity from his previous behavior, see McFarland v. State, 153

N.E.3d 369, 374 (Ind. Ct. App. 2020), trans denied. Keenan’s character—as

reflected by his extensive criminal history and failed attempts at rehabilitation—

does not warrant a reduction in his sentence.

Conclusion [25] The incredible-dubiosity rule is not applicable here, and the evidence produced

at trial is sufficient to sustain Keenan’s convictions. Further, Keenan has failed

to show that his aggregate twenty-year sentence is inappropriate in light of the

nature of the offense and the character of the offender.

[26] Affirmed.

Bradford, C.J., and Najam, J., concur. Court of Appeals of Indiana | Memorandum Decision 20A-CR-97 | November 20, 2020 Page 12 of 12