MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 7:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General Keffer Barnhart LLP Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Nobel Eastwood, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1611-CR-2506 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Tornatta, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-1507-F1-3926
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 1 of 7 Statement of the Case [1] Kevin Nobel Eastwood appeals his convictions for attempted murder, a Level 1
felony, and battery, as a Level 5 felony, following a jury trial. Eastwood
presents the following issues for our review:
1. Whether the trial court abused its discretion when it denied his request for an admonishment during voir dire.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On July 1, 2015, Rodney Kessler and Anastacia Eastwood attended a court
hearing to address issues of Kessler’s visitation and parenting time with their
child, C.W. Later that night, Kessler and his wife, Crystal, were inside their
mobile home when Crystal heard someone open a gate in their front yard.
Kessler was about to open the front door when Eastwood, Anastacia’s husband,
kicked it open and entered the home. Eastwood was wielding a knife, and he
said, “[N]ow you meet me, mother****er, you’re going to die and you’ll never
see [C.W.]” Tr. Vol. I at 182. Kessler tried to close the door, but Eastwood
forced his way through the door and began stabbing Kessler multiple times.
Kessler’s wife, Crystal, intervened and struck Eastwood with a plunger handle,
but Eastwood chased her outside, where she fell to the ground. Eastwood cut
her wrist and hand as she held her hands up in a defensive posture. Eastwood
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 2 of 7 then fled the scene, but, as he ran away, he told Crystal that “if he didn’t get
[them] now he was going to come back and kill them both because [they]
weren’t ever allowed to see [C.W.] again.” Id. at 205. Kessler’s wounds were
severe, and he and Crystal applied tourniquets in an effort to stanch the
bleeding while they waited for emergency medical technicians to arrive.
[4] Eastwood then drove himself to the home of Anastacia’s grandparents, Randall
and Patricia Williams, in Kentucky. When he arrived there at approximately
2:00 a.m., he was crying and told Patricia “that he messed up.” Id. at 233.
Eastwood told Patricia that he and Kessler “got into a fight.” Id. at 234.
Patricia drove Eastwood back to Evansville and, when they arrived at the police
station, Eastwood told Patricia that he had stabbed Kessler. Eastwood then
turned himself into the police.
[5] The State charged Eastwood with attempted murder, burglary, and battery. At
his trial, during voir dire, the prosecutor asked a prospective juror who had
been the victim of a burglary this question: “If you were called to give an initial
statement or even maybe testify in trial would you [have] gone and testif[ied]
about what you saw and what you observed?” Id. at 41. When the prospective
juror responded yes, the prosecutor asked him why, and the prospective juror
said, “To see if the right person who did it was prosecuted.” Id. The prosecutor
then said, “Right because we don’t (inaudible) that’s not what we do.” Id.
Defense counsel then asked to approach the bench.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 3 of 7 [6] During the ensuing side bar conference, defense counsel said, “That last
comment was probably a little bit over the line on, he said we don’t want to get
the wrong guy, he is kind of intervening [sic] that he has some superior
knowledge here and he can’t prosecute that portion. I think that is what he
said.” Id. at 42. The prosecutor responded, “I mean I’m the first one to say it,
we should prove our case beyond a reasonable doubt, and we should bring the
right person. I’m not insinuating anything.” Id. Defense counsel moved for a
mistrial and said, “I just think that his comment crossed the line as to personal
vouching as to the strength of his personal belief and the State’s case which is
not (inaudible).” Id. The trial court then said, “I think you are taking it
differently than I took it” and “He is saying they are not out to get the wrong
guy.” Id. at 43. The court denied the motion for mistrial and, when defense
counsel asked for an admonishment, the court said, “I’m hesitant to even go
back and make a big deal out [of] what he said because I think we might take
something that is really innocuous and make it an issue.” Id. Accordingly, the
trial court did not admonish the prospective jurors.
[7] The jury found Eastwood guilty of attempted murder and battery, but acquitted
him of burglary. The trial court entered judgment and sentenced Eastwood to
the advisory sentence of thirty years for attempted murder and the advisory
sentence of three years for battery, and the court ordered those sentences to run
concurrently. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 4 of 7 Discussion and Decision Issue One: Voir Dire
[8] Eastwood first contends that the trial court abused its discretion when it denied
his request for an admonishment during voir dire. Trial court decisions
regarding admonishments to the jury are reviewed only for an abuse of
discretion. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998). An abuse of
discretion exists where the decision is clearly against the logic and effect of the
facts and circumstances. Id.
[9] Eastwood maintains that the prosecutor’s comment during voir dire “was
vouching for the credibility of his case by responding to the prospective juror’s
answer and suggesting that he would not prosecute the wrong person
“because . . . that’s not what we do.” Appellant’s Br. at 9. But we agree with
the State that, both because the prosecutor’s statement was only partially
transcribed and because the trial court reasonably interpreted the statement to
mean that “they are not out to get the wrong guy,” Eastwood cannot show an
abuse of discretion on this issue. Tr. Vol. I at 43. In any event, in light of the
abundant evidence of Eastwood’s guilt, including Eastwood’s own statements
to the Williamses in the aftermath of the offenses, if there were any error in the
trial court’s failure to admonish the prospective jurors it would be harmless.
Ind. Appellate Rule 66(A).
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 5 of 7 Issue Two: Sentence
[10] Eastwood next contends that his sentence is inappropriate in light of the nature
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 7:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General Keffer Barnhart LLP Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Nobel Eastwood, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 82A01-1611-CR-2506 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Tornatta, Appellee-Plaintiff. Judge Trial Court Cause No. 82D03-1507-F1-3926
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 1 of 7 Statement of the Case [1] Kevin Nobel Eastwood appeals his convictions for attempted murder, a Level 1
felony, and battery, as a Level 5 felony, following a jury trial. Eastwood
presents the following issues for our review:
1. Whether the trial court abused its discretion when it denied his request for an admonishment during voir dire.
2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts and Procedural History [3] On July 1, 2015, Rodney Kessler and Anastacia Eastwood attended a court
hearing to address issues of Kessler’s visitation and parenting time with their
child, C.W. Later that night, Kessler and his wife, Crystal, were inside their
mobile home when Crystal heard someone open a gate in their front yard.
Kessler was about to open the front door when Eastwood, Anastacia’s husband,
kicked it open and entered the home. Eastwood was wielding a knife, and he
said, “[N]ow you meet me, mother****er, you’re going to die and you’ll never
see [C.W.]” Tr. Vol. I at 182. Kessler tried to close the door, but Eastwood
forced his way through the door and began stabbing Kessler multiple times.
Kessler’s wife, Crystal, intervened and struck Eastwood with a plunger handle,
but Eastwood chased her outside, where she fell to the ground. Eastwood cut
her wrist and hand as she held her hands up in a defensive posture. Eastwood
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 2 of 7 then fled the scene, but, as he ran away, he told Crystal that “if he didn’t get
[them] now he was going to come back and kill them both because [they]
weren’t ever allowed to see [C.W.] again.” Id. at 205. Kessler’s wounds were
severe, and he and Crystal applied tourniquets in an effort to stanch the
bleeding while they waited for emergency medical technicians to arrive.
[4] Eastwood then drove himself to the home of Anastacia’s grandparents, Randall
and Patricia Williams, in Kentucky. When he arrived there at approximately
2:00 a.m., he was crying and told Patricia “that he messed up.” Id. at 233.
Eastwood told Patricia that he and Kessler “got into a fight.” Id. at 234.
Patricia drove Eastwood back to Evansville and, when they arrived at the police
station, Eastwood told Patricia that he had stabbed Kessler. Eastwood then
turned himself into the police.
[5] The State charged Eastwood with attempted murder, burglary, and battery. At
his trial, during voir dire, the prosecutor asked a prospective juror who had
been the victim of a burglary this question: “If you were called to give an initial
statement or even maybe testify in trial would you [have] gone and testif[ied]
about what you saw and what you observed?” Id. at 41. When the prospective
juror responded yes, the prosecutor asked him why, and the prospective juror
said, “To see if the right person who did it was prosecuted.” Id. The prosecutor
then said, “Right because we don’t (inaudible) that’s not what we do.” Id.
Defense counsel then asked to approach the bench.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 3 of 7 [6] During the ensuing side bar conference, defense counsel said, “That last
comment was probably a little bit over the line on, he said we don’t want to get
the wrong guy, he is kind of intervening [sic] that he has some superior
knowledge here and he can’t prosecute that portion. I think that is what he
said.” Id. at 42. The prosecutor responded, “I mean I’m the first one to say it,
we should prove our case beyond a reasonable doubt, and we should bring the
right person. I’m not insinuating anything.” Id. Defense counsel moved for a
mistrial and said, “I just think that his comment crossed the line as to personal
vouching as to the strength of his personal belief and the State’s case which is
not (inaudible).” Id. The trial court then said, “I think you are taking it
differently than I took it” and “He is saying they are not out to get the wrong
guy.” Id. at 43. The court denied the motion for mistrial and, when defense
counsel asked for an admonishment, the court said, “I’m hesitant to even go
back and make a big deal out [of] what he said because I think we might take
something that is really innocuous and make it an issue.” Id. Accordingly, the
trial court did not admonish the prospective jurors.
[7] The jury found Eastwood guilty of attempted murder and battery, but acquitted
him of burglary. The trial court entered judgment and sentenced Eastwood to
the advisory sentence of thirty years for attempted murder and the advisory
sentence of three years for battery, and the court ordered those sentences to run
concurrently. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 4 of 7 Discussion and Decision Issue One: Voir Dire
[8] Eastwood first contends that the trial court abused its discretion when it denied
his request for an admonishment during voir dire. Trial court decisions
regarding admonishments to the jury are reviewed only for an abuse of
discretion. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998). An abuse of
discretion exists where the decision is clearly against the logic and effect of the
facts and circumstances. Id.
[9] Eastwood maintains that the prosecutor’s comment during voir dire “was
vouching for the credibility of his case by responding to the prospective juror’s
answer and suggesting that he would not prosecute the wrong person
“because . . . that’s not what we do.” Appellant’s Br. at 9. But we agree with
the State that, both because the prosecutor’s statement was only partially
transcribed and because the trial court reasonably interpreted the statement to
mean that “they are not out to get the wrong guy,” Eastwood cannot show an
abuse of discretion on this issue. Tr. Vol. I at 43. In any event, in light of the
abundant evidence of Eastwood’s guilt, including Eastwood’s own statements
to the Williamses in the aftermath of the offenses, if there were any error in the
trial court’s failure to admonish the prospective jurors it would be harmless.
Ind. Appellate Rule 66(A).
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 5 of 7 Issue Two: Sentence
[10] Eastwood next contends that his sentence is inappropriate in light of the nature
of the offenses and his character. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[11] Eastwood asserts that the concurrent advisory sentences are inappropriate in
light of the nature of the offenses because they “stemmed from prior stress and
frustration concerning C.W. and parenting time” and he immediately admitted
his guilt and apologized. Appellant’s Br. at 10. And Eastwood maintains that
his sentence is inappropriate in light of his character because he is employed,
attends community college, and has an “active and positive influence on his
young children.” Id. at 11. We cannot agree.
[12] Regarding the nature of the offenses, reacting to Kessler’s desire to spend more
time with C.W., Eastwood repeatedly threatened to kill Kessler while he
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 6 of 7 stabbed him multiple times, and he threatened to kill Crystal after she
intervened to save Kessler from further injury. Eastwood left Kessler lying in a
pool of blood, reiterated his threat to kill Kessler as he fled, and drove to
Kentucky. Eastwood had “punctured the sac around [Kessler’s] spinal cord
and it got infected,” so Kessler required surgery one month later. Tr. Vol. 1 at
185. Regarding his character, while we commend Eastwood for his work ethic,
pursuit of higher education, and dedication to family, his criminal history
consists of three prior felonies, including battery against a law enforcement
officer, and two misdemeanors. And we note that, because there were two
victims here, the trial court had discretion to impose consecutive sentences. We
cannot say that the concurrent advisory sentences are inappropriate in light of
the nature of Eastwood’s offenses and his character and, thus, we affirm his
sentence.
[13] Affirmed.
Riley, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017 Page 7 of 7