Kori F. Rice v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 30, 2018
• Docket: 68A01-1706-CR-1314
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 30 2018, 8:00 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dale W. Arnett Curtis T. Hill, Jr. Winchester, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kori F. Rice, August 30, 2018 Appellant-Defendant, Court of Appeals Case No. 68A01-1706-CR-1314 v. Appeal from the Randolph Circuit Court State of Indiana, The Honorable Jay L. Toney, Appellee-Plaintiff. Judge Trial Court Cause No. 68C01-1611-F3-750

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 1 of 11 Statement of the Case [1] Kori F. Rice (“Rice”) was convicted, following a jury trial, of Level 3 felony

robbery1 and Class A misdemeanor theft2 and was found to be an habitual

offender.3 He now appeals his sentence and contends that the trial court abused

its discretion in its determination of aggravating and mitigating circumstances.

Concluding that the trial court did not abuse its discretion when sentencing

Rice, we affirm his sentence.

[2] We affirm.

Issue Whether the trial court abused its discretion when sentencing Rice.

Facts [3] On October 31, 2016, Rice spent the evening at his girlfriend’s apartment

drinking and smoking marijuana with his friend, Morgan Thompson

(“Thompson”); Morgan’s cousin, Joseph Ashbrook (“Ashbrook”); and a

seventeen-year-old male neighbor named J.Q. (“J.Q.”). Rice and the others,

who were all intoxicated, left the apartment around midnight. They got into

Thompson’s car, and Rice drove.

1 IND. CODE § 35-42-5-1(1). 2 I.C. § 35-43-4-2(a). 3 I.C. § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 2 of 11 [4] As they were in driving, Ashbrook called his father (“Ashbrook’s father”) on his

cell phone. Ashbrook’s father could tell that Ashbrook was “very upset” and

appeared to have “been crying.” (Tr. Vol. 2 at 226). Ashbrook told his father

that he was “scared” and that Rice and Thompson were “robbing him.” (Tr.

Vol. 2 at 227). Ashbrook also asked his father to take his shotgun and be at

Ashbrook’s house when he arrived home. The phone call then disconnected,

and Ashbrook’s father was unable to reconnect with Ashbrook.

[5] Thereafter, around 12:30 a.m., Ashbrook called his mother (“Ashbrook’s

mother”). Ashbrook, who sounded “very shaken[] and frightened[,]” told his

mother that he was on his way home and that she should call the sheriff

because he was getting beaten up and robbed. (Tr. Vol. 2 at 235). The phone

call then disconnected. About ten minutes later, Rice called his mother back.

Ashbrook again said that he was getting beaten and robbed, told her to call the

sheriff, and said he was getting close to home. The phone call again

disconnected while he was talking.

[6] Ashbrook’s mother watched from the front window and saw a car pull up and

stop on the road across from her house. She saw that three of the car doors

opened and saw that some people, including the driver, got out and went to the

side of the road. Five to ten minutes later, the people got back into the car, and

Ashbrook’s mother saw that the driver was the last person to get back into the

car. After the car sped away, Ashbrook’s mother saw Ashbrook’s head pop up

from the ditch on the side of the road. Ashbrook got out of the ditch, “weaved

across the road[,]” and eventually went into his mother’s house. (Tr. Vol. 2 at

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 3 of 11 239). Ashbrook, who was crying and limping from pain in his leg, had red

marks on various parts of his body, including his face, neck, and ribs. He told

his mother that, during the drive home, Rice, Thompson, and “some other kid”

had “decided to rob him.” (Tr. Vol. 2 at 241). Ashbrook told her that after

Rice, Thompson, and J.Q. had pulled Ashbrook out of the car, they threw him

into the ditch and “took about fifteen blows each on him.” (Tr. Vol. 2 at 241).

They then took Ashbrook’s phone and wallet.

[7] Ashbrook’s mother called the Randolph County Sheriff’s Department.

Ashbrook told the sheriff dispatcher that Rice and Thompson had taken his

phone and money and beat him up, and he gave identifying information about

Thompson’s car. When a sheriff deputy arrived at Ashbrook’s home, Ashbrook

gave the deputy identifying information about Rice and Thompson. Ashbrook

was later taken by ambulance to the hospital.4

[8] Meanwhile, after leaving Ashbrook in the ditch, Rice drove to a convenience

store and, using some of the money taken from Ashbrook, bought some

marijuana from someone in the parking lot. At that same time, police officers,

who had received the identifying information given by Ashbrook, spotted

Thompson’s car in the convenience store parking lot and stopped to investigate.

4 Ashbrook was released from the hospital that same morning. He died later that day, but his death was not attributable to the injuries he sustained during the roadside beating. Due to Ashbrook’s death, the State was unable to call him as a witness during Rice’s jury trial.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 4 of 11 The officers found Morgan and J.Q. in Thompson’s car and arrested them.

Rice, who went into the store when the police arrived, got away from the area.

[9] Days later, Rice was interviewed by the police. Rice told the officer that he had

not been involved with the crimes against Ashbrook. In fact, Rice denied that

he had been with Ashbrook, Thompson, and J.Q. Rice claimed that he had

been with his girlfriend when the offenses against Ashbrook had occurred, and

he convinced his girlfriend to confirm that story to the police. Rice’s girlfriend

initially lied to police and told them that Rice had been with her, but a few

weeks later, she told the police the truth and stated that she could not be Rice’s

alibi.

[10] The State charged Rice with Level 3 felony robbery and Class A misdemeanor

theft and alleged that he was an habitual offender. 5 In April 2017, the trial

court held a two-day jury trial. During the trial, the State’s witnesses included

Thompson, Ashbrook’s father, Ashbrook’s mother, Rice’s girlfriend, and some

police officers, who provided testimony regarding the facts above.

[11] Thompson, who had been granted use immunity for his testimony, testified that

he had passed out in the car when Rice drove the group home and stated that

he had woken up when he had heard a commotion, which was Rice and J.Q.

kicking and punching Ashbrook by the side of the road. Thompson further

testified that, after he had gotten out of the car, Rice told him to grab

5 Thompson and J.Q. were also charged with robbery and theft.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 5 of 11 Ashbrook’s money. Thompson admitted that he took Ashbrook’s money out of

Ashbrook’s pocket, and he testified that J.Q. took Ashbrook’s phone.

[12] During Rice’s case-in-chief, he called J.Q. as a witness. J.Q., who had been

offered a deal to have his case remain in juvenile court, pled guilty to robbery

and was placed on probation. J.Q. corroborated Ashbrook’s father’s testimony

that Ashbrook had used his cell phone in the car and had mentioned Rice’s and

Thompson’s names. However, J.Q.’s testimony regarding the offenses against

Ashbrook conflicted with Thompson’s testimony. J.Q. testified that the group

pulled to the side of the road to urinate, and he stated, that while there, he saw

Thompson and Ashbrook “look like they [we]re about to fight.” (Tr. Vol. 3 at

135). J.Q. testified that he went over by them in case Thompson needed help

and that they all then started fighting. J.Q. admitted that he struck Ashbrook

and took his phone. J.Q. testified that he saw Thompson hit Ashbrook but that

he did not see Rice strike him. Additionally, J.Q. testified that Rice did not ask

anyone to take anything from Ashbrook’s pockets. When the State cross-

examined J.Q., he admitted that he had previously told a police officer and had

told the juvenile court, as part of his factual basis, that Rice, along with J.Q.

and Thompson, had hit Ashbrook. J.Q. testified that he assumed Rice was

hitting Ashbrook but that he did not specifically observe Rice hitting Ashbrook.

[13] During closing argument, Rice’s defense theory was that the State could not

prove its case because Rice did not personally take Ashbrook’s phone or wallet

from him and because there was conflicting evidence of whether Rice had hit

Ashbrook. The State argued that the jury should find Rice guilty based on

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 6 of 11 accomplice liability. The jury found Rice guilty as charged and determined that

he was an habitual offender.

[14] When sentencing Rice, the trial court determined that there were no mitigating

circumstances. When discussing aggravating circumstances, the trial court

focused on Rice’s criminal history, which the trial court categorized as “quite

serious.” (Tr. Vol. 3 at 247). Rice’s criminal history was comprised of multiple

alcohol-related offenses, including two operating a vehicle while intoxicated

convictions and an habitual substance offender adjudication; two convictions

for Class B felony conspiracy to commit robbery, for which he received a

twenty-year sentence and later violated his probation; a battery conviction; and

criminal mischief conviction. The trial court also stated that Rice’s lack of

remorse “to this date” was an aggravating circumstance, but it did not elaborate

any further on this aggravator. (Tr. Vol. 3 at 248). The trial court imposed a

fourteen (14) year sentence, with twelve (12) years executed and two (2) years

suspended to probation, for Rice’s Level 3 felony robbery conviction and

enhanced this sentence by twelve (12) years for Rice’s habitual offender

adjudication. The trial court also imposed a one (1) year sentence for Rice’s

Class A misdemeanor theft conviction and ordered it to be served concurrently

to his robbery conviction. Thus, the trial court ordered Rice to serve an

aggregate sentence of twenty-six (26) years with twenty-four (24) years executed

and two (2) years suspended to probation. Rice now appeals.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 7 of 11 Decision [15] Rice argues that the trial court abused its discretion in its determination of

aggravating and mitigating circumstances. Sentencing decisions rest within the

sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is

within the statutory range, it is subject to review only for an abuse of discretion.

Id. An abuse of discretion will be found where the decision is clearly against

the logic and effect of the facts and circumstances before the court or the

reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial

court may abuse its discretion in a number of ways, including: (1) failing to

enter a sentencing statement at all; (2) entering a sentencing statement that

includes aggravating and mitigating factors that are unsupported by the record;

(3) entering a sentencing statement that omits reasons that are clearly supported

by the record; or (4) entering a sentencing statement that includes reasons that

are improper as a matter of law. Id. at 490-91.

[16] Rice contends that the trial court abused its discretion by failing to consider his

family support as a mitigating circumstance. A trial court is not obligated to

accept a defendant’s claim as to what constitutes a mitigating circumstance.

Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court

failed to find a mitigating circumstance requires the defendant to establish that

the mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 8 of 11 [17] Here, however, Rice cannot show that the trial court abused its discretion

regarding its consideration of mitigating circumstances because he did not

proffer family support as a mitigating circumstance. A “trial court does not

abuse its discretion in failing to consider a mitigating factor that was not raised

at sentencing.” Anglemyer, 868 N.E.2d at 492. See also Creekmore v. State, 853

N.E.2d 523, 530 (Ind. Ct. App. 2006) (explaining that where a “defendant fails

to advance a mitigating circumstance at sentencing,” our appellate courts “will

presume that the factor is not significant,” and the defendant will be “precluded

from advancing it as a mitigating circumstance for the first time on appeal”).

During the sentencing hearing, Rice’s counsel generally asked the trial court “to

take everything in consideration” when sentencing Rice. (Tr. Vol. 3 at 246).

His counsel did not, however, specifically advance family support as a

mitigating circumstance for consideration by the trial court. Because Rice did

not raise this mitigating circumstance and, moreover, because he has failed to

show that it was both significant and clearly supported by the record, we

conclude that the trial court did not abuse its discretion when it did not identify

family support as a mitigating circumstance.

[18] Rice also argues that the trial court abused its discretion by finding lack of

remorse to be an aggravating circumstance. Specifically, he contends that trial

court’s consideration of lack of remorse as an aggravating circumstance was

improper because he “maintained his innocence[.]” (Rice’s Br. 8). Rice

contends that he “did not actively participate in the robbery and beating” of the

victim and that he “demonstrated empathy” to the victim’s family at sentencing

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 9 of 11 and expressed “regret that he had placed himself in the situation he was in.”

(Rice’s Br. 8).

[19] A trial court may consider a defendant’s lack of remorse as an aggravating

circumstance. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000).

Furthermore, “it is not error for a trial court to consider as an aggravating factor

the lack of remorse by a defendant who insists upon his innocence.” Id. “A

lack of remorse is displayed by a defendant when he displays disdain or

recalcitrance, the equivalent of ‘I don’t care.’” Cox v. State, 780 N.E.2d 1150,

1158 (Ind. Ct. App. 2002). “This is distinguished from the right to maintain

one’s innocence, i.e., ‘I didn’t do it.’” Id. “We have suggested that a

defendant's assertion of innocence may support a finding of lack of remorse if

there is sufficient independent evidence of guilt.” Hollen v. State, 740 N.E.2d

149, 159 (Ind. Ct. App. 2000) (citing Bluck v. State, 716 N.E.2d at 513 (Ind. Ct.

App. 1999) and Dockery v. State, 504 N.E.2d 291, 297 (Ind. Ct. App. 1987)),

opinion adopted, 761 N.E.2d 398 (Ind. 2002).

[20] Assuming without deciding that the trial court improperly considered Rice’s

lack of remorse to be an aggravating circumstance, any such impropriety would

not require this Court to remand for resentencing given the trial court’s finding

of another valid aggravating circumstance. If a trial court abuses its discretion

by improperly considering an aggravating circumstance, we need to remand for

resentencing only “if we cannot say with confidence that the trial court would

have imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Anglemyer, 868 N.E.2d at 491. Here, our review of the

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 10 of 11 record shows that the trial court’s discussion of aggravating circumstances

focused on Rice’s criminal history, which the trial court categorized as “quite

serious[,]” and that the trial court’s imposition of slightly enhanced sentences

was essentially based on this undisputed criminal history aggravating

circumstance. (Tr. Vol. 3 at 247). Thus, we are confident that the trial court

would have imposed the same sentence even without the lack of remorse

aggravator. Accordingly, we conclude that the trial court did not abuse its

discretion when sentencing Rice. See Georgopulos, 735 N.E.2d at 1146

(explaining that “[o]nly one aggravator is necessary for the trial court to impose

an enhanced sentence”).

[21] Affirmed.

Vaidik, C.J., and Barnes, Sr.J., concur.

Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018 Page 11 of 11