Michael Kucholick v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 8, 2012
• Docket: 12A02-1109-CR-907
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Jun 08 2012, 8:31 am regarded as precedent or cited before any court except for the purpose of CLERK of the supreme court, establishing the defense of res judicata, court of appeals and tax court

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BRADLEY K. MOHLER GREGORY F. ZOELLER Ponton & Mohler Attorney General of Indiana Frankfort, Indiana AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MICHAEL KUCHOLICK, ) ) Appellant-Defendant, ) ) vs. ) No. 12A02-1109-CR-907 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE CLINTON CIRCUIT COURT The Honorable Linley Pearson, Judge Cause No. 12C01-1003-FC-062

June 8, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Defendant, Michael Kucholick (Kucholick), appeals his conviction and

sentence for Count I, criminal recklessness, a Class C felony, Ind. Code § 35-42-2-

2(b)(1) and Count II, criminal mischief, a Class B misdemeanor, I.C. § 35-43-1-2(a)(1).

We affirm in part, reverse in part, and remand.

ISSUES

Kucholick raises two issues for review on appeal, which we restate as:

(1) Whether the evidence was sufficient to convict Kucholick of criminal recklessness

and criminal mischief beyond a reasonable doubt; and

(2) Whether Kucholick’s sentence is inappropriate in light of the nature of his

offenses and his character.

FACTS AND PROCEDURAL HISTORY

On March 3, 2010, David Lawler (Lawler) was at home, a two-story farmhouse

surrounded by open fields on County Road 900 East in Kirklin, Indiana. Lawler heard a

truck driving past his home several times. Lawler looked out his window and saw the

truck pulling around behind grain bins located off to the side of his house. Lawler

observed the truck sitting there with its lights and ignition turned off. After seeing a

silhouette, Lawler got his rifle and fired a warning shot into the air outside the back door.

Lawler waited a few minutes, and then called 911.

While on the phone with the 911 dispatch operator, Lawler saw someone reenter

the truck, then drive away. The truck turned around and headed back towards Lawler’s 2 house, slowing down. Lawler left the house to find a flashlight to identify the truck’s

license plate. The driver fired two shots from a pistol and then drove away. Although

Lawler did not see the gun, he saw the flash from the gun’s muzzle coming from the

truck’s window. Lawler told the operator that he recognized the truck as belonging to

Mindy Oliver’s (Oliver) father and that the people in the truck were probably Oliver and

her boyfriend, Kucholick, whom Lawler had never met. Lawler also told the dispatch

operator that he had recently collected a judgment of $2500 from Oliver for unpaid rent.

Police were soon dispatched to Lawler’s house and Lawler remained on the phone.

The police located a rifle shell at the back of his house. A nine millimeter bullet casing

was found near Lawler’s mailbox on County Road 900 East. Two bullet holes were

found in and around the side door to Lawler’s home. The first bullet had passed through

the screen door and into the side door; the other bullet was found lodged in the home’s

siding. The police retrieved only one of the bullets. The police also found tire tracks

near the grain bins.

The police went to Oliver’s home and identified a truck that matched the

description given by Lawler. The truck’s tires matched tracks found around Lawler’s

home. Kucholick, Oliver’s boyfriend, and Oliver were both at home. Both Kucholick

and Oliver denied visiting Lawler’s home. Kucholick admitted that he owned a nine

millimeter pistol, but told police that the pistol was at his father’s home. The police

traveled with Kucholick to his father’s home and obtained the pistol, but not the

magazine.

3 On March 5, 2010, Kucholick met with an investigator at the police station.

Kucholick admitted that he had lied to police on the night of the shooting. In particular,

Kucholick explained that he had driven with Oliver to Lawler’s home to see if Lawler’s

wife was there. After being fired upon by Lawler, Kucholick fired two shots in the air

and heard three to five more shots as he drove off. Kucholick also admitted that the

pistol had been at Oliver’s home, but he secretly retrieved it to take with him to his

father’s house during police questioning.

On March 10, 2010, the State charged Kucholick with Count I, criminal

recklessness, a Class C felony, I.C. § 35-42-2-2(b)(1); and Count II, criminal mischief, a

Class B misdemeanor, I.C. § 35-43-1-2(a)(1). On January 25 and 26, 2011, a jury trial

was held. The jury found Kucholick guilty as charged. On August 29, 2011, Kucholick

was sentenced to seven years’ incarceration at the Department of Correction on Count I,

with three years suspended, and 180 days incarceration on Count II, with both Counts to

run concurrently.

Kucholick now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Kucholick contends that there was insufficient evidence to support his conviction

on both Counts. Our standard of review for sufficiency of the evidence claims is well-

established. We do not reweigh the evidence or judge the credibility of the witnesses.

Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. Only that

4 evidence which is most favorable to the verdict as well as reasonable inferences drawn

therefrom will be considered. Id. at 213. We will affirm if the evidence and those

inferences constitute substantial evidence of probative value to support the judgment. Id.

We will reverse only if reasonable persons could not form inferences for each material

element of the crime. Id. Circumstantial evidence by itself is sufficient to support a

conviction. Id.

To convict Kucholick of criminal recklessness, the State was required to prove

beyond a reasonable doubt that he recklessly, knowingly, or intentionally performed an

act that created a substantial risk of bodily injury to another person. I.C. § 35-42-2-

2(b)(1). If a deadly weapon was used to commit that act, the offense is a Class C felony.

I.C. § 35-42-2-2(c)(2)(A). To convict Kucholick of criminal mischief, the State was

required to prove beyond a reasonable doubt that Kucholick (1) recklessly, knowingly, or

intentionally; (2) damaged or defaced another person’s property; (3) without such

person’s consent. I.C. § 35-43-1-2(a)(1).

On appeal, Kucholick argues that the evidence was insufficient to prove that the

bullets fired at Lawler’s home were from his nine millimeter pistol. Although the police

retrieved a nine millimeter bullet from Lawler’s home, the police did not order ballistic

testing. Without ballistic testing, Kucholick argues that the State failed to provide “solid

evidence to link the retrieved bullet to Kucholick’s gun.” (Appellant’s Br. p. 10). We

disagree.

5 It is well established that “circumstantial evidence will be deemed sufficient if

inferences may reasonably be drawn that enable the trier of fact to find the defendant

guilty beyond a reasonable doubt.” Green v. State, 808 N.E.2d 137, 138 (Ind. Ct. App.

2004). Here, the State presented sufficient circumstantial evidence allowing the jury to

draw a reasonable inference that Kucholick shot two bullets from his nine millimeter

pistol at Lawler’s home. Kucholick admitted to driving past Lawler’s home and firing

two shots from his nine millimeter pistol. Lawler’s 911 call was recorded and

memorialized the sound of bullets fired at his home. Nine millimeter bullets were found

in the side doors and siding of Lawler’s home. We find this circumstantial evidence

sufficient to allow a reasonable inference that Kucholick fired those shots. Although

Kucholick’s defense focused on the lack of ballistic testing, the jury weighed the

evidence and found this omission inconsequential. Thus, Kucholick’s argument is

merely an invitation to reweigh the evidence, which we decline to do on appeal. Perez,

872 N.E.2d at 212-13. We therefore conclude that Kucholick has not shown the

existence of insufficient evidence to disturb his conviction.

II. Appropriateness of the Sentence

Kucholick also challenges his sentence as inappropriate in light of the nature of

the offense and his character. Specifically, he requests this court to reduce his sentence

to no more than four years, with two years suspended to probation and the remainder

served through community corrections.

6 Kucholick was convicted of criminal recklessness, a Class C felony, and criminal

mischief, a Class B misdemeanor. A sentence for a Class C felony ranges from two to

eight years, with an advisory sentence of four years. I.C. § 35-50-2-6(a). The maximum

sentence for a Class B misdemeanor is six months. I.C. § 35-50-3-3. The trial court

sentenced Kucholick to seven years executed and three years suspended to probation on

the Class C felony as well as a concurrent sentence of six months on the Class B

misdemeanor. The trial court thus imposed an aggregate sentence three years greater

than the advisory sentence for a Class C felony.

Sentences within the statutory range are subject to review only for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875

N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if 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. Under Ind. Appellate Rule

7(B), we may revise a sentence authorized by statute if we find that it is inappropriate in

light of the nature of the offense and the character of the offender. Id. However, it is the

defendant's burden to persuade us that the sentence imposed by the trial court is

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

As the trial court expressed during Kucholick’s sentencing, we note the

recklessness of his actions. The risk that Lawler or someone inside Lawler’s home could

have been hit by gunfire cannot be ignored. Thus, the nature of the offense, by itself,

does not provide a persuasive reason to revise Kucholick’s sentence.

7 On the other hand, Kucholick’s character presents an arguable case for a lesser

sentence. He argues that imprisonment would deprive him of the opportunity to support

his family, which includes Oliver and their new-born child. Kucholick also points to his

relatively youthful age, his prior success with obtaining employment, and his lack of

criminal history, save a conviction for illegal consumption of alcohol. In contrast, the

State points to Kucholick’s deception of police officers, the partial cancellation of the

first trial day based upon the presence of residual alcohol in his system, and his apparent

lack of remorse.

While Kucholick’s lack of truthfulness and the recklessness of his criminal act

would ordinarily not persuade us to revise his sentence, the combination of his age, his

professed commitment to support his family, and his desire to be a father to his new born

daughter, weigh in favor of giving him a chance to prove such commitment. We

therefore reduce his sentence to the advisory sentence of four years, of which two years

will be suspended to probation and two years will be executed at community corrections.

CONCLUSION

Based on the foregoing, we find that there was sufficient evidence from which the

jury could conclude that Kucholick fired shots at Lawler’s residence. However, we find

Kucholick’s sentence to be inappropriate in light of his character.

Affirmed in part, reversed in part, and remanded.

DARDEN, J. concurs

NAJAM, J. concurs in part and dissents in part with separate opinion

8 IN THE COURT OF APPEALS OF INDIANA

MICHAEL KUCHOLICK, ) ) Appellant-Defendant, ) ) vs. ) No. 12A02-1109-CR-907 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

NAJAM, Judge, concurring in part and dissenting in part.

I concur in the majority’s conclusion that the trial court imposed an inappropriate

sentence in light of the nature of the offense and Kucholick’s character. See Ind.

Appellate Rule 7(B). I disagree with my colleagues, however, on their decision to revise

Kucholick’s sentence from seven years, with three years suspended, to four years, with

two years suspended to probation and two years executed at community corrections.

Instead, I would vote to impose an executed term of four years, the advisory sentence for

Kucholick’s criminal recklessness.

9 The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019

(Ind. 2012). The advisory sentence for a Class C felony is four years. Ind. Code § 35-50-

2-6. And to prove criminal recklessness, as a Class C felony, the State had to show that

Kucholick, by shooting a firearm into an inhabited dwelling, intentionally performed an

act that created a substantial risk of bodily injury to another person. I.C. § 35-42-2-

2(b)(1), (c)(3)(A).

The nature of Kucholick’s offense closely corresponds to the elements of the

crime. While trespassing onto Lawler’s property, Kucholick fired two shots towards

Lawler’s house, which was occupied and where Lawler was standing. Kucholick’s

conduct was intentional. Both shots hit the house.

The majority bases Kucholick’s new sentence on his “arguable” character. Slip

op. at 8. But the majority recognizes that Kucholick deceived police officers during their

investigation and did not accept responsibility for his actions. Kucholick also was

underage and had consumed alcohol prior to the offense. I would find Kucholick’s

character equivocal and not in itself substantial enough to warrant an executed term less

than the advisory sentence.

Accordingly, I concur in part and dissent in part.