Nicholas A. Rushlow v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 2, 2015
• Docket: 20A03-1408-CR-310
• Status: Published

Opinion

MEMORANDUM DECISION Apr 02 2015, 8:31 am Pursuant to Ind. Appellate Rule 65(D), 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 Donald R. Shuler Gregory F. Zoeller Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Nicholas A. Rushlow, April 2, 2015

Appellant-Defendant, Court of Appeals Case No. 20A03-1408-CR-310 v. Appeal from the Elkhart Circuit Court. The Honorable Terry C. Shewmaker, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 20C01-1306-FA-28

Barteau, Senior Judge

Statement of the Case [1] The State accused Nicholas A. Rushlow of going to a house in the middle of

the night and shooting at its occupants. Rushlow appeals his convictions and

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 1 of 13 1 aggregate sentence for attempted murder, a Class A felony, and criminal 2 recklessness, a Class C felony. We affirm.

Issues [2] Rushlow raises three issues, which we restate as:

I. Whether the trial court abused its discretion in denying Rushlow’s motion to hire an expert witness. II. Whether the evidence is sufficient to sustain Rushlow’s convictions. III. Whether Rushlow’s sentence is inappropriate in light of the nature of the offense and the character of the offender.

Facts and Procedural History [3] In June 2010, James Curtis complained to the police that Rushlow had

physically attacked him. The State filed criminal charges against Rushlow, and

James testified against him. Later, during the first week of October 2010,

James’ wife, Ashley Curtis, was walking in her neighborhood when she saw

Rushlow sitting on the steps of a house. Rushlow told her, “It’s not over with.”

Tr. p. 338.

[4] In the very early morning hours of October 11, 2010, James and Ashley were

asleep in their house in Elkhart. The house had an enclosed front porch with a

1 Ind. Code §§ 35-42-1-1 (2007), 35-41-5-1 (1977). 2 Ind. Code § 35-42-2-2 (2006).

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 2 of 13 door, and inside the porch one could enter the house through a glass front door

with an attached storm door. Ashley’s nine-year-old son, James’ cousin

Johnny, Johnny’s girlfriend Tina, Tina’s son, and James’ mother were also in

the house. James’ mother slept on the ground floor of the house on a couch not

far from the front door.

[5] James and Ashley were awakened by someone pounding on their front door.

Ashley came downstairs with one of her dogs. As she came down the steps, she

heard a person on the porch yell, “Elkhart City Police, open up. We have [a]

warrant for Jimmy.” Id. at 348. Ashley loudly said, “Give me a moment,”

because she needed to take her dog back upstairs. Id. at 349.

[6] At that point, James turned on the lights for the stairway and the front room

and began walking down the stairs. He heard a person on the porch claiming to

be the police and claiming to have a warrant for his arrest.

[7] Ashley started back up the stairs. As she did so, she turned around to order her

dog, who was at the front door, to follow her. She looked out the front door

and saw Rushlow. James, who was still on the stairs, also saw Rushlow,

carrying a handgun. James saw Rushlow point the gun at him, heard a shot,

and felt the bullet hit his head.

[8] Next, James pushed Ashley onto the stairs and shielded her body with his.

Ashley heard five gunshots. James urged her to go upstairs. She did so and

called 911 after checking on her son. The 911 operator asked Ashley who shot

her, and she identified Rushlow.

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 3 of 13 [9] Meanwhile, James and Ashley’s neighbor, Laura Smith, heard the gunshots,

followed by the sound of “shoes pounding the pavement,” as if a person was

running very quickly. Id. at 421. Another neighbor, Charles Landis, was

awakened by the gunshots. He looked out a window and saw a person running

away from where Landis believed the shots had been fired. The person was

wearing a dark-colored hooded sweatshirt.

3 [10] Police were dispatched to James and Ashley’s house. Sergeant Nathan Lanzen

arrived at 1:37 a.m. He saw that the porch door’s latch was broken. Inside the

porch, he saw that the top half of the front door’s glass had been shattered.

[11] Sergeant Lanzen spoke with James and Ashley. James had a “graze wound”

on top of his head. Id. at 301. Sergeant Lanzen also saw five bullet holes in a

wall along the stairwell. James told Sergeant Lanzen that Rushlow was the

shooter. Sergeant Lanzen notified other officers, who found Rushlow at home.

[12] Later on October 11, Smith took her dog for a walk, going in the same direction

as the running noises she had heard during the night. After walking for a few

blocks, she saw a row of bushes. Someone had discarded a black hooded

sweatshirt and a black glove under a bush. Next, she looked under a different

bush and found a handgun. Smith called the police. Officer Chris Bella arrived

3 Sergeant Lanzen was a patrolman at the time of the incident and was promoted prior to the trial. We refer to him as Sergeant.

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 4 of 13 and collected the items. The police found another, matching black glove in the

same area the next day.

[13] After collecting the items that Smith had pointed out, Officer Bella went to

James and Ashley’s house to look for spent bullets. James tore open the

stairway wall where the bullets had struck, and Officer Bella found several

bullet fragments.

[14] The State tested the handgun, a .38 special, in comparison with the bullet

fragments. The State determined, and Rushlow stipulated at trial, that one of

the bullet fragments that was found in the wall of James and Ashley’s house

could have been fired from the .38 special. The other fragments were

“unsuitable for microscopic examination.” Id. at 492.

[15] The State collected a DNA sample from Rushlow and compared it to DNA

found on the sweatshirt. The sweatshirt had DNA from three different persons,

two females and one male. Rushlow’s DNA sample matched the male

contributor “to a degree of scientific certainty.” Id. at 575. In addition, one of

the unknown females was genetically related to Rushlow and the other

unknown female. During this time period, Rushlow lived with his girlfriend,

and they had a young daughter together. Finally, testing revealed that Rushlow

could not be ruled out as a contributor to a mixture of DNA found on one of

the gloves.

[16] On June 6, 2013, the State charged Rushlow with attempted murder as to

James and criminal recklessness as to Ashley. Rushlow was indigent, but his

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 5 of 13 family hired an attorney to represent him. On May 30, 2014, almost a year

after the State filed the charges, and almost a month before trial, Rushlow filed

a motion to allocate public funds for him to hire a DNA expert. After a

hearing, the trial court denied Rushlow’s motion.

[17] The case was tried to a jury. During trial, Rushlow objected to the admission of

any and all DNA evidence, noting that the court had denied his request to hire

a DNA expert using public funds. The court reaffirmed its decision to deny

Rushlow’s request for funds to hire an expert and overruled Rushlow’s

objection. Later during the trial, Rushlow conceded that the hooded sweatshirt

belonged to him.

[18] The jury determined that Rushlow was guilty as charged. The court sentenced

Rushlow to the maximum aggregate sentence of fifty-eight years, to be served

consecutively to his sentence in a federal case that preceded the current charges.

This appeal followed.

Discussion and Decision I. Appointment of Expert Witness [19] Rushlow claims the trial court erred by denying his request to hire a DNA

expert at public expense because it unduly hampered his defense, and the

subsequent admission of the DNA evidence at trial violated his right to due

process of law. Decisions about expert services for indigent defendants are

committed to the trial court’s sound discretion, and such decisions are not

overturned absent an abuse of that discretion. Jackson v. State, 758 N.E.2d 1030,

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 6 of 13 1034 (Ind. Ct. App. 2001). A defendant who requests funds for an expert

witness has the burden of demonstrating the need for that expert. Tidwell v.

State, 644 N.E.2d 557, 560 (Ind. 1994). The decision must be made on a case-

by-case basis. Id.

[20] The central inquiries for a trial court in deciding whether to allocate expert

witness funds to a defendant are whether the expert witness’s services are

necessary to assure an adequate defense, and whether the defendant specifies

precisely how he or she would benefit from the requested expert services. Scott

v. State, 593 N.E.2d 198, 200 (Ind. 1992). The following considerations, among

others, are relevant to those inquiries: (1) whether the expert’s services bear on

an issue which is generally regarded to be within the common experience of the

average person, or on an issue for which expert opinion would be necessary; (2)

whether the requested services could be performed by counsel; (3) whether it is

improbable that the proposed expert could demonstrate that which the

defendant desires; (4) whether the purpose of the expert appears to be

exploratory only; (5) whether the expert services will go toward answering a

substantial question or simply an ancillary one; (6) the seriousness of the

charge(s) at issue and the severity of the possible penalty; (7) the complexity of

the case; (8) the proposed cost of the expert services; (8) the timeliness of the

defendant’s request; (9) whether the defendant is making the request in good

faith; (10) whether the expert’s testimony would be admissible at trial; and (11)

whether the evidence for which the expert’s services are requested is cumulative

of other evidence. Id. at 200-01.

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 7 of 13 [21] Rushlow argues that the trial court erred because the topic for which he

requested expert assistance, DNA testing, is beyond the common experience of

the average person and cannot be performed by counsel. He notes that he was

facing serious charges and potentially severe penalties. Finally, he asserts that

he explained to the trial court that he needed an expert witness to determine

whether the State’s expert’s testing was performed accurately and without bias.

[22] Rushlow’s points are counterbalanced, and outweighed, by the following

factors. The State filed charges against Rushlow in June 2013, but Rushlow did

not file his motion for public funds to hire an expert witness until June 2014, a

year later. The trial court deemed his motion untimely, as it was filed only a

month before the scheduled trial date. Rushlow did not identify a proposed

expert witness or provide any estimate of how much the expert’s services would

cost. Further, Rushlow’s purpose appears to have been merely exploratory,

because he failed to specify any precise benefit to be gained by hiring his own

expert. Finally, the DNA evidence—which was intended to connect Rushlow

to the hooded sweatshirt and a glove, and thereby tie him to the scene of the

crimes—was merely cumulative of James and Ashley’s identifications of

Rushlow and of Rushlow’s own testimony that the sweatshirt was his. The trial

court did not abuse its discretion in denying Rushlow’s request to hire an expert

witness at public expense. See Kocielko v. State, 938 N.E.2d 243, 255 (Ind. Ct.

App. 2010) (no abuse of discretion in denying defendant’s motion to hire DNA

expert at public expense where the DNA evidence was cumulative and the

defendant “failed to provide specifics as to identity, cost, and the precise benefit

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 8 of 13 to be gained”), rev’d in part on other grounds on rehearing, 943 N.E.2d 1282 (2011),

trans. denied.

II. Sufficiency of the Evidence [23] Rushlow claims the State failed to prove that he committed the crimes at issue.

When we review the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). We neither reweigh

the evidence nor resolve questions of credibility when determining whether

identification evidence is sufficient. Rutherford v. State, 866 N.E.2d 867, 871

(Ind. Ct. App. 2007). We will affirm if the probative evidence and reasonable

inferences drawn from the evidence could have allowed the trier of fact to find

the defendant guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d

124, 126 (Ind. 2005).

[24] There is ample evidence from which a reasonable jury could have determined

beyond a reasonable doubt that Rushlow committed the crimes. He had a

grudge against James for complaining about him to the police and for testifying

against him in court. Rushlow threatened Ashley a week before the crimes

occurred.

[25] In addition, Ashley told the 911 operator that Rushlow was the shooter, James

told Sergeant Lanzen that Rushlow was the shooter, and both Ashley and

James identified Rushlow in court as the shooter. Rushlow claims that the

validity of their identifications is questionable, but “the reliability of particular

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 9 of 13 evidence must be gauged by the fact-finder.” Gorman v. State, 968 N.E.2d 845,

850 (Ind. Ct. App. 2012), trans. denied. Any potential errors in eyewitness

identification must be resolved during trial, not on appeal. Id.

[26] Furthermore, an eyewitness, Landis, saw a person in a dark hooded sweatshirt

run away from the site of the shooting. The following morning, a black

sweatshirt and a .38 special were found several blocks from James and Ashley’s

house. Testing revealed that the .38 special could have fired one of the shots

into the house, and Rushlow’s DNA was found on the sweatshirt. Rushlow

admitted at trial that the sweatshirt was his. He testified that someone stole the

sweatshirt out of his car three weeks prior to the shooting, but that is a matter of

witness credibility for the finder of fact to weigh. The State presented sufficient

evidence of identity to sustain Rushlow’s convictions.

III. Appropriateness of Sentence [27] Rushlow asserts that his sentence is too high and asks this Court to revise it.

Article 7, section 4 of the Indiana Constitution authorizes independent

appellate review of a sentence even if the trial court acted within its discretion

in imposing a sentence. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This

review is implemented through Appellate Rule 7(B), which states that we may

revise a sentence, even if authorized by statute, if “after due consideration of the

trial court’s decision,” the sentence is inappropriate “in light of the nature of the

offense or the character of the offender.”

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 10 of 13 [28] The principal role of such review is to attempt to leaven the outliers. Knapp v.

State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S. Ct. 978 (2015).

“Sentence review under Appellate Rule 7(B) is very deferential to the trial

court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). In fact, Appellate Rule

7(B) preserves for the trial court the central role in sentencing. Kucholick v. State,

977 N.E.2d 351, 351 (Ind. 2012). The burden is on the defendant to persuade

the appellate court that his or her sentence is inappropriate. Conley, 972 N.E.2d

at 864.

[29] We first note Rushlow’s sentence. At the time he committed his crimes, a Class

A felony was punishable by imprisonment for a fixed term of between twenty

and fifty years, with the advisory sentence being thirty years. Ind. Code § 35-

50-2-4 (2005). In addition, a Class C felony was punishable by imprisonment

for a fixed term of between two and eight years, with the advisory sentence

being four years. Ind. Code § 35-50-2-6 (2005). The trial court sentenced

Rushlow to the maximum sentences of fifty and eight years, to be served

consecutively. Further, the court directed that Rushlow would serve his

aggregate sentence consecutively to his sentence in a federal case that preceded

the current charges.

[30] Turning to the nature of the offense, Rushlow argues that James’ injury was

“minimal” and that the evidence was not more unfavorable to him than what is

“generally necessary to establish the offenses of attempted murder and criminal

recklessness.” Appellant’s Br. p. 17. We do not agree. Rushlow’s acts placed

several persons in danger. He approached a home in the middle of the night

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 11 of 13 and repeatedly fired a handgun into it. In so doing, he endangered not only

James and Ashley, but also their guests, including James’ mother, who was

sleeping in a room near the front door. Rushlow clearly planned his attack

because he pretended to be a police officer in order to lure people to the door.

In addition, we share the trial court’s concern that Rushlow attacked James and

Ashley in retaliation for James’ prior testimony in court, which is also an attack

on the judicial system. Finally, Rushlow abandoned the handgun in a bush

along a street, where it could have been found by anyone, including children.

[31] As for the character of the offender, Rushlow has an extensive criminal record.

As a juvenile, he accrued adjudications for acts that would have constituted

criminal recklessness and burglary if they had been committed by an adult. As

an adult, Rushlow was convicted of possession of a bomb, a Class C felony,

false informing, a Class B misdemeanor, and nonsupport of a dependent child,

a Class C felony, in Indiana state courts. In addition, he was convicted in

federal court of use of a firearm during a crime of violence and of possession of

a firearm while being an unlawful user of a narcotic. He has accrued his

convictions on a frequent basis, demonstrating an inability to avoid

incarceration for more than one or two years at a time. In addition, he has been

placed on probation twice as an adult and failed to successfully complete either

term. He was on federal probation when he committed the current crimes, and

that probation was revoked.

[32] Rushlow argues that positive factors include his employment history and his

involvement with his son’s little league team. However, his incarcerations have

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 12 of 13 kept him from being employed for any significant amount of time and have

limited his involvement in his children’s lives.

[33] Rushlow has failed to carry his burden of demonstrating that his sentence is

inappropriate.

Conclusion [34] For the reasons stated above, we affirm the judgment of the trial court.

[35] Affirmed.

Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015 Page 13 of 13