MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 19 2020, 8:31 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston, PC Attorney General Lafayette, Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sebastian S. Smith, June 19, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2039 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff Judge Trial Court Cause No. 79C01-1609-F2-28
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 1 of 16 Case Summary [1] Sebastian S. Smith shot and seriously injured Brendon Firth during an armed
robbery. A jury found Smith guilty on six felony counts and 3 misdemeanor
counts. The trial court entered judgment of conviction only for one count of
level 2 felony robbery resulting in serious bodily injury and entered an
enhanced sentence based upon Smith’s use of a firearm during the robbery.
Smith now appeals asserting that the trial court abused its discretion in
excluding certain evidence, that his conviction and sentence enhancement
violate double jeopardy principles, and that his sentence is inappropriate. The
State cross-appeals urging that remand for amendment of the sentencing order
and abstract of judgment is necessary to provide for consecutive sentencing with
a term of imprisonment imposed in another county. We disagree with Smith
but agree with the State. Accordingly, we affirm Smith’s conviction and
sentence, but remand for amendment of the sentencing order and abstract of
judgment.
Facts and Procedural History [2] The evidence most favorable to Smith’s conviction reveals that on August 10,
2016, Smith, Tre’velle Young, and some other individuals were at Smith’s
residence smoking “[w]eed and some other stuff,” and discussing robbing a
drug dealer, Ryan Wall, who lived nearby. Tr. Vol. 2 at 108. Smith and Young
later went to Wall’s apartment under the pretext of buying drugs in order to
“feel the place out.” Id. Wall, his girlfriend, and two of Wall’s friends, one of
who was Brendon Firth, were present. While at Wall’s apartment, Smith
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 2 of 16 purchased Xanax from Wall and spoke to him about the possibility of selling
him a television. Smith told Wall that he would return later with the television.
[3] Smith and Young went back to Smith’s residence and planned how the robbery
would take place. They then returned to Wall’s apartment with a television.
The television sale was just a “sham” to get back into Wall’s apartment. Id. at
113. As Wall was checking to see if the television worked, Smith instructed
Young to go down to the car to retrieve “the remote.” Id. at 80. This was
“code” instructing Young to retrieve a gun from the car. Id. at 145. After
Young returned with a gun, Smith pulled out his handgun and pointed it
around the room at the people. Smith yelled at Wall, “Where is the sh*t at?”
and ordered Wall to give him “everything [he] had.” Id. at 94, 171. Firth stood
up, pulled out a knife, and stepped toward Smith telling him that he “wasn’t
getting anything from anyone.” Id. at 171. Wall told Firth that they should just
comply with Smith’s demands and “giv[e] him everything[,]” and Wall tossed a
Crown Royal bag full of pills onto the coffee table toward Smith. Id. Smith
looked at Wall, and back at Firth, and then shot Firth in the chest. After
shooting Firth, Smith grabbed the bag full of pills, threw it to Young, and ran
out of the apartment. Firth suffered life-threatening injuries as a result of the
gunshot.
[4] The State initially charged Smith with one count of level 2 felony robbery
resulting in serious bodily injury. The State subsequently added charges for
level 3 felony conspiracy to commit robbery, level 3 felony criminal
confinement, class A misdemeanor theft, level 3 felony battery, two counts of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 3 of 16 level 5 felony battery, class A misdemeanor carrying a handgun without a
license, and level 5 felony carrying a handgun without a license. The State also
requested a sentence enhancement due to Smith’s use of a firearm during the
commission of his offenses. In September 2018, the State also added one count
of level 1 felony attempted murder.
[5] A jury trial was held in June 2019. The jury found Smith not guilty of
attempted murder, but guilty on all other counts. The trial court entered
judgment of conviction solely on the level 2 robbery count and found that the
State had proved the elements of the use-of-a-firearm sentence enhancement
beyond a reasonable doubt. The trial court sentenced Smith to twenty-five
years for the level 2 felony, enhanced by fifteen years for the use of a firearm,
with thirty-five years executed and five years suspended to probation. This
appeal ensued. We will provide additional facts in our discussion when
necessary.
Discussion and Decision
Section 1—The trial court did not abuse its discretion in excluding certain evidence. [6] Smith first contends that the trial court abused its discretion in excluding certain
evidence. We review the trial court’s ruling on the admission or exclusion of
evidence for an abuse of discretion. Johnson v. State, 38 N.E.3d 658, 660-61 (Ind.
Ct. App. 2015), trans denied. We reverse only where the decision is clearly
against the logic and effect of the facts and circumstances. Id. at 661. Even if
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 4 of 16 the trial court’s decision was an abuse of discretion, we will not reverse if the
admission or exclusion constituted harmless error. Id.
[7] Although Smith attempted to serve Wall with several subpoenas to appear at
trial, Wall failed to appear as a witness. During trial, Smith sought to elicit
testimony from a police detective, over the State’s objection, that on the night of
the robbery, Wall told the detective that Smith and Firth had engaged in a
struggle prior to the shooting. Smith claimed that Wall’s out-of-court statement
supported his claim of self-defense, and was admissible pursuant to the excited
utterance exception to the hearsay rule. The trial court excluded the evidence
as inadmissible.
[8] “Hearsay” is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). As a general rule, hearsay evidence is
inadmissible. Ind. Evidence Rule 802. One exception to the hearsay rule is the
“excited utterance” exception contained in Evidence Rule 803(2). This rule
provides that “[a] statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused” is not
excluded by the hearsay rule, even if the declarant is available as a witness.
Ind. Evidence Rule 803(2). In order for a hearsay statement to be admitted as
an excited utterance, three elements must be present: (1) a startling event has
occurred; (2) a statement was made by a declarant while under the stress of
excitement caused by the event; and (3) the statement relates to the event.
Boatner v. State, 934 N.E.2d 184, 186-87 (Ind. Ct. App. 2010). “This is not a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 5 of 16 mechanical test, and the admissibility of an allegedly excited utterance turns on
whether the statement was inherently reliable because the witness was under
the stress of the event and unlikely to make deliberate falsifications.” Id. “The
heart of the inquiry is whether the declarant was incapable of thoughtful
reflection.” Id. (citation omitted). While the amount of time that has passed is
not dispositive, “a statement that is made long after the startling event is usually
less likely to be an excited utterance.” Id.
[9] Here, the record does not support a claim that Wall’s statement “was inherently
reliable” because he was “under the stress of the event” and therefore “unlikely
to make deliberate falsifications.” See id. Smith vaguely asserts that the
statement was made “shortly” after the shooting, Appellant’s Br. at 12, but the
record is unclear as to exactly when Wall spoke to the detective. 1 The State
emphasized that the record indicated that Wall “spoke to multiple officers” well
before he made the statement in question, and there was no evidence that Wall
“was under the stress of the event still” when speaking to the detective. Tr. Vol.
3 at 108. Additionally, the record indicates that Wall, a known drug dealer,
and the other witnesses present deliberately lied to and concealed evidence from
the officers who arrived on the scene within minutes of the shooting. This cuts
against any assertion that Wall was incapable of thoughtful reflection and
unlikely to make deliberate falsifications in his subsequent statement. Under
1 Smith’s attorney stated that he believed the statement was made “within an hour or two” of the shooting, but he admitted he was unsure. Tr. Vol. 3 at 108.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 6 of 16 the circumstances, we cannot say that the trial court abused its discretion in
excluding Wall’s out-of-court statement as inadmissible hearsay.
[10] In any event, we agree with the State that any error in the exclusion of Wall’s
statement was harmless at most. Errors in the exclusion of evidence are
considered harmless unless they affect the substantial rights of a party.
Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006). To determine
whether an error in the exclusion of evidence affected a party’s substantial
rights, we assess the probable impact of the evidence on the jury. Id. Smith
sought to introduce Wall’s statement regarding a struggle with Firth to support
his claim of self-defense to the charge of attempted murder, for which he was
acquitted. This self-defense theory had no bearing on his conviction for robbery
resulting in bodily injury. 2 Accordingly, Smith cannot demonstrate that any
error in the exclusion of Wall’s out-of-court statement affected his substantial
rights.
Section 2 – Smith’s robbery conviction and sentencing enhancement do not violate double jeopardy principles. [11] Next, Smith argues that his conviction for level 2 felony robbery and the use-of-
a-firearm sentence enhancement attached to that conviction violate Indiana’s
double jeopardy principles. We review questions of double jeopardy de novo,
giving no consideration to the trial court’s decision below. Goldsberry v. State,
2 Smith’s theory of defense regarding the robbery was that Young was the perpetrator of, and possessed the requisite mens rea for, the robbery, and that Smith was essentially at the wrong place at the wrong time. Tr. Vol. 3 at 160, 171-73.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 7 of 16 821 N.E.2d 447, 458 (Ind. Ct. App. 2005). Article 1, Section 14 of the Indiana
Constitution provides: “No person shall be put in jeopardy twice for the same
offense.” This provision was intended to “prevent the State from being able to
proceed against a person twice for the same criminal transgression.” Richardson
v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under Richardson, “two or more
offenses are the same offense ... if, with respect to either the statutory elements
of the challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” Id.
[12] While Richardson is aimed primarily at multiple convictions, our supreme court
has recognized a series of rules of statutory construction and common law that
supplements the constitutional protections afforded by the Indiana Double
Jeopardy Clause. Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (citing Pierce v.
State, 761 N.E.2d 826, 830 (Ind. 2002)). These rules prohibit conviction and
punishment “for an enhancement of a crime where the enhancement is imposed
for the very same behavior or harm as another crime for which the defendant
has been convicted and punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J.,
concurring). The court has explained that claims of multiple enhancements
require statutory interpretation, and the crux of these cases revolves around
what, if any, legislative direction has been given. Nicoson v. State, 938 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 8 of 16 660, 662-63 (Ind.2010). 3 In other words, multiple enhancements are
permissible if the legislature clearly intends it to be so. See id.
[13] Smith was convicted of robbery resulting in serious bodily injury. He argues
that the “serious bodily injury element” of his offense “was caused by and as a
direct result of use of a firearm” during the crime. Appellant’s Br. at 16.
Accordingly, he maintains that the firearm sentence enhancement was imposed
for “the very same behavior or harm” that supported his conviction for robbery
resulting in serious bodily injury, and thus he claims that the sentence
enhancement violates double jeopardy principles and must be set aside. Id.
[14] Our supreme court’s decision in Nicoson is instructive here. In Nicoson, the
defendant was convicted of criminal confinement as a class B felony because he
was armed with a deadly weapon. Nicoson, 938 N.E.2d 660, 662-63. The trial
court attached an additional fixed five-year term to his sentence pursuant to
Indiana’s Firearm Enhancement Statute, Indiana Code Section 35-50-2-11,
because the defendant “used” a firearm while committing his offense. Id. at
661. That section provides that upon proof beyond a reasonable doubt “that
3 Another panel of this Court has specifically determined that firearm sentencing enhancements do not implicate double jeopardy. Specifically, the panel in Cooper v. State, 940 N.E.2d 1210 (Ind. Ct. App. 2011), trans. denied, noted that several jurisdictions have concluded that firearm sentencing enhancements similar to ours do not raise double jeopardy concerns because the enhancement is merely a cumulative punishment rather than a separate offense. Id. at 1215 (collecting cases). The Cooper panel agreed with those jurisdictions in recognizing that sentencing enhancements are not offenses for double jeopardy purposes. Id. at 1217. While we acknowledge the general principle that sentencing enhancements do not constitute separate offenses, controlling precedent of our supreme court directs that we must still consider whether the firearm sentencing enhancement, as applied here, runs afoul of Indiana’s supplemental prohibition “against double enhancements ‘absent explicit legislative direction.’” Nicoson, 938 N.E.2d at 663.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 9 of 16 the person knowingly or intentionally used a firearm in the commission of the
offense under subsection (d), the court may sentence the person to an additional
fixed term of imprisonment of between five (5) years and twenty (20) years.”
Ind. Code § 35-50-2-11. The Nicoson court determined, among other things,
that the use-of-a-firearm sentence enhancement did not run afoul of double
jeopardy principles. Id. at 661, 662-63, 665.
[15] In reaching that result, the court emphasized that
[t]he “extra” five years about which Nicoson complains is not part of these provisions in the confinement statutes that authorize higher classes of felonies to be charged. Rather, it appears in the part of the Code on penalties. The section at issue authorizes an additional fixed sentence for the underlying offense where a firearm is used.
....
Here, the State initially needed to prove only that Nicoson committed confinement while armed with a deadly weapon. Ind. Code § 35-42-3-3. To apply the additional fixed five-year term the statute requires the State to prove Nicoson “used” a firearm in commission of his offense. Ind. Code § 35-50-2-11. The record clearly reveals that Nicoson was not only armed with a deadly weapon, but that he used the firearm—firing into the air, ordering the victims from the vehicle with it, and firing at the victims’ vehicle as they drove away.
Id. at 664, 665.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 10 of 16 [16] As in Nicoson, the sentence enhancement about which Smith complains does
not concern, in any way, an elevation of a statutory offense to a higher class of
felony. The sentence enhancement that applies to Smith’s use of a firearm in
the commission of his offense is embodied in the penalties provision of the
Indiana Code in which the legislature has specifically provided a harsher
penalty based on the use of a firearm. The legislature’s intent is clear that
certain criminal offenses committed with firearms, including those felonies
resulting in death or serious bodily injury, are to receive additional punishment.
Ind. Code § 35-50-2-11(b)(1).
[17] Moreover, Smith was charged with the crime of robbery as a level 2 felony. An
individual commits that offense if he or she knowingly or intentionally takes
property from another person or from the presence of another person by using
or threatening the use of force on any person, or by putting any person in fear,
and “it results in serious bodily injury to any person other than a defendant.”
Ind. Code § 35-42-5-1. Proof of that offense did not require any showing that
Smith used a weapon, and the jury was not required to determine that Smith
used a firearm in the commission of the underlying offense.
[18] In other words, Smith was convicted of a single offense, and only one sentence
enhancement was imposed as a result of his use of the firearm in the
commission of the crime. Thus, we are not concerned with multiple
enhancements. Contrary to Smith’s suggestion, it is of no moment that his use
of a firearm caused the serious bodily injury relied upon for both the underlying
offense and the enhancement. If the legislature intended that offenses resulting
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 11 of 16 in serious bodily injury alleged to have been committed with a firearm were to
be excepted from the use-of-a-firearm sentence enhancement, it could have
drafted the statute to reflect that intent. Instead, the legislature specifically
included all felonies “under IC 35-42” that result in “serious bodily injury.”
Ind. Code § 35-50-2-11. “[T]he inclusion of that requirement renders it
virtually certain that the legislature would have foreseen that many of those
injuries would be inflicted by the use of firearms.” Cooper v. State, 940 N.E.2d
1210, 1217 (Ind. Ct. App. 2011), trans. denied. For the foregoing reasons, we
conclude that no double jeopardy violation occurred, and we reject Smith’s
contention that his sentence enhancement must be set aside.
Section 3 – Smith had not met his burden to demonstrate that his sentence is inappropriate. [19] Smith finally requests that we reduce his sentence pursuant to Indiana
Appellate Rule 7(B), which provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence “is inappropriate in light of the nature of the offense and the character
of the offender.” The defendant bears the burden to persuade this Court that
his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080
(Ind. 2006). Indiana’s flexible sentencing scheme allows trial courts to tailor an
appropriate sentence to the circumstances presented, and the trial court’s
judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to
“leaven the outliers.” Id. at 1225. Whether we regard a sentence as
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 12 of 16 inappropriate at the end of the day turns on “our sense of the culpability of the
defendant, the severity of the crime, the damage done to others, and myriad
other facts that come to light in a given case.” Id. at 1224. “The question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
the question is whether the sentence imposed is inappropriate.” Fonner v. State,
876 N.E.2d 340, 344 (Ind. Ct. App. 2007).
[20] Regarding the nature of the offense, the advisory sentence is the starting point
that the legislature has selected as an appropriate sentence for the crime
committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Smith was convicted
of level 2 felony robbery resulting in serious bodily injury, and he was found to
have knowingly or intentionally used a firearm during the commission of his
offense. The sentencing range for a level 2 felony is between ten and thirty
years, with an advisory sentence of seventeen and a half years. Ind. Code § 35-
50-2-4.5. If a person knowingly or intentionally uses a firearm during the
commission of certain offenses, the trial court may impose an additional fixed
term of imprisonment between five and twenty years. Ind. Code § 35-50-2-11.
The trial court here imposed a twenty-five-year sentence for Smith’s robbery
conviction, enhanced by fifteen years for his use of a firearm, resulting in an
aggregate sentence of forty years (thirty-five years executed and five years
suspended to probation), which was well below the maximum fifty-year
allowable sentence.
[21] When reviewing the nature of the offense, this Court considers “the details and
circumstances of the commission of the offense.” Washington v. State, 940 Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 13 of 16 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Smith urges that,
although any robbery is a serious offense, the current robbery was not so
egregious as to justify the sentence imposed. We disagree. There was evidence
in the record that not only was Smith an active participant in pointing a loaded
gun at a group of people, placing them in fear, and taking property, but he also
planned and conspired to commit this crime in advance. Indeed, there was
evidence to suggest that Smith was the mastermind of this drug heist gone
horribly wrong. It is disingenuous to suggest that Smith was unaware that
committing an armed robbery of a known drug dealer and his friends was not
likely to result in an escalation of violence, namely, the serious bodily injury
suffered by Firth. The details and circumstances of the commission of this
offense do not persuade us that a sentence reduction is warranted.
[22] Turning to Smith’s character, we note that the character of the offender is found
in what we learn of his life and conduct. Croy v. State, 953 N.E.2d 660, 664
(Ind. Ct. App. 2011). Included in that assessment is a review of an offender’s
criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),
trans. denied (2016). Smith has an extensive criminal history beginning as a
juvenile offender when he committed grand theft in Florida. At the young age
of thirty, he had already amassed multiple felony convictions (theft, auto theft,
possession of methamphetamine, possession of marijuana with a prior
conviction, burglary) and seven misdemeanor convictions. As noted by the trial
court, Smith’s daily drug use (heroin, methamphetamine, painkillers) has
unfortunately “led to a life of crime,” and despite numerous arrests,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 14 of 16 convictions, and opportunities at probation and rehabilitation, there has been
“just no compliance anywhere.” Tr. Vol. 4 at 25. Smith has demonstrated utter
“disdain for the court,” failing to appear before the court when ordered at least
sixteen times, and he has just continued to do “whatever the heck [he] wanted.”
Id. at 25-26. Indeed, Smith committed the current offense shortly after release
on his own recognizance from the Benton County Jail, where he was being held
on pending burglary and habitual offender charges. Nothing we have learned
about Smith’s character persuades us that the sentence imposed by the trial
court should be reduced. Smith has not met his burden to demonstrate that his
sentence is inappropriate in light of the nature of his offense or his character.
Section 4 – Remand is necessary for the trial court to correct its sentencing order. [23] The State cross-appeals and asserts that remand is necessary for the trial court
to correct its sentencing order. Specifically, the State points out that the order
does not address the fact that Smith committed the instant offense while
released on his own recognizance during the pendency of his Benton County
case, cause number 04C01-1512-F4-229, and that pursuant to statute, the
sentences imposed in both causes must be ordered to run consecutively.
Indiana Code Section 35-50-1-2 provides in relevant part:
(e) If, after being arrested for one (1) crime, a person commits another crime:
(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime; or
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 15 of 16 (2) while the person is released: (A) upon the person’s own recognizance; or (B) on bond;
the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.
[24] The record indicates that Smith committed the current crime while released on
his own recognizance from the Benton County Jail where he had been held on
burglary charges. Accordingly, pursuant to statute, the terms of imprisonment
for the current crime and his Benton County crime shall be served
consecutively. 4 Therefore, we remand with instructions for the trial court to
correct the sentencing order and abstract of judgment to reflect that the terms of
imprisonment for the current conviction and the Benton County conviction
shall be served consecutively. The trial court’s judgment of conviction and
sentence is affirmed in all other respects.
[25] Affirmed and remanded.
Bailey, J., and Altice, J., concur.
4 At the time of sentencing, Smith had already been convicted of level 4 felony burglary and found to be a habitual offender in the Benton County cause, and was serving the imposed fourteen-year executed sentence in the Department of Correction.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020 Page 16 of 16