MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 25 2018, 10:36 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael Frischkorn Curtis T. Hill, Jr. Fortville, Indiana Attorney General of Indiana
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Spencer Michael Spielman, May 25, 2018 Appellant-Defendant, Court of Appeals Case No. 30A05-1709-CR-2096 v. Appeal from the Hancock Superior Court State of Indiana, The Honorable Terry Snow, Judge Appellee-Plaintiff Trial Court Cause No. 30D01-1610-MR-1819
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 1 of 17 Case Summary
[1] Spencer Spielman appeals his convictions for murder and Level 5 felony
robbery, as well as his aggregate sentence of fifty-five years in prison with five
years suspended to probation. On appeal, Spielman raises the following issues
for our review:
1. Was his confession improperly admitted into evidence?
2. Did the State present sufficient evidence to support the convictions?
3. Do the convictions for both murder and robbery violate principles of double jeopardy under the Indiana Constitution?
4. Is Spielman’s sentence inappropriate in light of the nature of the offense and his character?
[2] We affirm.
Facts & Procedural History
[3] When Patricia Dresser returned to her Greenfield home after work on October
12, 2016, she discovered that someone had broken into her home, where she
lived alone. Beginning around 7:30 p.m. and throughout the evening, Dresser
communicated with friends and family regarding the break-in. She indicated
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 2 of 17 that she believed it was her son Nick’s1 “loser friend” Spencer, who had the
code to her garage. Transcript Vol. V at 133. Dresser stated that she believed he
was trying to find a valuable watch that she had hidden and that he instead took
alcohol and left a mess. Around 7:40 p.m., Dresser took several pictures on her
iPad to document the break-in. These pictures were of watch boxes, an open
cabinet in the kitchen, and a grate knocked off the bottom of the refrigerator.
Instead of calling the police, Dresser told her friends that she was just going to
change the code to the garage door.
[4] Phone records show that Dresser tried to call Spielman at 9:02 p.m. and then
sent him text messages at 9:49 p.m. and 12:33 a.m. In her first text, Dresser
wrote: “Don’t test me. I know you were at my house today. Don’t ever break
into my house again. I will have you arrested and thrown into jail. This is a
courtesy.” Vol. of Exhibits, State’s Exhibit 101. She wrote in the 12:33 a.m. text
to Spielman: “Oh, I have you [on] video. DO NOT TRY IT AGAIN”. Id.
[5] After midnight, Dresser indicated in messages to others that she was trying to
sleep but was having trouble. She sent her last message to someone at 12:43
a.m., stating: “Ok, kinda scared. Can’t sleep, worried what crazed, drug
addicted, strung out kids might do. I’m all locked down, but apparently
worried. I just want a Peaceful Easy Feeling, which I’m not feeling.” Vol. of
1 Dresser had two adult sons. Nick, her youngest son, had left for the military several months earlier and was good friends with Spielman. Dresser had a history of trying to help Spielman and give him odd jobs around her house to earn money.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 3 of 17 Exhibits, State’s Exhibit 98. At some point after this last message, Dresser was
strangled to death and left on the couch. Her television, iPad, wi-fi hotspot,
iPhone, wallet, and car were all taken from the home. Dresser’s cold, lifeless
body was discovered around 10:00 p.m. on October 13, 2016, after she had
missed work and dinner with a friend.
[6] Responding officers found Dresser lying supine on a living room couch wearing
a red robe. Her left arm was dangling off the couch, with the sash to her robe
on the ground below her left hand. One of Dresser’s slippers was found on the
floor near the couch, while the other one was in the kitchen. There were
several pillows on the couch, two of which were oddly “positioned on top of
[her] legs…like you would display a pillow on a couch for decorative use.”
Transcript Vol. IV at 27. The officers found no evidence of forced entry into the
home but found some signs of a struggle in the kitchen. Additionally, officers
discovered Spielman’s baseball hat in Dresser’s front lawn.
[7] The subsequent autopsy indicated that Dresser had been killed by asphyxiation
due to smothering and ligature strangulation. The pathologist observed parallel
band marks on Dresser’s neck that matched the width of the robe sash and
appeared to wrap around her neck multiple times. Dresser also had injuries to
her lip and chin and fingerprint-like bruises on her armpit, which occurred near
the time of her death.
[8] The investigation quickly focused on twenty-year-old Spielman, who was
unemployed and couch surfing around this time. Spielman had a cell phone
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 4 of 17 but did not have phone service, so he relied on wi-fi, a texting app (through
which he could make calls and send text messages), and Facebook Messenger
to communicate with others. After several hours of silence, Spielman began
sending messages to friends – Brandon Humphries and Brandon Kimberlin –
around 2:30 a.m. on October 13, using Dresser’s hotspot for a wi-fi connection.
[9] At 2:36 a.m., he sent a message to Humphries offering to sell a “tv a 55 inch
flatscreen”. Vol. of Exhibits, Defendant’s Exhibit X. Spielman picked up
Kimberlin on the way and arrived at Humphries’s residence just after 3:00 a.m.
Spielman was driving Dresser’s vehicle with her television in the trunk. He told
the others that the car was his mom’s and that the television came from his
room at his mom’s house. Humphries purchased the television for twenty
dollars and a vape.
[10] Over the next two days, October 13 and 14, Spielman openly drove Dresser’s
vehicle and took friends to various locations in it. He bragged about how fast
the car went and sent a picture of the speedometer to someone on at least one
occasion. He also sought the assistance of others in an attempt to unlock
Dresser’s iPad, which was password protected.
[11] Spielman drove Humphries to several local pawn shops during the late morning
on October 13. Humphries eventually pawned the television in Indianapolis for
$150. The next morning, Spielman drove Humphries to more pawn shops in an
attempt to sell car rims. They then drove in Dresser’s vehicle to Kentucky to
sell the rims. Spielman used Dresser’s gas card along the way. On their return
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 5 of 17 trip that evening, Spielman learned from others that the police were looking for
him. He was pulled over in Greenfield around 9:00 p.m. on October 14. Both
he and Humphries were taken into custody.
[12] After speaking with Humphries, detectives began interrogating Spielman just
before 11:00 p.m. Spielman was advised of his Miranda rights, and he signed
an advisement of rights form. Spielman acknowledged being at Dresser’s home
during the early evening hours of October 12. In his initial detailed story,
Spielman indicated that he was cleaning the home – to which he did not have
the garage code – and that Dresser let him borrow her car when he left around
8:30 p.m. on October 12. He indicated that she was drunk and arguing with a
man named John when he left. About twenty-five minutes into the interview,
the officers confronted Spielman with details in his story that did not match up
with the evidence and indicated that they knew he was lying. They noted that
they knew about the pawned television and that Spielman had used Dresser’s
gas card on the way to Kentucky. Forty-five minutes into the interview,
Spielman was informed that this was a murder investigation and that he could
be facing up to sixty years. Spielman eventually admitted that he had Dresser’s
garage code and had come into her home in the middle of the night and took
the television because he needed money.
[13] An hour and thirty minutes in, Spielman provided a new story after indicating
that he had made up the first one about a man named John being there. The
details of this account evolved over the next thirty minutes, but Spielman
continued to deny killing Dresser. Spielman said that Dresser freaked out on
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 6 of 17 him and hit him in the back of the head as he walked to the garage. According
to Spielman, she was drunk and fell off a chair in the kitchen, injuring her lip.
He helped her up by the arm and walked her over to the couch. Spielman
stated that he picked up the sash to her robe and put it on the floor next to her
on the couch before he left in her car. He also indicated that there was a pillow
placed behind her head, one at the side of her head, and one by or on her feet.
[14] Two hours into the interview, the officers indicated that Dresser was found
dead on the couch and that there was evidence from the autopsy that the sash
had been wrapped around her neck. Spielman denied choking her and
reiterated that he had just moved the sash, folded it, and placed it on the floor.
Spielman yawned multiple times, and the officers gave him a smoke break.
[15] After the break around the two-hour and twenty-minute mark, Spielman told
the officers that he was ready to tell them what happened. Over the next ten to
fifteen minutes, Spielman confessed to killing Dresser. He indicated that after
Dresser fell in the kitchen and was moved to the couch, she freaked out, began
hitting him, and threw a black dress at him. He took the dress2 and put it over
her head and then wrapped the sash around her neck twice and tightened it.
When he returned later to remove the dress and sash, Dresser was dead and
gray in color. Spielman indicated that he would have confessed quicker but he
thought the victim’s family was on the other side of the two-way mirror during
2 A black shirt dress was recovered from the scene. From a photograph of the scene, it appears to have been found on a side table next to the couch.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 7 of 17 the interrogation. Officers photographed a scratch on Spielman’s left arm.
Later DNA testing revealed the presence of Spielman’s DNA in finger swabs of
Dresser’s right hand.
[16] On October 17, 2016, the State charged Spielman with murder, Level 5 felony
robbery, and Class A misdemeanor driving while suspended. Thereafter,
Spielman filed a motion to suppress his confession, arguing that it was obtained
through coercion, manipulation, fabrication of evidence, and false promises of a
lesser sentence. Following a hearing on May 23, 2017, the trial court denied
the motion to suppress.
[17] Spielman’s seven-day jury trial was held between July 17 and 26, 2017. Along
with voluminous other evidence, the State presented the video of Spielman’s
interrogation, which was admitted into evidence without objection. Spielman
testified on his own behalf and gave a new account of the night in question. He
indicated that he was at Dresser’s house from about 7:30 p.m. to 9:00 p.m. and
that she gave him her television and let him borrow her car. He testified that he
returned the next morning around 7:30 a.m., pulled the car into the garage, and
then entered the house through a bedroom window because the door inside the
garage was locked. Spielman said he found Dresser dead on the floor near the
kitchen. He said she had “black material over her face and a sash around her
neck. And I took it off.” Transcript Vol. VI at 161. Spielman testified that he
panicked and left again in her car without moving her or calling the police.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 8 of 17 [18] The jury found Spielman guilty as charged, despite being instructed on the
lesser included offense of voluntary manslaughter. Following a sentencing
hearing, the trial court imposed concurrent sentences of fifty-five years for
murder and three years for Level 5 robbery, with five years suspended to
probation. The trial court expressly declined to enter a sentence on the
misdemeanor and vacated that conviction. Spielman now appeals. Additional
facts will be presented below as needed.
Discussion & Decision
1. Admission of Evidence
[19] Spielman initially argues that his statement to police, which included his
eventual confession, was admitted into evidence in violation of both the state
and federal constitutions because the statement was involuntarily made. In this
regard, Spielman claims that his statement was given in a coercive police
environment and that the detectives made implicit promises to him regarding
his sentence – ten years versus sixty or more years depending on whether he
confessed. Spielman also notes that he was cold and tired and has ADHD and
an anxiety disorder. Finally, he contends that the detectives provided him with
all the details for his confession.3
3 Spielman provided a number of details of the crime scene that were not provided by the detectives during the interrogation. For example, he noted the injury to her lip, the slippers, the placement of the pillows on and around Dresser’s body, the location of the sash, and the black dress.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 9 of 17 [20] Although we find Spielman’s arguments lacking and generally not supported by
the record, we need not reach the merits. Spielman never raised the state
constitutional argument below and, with regard to the federal constitution, he
only raised it in his pretrial motion to suppress. When the State moved to
admit the statement at trial, defense counsel affirmatively indicated, “[n]o
objection.” Transcript Vol. II at 173. “A contemporaneous objection at the time
the evidence is introduced at trial is required to preserve the issue for appeal,
whether or not the appellant has filed a pretrial motion to suppress.” Brown v.
State, 929 N.E.2d 204, 207 (Ind. 2010); see also Ford v. State, 504 N.E.2d 1012,
1013 (Ind. 1987) (“Appellate review of the voluntariness of a confession is
foreclosed when the defendant did not object on this ground at trial.”).
Accordingly, we agree with the State that Spielman has waived this issue for
appellate review.4
2. Sufficiency of the Evidence
[21] Spielman next challenges the sufficiency of the evidence supporting his
convictions. When we consider a challenge to the sufficiency of the evidence,
we neither reweigh the evidence nor assess the credibility of the witnesses.
Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the
evidence and reasonable inferences supporting the conviction. Id. We will
4 Spielman does not present a fundamental error argument in an attempt to avoid waiver.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 10 of 17 affirm if there is probative evidence from which a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Id.
[22] With respect to his murder conviction, Spielman argues the evidence did not
establish that he acted knowingly or intentionally when he killed Dresser.
Additionally, he argues that the killing occurred because of an act of sudden
heat. Both of these arguments rely on Spielman’s confession (that he later
abandoned at trial), in which he stated that after Dresser freaked out and hit
him, he placed a dress over her head and wrapped a sash around her neck twice
and tightened it. According to this account, Spielman left with the sash still tied
around her neck and returned later to find her dead. The jury, however, was
not required to credit every detail of Spielman’s confession, especially given his
tendency to change his account of the events surrounding Dresser’s death and
his clear attempts to lessen his culpability or avoid responsibility entirely.
[23] The evidence favorable to the murder conviction indicates that Dresser died of
asphyxiation due to smothering and ligature strangulation. That is, in addition
to being strangled by the sash, the autopsy indicated that Dresser suffered
compression force over her mouth so much so that her lips were bruised from
being pressed against her teeth. These injuries were consistent with her mouth
being forced against something like a hand, pillow, or furniture. The
pathologist opined that Dresser’s death resulted from at least five minutes of
being asphyxiated.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 11 of 17 [24] Dresser was likely killed sometime between 12:43 a.m. and 2:30 a.m., after
Spielman entered her home through a bedroom window and encountered her.
Shortly thereafter, Spielman had possession of, among other things, Dresser’s
car, television, iPad, and wallet. At no time did he seek medical assistance for
Dresser after removing the sash around her neck. Rather, he sold the television
to Humphries, used Dresser’s gas card, attempted to unlock the iPad, and went
on joy rides with friends in Dresser’s car.
[25] In sum, Spielman broke into Dresser’s home in the middle of the night,
overpowered her, and then wrapped a sash around her neck and forced her
mouth against something to suffocate her for several minutes. Rather than seek
help for her, he left with her car and other valuable possessions. The evidence
clearly supports the jury’s determination that Spielman intentionally or
knowingly killed Dresser. See Erlewein v. State, 775 N.E.2d 712, 715 (Ind. Ct.
App. 2002) (“Choking someone for a minimum of forty-five seconds clearly
evinces an intent to kill or, at the very least, an awareness of a high probability
that death would result.”), trans. denied; see also Harris v. State, 499 N.E.2d 723,
728 (Ind. 1986) (“evidence, indicating Appellant brutally overpowered the
victim and strangled her long enough to cause her death, clearly supports the
trial court’s finding that Appellant intentionally killed the victim”). Further,
this evidence amply supports the jury’s rejection of the existence of sudden
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 12 of 17 heat.5 See Brantley, 91 N.E.3d at 572 (the existence of sudden heat is a classic
question of fact to be determined by the jury).
[26] We now turn to the robbery conviction. Spielman rather baldly claims that the
State failed to establish that the taking of the television “occurred because of the
strangulation”. Appellant’s Brief at 21. As charged, the State was required to
establish that Spielman knowingly took Dresser’s television from her person or
presence by using force or by threatening the use of force (that is, strangulation).
See Appendix Vol. 2 at 30; I. C. § 35-42-5-1(a). The evidence and reasonable
inferences favorable to the conviction establish that Spielman strangled and
suffocated Dresser and then left the residence with her television, which he
loaded into the trunk of her car. This act of force provided Spielman with the
opportunity to take the television from Dresser’s presence and clearly
constituted robbery. See Ortiz v. State, 716 N.E.2d 345, 352 (Ind. 1999) (“The
jury could have reasonably inferred…that Ortiz’s beating of his mother with a
sledgehammer prevented her from retaining control over her property.”).
3. Double Jeopardy
[27] Next, Spielman argues that his dual convictions for murder and Level 5 felony
robbery violate Indiana’s constitutional prohibition against double jeopardy,
5 “The existence of sudden heat is a mitigating factor that reduces what otherwise would be murder…to voluntary manslaughter.” Ind. Code § 35-42-1-3(b). “Sudden heat exists when a defendant is ‘provoked by anger, rage, resentment, or terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom v. State, 31 N.E.3d 469, 486 (Ind. 2015)).
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 13 of 17 Article 1, Section 14 of the Indiana Constitution. In the context of double
jeopardy, however, our Supreme Court has consistently allowed convictions for
both murder and robbery, as long as the robbery is not enhanced based on
bodily injury or serious bodily injury.6 See e.g., Gross v. State, 769 N.E.2d 1136,
1139 (Ind. 2002) (reducing robbery conviction from a Class A felony to a Class
B felony because conviction for murder and Class A felony robbery violated the
Indiana Double Jeopardy Clause); Spears v. State, 735 N.E.2d 1161, 1165 (Ind.
2000) (reducing robbery conviction to a Class C felony because there was “a
reasonable possibility that the jury used the same evidentiary facts to support a
murder conviction and a Class A robbery conviction”). Thus, Spielman’s
convictions for murder and Level 5 felony robbery (that is, robbery without an
enhancement for bodily injury) do not violate double jeopardy.
4. Sentence
[28] Finally, Spielman challenges his sentence as inappropriate in light of his
character and the nature of his offenses. Although a trial court may have acted
within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6
of the Indiana Constitution authorize independent appellate review and
revision of a sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57,
64 (Ind. Ct. App. 2009). This appellate authority is implemented through
6 Pursuant to Ind. Code § 35-42-5-1(a), robbery is a Level 5 felony, which may be enhanced to a Level 3 felony if the robbery results in bodily injury or a Level 2 felony if it results in serious bodily injury to any person other than the defendant.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 14 of 17 Indiana Appellate Rule 7(B), which provides that a court “may 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.” Anglemyer v. State, 868 N.E.2d
482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. Nevertheless, “we must
and should exercise deference to a trial court’s sentencing decision, both
because Rule 7(B) requires us to give ‘due consideration’ to that decision and
because we understand and recognize the unique perspective a trial court brings
to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007). The appellant bears the burden of persuading us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[29] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is
to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259
(Ind. 2013). It is not our goal in this endeavor to achieve the perceived
“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014). Accordingly, “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.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008) (emphasis in original).
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 15 of 17 [30] To assess the appropriateness of a sentence, we look first to the statutory range
established for the classification of the relevant offenses. Murder has a
sentencing range of forty-five to sixty-five years, with the advisory sentence
being fifty-five years. Ind. Code § 35-50-2-3(a). A Level 5 felony has a
sentencing range of one to six years, with the advisory sentence being three
years. I.C. § 35-50-2-6. Although Spielman faced an aggregate sentence of up
to seventy-one years, the trial court sentenced him to only fifty-five years with
five of those years suspended to probation.
[31] With respect to the nature of the offenses, Spielman asserts that they were not
premeditated and resulted from a physical altercation. The evidence, however,
demonstrates that Spielman planned the middle-of-the-night break-in, which
took place while Dresser was home. When the break-in apparently did not go
as planned, he then overpowered Dresser, put a dress over her head, wrapped
the sash around her neck and tightened it, and also covered her mouth. He
suffocated Dresser – a woman who had been exceedingly kind to him – until
she died and then callously left with her car, television, wallet, and other
property. With a clear lack of remorse, Spielman proceeded to sell the
television, show off the car to friends, use her gas card, and drive around for the
next two days. Nothing about the nature of Spielman’s offenses leads us to
believe that the concurrent, advisory sentences, with five years of the murder
sentence suspended, were inappropriate.
[32] Turning to Spielman’s character, we observe that at the age of twenty he had
three prior, unrelated misdemeanor convictions (criminal mischief, theft, and
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 16 of 17 driving while suspended) and a prior probation violation that resulted in
revocation of a 325-day suspended sentence. He was also on probation at the
time of the instant offense, as well as unemployed and homeless. Although
Spielman apparently suffers from anxiety and ADHD, we do not find this
particularly mitigating.
[33] In light of the nature of the offenses and the character of the offender, we
cannot say that the aggregate fifty-five-year sentence, with five years suspended
to probation, is inappropriate. We, therefore, affirm the sentence imposed.
[34] Judgment affirmed.
Najam, J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A05-1709-CR-2096 | May 25, 2018 Page 17 of 17