Opinion
24A-CR-614
11-07-2024
Timothy Lamont Parker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin Sarah Medlin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jane Spencer Craney, Judge Pro Tempore Trial Court Cause No. 49D28-2203-F1-7355
ATTORNEYS FOR APPELLANT
Talisha R. Griffin Sarah Medlin Marion County Public Defender Agency Appellate Division Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Timothy Lamont Parker appeals his convictions, following a bench trial, for attempted murder and burglary as level 1 felonies. He contends that he did not knowingly waive his right to a jury trial, that the State presented insufficient evidence to support his convictions, and that the trial court abused its discretion during sentencing. We affirm.
Facts and Procedural History
[¶2] On March 13, 2022, Andrew Mumford was at his apartment complex and walked back to his apartment after retrieving some trash bags from a maintenance worker. Shortly thereafter, Parker approached and knocked on Mumford's door. Mumford eventually opened the door and Parker, a stranger to him, asked him for a trash bag. Mumford gave Parker a trash bag, spoke with Parker for approximately thirty seconds, and then turned to retreat inside of his apartment. Mumford "took a couple steps in" and suddenly realized that he had not heard the noise of his door closing. Transcript Volume II at 69. Mumford's door is an "ordinary apartment door" but it "has a self[-]closer on it," and it automatically closes "quick and fast." Id. at 69-70. Mumford looked out of the corner of his eye and observed Parker "coming in the door." Id. at 70. Parker "had to push" on the door to enter "because like the door closes fast . . . on its own." Id.
[¶3] Mumford "hollered at [Parker]" and asked him what he was doing. Id. Parker began attacking Mumford and yelling "about some girl in here" while Mumford responded, "there ain't no girl in here." Id. at 71. Parker was "steadily coming after [Mumford]" and "talking crazy." Id. As Mumford tried to fight Parker off, Mumford "fell by the sink" and was unconscious "for about maybe thirty seconds, maybe a minute." Id. at 72. When Mumford woke up, Parker had him "pinned down" and was trying to "poke [him] with a stick." Id. Mumford broke the stick and yelled out for help that "this guy is over here trying to kill me." Id. at 73.
[¶4] The building's janitor, Leveal Buels, heard Mumford yelling for help so he entered Mumford's apartment. Buels observed Parker "over . . . Mumford, with a hammer axe type thing, going down at him and . . . Mumford was using his hands trying to protect himself." Id. at 112. Buels saw that Parker had Mumford "pinned down" as Parker tried to strike him "towards the head area." Id. at 113. Buels yelled at Parker to stop and told him he was calling police. Buels observed that if Mumford had not been holding Parker off, Parker's weapon would have hit Mumford "in the head or neck, somewhere up above his shoulders because that's where he was coming down at him." Id. at 114. Buels impression was that Parker was "serious" and clearly "trying to hurt [Mumford]." Id.
[¶5] Parker "took off running" with what surveillance video shows appears to be something like "a drywall hammer" in his hand as well as a blanket from Mumford's apartment. Id. at 135; State's Exhibit 39. Police located Parker near the apartment building. Parker told one of the officers that "they took my daughter" and claimed that Mumford and others had abducted children. State's Exhibit 1. Police discovered a hammer/hatchet with Mumford's blood on it around the corner from where they located Parker, and they found a bloody stick in Mumford's apartment. Parker's clothing also had Mumford's blood on it. Mumford suffered multiple lacerations and a left tibia fracture requiring two operations as a result of the attack.
[¶6] On March 18, 2022, the State charged Parker with attempted murder as a level 1 felony, burglary as a level 1 felony, robbery as a level 2 felony, aggravated battery as a level 3 felony, and battery by means of a deadly weapon as a level 5 felony. On November 15, 2023, Parker filed a motion requesting a waiver of jury trial hearing and a written waiver of jury trial. The court held a hearing and accepted Parker's waiver of jury trial. The State alleged Parker was an habitual offender on December 5, 2023.
[¶7] The court held a bench trial on January 22, 2024. The court found Parker not guilty of robbery, guilty of the remaining counts, and found that he was an habitual offender. Following a sentencing hearing on February 14, 2024, the court sentenced Parker to concurrent sentences of forty years each for attempted murder and burglary, enhanced by twenty years for the habitual offender enhancement. The court vacated the convictions for aggravated battery and battery by means of a deadly weapon based upon double jeopardy concerns.
Discussion
I.
[¶8] Parker first asserts that reversal is warranted because "he did not knowingly waive his right to a jury trial." Appellant's Brief at 14. "The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article [1], Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution." Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). Broadly stated, "federal and Indiana constitutional jury trial rights guarantee the same general protection-a criminal defendant must receive a jury trial, unless he waives it." Id. Pursuant to Indiana constitutional jurisprudence, "in a felony prosecution," that "waiver is valid only if communicated personally by the defendant[.]" Id. Personal waiver of the right to a jury trial may be either in writing or in open court. Id. at 1159.
[¶9] Here, Parker, along with his attorney, signed a "Waiver of Trial By Jury" form which provided that he understood his right to a jury trial as guaranteed by the state and federal constitutions and that the waiver would leave the decision to the "Judge of this Court . . . without the use or intervention of a jury." Appellant's Appendix Volume II at 175. During the hearing, Parker confirmed his signature on the waiver form and indicated that his lawyer had explained the document to him. When asked if he was satisfied with his lawyer's services, Parker responded, "I definitely am, Your Honor." Transcript Volume II at 28. When asked if he believed that waiver of trial by jury was in his best interests, Parker responded, "Well, yes, I do." Id. The court asked Parker to explain his understanding of the waiver, and Parker stated in part, "by waiving my trial by jury means that I won't have a jury of twelve people . . . come in here and determine my fate ...." Id. at 29. The court then reminded Parker at least three more times that due to the seriousness of the charges against him, he had the right to a jury trial; asked him again if he believed that waiver of his right was in his best interests, to which he responded affirmatively; confirmed that he understood that "there is no turning back" once the waiver is accepted by the court; and confirmed he had not been threatened or promised anything in exchange for his waiver, and that his waiver was a product of his free will. Id. at 30.
[¶10] Despite his signed waiver form and multiple clear waiver statements made in open court, Parker suggests his knowing waiver was somehow invalidated when, Magistrate James Snyder, the judicial officer who presided over the waiver hearing, explained the effect of waiver by stating, "if you are to waive the right to a trial by jury, only one individual is making that decision and it's going to be me." Id. Parker argues that "the [bench] trial to which he agreed to was before Judge Snyder" but that Judge Pro Tempore Jane Spencer Craney, and not Magistrate Snyder, presided over his bench trial. Appellant's Brief at 14. We are not persuaded by Parker's argument as nothing in the record indicates that his knowing oral waiver was premised on Magistrate Snyder's isolated general explanatory statement that was made after Parker had already repeatedly confirmed his understanding of, and his intention to waive, his right to a jury trial. Moreover, Parker's written waiver alone was sufficient to support a knowing waiver. See Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998) (observing that "[a] written waiver executed by the defendant is adequate.") Based upon this record, we conclude that Parker knowingly waived his right to a jury trial.
II.
[¶11] Parker next challenges the sufficiency of the evidence to support his convictions. When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.
A. Burglary
[¶12] Regarding Parker's burglary conviction, Ind. Code § 35-43-2-1 provides that a person "who breaks and enters the building or structure of another person, with the intent to commit a felony or theft in it, commits burglary, a Level 5 felony." However, the offense is "a Level 1 felony if: (A) the building or structure is a dwelling; and (B) it results in serious bodily injury to any person other than a defendant." Ind. Code § 35-43-2-1(4). Parker's sole contention is that the State presented insufficient evidence "that a breaking occurred[.]" Appellant's Brief at 15. Specifically, he claims the State failed to establish that he "broke into Mumford's apartment, so the conviction for burglary cannot be sustained." Id.
[¶13] This Court recently reiterated:
"Using even the slightest force to gain unauthorized entry satisfies the breaking element of the crime." Davis v. State, 770 N.E.2d 319, 322 (Ind. 2002), reh'g denied. "For example, opening an unlocked door or pushing a door that is slightly ajar constitutes a breaking." Id. Walking through an open structure does not constitute "breaking" within the definition of the statute. Cockerham v. State, 246 Ind. 303, 204 N.E.2d 654, 657 (Ind. 1965), reh'g denied. While our Indiana Supreme Court has held "[s]ome physical movement of a structural impediment is necessary to support a finding of breaking," Smith v. State, 535 N.E.2d 117, 118 (Ind. 1989), it has also held the use of physical force against a victim to gain entry into a residence was sufficient to prove the element of "breaking" independent of "conclusive" evidence force was used to open the residence's door. Bellmore v. State, 602 N.E.2d 111, 124-125 (Ind. 1992), reh'g denied. The element of "breaking" can also be accomplished by forcing a person to open the door to a residence. Dew v. State, 439 N.E.2d 624, 625 (Ind. 1982).Brewer v. State, 241 N.E.3d 19, 27-28 (Ind.Ct.App. 2024) (quoting Jenkins v. State, 34 N.E.3d 258, 261-262 (Ind.Ct.App. 2015), trans denied).
[¶14] The State presented evidence to support a reasonable inference that Parker physically pushed on Mumford's door to gain entry into the apartment. Mumford testified that, after he attempted to end his encounter with Parker by turning and walking back into his apartment, he noticed he did not hear the normal sound of his door, which automatically closes very fast, closing behind him. When Mumford looked back, Parker was "coming in the door" and "coming at" him. Transcript Volume II at 70. Mumford testified that Parker "had to push [the door] to get in because like the door close[s] fast." Id. The trial court further found that, in the video footage of Parker's entry into Mumford's apartment, "you can see [Parker] putting his foot in the door to prevent it from closing. Also, you can see a slight movement of the hand to push the door open." Id. at 163. Based upon the record, we conclude that evidence of probative value was presented to support the court's finding that a breaking occurred. Sufficient evidence supports Parker's burglary conviction.
Based upon our review of State's Exhibit 39, the video footage outside Mumford's apartment, we disagree with the trial court's interpretation of what can be gleaned from the video evidence. After receiving the trash bag, the video shows Parker gesturing and crowding the doorway which likely blocked the door from closing, but it is otherwise difficult to discern the positioning of his feet or hands. Nevertheless, we defer to the factfinder and interpret video evidence consistently with a judgment unless video evidence "indisputably contradicts the [judgment]." Love v. State, N.E.3d 693, 699-700 (Ind. 2017). Nothing in the video indisputably contradicts Mumford's testimony that Parker must have pushed on the door because otherwise it would have quickly closed.
B. Attempted Murder
[¶15] Regarding Parker's conviction for attempted murder as charged here, the State was required to prove that Parker "did attempt to commit the crime of Murder, which is to intentionally kill another human being, namely: Andrew Mumford, by engaging in conduct, that is: hitting [Mumford] repeatedly with [a] hammer/hatchet, with the specific intent to kill [Mumford], which conduct constituted a substantial step toward the commission of said crime of Murder." Appellant's Appendix Volume II at 38 (citing Ind. Code § 35-42-1-1(1) and Ind. Code § 35-41-5-1(a)). Parker's sole contention is that the State presented insufficient evidence "from which a reasonable factfinder could infer [he] had the specific intention of killing Mumford." Appellant's Brief at 19.
[¶16] The Indiana Supreme Court has explained that intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002). Additionally, the trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Id; see also Ind. Code § 35-31.5-2-(86)(a)(2) (A "deadly weapon" includes equipment that is readily capable of causing serious bodily injury in the manner it is used, could ordinarily be used, or is intended to be used). "The question of whether a weapon is 'deadly' is determined from a description of the weapon, the manner of its use, and the circumstances of the case." Grogg v. State, 156 N.E.3d 744, 749 (Ind.Ct.App. 2020) (citation omitted), trans. denied. A determination based on these factors is a question of fact. Id. "The original purpose of the object is not considered. Rather, the manner in which the defendant actually used the object is examined." Id.
[¶17] The State presented evidence from both Mumford and a witness that Parker attacked Mumford with "a hammer axe type thing" and a "stick" and was attempting to strike Mumford in "the head area." Transcript Volume II at 72, 112-113. Indeed, Mumford suffered injuries to his face, and he stated that it was only because he was holding Parker back that Parker then began to violently strike his legs. Mumford's blood was found on both the hammer and the stick, the floor, and Parker's clothing. A reasonable trier of fact could infer from this evidence that Parker intended to kill Mumford.
[¶18] Parker asserts that Mumford's testimony that he did not know him prior to their encounter is suggestive that he lacked motive to kill Mumford. He cites Kiefer, 761 N.E.2d at 806, in which the Indiana Supreme Court observed that "[w]hile motive is not an element of the crime, the absence of motive" may be "a significant exculpatory factor" regarding a defendant's intent to kill. However, here, Parker did offer a motive to police as well as to Mumford during the attack. He mistakenly believed that Mumford and others had abducted his daughter and other children. We agree with the State that although Parker's belief may have been "misguided," it still suggests a motive for the attack. Appellee's Brief at 21. Parker has not established that reversal is warranted on this basis.
III.
[¶19] Parker contends the trial court abused its discretion during sentencing and that remand for resentencing is necessary. He claims the sentence he received was based upon "the erroneous omission of three proffered mitigators and [the] erroneous inclusion of an improper aggravator." Appellant's Brief at 26.
[¶20] 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." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. A court abuses its discretion if it: (1) fails "to enter a sentencing statement at all;" (2) enters "a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but the record does not support the reasons;" (3) enters a sentencing statement that "omits reasons that are clearly supported by the record and advanced for consideration;" or (4) considers reasons that "are improper as a matter of law." Id. at 490-491. If the trial court has abused its discretion, we will remand for resentencing "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." Id. at 491. The relative weight or value assignable to reasons properly found, or those which should have been found, is not subject to review for abuse of discretion. Id.
[¶21] The record indicates that Parker proffered five mitigating circumstances: his mental health, history of substance abuse, dependent children, cooperation with law enforcement, and age and general health. The trial court found that his mental health and substance abuse issues were mitigating circumstances but declined to recognize the other proffered circumstances as significantly mitigating. Parker suggests that these circumstances were "clearly supported by the record yet overlooked by the trial court." Appellant's Brief at 24.
[¶22] It is well established that the determination of mitigating circumstances is within the discretion of the trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind.Ct.App. 2007), trans. denied. The trial court is not obligated to accept the defendant's argument as to what constitutes a mitigating factor, and a trial court is not required to give the same weight to proffered mitigating factors as does a defendant. Id. An allegation that the trial court failed to identify or find a mitigating factor 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. If the trial court does not find the existence of a mitigating factor after it has been argued by counsel, it is not obligated to explain why it has found that the factor does not exist. Id.
[¶23] Regarding his dependent children, although the presentence investigation report indicates that Parker reported that he has ten children, four of which he indicated are minors, Parker did not claim or present evidence that any of his children are actually dependent on him such that his incarceration would cause any undue hardship on those children. This factor is neither significant nor clearly supported by the record. Regarding his cooperation with law enforcement, there is scant evidence regarding this factor consisting simply of evidence that he remained near the scene of his crime and spoke to officers. We cannot say this factor was clearly supported by the record. Finally, regarding his age and health, the evidence in the record is similarly sparse. Fifty-six-year-old Parker described his health as good aside from high blood pressure and pain from seven prior gunshot wounds. Under the circumstances, we cannot conclude that the trial court abused its discretion in declining to give any of these proffered circumstances mitigating weight.
[¶24] As far as aggravating circumstances, the trial court found Parker's criminal history as a significant aggravating factor. Specifically, his history includes five juvenile adjudications including three felony adjudications, thirty-two adult arrests, eleven misdemeanor convictions, and eight felony convictions. The trial court noted on the record that Parker had "an extremely long criminal record, forty-seven years. You're fifty-six years old. That's eighty-four percent of your life, you've been in trouble." Transcript Volume II at 186. Parker asserts that the court "erred in tracing [his] criminal history back to a juvenile case that was dismissed when [he] was nine," because the Indiana Supreme Court has directed that only juvenile acts resulting in adjudications should be considered. Appellant's Brief at 25 (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)).
[¶25] The State "recognizes," and we must agree, that the trial court's comment clearly referring to Parker's "earliest juvenile proceeding" that was evidently dismissed without a true finding, "can be interpreted as improper." Appellee's Brief at 24. Nevertheless, the court's erroneous comment was harmless under the circumstances as Parker's extensive and serious criminal history supports the sentence imposed. In other words, even assuming an abuse of discretion occurred with respect to the trial court's reference to Parker's earliest juvenile proceeding, we can say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.
[¶26] For the foregoing reasons, we affirm the judgment of the trial court.
[¶27] Affirmed.
Mathias, J., and Kenworthy, J, concur.