Opinion
24A-CR-727
11-13-2024
Gerald Bell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Carlos I. Carrillo Carrillo Law LLC Greenwood, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2003-F2-11
ATTORNEY FOR APPELLANT Carlos I. Carrillo Carrillo Law LLC Greenwood, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Judges Bailey and Bradford concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] Following an earlier appeal, Gerald Bell ("Bell") was resentenced to fifteen years for Level 2 felony robbery resulting in serious bodily injury, two years for Level 6 felony pointing a firearm at another person, and one year for Class A misdemeanor carrying a handgun without a license, and was found to be subject to an enhanced penalty for use of a firearm during the commission of his offenses. The trial court ordered the sentences to run concurrently and enhanced his Level 2 felony conviction by five years, resulting in an aggregate sentence of twenty years with sixteen years executed in the Indiana Department of Correction ("the DOC") and four years suspended to probation. Bell appeals, claiming that his sentence is inappropriate in light of the nature of his offenses and his character. We affirm.
Bell originally appealed his convictions and sentence, raising several issues, and a panel of this court affirmed in part, reversed in part, and remanded with instruction to correct sentencing errors. Bell v. State, Case No. 23A-CR-443 (Ind.Ct.App. Dec. 8, 2023) (mem.). However, because we remanded for corrections to Bell's sentence, we did not reach the issue of whether Bell's sentence is inappropriate. Id.
I.C. § 35-47-4-3(b).
I.C. § 35-47-2-1.
Facts and Procedural History
[¶2] The underlying facts are taken from the opinion of Bell's prior appeal:
On the evening of March 3, 2020, sixteen-year-old Jeremiah Hendricks [("Hendricks")] arranged to meet fifteen-year-old Luis Miranda [("Miranda")] at an apartment complex in Lafayette.
Hendricks wanted to purchase four ounces-a quarter pound-of marijuana from Miranda. Hendricks planned to split the marijuana with his friend, Bell, who was also age sixteen at the time.
Miranda drove to the apartment complex with his friend, fifteen-year-old Joshua Mansia [("Mansia")], in the passenger seat. Miranda brought the four ounces of marijuana plus several smaller bags of marijuana in a backpack. The meeting took place at approximately 7:00 p.m. Miranda was not informed that Bell would accompany Hendricks, and Miranda thought it was "shady" when Bell and Hendricks approached his vehicle together. Tr. Vol. III p. 41.
As Hendricks and Bell approached, Hendricks asked to see the marijuana. According to Miranda, Hendricks approved of the marijuana, and then both he and Bell drew handguns and "placed them" against the driver's side window. Id. at 41-42. Hendricks's gun was a black Glock, and Bell's gun was a silver nine-millimeter. Hendricks and Bell said, "run your s**t," meaning "[g]ive me pretty much everything you have." Id. Miranda refused, and Hendricks became "more aggressive by waving the gun" and putting it close to Miranda's head. Id.
Miranda shifted his vehicle into reverse. He immediately heard gunshots and then several more. One of the shots struck him in the arm and chest. He saw Bell run away after the first shots were fired and saw that Hendricks was the one shooting. Miranda threw the backpack of marijuana out the window and drove to the hospital. As he drove away, he saw Hendricks take the backpack and run.
Miranda was hospitalized for thirteen days for wounds to his arm, chest, ribs, and a collapsed lung. His injuries were "[p]otentially" life-threatening. Id. at 24. Law enforcement
found no marijuana in Miranda's vehicle; however, they did find a pellet gun under the passenger seat.
Meanwhile, at 7:27 p.m. on the night of the shooting, a video that depicted two packages of marijuana in vacuum-sealed packaging was recorded on Bell's phone. Additionally, a video depicting a large amount of marijuana in a green bowl was recorded on Hendricks's phone. Later that night, Bell sent a text message to a contact named "Brat" that said, "I just hit a lick on a qp." Ex. Vol. V p. 107. The phrase "hit a lick" is commonly associated with robberies and other crimes, and "qp" means a quarter pound. Tr. Vol. III p. 123-24. Bell also sent Brat the video of the marijuana along with messages that said, "Some dope" and "Real za." Ex. Vol. V p. 108. Bell then said he was "[a]bt to sell all this s**[t]." Id. at 109. Shortly after 10:00 p.m., Bell searched for Lafayette news and crime reports on his phone, and he continued searching the following morning. He clicked on a link to a news story titled "15-year-old shot on Lafayette's south side" several times. Id. at 119.
On March 4, 2020, Bell texted a contact named "Cor" to "[g]o look at the news," and said, "Look I'm going [to] say I was with u." Id. at 99-100. Around the same time, Bell texted Brat that he was with the police and said, "[I]f I get out of this I'm done with that dumb s**[t] ...." Id. at 112. He also texted a contact named "Vonta" that law enforcement had asked to meet with him "[b]c of that s**[t] last night." Id. at 115. Bell said he would "act like I don't [k]no[w] s**[t]." Id. at 116. Bell was subsequently arrested.
The State charged Bell as an adult with six counts: Count I: conspiracy to commit robbery, a Level 2 felony; Count II: robbery resulting in serious bodily injury, a Level 2 felony; Count III: battery by means of a deadly weapon, a Level 5 felony;
Count IV: battery resulting in serious bodily injury, a Level 5
felony; Count V: pointing a firearm at another person, a Level 6 felony; and Count VI: carrying a handgun without a license, a Class A misdemeanor. The State also sought a sentencing enhancement based upon Bell's use of a firearm.
Bell and Hendricks were tried before the same jury in March 2022. The State played for the jury two videos from Bell's phone that were recorded the day before the shooting, one of which depicted Bell holding a silver handgun with wooden grips.
Lafayette Police Department Detective Paul Anthony Huff testified that the handgun was a "real gun" based on the size of the barrel hole and the presence of bullets in the magazine. Tr. Vol. III p. 133.
Miranda and Mansia testified regarding the shooting and denied ever drawing weapons. Miranda recognized the marijuana in the video from Bell's phone as the marijuana he brought to sell on the day of the shooting. Miranda and Mansia admitted that they initially told law enforcement that they were "just driving by the apartments" when Miranda was shot and that they later falsely stated that Hendricks and Bell were the ones selling the marijuana. Id. at 230.
Hendricks testified in his own defense. According to Hendricks, Bell was with Hendricks when Hendricks approached Miranda's vehicle, and Hendricks saw a handgun in Mansia's lap. Miranda showed Hendricks the marijuana, which was "brown" and "didn't look like weed." Id. at 183. Hendricks confronted Miranda, and Miranda drove away and pointed a gun at Hendricks from the window. Hendricks fired at Miranda, and Bell ran away. Hendricks denied that he planned to rob Miranda and denied ever taking possession of the marijuana. He claimed that the marijuana shown on the video recorded after the shooting was obtained from his mother's room.
Bell did not testify. The jury found Bell guilty of Count II: robbery resulting in serious bodily injury; Count V: pointing a firearm; and Count VI: carrying a handgun without a license; and not guilty of the remaining counts. The trial court entered judgments of conviction on Counts II, V, and VI. Bell waived his right to a jury on the firearm sentencing enhancement. The trial court found that the evidence supported the firearm enhancement and attached the enhancement to Count II.Bell v. State, Case No. 23A-CR-443 (Ind.Ct.App. Dec. 8, 2023) (mem.).
[¶3] The presentence investigation report revealed that Bell has three prior juvenile adjudications consisting of: (1) theft; (2) intimidation where defendant draws or uses a deadly weapon; and (3) child molesting. Bell's juvenile dispositions were modified twice for violations, the first for running away on July 12, 2018, and the second when he was arrested for child molesting on October 17, 2018.
While Bell was incarcerated for the instant offenses, the Tippecanoe County Jail reported the following violations:
. . . 10/13/20: Refusing staff orders, non-physically refusing to lock down, resisting law enforcement, and physically resisting jail staff.
. . . 09/04/21: Insolence towards a staff member, refusing to obey an order of any staff member, making loud or boisterous noises, and failure to be in his own cell at lockdown.
. . . 09/10/21: Three (3) informal violation[s] within a 30 day period, being in an unauthorized area, failure to be in his own cell at lockdown, habitual rule violator, assault or attempting to assault any individual in the jail, threatening, harassing, or attempting to bribe any inmate or staff member, committing or
attempting to commit or inciting another to commit a violent act, establish or any attempt to establish any type of pod boss system, extortion, blackmail, protection, demanding, or receiving money or anything of value in return for protection against others, any other act punishable by State Law. [Bell] received 15 days in segregation with an outdate of 09/25/21.
. . . 03/28/22: Insolence towards a staff member, refusing to obey an order of any staff member, making loud or boisterous noises, inappropriate conduct or activity during any visit, nonphysical resistance to a jail staff's directive, and possession of contraband including weapons or anything that could be used as a weapon.Appellant's App. Vol. 3 p. 21. Bell's first sentence was fifteen years for the robbery, two years for pointing a firearm and one year for carrying a handgun. A five-year enhancement was added to his robbery conviction, and four years of his total sentence were suspended to probation. Due to the discrepancies between the trial court's oral and written sentencing orders, we remanded for resentencing.
[¶4] On remand, the trial court held a sentencing hearing, at which no new evidence or argument was heard, and the trial court merely corrected the sentencing errors found on the original appeal. The trial court resentenced Bell to fifteen years for Level 2 felony robbery resulting in serious bodily injury, two years for Level 6 felony pointing a firearm at another person, one year for Class A misdemeanor carrying a handgun without a license and found Bell subject to an enhanced penalty for use of a firearm during the commission of his offenses. The trial court ordered the sentences to run concurrently and attached a five- year enhancement to the Level 2 felony conviction, resulting in an aggregate sentence of twenty years with sixteen years executed in the DOC and four years suspended to probation. This appeal ensued.
Discussion and Decision
[¶5] Bell claims that his sentence is inappropriate in light of the nature of his offenses and his character. The Indiana Constitution authorizes appellate review and revision of a trial court's sentencing decision. See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020). "That authority is implemented through Appellate Rule 7(B), which permits an appellate court to revise a sentence if, after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender." Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019).
[¶6] Our review under Appellate Rule 7(B) focuses on "the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We generally defer to the trial court's sentencing decision, and our goal is to determine whether the defendant's sentence is inappropriate, not whether some other sentence would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶7] Bell was convicted of a Level 2 felony, a Level 6 felony, and a Class A misdemeanor. When reviewing a sentence under Appellate Rule 7(B), we remain mindful that the advisory sentence is the starting point the legislature has selected as the appropriate sentence for the crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). A person convicted of a Level 2 felony shall be imprisoned for a fixed term of between ten and thirty years, with the advisory sentence being seventeen and one-half years. Ind. Code § 35-50-2-4.5. A Level 6 felony conviction results in a fixed term of imprisonment between six months and two and one-half years, with the advisory sentence being one year. I.C. § 35-50-2-7(b). A Class A misdemeanor results in a fixed term of imprisonment of not more than one year. I.C. § 35-50-3-2. The trial court may sentence a person to an additional fixed term of between five and twenty years if the jury finds that the State proved beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense. I.C. § 35-50-2-11(g). Bell's fifteen-year sentence for his Level 2 felony conviction and two-year sentence for his Level 6 felony conviction are both below the advisory sentence selected by the legislature. The one-year sentence for his Class A misdemeanor conviction was the maximum allowed under statute and the five-year enhancement was the minimum under statute.
[¶8] As to the nature of the offense, Bell directs us to his actions when the offenses took place. Bell argues that, even though the texts and videos from his phone depicted that he was in possession of the marijuana after the incident, he "did not take property from" Miranda in light of the evidence demonstrating that he ran away when Hendricks fired the first shot. Appellant's Br. p. 18. Bell further contends that his "pointing of his gun at [Miranda] was not the cause of [Miranda's] injuries." Id. Because he did not shoot his gun and, by running away, he "discontinued any effort to see the criminal venture through and succeed," Bell asserts that "he was not acting in concert with Hendricks at that point." Id.
[¶9] We disagree. "The nature of the offense is found in the details and circumstances of the offenses and the defendant's participation therein." Madden v. State, 162 N.E.3d 549, 564 (Ind.Ct.App. 2021). Here, Bell drew his handgun and placed it on the driver's side window of the vehicle with Miranda and Mansia inside. Although Bell never fired his gun, Bell retained the fruits of the robbery, bragged about the robbery in text messages and was an active participant in a robbery where the victim suffered numerous gunshot wounds. To show that his sentence is inappropriate, Bell must portray the nature of his offense in a positive light, "such as accompanied by restraint, regard, and lack of brutality," which he failed to do here. Stephenson, 29 N.E.3d at 122.
[¶10] As to his character, Bell contends that his character does not warrant his sentence. "When considering the character of the offender, one relevant fact is the defendant's criminal history." Johnson v. State, 986 N.E.2d 852, 857 (Ind.Ct.App. 2013). The significance of the criminal history varies based on the gravity, nature, and number of prior offenses in relation to the current offense. Id. Even a minor criminal record reflects poorly on a defendant's character. Reis v. State, 88 N.E.3d 1099, 1105 (Ind.Ct.App. 2017).
[¶11] Despite being only sixteen at the time of the instant offense, the record reveals that Bell had previous encounters with the juvenile justice system. Bell was twice adjudicated a juvenile delinquent for conduct similar to the instant offenses. In fact, the instant offenses reflect an escalation in both severity and scope compared to his prior juvenile delinquency for similar conduct given that his adjudication for: (1) theft would have been a Class A misdemeanor if committed by an adult; and (2) intimidation with a deadly weapon would have been a Level 5 felony if committed by an adult. Although not similar to the instant offenses, we note that Bell's adjudication for child molesting would have been a Level 3 felony if committed by an adult. Bell's repeated arrests, resulting in two Motions for Modification of Disposition, demonstrate his failure to appreciate and respect the opportunity for rehabilitation afforded to him through probation. While Bell's juvenile record is not extensive, his adjudications reflect poorly on his character. See Cramer v. State, 240 N.E.3d 693, 700 (Ind. 2024) (concluding that defendant's minor juvenile record weighs against revision of his sentence). Bell also accumulated numerous disciplinary violations while incarcerated, further demonstrating his disregard for authority and institutional rules. Consequently, Bell has not met his burden of identifying "substantial virtuous traits or persistent examples of good character" supporting his assertion that his sentence is inappropriate based on his character. Stephenson, 29 N.E.3d at 122.
[¶12] Based on the foregoing, we conclude that Bell's sentence is not inappropriate in light of the nature of his offenses and his character.
[¶13] Affirmed.
Bailey, J. and Bradford, J., concur.