Opinion
24A-CR-610
08-27-2024
Billy P. Crowe, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Faith E. Alvarez. Alvarez Legal, LLC. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Kathy Bradley, Madison Crawford.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Pulaski Superior Court The Honorable Crystal A. Kocher, Judge Trial Court Cause No. 66D01-2303-F6-38.
ATTORNEY FOR APPELLANT Faith E. Alvarez. Alvarez Legal, LLC.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Kathy Bradley, Madison Crawford.
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Billy Crowe appeals his conviction for operating a vehicle as an habitual traffic violator, a Level 6 felony, and his accompanying sentence. Crowe argues that: (1) insufficient evidence supports his conviction; and (2) the trial court abused its sentencing discretion. We find these arguments to be without merit and, accordingly, affirm.
Issues
[¶2] Crowe raises two issues on appeal, which we restate as:
I. Whether sufficient evidence demonstrates that Crowe was driving, such that sufficient evidence supports Crowe's conviction.
II. Whether the trial court abused its sentencing discretion by considering Crowe's criminal history as an aggravator and failing to consider lack of serious harm as a mitigator.
Facts
[¶3] On March 22, 2023, Pulaski County Sheriff's Department Deputy Cody Faust was patrolling county roads north of Medaryville when a vehicle passed him. Deputy Faust followed the vehicle and observed that it had one occupant. Shortly thereafter, the vehicle failed to signal before turning into a driveway, so Deputy Faust activated his bodycam and pulled into the driveway behind the vehicle to execute a traffic stop.
[¶4] In the driveway, Crowe stepped out of the driver's seat and approached Deputy Faust, who explained the reason for the stop. Crowe admitted that the vehicle belonged to him. Crowe initially denied that he was driving; however, he later explained that he "just drove" when he "had to go over to [his] mom's" to see his son. State's Ex 6 at 2:35, 3:00. Crowe was "insistent" on Deputy Faust "giving him a break." Tr. Vol. II p. 60. Deputy Faust arrested Crowe, and the State charged Crowe with operating a vehicle as an habitual traffic violator, a Level 6 felony.
[¶5] A jury trial commenced on February 13, 2024. The State introduced a certified copy of Crowe's driving record showing that his license was suspended and that Crowe had sufficient predicate felony convictions to qualify as an habitual traffic violator. Deputy Faust was the only witness at trial. He testified that the vehicle that passed him had one occupant and that, after he followed the vehicle into the driveway, Crowe stepped out of the driver's seat of the vehicle. The State introduced Deputy Faust's bodycam video, which recorded his conversation with Crowe in the driveway, as State's Exhibit 6. Crowe presented no evidence.
[¶6] The jury found Crowe guilty as charged, and the trial court entered judgment of conviction. The trial court then held a sentencing hearing. The State argued that the trial court should find Crowe's criminal history to be an aggravating factor and read aloud Crowe's history of felony and misdemeanor convictions, which included several driving offenses. Crowe did not propose any mitigating factors.
[¶7] The trial court found Crowe's criminal history to be an aggravator, noting that his criminal history included "not just driving offenses" but "criminal convictions of pretty much the wide gamut of the range." Id. at 89. The trial court also noted that Crowe's behavior, as shown in the bodycam video, demonstrated a belief that the law did not apply to him. The trial court found no mitigators and sentenced Crowe to 912 days in the Pulaski County Jail with 182 days suspended to probation. Crowe now appeals.
Discussion and Decision
I. Sufficient evidence supports Crowe's conviction.
[¶8] Crowe first argues that insufficient evidence supports his conviction. We disagree. Sufficiency of evidence claims "warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility." Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994)). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Id. (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). "We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt." Id. at 263. We affirm the conviction "'unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.'" Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[¶9] Crowe was convicted of operating a vehicle as an habitual traffic offender pursuant to Indiana Code Section 9-30-10-16(a)(2). This statute provides that a person who "operates a motor vehicle . . . in violation of restrictions imposed under" Indiana Code Chapter 9-30-10 "and who knows of the existence of the restrictions . . . commits a Level 6 felony." The restrictions under Indiana Code Chapter 9-30-10 include those for habitual traffic violators.
[¶10] Crowe does not challenge that he is an habitual traffic violator and that he knew of this status' restrictions; he only challenges the sufficiency of the evidence to prove that he was driving the vehicle. Deputy Faust testified that Crowe stepped out of the driver's seat of the vehicle, which had earlier passed Deputy Faust on the county road, and that the vehicle had only one occupant. These events appear to have occurred together within a short period of time. It is no tall order, then, to infer that Crowe was the one driving the vehicle. Moreover, Crowe admitted in the bodycam video that he "drove" in the area and that the vehicle belonged to him. State's Ex. 6 at 2:35. Crowe argues that the bodycam video does not show him in the act of driving and that Crowe initially denied that he was driving; however, this is merely a request that we reweigh the evidence, which we cannot do. Sufficient evidence supports Crowe's conviction.
II. The trial court did not abuse its sentencing discretion.
[¶11] Crowe next argues that the trial court abused its sentencing discretion. We disagree. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007) (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007); Phipps v. State, 90 N.E.3d 1190, 1197 (Ind. 2018). "An abuse occurs only 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." Schuler v. State, 132 N.E.3d 903, 904 (Ind. 2019) (citing Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014)).
[¶12] A trial court abuses its discretion by:
(1) "failing to enter a sentencing statement at all"; (2) entering a sentencing statement in which the aggravating and mitigating factors are not supported by the record; (3) entering a sentencing statement that does not include reasons that are clearly supported by the record and advanced for consideration; or (4) entering a sentencing statement in which the reasons provided in the statement are "improper as a matter of law."Ackerman v. State, 51 N.E.3d 171, 193 (Ind. 2016) (quoting Anglemyer, 868 N.E.2d at 490-91). "This Court presumes that a court that conducts a sentencing hearing renders its decision solely on the basis of relevant and probative evidence." Schuler, 132 N.E.3d at 905.
A. Aggravator-Criminal History
[¶13] Crowe first argues that the trial court abused its sentencing discretion because, although it found Crowe's criminal history to be an aggravator, it did not "recite the incidents comprising Crowe's criminal history." Appellant's Br. p. 13. Crowe relies on Mayes v. State, 744 N.E.2d 390, 396 (Ind. 2001), which held:
When a defendant's criminal history is used as an aggravating factor to support an enhanced sentence, the trial court must recite the incidents comprising the criminal history. Stating that the defendant has a criminal history is merely conclusory and must be substantiated by specific facts.(Internal citations omitted).
We note that Mayes was decided prior to our Supreme Court's seminal opinion in Anglemyer, 868 N.E.2d 482, which clarified the standard of review of a trial court's sentencing statement in the wake of substantial changes to our sentencing regime in the early 2000s. See id. at 485-489 (discussing changes in Indiana's sentencing regime after the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004)). Anglemyer held that a trial court's sentencing statement "must include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence. If the recitation includes a finding of aggravating or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating." Id. at 490. The Court further held that,
[i]n order to carry out our function of reviewing the trial court's exercise of discretion in sentencing, we must be told of [its] reasons for imposing the sentence.... This necessarily requires a statement of facts, in some detail, which are peculiar to the particular defendant and the crime, as opposed to general impressions or conclusions. Of course such facts must have support in the record.Id. For the purposes of this case, we need not decide if Mayes' holding is incompatible with Anglemeyer.
[¶14] In Mayes, the trial court enhanced the defendant's sentence based, in part, on his criminal history. Id. Our Supreme Court found the trial court's sentencing statement "deficient" because the trial court did not "specifically detail [the defendant's] criminal history," and the "reference to his prior criminal history [was] not sufficiently individualized." Id. The Court, however, held that remand was not required because the trial court's reason for enhancing the sentence was apparent "based on the presentence report and the prosecutor's comments in the record," which referenced the defendant's relevant prior conviction. Id.
[¶15] Even if Mayes is applicable, here, at the sentencing hearing, the State read aloud Crowe's criminal history, which includes convictions for criminal trespass, driving while suspended, operating while privileges are forfeited for life, theft, resisting law enforcement, operating a vehicle as an habitual traffic violator, receiving stolen property, battery resulting in bodily injury, check deception, operating while under the influence, and possession of a controlled substance. Crowe did not challenge the accuracy of this recitation at the sentencing hearing, nor does he now on appeal.
[¶16] In its sentencing statement, the trial court did not mention any of Crowe's convictions specifically. Instead, the trial court noted that Crowe's criminal history, in general, consisted of "not just driving offenses" but a "wide gamut" of offenses. Tr. Vol. II p. 89. It is clear from the record that the trial court found Crowe's criminal history to be an aggravating factor because it included multiple driving offenses, like the instant offense, and many other types of offenses, as recited by the State.
[¶17] Even if the trial court's sentencing statement is technically deficient under Mayes because the trial court did not recite the "incidents" comprising Crowe's criminal history-which we do not decide-the trial court's reasoning for its sentence is clear from the record. See Mundt v. State, 612 N.E.2d 566, 569 (Ind.Ct.App. 1993) (holding that, although trial court's sentencing statement included only "general statements" regarding the defendant's criminal history, defendant's counsel "went over in detail" the defendant's previous convictions, such that the record "sufficiently reveal[ed] the specific incidents relied upon by the trial court in enhancing" the defendant's sentence). Accordingly, the trial court did not abuse its discretion in finding Crowe's criminal history to be an aggravator.
Crowe also argues that the trial court improperly relied on an escape conviction for which Crowe was not convicted. The trial court only mentioned this conviction in reference to Crowe's eligibility for community corrections, and both counsel quickly informed the trial court that Crowe had not been convicted of escape; that charge was dismissed when Crowe pleaded guilty to the battery offense. See Tr. Vol. II p. 89. Given Crowe's extensive criminal history, we are not persuaded that the trial court's initial mistake in attributing an escape conviction to Crowe, which the trial court corrected, amounts to an abuse of discretion. See Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (holding that, even when an abuse of discretion occurs, "[w]e will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravator[]").
B. Mitigator-Lack of Serious Harm
[¶18] Crowe also argues that the trial court abused its discretion by failing to consider that the offense did not result in serious harm. Pursuant to Indiana Code Section 35-38-1-7.1(b)(1), trial courts "may" consider as mitigating whether "[t]he crime neither caused nor threatened serious harm to persons or property, or the person did not contemplate that it would do so."
[¶19] Crowe, however, did not advance this mitigator during the sentencing hearing. As our Supreme Court has explained, "the trial court does not abuse its discretion in failing to consider a mitigating factor that was not raised at sentencing." Anglemyer, 868 N.E.2d at 492; Creekmore v. State, 853 N.E.2d 523, 530 (Ind.Ct.App. 2006) ("[I]f the defendant fails to advance a mitigating circumstance at sentencing, this court will presume that the factor is not significant, and the defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal."). Crowe's argument, thus, is waived. Waiver notwithstanding, the lack-of-serious-harm mitigator does not apply to offenses that do not contain violence as an element, such as the offense for which Crowe was convicted here. See Sandelben v. State, 29 N.E.3d 126, 136 (Ind.Ct.App. 2015) ("Conviction of a crime that does not contain violence as an element is not a circumstance requiring mitigating weight."), trans. denied. The trial court did not abuse its discretion when sentencing Crowe.
Conclusion
[¶20] Sufficient evidence supports Crowe's conviction, and the trial court did not abuse its sentencing discretion. Accordingly, we affirm.
[¶21] Affirmed.
Crone, J., and Bradford, J., concur.