Opinion
23A-CR-2629
07-17-2024
Dalton Simmonds, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Jefferson Circuit The Honorable Donald J. Mote, Judge Trial Court Cause No. 39C01-2205-MR-543.
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Bailey and Crone, Judges concur.
MEMORANDUM DECISION
PYLE, JUDGE.
Statement of the Case
[¶1] In the first phase of a bifurcated trial, a jury convicted Dalton Simmonds ("Simmonds") of murder, Level 6 felony obstruction of justice, and Level 6 felony cruelty to an animal. In addition, the jury found that Simmonds had knowingly or intentionally possessed a firearm. In the second phase of the trial, Simmonds waived his right to have the jury determine whether he was a serious violent felon and admitted that he had a prior qualifying felony conviction. The trial court found Simmonds to be a serious violent felon and entered judgment of conviction for Level 4 felony possession of a firearm by a serious violent felon. Also, in the second phase of trial, Simmonds waived his right to have the jury determine whether he was an habitual offender and admitted that he had two prior unrelated felony convictions. The trial court adjudicated Simmonds to be an habitual offender. Thereafter, the trial court sentenced Simmonds to an aggregate eighty-one (81) year sentence.
I.C. § 35-44.1-2-2.
I.C. § 35-46-3-12(b).
I.C. § 35-47-4-5(c).
I.C. § 35-50-2-8.
[¶2] Simmonds now appeals his convictions for murder and cruelty to an animal as well as his aggregate eighty-one-year sentence. He specifically argues that: (1) the trial court abused its discretion in admitting evidence; (2) the trial court abused its discretion in instructing the jury; and (3) his sentence is inappropriate in light of the nature of the offenses and the character of the offender. Concluding that: (1) the trial court did not abuse its discretion in admitting evidence; (2) the trial court did not abuse its discretion in instructing the jury; and (3) Simmonds's sentence is not inappropriate, we affirm Simmonds' convictions and sentence.
[¶3] We affirm.
Issues
1. Whether the trial court abused its discretion in admitting evidence.
2. Whether the trial court abused its discretion in instructing the jury.
3. Whether Simmonds's eighty-one (81) year sentence is inappropriate.
Facts
[¶4] The facts most favorable to the verdicts reveal that in May 2022, twenty-eightyear-old Simmonds lived with and was involved in a relationship with forty-four-year-old Christy Newman ("Newman"). On May 14, 2022, Newman's neighbor, Aaron Castillo ("Castillo") was sitting on his front porch with his three-year-old daughter and a friend when he saw Simmonds drive away in Newman's truck. Immediately thereafter, a scared and distraught Newman exited her house and told Castillo that Simmonds had lit her curtains on fire. Newman asked Castillo to put out the fire. Castillo filled a pitcher of water and accompanied Newman to her house. When Castillo looked inside Newman's house, he smelled something burning but did not see anything on fire. Newman asked Castillo if he would stay outside on his porch while she went inside her house to get her purse. While Newman was in her house, Simmonds pulled up in the driveway and walked into Newman's house.
[¶5] Shortly thereafter, Castillo heard Newman and Simmonds arguing. Newman yelled "stop[,]" and Castillo heard a gunshot. (Tr. Vol. 2 at 108). Five minutes later, Simmonds ran out of the house with blood on his face and yelled for help. Castillo walked into Newman's house and saw Newman lying on the floor. Castillo did not see anyone else in the house. At some point, Simmonds pointed to a gunshot wound on Newman's back.
[¶6] Castillo helped Simmonds carry Newman to her truck. Simmonds carried Newman with his arms under her armpits, and Castillo carried Newman by her feet. As the two men carried Newman across the driveway, Simmonds dropped Newman on the ground, and her shirt came off. Simmonds picked Newman back up, carried her to her truck, and nearly dropped her again. Castillo, who did not believe that Newman was responsive, helped Simmonds push Newman into the passenger side of her truck.
[¶7] Simmonds drove to a nearby gas station and convenience store ("the store"), ran into the store, and told the cashier to call 911 because Newman had been shot. Jeremiah Douglas ("Douglas"), who lived across the road from the store and who had seen Simmonds run into the store, thought that someone might have overdosed. Douglas grabbed a Narcan kit and ran across the road to see if he could help. Douglas asked Simmonds if Newman was overdosing, and Simmonds responded that he did not know. After noticing blood on Simmonds and Newman, Douglas returned to his home and grabbed a first aid kit. When he returned to the scene, Douglas checked Newman for a pulse but did not find one. Douglas asked Simmonds what had happened to Newman, and Simmonds responded that he did not know.
[¶8] Jefferson County Sheriff's Department Deputy Cameron Napier ("Deputy Napier") arrived at the scene, helped Douglas and Simmonds remove Newman from her truck, laid her on the ground, and began performing CPR. Deputy Napier asked Simmonds what had happened to Newman. Simmonds first responded that he did not know what had happened. He subsequently told Deputy Napier that he had heard a loud bang and that Newman had then fallen down the stairs.
[¶9] Shortly thereafter, Hanover Police Department Officer Max Gibson ("Officer Gibson"), who had heard the dispatch regarding a possible gunshot victim at the store, arrived at the scene. Officer Gibson also asked Simmonds what had happened to Newman. Simmonds told Officer Gibson that Newman had fallen down the stairs while holding her puppy.
[¶10] Paramedic Ronald Bennett ("Paramedic Bennett") arrived at the scene and found that Newman was unresponsive. Specifically, Newman was not breathing and had no pulse. Paramedic Bennett determined that a life-saving intervention was not going to help Newman and contacted Coroner Rodney Nay ("Coroner Nay").
[¶11] When Coroner Nay arrived at the scene, Simmonds told him that Newman had accidentally been shot while she was taking a shower. Simmond further told Coroner Nay that, after having been shot, Newman had walked down the stairs and outside to her truck.
[¶12] While law enforcement officers were investigating the scene at the store and the paramedic was tending to Newman, several Jefferson County Sheriff's Department deputies went to Newman's home. One of the deputies found an injured puppy ("the puppy") inside the home. Specifically, the puppy had a head injury that went from its nose to the back of its ear. A deputy took the puppy to an animal control officer, who took the puppy to an emergency veterinarian. After examining the puppy, the veterinarian determined that the puppy's injuries were too severe to treat and euthanized the puppy.
[¶13] The deputies at Newman's home also found burned debris near the living room window and burned curtains on Newman's front porch. The deputies searched Newman's home for a gun but were unable to find one. Thereafter, the deputies searched the area between Newman's house and the store. A deputy found a gun in a muddy ditch at the side of the road. The gun was located about a tenth of a mile from the store.
[¶14] One of the deputies transported Simmonds to the county jail. At 12:30 a.m. on May 15, 2022, Jefferson County Sheriff's Department Detective Charles Miller ("Detective Miller") interviewed Simmonds at the jail. Simmonds denied that he and Newman had been arguing the morning of the shooting and told Detective Miller that after Newman had fallen down the stairs, he had realized that she had been shot. According to Simmonds, he did not know who had shot Newman. Simmonds told Detective Miller multiple times that there had not been any guns in Newman's house. Simmonds further told Detective Miller that someone might have killed Newman for her drugs, but he did not know who that person could have been. Simmonds suggested that perhaps the neighbor had shot Newman.
[¶15] Before the State charged Simmonds with the offenses in this case, Simmonds remained in jail on a previous charge. During his incarceration, Simmonds made numerous telephone calls and sent numerous chirp messages regarding Newman's murder to family and friends.
A chirp message is a text message that an incarcerated person is able to send from the jail.
[¶16] At 10:30 a.m. on May 15, 2022, the day after the murder, Simmonds sent a chirp message to his mother. In this message, Simmonds told his mother that he was in jail and that his bond was $1,000. Simmonds further told his mother that if she did not come and get him, he was probably never coming home. Simmonds' mother asked Simmonds if he had done it or if someone else had done it. Simmonds responded that someone else had done it.
[¶17] At 11:00 a.m., Simmonds sent a chirp message to a friend and told the friend that someone had killed Newman. At 11:15 a.m., Simmonds sent a chirp message to his grandmother. In this message, Simmonds told his grandmother that someone had killed Newman and that if he did not get out on his $1,000 bond, he probably would not ever be coming home again.
[¶18] At 1:00 p.m. that same day, Detective Miller interviewed Simmonds again. Jefferson County Sheriff's Department Chief Deputy Joshua Taylor ("Chief Deputy Taylor") also participated in the interview. Simmonds told Detective Miller and Chief Deputy Taylor that Newman had been walking down the stairs when he had heard a bang. According to Simmonds, Newman had then fallen down the stairs. Simmonds further told Detective Miller and Chief Deputy Taylor that someone who had been upstairs must have shot Newman. Simmonds further stated that he did not know who could have shot Newman. In addition, Simmonds told Detective Miller and Chief Deputy Taylor that he and Newman had not been arguing the morning of the shooting and that there had not been any guns in Newman's house. Chief Deputy Taylor told Simmonds that a deputy had found a gun that appeared to have been tossed out of a vehicle and that they would be able to determine whether that gun had been used to kill Newman. Chief Deputy Taylor asked Simmonds if his fingerprints would be on the gun, and Simmonds responded that they would not.
[¶19] Following this interview, Simmonds telephoned his grandmother from the jail. Simmonds told his grandmother that law enforcement officers had talked to him again and asked him if his fingerprints would be found on the gun that had killed Newman. Simmonds told his grandmother that he had told the officers that his fingerprints would not be found on the gun. Simmonds further told his grandmother that he did not know who had shot Newman but that it had not been him. In addition, Simmonds explained to his grandmother that he had been driving Newman to the hospital when she had died in the truck. Simmonds also told his grandmother that if he did not bond out of jail, he was probably never going to come home again. Further, Simmonds told his grandmother that if the State charged him with murder, he was not going to do the time. Simmonds' grandmother responded that she knew what Simmonds was saying but that suicide was not an answer.
[¶20] During the following week, Simmonds also made numerous jailhouse telephone calls to friends. In one of the calls, Simmonds stated that he had been trying to save Newman when she had died in his arms. In another call, Simmonds told a friend that he had been driving Newman to the hospital when he had noticed a hole in her back. Further, in another call, Simmonds stated that a person named Daniel Craig had shot Newman.
[¶21] On May 24, 2022, the State charged Simmonds with murder, Level 4 felony possession of a firearm by a serious violent felon, Level 6 felony obstruction of justice, and Level 6 felony cruelty to an animal. The State also alleged that Simmonds was an habitual offender.
[¶22] While incarcerated on these charges, Simmonds continued to telephone family and friends and to send them chirp messages. Simmon told one friend that he did not think that he would ever come home again. Simmonds also told several friends that Newman had died in a freak accident. In addition, in another call, Simmonds told a friend that he had been pistol-whipping a man in Newman's home when the gun had gone off, had ricocheted off the wall, and had hit Newman.
[¶23] In June 2023, Simmonds filed a motion to exclude the jailhouse telephone calls and chirp messages from evidence during the upcoming trial. At a hearing on his motion, he argued that the telephone calls and chirp messages lacked an adequate foundation, constituted inadmissible hearsay evidence, and were irrelevant. Following the hearing, the trial court issued a detailed six-page order taking Simmonds' foundational objections under advisement pending the presentation of evidence at trial and overruling Simmonds' hearsay and relevancy objections. Regarding Simmonds' relevancy objections, the trial court specifically found as follows:
21. Here, evidence [Simmonds] asked someone to post bail for him or he is "not coming home" is evidence of consciousness of guilt. The court will allow the evidence in, so long as the State may present (and argue it) in a manner that does not implicate extrinsic acts evidence prohibited by Ind. Evidence Rule 404(b).
22. Further, the Court credits [Simmonds'] argument there may be an alternative theory on the statements he is entitled to argue to the jury, that being: [Simmonds] suggested suicide on one or more the calls/Chirps.
23. If the State wishes to present evidence he told someone over a phone call that he "is not coming home," such evidence shall only be admitted so long as the additional conversation(s) discussing suicide are included in the exhibit or otherwise made available for [Simmonds] to offer.(App. Vol. 2 at 197).
[¶24] At Simmonds' five-day trial in August 2023, the jury heard the facts as set forth above regarding the charged offenses in this case. Also, at trial, the trial court admitted into evidence, over Simmonds' objection, phone calls that Simmonds had made and chirp messages that Simmonds had sent from three different county jails before and after the State had charged him with the offenses in this case. Accordingly, the jury heard Simmonds' jailhouse telephone calls as set forth above and read the chirps messages as set forth above. The jury was not told that Simmonds had been incarcerated on other charges before the State charged him with the offenses in this case. The jury also watched videos of Simmonds' interviews with Detective Miller and Chief Deputy Taylor.
Washington County Sheriff Brent Miller testified that county jails regularly house inmates from other counties. It appears that Simmonds was housed in the Jefferson County Jail from May 14, 2022 until June 1, 2022. He was then housed in the Washington County Jail from June 1, 2022 until December 2, 2022. Simmonds was also housed in the Floyd County Jail in January and March 2023.
[¶25] In addition, Detective Miller testified that Simmonds had taken a drug test the day of Newman's murder and had tested positive for methamphetamine and amphetamines. Detective Miller also testified that he had followed up on Simmonds' allegation in a telephone call that someone named Daniel Craig had killed Newman. According to Detective Miller, Daniel Craig, whom he had interviewed, had no knowledge about the details of the case.
[¶26] In addition, Coroner Nay testified that the gunshot had pierced both of Newman's lungs and her aorta. According to Coroner Nay, Newman would not have been able to walk with such severe injuries. Rather, Coroner Nay testified that Newman would have died within minutes. Coroner Nay further testified that Newman's cause of death was a gunshot wound to her back, and the manner of death was homicide.
[¶27] In addition, a forensic firearms examiner ("the forensic firearms examiner") testified that she had performed forensic testing of the gun that had been found in the ditch near the store. According to the forensic firearms examiner, a bullet recovered from Newman's body and test-fired bullets from the gun had "similar class characteristics." (Tr. Vol. 3 at 198). Specifically, both the test-fired bullets and the bullet recovered from Newman's body had "five lands and grooves with a right twist." (Tr. Vol. 3 at 194). The forensic firearms examiner was not able to make a more conclusive determination that the bullet recovered from Newman's body had been fired from the gun found in the ditch because the bullet that had been recovered from Newman's body had been damaged.
[¶28] In addition, a forensic biologist testified that a DNA profile developed from a swab of the gun "was interpreted as a mixture of two individuals." (Tr. Vol 3 at 208). Specifically, the forensic biologist testified that this "DNA profile [was] at least one trillion times more likely if it originated from Dalton Simmonds and Christy Newman, than if it originated from two unknown, unrelated individuals." (Tr. Vol. 3 at 208).
[¶29] After the parties had rested and were discussing the final jury instructions, Simmonds tendered to the trial court a lesser-included offense instruction for voluntary manslaughter on the murder count. The trial court declined to give the instruction because it "d[id not] find that there [was] a serious evidentiary dispute on this record regarding whether there was sudden heat[.]" (Tr. Vol. 4 at 19-20).
[¶30] In the first phase of the bifurcated trial, the jury convicted Simmonds of murder, Level 6 felony obstruction of justice, and Level 6 felony cruelty to an animal. In addition, the jury found that Simmonds had knowingly or intentionally possessed a firearm. In the second phase of the trial, Simmonds waived his right to have the jury determine whether he was a serious violent felon and admitted that he had a prior qualifying felony conviction. The trial court found Simmonds to be a serious violent felon and entered judgment of conviction for Level 4 felony possession of a firearm by a serious violent felon. Also, in the second phase of trial, Simmonds waived his right to have the jury determine whether he was an habitual offender and admitted that he had two prior unrelated felony convictions. The trial court found Simmonds to be an habitual offender.
[¶31] At Simmonds' October 2023 sentencing hearing, the trial court reviewed Simmonds' presentence investigation report, which revealed that Simmonds has five prior felony convictions and three misdemeanor convictions. Specifically, Simmonds has prior felony convictions for Class B felony robbery, Class D felony receiving stolen property, Level 6 felony strangulation, Level 6 felony possession of methamphetamine, and Level 6 felony auto theft. Simmonds also has prior misdemeanor convictions for Class A misdemeanor battery, Class A misdemeanor domestic battery, and Class A misdemeanor invasion of privacy for violating a protective order. Simmonds also had several probation revocations. Further, at the time he committed the offenses in this case, Simmonds had pending charges for Level 5 felony battery, Level 4 felony possession of methamphetamine, Level 6 felony possession of a legend drug, and Class C misdemeanor possession of paraphernalia. Simmonds' presentence investigation report also revealed that Simmonds, who was twenty-nine-years old at the time a probation officer completed the report, had been using methamphetamine daily for sixteen years.
[¶32] Also, at the sentencing hearing, the State played additional telephone calls that Simmonds had made while he was incarcerated. Simmonds made one of the telephone calls to Newman in March 2022, two months before her murder, when he was incarcerated for a parole violation. During that call, Simmonds told Newman that he loved her and that he wanted to marry her when he was released. Newman told Simmonds that she wanted him to stop screaming at her, hitting her, and being cruel to her.
[¶33] In addition, the State played other telephone calls that Simmonds had made while incarcerated. In one call, Simmonds and a friend discussed a woman's pregnancy, and Simmonds stated that he would have "stomped that baby out of her motherfucking stomach." (Sentencing State's Ex. 1). In another call, Simmonds stated that he had "pistol-whipp[ed] a bitch at McDonald's." (Sentencing State's Ex. 1). And, in yet another call, Simmonds advised a friend that he needed to "beat the dog shit out of" a woman. (Sentencing State's Ex. 1).
[¶34] Also, at the sentencing hearing, a law enforcement officer testified that while Simmonds had been incarcerated, he had telephoned his brother and discussed the brother ensuring that a witness did not testify. The officer further testified that, on the day of trial, he had to find the witness, bring him to trial, and then escort him to his vehicle after he had testified because of the "intimidating looks" that he had received from Simmonds' relatives. (Tr. Vol. 4 at 85).
[¶35] The State also played an August 2023 telephone call that Simmonds had made to his current girlfriend during a lunch break in the trial in this case. That morning, the State had introduced into evidence photographs from Newman's autopsy as well as other photographs of Newman's dead body. During the telephone call, Simmonds and his girlfriend engaged in phone sex.
[¶36] At the end of the sentencing hearing, the trial court found the following aggravating circumstances:
a. [Simmonds] has a history of criminal behavior. IC 35 38-1-7.1(2).
b. [Simmonds] committed a crime of violence within hearing of a minor. IC 35-38-1-7.1(4).
c. [Simmonds] threatened harm to a witness. IC 35-38-1 7.1(10).
d. [Simmonds] is in need of correctional or rehabilitative treatment best suited for the Department of Correction.
i. Leniency and past rehabilitative treatments have not deterred [Simmonds] from committing further crimes.
ii. [Simmonds] would benefit from an extended period of incarceration. Jones v. State, 790 N.E.2d 536, 540 (Ind.Ct.App. 2003); Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996).
e. A sentence less than an enhanced sentence would depreciate the seriousness of the crime. Ajabu v. State, 722 N.E.2d 339, 343 (Ind. 2000).
f. The nature and circumstances of the offense are aggravating. Bonds v. State, 729 N.E.2d 1002, 1005 (Ind. 2000).
i. In the weeks prior to the killing, [Newman] begged [Simmonds] to stop hitting her, stop hurting her, stop screaming at her. The Court can reasonably infer that [Simmonds] was engaging in controlling and aggressive behaviors towards [Newman] which escalated ultimately to [Simmonds] shooting [Newman] to death.
g. [Simmonds] lacks remorse. Rogers v. State, 878 N.E.2d 269, 273 (Ind.Ct.App. 2007); Ballard v. State, 531 N.E.2d 196, 197-198 (Ind. 1988).
[Simmonds] engaged in phone sex over the lunch hour on Wednesday of trial, when autopsy photos and images of the deceased [Newman] were entered into evidence.
This demonstrates a shocking lack of remorse or human decency.(App. Vol. 3 at 59-60).
[¶37] Thereafter, the trial court sentenced Simmonds to sixty-two (62) years for his murder conviction, nine (9) years for his Level 4 felony possession of a firearm by a serious violent felon conviction, two (2) years for his Level 6 felony obstruction of justice conviction, and two (2) years for his Level 6 felony cruelty to an animal conviction. In addition, the trial enhanced Simmonds' sixty-two-year sentence for his murder conviction by fifteen (15) years for his habitual offender adjudication. The trial court further ordered this seventy-seven (77) year enhanced sentence and each of the two-year sentences for the two Level 6 felony convictions to run consecutively to each other. The trial court also ordered the nine-year sentence for Level 4 felony possession of a firearm to run concurrently with the other sentences, for an aggregate sentence of eighty-one (81) years to be served in the Department of Correction.
[¶38] Simmonds now appeals his murder and Level 6 felony cruelty to an animal convictions and his eighty-one-year sentence.
Decision
[¶39] Simmonds argues that: (1) the trial court abused its discretion in admitting evidence; (2) the trial court abused its discretion in instructing the jury; and (3) his sentence is inappropriate in light of the nature of the offense and the character of the offender. We address each of his contentions in turn.
1. Admission of Evidence
[¶40] Simmonds first argues that the trial court abused its discretion in admitting evidence. The admission of evidence is within the sound discretion of the trial court, and we will reverse only for an abuse of that discretion. Rogers v. State, 897 N.E.2d 955, 959 (Ind.Ct.App. 2008), trans. denied. A trial court abuses its discretion if its decision is clearly against the logic and the effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.
[¶41] Simmonds argues that the trial court abused its discretion when it admitted into evidence Simmonds' "statements that he needed to be bonded out or he may never come home." (Simmonds' Br. 18). He specifically argues that this evidence was not relevant.
[¶42] Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Evid. R. 401. In other words, "[e]vidence is relevant when it has any tendency to prove or disprove a consequential fact." Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (internal quotation marks and citation omitted). "This liberal standard for relevancy sets a low bar, and the trial court enjoys a wide discretion in deciding whether that bar is cleared." Id. (internal quotation marks and citations omitted).
[¶43] The trial court determined that this challenged evidence was admissible as consciousness of Simmonds' guilt. "Evidence of consciousness of guilt has historically been admissible as relevant evidence." Robinson v. State, 720 N.E.2d 1269, 1272 (Ind.Ct.App. 1999) (holding that Robinson's attempts to intimidate a police officer with his purported status in the community could reasonably be interpreted by the jury as evidence of his consciousness of guilt).
[¶44] Here, after telling his mother and his grandmother that Newman had been shot and killed, Simmonds told these relatives that if he did not bond out of jail that he probably would never be coming home again. Here, as in Robinson, the jury could have reasonably interpreted Simmonds' statements to his mother and his grandmother as evidence of his consciousness of guilt. Accordingly, the trial court did not abuse its discretion when it admitted Simmonds' statements into evidence.
Simmonds further argues that his "plea that his family bond him out . . . was in the context of Mr. Simmonds' having suicidal ideation." (Simmonds' Br. 16). However, we note that the trial court's order denying Simmonds' motion to exclude the jailhouse telephone calls and chirp messages specifically stated that the State's evidence that Simmonds had told family members that he was not coming home if they did not bond him out was only admissible if the additional conversation discussing suicide was included in the exhibit. The State complied with the trial court's order and included the suicide conversation in its exhibit. Thus, the jury had the opportunity to consider whether Simmonds' pleas were consciousness of his guilt or demonstrations of suicidal ideation.
2. Jury Instructions
[¶45] Simmonds next argues that the trial court abused its discretion in instructing the jury. Simmonds specifically contends that the trial court abused its discretion when it declined to give his tendered lesser-included offense instruction for voluntary manslaughter on the murder count. We disagree.
[¶46] In Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995), the Indiana Supreme Court set forth a three-part test that trial courts should perform when called upon by a party to instruct the jury on a lesser-included offense to the crime charged. First, the trial court must compare the statute defining the crime charged with the statute defining the alleged lesser-included offense to determine if the alleged lesser-included offense is inherently included in the crime charged. Id. Second, if the trial court determines that an alleged lesser-included offense is not inherently included in the crime charged under step one, then it must determine if the alleged lesser-included offense is factually included in the crime charged. Id. at 567. If the alleged lesser-included offense is neither inherently nor factually included in the crime charged, the trial court should not give an instruction on the alleged lesser-included offense. Id. Third, if a trial court has determined that an alleged lesser-included offense is either inherently or factually included in the crime charged, "it must look at the evidence presented in the case by both parties" to determine if there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater. Id. It is reversible error for a trial court not to give a requested instruction on inherently or factually included lesser offenses if there is such an evidentiary dispute. Id. We now apply this framework to the tendered lesser-included offense instruction in this case.
[¶47] Voluntary manslaughter is a lesser-included offense of murder, differing only in the presence of sudden heat, which is a mitigating factor. Watts v. State, 885 N.E.2d 1228, 1231 (Ind. 2008). Sudden heat is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). The crime of voluntary manslaughter thus "involves an 'impetus to kill' which arises 'suddenly.'" Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind.Ct.App. 2010) (quoting Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997)), trans. denied. An instruction on voluntary manslaughter is supported if there exists evidence of sufficient provocation to induce passion that renders a reasonable person incapable of cool reflection. Dearman, 743 N.E.2d at 760.
[¶48] Because the distinguishing feature between the two offenses is the presence of sudden heat, Simmonds would only be entitled to an instruction on voluntary manslaughter if there was sufficient evidence of sudden heat for the jury to conclude that voluntary manslaughter was committed but not murder. See Anderson v. State, 681 N.E.2d 703, 710 (Ind. 1997). However, our review of the record reveals no such evidence. Rather, our review of the evidence reveals that Simmonds told law enforcement officers, public officials, family, and friends several different accounts of the events that had led to Newman's death. Specifically, Simmonds stated that: (1) he did not know what had happened to Newman; (2) he had heard a loud bang and Newman had fallen down the stairs; (3) Newman had fallen down the stairs while holding her puppy; (4) Newman had accidentally been shot by an unknown assailant while taking a shower; (5) Newman had fallen down the stairs after she had been shot by an unknown assailant who must have been upstairs; (6) Newman had died in a freak accident; (7) Daniel Craig had shot Newman; (8) Simmonds was pistolwhipping a man in Newman's house, the gun went off, a bullet ricocheted off the wall, and the bullet hit Newman. None of Simmonds accounts of the events leading to Newman's death support the giving of a voluntary manslaughter instruction because these accounts contain no evidence of sudden heat.
[¶49] The only other evidence regarding the events that led to Newman's death was revealed through Castillo's testimony. Specifically, Castillo testified that after Simmonds had gone into the house, Castillo had heard Simmonds and Newman arguing and had heard Newman yell "stop[.]" (Tr. Vol. 2 at 108). Immediately thereafter, Castillo had heard a gunshot. Words alone do not constitute sufficient provocation to warrant a jury instruction on voluntary manslaughter. Suprenant, 925 N.E.2d at 1282 (holding that words alone will not constitute sufficient provocation to warrant a voluntary manslaughter instruction, especially when the words are not designed to intentionally provoke the defendant). Because the record reveals no evidence of sudden heat, Simmonds was not entitled to an instruction on voluntary manslaughter, and the trial court did not abuse its discretion in refusing to give one.
3. Inappropriate Sentence
[¶50] Simmonds also argues that his aggregate eighty-one (81) year sentence is inappropriate. Indiana Appellate Rule 7(B) 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 of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on 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." Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[¶51] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, the trial court entered judgment of conviction for murder, a Level 4 felony, and two Level 6 felonies. Simmonds was also adjudicated to be an habitual offender.
[¶52] The sentencing range for murder is from forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-five (55) years. I.C. § 35-50-2-3(a). The sentencing range for a Level 4 felony is between two (2) and twelve (12) years, and the advisory sentence is six (6) years. IND. CODE § 35-50-2-5.5. The sentencing range for a Level 6 felony is between six (6) months and two and one-half (2%) years, and the advisory sentence is one (1) year. I.C. § 35-50-2-7(b). Further, the habitual offender sentencing enhancement for a person convicted for murder or a Level 1 through Level 4 felony is between eight (8) and twenty (20) years. I.C. § 35-50-2-8(i)(1).
[¶53] Here, the trial court sentenced Simmonds to sixty-two (62) years for his murder conviction, nine (9) years for his Level 4 felony possession of a firearm by a serious violent felon conviction, two (2) years for his Level 6 felony obstruction of justice conviction, and two (2) years for his Level 6 felony cruelty to an animal conviction. In addition, the trial court enhanced Simmonds' sixty-two-year sentence for his murder conviction by fifteen (15) years for his habitual offender adjudication. The trial court further ordered this seventy-seven (77) year enhanced sentence and each of the two-year sentences for the two Level 6 felony convictions to run consecutively to each other. The trial court also ordered the nine-year sentence for Level 4 felony possession of a firearm to run concurrently with the other sentences, for an aggregate sentence of eighty-one (81) years. This eighty-one-year sentence is less than the potential ninety-year sentence that the trial court could have imposed.
[¶54] With regard to the nature of the offense, we note that Simmonds shot Newman, with whom he was involved in a relationship, in the back and so severely injured Newman's puppy that the puppy had to be euthanized. Simmonds then carried Newman to her truck, dropped her, picked her back up and pushed her into the truck. While driving Newman to a nearby store, Simmonds tossed the gun that he had used to shoot Newman out of the truck and into a muddy ditch along the side of the road. Newman died as a result of the gunshot wound.
[¶55] With regard to Simmonds's character, we note that Simmonds, who was twenty-eight years old when he committed the offenses in this case, has an extensive criminal history that includes five prior felony convictions and three misdemeanor convictions. Simmonds has also had several probation revocations. Further, at the time he committed the offenses in this case, Simmonds had pending charges for Level 5 felony battery, Level 4 felony possession of methamphetamine, Level 6 felony possession of a legend drug, and Class C misdemeanor possession of paraphernalia.
[¶56] We further note that Simmonds' poor character is exemplified by his treatment of Newman before he murdered her. Specifically, as noted by the trial court, two months before Newman's murder, Newman begged Simmonds to stop hitting her, hurting her, and screaming at her. Simmonds' aggressive behavior towards Newman escalated and ultimately led to her death.
[¶57] Simmonds' poor character is further illustrated by the jailhouse telephone calls wherein Simmonds stated that he would have stomped a baby out of a pregnant woman's stomach and that he had pistol-whipped a woman at McDonald's. In another jailhouse telephone call, Simmonds advised a friend to beat a woman. We further note that Simmonds threatened harm to a witness who testified at his trial and engaged in phone sex with his girlfriend during a lunch break in his trial shortly after the State had introduced into evidence photographs from Newman's autopsy as well as other photographs of Newman's dead body.
[¶58] Based on the nature of the offenses and his character, Simmonds has failed to persuade this Court that his aggregate eighty-one (81) year sentence is inappropriate.
[¶59] Affirmed.
Bailey, J., and Crone, J., concur.