Opinion
22A-CR-2193
07-26-2023
Leon Chew, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm, P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Steven P. Meyer, Judge Trial Court Cause No. 79D02-2101-MR-2
ATTORNEY FOR APPELLANT
Bruce W. Graham
Graham Law Firm, P.C.
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Baker, Senior Judge.
Statement of the Case
[¶1] Leon Chew and the victim in this case, Germanine Shernique Thomas, had a rocky relationship. Chew had previously pointed a gun at Thomas and threatened to kill her, and, unfortunately on this particular occasion, he made good on his threat. Having been found guilty of murdering Thomas and adjudged an habitual offender, Chew appeals. Determining there was no instructional error, there is sufficient evidence supporting his habitual offender adjudication, and his sentence is not inappropriate, we affirm.
Issues
[¶2] Chew presents three issues for our review, which we restate as:
I. Whether the trial court abused its discretion by refusing to give Chew's proposed instruction on the defense of accident.
II. Whether Chew's adjudication as an habitual offender is supported by sufficient evidence.
III. Whether Chew's sentence for murder is inappropriate in light of the nature of the offense and his character.
Facts and Procedural History
[¶3] Chew lived with Thomas, their three young boys, and Thomas' two teenagers, Quavonyae and Daijahnique. In January 2021, Thomas arrived home late in the evening and went upstairs to her bedroom, which was directly above her daughter Daijahnique's bedroom. Daijahnique heard Chew and Thomas arguing and then heard a loud noise. A few minutes later, Chew came downstairs to get Daijahnique. Chew, who appeared to be drunk, was very "nervous" and "antsy" and told Daijahnique she needed to hurry and go upstairs. Tr. Vol. 3, p. 18. When Daijahnique got upstairs and saw her mother, she ran to get her brother, Quavonyae. The teenagers called 911, and Chew left the house. Thomas died as a result of a gunshot wound to the head.
[¶4] A few days later police received a call from a church located about four blocks from Thomas' residence. The caller informed them that a gun had been found on the roof of the church carport. The gun was a Springfield XDS nine millimeter. Subsequent testing showed that a fingerprint on the gun matched Chew's and that a shell casing recovered from the scene was shot from the Springfield gun. In addition, police retrieved data from the GPS in Chew's cell phone that placed him at the church the night of the murder.
[¶5] Jacqueli Fletcher, Thomas' sister, testified at trial that on two separate occasions she witnessed Chew point a gun at Thomas and threaten to kill her. Chew testified on his own behalf and stated that they had kept a Springfield gun at the house. According to Chew, on the night in question, he was having a discussion with Thomas, who had her back to him. When she turned to face him, she had a gun in each hand. When he attempted to take the guns away from Thomas, a skirmish ensued and Thomas was shot.
[¶6] The State charged Chew with murder, a felony; two counts of unlawful possession of a firearm by a serious violent felon, as Level 4 felonies; obstruction of justice, a Level 6 felony; carrying a handgun without a license, a Class A misdemeanor; and carrying a handgun without a license with a prior felony conviction, a Level 5 felony. The State also alleged that Chew unlawfully used a firearm in committing murder and that he is an habitual offender. The State dismissed both counts of unlawful possession of a firearm by a serious violent felon, and a jury found Chew guilty of murder, obstruction of justice, and carrying a handgun without a license in the first phase of a bifurcated trial. In phase two, the jury found Chew guilty of carrying a handgun without a license with a prior felony conviction and adjudged him to have unlawfully used a firearm and to be an habitual offender.
Ind. Code § 35-42-1-1 (2018).
Ind. Code § 35-47-4-5 (2020).
Ind. Code § 35-44.1-2-2 (2017).
Ind. Code § 35-47-2-1 (2017).
Id.
Ind. Code § 35-50-2-11 (2016).
Ind. Code § 35-50-2-8 (2017).
[¶7] At sentencing, the court merged the misdemeanor carrying a handgun without a license into the felony offense of carrying a handgun without a license with a prior felony conviction. The court then sentenced Chew to sixty-five years for murder, with a consecutive two-year sentence for obstruction of justice and a concurrent five-year term for carrying a handgun without a license with a prior felony conviction. Additionally, the court ordered enhancements of ten years for unlawful use of a firearm and fifteen years for being an habitual offender for an aggregate sentence of ninety-two years. Chew now appeals.
Discussion and Decision
I. Jury Instruction
[¶8] Chew contends the trial court erred in refusing his tendered jury instruction on the defense of accident. Instructing the jury lies solely within the discretion of the trial court, and we will reverse only upon an abuse of that discretion. Ellis v. State, 194 N.E.3d 1205, 1214 (Ind.Ct.App. 2022), trans. denied. When determining whether a trial court erroneously gave or refused to give a tendered instruction, we consider the following: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that were given. Mathews v. State, 186 N.E.3d 1172, 1177 (Ind.Ct.App. 2022), trans. denied. We will reverse a conviction only if the appellant demonstrates that the instructional error prejudiced his substantial rights. Id.
[¶9] Chew's Proposed Instruction No. 2 stated:
The defense of accident has bee[n] raised as an issue in this case. In general, prohibited conduct may be excused when it is the result of an accident.
The defense contains three (3) elements:
1. The conduct must have been unintentional, or without unlawful intent or evil design on the part of the accused;
2. The act resulting in injury must not have been an unlawful act;
3. The act must not have been done recklessly, carelessly or in wanton disregard of the consequences.
Th[e] State has the burden of disproving this defense beyond a reasonable doubt.
Appellant's App. Vol. II, p. 144. The court refused the instruction, stating:
I am denying the accident instruction based upon the case of Springer v. State which basically overruled the use of the accident instruction, and I understand there's some language in that opinion and that the cite is 779 N.E.2d 555, which the Defense referred to that the Court said that there may be some situations in which the accident instruction may be appropriate. However, I also read the subsequent opinion by the Supreme Court on Springer, which is 792 N.E.2d 39 (2003), and after reading that and some other following cases, I've decided that I don't think [an] accident instruction is proper here. You can certainly argue accident by just simply arguing that the State has not met its elements on either the murder or the recklessness. So therefore I'm denying that.Tr. Vol. 4, p. 58.
[¶10] The focus of the parties' arguments is whether the substance of the tendered instruction is encompassed in the instructions that were given. For his part, Chew asserts that "no mention of accident was made in any of the other court instructions," and he attempts to distinguish this Court's decision in Springer v. State, 779 N.E.2d 555 (Ind.Ct.App. 2002), trans. granted, adopted in relevant part, 798 N.E.2d 431 (Ind. 2003). Appellant's Br. p. 16.
[¶11] In that case, Springer tendered an instruction on accident at his trial for criminal recklessness. The trial court refused to give the instruction, in part, based on its view that the substance of the accident instruction was already included in the court's instruction setting forth the elements of the crime and the State's burden of proof; thus, if the State proved Springer was reckless, then Springer's conduct was not an accident. The trial court also noted that the accident instruction had been withdrawn from the pattern jury instructions. On appeal, this Court further observed that the accident instruction had been withdrawn from the pattern instructions because the Indiana Judges Association Criminal Instructions Committee "could not conceive of a situation where the principles incorporated in the accident instruction would not be covered by other instructions which discussed the elements of the crime and the State's burden of proof." Springer, 779 N.E.2d at 562. The Court agreed with the trial court and the Committee that the principles established in the accident instruction were included in the instructions defining the elements of the crime and affirmed the trial court's refusal to give the instruction. Id. at 562-63. On transfer, our Supreme Court adopted this Court's reasoning with respect to this issue. See Springer v. State, 798 N.E.2d 431, 436 (Ind. 2003) ("[The Court] reasoned that 'were the jury to decide that the shooting was a result of an accident, there is no question that the jury could not find that he was reckless'.... We adopt the opinion of the Court of Appeals on this point.").
[¶12] Here, the instruction on the crime of murder stated as follows:
Before you may convict the Defendant, Leon Chew, Jr., of Count I, Murder, the State must have proved each of the following beyond a reasonable doubt:
1) The Defendant
2) knowingly or intentionally
3) killed
4) Germanine Shernique Thomas.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant, Leon Chew, Jr., not guilty of Murder, a Felony, as charged in Count I.
If the State proved each of these elements beyond a reasonable doubt, you may find the Defendant, Leon Chew, Jr., guilty of Murder, a Felony, as charged in Count I.
Appellant's App. Vol. II, p. 169. In addition, the trial court granted Chew's request to give a reckless homicide instruction. That instruction stated:
Reckless Homicide is included in Count I Murder. If the State proves the Defendant guilty of Murder, you need not consider the included crime. However, if the State fails to prove the Defendant committed Murder, you may consider whether the
Defendant committed Reckless Homicide, which the Court will define for you. A person who recklessly kills another human being commits Reckless Homicide, a level 5 felony.
Before you may convict the Defendant of Reckless Homicide, the State must have proved each of the following beyond a reasonable doubt:
1) The Defendant
2) Recklessly
3) killed
4) Germanine Shernique Thomas
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Reckless Homicide an included offense of Count I.
If the State did prove each of these elements beyond a reasonable doubt, you may find the Defendant guilty of Reckless Homicide, a Level 5 felony, an included offense of Count I.Id. at 170.
[¶13] "'The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.'" Lawson v. State, 199 N.E.3d 829, 838 (Ind.Ct.App. 2022) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)), trans. denied. Here, the jury was instructed on both the elements and the requisite mens rea of murder and reckless homicide. The jury was also instructed that the State bore the burden of establishing these elements beyond a reasonable doubt and that its failure to do so would require acquittal. If the State proved that Chew acted knowingly or intentionally, or recklessly, in shooting Thomas, it necessarily negated a claim that his conduct was accidental. Accordingly, we agree with the trial court's reasoning and our colleagues in Springer that the principles articulated in the accident instruction are included in the instructions that were given and that the jury was not misled as to the applicable law. Moreover, Chew cannot show that his substantial rights were prejudiced by this alleged instructional error because, were the jury to decide that the killing of Thomas was the result of an accident, there is no question that the jury could not find that he acted knowingly, intentionally, or recklessly. The trial court did not err in refusing to give the tendered accident instruction.
II. Habitual Offender
[¶14] Chew next claims the State failed to establish that he is an habitual offender. Specifically, he alleges the evidence was insufficient to prove his identity as the person who was convicted of the prior felonies.
[¶15] To establish that Chew is an habitual offender, the State was required to prove that he had been convicted of two prior unrelated felonies. Ind. Code § 35-50-2-8(b). While certified copies of judgments or commitments containing the same or similar name as the defendant may be introduced to prove the commission of prior felonies, there must be other supporting evidence to identify the defendant as the same person named in the documents. Walker v. State, 988 N.E.2d 1181, 1187 (Ind.Ct.App. 2013) (quoting Baxter v. State, 522 N.E.2d 362, 365 (Ind. 1988)), trans. denied. This identity evidence may be circumstantial. Id. "'A sufficient connection between the documents and the defendant is made if the evidence yields logical and reasonable inferences from which the trier of fact may determine it was indeed the defendant who was convicted of the two felonies alleged.'" Id.
[¶16] Here, during the second phase of Chew's trial, the State introduced Exhibits 44, 45-R, and 46-R, to which Chew did not object. Exhibit 45-R is a certified statement of conviction/disposition from the Circuit Court of Cook County, Illinois for case number 02CR2914201 entitled People of the State of Illinois v. Tyson Smith. The offense involved is receiving/possessing/selling a stolen vehicle with a sentence of three years and a sentencing date of April 14, 2003. The State indicated to the jury that Tyson Smith is an alias of Chew's and pointed to Exhibit 44 containing certified records from the Illinois Department of Corrections showing Chew's name, date of birth, Illinois Department of Corrections number, and photo. Chew's Illinois offender records show a match to the Tyson Smith conviction-case number 02CR2914201 in Cook County for receiving/possessing/selling a stolen vehicle with a sentence of three years and a sentencing date of April 14, 2003.
[¶17] State's Exhibit 46-R is a certified statement of conviction/disposition from the Circuit Court of Cook County, Illinois for case number 10CR1613001 entitled People of the State of Illinois v. Leon Chew. That case involved the manufacturing/ delivery of heroin with a sentence of four years and a sentencing date of August 21, 2012. Again, Chew's Illinois offender records in Exhibit 44 show case number 10CR1613001 in Cook County for possessing a controlled substance with a sentence of four years and a sentencing date of August 21, 2012.
[¶18] Thus, we conclude that the documents reviewed by the jury yield a logical and reasonable inference that Chew was previously convicted of two separate felonies. Consequently, there was sufficient evidence from which the jury could find beyond a reasonable doubt that Chew is an habitual offender. See, e.g., Tate v. State, 835 N.E.2d 499, 511 (Ind.Ct.App. 2005) (concluding there was sufficient evidence for jury to find defendant was previously convicted of burglary where State presented certified abstract of judgment, certified plea agreement, and certified commitment record all bearing same cause number and containing information identifying defendant), trans. denied.
III. Inappropriate Sentence
[¶19] Lastly, Chew argues that his sentence for his conviction of murder is inappropriate because the nature of the offense and his character do not justify a maximum term. He requests a sentence reduction of five years.
[¶20] 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 determine that the sentence is inappropriate in light of the nature of the offense and the character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind.Ct.App. 2014) (quoting Reid v. State, 876 N.E.2d 1114, 1116 (Ind. 2007)). Our Supreme Court has long said that "sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). Accordingly, the defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
A. Nature of the Offense
[¶21] Our analysis of the nature of the offense starts with the advisory sentence, as it is the starting point selected by the legislature as an appropriate sentence for the crime. Reis v. State, 88 N.E.3d 1099, 1104 (Ind.Ct.App. 2017). A jury found Chew guilty of murder. A person who commits murder shall be imprisoned for a fixed term of between forty-five and sixty-five years, with the advisory sentence being fifty-five years. Ind. Code § 35-50-2-3 (2015). The court sentenced Chew to the maximum sentence of sixty-five years.
[¶22] The nature of the offense is found in the details and circumstances surrounding the offense and the defendant's participation therein. Perry v. State, 78 N.E.3d 1, 13 (Ind.Ct.App. 2017). More specifically, we may examine the nature, extent, heinousness, and brutality of the offense as well as consider the defendant's position of trust relative to the victim. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). When evaluating a defendant's sentence that deviates from the advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence. Moyer v. State, 83 N.E.3d 136, 142 (Ind.Ct.App. 2017) (quoting Holloway v. State, 950 N.E.2d 803, 807 (Ind.Ct.App. 2011)), trans. denied.
[¶23] Chew acknowledges that he was found guilty of murdering the mother of his three young children in an episode of domestic violence, yet he contends that, because all murders are tragic, the maximum sentence in this instance is not justified. We disagree. The nature of Chew's offense was particularly brutal. He shot Thomas in the head while her five children, three of which Chew fathered, were present in the home. Chew then woke Thomas' teenage daughter to see her mother lying in a pool of blood. While Chew's three children slept and Thomas' teenage children called for help to try to save their mother, Chew went to a friend's house and played video games all night.
B. Character of the Offender
[¶24] Our analysis of a defendant's character involves a broad consideration of a defendant's qualities, including age, criminal history, background, past rehabilitative efforts, and remorse. Pritcher, 208 N.E.3d at 668. In examining a defendant's criminal history, the significance varies based on the gravity, nature, temporal proximity, and number of prior offenses in relation to the current offense. Id. However, even a minor criminal record reflects poorly on a defendant's character. Id.
[¶25] Chew concedes his criminal history was appropriately considered by the trial court. His criminal history consists of misdemeanor convictions for trespass, consumption/intoxication, assault causing bodily injury, criminal mischief, theft, resisting law enforcement, representing another's license as his own, and attempted theft. His felony convictions consist of possession of a controlled substance, manufacturing/dealing a controlled substance, and possession of a stolen vehicle. Moreover, at the time of sentencing, he had a case with six charges pending in which he had failed to appear and another pending charge of battery resulting in moderate bodily injury from an incident while he was in jail awaiting trial. Also reflecting poorly on Chew's character is the fact that there have been six petitions to revoke his probation, and his probation was unsuccessfully terminated twice. In sum, Chew's criminal history reflects an overall pattern of unwillingness to comply with the law, even in supervised settings.
[¶26] We cannot say that Chew has shown that his murder of Thomas was accompanied by restraint, regard, or lack of brutality or that his character reveals "substantial virtuous traits or persistent examples of good character" such that his requested reduction of his sentence is warranted. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, Chew has not shown that his sentence is inappropriate in light of the nature of the offense and his character.
Conclusion
[¶27] Based upon the foregoing, we conclude the trial court did not err in refusing to give the tendered instruction on the defense of accident, there was sufficient evidence to support Chew's adjudication as an habitual offender, and his sentence is not inappropriate in light of the nature of his offense and character.
[¶28] Affirmed.
Riley, J., and Mathias, J., concur.