Opinion
23A-CR-2450
09-16-2024
Trueth Korleon Griffin, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Mark F. James Mark James Legal, LLC South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler G. Banks 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Superior Court The Honorable Jeffrey L. Sanford, Judge Trial Court Cause No. 71D03-2112-F1-27
ATTORNEY FOR APPELLANT Mark F. James Mark James Legal, LLC South Bend, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ROBB, SENIOR JUDGE.
Statement of the Case
[¶ 1] Trueth Griffin appeals his convictions and sentences for aggravated battery and two counts of criminal recklessness, arguing insufficient evidence, instructional error, and inappropriate sentence. Finding no basis for reversal on any of these claims, we affirm.
Issues
[¶ 2] Griffin presents three issues for our review, which we restate as:
I. Whether there was sufficient evidence to support Griffin's convictions.
II. Whether the court erred in instructing the jury.
III. Whether Griffin's sentence is inappropriate.
Facts and Procedural History
[¶ 3] Two similar shooting incidents occurred in South Bend in the fall of 2021. On
September 20, a GMC Yukon driven by Jessica Marshall was shot. On October 7, a similar GMC Yukon driven by Tyler Brown, and also occupied by his father Anthony, was shot. In the second shooting, a bullet entered the vehicle and hit Tyler in the head, severely injuring him. Investigation of these incidents led police to suspect Griffin was the perpetrator.
[¶ 4] The State subsequently charged Griffin with attempted murder, aggravated battery, and two counts of criminal recklessness. A jury found Griffin guilty of aggravated battery and both counts of criminal recklessness, and the court sentenced him to an aggregate term of fifteen years. Griffin now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[¶ 5] Griffin first contends the State's evidence is insufficient to sustain his convictions. The only evidence he challenges with regard to his three convictions is that which identifies him as the shooter.
[¶ 6] When we review a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind.Ct.App. 2015), trans. denied. Instead, we consider only the evidence most favorable to the verdict and any reasonable inferences drawn therefrom. Id. If there is substantial evidence of probative value from which a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind.Ct.App. 2015). When an appellant challenges the sufficiency of the evidence of his convictions after a jury verdict, "the appellate posture is markedly deferential to the outcome below ...." Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). More particularly, "[t]he identity of the perpetrator of a crime is a question of fact, not law, and the weight given to identification evidence and any determination of whether it is satisfactory or trustworthy is a function of the trier of fact." Watkins v. State, 551 N.E.2d 1145, 1147 (Ind. 1990).
[¶ 7] At trial, the court informed the jury that Griffin and the State had stipulated to certain facts, including that on September 13, 2021, Elkhart police were dispatched to the area of Griffin's mother's house in reference to shots fired. While at the scene, officers collected several bullet casings, which were admissible as evidence in the present case.
[¶ 8] The State then called as a witness Ray Wolfenbarger, a firearm and toolmark examiner with the South Bend Police Department Crime Lab. Wolfenbarger testified that he had analyzed the two nine millimeter casings from the Elkhart incident and compared them to the casings from the vehicle shootings in this case, which were also nine millimeter, and determined that they all were fired by the same weapon. The State additionally played for the jury Griffin's interview with police, in which he stated that in the Elkhart incident he shot a M&P Shield nine millimeter. Ex. Vol. 8, State's Ex. 256 at 7:24-33.
[¶ 9] The State also presented the testimony of Timothy Wiley, a Detective with the Mishawaka Police Department. Detective Wiley explained that Griffin became a person of interest in this case when he learned that the ballistics here matched those from the Elkhart case because he already had information that it was Griffin who fired the shots near his mother's home in Elkhart. To further this investigation, Detective Wiley obtained Griffin's cell phone records, which showed Griffin's cell phone connecting to towers near the shootings on the dates and times they occurred.
[¶ 10] Likewise, Detective Wiley obtained records from Griffin's Facebook account, which showed posts of a Smith &Wesson M&P Shield handgun with a flashlight accessory. A flashlight accessory found at the scene of one of the shootings appears to match the one displayed by Griffin on Facebook. The Facebook records additionally include a video of Griffin holding a handgun and a picture of Griffin with a handgun in his lap, both of which appear to depict the same M&P Shield handgun. Griffin also posted twenty days after the shooting of Tyler Brown asking if anyone wants to buy his M&P gun.
[¶ 11] It is well established that circumstantial evidence alone may support a conviction. Harbert v. State, 51 N.E.3d 267, 275 (Ind.Ct.App. 2016), trans. denied. Here, the jury heard the evidence and found it satisfactory to identify Griffin as the shooter, and therefore we conclude the evidence was sufficient. For us to conclude otherwise would invade the exclusive province of the jury. See Gantt v. State, 825 N.E.2d 874, 878 (Ind.Ct.App. 2005) (recognizing jury's province to accept or reject evidence as it sees fit).
II. Jury Instruction
[¶ 12] Next, Griffin alleges the trial court erred by failing to give the jury a Hampton instruction. In resolving this issue, we initially observe that to preserve for appellate review an issue regarding the propriety of a trial court's refusal to give a proposed jury instruction, a party must comply with Appellate Rule 46(A)(8)(e). Rule 46(A)(8)(e) provides that when error is predicated on the giving or refusing of any instruction, the instruction must be set out verbatim in the argument section of the brief with the verbatim objections, if any. Failure to comply with this mandate results in waiver of the issue on appeal. Richardson v. State, 697 N.E.2d 462, 465 (Ind. 1998) (applying former Appellate Rule 8.3(A)(7), which is identical to Rule 46(A)(8)(e), the current version of the rule).
[¶ 13] Griffin did not set out his proposed instruction in his brief. Consequently, he has waived any issue regarding the propriety of the court's refusal to give the instruction. Waiver notwithstanding, Griffin's argument still fails.
[¶ 14] 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.
[¶ 15] In Hampton v. State, 961 N.E.2d 480, 486 (Ind. 2012), our Supreme Court discussed direct and circumstantial evidence and stated that "there is a qualitative difference" between the two "with respect to the degree of reliability and certainty they provide as proof of guilt." The Court then held that
when the trial court determines that the defendant's conduct required for the commission of a charged offense, the actus reus, is established exclusively by circumstantial evidence, the jury should be instructed as follows: In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.Id. at 491.
[¶ 16] Griffin's proposed instruction included the italicized portion of the Hampton decision set out above. See Appellant's App. Vol. 2, p. 57. The trial court instead instructed the jury as follows:
The parties in this case may prove a fact by one of two types of evidence-direct evidence or circumstantial evidence.
Direct evidence is direct proof of a fact. Circumstantial evidence is indirect proof of a fact.
For example, direct evidence that an animal ran in the snow might be the testimony of someone who actually saw the animal run in the snow. On the other hand, circumstantial evidence that an animal ran in the snow might be the testimony of someone who only saw the animal's tracks in the snow.
It is not necessary that any fact be proved by direct evidence. You may consider both direct evidence and circumstantial evidence as proof.Id. at 91; Tr. Vol. 4, pp. 36, 85. Griffin's proposed instruction correctly states the law and was not covered by another instruction. Accordingly, we must consider whether the record supports giving the instruction-i.e., whether the actus reus of aggravated battery and criminal recklessness was established solely by circumstantial evidence. See Hampton, 961 N.E.2d at 491.
[¶ 17] Here, no one witnessed Griffin shooting at the vehicles, and he did not confess to the acts. And the State acknowledges that its evidence against Griffin consisted of circumstantial proof. See Appellee's Br. p. 16. We thus conclude the trial court abused its discretion when it refused to instruct the jury consistent with Hampton.
[¶ 18] Yet, even if the court's refusal to give a tendered instruction was error, we must assess whether the error was harmless by determining whether it affected the substantial rights of a party. Lawson v. State, 199 N.E.3d 829, 838 (Ind.Ct.App. 2022), trans. denied. Instructional error is harmless where a conviction is clearly sustained by the evidence and the instruction was not likely to have affected the jury's verdict. Id.
[¶ 19] Here, the State presented considerable evidence establishing that Griffin was the person who fired shots at the vehicles. Data from Griffin's cell phone placed him in the area of both shootings on the dates and times they occurred. In addition, records from Griffin's Facebook account showed posts of a Smith &Wesson M&P Shield handgun with a flashlight accessory that matched one found at the scene of one of the shootings as well as posts showing Griffin possessing a M&P Shield handgun. And after the shootings, Griffin posted seeking a buyer for the handgun. The State also presented ballistics evidence showing that the nine millimeter casings from these shootings were fired from the same handgun that was used in the Elkhart incident and Griffin's statement that he shot a M&P Shield nine millimeter in the Elkhart incident.
[¶ 20] In light of this overwhelming evidence supporting Griffin's convictions, the proposed instruction was not likely to have affected the jury's verdict. For this reason, the trial court's erroneous refusal to instruct the jury as Griffin proposed was harmless.
III. Inappropriate Sentence
[¶ 21] Lastly, Griffin argues that the sentence imposed by the trial court-consecutive, advisory terms-was inappropriate. Indiana Appellate Rule 7(B) authorizes us to revise a sentence if we determine it to be inappropriate in light of the nature of the offense and the character of the offender. Our determination "turns on our sense of 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). Sentence modification under Rule 7(B) is reserved for rare and exceptional cases. Wilmsen v. State, 181 N.E.3d 469, 472 (Ind.Ct.App. 2022) (quoting Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018)).
[¶ 22] Our Supreme Court has long said that sentencing is "'principally a discretionary function in which the trial court's judgment should receive considerable deference.'" Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell, 895 N.E.2d at 1222)). This deference prevails 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).'" Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind.Ct.App. 2023) (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)), trans. denied. The defendant bears the burden of persuading the appellate court that his sentence is inappropriate. Reynolds v. State, 142 N.E.3d 928, 944 (Ind.Ct.App. 2020), trans. denied.
[¶ 23] Griffin was convicted of aggravated battery as a Level 3 felony and two counts of Level 5 felony criminal recklessness. The sentencing range for a Level 3 felony is between three and sixteen years, with an advisory sentence of nine years. Ind. Code § 35-50-2-5 (2014). The sentencing range for a Level 5 felony is between one and six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6 (2014). The trial court determined that advisory sentences were appropriate for all three of Griffin's convictions and ordered them to be served consecutively. Inasmuch as the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime, the defendant bears a particularly onerous burden in persuading us that his sentence is inappropriate when the trial court has imposed the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind.Ct.App. 2011), trans. denied.
[¶ 24] The nature of the offense is found in the details and circumstances surrounding the offense, including the heinousness and brutality of such, and the defendant's participation therein. Pritcher v. State, 208 N.E.3d 656, 668 (Ind.Ct.App. 2023). Although Griffin stands silent on the nature of his offenses, our assessment reveals they were violent and senseless. He shot at strangers' vehicles causing property damage in both cases and severe permanent injuries to a teenager in one instance. As a result of being shot in the head by Griffin, Tyler Brown was not expected to live. He underwent emergency surgery, after which he spent months in rehabilitation learning to walk and speak again. The bullet remains in Tyler's head, and he still has difficulty using his right arm and reading, among other things. In sum, these offenses involve brutality, lack of restraint, and lack of regard for human life. We are not persuaded that the nature of these offenses warrants a revision of Griffin's sentence.
[¶ 25] 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. Id. Griffin points to his lack of criminal history in support of his argument but otherwise offers no compelling evidence of a substantial virtuous trait or persistent examples of good character to overcome the deference we show to a trial court's sentence.
[¶ 26] While it appears that the present case represents Griffin's first adult conviction, he had other pending cases at the time of sentencing. Moreover, we will not ignore the fact that before committing these crimes, Griffin had extensive contact with the juvenile justice system, some of which resulted in adjudications. We are mindful that, although a record of arrests by itself is not evidence of a defendant's criminal history, it is appropriate to consider such a record as a poor reflection on the defendant's character because it may reveal that he has not been deterred even after having been subjected to police authority. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App. 2007).
[¶ 27] Specifically, Griffin's presentence investigation report shows that he was first arrested at the age of eight and first adjudicated at the age of fourteen. See Appellant's App. Vol. 2 Confid., p. 136. His adjudications include escape, resisting law enforcement, burglary, and multiple probation violations. Despite this frequent contact with the criminal justice system, Griffin was not deterred from committing more offenses, and this history of criminal activity reflects poorly on his character.
[¶2 8] Additionally, to the extent that Griffin asserts it was inappropriate for the court to impose consecutive sentences, we note that, with few exceptions, it is within the trial court's discretion whether to order sentences be served concurrently or consecutively. See Ind. Code § 35-50-1-2(c) (2020). And "'[c]onsecutive sentences reflect the significance of multiple victims.'" Fernbach, 954 N.E.2d at 1089 (quoting Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008)). Here, there were three victims- Jessica Marshall, Anthony Brown, and Tyler Brown. We cannot say the court's decision to impose consecutive sentences was inappropriate.
[¶ 29] After considering the nature of the offenses and the character of the offender and giving due consideration to the trial court's sentencing decision, we are unable to say that Griffin has met his burden of demonstrating that his sentence is inappropriate.
Conclusion
[¶ 30] We conclude the State's evidence was sufficient to sustain Griffin's convictions and, waiver notwithstanding, though it was error for the trial court to refuse Griffin's tendered Hampton instruction, the error was harmless. Further, we conclude Griffin's aggregate fifteen-year sentence is not inappropriate.
[¶ 31] Affirmed.
Brown, J., and Weissmann, J., concur.