Opinion
24A-CR-695
11-15-2024
Mitchell W. Page, 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 Indiana Attorney General, Tyler Banks Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Miami Circuit Court The Honorable Timothy P. Spahr, Judge Trial Court Cause No. 52C01-2105-MR-000001
ATTORNEY FOR APPELLANT Mark F. James Mark James Legal, LLC South Bend, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General, Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE
Statement of the Case
[¶1] Mitchell Page shot and killed three people, including a four-year-old child. After a short investigation, law enforcement discovered the gun Page had used in a cargo trailer on Page's father's property. The State charged Page with three counts of murder, and a jury found him guilty as charged. The trial court ordered Page to serve three consecutive 65-year sentences executed in the Indiana Department of Correction ("DOC"). Page presents four issues for our review:
1. Whether law enforcement violated Page's rights under the Indiana and United States Constitutions when executing a search warrant;
2. Whether the trial court committed fundamental error by failing to sua sponte give a reasonable theory of innocence instruction;
3. Whether the State presented sufficient evidence at trial to support Page's three convictions for murder; and
4. Whether Page's sentence is inappropriate under Indiana Appellate Rule 7(B).
[¶2] We affirm.
Facts and Procedural History
[¶3] Page and Jessica Sizemore started dating in high school, but they broke up in 2014 shortly before the birth of their daughter H.S. Page and Sizemore shared custody of H.S.; Page initially had parenting time with H.S. only on weekends, but later he began having parenting time with H.S. every other week.
[¶4] In 2021, Sizemore was living in a home with her boyfriend Jessiah Hall and two children-four-year-old R.S. and two-year-old J.S.-while Page lived with his father Mark Gosney. Page would go to Sizemore's home every Sunday to pick up or drop off H.S. for the week.
[¶5] On the morning of Sunday, May 16, 2021, Page drove his truck to Sizemore's home to pick up H.S. Sandra Jones, Sizemore's neighbor, was outside that morning and witnessed Page and Sizemore arguing on Sizemore's porch. Page and Sizemore were "arguin' and screamin' at each other" to the point where "the whole neighborhood could hear." Tr. Vol. II at 166. Page spent about 30 minutes at Sizemore's home, and then he left with H.S.
[¶6] At approximately 2:00 p.m. that day, Matthew Wilson was working on a deck at Jones's home when he saw a truck pull up to Sizemore's residence. A man was driving the truck with a child inside, and Wilson saw the man exit the truck and enter Sizemore's home, leaving the child alone in the truck. Wilson was unable to recognize or identify the man or the child. Wilson then went back to working on the deck, and, shortly thereafter, he heard five gunshots. A few minutes after he heard the gunshots, Wilson saw the man exit, get back in his truck, and drive away. Afterward, Wilson did not see anyone else come or go from Sizemore's home. Wilson did not do anything or report the gunshots to anyone until the following weekend when he heard someone had been killed near where he had been working.
[¶7] On May 21, 2021, Sizemore's sister called law enforcement, requesting a welfare check on Sizemore's home. Law enforcement officers arrived at Sizemore's home and found Sizemore, Hall, and R.S. dead inside. All three victims had gunshot wounds to their heads. The home was filled with "the smell of decomposition" as well as urine, while the floor was covered with dirt and dog feces. Tr. Vol. III at 74. In the middle of this grotesque scene, law enforcement officers discovered J.S. still alive, "cuddled up next to" R.S.'s body. Tr. Vol. III at 7. J.S. had been in the home for five days, had a full diaper, and smelled of urine.
[¶8] On May 22, 2021, law enforcement officers questioned Page about his relationship with Sizemore and his whereabouts on May 16. Page told officers that he left Sizemore's home at approximately 12:25 p.m. on May 16. When investigators asked Page if he owned a gun, he claimed that he had owned a Smith and Wesson 9mm handgun but he had sold it a year and a half prior. That day, law enforcement obtained a warrant to search Gosney's property, where Page was also living at the time. The warrant allowed officers to search Gosney's residence and any outbuildings on the property, including a white "cargo trailer." Ex. Vol. VI at 111.
[¶9] Two hours after obtaining the warrant, law enforcement officers searched Gosney's property. Because Gosney was not at the property when law enforcement officers arrived, officers waited outside the house so they could read the warrant to Gosney before entering the residence. The law enforcement officers "waited for a while" and, in the meantime, began walking around the property and looking at the outbuildings. Tr. Vol. IV at 12. A detective on the scene discovered the white cargo trailer, opened it up, and began to search its contents. While the detective was searching the trailer, Gosney arrived at the property.
[¶10] Law enforcement officers discovered a Smith and Wesson 9mm handgun in the cargo trailer. Investigators tested the gun for DNA and to match bullet fragments found in Sizemore's trailer. Testing revealed that Hall's DNA was present on the muzzle of the gun and the bullet fragments had been fired from the gun. Additionally, Page's niece later testified that, the day before the murders, Page had told her that he needed to get his gun back from relatives.
[¶11] The State charged Page with three counts of murder. A jury found Page guilty as charged, and the trial court sentenced Page to 65 years of incarceration on each count with sentences to be served consecutively. Page now appeals.
Page fails to comply with our rules of Appellate Procedure in his Appellant's Brief. Page completely fails to provide record citations in the Statement of Facts. We also note that Page fails to provide headings for his arguments as required by Appellate Rule 46(A)(8)(c). Because Page's noncompliance with Appellate Rule 46 does not substantially impede our review of his claim, we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
Discussion and Decision
1. Law Enforcement Did Not Violate the Knock-and-Announce Rule When Executing the Search Warrant on Gosney's Property
[¶12] Page claims the search of Gosney's property violated his constitutional rights and argues that any evidence obtained from this search is inadmissible. "Although a trial court generally has broad discretion in ruling on the admissibility of evidence, when a defendant challenges the admission as a constitutional violation of his rights, we review the issue de novo." Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019) (citing Dycus v. State, 108 N.E.3d 301, 303-04 (Ind. 2018)). Page argues that the search law enforcement conducted on Gosney's property violated his rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution.
[¶13] The Fourth Amendment to the United States Constitution protects
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. Article 1, Section 11 of the Indiana Constitution is textually identical to the Fourth Amendment, but the two are "analytically distinct." Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014). Our Supreme Court has explained this distinction as follows:
The Fourth Amendment analysis turns on whether the subject has a "reasonable expectation of privacy," Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), while the Section 11 analysis turns on whether the police conduct was reasonable under the totality of the circumstances. State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002).Carpenter, 18 N.E.3d at 1001-02.
[¶14] Here, law enforcement obtained a search warrant for Gosney's property and any outbuildings on the premises, including a white "cargo trailer." Ex. Vol. VI at 111. Page argues only that law enforcement's search of Gosney's property was unconstitutional because law enforcement officers failed to adhere to the knock-and-announce rule when executing the search warrant. The United States Supreme Court has recognized that Fourth Amendment protections require law enforcement to knock and announce their presence before entering a dwelling. Hudson v. Michigan, 547 U.S. 586, 589 (2006) (citing Wilson v. Arkansas, 514 U.S. 927, 931-36 (1995)). Similarly, the Indiana Supreme Court "has long recognized that the Indiana Constitution's provision dealing with searches and seizures requires 'that the police knock and announce their authority before conducting a search of a dwelling.'" C.T.L. v. State, 946 N.E.2d 548, 550 (Ind. 2011) (quoting State v. Dusch, 289 N.E.2d 515, 517 (Ind. 1972)). Page claims law enforcement violated the knock-and-announce rule when it conducted the search of the cargo trailer and that the gun found in the trailer should have been deemed inadmissible.
We note that pursuant to Indiana Appellate Rule 46(A)(8)(d) Page is required to cite "to the pages of the Transcript where the evidence was identified, offered, and received or rejected." Page failed to include any citations to the transcript in his argument. Further, Page largely fails to identify the evidence he claims should have been inadmissible; instead, he makes a broad challenge to "the evidence that was obtained" as a result of the search at Gosney's property. Appellant's Br. at 9. The gun is the only piece of evidence mentioned in Page's argument, and he claims that law enforcement officers violated the knock-and-announce rule. ( Id. at 9-11.) Thus, we apply the knock-and-announce rule to the gun found in the cargo trailer.
[¶15] However, the knock-and-announce rule is inapposite here. When Gosney returned home the night of the search, law enforcement officers were searching the cargo trailer. On appeal, Page does not argue that the trailer was part of Gosney's dwelling, and there is no evidence in the record on appeal that would suggest the trailer was a dwelling. Gosney referred to the cargo trailer as a "box trailer" and said that his daughter had been using it for storage. Appellant's App. Vol. IV at 64. The cargo trailer was not a dwelling and the knock-and-announce rule does not apply to law enforcement officers' search of the trailer, so we conclude that the search was not unconstitutional and the gun was not inadmissible evidence. Even if the cargo trailer could be a place where the knock-and-announce rule is applicable, here, it still would not result in the inadmissibility of the gun. On the night of the search, Gosney had been at the police department answering questions of law enforcement related to this investigation. When he left the police department, he was told that the police would be at his home to execute a search warrant. In other words, any protections that the knock-and-announce rule provides were satisfied by law 2 enforcement telling Gosney close to 35 minutes prior to his arrival home that they would be present to execute a search warrant they had recently obtained.
2. The Trial Court Did Not Commit Fundamental Error by Failing to Give a Reasonable-Theory-of-Innocence Instruction
[¶16] Page argues that the trial court erred by failing to give a reasonable-theory-of-innocence instruction to the jury, but, at trial, Page did not offer such an instruction. "The failure to tender an instruction or to object at trial to the omission of an instruction generally waives any claim of error on appeal." Paul v. State, 189 N.E.3d 1146, 1159 (Ind.Ct.App. 2022) (quoting Abd v. State, 120 N.E.3d 1126, 1136 (Ind.Ct.App. 2019), trans. denied), trans denied. However, "we may review an instruction for fundamental error under a 'narrow exception to waiver.'" Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). "An error is fundamental if it 'made a fair trial impossible' or constituted a 'clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.'" Id. (quoting Miller, 188 N.E.3d at 874). Page claims that the trial court committed fundamental error by failing to provide an instruction on circumstantial evidence as set forth in our Supreme Court's decision in Hampton v. State, 961 N.E.2d 480 (Ind. 2012).
[¶17] In Hampton, our Supreme Court addressed the instructions to be provided to a jury in criminal cases where the actus reus of a crime is established exclusively by circumstantial evidence. 961 N.E.2d at 484-91. There, the trial court denied Hampton's requested jury instruction that stated that proof of guilt by only circumstantial evidence must exclude every reasonable theory of innocence. Id. at 483. Our Supreme Court noted that "[t]he importance of a 'reasonable theory of innocence' instruction is deeply imbedded in Indiana jurisprudence," id. at 484 (citing Nichols v. State, 591 N.E.2d 134, 136 (Ind. 1992)), and ultimately 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 (emphases in original). Page argues that the trial court committed fundamental error by failing to sua sponte provide the reasonable-theory-of-innocence instruction to the jury.
[¶18] We addressed the same argument in Abd v. State. 120 N.E.3d at 1136. There, Abd failed to offer the reasonable-theory-of-innocence instruction at trial, and, on appeal, argued that the failure of the trial court to sua sponte give that instruction amounted to fundamental error. Id. We found Abd distinct from Hampton because "Hampton was a case wherein the desired instruction had been requested but had been refused by the trial court, and so it does not provide authority for overriding our supreme court's precedent on fundamental error." Id. (citing Hampton, 961 N.E.2d at 483). Further, we noted that, since our Supreme Court's decision in Hampton, there had been no precedent from our Supreme Court stating that failure to give the reasonable-theory-of-innocence instruction amounts to reversible, fundamental error. Id. Thus, we concluded that the trial court's failure to sua sponte give the reasonable-theory-of-innocence instruction did not constitute fundamental error. Id.
[¶19] Similarly, Page's argument here is unpersuasive. Page did not request the trial court to give the reasonable-theory-of-innocence instruction or anything similar thereto. Despite Page's argument to the contrary, Hampton does not require we find fundamental error when the trial court fails to sua sponte give the reasonable-theory-of-innocence instruction. Abd, 120 N.E.3d at 1136; see also Hampton 961 N.E.2d at 491. Thus, we conclude that the trial court did not commit fundamental error by failing to sua sponte provide the reasonable-theory-of-innocence instruction to the jury.
3. The State Presented Sufficient Evidence to Support Page's Murder Convictions
[¶20] Page argues that the State presented insufficient evidence at trial to support his murder convictions. Our Supreme Court has explained our standard of review for such a claim as follows:
Sufficiency-of-the-evidence claims trigger a deferential standard of review in which we "neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury." Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). A conviction is supported by sufficient evidence if "there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt."
Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). In conducting that review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024).Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024).
[¶21] In order to convict Page of murder under Indiana Code section 35-42-1-1(1), the State had to prove beyond a reasonable doubt that Page "knowingly or intentionally kill[ed] another human being." Page argues that the State failed to prove he committed murder on all three counts because the State relied only on circumstantial evidence.
[¶22] "[I]t it is well-settled that 'circumstantial evidence alone' can sustain a murder conviction." Hancz-Barron, 235 N.E.3d at 1244-45 (quoting Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016)). Although presence at the murder scene alone is not enough to show guilt beyond a reasonable doubt, "a defendant's presence combined with other circumstantial evidence is." Id. at 1245 (citing Pratt v. State, 744 N.E.2d 434, 436 (Ind. 2001)).
[¶23] There was sufficient circumstantial evidence to convict Page on all three murder charges. On the morning of the murders, Jones (Sizemore's neighbor) witnessed Page and Sizemore screaming at each other on Sizemore's porch. Later that day, while Wilson was working on Jones's deck, he saw a man and a child in a truck pull up to Sizemore's home shortly before hearing gunshots. Additionally, although Page told law enforcement officers that he had sold his Smith and Wesson handgun a year and half prior to the murders, Page's niece testified that he had told her he needed to get his gun back from a relative the day before the murders.
[¶24] Forensic evidence strongly supports Page's convictions. After finding the Smith and Wesson 9mm in Gosney's trailer, tests revealed that bullet fragments found at the murder scene had been fired from the gun. Additionally, law enforcement found Hall's DNA on the muzzle of the gun. Thus, we conclude that the State presented sufficient evidence to convict Page of all three murders.
4. Page's Sentence Is Not Inappropriate under Appellate Rule 7(B)
[¶25] Lastly, Page argues his sentence is inappropriate under Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Russell v. State, 234 N.E.3d 829 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020)). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence 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." Id. (quoting Faith v. State, 131 N.E.3d 158, 159 (Ind. 2019)). Our role under this rule "is primarily to 'leaven the outliers' and identify 'guiding principles' for sentencers, rather than to achieve the 'perceived "correct" result' in each case." Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). As such, "we rely on our 'collective judgment as to the balance' of all the relevant considerations involved, which include '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.'" Id. at 122 (quoting Cardwell, 895 N.E.2d at 1224, 1226).
[¶26] Because we give "considerable deference" to a trial court's sentencing decision, Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1222), a defendant requesting revision under Appellate Rule 7(B) must present "compelling evidence portraying in a positive light the nature of the offense and the defendant's character," id. (internal quotation marks omitted) (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023)). In reviewing the defendant's sentence, "we are not limited to the mitigators and aggravators found by the trial court," Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014), and we "focus on the forest-the aggregate sentence-rather than the trees- consecutive or concurrent, number of counts, or length of the sentence on any individual count," Lane, 232 N.E.3d at 122 (quoting Cardwell, 895 N.E.2d at 1225). Similarly, a defendant "need not 'necessarily prove' that the sentence is inappropriate on both counts" so long as "one of the prongs weighs heavily in favor" of revising the defendant's sentence. Id. at 126-27 (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016)) (emphasis in original). Nonetheless, "to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id. at 127 (citing Connor, 58 N.E.3d at 220).
[¶27] When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)). Here, Page was convicted on three counts of murder. "A person who commits murder shall be imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years." I.C. § 35-50-2-3(a) (emphasis added). The trial court sentenced Page to 65 years executed at DOC on each count and ordered these sentences to be served consecutively. In total, the trial court sentenced Page to 195 years of incarceration.
[¶28] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is "whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the 'typical' offense accounted for by the legislature when it set the advisory sentence." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806-07 (Ind.Ct.App. 2011)), as amended (May 26, 2023). We also consider whether the offense was "accompanied by restraint, regard, and lack of brutality." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶29] As the trial court noted, "the facts of this case are horrifying." Tr. Vol. V at 146. Page murdered three people, including a four-year-old, by shooting them in the head. His conduct occurred in the presence of a two-year-old child who he then left to sit helplessly among three dead bodies for days. The trial court researched murder cases in Miami County and determined that these facts were "beyond" any prior murder scene or similar crime in the history of the county. Id. In evaluating the length of sentence to choose, the trial court stated:
I do take the directive from the Indiana Supreme Court that a worst of the worst sentence is only to be given, uh, you know, sparingly. On that really facts must justify it before a court would go to that point. But I'm going to find, after weighing the aggravators and mitigators, the aggravators greatly outweigh the mitigators. And they support a maximum sentence on each of the three charges - each of the three murder counts. They also clearly support consecutive sentences.Id. at 146-47. In looking at the facts of this case, we agree with the trial judge. There is nothing showing that Page's offenses were any less egregious or accompanied by any sort of restraint. The nature of these offenses is appalling and warrants a harsh sentence.
[¶30] In considering the character of the offender, "we engage in a broad consideration of a defendant's qualities," T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind.Ct.App. 2014), clarified on other grounds on reh'g), including whether the defendant has "substantial virtuous traits or persistent examples of good character," Stephenson, 29 N.E.3d at 122. Page claims his character renders his sentence inappropriate because he "had no criminal history, no disciplinary problems while in jail, he had a consistent employment history." Appellant's Br. at 13. Although Page does not have a criminal history prior to this offense, this does not outweigh the egregious nature of his crime. Page does not provide a citation for his other two claims in regard to his character. Even if we assume these broad statements are true, these facts would not show the positive traits or examples of good character that would warrant a revised sentence.
[¶31] Page also argues that his three consecutive 65-year sentences are inappropriate because the murders occurred "on the same day, within minutes of each other." Appellant's Br. at 13. However, "it is well-settled that '[c]onsecutive sentences reflect the significance of multiple victims.'" Hancz-Barron, 235 N.E.3d at 1248 (alteration in original) (quoting Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008)). Here, Page received three consecutive sentences for three murders. Thus, we are unpersuaded by this argument.
[¶32] Based on the heinous nature of Page's offenses and lack of evidence showing Page's character in a positive light, we cannot say that Page has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. See Hancz-Barron, 235 N.E.3d at 1248-49; Lane, 232 N.E.3d 119; Russell, 234 N.E.3d at 855-56.
Conclusion
[¶33] Law enforcement officers did not violate Page's constitutional rights by searching his father's cargo trailer, and the State presented sufficient evidence to prove Page committed three murders. The trial court did not err by failing to sua sponte provide a reasonable theory of innocence instruction, and the trial court did not issue an inappropriate sentence. We therefore affirm the trial court on all issues raised.
[¶34] Affirmed.
Pyle, J., and Weissmann, J., concur.