 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
                                                              Sep 18 2014, 10:06 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

GREGORY L. FUMAROLO                                 GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    MONIKA PREKOPA TALBOT
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DEADRIAN BOYKINS,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )        No. 02A05-1312-CR-642
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE ALLEN SUPERIOR COURT
                            The Honorable Frances C. Gull, Judge
                               Cause No. 02D06-1304-MR-5


                                        September 18, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                       Case Summary

        Deadrian Boykins appeals his conviction of murder and sixty-five-year sentence.

He argues that the evidence is insufficient to support his conviction because only one

eyewitness was able to identify him and the evidence was not sufficient to disprove his

alibi defense. Finding that the unequivocal identification testimony of one eyewitness is

sufficient to support Boykins’ conviction, and that the State sufficiently rebutted Boykins’

alibi defense by proving its own case-in-chief, we affirm Boykins’ murder conviction.

Boykins also challenges his sixty-five-year sentence. Boykins has waived his argument

that the trial court erred in failing to find his youth as a mitigating factor because he failed

to raise it at trial. Waiver notwithstanding, because Boykins appears to be a hardened and

purposeful criminal despite his young age, we find no error in the trial court’s failure to

find Boykins’ youth to be a mitigating factor. We also find that Boykins has failed to

persuade us that his sentence is inappropriate where he has an extensive legal history and

shot the unarmed victim nine times, including three times in the back.

                               Facts and Procedural History

       At approximately 12:30 p.m. on April 3, 2013, after eating lunch at Shontina

Merriweather’s house, seventeen-year-old Elijah Freeman stepped out on the front porch

to smoke a cigarette. Shortly thereafter, Oster Jackson was walking home from a nearby

bus stop when he saw Freeman on the front porch talking to eighteen-year-old Boykins and

another man. Jackson recognized Boykins as someone he had seen almost every day

around the neighborhood for the past three or four years. Jackson had seen Boykins at

Merriweather’s house many times.


                                               2
       Jackson walked into his house, prepared his lunch, and sat down at a table in the

garage to eat. As he took a bite of his sandwich, he heard a gunshot, looked out the window,

and saw Boykins chasing Freeman “toward the back yard, steady shooting at him,

constantly shooting at him.” Tr. p. 135. As the two men reached the back of the house,

Freeman fell and struggled to get back up as Boykins was “steady firing at him the whole

time . . . .” Id. at 137. Boykins did not stop shooting until he ran out of bullets. He then

ran around to the front of the house and told the third man it was time to leave because he

had finished his job.

       Freeman telephoned 911. When Fort Wayne Police Department Officer James

Payne arrived, Jackson told him that he saw it all and that Boykins “shot that boy like a

dog.” Id. at 223. Jackson later identified Boykins in a photo array. The State charged

Boykins with murder.

       At trial, Jackson testified that although Boykins was wearing a black hooded

sweatshirt with the hood up, Jackson “got a real good look at him” and saw his face. Id. at

139. Other witnesses testified that they heard shots or saw the shooting, but they were

unable to identify the shooter. Dr. Pramod Carpenter, who performed the autopsy on

Freeman, testified that the cause of Freeman’s death was “gun shot wounds to the back.”

Id. at 272. Dr. Carpenter further testified that Freeman had nine bullet wounds, three in

the back, one in the buttock, two in the shoulder, one in the thigh, one in the forearm, and

one in the wrist. Fort Wayne Police Department Officer Teresa Trimble-Holloway testified

that she discovered eleven shell casings in the yard, which meant that eleven separate shots




                                             3
had been fired. Officer Trimble-Holloway also found two gunshot holes in Merriweather’s

house and noticed that one of the bullets had entered the house.

       Boykins denied killing Freeman. Specifically, he testified that on April 3, he woke

up at his mother’s house between 11:30 a.m. and 12:00 p.m. and did not leave the house

until between 2:00 p.m. and 3:00 p.m. According to Boykins, when he left the house, he

was wearing a gray and red hooded sweatshirt. Boykins’ mother testified that Boykins did

not wake up that day until between 12:00p.m. and 1:00 p.m. However, on rebuttal, Fort

Wayne Police Department Detective Taya Strausborger testified that Boykins’ mother

initially told the detective that she did not get up until 2:00 p.m. on Saturday, April 3. After

hearing all of the evidence, the jury convicted Boykins of murder.

       At the sentencing hearing, the following colloquy ensued between Freeman’s

mother and Boykins:

       FREEMAN’S MOTHER: I am just so upset right now because he just took
                         my son from me for no reason, and I want you to
                         pay for what you did to my son. Because you
                         really did hurt my son, and I will never be able
                         to see my son again because of you.

       BOYKINS:                     Man, f*** you. I ain’t did sh**.

       TRIAL COURT:                 Hey . . . hey, hey. Mr. Boykins, that’s very
                                    disrespectful and I will not tolerate your fo[u]l
                                    mouth in this courtroom, sir. I’ve treated you
                                    with respect. I expect that you treat the
                                    proceedings respectfully as well, sir. Is there
                                    anything else, ma’am, that you wanted to say?

       FREEMAN’S MOTHER: I hope my son torture[s] you for the rest of your
                         life. And I hope that Judge gives you everything
                         you deserve, everything, the max.

       BOYKINS:                     I give it back.

                                               4
       FREEMAN’S MOTHER: Now, the max.

       BOYKINS:                    And I give it back.

       FREEMAN’S MOTHER: Yeah, I’m done.

Sent. Tr. p. 7.

       Also at the sentencing hearing, Boykins’ presentence investigation report revealed

an extensive legal history. Specifically, Boykins has seven juvenile delinquency

adjudications, one of which would have been a felony if committed by an adult, and one

adult felony conviction for orchestrating a Class B felony robbery at the beauty college

where he was a student.

       The trial court found that Boykins’ juvenile and adult criminal records and failed

efforts at rehabilitation were aggravating factors.      The trial court also found as an

aggravating factor that Boykins acted reprehensibly, disrespectfully, and vulgarly in court.

The trial court found no mitigating factors and sentenced him to a sixty-five-year executed

sentence. Boykins appeals his conviction and sentence.

                                Discussion and Decision

                              I. Sufficiency of the Evidence

       Boykins contends that the evidence is insufficient to support his conviction. When

reviewing the sufficiency of the evidence to support a conviction, we do not reweigh the

evidence or judge the credibility of the witnesses. Gorman v. State, 968 N.E.2d 845, 847

(Ind. Ct. App. 2012), trans. denied. We consider only the probative evidence and the

reasonable inferences therefrom that support the conviction. Id. We will affirm if the



                                             5
probative evidence and reasonable inferences from that evidence could have allowed a

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

                                  A. Identification Evidence

       Boykins first argues that there is insufficient evidence to support his murder

conviction because there was only one eyewitness who identified him as the shooter.

However, as Boykins acknowledges, “there is longstanding precedent holding that where

a defendant’s conviction is based upon his identification as the perpetrator by a sole

eyewitness, such identification is sufficient to sustain the conviction if the identification is

unequivocal. Richardson v. State, 388 N.E.2d 488, 491 (Ind. 1979).” Appellant’s Br. p.

11. See Gorman, 968 N.E.2d at 850 (explaining that the “reliability of particular evidence

must be gauged by the fact-finder, not this court. Any potential errors in eyewitness

identification must be resolved during trial, not on appeal.”)

       Here, Jackson’s identification of Boykins as the shooter was unequivocal.

Specifically, Jackson testified that although Boykins was wearing a black hooded

sweatshirt with the hood up, Jackson got a good look at Boykins’ face. Jackson further

explained that he recognized Boykins as someone he had seen almost every day around the

neighborhood for the past three to four years. Jackson also testified that he had seen

Boykins at Merriweather’s house many times. This unequivocal eyewitness identification

is sufficient to support Boykins’ conviction.

                                      B. Alibi Evidence

       Boykins also argues that the evidence presented was not sufficient to disprove his

alibi defense. The State is not required to rebut directly a defendant’s alibi but may


                                                6
disprove the alibi by proving its own case-in-chief beyond a reasonable doubt. Thompson

v. State, 728 N.E.2d 155, 159 (Ind. 2000). Here, the State adequately proved its case-in-

chief through Jackson’s testimony, which was sufficient to rebut the alibi defense.

                                       II. Sentencing

       Boykins also argues that the trial court erred in sentencing him. Specifically, he

argues that the sentence imposed by the trial court was inappropriate in light of his age. A

trial court’s sentencing order is reviewed on appeal for an abuse of discretion. Anglemyer

v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

An abuse of discretion occurs when a decision is clearly against the logic and effect of the

facts and circumstances before the court, or the reasonable, probable, and actual deductions

to be drawn therefrom. Id.

                                A. Mitigating Circumstance

       To the extent Boykins is challenging the trial court’s failure to consider his age as a

mitigating factor, we note that Boykins has waived appellate review of this issue because

he failed to raise it to the trial court. See Creekmore v. State, 853 N.E.2d 523, 530 (Ind.

Ct. App. 2006) (stating that a defendant who fails to argue a mitigating circumstance to the

trial court may not do so for the first time on appeal).

       Waiver notwithstanding, we find no error. A defendant who claims that the trial

court failed to identify or find a mitigating factor must establish that the mitigating

evidence was both significant and clearly supported by the record. Anglemyer, 868 N.E.2d

at 493. A defendant’s youth, although not identified as a statutory mitigating factor, is a

significant mitigating factor in some circumstances. Brown v. State, 720 N.E.2d 1157,


                                              7
1159 (Ind. 1999). However, youth is not automatically a significant mitigating factor.

Gross v. State, 769 N.E.2d 1136, 1141, n.4 (Ind. 2002). “There are both relatively old

offenders who seem clueless and relatively young ones who appear hardened and

purposeful.” Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000).

       Here, we agree with the State that Boykins appears to be a hardened and purposeful

criminal despite his young age. He has an extensive legal history, which includes seven

juvenile delinquency adjudications, one of which would have been a felony if committed

by an adult, and one adult Class B felony conviction. He was also vulgar and disrespectful

during the court proceedings. The trial court did not err in failing to consider his age as a

mitigating factor.

                                B. Inappropriate Sentence

       To the extent Boykins argues that his sentence is inappropriate, the Indiana

Constitution authorizes independent appellate review and revision of a trial court’s

sentencing decisions. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this

authority through Indiana Appellate Rule 7(B), which provides that we may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, we

find the sentence in inappropriate in light of the nature of the offense and the character of

the offender. Id. Boykins bears the burden on appeal of showing us that his sentence is

inappropriate. Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013).

       Concerning the nature of the offense, in the middle of the afternoon, Boykins chased

an unarmed Freeman through Merriweather’s yard while shooting at him eleven times.

Freeman was hit nine times, three times in the back. One of those shots in the back killed


                                             8
Freeman. One of the witnesses compared Boykins’ shooting of Freeman to the shooting

of a dog. In addition, two of the shots hit Merriweather’s house, and one of the bullets

entered the house.

       Concerning the character of the offender, Boykins appears to be a hardened and

purposeful criminal despite his young age. He has an extensive legal history, which

includes seven juvenile delinquency adjudications, one of which would have been a felony

if committed by an adult, and one adult Class B felony conviction. He was also vulgar and

disrespectful during the court proceedings.

       In light of the nature of the offenses and his character, Boykins has failed to persuade

us that his sixty-five-year sentence is inappropriate.

       Affirmed.

FRIEDLANDER, J., and MAY, J. concur.




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