MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Oct 20 2016, 9:53 am
regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Barbra A. Stooksbury                                      Gregory F. Zoeller
Howes & Howes, LLP                                        Attorney General of Indiana
LaPorte, Indiana                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA
Johnny Dutrayl McSwain,                                   October 20, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          46A03-1510-CR-1812
        v.                                                Appeal from the LaPorte Superior
                                                          Court
State of Indiana,                                         The Honorable Michael S.
Appellee-Plaintiff                                        Bergerson, Judge
                                                          Trial Court Cause No.
                                                          46D01-1409-MR-264



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 1 of 10
[1]   Johnny McSwain appeals his convictions for Murder,1 a Felony; Attempted

      Murder,2 a Level 1 Felony; and Conspiracy to Commit Murder,3 a Level 2

      Felony. He argues that the conspiracy charge should have been severed, that

      there is insufficient evidence supporting his conspiracy conviction, and that his

      sentence is inappropriate in light of the nature of the offenses and his character.

      Finding no error in the joinder of charges, that there is sufficient evidence, and

      that his sentence is not inappropriate, we affirm.


                                                      Facts
[2]   On August 15, 2014, Barry Williams and Daniel Mallett were visiting a house

      in LaPorte. Around 10:30 p.m., they left to go to a gas station.


[3]   McSwain, Tyrone Stalling, and Larry Crume, Jr., arrived across the street from

      the house shortly thereafter. McSwain and Stalling approached the house and

      knocked on the door. They asked whether Mallet was home, and when told

      that he had just left, McSwain and Stalling went back across the street.

[4]   When Williams and Mallett returned from the store, McSwain, Stalling, and

      Crume confronted them. McSwain asked, “why you all making it hot over

      here, we can’t make no money.” Tr. p. 863. McSwain was accusing them of




      1
          Ind. Code § 35-50-2-3(a).
      2
          Ind. Code § 35-41-5-1(a).
      3
          I.C. § 35-41-5-2.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 2 of 10
      attracting police attention, which made it more difficult to sell drugs. Williams

      responded, “f*ck you all.” Id. at 864.


[5]   The two sides began preparing to fight, with Williams and Mallett slowly

      backing away. McSwain then punched Williams in the face, knocking him

      unconscious. Mallett threw a punch at McSwain and then began running

      toward the house. Mallett heard McSwain yell, “shoot that n****r.” Id. at

      1207. Crume pulled out a gun that he had been keeping in his hoodie pocket

      and fired several shots at Mallett. Bullets flying past his head, Mallett was able

      to get into the house without being hit. Crume then walked over to Williams,

      who was still lying unconscious on the ground, and shot him in the head.

      McSwain and Crume fled the scene.

[6]   The following day, McSwain bailed his friend, Deanbra Martin, out of the

      LaPorte County Jail. Martin came to McSwain’s house and McSwain relayed

      the events of the previous day to him. According to Martin, McSwain admitted

      that “he nod[ded] at Crume and told him to kill” Williams. Id. at 1387.

      McSwain then asked Martin to kill Mallett so that Mallett could not talk to the

      police. The group began to meet regularly to discuss the best way to kill

      Mallett. McSwain spoke about getting walkie-talkies, “a low low car,”4 and

      handicap license plates to facilitate the attack. Id. at 1397.




      4
          McSwain was referring to an inconspicuous car that would not attract police attention.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016      Page 3 of 10
[7]   On September 12, 2014, Martin was arrested. He signed an agreement to give

      information regarding Williams’s death and to become a confidential

      informant. Through Martin, police kept track of the plan as it unfolded.

      McSwain was concerned that “they name was hot in the streets,” and so

      planned to be seen at a Wal-Mart to establish an alibi. Id. at 1403-05. On

      September 19, McSwain gave Martin a .45-caliber gun. Later, McSwain spoke

      with Martin on the phone and told him that he was at the Wal-Mart. The

      police went to the Wal-Mart, where they found McSwain and Crume, whom

      they arrested. While executing a search warrant of McSwain’s house, the

      police found handicap license plates.


[8]   A trial was held from June 22 through July 1, 2015. Prior to the trial, McSwain

      filed several motions, including a request to sever the conspiracy charge, a

      request that was apparently never ruled upon. The jury found McSwain guilty

      as charged.5 After a September 23, 2015, sentencing hearing, the trial court

      sentenced McSwain to 55 years for murder, 35 years for attempted murder, and

      30 years for conspiracy, all to be served consecutively, for an aggregate term of

      120 years. McSwain now appeals.


                                        Discussion and Decision
[9]   McSwain has three arguments on appeal, namely, that the trial court should

      have severed the conspiracy charge from the murder and attempted murder




      5
          Crume was tried at the same trial and found guilty, but is appealing separately.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 4 of 10
       charges; that there was insufficient evidence to support the conspiracy

       conviction; and that his sentence is inappropriate.


                                     I. Severance of Charges
[10]   Regarding the joinder or severance of multiple criminal charges, Indiana law

       provides the following:

               (a) Two (2) or more offenses may be joined in the same
               indictment or information, with each offense stated in a separate
               count, when the offenses:


                        (1) are of the same or similar character, even if not part of
                        a single scheme or plan; or


                        (2) are based on the same conduct or on a series of acts
                        connected together or constituting parts of a single scheme
                        or plan.


       Ind. Code § 35-34-1-9. On the other hand, a defendant has a right to the

       severance of charged offenses “whenever two (2) or more offenses have been

       joined for trial in the same indictment or information solely on the ground that

       they are of the same or similar character . . . .” Ind. Code § 35-34-1-11(a). In

       such circumstances, we review a trial court’s decision de novo. Pierce v. State,

       29 N.E.3d 1258, 1264 (Ind. 2015). Even where the defendant does not have a

       right to sever the charged offenses,

               the court, upon motion of the defendant or the prosecutor, shall
               grant a severance of offenses whenever the court determines that



       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 5 of 10
               severance is appropriate to promote a fair determination of the
               defendant’s guilt or innocence of each offense considering:


               (1) the number of offenses charged;


               (2) the complexity of the evidence to be offered; and


               (3) whether the trier of fact will be able to distinguish the
               evidence and apply the law intelligently as to each offense.


       I.C. § 35-34-1-11(a). In these circumstances, “where the offenses have been

       joined because the defendant’s underlying acts are connected together,” the trial

       court has broad leeway in ruling on the motion to sever. Pierce, 29 N.E.3d at

       1264.


[11]   McSwain’s charged offenses were the following: along with his accomplice,

       Crume, he attempted to murder Mallett; a moment later, they did murder

       Williams; and then, over the course of the ensuing weeks, they conspired with a

       confidential informant to murder Mallett so that he would not talk to the police

       about their previous two crimes. Given that the first two offenses were

       committed within moments of each other, and that the third offense was

       committed to kill the same victim of the attempted murder offense and

       eliminate a witness to their crimes, we have little difficulty finding that the

       underlying acts were connected together. See Smoote v. State, 708 N.E.2d 1, 3

       (Ind. 1999) (finding a proper joinder of offenses where “State’s theory . . . was

       that the defendant killed the victim in order to assure that the victim would not

       implicate him in the bank robbery”).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 6 of 10
[12]   We turn to whether, despite the underlying acts’ connection, the factors listed in

       subsection -11(a) compelled the trial court to sever the charges. First, McSwain

       was charged with only three crimes. Second, the evidence before the jury

       consisted mainly of the testimony of eyewitnesses and a confidential informant,

       and so was not overly complex. Third, the evidence supporting each offense

       was distinct to each offense, enabling the jury to come to an intelligent decision

       regarding each charge. The trial court did not err by finding that none of these

       three factors required a severance of McSwain’s charges.


                               II. Sufficiency of the Evidence
[13]   McSwain argues that there is insufficient evidence to support his conspiracy to

       commit murder conviction. He contends that his conviction cannot stand

       where the main evidence against him is “the testimony of a known Felon and

       Confidential informant facing a significant penalty for his criminal actions

       leading up to Johnny’s arrest.” Appellant’s Br. p. 18.

[14]   When reviewing the sufficiency of the evidence supporting a conviction, we will

       neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

       N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence

       supporting the judgment and any reasonable inferences that may be drawn

       therefrom, and we will affirm if a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[15]   The State was required to prove beyond a reasonable doubt that McSwain

       conspired to commit the felony of murder. “A person conspires to commit a

       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 7 of 10
       felony when, with intent to commit the felony, the person agrees with another

       person to commit the felony.” Ind. Code § 35-41-5-2(a). “The state must allege

       and prove that either the person or the person with whom he or she agreed

       performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2(b).


[16]   Here, Martin testified that McSwain was party to an agreement to kill Mallett.

       Moreover, Martin testified that McSwain provided him with a gun, which is an

       overt act in furtherance of the agreement to kill Mallett. Thus, there was

       sufficient evidence by which a jury could determine that each element of the

       conspiracy was established beyond a reasonable doubt. McSwain’s argument

       amounts to a request that we reweigh the evidence and assess the credibility of

       witnesses—a request that we decline.


                        III. The Sentence Is Not Inappropriate
[17]   McSwain argues that his sentence is inappropriate. Indiana Appellate

       Rule 7(B) provides, “The Court may revise a sentence authorized by statute if,

       after due consideration of the trial court's decision, the Court finds that the

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

       of the offender.” The principal role of such review is to attempt to leaven the

       outliers, but not to achieve a perceived “correct” sentence. Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a discretionary

       function in which the trial court’s judgment should receive considerable

       deference. Id. at 1222. We “should focus on the forest—the aggregate

       sentence—rather than the trees—consecutive or concurrent, number of counts,


       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 8 of 10
       or length of the sentence on any individual count.” Id. at 1225.                     The defendant

       bears the burden of showing us that his sentence is inappropriate. Kennedy v.

       State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010).


[18]   McSwain faced between forty-five and sixty-five years for his murder

       conviction, with the advisory sentence being fifty-five years. I.C. § 35-50-2-3(a).

       Attempted murder is a Level 1 felony, which carries a sentence of between

       twenty and fifty years, with the advisory sentence being thirty years. I.C. § 35-

       41-5-1(a); Ind. Code § 35-50-2-4. A conspiracy to commit murder that does not

       result in the death of a person is a Level 2 felony, which carries a sentence of

       between ten and thirty years, with the advisory sentence being seventeen and

       one-half years. I.C. § 35-41-5-2; I.C. § 35-50-2-4.5. McSwain received the

       advisory sentence for murder, the advisory sentence for attempted murder, and

       the maximum sentence for conspiracy to commit murder, and his sentences

       were ordered to run consecutively. This amounts to an aggregate sentence of

       120 years.


[19]   Turning to the nature of McSwain’s offenses, he and an accomplice came to the

       house where their victims were staying with the intent to start a confrontation

       over illegal drugs. Although McSwain argues that “he did not direct the bullets

       to hit” Mallett, appellant’s br. p. 16, the evidence shows that he yelled to

       Crume, “shoot that n****r.” Tr. p. 1207. McSwain was then an accomplice to

       the cold-blooded killing of Williams, who was lying unconscious on the ground

       because McSwain had knocked him out. One witness testified that McSwain

       admitted that he nodded his head toward the unconscious Williams, telling

       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 9 of 10
       Crume to shoot him. And although McSwain argues that this was only “a

       situation which got quickly out of hand,” appellant’s br. p. 16, the evidence

       shows that he spent the following month calmly deliberating and planning the

       murder of Mallett, whom he and Crume had unsuccessfully attempted to

       murder in the first place. While a 120-year sentence might have been

       inappropriate for a single, unplanned incident, we find that the month-long

       conspiracy to commit a second murder reflects a wanton disregard for the value

       of human life. And as our Supreme Court has explained, regarding the purpose

       of consecutive sentences, “consecutive sentences seem necessary to vindicate the

       fact that there were separate harms and separate acts against more than one

       person.” Serrino v. State, 798 N.E.2d 852, 857 (Ind. 2003). McSwain has not

       carried his burden of showing us that the nature of his offense renders his 120-

       year sentence inappropriate.


[20]   Turning to McSwain’s character, we find a lengthy criminal history. McSwain

       has juvenile adjudications for battery, battery with injury, disorderly conduct,

       burglary, and theft. He has adult convictions for criminal recklessness and

       possession of marijuana. Although we note that McSwain did apologize to

       Williams’s family for their loss, tr. p. 1847, McSwain’s character does not

       persuade us to modify his sentence. We find that McSwain’s sentence is not

       inappropriate in light of the nature of the offenses and his character.


[21]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1510-CR-1812 | October 20, 2016   Page 10 of 10
