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 establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DONALD C. SWANSON, JR.                              GREGORY F. ZOELLER
Deputy Public Defender                              Attorney General of Indiana
Fort Wayne, Indiana
                                                    J.T. WHITEHEAD
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                          May 29 2014, 10:16 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARDEL HILL,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 02A03-1309-CR-378
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                             Cause No. 02D06-1209-FB-152



                                           May 29, 2014


                MEMORANDUM DECISION – NOT FOR PUBLICATION


CRONE, Judge
                                             Case Summary

        The State charged Mardel Hill with class B felony burglary, class B felony attempted

arson, class D felony criminal mischief, and class D felony intimidation. Hill was found

guilty as charged and was sentenced to an aggregate term of twenty-two years. He appeals,

arguing that the evidence is insufficient to support his convictions and that his sentence is

inappropriate.1 Concluding that the evidence is sufficient to support Hill’s convictions and

that he fails to carry his burden to show that his sentence is inappropriate, we affirm.

                                    Facts and Procedural History

        The facts most favorable to the convictions follow. Hill and Tiana Washington had

been dating on and off for several years. Sometimes, Washington gave Hill a key to her

apartment. Tr. at 178, 396. Hill never gave the key back to her, so “whenever [she] needed

her key back, [she’d] have to sneak it back while he was asleep or something, or when he

wasn’t looking.” Id. at 179-80. On June 15, 2012, Washington gave a key to her apartment

to Hill’s mother for Hill’s use. At some point, she asked Hill to return her key. It was a


        1
          This is an appeal from cause number 02D06-1209-FB-152 (“Cause 152”). The State also charged
Hill in cause number 02D05-1209-FD-1263 (“Cause 1263”) with various other crimes. The State filed a
motion to join the charges in these causes, which the trial court granted. Indiana Appellate Rule 38 provides,

                When two (2) or more actions have been consolidated for trial or hearing in the trial
        court or Administrative Agency, they shall remain consolidated on appeal. If any party
        believes that the appeal should not remain consolidated, that party may file a motion to sever
        the consolidated appeal within thirty (30) days after the first Notice of Appeal is filed.

Although Causes 152 and 1263 were joined at trial, Hill did not file a consolidated appeal. He separately
appealed from each cause. This Court did not notice the error until another panel had issued an opinion in the
appeal of Cause 152. In Hill’s appeal from Cause 1263, he argued that the trial court erred in granting the
State’s motion to join the offenses. Another panel of this Court concluded that Hill invited any error based on
the allegedly improper joinder and affirmed Hill’s convictions. Hill v. State, No. 02A03-1309-CR-377, slip
op. at 3-4 (Ind. Ct. App. Mar. 27, 2014). Accordingly, we will not address the same joinder issue Hill raises in
this appeal because it has already been decided. We address only the issues pertaining solely to Cause 152.

                                                       2
“struggle getting her key back.” Id. at 179. She had to “sneak [the key] off of his chain to

get it back from him.” Id. at 263.

       On June 21, 2012, Washington thought that Hill did not have a key to her apartment.

That day, Washington and a friend drove up to her apartment building and saw Hill walking

out. Washington got out of the car, and Hill pulled her into her apartment. Washington saw

that her apartment door was open even though she had locked her door when she left. She

asked Hill how he got in, and he told her not to worry about it. She thought that Hill had the

key to her apartment and used it to unlock her door.

       On July 12, 2012, Hill and Washington were arguing at her apartment. Hill stripped

Washington’s bed and hauled her new mattress out of the apartment. He told Washington

that “wasn’t no other man be sleeping in his bed or he would burn it down for another man

lay his head in there.” Id. at 192. Hill was “very jealous” and had told Washington that “if I

can’t have you[,] can no one have you.” Id.

       Washington spent the next four nights at her parents’ home because she was afraid

that Hill would return to her apartment. She reported the mattress theft to the police. She

sent Hill a text message, asking him to return her mattress. Over the next three days, she

received numerous texts and calls from Hill. She responded to some of his texts, but did not

answer his calls. One of Hill’s calls to Washington was answered by a friend’s boyfriend.

       On July 16, 2012, Washington returned to her apartment. When she opened the door,

she smelled gas and saw that her apartment had been “trashed.” Id. at 196. Flour, grease,

taco meat, detergent, and bleach had been thrown on the floor, walls, and furniture. The


                                              3
stove was on. Someone had piled pots and pans on it, and they were burned. Some of her

clothes had been thrown in the bathtub and bleach poured on them. Other belongings were

strewn about. The thermostat was set to approximately 100 degrees Fahrenheit, and the

water heater was turned to boiling. The smoke detector had been removed. Washington saw

a key to her apartment on the floor. No one that Washington knew other than Hill would

have had a reason to do this to her apartment. Id. at 375. Some of her possessions were

missing, including shoes and important papers such as her birth certificate and social security

card. Hill was the only person, other than Washington, who knew where she kept her

important documents. Id. at 216, 374.

       Washington turned off the kitchen appliances and the gas and went to see her

neighbor, Jill Maroney. Maroney had been on vacation and had returned the day before.

Washington told Maroney what happened and called the police.               Maroney went to

Washington’s apartment and saw trash and debris everywhere. She also saw that a canister

of flame retardant over the stove had deployed and that the lamp cover above the stove had

melted. The apartment was so hot that Maroney had to leave.

       The arson investigator concluded that the fire was not an accident but had been started

by a person. Id. at 331. In the investigator’s opinion, if the flame retardant canister had not

deployed, the fire would have spread to the cabinets, through the apartment, and eventually to

the entire building. Id. at 332.

       Washington gave the police her cell phone, which contained text messages between

Hill and Washington from July 10 to July 16, 2012. Id. at 244-48.; State’s Exs. 43-61. One


                                              4
of Hill’s texts read, “I gtta go im bout to f**k dis white girl in my nw bed.” State’s Ex. 47.

Washington sent Hill a text that told him to stop texting her and that she had a new boyfriend.

Hill sent a text that read, “yu cant never hide…im go beat yo ass, shot his ass den beat yo ass

again for thinkin im plyin.” State’s Ex. 56.

       The State charged Hill in Cause 152 with class B felony burglary, class B felony

attempted arson, class D felony criminal mischief, and class D felony intimidation. The State

also charged Hill in Cause 1263 with other crimes. The State filed a motion to join the

offenses in Cause 1263 and Cause 152, which the trial court granted.

       During Hill’s incarceration prior to trial, he made several phone calls to Washington,

which were recorded. In one of the conversations, Hill told Washington to go tell the

prosecutor that she wanted to dismiss the case and then walk out. Tr. at 416; State’s Ex. 65.

He also told her to “forget” his cell phone number and to tell the prosecutor that the phone

number that sent the texts to her cell phone was not his. Id. at 371, 414-15; State’s Ex. 65.

In a conversation they had just a few days before Washington was scheduled to give a

deposition, Washington stated, “I’m afraid my words are going to come out like I lied about

everything. …. They’re going to know I’m lying.” Id. at 412; State’s Ex. 62. Hill

responded, “[I]t don’t matter what they know they got to be able to prove it.” Id. at 413;

State’s Ex. 62. He also said, “[I]t don’t matter if they know you lying or not, if you tell them

that’s not what happened, then that’s not what happened.” Id.; State’s Ex. 62. They also

talked about what would happen if Washington did not show up to testify and the State

issued a warrant. Washington said, “[A] warrant wouldn’t be good.” Id. at 416; State’s Ex.


                                               5
62. Hill told Washington that she needed to get out of her mother’s house and go stay with

his mother or grandmother. Id. at 417. In another conversation, Washington told Hill that

she was mad because she did not have any shoes, and Hill responded, “[D]id I not say you

gonna get all that s**t back.” Id. at 374, 409; State’s Ex. 62.

       At trial, Washington testified for the State. Hill testified in his defense. In Cause 152,

the jury found Hill guilty as charged.

       At Hill’s sentencing hearing, the trial court stated that the nature of Hill’s offenses

was among the worst he had seen in twenty-five years on the bench. The trial court also

found that Hill’s criminal history was an aggravating factor because Hill had failed to

respond to multiple efforts at rehabilitation.        The trial court found no mitigating

circumstances. The trial court sentenced Hill to twenty years for his attempted arson

conviction to be served concurrently to a ten-year sentence for burglary and a two-year

sentence for criminal mischief. This appeal ensued.

                                  Discussion and Decision

                          Section 1 – Sufficiency of the Evidence

       Hill challenges the sufficiency of the evidence supporting his convictions for burglary,

attempted arson, and criminal mischief. Our standard of review is well settled.

       Upon a challenge to the sufficiency of evidence to support a conviction, we
       neither reweigh the evidence nor judge the credibility of the witnesses; instead,
       we respect the exclusive province of the trier of fact to weigh any conflicting
       evidence. We consider only the probative evidence and reasonable inferences
       supporting the verdict, and we will affirm if the probative evidence and
       reasonable inferences drawn from the evidence could have allowed a
       reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.


                                               6
Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citations omitted), trans.

denied.

        Specifically, Hill contends that there is insufficient evidence that he was present at

Washington’s apartment between July 12 and 16, 2012, when the burglary, attempted arson,

and criminal mischief were committed.2 He claims that his case is similar to McAllister v.

State, 161 Ind. App. 644, 317 N.E.2d 200 (1974), in which another panel of this Court

reversed McAllister’s arson conviction. There, McAllister and his wife separated. He told

her that unless she would take him back he would rather see her dead than see her with

somebody else. His sister-in-law heard him threaten to kill his wife and throw her in the

White River. About three and a half months after the separation, someone set fire to

McAllister’s wife’s duplex. On that day, at 9:25 p.m., a security officer saw McAllister

leaving work. At about 9:30 p.m., McAllister’s sister-in-law saw him at a church, where his

wife and children were attending services. At 9:45 p.m., the fire department arrived at

McAllister’s wife’s duplex after the residents in the lower half of the duplex had reported

hearing strange noises and seeing flames. A little before 10:00 p.m., a security officer saw

McAllister return to his job. McAllister’s wife’s duplex was four minutes from his place of

employment. An arson investigator concluded that a forcible entry had been made into the

wife’s duplex and that three separate fires had been started. The day after the arson occurred,




        2
          Hill does not challenge any of the other elements necessary to prove burglary, attempted arson, or
criminal mischief, and therefore we need not set forth the elements of each crime.


                                                     7
McAllister’s sister-in-law asked him why he did it, and he said “he didn’t, but if he had there

wasn’t a damn thing she could do about it.” Id. at 646, 317 N.E.2d at 202.

       McAllister was charged with and convicted of arson, which he appealed on the basis

of insufficient evidence.    The McAllister court stated that the evidence supported a

reasonable inference that McAllister had opportunity to burn his estranged wife’s apartment

but that there was no evidence from which a reasonable inference could be drawn that he was

in fact the person who set the fire. The court explained,

       The missing link is presence. No evidence indicated that he was present at the
       scene of the crime. ….

              There was no evidence of any kind indicating incendiary activity by
       McAllister, e.g., possession of flammable materials, burns, scorched clothing,
       etc. No direct or indirect evidence tended to place him at his wife’s duplex.
       The State only proved he was seen at a church some distance from the scene of
       the crime at about the time the fire occurred—a suspicious circumstance.

Id. at 648, 317 N.E.2d at 203.

       McAllister is distinguishable from the instant case. Here, in addition to Hill’s threats

to Washington, the evidence shows that she had given him a key to her apartment that she

found on the floor of her apartment after the offenses were committed. The presence of the

key at Washington’s apartment supports a reasonable inference that he was there between

July 12 and 16, 2012. Thus, the evidence shows that Hill had motive, opportunity, and was

present at the scene of the crime. Also, Washington’s important documents, such as her birth

certificate and social security card, had been taken from her apartment. She testified that the

only other person who knew where she kept those documents was Hill. Finally, Hill’s calls

to Washington from jail were recorded. Although he did not outright admit to committing

                                              8
the burglary, he made statements from which a reasonable inference of guilt can be drawn.

For example, he essentially told Washington to lie about his cell phone number and seemed

to accept that if she changed her story about what happened she would be lying, and when

she complained about her missing items, he told her that he was going to get them back.

Thus, there are three sources of evidence from which a reasonable inference can be drawn

that Hill committed the burglary, attempted arson, and criminal mischief. We conclude that

the probative evidence and the reasonable inferences arising therefrom were sufficient for a

reasonable trier of fact to find Hill guilty beyond a reasonable doubt. Therefore, we affirm

his convictions.

                           Section 2 – Inappropriateness of Sentence

        Hill contends that the twenty-year sentence imposed for his class B felony attempted

arson conviction is inappropriate pursuant to Indiana Appellate Rule 7(B).3 Our supreme

court has stated that “‘appellate review should 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.’” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011) (quoting

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Therefore, in reviewing Hill’s

sentence, we must consider the aggregate twenty-two-year sentence he received rather than

specific sentences for individual convictions.




        3
         Hill also challenges the appropriateness of the ten-year sentence for his burglary conviction, which
he mistakenly states is fifteen years.


                                                     9
       Indiana Appellate Rule 7(B) states, “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.” Hill has the burden to show that his sentence is inappropriate. Anglemyer v. State,

868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

       Concerning the nature of the offense, the advisory sentence is the starting point the

Legislature selected as appropriate for the crime committed. Id. Hill was convicted of two

class B felonies and two class D felonies and received a twenty-two-year sentence. For class

B felonies, the advisory sentence is ten years, with a minimum term of six years and a

maximum term of twenty years. Ind. Code § 35-50-2-5. For class D felonies, the advisory

sentence is one and a half years, with a minimum term of six months and a maximum term of

three years. Ind. Code § 35-50-2-7.

       Hill received concurrent terms of ten years for his burglary conviction, twenty years

for his attempted arson conviction, and two years for his criminal mischief conviction. We

observe that Indiana Code Section 35-50-1-2 limits the authority of the trial court to order

consecutive sentences where the crimes arose out of a single episode of criminal conduct, but

that limitation does not apply “between a crime of violence and those that are not crimes of

violence.” See Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000). In this case, Hill’s burglary

and attempted arson arose out of a single episode of criminal conduct, but the consecutive

sentence limitation does not apply between them because class B felony burglary is a crime

of violence. Ind. Code § 35-50-1-2. Thus, the trial court could have imposed consecutive


                                             10
sentences for class B felony burglary and attempted arson, and Hill faced a maximum

sentence of forty years for these two crimes. He also could have received up to three years

for the class D felony intimidation. With this in mind we turn to the nature of Hill’s crimes.

       The trial court stated that the nature of Hill’s crimes was among the worst that he had

seen in twenty-five years on the bench. Hill’s actions in Washington’s apartment were

indeed destructive. Hill threw flour, grease, taco meat, detergent, and bleach throughout

Washington’s apartment. Clothes and furniture were ruined. Hill’s attempt to set fire to

Washington’s apartment damaged the stove and her pots and pans. Washington suffered

thousands of dollars of damage to her property and to her apartment. Tr. at 250. In addition,

although Washington was not present in her apartment when Hill attempted to set it on fire,

the fire could have spread to other apartments and endangered the lives of other residents.

       As for Hill’s character, he has six juvenile adjudications. Although not serious in

nature, his failure to respond to multiple opportunities for rehabilitation shows his disrespect

for the law. As an adult, Hill was convicted of failure to register a firearm in federal court.

He was on supervised release when he committed the instant offenses, and a petition to

revoke supervision has been filed. Hill’s treatment of Washington is also a poor reflection of

his character. In their phone conversations and in his text messages he was consistently

abusive to and disrespectful of Washington. His words and actions show a complete

disregard for her wellbeing. Based on the nature of his crimes and his character, Hill has

failed to carry his burden to show that his aggregate twenty-two year sentence is

inappropriate. Accordingly, we affirm his sentence.


                                              11
      Affirmed.

BAKER, J. and NAJAM, J., concur.




                                   12
