FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JOHN ANDREW GOODRIDGE, ESQ.                  GREGORY F. ZOELLER
Evansville, Indiana                          Attorney General of Indiana

                                             JODI KATHRYN STEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           FILED
                                                                      Jul 20 2012, 9:04 am


                            IN THE                                            CLERK
                                                                            of the supreme court,
                                                                            court of appeals and

                  COURT OF APPEALS OF INDIANA                                      tax court




JAMES LEE PAUL,                              )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 82A05-1111-CR-634
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


             APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                  The Honorable J. Douglas Knight, Special Judge
                        Cause No. 82D02-0905-MR-479


                                   July 20, 2012

                            OPINION – FOR PUBLICATION


DARDEN, Judge
                                 STATEMENT OF THE CASE

          James Lee Paul appeals his conviction of and sentence for murder, a felony.1

          We affirm.

                                            ISSUES

          1.      Whether the trial court abused its discretion in denying Paul’s
                  objection to the admission of evidence obtained pursuant to a search
                  warrant after his warrantless arrest inside his apartment.

          2.      Whether the imposed sentence is inappropriate.

                                            FACTS

          Shortly after midnight on May 27, 2009, Paul and Richard Wroten entered 36

West Iowa Street in Evansville, a residence owned by Charles Burns, Sr., and killed

Charles Burns, Jr. as he lay sleeping. Paul struck Burns on the head with a crow bar

between thirty and sixty times as if he was “chopping wood.” (Tr. 402). Burns suffered

massive head injuries, and he died during Paul’s attack. Paul killed Burns because he had

a previous feud with Burns, Sr. over possession of some of Paul’s personal property and

because Paul had recently seen Burns riding what Paul believed to be Paul’s bicycle.

          At Paul’s insistence, Wroten also struck Burns’ body at least one time with a flat

pry bar. Paul threatened to kill Wroten if he told anyone about the murder.

          Paul and Wroten briefly parted ways, and Wroten returned to a residence where he

lived with his girlfriend. His clothes and body were covered in blood, so he washed


1
    Ind. Code § 35-42-1-1.
                                               2
himself and then tried to burn his clothing. About ten minutes later, Paul appeared and

extinguished the flaming clothes. Paul told Wroten that he would kill both Wroten and

his girlfriend if they told anyone about the murder.

       Paul took Wroten to a water hose behind an abandoned building, where the two

washed themselves and changed clothes, an action that took about ten to fifteen minutes.

Paul put his and Wroten’s soiled clothing into a backpack, but accidently left a red shirt

on a metal rack located behind the abandoned building. The two then went to Paul’s

apartment in an old house located at 30 East Virginia, which was about two blocks from

the murder scene. Again, Paul told Wroten that he would kill him if he told anyone about

the murder. Wroten left about five minutes later and returned home. At 1:18 a.m.,

Wroten called 911 and reported the murder.

       At 1:22 a.m., Evansville Police Officers Jeff Kingery and Keith Smith met Wroten

near the murder scene. Officer Smith knew Wroten from three or four previous runs.

Wroten explained that he had witnessed the murder, and he both pointed out the 36 West

Iowa Street murder scene and stated that Burns’ body could be found in the middle room.

At 1:29 a.m., Officer Smith briefly entered the residence and found Burns’ body, which

had been beaten so badly that his face was unrecognizable. Detective Michael Jolly was

immediately notified.

       Wroten told the officers that Paul had committed the murder and that Paul lived at

30 East Virginia. Officer Kingery placed Wroten in his police vehicle and asked Wroten

                                             3
to show him where Paul lived. Officer Jonathan Oakley followed. Wroten took them to

Paul’s residence at 30 East Virginia and pointed out the building. Officer Kingery then

returned Wroten to Detective Jolly at the murder scene for a statement, while Officer

Oakley remained at 30 East Virginia.

      Within minutes thereafter, Officer Dan Deeg and Sergeant David Barron arrived at

the 30 East Virginia address to attempt to secure the building and to locate Paul, whose

appearance was established by a computer search prior to entry into the building.

Officers Deeg and Oakley, with Seargent Barron following, entered the multiple-

apartment building through an unlocked common door and proceeded up what appeared

to be common-area stairs. Their goal was to determine in which apartment unit Paul

lived. At the top of the stairs, the officers saw an open door, and they observed Paul

inside using a wrench on Burns’ bicycle. Because of loud music emanating from the

apartment, Paul did not hear the officers approaching. However, because Paul’s door was

opened wide directly above the common stairs, the officers were concerned that Paul

would turn and see them.

      Not knowing what Paul might do, the officers announced themselves, entered the

apartment unit with weapons drawn, and arrested Paul. At the time, no arrest warrant had

been issued.    The officers escorted Paul out of the building, and then secured his

apartment unit to obtain a search warrant. A subsequent search pursuant to the warrant

produced Burns’ bicycle and the backpack containing the bloody clothes and the murder

                                           4
weapon. The charred clothing still smelled of an accelerant, and a plaid shirt worn by

Paul at the time of the murder contained Burns’ blood.          The murder weapon also

contained Burns’ blood.

       A search of the area behind the abandoned building where Paul and Wroten used

the hose revealed the red shirt that contained both Paul’s DNA and Burns’ blood. A

window pane from the door of 36 West Iowa, which had been removed by Paul to allow

entrance into the building where Burns was staying and then handed to Wroten for

disposal, was discovered, and it contained Wroten’s partial latent print. The flat pry bar

that Wroten had possessed during the murder also contained Burns’ blood and skin cells.

       The State charged Paul with murder, and he responded by filing a motion to

suppress all evidence seized from his apartment on the basis that “entry into the residence

was without a warrant for arrest or search and without exigent circumstances.” (App.

66). The trial court denied the motion to suppress, and Paul raised a continuing objection

at trial based upon the motion.

       The jury found Paul guilty of murder. After a sentencing hearing, the trial court

imposed a sixty-five year sentence.

                                       DECISION

1.     Admissibility of Evidence

       Paul contends that the trial court erred in denying his objection to the admission of

the bicycle, backpack, bloody clothes, and murder weapon found inside his apartment.

                                             5
Paul cites Payton v. New York, 445 U.S. 573 (1980) in support of his contention, noting

that the case holds that the Fourth Amendment to the United States Constitution prohibits

police officers, absent exigent circumstances, from making a warrantless entry into a

private residence in order to make a felony arrest.2

        A trial court is afforded broad discretion in ruling on the admissibility of evidence,

and we will reverse such a ruling only upon a showing of an abuse of discretion. Gibson

v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse of discretion occurs when a

decision is clearly against the logic and effect of the facts and circumstances before the

trial court. Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct. App. 2006). In reviewing

the admissibility of evidence, we consider only the evidence in favor of the trial court’s

ruling and any unrefuted evidence in the appellant’s favor. Id.

        The Fourth Amendment reads:

        The 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.

A principal protection against unnecessary intrusions into private dwellings is the warrant

requirement imposed by the Fourth Amendment on agents of the government who seek to

enter a residence for purposes of search or arrest. State v. Straub, 749 N.E.2d 593, 597

(Ind. Ct. App. 2001) (citing Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)). Thus,

2
  Paul does not separately address the propriety of the officers’ conduct under Article I, section 11 of the
Indiana Constitution.
                                                     6
“[w]arrantless searches and seizures inside the home are presumptively unreasonable.”

Woodson v. State, 966 N.E.2d 780, 787 (Ind. Ct. App. 2012) (quoting Krise v. State, 746

N.E.2d 957, 961 (Ind. 2001)).

       “The warrantless arrest of a person in his or her home requires both probable cause

and ‘exigent circumstances . . . that make it impracticable to obtain a warrant first.’”

Sapen v. State, 869 N.E.2d 1273, 1277 (Ind. Ct. App. 2007) (quoting Adkisson v. State,

728 N.E.2d 175, 177 (Ind. Ct. App. 2000)), trans. denied. Exigent circumstances have

been found where (1) a suspect is fleeing or likely to take flight in order to avoid arrest;

(2) incriminating evidence is in jeopardy of being destroyed or removed unless an

immediate arrest is made; (3) a violent crime has occurred and entry by police can be

justified as a means to prevent further injury or to aid those who have been injured; and

(4) hot pursuit or movable vehicles are involved. Straub, 749 N.E.2d at 597-98. The

validity of a warrantless arrest is determined by the facts and circumstances of each case.

Id. at 598. An important factor to be considered when determining whether any exigency

exists is the gravity of the underlying offense for which the arrest is being made;

however, no exigency is created simply because there is probable cause to believe that a

serious offense has been committed. Welsh, 466 U.S. at 753.

       Here, police officers learned from Wroten within a short time after the murder and

subsequent attempted cleanup that Paul lived in the 30 East Virginia apartment building.

This knowledge allowed Officers Deeg and Oakley, along with Sergeant Barron, to find

                                             7
Paul within a short time after Wroten reported the murder but prohibited them from

ascertaining specific knowledge about the location of Paul’s apartment within the

building or the number and specific location of other tenants in the building. Thus, the

officers found themselves in a situation where they observed Paul, whom they had

probable cause to believe had just committed a vicious murder and who had threatened to

commit at least two more murders, while they were standing on an exposed stairway.

Not knowing whether Paul had a weapon and could cause them or tenants harm if they

tried to retreat down the exposed stairway, the officers made the arrest. Furthermore, at

the time the officers observed Paul from the stairs, he appeared to be tampering with

Burns’ bicycle, which was a major piece of evidence in the case. We cannot say that the

trial court abused its discretion as the danger to the officers and tenants, coupled with the

tampering of evidence, was an exigent circumstance that made it impracticable for the

officers to obtain an arrest warrant before making the arrest. Furthermore, we cannot say

that the officers contrived the urgent situation that necessitated Paul’s warrantless arrest.

We affirm the trial court’s denial of Paul’s objection to the admission of items later found

in the apartment pursuant to a search warrant.

2.     Inappropriate Sentence

       Paul contends that the sixty-five year sentence imposed by the trial court is

inappropriate. He argues that this maximum sentence “in essence, gives no weight to the

mitigating circumstances found by the trial court and designates [Paul] as the worst of the

                                             8
worst.” Paul’s Br. at 14. Paul cites the trial court’s finding that Paul had little formal

education and that he had a history of mental health referrals and substance abuse.

       The revision of a sentence is authorized by the Indiana Constitution 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, the Court finds that the

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

offender.” In determining the appropriateness of a sentence, a court of review may

consider any factors appearing in the record. Schumann v. State, 900 N.E.2d 495, 497

(Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness review

begins with the advisory sentence. Anglemyer, 868 N.E.2d at 491; Richardson v. State,

906 N.E.2d 241, 247 (Ind. Ct. App. 2009). The “character of the offender” portion of the

sentence review refers to general sentencing considerations and the relevant aggravating

and mitigating circumstances. Major v. State, 873 N.E.2d 1120, 1130 (Ind. Ct. App.

2007), trans. denied. A defendant bears the burden of persuading us that his sentence is

inappropriate in light of both the nature of his offense and his character. Williams v.

State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008).

       Regarding the nature of the offense, the trial court found that Paul’s act constituted

“senseless violence” as at least twenty blows with a heavy crow bar caused the breaking

of every bone in Burns’ face, multiple injuries to the head, and skull fractures that

allowed the expulsion of brain matter. (Tr. 884). Paul’s gory act of repeatedly beating a

                                              9
sleeping victim is significantly more brutal than other murderous acts contemplated by

the murder statute, and we therefore conclude that the nature of the act does not provide a

persuasive reason to revise Paul’s sentence.

      Regarding the character of the offender, the trial court noted the mitigators listed

above. In addition, however, it also noted Paul’s “alarming” criminal record, which

includes the 1983 mutilation of a human body where Paul and his father reputedly cut up

a man’s body and placed it in a box. (Tr. 883). Paul’s record also includes a voluntary

manslaughter conviction for the killing of his own father. In addition, Paul has two

misdemeanor battery convictions; a class C felony battery conviction; a battery by bodily

waste conviction; a class D felony confinement conviction; and, other felony convictions

for non-violent offenses.    Paul has served several sentences in the Department of

Correction, and he violated a community corrections program in 2007. This conviction is

his eighth felony conviction, causing the trial court to find that he is likely to commit

more offenses in the future. Even in light of the mitigating factors found by the trial

court, we find nothing about Paul’s extremely violent character which merits a downward

revision of his maximum sentence.

                                     CONCLUSION

      The trial court did not abuse its discretion in admitting evidence obtained from

Paul’s apartment after his warrantless arrest. In addition, in light of the nature of the




                                               10
offense and the character of the offender, we cannot conclude that Paul’s sentence is

inappropriate.

      Affirmed.

NAJAM, J., and RILEY, J., concur.




                                         11
