MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                              Feb 17 2016, 8:45 am
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
Michael R. Fisher                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Harley R. Sims,                                          February 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1507-CR-768
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G03-1401-MR-694



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016    Page 1 of 10
[1]   Harley Sims (“Sims”) was convicted of murder in Marion Superior Court. Sims

      was ordered to serve fifty-five years in the Department of Correction, with two

      years suspended. Sims appeals and presents two issues, which we restate as:


          I. Whether the evidence was sufficient to support Sims’s murder conviction
          and;
          II. Whether Sims’s sentence is inappropriate in light of the nature of the
          offense and the character of the offender.

[2]   We affirm.

                                      Facts and Procedural History


[3]   In the Fall of 2013, Kristopher Griner (“Griner”) met Tiffany Cooney

      (“Cooney”), and they developed a close friendship. It was a friendship that

      often involved the use of drugs.


[4]   On the evening of January 1, 2014, Griner called Cooney and asked her to pick

      him up because he wanted to hang out with her, but he was stranded in

      Columbus, Indiana. Thereupon, Cooney drove to Columbus, picked up Griner,

      and they drove to a friend’s house on the west side of Indianapolis.


[5]   After they arrived at the home, Cooney determined that she needed money for

      gas and drugs. Sims was also at the friend’s house when Cooney and Griner

      arrived. This was the first time that Cooney and Sims had met. Sims offered to

      buy Cooney some gas if she helped him run a few errands. Cooney agreed, and

      she and Sims left Griner at the friend’s house because he was taking a nap. Both

      Cooney and Sims used methamphetamine before leaving the house.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 2 of 10
[6]   Sims and Cooney drove around Indianapolis for several hours, making various

      stops in her black Ford Ranger pickup truck. Cooney allowed Sims to drive

      after they stopped to get gas because her legs were “tired.” Tr. p. 45. Later in

      the evening, Griner began impatiently texting Cooney and asked her to come

      pick him up from the friend’s house because he was “sick” for heroin. Tr. p. 50.

      So, Sims and Cooney picked up Griner and continued to run errands for Sims.

      This was the first occasion that Sims met Griner. Cooney sat in the middle seat

      next to Sims, who drove, and Griner sat in the passenger seat. Griner was

      agitated and repeatedly told Cooney that they needed to hurry up and that Sims

      was “taking too much time.” Tr. p. 51. Griner elbowed Cooney in the ribs

      several times, but he stopped after she told him that he was hurting her. Cooney

      observed that Sims was bothered by Griner’s behavior and shook his head in

      disapproval.

[7]   Around the same time, Sims suggested that they find a Wi-Fi network so that

      he could contact a friend on Facebook. Sims pulled into the parking lot at the

      Hyatt hotel near the airport because he knew it would have an unrestricted Wi-

      Fi network. After pulling into the parking lot, Sims leaned Cooney forward

      until her face hit the radio, reached behind her, and stabbed Griner in the neck

      with a pocketknife that Cooney kept near the driver side seatbelt in her truck.

      Cooney initially thought that Sims hit Griner, but when she sat up she saw

      Sims holding her knife with Griner’s blood on it. Griner screamed profanities at

      Sims, jumped out of the truck, and ran toward the hotel. Cooney attempted to




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 3 of 10
      follow Griner to see what had happened, but Sims pulled Cooney back into the

      truck and quickly drove away from the hotel.

[8]   Griner entered the hotel lobby around 2:30 a.m. on January 2, 2014, and called

      for help. Night auditor, Curtis Baker (“Baker”), was on duty at the Hyatt hotel

      that evening. Baker saw blood coming out of Griner’s neck, so he helped him

      sit down on a couch, went to get Griner some towels, and called 911. While

      Baker was on the phone, Griner became unconscious and slid off the couch and

      onto the floor. The lobby video surveillance captured this entire incident. When

      Indianapolis Metropolitan Police Department (“IMPD”) Officer James Barrow

      (“Officer Barrow”) arrived at the hotel lobby, Griner was unresponsive and “his

      clothing was heavily drenched in blood.” Tr. p. 32. Griner was transported to

      the hospital, where he was pronounced dead after attempts to resuscitate him

      were made. The coroner determined that a stab wound to the neck severed

      Griner’s left subclavian artery and vein, causing his death. Tr. p. 180-81.


[9]   Cooney stayed with Sims for several days after Griner was stabbed because

      Sims threatened that if she tried to leave, call the police, or speak to anyone

      about the incident that “he wouldn’t think twice to do the same to [her].” Tr. p.

      63. He also took Cooney’s cell phone, and when the police called for her, Sims

      hung up the phone. Sims and Cooney stopped at various locations around

      Indianapolis, looking for money and a place to stay. A friend of Sims’s mother,

      R. Thomas Garrett (“Garrett”), finally agreed to let them stay at his house,

      where the two were finally apprehended by police on January 6, 2014.

      Detective Brian Lemond (“Detective Lemond”) interviewed both Cooney and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 4 of 10
       Sims. Cooney told Detective Lemond that Sims stabbed Griner. Sims admitted

       that he “took a swipe at him” with a pocketknife. Tr. p. 351.

[10]   The State charged Sims with murder on January 8, 2014. A jury trial was held

       on February 9 and 10, 2015. The jury convicted Sims. A sentencing hearing

       was held on June 24, 2015, and the trial court ordered Sims to serve fifty-five

       years in the Department of Correction, with two years suspended to probation.

       The trial court determined Sims’s sincere apology to Griner’s family and history

       of childhood abuse to be mitigating factors. The court considered Sims’s

       previous theft conviction and arrest for domestic battery as an aggravating

       factor. The trial court also gave significant aggravating weight to the the nature

       of the offense. Sims now appeals.

                                       I. Sufficiency of the Evidence


[11]   Sims argues that his murder conviction was not supported by sufficient

       evidence. “Upon a challenge to the sufficiency of evidence to support a

       conviction, a reviewing court does not reweigh the evidence or judge the

       credibility of witnesses, and respects the jury’s exclusive province to weigh

       conflicting evidence.” Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

       2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). We consider

       only probative evidence and reasonable inferences supporting the verdict. Id.

       We must 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. Id.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 5 of 10
[12]   Sims was charged with “knowingly killing another human being, namely:

       Kristopher Griner by stabbing at and against the person of Kristopher Griner

       with a knife, thereby inflicting mortal injuries upon Kristopher Griner, causing

       [him] to die.” Appellant’s App. p. 25. Indiana Code section 35-42-1-1(1)

       provides:


               A person who knowingly or intentionally kills another human
               being commits murder, a felony.


[13]   Sims specifically contends that the Stated failed to prove that he acted

       knowingly. One “knowingly” kills when he is “aware of a high probability” that

       his conduct might kill. Griffin v. State, 963 N.E.2d 685, 692 (Ind. Ct. App. 2012)

       (citing Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999)); Ind. Code § 35-41-2-

       2(b). “The requisite intent to commit murder may be inferred from the

       intentional use of a deadly weapon in a manner likely to cause death.” Davis v.

       State, 558 N.E.2d 811, 812 (Ind. 1990).


[14]   Cooney testified at trial that in the early morning hours of January 2, 2014,

       Sims leaned her all the way forward in her truck until her head touched the

       radio, reached behind her, and hit Griner. However, when she looked at Sims

       to tell him to stop fighting, she saw a bloody knife in Sims’s hand and Griner

       was screaming in pain. When Cooney attempted to exit the truck to determine

       if Griner was injured, Sims pulled her back in the truck, quickly drove off, and

       threatened her not to discuss the incident with anyone. He also later admitted

       to police that he “took a swipe” at Griner with a pocketknife. Tr. p. 351.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 6 of 10
[15]   Sims was aware of a high probability that his conduct might kill Griner because

       he lunged at his neck with a knife. Cooney’s testimony establishes that Sims

       knowingly killed Griner. Sims relies on his own testimony that he acted in self

       defense because Griner swung a hammer at him. The jury had the discretion to

       weigh Cooney’s testimony against Sims’s testimony. We must respect this

       discretion. See McHenry, 820 N.E.2d at 126.


[16]   Sims also argues that the State failed to prove that he was not acting in sudden

       heat when he stabbed Griner with a knife. Under Indiana Code section 35-42-1-

       3(a)(1)1,


               A person who knowingly or intentionally kills another human
               being while acting under sudden heat commits voluntary
               manslaughter, a Class B felony. However, the offense is a Class
               A felony if it is committed by means of a deadly weapon.


               (b) The existence of sudden heat is a mitigating factor that
               reduces what otherwise would be murder under section 1(1) of
               this chapter to voluntary manslaughter.


       “Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to

       obscure the reason of an ordinary person, preventing deliberation and

       premeditation, excluding malice, and rendering a person incapable of cool

       reflection. Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010).




       1
        We note that, effective July 1, 2014, the statute was amended. However, because Sims committed his crime
       prior to this revision, we refer to the statute in effect at that time.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016      Page 7 of 10
       Sudden heat requires more than mere words and must be sufficient to meet an

       objective standard. Id. at 1282-83.


[17]   Cooney testified that after she and Sims picked up Griner, Sims was frustrated

       by Griner’s need for heroin and shook his head in disapproval. Griner also

       elbowed Cooney in the ribs to express his frustration with how long Sims’s

       errands were taking. However, Cooney asked Griner to stop and he did. Based

       on these facts and circumstances, the jury determined that Sims did not act in

       sudden heat when he stabbed Griner in the neck. Again, we respect the jury’s

       discretion and will not reweigh the evidence. See McHenry, 820 N.E.2d at 126.

       For all of these reasons, we conclude that the State presented sufficient evidence

       to support Sims’s murder conviction.

                                         II. Inappropriate Sentence


[18]   Sims further argues that his sentence is inappropriate in light of the nature of

       the offense and the character of the offender. Under Indiana Appellate Rule

       7(B):


               [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.


       When reviewing a sentence, our principal role is to “leaven the outliers” rather

       than necessarily achieve what is perceived as the “correct” result. Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012). We do not look to determine if the sentence


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 8 of 10
       was appropriate; instead we look to make sure the sentence was not

       inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).

       Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008) (citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.

       1996)). Therefore, the defendant has the burden of persuading us that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[19]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed in assessing the nature of the

       offense. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007). The “character of

       the offender” portion of the sentence involves consideration of the aggravating

       and mitigating circumstances and general considerations. Clara v. State, 899

       N.E.2d 733, 736 (Ind. Ct. App. 2009).

[20]   Sims was convicted of murder. At the time of Sims’s offense, the sentencing

       range for murder was forty-five to sixty-five years, with fifty-five years being the

       advisory sentence. See Ind. Code § 35-50-2-3. The trial court imposed a fifty-

       five-year sentence to be served in the Department of Correction, with two years

       suspended to probation.

[21]   In considering the nature of the offense, we observe that Sims stabbed Griner in

       the neck because he was frustrated with Griner’s behavior toward Cooney and

       his repeated requests for heroin. Instead of determining if Griner was injured or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 9 of 10
       seeking help for him after Griner exited the truck, Sims drove off, and evaded

       the police for four days. When the police called Cooney’s cell phone and asked

       to speak to her, Sims hung up the phone. He threatened Cooney that if she told

       anyone what had happened that “he wouldn’t think twice to do the same to

       [her].” Tr. p. 63. Sims also lied in his statement to the police. These are all

       actions that properly enhance the nature of the offense.

[22]   At the sentencing hearing, in addition to the offense-based aggravators, the trial

       court determined that Sims’s prior criminal history did not speak well for his

       character. We give considerable deference to the trial court’s sentencing

       discretion and conclude the court’s imposition of an advisory fifty-five-year

       sentence with two years suspended to probation was not inappropriate in light

       of the nature of the offense and the character of the offender.

                                                   Conclusion


[23]   The State presented sufficient evidence to support Sims’s murder conviction.

       Additionally, Sims’s fifty-five-year sentence imposed by the trial court was not

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

       offender.


[24]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-768 | February 17, 2016   Page 10 of 10
