Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                        Sep 25 2014, 10:17 am
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:

SCOTT L. BARNHART                                       GREGORY F. ZOELLER
Keffer Barnhart LLP                                     Attorney General of Indiana
Indianapolis, Indiana
                                                        LYUBOV GORE
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

GIAVONNI MONTEZ WICKWARE,                          )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 82A05-1402-CR-73
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                          The Honorable David D. Kiely, Judge
                         The Honorable Kelli E. Fink, Magistrate
                            Cause No. 82C01-1210-FA-1353


                                       September 25, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

           Giavonni Montez Wickware (“Wickware”) was convicted after a jury trial of Burglary

Resulting in Bodily Injury, as a Class A felony,1 and Theft, as a Class D felony.2 He was also

found to be a Habitual Offender.3 After trial, Wickware was sentenced to an aggregate term

of imprisonment of seventy years. He now appeals.

           We affirm in part, reverse in part, and remand.

                                                   Issues

           Wickware raises three issues for our review. We restate these as:

             I.    Whether there was sufficient evidence to support Wickware’s
                   convictions for Burglary and Theft;

            II.    Whether the trial court abused its discretion in finding aggravating
                   circumstances when it sentenced Wickware; and

           III.    Whether Wickware’s sentence is inappropriate.

                                   Facts and Procedural History

           In the early morning hours of October 26, 2012, Wickware met at the Evansville

apartment of Shelley Osborne (“Osborne”) with several others, including Patrick Thomas

(“Thomas”), Daishar Compton (“Daishar”), Keenan Compton (“Keenan”), and Nicholas Cox

(“Cox”). Osborne had told the men that she knew where to obtain several pounds of




1
 Ind. Code § 35-43-2-1(2) (West 2013). All substantive provisions of Indiana criminal law refer to the version
of the Indiana Code in effect at the time of trial and sentencing.

2
    I.C. § 35-43-4-2(a).

3
    I.C. § 35-50-2-8.

                                                      2
marijuana and $10,000 in cash, and the men met in order to carry out a robbery at a location

that Osborne had identified. Daishar provided two shotguns and a silver .380 pistol.

       Around 1:00 a.m., Thomas, Daishar, and Cox traveled in Cox’s car to a house on

South Lombard Avenue in Evansville. Each man wore a mask, bandana, or other item to

disguise his face. Wickware arrived separately after the other three men.

       Once there, Thomas, Daishar, and Cox entered the home through an unlocked back

door. S.W. was awoken by one of the men armed with a shotgun, was forced to lie on the

ground, and her hands and feet were bound with shoelaces.

       Another of the men was armed with the silver .380 pistol. That individual woke

S.W.’s son, J.J.M., and directed J.J.M. to leave his room and enter his mother’s room. Once

in S.W.’s room, J.J.M. attempted to wrest a shotgun from one of the men. A fight ensued,

and J.J.M. was shoved into a dresser and pistol-whipped. The men then forced J.J.M. to lie

down on top of S.W.’s legs. J.J.M. was hog-tied with a pair of shoelaces. As a result of his

attempt to disarm one of the men, J.J.M. received injuries to his back, face, and head.

       Three men—one armed with a pistol, one with a shotgun—remained in S.W.’s room

and demanded to know where “Matt” was, where the money was, and where the marijuana

was. One of the men repeatedly suggested that they shoot S.W. and J.J.M. S.W. could hear a

fourth individual ransacking the home, dumping out drawers and breaking belongings.

       Eventually, the men covered S.W. and J.J.M. with a comforter from S.W.’s bed. After

a few more minutes, the men left the home. Soon after, J.J.M. freed his hands, untied

himself, and helped untie S.W. S.W. called 911 at around 2:00 a.m.


                                             3
       Evansville Police responded to the 911 call. Among those responding was Evansville

Police Officer Jared LaFollette (“Officer LaFollette”), who was providing off-duty security

services at a nearby apartment complex, The Arbors, the northwest corner of which sat at the

intersection of South Lombard Avenue and Monroe Avenue. Officer LaFollette was driving

west on Monroe Avenue and saw four men running along Monroe Avenue, moving away

from the home on South Lombard Avenue. He accelerated along the street, and all but one of

the men ran south from Monroe Avenue and into The Arbors apartment complex.

       Officer LaFollette exited his car and apprehended the remaining man, who was later

identified as Thomas. Other officers patrolled The Arbors; Officer Doug Kemmerer

(“Officer Kemmerer”) saw three men near a dumpster in the complex, and saw the lead man

dispose of two long objects that appeared to be weapons. The three men then ran south from

the dumpster.

       Officer Zach Elfreich (“Officer Elfreich”), another of the responding officers, located

two additional men. Wickware was one of them; Officer Elfreich found Wickware sitting on

a concrete back stoop of an apartment, sweating and out of breath. Wickware did not reside

at the apartment, and the occupants of the apartment did not know Wickware. After

Wickware was apprehended, Officer Elfreich found Daishar hiding between a privacy fence

and an air conditioning unit.

       Crime scene detectives and other responding police officers searched The Arbors

apartment complex. They found numerous items from the South Lombard home scattered

from the point at which Officer LaFollette first spotted Thomas, Wickware, and the other


                                              4
men, including several dolls owned by S.W. and the various components of a video game

console. Two shotguns were recovered from the dumpster where Officer Kemmerer saw

three of the men stop and dispose of items. A 911 call later on October 26, 2012, alerted

police to the presence of a handgun that matched the description of the .380 pistol used to

hold J.J.M. at gunpoint. Various other items were found at The Arbors, including black

hoodies and socks and shirt sleeves with holes cut in them where an individual’s eyes could

see through the item if worn as a mask.

          On October 30, 2012, Wickware was charged with Burglary Resulting in Bodily

Injury; two counts of Criminal Confinement, as Class B felonies;4 two counts of Armed

Robbery, as Class B felonies;5 and Theft. Wickware was also alleged to be a Habitual

Offender.

          A jury trial was conducted on December 9, 10, and 11, 2013, on the charges of

Burglary Resulting in Bodily Injury, Criminal Confinement, Armed Robbery, and Theft. At

the conclusion of the trial, the jury found Wickware guilty of Burglary Resulting in Bodily

Injury and Theft. On December 30, 2013, a hearing was conducted on the Habitual Offender

enhancement. On January 9, 2014, the court found Wickware to be a Habitual Offender.

          A sentencing hearing was conducted on February 5, 2014. The trial court entered

judgments of conviction against Wickware for Burglary Resulting in Bodily Injury and Theft,

and adjudicated Wickware as a Habitual Offender. The court then sentenced Wickware to



4
    I.C. §§ 35-42-3-3(a) & (b)(2)(A).

5
    I.C. §§ 35-42-5-1(1).

                                             5
forty years imprisonment for Burglary Resulting in Bodily Injury, enhanced by thirty years as

a result of Wickware’s Habitual Offender status; and two years imprisonment for Theft,

enhanced by four years as a result of Wickware’s Habitual Offender status. The court ran the

enhanced sentence for Theft concurrent with the enhanced sentence for Burglary Resulting in

Bodily Injury, yielding an aggregate term of imprisonment of seventy years.

       This appeal ensued.

                                 Discussion and Decision

                                Sufficiency of the Evidence

       Wickware’s first contention on appeal is that there was insufficient evidence to

support the jury’s verdicts that he committed Burglary Resulting in Bodily Injury and Theft.

       Our standard of review in challenges to the sufficiency of evidence is well settled. We

consider only the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or

reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751

N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       To obtain a conviction for Burglary Resulting in Bodily Injury, as charged, the State

was required to prove beyond a reasonable doubt that Wickware broke and entered the

building of S.W. and J.J.M. with the intent to commit theft therein, which resulted in bodily


                                              6
injury to J.J.M. See I.C. § 35-43-2-1(2); App’x Vol. 1 at 26. To convict Wickware of Theft,

as charged, the State was required to prove beyond a reasonable doubt that Wickware

knowingly exerted unauthorized control over the property of S.W. or J.J.M. with the intent to

deprive them of the value or use of that property, by taking and possessing property without

S.W.’s or J.J.M.’s knowledge or consent. See I.C. 35-43-4-2(a); App’x Vol. 1 at 27.

       Here, the jury was instructed regarding accessory liability as to Wickware. “A person

who knowingly or intentionally aids, induces, or causes another person to commit an offense

commits that offense,” even if no prosecution has occurred or conviction has attached as to

the other person. I.C. § 35-41-2-4. “In Indiana there is no distinction between the

responsibility of a principal and an accomplice.” Stokes v. State, 908 N.E.2d 295, 303 (Ind.

Ct. App. 2009) (citing Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999)), trans. denied. A

defendant may be convicted as an accomplice where he merely had a tangential involvement

in the crime. Green v. State, 937 N.E.2d 923, 929 (Ind. Ct. App. 2010) (citing Ajabu v. State,

693 N.E.2d 921, 937 (Ind. 1998)), trans. denied. In determining whether a defendant aided

another in the commission of a crime, we consider the following factors: (1) presence of the

defendant at the crime scene; (2) the defendant’s companionship with another engaged in

criminal activity; (3) whether the defendant failed to oppose commission of the crime; and

(4) the defendant’s conduct before, during, and after the occurrence of the crime. Woods v.

State, 963 N.E.2d 632, 634 (Ind. Ct. App. 2012).

       Wickware contends there was insufficient evidence of his liability as an accessory.

Our review of the record reveals that Thomas, who was among the men arrested as a result of


                                              7
S.W.’s 911 call, testified that Wickware was present at Osborne’s apartment and was among

the men who planned to rob a home of marijuana and money. All of the men wore items to

conceal their facial features. Thomas further testified that Wickware arrived separately from

Thomas, Daishar, and Cox at the South Lombard Avenue home, but did not hold a weapon or

harm anyone.

       S.W. testified that there were four individuals in her home: three in the room with her

and J.J.M., and a fourth was ransacking the other rooms in the house. J.J.M. testified that

while he only saw two or three individuals, he could hear three or four individuals in the

home. Both S.W. and J.J.M. testified that the men were wearing disguises.

       Officer LaFollette testified that after dispatch radioed concerning S.W.’s 911 call, he

saw several men running together as a group from the area of S.W.’s home on South

Lombard Avenue. He was able to apprehend one of them, who was later identified as

Thomas, and the other men fled into The Arbors apartment complex.

        Officer Kammerer also responded to the 911 call. He testified that he observed three

men dispose of the shotguns and flee on-foot through the apartment complex. Officer

Elfreich, who was involved with the search for suspects in The Arbors, testified that he found

Wickware and Daishar two apartments away from one another. Wickware was sweating and

breathing heavily while seated on the back stoop of an apartment occupied by people he did

not know. While Wickware was not wearing a black jacket or hoodie, Officer Elfreich

testified that he found a discarded black hoodie nearby. Officer Elfreich further testified that

he discovered Daishar two apartments away; Daishar was attempting to conceal himself from


                                               8
Officer Elfreich. Finally, a search of the grounds at The Arbors revealed property taken from

S.W.’s home scattered in the area of the men’s flight from police.

       Taken together, this is sufficient evidence from which a reasonable fact-finder could

conclude that Wickware aided Thomas and the others in burglary and theft at S.W.’s home.

To the extent Wickware argues that he was merely “at the right place at the wrong time,” he

asks that we reweigh evidence. (Appellant’s Br. at 8.) We cannot to do so, see Drane, 867

N.E.2d at 146, and accordingly affirm the jury’s verdicts.

                                  Habitual Offender Status

       Wickware also challenges his sentence, raising two issues for our review. Before

addressing these issues, we address sua sponte a matter relating to the trial court’s

enhancement of Wickware’s sentences as a result of his habitual offender status.

       Our supreme court has stated:

       We have repeatedly held that, when defendants are convicted of multiple
       offenses and found to be habitual offenders, trial courts must impose the
       resulting penalty enhancement upon only one of the convictions and must
       specify the conviction to be so enhanced. See, e.g., Chappel v. State, 591
       N.E.2d 1011, 1012 (Ind. 1992). Failure to specify requires that we remand the
       cause to the trial court to correct the sentence as it regards the habitual
       offender status. Id. at 1016; Miller v. State, 563 N.E.2d 578, 584 (Ind. 1990).

McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999). The court went on to note, “The only time

we have found remand for re-sentencing to be unnecessary is when we affirmed all

convictions and the trial court ordered identical sentences to run concurrently.” Id. at 102 n.

9.




                                              9
       This Court has addressed a situation analogous to the one now before us. In Tipton v.

State, 981 N.E.2d 103 (Ind. Ct. App. 2012), trans. denied, we held that where the trial court

failed to specify the conviction to which a habitual offender enhancement should attach,

reversal was not warranted where the record made it clear that the length of the enhancement

could only have attached to one of the convictions. Id. at 104 n.4.

       Here, the trial court sentenced Wickware to forty years imprisonment for Burglary

Resulting in Bodily Injury, enhanced by thirty years for his habitual offender status, resulting

in a total term of imprisonment of seventy years. The court also sentenced Wickware to two

years imprisonment for Theft. But the court also enhanced this sentence as a result of the

habitual offender adjudication, adding four years imprisonment. The court ran the sentences

concurrent with one another, yielding an aggregate sentence of seventy years.

       Under the then-effective habitual offender statute, the maximum enhancement for

Wickware’s sentence for Theft, as a Class D felony, was 4 ½ years—three times the advisory

sentence of 18 months. See I.C. § 35-50-2-7(a) (setting the sentencing range for a Class D

felony); I.C. § 35-50-2-8(h) (setting the maximum sentencing enhancement for a habitual

offender at the lesser of three times the advisory sentence of the underlying offense or thirty

years). As in Tipton, the thirty-year enhancement in Wickware’s case could only be a result

of the enhancement of Wickware’s sentence for Burglary Resulting in Bodily Injury, which

carried Class A felony-level sentencing of twenty to fifty years imprisonment, an advisory

term of imprisonment of thirty years, and a maximum habitual offender enhancement of




                                              10
thirty years. See I.C. § 35-50-2-4 (setting the sentencing range for Class A felonies); I.C. §

35-50-2-8(h).

       Because below we affirm the trial court’s sentencing decision in all other respects, we

remand this case to the trial court with instructions to vacate the habitual offender

enhancement as to Wickware’s sentence for Theft, as a Class D felony.

                                Aggravating Circumstances

       Wickware raises two issues related to his sentence. The first of these is whether the

trial court abused its discretion when it entered an aggravated sentence against him, where

the sentencing statement took into account facts related to offenses for which Wickware was

found not guilty.

       Sentencing decisions rest within the sound discretion of the trial court, and we review

such decisions for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218. Among the bases upon which an abuse of

discretion may be found include finding aggravating factors to exist which are unsupported

by the record, or when the trial court articulates reasons for imposing a sentence that are

improper as a matter of law. Id. at 490-91. “Under those circumstances, remand for

resentencing may be the appropriate remedy if we cannot say with confidence that the trial

court would have imposed the same sentence had it properly considered reasons that enjoy

support in the record.” Id. at 491.




                                             11
       Here, Wickware contends that the trial court abused its discretion when it sentenced

him because it relied on matters in the record, the associated facts of which did not result in a

guilty finding from the jury. He draws our attention to this statement from the trial court:

       I think the evidence supported that the co-defendants and the defendant in this
       case would have realized that [the co-defendants had gone to the wrong home],
       and still these people, their home was ransacked, they were held, as a joint
       venture with all of the defendants, they were held with weapons, and I think
       the evidence was also that they were eventually tied up, and I find that also to
       be an aggravating factor.

(Tr. at 497.) Wickware contends that the trial court’s use of facts concerning the criminal

confinement of S.W. and J.J.M.—offenses for which Wickware was found not guilty by the

jury—was an abuse of discretion.

       Yet the trial court relied upon several factors in determining Wickware’s sentences.

After taking note of mitigating factors, the court took into account, at length, Wickware’s

prior criminal history. The court also noted that the purpose of the offenses was to steal

money and drugs, and that Wickware and the others continued in their commission of various

offenses after it became clear that they had entered the wrong home. Accordingly, we cannot

conclude that the trial court’s observation that “as a joint venture with all of the defendants,

[S.W. and J.J.M.] were held with weapons, and … were eventually tied up” was so central to

its determination of Wickware’s sentence that without that finding it would have reached a

different sentencing decision. We accordingly leave the trial court’s finding of aggravating

circumstances undisturbed.




                                               12
                                       Inappropriateness

        We turn to Wickware’s final contention on appeal, whether his sentence was

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

        The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which 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.” Under

this rule, and as interpreted by case law, appellate courts may revise sentences after due

consideration of the trial court’s decision, if the sentence is found to be inappropriate in light

of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d

1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The

principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at

1225.

        Here, Wickware was convicted of Burglary Resulting in Bodily Injury, as a Class A

felony, and Theft, as a Class D felony; he was also adjudicated to be a habitual offender. For

a Class A felony, Wickware faced a sentencing range of twenty to fifty years, with an

advisory term of thirty years; he was sentenced to forty years imprisonment. For a Class D

felony, Wickware faced a sentencing range of six months to three years, with an advisory

term of eighteen months; he was sentenced to two years imprisonment. As a result of

Wickware’s adjudication as a habitual offender, he faced a sentence enhancement of as little


                                               13
as eighteen months (the minimum enhancement if the trial court had applied the habitual

offender enhancement to Wickware’s sentence for Theft) to thirty years as a result of

application of the habitual offender enhancement to Wickware’s sentence for Burglary

Resulting in Bodily Injury. The trial court applied the maximum possible enhancement to the

sentence for Burglary Resulting in Bodily Injury and ran the sentences for Theft and Burglary

Resulting in Bodily Injury concurrent with one another, yielding an aggregate term of

imprisonment of seventy years.

       Looking to the nature of the offense, Wickware participated in planning the burglary

of a residence in which he and the other men expected to find several pounds of marijuana

and around $10,000 in drugs. The men eventually realized they had entered the wrong home,

but did not discontinue their conduct; they ransacked the home searching for items of value,

and soon afterward fled from police. In the process of committing the burglary, one of the

men injured J.J.M., slamming him into a dresser and pistol-whipping him. All told, then,

Wickware participated in a burglary looking for drugs and money, but instead harmed a

family without any apparent involvement in criminal activity.

       Nor does Wickware’s character speak well of him. He lacks a high school education

or GED. Wickware’s pre-sentencing investigation report (“PSI”) states that he admitted to

daily marijuana use, as well as occasional use of cocaine and narcotic pain medications. The

PSI also reports that Wickware had two prior adult felony adjudications, one for Robbery, the

other for Theft; the conviction for Robbery was related to a case that arose three months after

Wickware was released from his prison sentence for Theft. While the instant case was


                                              14
pending, Wickware was charged in a separate cause with Battery Resulting in Serious Bodily

Injury. Wickware also has six prior juvenile adjudications, five of which were for offenses

that would be considered felonies if committed by an adult. Three of these involved acts that

would constitute Theft, another involved acts that would constitute Burglary, and another

involved conduct that would constitute Battery.

       Having reviewed the matter, we cannot conclude that Wickware’s aggregate seventy-

year sentence was inappropriate. We accordingly affirm the trial court’s decision in this

respect.

                                        Conclusion

       There was sufficient evidence to support Wickware’s convictions. While we remand

to the trial court to vacate its enhancement of Wickware’s sentence for Theft, we find no

error in the trial court’s sentencing statement, and conclude that Wickware’s seventy-year

aggregate sentence is not inappropriate. We accordingly affirm the convictions, reverse and

remand with instructions to the trial court to vacate the erroneous enhancement of

Wickware’s sentence for Theft. We affirm the judgment in all other respects.

       Affirmed in part, reversed in part, and remanded with instructions.

NAJAM, J., and PYLE, J., concur.




                                             15
