MEMORANDUM DECISION                                                              FILED
                                                                             Apr 10 2017, 9:52 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
regarded as precedent or cited before any                                         and Tax Court

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
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Anthony S. Churchward, P.C.
Fort Wayne, Indiana                                      Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin D. Littlejohn,                                    April 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A04-1608-CR-1936
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1601-MR-1



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017                Page 1 of 12
                                             Case Summary
[1]   Randy Dial died from blunt force trauma and brain injury inflicted by Justin D.

      Littlejohn, who punched Dial, knocked him out, and smashed his head

      repeatedly with a microwave oven. A jury convicted Littlejohn of murder and

      found him to be a habitual offender. The trial court sentenced him to an

      aggregate term of eighty-five years. Littlejohn now appeals his conviction and

      sentence. He maintains that the trial court erred in instructing the jury on the

      definition of “intervening cause.” He also challenges the sufficiency of the

      evidence to support his murder conviction as well as the appropriateness of his

      sentence. Finding no error in the jury instruction and finding the evidence

      sufficient, we affirm Littlejohn’s murder conviction. Concluding that Littlejohn

      has failed to meet his burden of establishing that his sentence is inappropriate in

      light of the nature of the offense and his character, we also affirm his sentence.


                                  Facts and Procedural History
[2]   Dial was a mildly mentally disabled man who received treatment through Park

      Center, a mental health treatment facility in Fort Wayne. As part of his

      services, he was provided the funds to stay at a local motel. Described by those

      who knew him as a nice and friendly guy, Dial allowed Littlejohn (who was

      homeless and broke) to stay in his motel room.


[3]   On the night of December 27, 2015, Dial and several friends were hanging out

      in his motel room, watching television and smoking spice. Awhile later,

      Littlejohn and another man entered the room. Dial stood up to use the


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 2 of 12
      restroom, and the agitated Littlejohn said, “Sit your f**king a** down.” Tr.

      Vol. I at 160. Dial explained that he was only trying to use the restroom,

      reminded Littlejohn that it was his motel room, asked that he respect him, and

      sat down as instructed.


[4]   Littlejohn approached Dial and punched him twice in the face, knocking him to

      the floor. As Dial lay unconscious, his friend George Lowrimore attempted to

      intervene, but Littlejohn’s companion drew a gun and threatened to “put a

      bullet in [his] brain.” Id. at 162-63; Tr. Vol. II at 44, 51, 54. Littlejohn picked

      up a fifteen-pound microwave oven and struck the unconscious Dial in the head

      several times. When the hinges on the microwave broke and the door was ajar,

      Littlejohn took the heavy glass turntable plate from within and shattered it

      against Dial’s face. Immediately thereafter, one of the onlooking friends told

      Littlejohn to stop, and Littlejohn responded that he could “pick [Dial] up and

      throw him out the window.” Id. at 46, 56-57. At that point, Littlejohn and the

      several others left.


[5]   Lowrimore helped Dial onto the bed and got him a towel for the bleeding. The

      bloody and disoriented Dial told Lowrimore that he was “okay,” so Lowrimore

      left. Tr. Vol. I at 164-65, 178. Later that night, when Lowrimore returned to

      check on Dial, he could not get inside the locked room, and he could hear

      gasping and stumbling sounds. Lowrimore tried unsuccessfully to get a key

      from the front desk.




      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 3 of 12
[6]   The next afternoon, Lowrimore persuaded the motel manager to open Dial’s

      door. They found Dial unconscious on the floor with labored breathing and

      mucus coming from his mouth and phoned 911. Paramedics transported Dial

      to a local hospital. Meanwhile, police arrived and found a large puddle of

      blood and tissue matter on the floor. They also found blood on the microwave,

      television, refrigerator, bed, and pillows, as well as in the bathroom.


[7]   Dial never regained consciousness and died at the hospital on December 29,

      2015. An autopsy revealed the cause of death to be severe brain injury caused

      by blunt force trauma to the head. The pathologist reported that Dial’s brain

      injuries and subdural hematomas were consistent with multiple blows to the

      head involving a substantial amount of force. Dial also suffered a skull fracture,

      a fractured middle finger, contusions on the neck, purple eyes, and abrasions

      and bruises on his neck, chest, shoulder, thighs, knees, forearm, and hands.


[8]   The next day, police interviewed Littlejohn, who initially denied attacking Dial.

      He later admitted hitting Dial with his fist, the microwave, and the glass plate,

      conceding that he “took it a little too far” with the microwave because Dial was

      unconscious, harmless, weak, and would not fight him. State’s Ex. 49.


[9]   The State charged Littlejohn with murder and a habitual offender count. A jury

      found him guilty as charged. The trial court sentenced him to sixty-five years

      for murder, plus twenty years for the habitual offender adjudication, for an

      aggregate sentence of eighty-five years executed. Littlejohn now appeals his

      conviction and sentence. Additional facts will be provided as necessary.


      Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 4 of 12
                                      Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                   instructing the jury on intervening cause.
[10]   Littlejohn contends that the trial court erred in instructing the jury on the

       definition of intervening cause. The trial court has broad discretion in

       instructing the jury, and we therefore review its decision to give or refuse a

       party’s tendered instruction for an abuse of discretion. Kane v. State, 976

       N.E.2d 1228, 1231 (Ind. 2012). An abuse of discretion occurs when the

       instruction is erroneous and the instructions taken as whole misstate the law or

       otherwise mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999),

       cert. denied (2000). In reviewing a challenge to a jury instruction, we typically

       consider whether the challenged instruction correctly states the law, whether

       there is evidence in the record to support giving the instruction, and whether the

       substance of the instruction is covered by the other instructions. Brooks v. State,

       895 N.E.2d 130, 132 (Ind. Ct. App. 2008). Because Littlejohn essentially limits

       his challenge to the first of these grounds, we focus our discussion accordingly.


[11]   Littlejohn challenges Instruction 4, which reads,

               The cause of death is not an element of the offense of murder
               itself, but becomes a relevant matter when an intervening cause
               of death is suggested. An intervening cause is an independent
               force that breaks the casual [sic] connection between the actions
               of the defendant and the injury. A defendant is responsible for
               the death of the decedent if you find the injuries inflicted
               contributed either mediately or immediately to the death. In
               order for an intervening cause to break the chain of criminal

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 5 of 12
               responsibility, it must be so extraordinary that it would be unfair
               to hold the defendant responsible for the actual result.


       Appellant’s App. Vol. II at 80.


[12]   Littlejohn asserts that Instruction 4 is not a proper statement of the law. He

       contends that the “instruction inappropriately used an appellate standard

       reserved for sufficiency of the evidence determinations.” Appellant’s Br. at 13.

       Quite simply, it did no such thing. Instead, it merely defined intervening cause

       so that the jury, as factfinder, could determine whether it was Littlejohn who

       caused Dial’s death. As such, Littlejohn’s reliance on Ludy v. State, 784 N.E.2d

       459, 462 (Ind. 2003), and Williams v. State, 782 N.E.2d 1039, 1049 (Ind. Ct.

       App. 2003) (citations omitted), trans. denied, is misplaced.


[13]   Littlejohn also argues that the third sentence of Instruction 4 improperly created

       a presumption that the defendant “is responsible for the death of the decedent if

       [the jury] find[s] the injuries inflicted contributed either mediately or

       immediately to the death.” Appellant’s App. Vol. II at 80. Littlejohn has failed

       to support his assertion with cogent argument or citation to authority. As such,

       he has waived review of this claim pursuant to Indiana Appellate Rule

       46(A)(8). See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009) (“A

       party waives an issue where the party fails to develop a cogent argument or

       provide adequate citation to authority and portions of the record.”). Littlejohn

       has failed to establish an abuse of discretion in the trial court’s giving of

       Instruction 4.


       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 6 of 12
         Section 2 – The evidence is sufficient to support Littlejohn’s
                             murder conviction.
[14]   Littlejohn maintains that the evidence is insufficient to support his murder

       conviction. When reviewing a challenge to the sufficiency of evidence, we

       neither reweigh evidence nor judge witness credibility. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and

       reasonable inferences most favorable to the verdict and will affirm the

       conviction “unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that

       the evidence “overcome every reasonable hypothesis of innocence.” Id. at 147

       (citation omitted).


[15]   A person who knowingly or intentionally kills another human being commits

       murder, a felony. Ind. Code § 35-42-1-1. As Littlejohn admitted to being the

       person who inflicted the blows on Dial, he essentially challenges the mens rea

       element of the offense. A person engages in conduct ‘knowingly’ if, when he

       engages in the conduct, he is aware of a high probability that he is doing so.”

       Ind. Code § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when

       he engages in the conduct, it is his conscious objective to do so.” Ind. Code §

       35-41-2-2(a). Intent may be established by circumstantial evidence and inferred

       from a defendant’s conduct and the natural and usual sequence to which such

       conduct logically and reasonably points. Long v. State, 935 N.E.2d 194, 97 (Ind.

       Ct. App. 2010), trans. denied. Intent to kill may be inferred from the use of a




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 7 of 12
       deadly weapon in a manner likely to cause death or great bodily injury. Elliott

       v. State, 786 N.E.2d 799, 803 (Ind. Ct. App. 2003).


[16]   Here, Littlejohn unwaveringly, albeit self-servingly, claimed that he and Dial

       were friends and that he did not intend to kill him. However, the repetition as

       well as the force of the blows to Dial’s head support a reasonable inference that,

       at a minimum, Littlejohn was aware of a high probability that his actions would

       result in Dial’s death. Littlejohn knew that his first two punches had rendered

       Dial unconscious, but he did not stop there. Instead, he grabbed a fifteen-

       pound microwave oven and smashed it repeatedly against the head of the

       unconscious Dial, who was helpless to block the blows or defend himself in any

       way. Then, having broken the hinges on the microwave door, Littlejohn used

       the heavy glass tray inside it to deliver a final, shattering blow to Dial’s face.

       When the onlooking friends urged him to stop, he retorted that he could “pick

       [Dial] up and throw him out the window.” Tr. Vol. II at 46, 56-57. The

       probative evidence most favorable to the verdict is sufficient to establish that

       Littlejohn knowingly or intentionally killed Dial, and we decline Littlejohn’s

       invitations to reweigh evidence and reassess witness credibility. Consequently,

       we affirm Littlejohn’s murder conviction.


              Section 3 – Littlejohn has failed to carry his burden of
                 establishing that his sentence is inappropriate.
[17]   Littlejohn also asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 8 of 12
       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). We do not look to see whether

       the defendant’s sentence is appropriate or if another sentence might be more

       appropriate; rather, the test is whether the sentence is “inappropriate.” Fonner

       v. State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). A defendant bears the

       burden of persuading this Court that his sentence meets the inappropriateness

       standard. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218.


[18]   In considering the nature of Littlejohn’s offenses, “the advisory sentence is the

       starting point the Legislature selected as appropriate for the crime committed.”

       Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The trial court sentenced

       Littlejohn to sixty-five years for murder, with a twenty-year enhancement for

       the habitual offender finding. The sentencing range for a person convicted of

       murder is forty-five to sixty-five years, with a fifty-five-year advisory term. Ind.

       Code § 35-50-2-3(a). For a person convicted of murder and found to be a

       habitual offender, the sentencing range is an additional fixed term of six to

       twenty years. Ind. Code 35-50-2-8(i)(1). When determining the

       appropriateness of a sentence that deviates from an advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that “makes it different from the typical offense




       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 9 of 12
       accounted for by the legislature when it set the advisory sentence.” Holloway v.

       State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[19]   This was not a typical murder, if such a thing even exists. Dial was a mentally

       diminished person who had befriended the homeless Littlejohn. The

       photographic exhibits depict a grisly crime scene with blood and tissue matter

       on the floor, sheets, and pillowcase. The photos of Dial’s head injuries are

       gruesome. Littlejohn attempts to characterize the incident as a “fight,” but the

       record reflects an unprovoked, lethal beating of a person who merely attempted

       to get up from his seat to use the restroom. Sent. Tr. at 14. With the first two

       blows from his fist, Littlejohn knocked Dial unconscious. Then, wielding a

       fifteen-pound microwave, Littlejohn inflicted multiple heavy blows to the

       helpless Dial’s head. Even the microwave could not weather the force, and its

       door broke off its hinges. In one final blow, Littlejohn broke the heavy glass

       turntable tray over Dial’s head. When onlooking friends urged him to stop, he

       threatened to throw Dial out the window and then left him to die. And die he

       did, slowly and laboriously over the next day and a half. Simply put, this

       murder was senseless and brutal.


[20]   As for Littlejohn’s character, we conduct our review by engaging in a broad

       consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.

       2014), clarified on other grounds on reh’g, 11 N.E.3d 571. His criminal history is

       among the relevant facts to be considered. Garcia v. State, 47 N.E.3d 1249, 1251

       (Ind. Ct. App. 2015), trans. denied (2016). His entanglements with law

       enforcement began at age fifteen, when he was charged with conduct that

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 10 of 12
       would amount to resisting law enforcement and criminal recklessness if

       committed by an adult. He received informal adjustments, one of which had to

       be extended for six months before successful completion. His adult criminal

       history includes two felony and three misdemeanor convictions. His felony

       convictions include the predicate offenses underlying his habitual offender

       adjudication: class B felony robbery (2007) and class D felony resisting law

       enforcement involving a deadly weapon/bodily injury (2011). Also notable is

       the fact that after serving the first three years of his robbery sentence, Littlejohn

       was placed on parole, violated his parole, and was remanded to the Department

       of Correction. Less than two months after his eventual discharge, he

       committed his felony resisting law enforcement offense, along with false

       informing and resisting law enforcement, both misdemeanors. In short,

       Littlejohn’s criminal history reflects his continued disregard for the law and his

       failure to respond positively to more lenient sentencing alternatives. His risk

       assessment score placed him in the “HIGH risk category to reoffend.”

       Appellant’s App. Vol. II at 104.


[21]   Littlejohn also has a history of illegal substance abuse. He admitted that he

       began his regular use of marijuana at age sixteen, ecstasy at age eighteen, and

       spice at age twenty-three. He reported that he still uses spice regularly.


[22]   Finally, Littlejohn’s statement to Dial’s family during sentencing demonstrates

       a failure to accept full responsibility for his offense:

               I’d like to apologize to [Dial’s] family. I want you to know that
               we were friends and it was never my intent to kill him, it was just

       Court of Appeals of Indiana | Memorandum Decision 02A04-1608-CR-1936 | April 10, 2017   Page 11 of 12
               a fight, fights happen every day, I just took it a little bit too far
               and every [sic] since the incident happened, it bothers and hurts
               me every day. It’s been hard for me to sleep at night and will still
               continue to bother me.


       Sent. Tr. at 14. The incident was not a fight; it was an unprovoked attack. And

       Littlejohn’s characterization of the brutal, protracted beating of a helpless

       person as merely going “a little bit too far” reflects an attitude of downplaying

       the offense rather than taking full responsibility for it. His character simply

       does not militate toward a shorter sentence. In sum, Littlejohn has failed to

       meet his burden of establishing that his sentence is inappropriate in light of the

       nature of the offense and his character. Accordingly, we affirm his sentence.


[23]   Affirmed.


       Riley, J., and Altice, J., concur.




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