MEMORANDUM DECISION                                                          FILED
                                                                        May 11 2018, 9:01 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                             CLERK
this Memorandum Decision shall not be                                    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
Alexander L. Hoover                                     Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                    Attorney General of Indiana
P.C.
Nappanee, Indiana                                       Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Raquan Charles McKinstry,                               May 11, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        50A03-1711-CR-2689
        v.                                              Appeal from the Marshall Superior
                                                        Court
State of Indiana,                                       The Honorable Robert O. Bowen,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        50D01-1603-F3-8



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018              Page 1 of 8
                                       Statement of the Case
[1]   Raquan Charles McKinstry appeals his conviction for armed robbery, as a

      Level 3 felony, and the trial court’s imposition of the advisory sentence for that

      conviction. McKinstry raises the following two issues for our review:


              1.    Whether the trial court abused its discretion when it
              admitted into evidence a photograph of McKinstry.


              2.     Whether his sentence is inappropriate in light of the nature
              of the offense and his character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In February of 2016, E.Z., a minor, was looking to buy an iPhone. E.Z.’s

      cousin, A.H., knew McKinstry, and A.H. and McKinstry arranged to have

      McKinstry sell his iPhone to E.Z. Prior to that meeting, A.H. showed E.Z.

      some photographs of McKinstry from McKinstry’s Facebook page. In one of

      the photographs, McKinstry was displaying what is commonly known as the

      “double bird.” Appellant’s Br. at 9; see State’s Ex. 15. Standing next to

      McKinstry in the photograph were two unidentified black males. One of those

      males was pointing downward in the photograph; the other was holding a bottle

      in one hand and making a gesture with his other hand in which he appears to be

      holding his middle finger down with his thumb while his other fingers are

      extended outward.



      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 2 of 8
[4]   E.Z.’s friend J.C. drove E.Z. and A.H. to meet McKinstry in a Sears parking lot

      in Plymouth after hours. E.Z. exited J.C.’s vehicle and approached McKinstry,

      who sat in the back seat of a different vehicle. A black female sat in the driver’s

      seat of that vehicle, and a black male sat in the front passenger seat. Thereafter,

      the male in the front passenger seat pulled out a firearm, pointed it at E.Z., and

      demanded E.Z.’s money, which E.Z. surrendered to McKinstry. McKinstry

      and the other two then left. E.Z. and A.H. each later identified McKinstry to

      investigating officers.


[5]   On March 3, the State charged McKinstry with armed robbery, as a Level 3

      felony. At his ensuing jury trial, E.Z. and A.H. testified against McKinstry.

      During E.Z.’s testimony, the State sought to introduce McKinstry’s Facebook

      photographs that E.Z. had seen prior to the robbery. McKinstry objected to the

      admission of the photograph that showed McKinstry with the other two males

      on the grounds that the other two males “appear to be throwing down . . . gang

      signs.” Tr. at 30. The trial court overruled the objection and permitted the

      admission of the photograph. The jury then found McKinstry guilty as

      charged, and the trial court sentenced him to the advisory sentence of nine

      years executed. This appeal ensued.


                                     Discussion and Decision
                                 Issue One: Admission of Photograph

[6]   On appeal, McKinstry first asserts that the trial court abused its discretion when

      it admitted the photograph of McKinstry standing with the two other males.


      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 3 of 8
      The trial court has “inherent discretionary power on the admission of evidence,

      and its decisions are reviewed only for an abuse of that discretion.” McManus v.

      State, 814 N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An

      abuse of discretion occurs when the trial court’s judgment “is clearly against the

      logic and effect of the facts and circumstances and the error affects a party’s

      substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[7]   According to McKinstry, the trial court erred when it found that the probative

      value of the photograph was not substantially outweighed by the danger of

      unfair prejudice to McKinstry. Indiana Evidence Rule 403 states that a trial

      court “may exclude relevant evidence if its probative value is substantially

      outweighed by a danger of . . . unfair prejudice . . . .” The Indiana Supreme

      Court has explained the trial court’s broad discretion to apply Rule 403:


              “Trial judges are called trial judges for a reason. The reason is
              that they conduct trials. Admitting or excluding evidence is what
              they do.” United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017)
              (Wilkinson, J., dissenting). That’s why trial judges have
              discretion in making evidentiary decisions. This discretion
              means that, in many cases, trial judges have options. They can
              admit or exclude evidence, and we won’t meddle with that
              decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind.
              1999). There are good reasons for this. “Our instincts are less
              practiced than those of the trial bench and our sense for the
              rhythms of a trial less sure.” Hall, 858 F.3d at 289. And trial
              courts are far better at weighing evidence and assessing witness
              credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
              In sum, our vantage point—in a “far corner of the upper deck”—
              does not provide as clear a view. State v. Keck, 4 N.E.3d 1180,
              1185 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 4 of 8
                                                         ***


                The unfair prejudice from [the challenged evidence] . . . was not
                so high that it overrode the trial court’s wide discretion. See
                Dunlap[ v. State], 761 N.E.2d [837, 842 (Ind. 2002)]. We thus
                decline to second-guess the trial court’s determination that the
                [evidence’s] relevance . . . was not substantially outweighed by
                the danger of unfair prejudice. The trial court could have
                admitted or excluded the [evidence]. The trial court chose
                admission. . . .


      Snow v. State, 77 N.E.3d 173, 177, 179 (Ind. 2017).


[8]   Contrary to McKinstry’s assertion on appeal, any danger of unfair prejudice

      from the relevant photograph1 was not so high that it overrode the trial court’s

      discretion under Rule 403. See id. Indeed, McKinstry’s argument on this issue

      is premised on his own speculation that the hand gestures of the other two

      males “could be interpreted as gang signs.” Appellant’s Br. at 9. But there is

      no evidence to support that speculation, and the jury could just as well have

      surmised that the photograph demonstrated three goofball teenagers.

      Accordingly, the trial court acted within its discretion when it admitted the

      photograph, and we will not second-guess the court’s exercise of that discretion.

      We affirm the trial court’s admission of the photograph and McKinstry’s

      conviction.




      1
          McKinstry does not dispute that the photograph was relevant.


      Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 5 of 8
                               Issue Two: Inappropriateness of Sentence

[9]    We thus turn to McKinstry’s challenge to his sentence. As we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “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.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[10]   Here, the trial court identified the following aggravating factors when it

       imposed its sentence: McKinstry had not successfully completed probation in

       the past; he violated the conditions of probation within one year; and the

       instant offense was a crime of violence. The court identified the following

       mitigating factors: McKinstry “did not point the weapon at the victim,” and he

       was seventeen years of age at the time of the offense. Appellant’s App. Vol. II

       at 176. Although the court did not expressly state that the aggravators and

       mitigators were in equipoise, the court apparently found as much as it then

       imposed the advisory term of nine years executed. See Ind. Code § 35-50-2-5(b)

       (2017).


       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 6 of 8
[11]   McKinstry asserts that his sentence is inappropriate in light of the nature of the

       offense because the armed robbery “could have ended with much worse

       consequences than it otherwise did,” because McKinstry was not the one who

       pointed the firearm, and because the jury was instructed on a lesser-included

       Class A misdemeanor offense, which carries a maximum term of one-year

       imprisonment. Appellant’s Br. at 13. And McKinstry asserts that his sentence

       is inappropriate in light of his character because he was seventeen at the time of

       the offense, because his only prior criminal history is two juvenile adjudications

       for nonviolent possession of marijuana, because he has the emotional support

       of his family, and because he “gave a heartfelt statement at sentencing

       admitting to culpability.” Id. at 12.


[12]   We cannot say that the advisory sentence, which is the starting point for the

       imposition of a criminal sentence, is inappropriate here. See, e.g., Sanders v.

       State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). Regarding the nature of the

       offense, McKinstry arranged the fictitious sale of the iPhone and otherwise

       participated in the robbery whether he actually held the firearm or not.

       McKinstry was not merely present at the scene of the crime but an integral part

       of it and took the money from the victim. Regarding his character, we will not

       disregard his two prior juvenile adjudications for possession of marijuana.

       While nonviolent, McKinstry was released to probation for each of his prior

       offenses. He failed his first probationary term when he committed his second

       possession offense, and he failed his second probationary term when he

       committed the instant offense. This reflects poorly on McKinstry’s character.


       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 7 of 8
       Further, we are not persuaded that McKinstry’s age, the support of his family,

       or his statements at sentencing are significant. We cannot say that the advisory

       sentence of nine years executed is inappropriate, and we affirm McKinstry’s

       sentence.


[13]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A03-1711-CR-2689 | May 11, 2018   Page 8 of 8
