MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 14 2018, 10:18 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Emilee L. Stotts                                        Curtis T. Hill, Jr.
Marion, Indiana                                         Attorney General of Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rolly B. Dulworth,                                      May 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1711-CR-2784
        v.                                              Appeal from the
                                                        Huntington Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Thomas M. Hakes, Judge
                                                        Trial Court Cause No.
                                                        35C01-1605-F2-75



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018           Page 1 of 16
[1]   Rolly B. Dulworth (“Dulworth) was convicted, following a jury trial, of Level 4

      felony burglary,1 and he appeals, raising the following two restated issues:


                 I. Whether the trial court abused its discretion when it refused to
                 give Dulworth’s proposed jury instruction concerning accomplice
                 testimony; and


                 II. Whether Dulworth’s eleven-year executed sentence is
                 inappropriate in light of the nature of the offense and his
                 character.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In the summer of 2015, Dulworth met a man named Andrew Stoffel (“Stoffel”).

      The two were participating in a small-group program that met once a week at a

      church in Marion, Indiana. The two became friends, spending time together

      outside of church as well. At the time, Dulworth was not employed, and Stoffel

      helped Dulworth look for work. When Dulworth was having trouble finding

      employment, Stoffel wanted “to help [Dulworth] out,” so Stoffel paid Dulworth

      to perform odd jobs at his home. Tr. Vol. II at 62. Dulworth also came to

      Stoffel’s home just for social reasons. On one occasion when Dulworth was at

      the home, Stoffel showed Dulworth a Glock handgun, which he kept in the

      dresser in his bedroom. Id. at 64.




      1
          See Ind. Code § 35-43-2-1(1).


      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 2 of 16
[4]   On October 16, 2015, Dulworth, along with three accomplices, Amber

      McHenry (“McHenry”), Robert Boothby (“Boothby”), and Roger Mitchell

      (“Mitchell”) burglarized Stoffel’s home. Boothby drove the group to Stoffel’s

      home and waited in the car. Dulworth went to the front door and checked to

      see if Stoffel was home. After learning that Stoffel was not there, Mitchell

      broke some glass in a door using a board, reached in, and unlocked the door,

      and Dulworth, Mitchell, and McHenry went inside. Id. at 158-59. Dulworth

      took Stoffel’s gun, and Mitchell took a safe. Id. at 105-06. Boothby drove the

      parties back to Grant County, to a drug dealer’s home, and McHenry

      exchanged the handgun for crack and heroin. Id. at 107-08. Boothby then

      drove them to Mitchell’s home, where Dulworth, Mitchell, and McHenry got

      high.


[5]   At around 10:30 p.m. that same day, Stoffel came home to his residence, saw

      the broken glass, and realized that his home had been broken into. He

      discovered that his handgun was missing, along with some ammunition and a

      fireproof safe that he kept in his bedroom. The safe contained, among other

      things, vintage coins that Stoffel received from his father. Stoffel contacted

      police that night to report the incident.


[6]   On October 18, 2015, Dulworth, McHenry, and Boothby took the vintage coins

      to an antique and pawn shop called Tom’s Coins in Wabash, Indiana to trade

      them for money. Id. at 144-45. The sale was recorded on the store’s video

      surveillance system, which showed Dulworth handing the coins to the owner,

      Tom Boyll (“Boyll”). Boyll required identification, but because Dulworth did

      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 3 of 16
      not have any, Boothby provided his identification to Boyll. Boyll paid $68, and

      Boothby drove Dulworth and McHenry to the same drug dealer’s home and

      bought more drugs. Sometime later, Stoffel’s father stopped at Tom’s Coins

      and asked whether anyone had sold the items stolen from Stoffel’s house. Boyll

      realized the coins were stolen and provided a video recording of the sale to

      Stoffel’s father, who provided it to police.


[7]   On May 13, 2016, the State charged Dulworth with Count I, Level 2 felony

      burglary and Count II, Level 4 felony burglary. McHenry, Boothby, and

      Mitchell all pled guilty for their involvement. Id. at 114, 147, 163. In August

      2016, Dulworth filed a motion to dismiss Count I, which the trial court

      granted.2


[8]   At the beginning of trial, the trial court read preliminary instructions to the jury,

      including Preliminary Instruction No. 9, which provided:


               You are the exclusive judges of the evidence, the credibility of the
               witnesses and the weight to be given to the testimony of each of
               them. In considering the testimony of any witness, you may take
               into account his or her ability and opportunity to observe; the
               manner and conduct of the witness while testifying; any interest,



      2
        Count I’s Level 2 felony burglary charge, which alleged that Dulworth committed the burglary “while
      armed with a deadly weapon,” was based on the fact that a handgun was taken from the house during the
      burglary. Appellant’s App. Vol. II at 16, 29-35. In an appeal filed by one of Dulworth’s accomplices, this court
      held that the offense of burglary could not be elevated to a Level 2 felony because a firearm is stolen during
      the burglary. State v. McHenry, 74 N.E.3d 577, 581 (Ind. Ct. App. 2017) (stating that “a defendant who
      obtains a handgun as loot during the course of a burglary has not ‘armed’ him or herself as that term is used
      in Indiana Code section 35-43-2-1(3)(A)”), trans. denied. Therefore, the trial court granted Dulworth’s motion
      to dismiss Count I. Tr. Vol. II at 37.



      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018                Page 4 of 16
              bias or prejudice the witness may have; any relationship with
              other witnesses or interested parties; and the reasonableness of
              the testimony of the witness considered in the light of all of the
              evidence in the case. You should attempt to fit the evidence to
              the presumption that the Defendant is innocent and the theory
              that every witness is telling the truth. You should not disregard
              the testimony of any witness without a reason and without
              careful consideration. If you find conflicting testimony, you
              must determine which of the witnesses you will believe and
              which of them you will disbelieve. In weighing the testimony to
              determine what or whom you will believe, you should use your
              own knowledge, experience and common sense gained from day
              to day living. The number of witnesses who testify to a particular
              fact, or the quantity of evidence on a particular point need not
              control your determination of the truth. You should give the
              greatest weight to that evidence which convinces you most
              strongly of its truthfulness.


      Id. at 47-48.


[9]   At trial, Stoffel testified, describing how he met and became friends with

      Dulworth through church. Stoffel testified to showing his handgun to Stoffel

      on one occasion, and he stated that not many people knew about the handgun

      that he kept in his home. Stoffel said he had prepaid Dulworth, but Dulworth

      did not complete the work agreed to, and the last time that Dulworth was at his

      home to perform odd jobs was approximately two or three weeks before the

      date of the burglary. Stoffel’s father, Darwin Stoffel (“Darwin”) testified about

      being contacted by Stoffel on the night of the burglary and going to his son’s

      home and seeing the broken door. Darwin stated that, about two years prior,

      he had given Stoffel a fireproof lockbox containing coins and Indian artifacts.


      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 5 of 16
       He described the various coins and explained that he decided to try and locate

       the stolen property, so he contacted Tom’s Coins, where he had done business

       before, and showed them a list and pictures of what the coins would have

       looked like. Darwin obtained video surveillance from Tom’s Coins of the

       transaction and provided it to law enforcement.


[10]   Boyll testified and described purchasing the coins on October 18 and then being

       contacted subsequently by Darwin, asking Boyll if he had purchased some

       coins, at which time Boyll realized “there was a problem,” and he preserved the

       surveillance footage of the transaction, which was admitted and played for the

       jury. Id. at 129. Indiana State Police Detective Matthew Teusch (“Detective

       Teusch”) testified to speaking with Stoffel and to later being contacted by

       Darwin about the coins being pawned at Tom’s Coins. Darwin provided the

       video recording of the transaction to Detective Teusch, who then obtained

       Boothby’s identification from Tom’s Coins. Boothby met with Detective

       Teusch and provided him with the details of the burglary. Detective Teusch,

       thereafter, spoke to Mitchell and, separately, to Dulworth. Dulworth told

       Detective Teusch about the burglary of Stoffel’s home, acknowledging that

       Stoffel was his “close friend[,]” whom he met through church. Id. at 172.

       Dulworth said that he and the others burglarized the home because they needed

       heroin money. Id. at 173. He admitted to pawning the coins, stating that they

       first attempted to sell them in Marion, but were unsuccessful, so they sold them

       in Wabash.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 6 of 16
[11]   McHenry, Boothby, and Mitchell also testified for the State concerning the

       burglary of Stoffel’s home. Each stated that, in exchange for pleading guilty, he

       or she agreed to tell the truth about what happened and agreed to testify against

       Dulworth. Each acknowledged that, by pleading guilty and testifying against

       Dulworth, he or she received the benefit of possibly avoiding a longer sentence.

       Each of them testified to having a criminal history.


[12]   Prior to trial, the parties had submitted proposed jury instructions, and

       Dulworth tendered an instruction concerning accomplice testimony (“Proposed

       Instruction No. 6”), which stated that such testimony “must be considered with

       caution and great care.” Appellant’s App. Vol. II at 72. At the beginning of the

       second day of trial and out of the presence of the jury, the trial court addressed

       the matter of jury instructions, and it stated that it did not intend to give

       Proposed Instruction No. 6 in its final instructions to the jury. Tr. Vol. II at 180-

       81. Dulworth objected to the trial court’s decision not to give Proposed

       Instruction No. 6, and the State argued that it was covered by other instructions

       and, if the court were to give a separate instruction on accomplice testimony, it

       would single out the testimony of some witnesses over others. Id. at 198-99.

       The trial court reaffirmed its prior decision not to give a separate instruction

       regarding accomplice testimony. Id. at 199. In reading final instructions to the

       jury, the trial court reminded the jury of the preliminary instructions that the

       jury had already received and which remained applicable. Id. at 211.


[13]   Following the presentation of evidence, the jury convicted Dulworth of Level 4

       felony burglary. At the October 23, 2017 sentencing hearing, the State asserted

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 7 of 16
       that Dulworth’s criminal history was an aggravator; at that time, Dulworth had

       three prior felony convictions, including a burglary conviction, and several

       misdemeanor convictions, a petition to revoke probation had been filed on a

       prior burglary conviction, and he was on probation when he committed the

       burglary of Stoffel’s home. The State also argued that Stoffel took advantage of

       Stoffel’s generosity and willingness to help, and it highlighted that Dulworth

       stole a gun that was traded for drugs and landed in the hands of a drug dealer.

       Before imposing sentence, the trial court remarked to Dulworth:


               You knew exactly where this man lived. And you knew what he
               had. I find that that’s an aggravator. I find that the gun that was
               stolen and sold for drugs is an aggravator. I understand, I guess,
               in some way why you did it. You sold it for drugs. But the
               Prosecutor’s right: it puts a gun back into the hands of somebody
               who quite frankly shouldn’t have a gun. You were on probation
               at the time. Putting you on probation makes no sense. You had
               probation revoked, you were on probation at the time, you
               commit further criminal acts. Uh, there’s no acceptance. There’s
               no remorse. And I find that criminal history is quite serious
               because there’s prior felonies. I went through and tried and tried
               and tried to come up with a mitigator; I couldn’t do it.


       Id. at 227. The trial court imposed an eleven-year sentence with no time

       suspended. Appellant’s App. Vol. II at 104. Dulworth now appeals.


                                      Discussion and Decision

                                          I. Jury Instruction
[14]   Dulworth asserts that the trial court erred when it did not give his Proposed

       Instruction No. 6 regarding accomplice testimony. The manner of instructing a

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 8 of 16
       jury is left to the sound discretion of the trial court. Albores v. State, 987 N.E.2d

       98, 99 (Ind. Ct. App. 2013), trans. denied. We review the trial court’s decision

       only for an abuse of that discretion. Id. On review of a trial court’s decision to

       refuse a proposed jury instruction, we consider whether the instruction (1)

       correctly states the law, (2) is supported by the evidence, and (3) is covered in

       substance by other instructions that are given. Id. We consider jury

       instructions as a whole and in reference to each other. Evans v. State, 81 N.E.3d

       634, 637 (Ind. Ct. App. 2017). We do not reverse the trial court unless the

       instructions as a whole misstate the law or mislead the jury. Id.


[15]   Here, the trial court refused to give the following jury instruction tendered by

       Dulworth, regarding accomplice testimony:


               You have heard testimony that Roger Mitchell, Amber McHenry
               and/or Robert Boothby has received benefits from the State of
               Indiana in connection with this case.


               You may give his/her testimony such weight as you feel it
               deserves, keeping in mind that it must be considered with caution
               and great care.


       Appellant’s App. Vol. II at 72. Dulworth argues that “[t]he proposed jury

       instruction correctly stated the law, was supported by evidence in the record,

       and was not adequately covered by other instructions[,]” and, therefore, he

       asserts, the trial court abused its discretion by refusing to give it. Appellant’s Br.

       at 7.



       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 9 of 16
[16]   Dulworth acknowledges that the trial court gave Preliminary Instruction No. 9

       which, in part, stated, “[Y]ou are the exclusive judges of the evidence, the

       credibility of the witnesses and the weight to be given to the testimony of each

       of them. In considering the testimony of any witness, you may take into

       account his or her ability and opportunity to observe, the manner of conduct of

       the witness while testifying; any interest, bias or prejudice the witness may

       have; any relationship with other witnesses or interested parties; and the

       reasonableness of the testimony of the witness considered in the light of all of

       the evidence in the case.” Tr. Vol. II at 47. Dulworth argues, however, that

       Indiana has “long-standing precedent that the testimony of accomplices should

       be closely scrutinized and cautiously received[,]” and Preliminary Instruction

       No. 9 did not instruct the jury of that required “close scrutiny and caution.”

       Appellant’s Br. at 8. In support of his argument, Dulworth relies on Green v.

       State, 241 Ind. 96, 168 N.E.2d 345 (1960), where our Supreme Court, in

       rejecting the defendant’s claim that accomplices are incompetent witnesses and

       holding that accomplices are competent witnesses, made the following

       statement: “The testimony of accomplices should be closely scrutinized and

       cautiously received and this matter should be called to the attention of the trier

       of facts in considering the weight to be given such evidence.” 168 N.E.2d at

       348.


[17]   However, Dulworth’s reliance on Green is erroneous, as Green was overruled in

       part by Turner v. State, 258 Ind. 267, 280 N.E.2d 621, 624-25 (1972) and by

       Cherry v. State, 258 Ind. 298, 280 N.E.2d 818, 820-21 (1972), both of which


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 10 of 16
       affirmed the trial court’s refusal to give the defendant’s tendered instruction

       stating that an accomplice’s testimony should be cautiously received and

       carefully scrutinized. The Cherry Court explained that the giving of a

       cautionary instruction such as that tendered would be “contrary to decisions

       holding that it is error to intimate an opinion as to the credibility of a witness or

       the weight to be given his testimony,” and “the question of a witness’[s]

       possible bias, by reason of a peculiar relationship to the defendant, was better

       left for the persuasion of counsel by his cross-examination and summation.”

       280 N.E.2d at 821.


[18]   Some years later, our Supreme Court in Abbott v. State, 535 N.E.2d 1169, 1172

       (Ind. 1989), again addressed and rejected an argument similar to that which

       Dulworth now makes. In Abbott, an accomplice gave statements to police and,

       each time, he added more facts to the story. Abbott argued that, pursuant to

       Green, the testimony of an accomplice must be closely scrutinized and received

       with caution and that the trial court committed reversible error when it refused

       to give two tendered instructions, which stated:


               The testimony of an accomplice should be highly scrutinized.


               The consideration which an accomplice expects to receive for his
               testimony should be considered by you in determining what
               weight to give to the testimony.


       Id. at 1172. The Abbott Court found no error in the trial court’s decision not to

       give the tendered instructions, stating, “An instruction to cautiously scrutinize


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 11 of 16
       the testimony of a codefendant is improper because it invades the province of

       the jury by commenting on the competency or the weight to be given to the

       testimony of any particular witness.” Id. The Court continued:


               [The jurors] were instructed that they are the exclusive judges of
               the evidence and the credibility of the witnesses, and that they
               may take into consideration any interest, bias, or prejudice the
               witness may have, and any relationship with other witnesses or
               interested parties when making their determination.


       Id. Finding that the subject of Abbott’s tendered instructions was covered by

       other instructions given at trial, the Abbott Court upheld the trial court’s refusal

       to give them. Id.


[19]   It is thus clear that, under Indiana law, “‘[A]n instruction directed to the

       testimony of one witness erroneously invades the province of the jury when the

       instruction intimates an opinion on the credibility of a witness or the weight to

       be given to his testimony.’” Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003)

       (quoting Pope v. State, 737 N.E.2d 374, 378 (Ind. 2000) and citing to Abbott).

       Accordingly, we find that Dulworth’s Proposed Instruction No. 6, which was

       specifically directed to the testimony of the three accomplices and addressed the

       credibility or weight to be given to such testimony, improperly invaded the

       province of the jury, and thus the trial court correctly refused to give it.


[20]   Furthermore, even if we agreed with Dulworth that Proposed Instruction No. 6

       did not invade the province of the jury, we still find that the trial court did not

       abuse its discretion by not giving the instruction because “the focus is not just


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 12 of 16
       on the rejected instruction but also on the jury instructions in fact given. Even

       if an instruction is a correct statement of the law and finds support in the

       evidence, a trial court may in its discretion refuse to give it if it is covered in

       substance by other instructions.” Albores, 987 N.E.2d at 100. Here, the

       substance of Dulworth’s proposed instruction was adequately covered by the

       other instructions given to the jury, and the trial court did not abuse its

       discretion when it did not give his Proposed Instruction No. 6 regarding

       accomplice testimony.


                                              II. Sentencing
[21]   The trial court sentenced Dulworth to eleven years with no time suspended, for

       his Level 4 felony burglary conviction, and Dulworth argues it was an

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

       Pursuant to Indiana Appellate Rule 7(B), this 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.” Our Supreme Court has explained that the

       principal role of appellate review should be to attempt to leaven the outliers,

       “not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). We independently examine the nature of

       Dulworth’s offenses and his character under Appellate Rule 7(B) with

       substantial deference to the trial court’s sentence. Satterfield v. State, 33 N.E.3d

       344, 355 (Ind. 2015). “In conducting our review, we do not look to see whether

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

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 13 of 16
       appropriate; rather, the test is whether the sentence is ‘inappropriate.’” Barker v.

       State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Dulworth bears

       the burden of persuading us that his sentence is inappropriate. Id.


[22]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory

       sentence for a Level 4 felony conviction is six years, with a range of between

       two and twelve years. Ind. Code § 35-50-2-5.5.


[23]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, Dulworth highlights that before

       burglarizing the home, he went to Stoffel’s door and confirmed that Stoffel was

       not at home, the proceeds were exchanged for cash and drugs, and the stolen

       coins were recovered from the coin shop. These facts, he argues, do not justify

       a fully-executed eleven-year sentence. Appellant’s Br. at 10.


[24]   Our review of the record reveals that the circumstances of the offenses are that

       Stoffel and Dulworth met at church and participated together in a weekly

       group. They became friends and associated outside of church as well. Because

       Dulworth was having trouble finding employment, Stoffel offered to pay

       Dulworth to perform odd jobs around Stoffel’s home. Dulworth accepted the

       offer and received prepayment, but did not complete the jobs. On one occasion

       when Dulworth was at Stoffel’s home, Stoffel showed Dulworth his handgun,


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 14 of 16
       and Dulworth used that knowledge to bring accomplices to Stoffel’s home,

       break in, and steal from him. Dulworth and his accomplices stole the gun and

       traded it to a drug dealer in exchange for drugs, thereby putting a stolen gun in

       the hands of a drug dealer. One of Dulworth’s accomplices also removed a safe

       or lockbox from Stoffel’s home, which contained coins that Stoffel’s father had

       given to him. Dulworth sold the coins to a pawnshop in exchange for $68,

       which he used to buy more drugs. We agree with the State that Dulworth

       “took advantage of Stoffel’s friendship and generosity by betraying his trust and

       stealing” from him. Appellee’s Br. at 11. We are not persuaded that anything

       about the nature of the offense warrants a reduction in the imposed sentence.


[25]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Dulworth argues that his prior

       criminal history was relatively minor, that he was raised by adoptive parents

       but no longer communicates with them because of “his recent trouble with the

       law,” and began using opiates after a car wreck, eventually using them every

       day, but had not received treatment for his drug abuse. Appellant’s Br. at 10-11.

       He urges that his character did not warrant the eleven-year sentence. We

       disagree that his criminal history is minor. Dulworth has three prior felony

       convictions, one of which was for Class D felony burglary, and a petition to

       revoke probation was filed in that case. Appellant’s Confid. App. Vol. II at 98-99.

       After committing the present offense, Dulworth was convicted of Level 6 felony

       domestic battery. Id at 99. Furthermore, in the instant crime, Dulworth

       assembled accomplices and broke into his friend Stoffel’s home and stole from


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 15 of 16
       him. Based on the record before us, we cannot say that his character warrants

       revision of his sentence. Accordingly, Dulworth has failed to carry his burden

       of establishing that his sentence is inappropriate in light of the nature of the

       offense and his character.


[26]   Affirmed.


[27]   Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2784 | May 14, 2018   Page 16 of 16
