MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  FILED
this Memorandum Decision shall not be                                       Jan 25 2018, 10:23 am

regarded as precedent or cited before any                                         CLERK
                                                                              Indiana Supreme Court
court except for the purpose of establishing                                     Court of Appeals
                                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Keith Cornwell,                                          January 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-402
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1508-MR-29140



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018            Page 1 of 11
                                       Statement of the Case
[1]   Keith Cornwell (“Cornwell”) appeals his conviction by jury of murder.1 He

      argues that the trial court erred when it (1) allowed the State to amend the

      charging information on the first day of trial; and (2) that his fifty-five-year

      advisory sentence is inappropriate in light of the nature of the offense and his

      character. Concluding that the trial court did not abuse its discretion and that

      Cornwell’s sentence is not inappropriate, we affirm the trial court’s judgment

      and sentence.


[2]   We affirm.


                                                     Issues
                 1.      Whether the trial court erred when it allowed the State to
                         amend the charging information on the first day of trial.


                 2.      Whether Cornwell’s sentence is inappropriate.


                                                     Facts
[3]   In August 2015, eighteen-year-old Cornwell, Caleb Bixler (“Bixler”), eighteen-

      year-old John Murphy (“Murphy”), and Ron Trahan (“Trahan”) lived together

      in a rooming house on the eastside of Indianapolis. In the early morning hours

      of Thursday, August 13, Cornwell, Bixler, and Trahan left the house together.

      Cornwell and Bixler returned to the house at approximately 5:00 a.m. without




      1
          IND. CODE § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 2 of 11
      Trahan. When Murphy came out of his bedroom, Cornwell told him that he

      knew too much already and that if he “snitch[ed],” Cornwell would kill him

      when Cornwell got out of prison. (Tr. Vol. 2 at 62). Cornwell then told

      Murphy that he and Bixler had killed Trahan.


[4]   One hour later, Cornwell, Bixler, and Murphy walked to nearby railroad tracks,

      where Cornwell burned a plastic lunch box that contained a pair of shoes, a

      shirt, and some gloves. As the lunch box and its contents burned, each of the

      three men smoked a Newport cigarette. While the men were at the railroad

      tracks, Cornwell described how he and Bixler had killed Trahan. Specifically,

      Cornwell explained that Bixler had approached Trahan from behind and

      strangled Trahan with a shoestring while Cornwell punched Trahan in the face.

      Bixler then threw Trahan to the ground and began stomping on his head while

      Cornwell stabbed him. According to Cornwell, at one point, he cut through

      Trahan’s throat and felt a bone.


[5]   After Cornwell had described Trahan’s murder, the three men began to walk

      along the railroad tracks. When Murphy asked where they were going,

      Cornwell told him that it was a surprise. The men ended up in front of an

      abandoned building, and Cornwell pointed to the spot where Trahan had been

      killed. Murphy noticed a pillow with blood on it, and Cornwell told him that it

      was Trahan’s blood. There was a large pile of mulch in front of the building,

      and Cornwell told Murphy that Trahan was buried in the mulch. The three

      men subsequently returned to their rooming house.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 3 of 11
[6]   The following day, Friday August 14, Murphy telephoned his father and took

      him to the abandoned building where Cornwell and Bixler claimed to have

      killed Trahan. Neither man observed a body, but Murphy’s father called 911.

      Police officers arrived at the scene and discovered Trahan’s body in the mulch.

      Murphy also directed the police to the spot on the railroad tracks where the

      men had burned the lunch box and articles of clothing. Evidence technicians

      found a Newport cigarette butt near the burn pile.


[7]   Cornwell gave a statement to the police on Friday, August 14. Cornwell told

      Indianapolis Metropolitan Police Department Homicide Detective Daniel

      Kepler (“Detective Kepler”) that he, Bixler, and Trahan had been at a nearby

      Rally’s restaurant late Wednesday evening into the early morning hours on

      Thursday, which was August 13. Detective Kepler confirmed the time and date

      by asking Cornwell, “Wednesday night into Thursday morning, you guys were

      at Rally’s?” (State’s Ex. 179). Cornwell responded, “yeah,” (State’s Ex. 179).

      Cornwell further explained that after leaving Rally’s, the three men had walked

      around neighborhoods on the eastside of Indianapolis and returned home

      together.


[8]   The State charged Cornwell with murder. The charging information alleged

      that Cornwell had knowingly killed Trahan on or about August 14, 2015. On

      the first day of trial, the State made an oral motion to amend the charging

      information to allege that the offense had occurred on or about August 13, 2015

      instead of August 14, 2015. The State explained that this “was more in line

      with the evidence as laid out in the probable cause affidavit. . . . I know that ‘on

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 4 of 11
       or about’ would likely cover that, but just to avoid an additional instruction to

       tell the jury about, we just amended it to the 13th to make it easier and avoid

       any issue down the road.” (Tr. Vol. 2 at 18). Cornwell objected to the

       amendment. Specifically, he argued that he had “been operating from the point

       of view that the 14th was charged . . . . I think it’s an essential element, and to

       amend it at this point after the jury’s been sworn, I think it’s too late to do that.

       . . . It could have changed the defense.” (Tr. Vol. 2 at 18). Cornwell did not

       request a continuance. The trial court granted the State’s request over the

       defense’s objection.


[9]    The State’s opening statement explained that the criminal investigation began

       “with a 911 call that came in Friday, August 14, 2015.” (Tr. Vol. 2 at 21).

       Testimony at the trial revealed that Cornwell frequently initiated physical

       altercations with Trahan, who was quiet and often kept to himself at the

       rooming house. For example, Cornwell had previously kicked in Trahan’s door

       and grabbed his neck.


[10]   The trial testimony also revealed that Trahan had a ligature strangulation mark

       on his neck, and his hyoid bone and thyroid cartridge had been fractured. He

       also had multiple contusions on his head and blunt force injuries with fractured

       nasal, cheek, and upper and lower jaw bones. Trahan also had a fractured skull

       and twenty-three post-mortem “sharp force injuries on the right side of his head

       and neck.” (Tr. Vol. 2 at 248). His cause of death was multiple blunt-force

       trauma and ligature strangulation. Other evidence presented at trial revealed

       that Trahan’s blood was on Bixler’s jeans and sock and that a Newport cigarette

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 5 of 11
       butt found at the burn pile on the railroad tracks had Bixler’s DNA on it.

       Lastly, Detective Kepler testified that he had reviewed Rally’s video footage

       from the “time period in question . . . from midnight until 2:15 in the morning.”

       (Tr. Vol. 3 at 93). According to Detective Kepler, none of the video footage

       showed Cornwell, Bixler, or Trahan at Rally’s at the time Cornwell had said

       the three men had been there. The jury convicted Cornwell of murder.


[11]   Testimony at the sentencing hearing revealed that Cornwell had no prior

       criminal history and had come “from a stable and loving home [with] financial

       support and emotional support and that he had [had many] opportunities and

       advantages.” (Tr. Vol. 4 at 22). However, according to his mother, Cornwell

       “decided to fabricate a story . . . to fit in with the people he chose to be around

       and . . . he told them he had [had] a different childhood . . . completely different

       than what he [had] really had.” (Tr. Vol. 3 at 14, 18). Cornwell’s mother

       further agreed that Cornwell had “changed his story to . . . make himself sound

       more like he was . . . from the street or . . . grew up in a hard knock life kind of

       thing.” (Tr. Vol. 3 at 18-19).


[12]   Following the testimony at the sentencing hearing, the trial court noted that

       Trahan’s “brutal death . . . was a kill that was done without justification.” (Tr.

       Vol. 3 at 28). The trial court sentenced Cornwell to a fifty-five (55) year

       advisory sentence, with fifty-one (51) years executed and four (4) years in

       community corrections. Cornwell now appeals his conviction and sentence.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 6 of 11
                                                   Decision
       1. Amendment to the Charging Information

[13]   Cornwell first argues that the trial court erred when it allowed the State to

       amend the charging information on the day of trial. Amendments to the

       charging information are governed by INDIANA CODE § 35-34-1-5. Pursuant to

       subsection (a), the State may move to amend an information “at any time

       because of any immaterial defect,” which includes “the failure to state the time

       or place at which the offense was committed where the time or place is not of

       the essence of the offense.” IND. CODE § 35-34-1-5(a)(7). Subsection (b) applies

       to “matters of substance” which the State may amend before trial with written

       notice to the defendant “if the amendment does not prejudice the substantial

       rights of the defendant.” I. C. § 35-34-1-5(b). Lastly, subsection (c) provides

       that “the court may, at any time before, during, or after the trial, permit an

       amendment to the indictment or information in respect to any defect,

       imperfection, or omission in form which does not prejudice the substantial

       rights of the defendant.” I. C. § 35-34-1-5(c).


[14]   We agree with the State that subsection (a) applies to the present case because

       amending the charging information to allege that the offense occurred on or

       about August 13, 2015, instead of on or about August 14, 2015, was an

       amendment of an immaterial defect. See Bennett v. State, 5 N.E.3d 498 (Ind. Ct.

       App. 2014), trans. denied. In Bennett, the State requested permission to amend

       the charging information following the presentation of its case in chief. The

       charging information had originally alleged that Bennett had committed the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 7 of 11
       charged crimes “on or about December 7, 2011.” Id. at 514. The State

       requested permission to amend the charging information to allege that Bennett

       had committed the charged crimes “on or about December 6, 2011,” after it

       became clear from the State’s evidence that Bennett had sold drugs during the

       late evening hours of December 6, 2011. Id. The trial court granted the

       amendment, and Bennett was subsequently convicted of dealing in cocaine.


[15]   On appeal, Bennett argued that the trial court had erred in allowing the State to

       amend the charging information. Id. We noted that the amendment requested

       by the State was not a change to the substance of the charging information as

       time was not an element of any of the crimes charged. Id. We further noted that

       under Indiana law, the allegation that Bennett had committed the charged crimes

       “on or about December 7, 2011” clearly did not limit the State only to the events

       of December 7, 2011, especially in light of the fact that time was not an element

       of any of the crimes charged. Id. As such, we concluded that time was not “of

       the essence,” and, as a result, the State was not required to prove that the offenses

       occurred on the precise dates alleged. Id. Because time was not of the essence,

       we concluded that the requested amendment was an immaterial defect that fell

       under INDIANA CODE § 35-34-1-5(a)(7) and that the trial court did not err in

       granting the amendment. Id.

[16]   Here, as in Bennett, the amendment requested by the State was not a change to

       the substance of the charging information, as time is not an element of murder.

       See IND. CODE § 35-42-1-1. In addition, “time is not of the essence in a case of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 8 of 11
       murder.” Buchanan v. State, 263 Ind. 360, 369, 332 N.E.2d 213, 219 (1975).

       Because time was not of the essence, we conclude that here, as in Bennett, the

       amendment was an immaterial defect under INDIANA CODE § 35-34-1-5(a)(7).

       The trial court did not err when it allowed the State to amend the charging

       information. 2


       2. Inappropriate Sentence

[17]   Cornwell also argues that his fifty-five (55) year advisory sentence was

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

       Appellate Rule 7(B) provides that we may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, we find that the

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

       of the offender. The defendant bears the burden of persuading this Court that

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

       2006). Whether we regard a sentence as inappropriate turns on the “culpability

       of the defendant, the severity of the crime, the damage done to others, and




       2
          To the extent Cornwell argues that the State made a substantive amendment to the information, Cornwell
       has waived appellate review of this issue because he failed to request a continuance. See Keller v. State, 987
       N.E.2d 1099, 1108 (Ind. Ct. App. 2013), trans. denied, (explaining that a defendant’s failure to request a
       continuance after a trial court allows a pre-trial substantive amendment to the charging information results in
       waiver of the issue on appeal). Waiver notwithstanding, we find no error. Cornwell argues that he was
       prejudiced by the amendment because his defense “was in the nature of an alibi.” (Cornwell’s Br. at 15).
       However, Cornwell did not raise an alibi defense either before or during trial. He cannot now raise it for the
       first time on appeal. See State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (explaining that a party
       cannot raise an issue for the first time on appeal). Further, during argument on the State’s motion to amend
       the charging information, Cornwell stated that the amendment “could have changed the defense.” (Tr. Vol. 2
       at 18). Cornwell’s statement acknowledges that the State’s amendment to the charging information did not
       change his defense and was not substantive.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018            Page 9 of 11
       myriad other factors that come to light in a given case.” Cardwell v. State, 895

       N.E.2d 1219, 1224 (Ind. 2008).


[18]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       Here, Cornwell was convicted of murder. The sentencing range for murder is

       from forty-five (45) to sixty-five (65) years, with an advisory sentence of fifty-

       five (55) years. I.C. § 35-50-2-3. The trial court sentenced Cornwell to fifty-five

       (55) years, which is the advisory sentence.


[19]   With regard to the nature of the offense, Cornwell brutally murdered, without

       justification, a quiet housemate that often kept to himself. Specifically,

       Cornwell took Trahan to an abandoned area, where he beat and stabbed him.

       At one point, Cornwell stabbed Trahan so deeply that he cut through Trahan’s

       throat and felt a bone. Cornwell then buried Trahan’s body in a pile of mulch

       and attempted to burn evidence linking him to the murder.


[20]   With regard to his character, we note that although Cornwell, who was

       eighteen years old when he killed Trahan, grew up in a stable and loving home

       where he received both financial and emotional support and had many

       opportunities and advantages, he chose to tell others that he had grown up “in a

       hard knock life kind of thing.” (Tr. Vol 3 at 19). Further, Cornwell specifically

       turned away from his supportive family and chose to live a life that eventually

       included the commission of murder.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 10 of 11
[21]   Based on the nature of the offense and his character, Cornwell has failed to

       persuade this Court that his fifty-five (55) year advisory sentence for murder is

       inappropriate.


[22]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-402 | January 25, 2018   Page 11 of 11
