MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Feb 17 2020, 9:57 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Agapito Diaz III,                                        February 17, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1359
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela G. Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1711-MR-2798



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020               Page 1 of 12
                                       Statement of the Case
[1]   Agapito Diaz III appeals his convictions following a jury trial for felony

      murder, a felony; attempted murder, a Level 1 felony; attempted armed

      robbery, as a Level 3 felony; unlawful possession of a firearm by a serious

      violent felon, a Level 4 felony; and criminal recklessness, as a Level 5 felony.

      Diaz presents the following issues for our review:


              1.       Whether his convictions for felony murder and attempted
                       armed robbery violate double jeopardy principles.

              2.       Whether his felony murder conviction can stand given that
                       the victim’s death was the result of a third party’s alleged
                       act of self-defense.

              3.       Whether the trial court abused its discretion when it
                       sentenced him.

              4.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   During the evening of November 6, 2017, Joshua Steele went to Lindsay

      Dowell’s house in Chesterfield. The two were on their way to Dowell’s

      bedroom when Steele saw a gun lying on a bed in another bedroom. Steele also

      saw Jalynn Harman sitting on the bed near the gun. Steele asked Dowell about

      the gun, and she said that it belonged to her roommate, Diaz. Steele expressed

      an interest in buying the gun. Diaz was in the shower at that time. When he

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 2 of 12
      got out of the shower, Dowell asked Diaz whether he would sell the gun Steele

      had seen in his bedroom, and he said no.


[4]   Diaz then entered Dowell’s bedroom and asked Steele whether Diaz “knew

      [him] from somewhere.” Tr. Vol. 4 at 44. Steele denied ever having known

      Diaz. But then Diaz said to Steele, “I think you tried to rob me before in the

      past.” Id. at 45. Steele denied Diaz’ accusation, and then Steele displayed his

      own gun to Diaz. Diaz left the bedroom.


[5]   Approximately five minutes later, Diaz and Harman entered Dowell’s

      bedroom, and each of them was holding a gun in each hand. Diaz and Harman

      were pointing the guns at Steele, and Steele asked Diaz whether he would sell

      any of the guns to him, and Diaz said no. Diaz then said to Steele, “You tried

      to rob me you mother***er. You tried to rob me. You’re not going nowhere.

      You ain’t leaving here alive.” Id. at 49. Diaz then told Steele to empty his

      pockets and hand over his gun. Steele did not comply, and he tried to leave the

      bedroom. Diaz repeated that he was going to kill Steele. Steele made his way

      to the bedroom door and walked toward the front door to leave. As Steele tried

      to unlock the door, Diaz struck him on the head with a gun.


[6]   Steele then made his way toward the kitchen, and Diaz told Harman to take

      Steele’s gun from him. But Harman was unable to disarm Steele. Steele made

      his way back to Dowell’s bedroom, where Dowell was crying. Steele

      positioned himself behind Dowell so that she was between him and Diaz and

      Harman. Dowell pleaded with Diaz to let Steele leave, but he refused. Diaz


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 3 of 12
      then told Harman to give him one of her guns so that he could shoot Steele

      without making as much noise. Dowell then said to Steele, “I don’t think

      you[’re] gonna make it outta here,” and she left her bedroom. Id. at 61.


[7]   Anticipating that Diaz was about to shoot him, Steele fired a few shots at Diaz

      and Harman. As Steele left the bedroom, Harman exclaimed that she had been

      shot. Diaz had also been shot. Steele finally made his way to the front door

      and, as he left the house, he shot in Diaz’ direction. Diaz returned fire at Steele

      as Steele got to his car. Diaz continued to fire shots as Steele drove away. One

      of Diaz’ bullets struck a neighbor, Michael Swinford, injuring him. Harman

      ultimately died as a result of her gunshot wounds.


[8]   The State charged Diaz with felony murder, attempted murder, attempted

      robbery resulting in serious bodily injury, attempted armed robbery, unlawful

      possession of a firearm by a serious violent felon, and criminal recklessness. A

      jury found Diaz guilty as charged. The trial court entered judgment of

      conviction on all but the attempted robbery resulting in serious bodily injury

      verdict and sentenced Diaz as follows: felony murder (sixty years); attempted

      murder (thirty-five years); attempted armed robbery (twelve years); unlawful

      possession of a firearm by a serious violent felon (six years); and criminal

      recklessness (five years). The court ordered that Diaz’ sentences for felony

      murder, attempted murder, and unlawful possession of a firearm would run

      consecutively and concurrent with the sentences for attempted armed robbery

      and criminal recklessness, for an aggregate term of 101 years executed. This

      appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 4 of 12
                                          Discussion and Decision
                                            Issue One: Double Jeopardy

[9]    Diaz first contends that his convictions for felony murder and the underlying

       felony, namely, attempted armed robbery, violate double jeopardy principles,

       and the State agrees. It is well settled that “[i]t is a violation of double jeopardy

       principles to convict and sentence a defendant for both felony murder and the

       underlying felony because the conviction for felony murder would necessarily

       require proof of the underlying felony.” Stewart v. State, 945 N.E.2d 1277, 1285

       (Ind. Ct. App. 2011) (citing West v. State, 755 N.E.2d 173, 186-87 (Ind. 2001)),

       trans. denied.


[10]   Here, the State concedes that Diaz’ convictions for felony murder and

       attempted armed robbery violate double jeopardy because both convictions are

       “based on [Diaz’] efforts to rob Steele[.]” Appellee’s Br. at 14. Thus, the State

       avers that “[t]he appropriate remedy would be to remand to the trial court with

       instructions to vacate the attempted armed robbery conviction.” Id. We agree,

       and we remand and instruct the trial court to vacate Diaz’ conviction for

       attempted armed robbery. 1


                                             Issue Two: Felony Murder

[11]   Diaz next contends that “felony murder should not apply when a person is not

       killed by either the defendant on trial or an accomplice but rather by the victim



       1
           We note that Diaz’ aggregate sentence is unaffected by the vacation of this conviction.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020             Page 5 of 12
       of the offense or some third party[.]” Appellant’s Br. at 16. Diaz acknowledges

       that our Supreme Court has recently “refused to reconsider its holding in Palmer

       v. State, 704 N.E.2d 124 (Ind. 1999)[,] which held that felony murder was

       proper even though the person killed was killed by either the intended victim or

       another third party but not by the defendant or an accomplice.” Id. at 15; see

       Layman v. State, 42 N.E.3d 972, 977 (Ind. 2015). And, rather than present

       cogent argument asking this Court to revisit our Supreme Court’s precedent,

       Diaz states that this Court “has no authority to contravene controlling Supreme

       Court precedent” and that he “makes the argument . . . so that the claim is

       preserved for a petition to transfer.” Id. at 16.


[12]   Without citation to the record, Diaz avers that “[t]he killing of Harman by

       Steele was not a crime if in fact he was defending himself from an attempted

       robbery. Yet [Diaz] is convicted of a murder which was in fact a legal act.” Id.

       Diaz ignores our Supreme Court’s analysis in Layman reaffirming that a felony

       murder conviction is appropriate where “an armed defendant engaged in

       violent and threatening conduct, either as a principle or an accessory, that

       resulted in the ‘mediate or immediate cause’ of a co-perpetrator’s death.” 42

       N.E.3d at 979. Here, Diaz and Harman wielded two guns each and threatened

       Steele, who responded by firing on Diaz and Harman, killing Harman. Diaz

       does not ask us to distinguish the holding in Layman, and the evidence does not

       support reversal of Diaz’ felony murder conviction under that precedent.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 6 of 12
                            Issue Three: Abuse of Discretion in Sentencing

[13]   Diaz further contends that the trial court abused its discretion when it sentenced

       him. Sentencing decisions lie within the sound discretion of the trial court.

       Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion

       occurs if the decision is “clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[14]   A trial court abuses its discretion in sentencing if it does any of the following:


               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[15]   The sentencing range for a murder conviction is forty-five to sixty-five years,

       with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3 (2019).

       Diaz’ sentence for felony murder is sixty years. The sentencing range for a

       Level 1 felony is twenty to forty years, with an advisory sentence of thirty years.

       I.C. § 35-50-2-4. Diaz’ sentence for attempted murder is thirty-five years. The

       sentencing range for a Level 4 felony is two to twelve years, with an advisory

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 7 of 12
       sentence of six years. I.C. § 35-50-2-5.5. Diaz’ sentence for unlawful

       possession of a firearm by a serious violent felon is six years. And the

       sentencing range for a Level 5 felony is one to six years, with an advisory

       sentence of three years. I.C. § 35-50-2-6. Diaz’ sentence for criminal

       recklessness is five years.


[16]   Here, at sentencing, the trial court identified the following aggravating factors:

       Diaz’ “extensive” criminal history; multiple victims; Diaz’ behavior in jail

       awaiting trial and in the courtroom, showing “complete disdain for authority”;

       and the nature and circumstances of the offenses, including the fact that these

       were “completely senseless crimes” that resulted in the loss of an “innocent”

       life. Tr. Vol. 7 at 126-127. And the court did not identify any mitigating

       factors.


[17]   Diaz asserts that the trial court abused its discretion when it identified as

       aggravating circumstances his criminal history and that innocent lives were lost.

       We address each contention in turn.


[18]   Diaz first contends that the trial court mischaracterized his “minor” criminal

       history as “extensive.” Diaz concedes that his criminal history includes “many

       charges against” him, but he points out that “the only convictions shown are for

       cocaine sale and possession in July of 2005, resisting arrest[,] assault and

       battery[,] and malicious destruction of property in 2005, misdemeanor

       possession of marijuana in 2007, robbery in 2016, [and] robbery in 2013.”

       Appellant’s Br. at 19. Diaz suggests that the trial court improperly relied on his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 8 of 12
       history of arrests, when no disposition was determined for many of those

       arrests. But the trial court did not indicate that it relied on Diaz’ history of

       arrests in identifying his criminal history as an aggravator.


[19]   At sentencing, the trial court stated in relevant part as follows:


               Not only does [Diaz] have [a] criminal history, the Court would
               characterize the criminal history as extensive. [T]he character of
               the criminal history also is concerning and continues to serve as
               an aggravator as the criminal history continues to show behavior
               involving drugs, firearms and violence, which were the same
               issues that presented themselves in this particular case.


       Tr. Vol. 7 at 126. Diaz was only thirty-two years old at the time of the instant

       offenses, and his criminal history included three felony convictions, two of

       which were for robbery, and five misdemeanor convictions, including battery

       and resisting arrest. We cannot say that the trial court abused its discretion

       when it identified Diaz’ criminal history as an aggravator.


[20]   Diaz also contends that the trial court improperly found that more than one

       person had died as a result of the instant offenses and that Harman was an

       “innocent” life lost. At sentencing, the trial court stated as follows:


               [L]ooking at the particular crime itself, I think the only thing that
               really adequately describes the events that took place on that
               night in November in Chesterfield in this community, completely
               senseless crimes. Again, it’s reiteration, in our society of what
               those that are involved in the drug community and that carry
               firearms, what it escalates to and ultimately, people lose their
               lives. Innocent people lose their lives, that being Ms. Harman in
               this situation. The Court finds from the fact presented in this

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 9 of 12
               case, certainly was somewhat sucked into a situation and things
               ran out of control extremely fast and she lost her life for it.
               There’s nothing this Court can do today that will bring back that
               loss to those that loved her and cared for her. Not only were
               innocent lives lost, innocent members of our community were
               terrorized by the events that took place over there um, in
               Chesterfield on that night. Mr. Swinford, as he’s indicated to the
               Court in his role and what he endured that night. Completely
               unacceptable behavior in this community.


       Id. at 127-28. We cannot agree with Diaz that the trial court abused its

       discretion on this issue. While the trial court may have misspoke when it

       referred to “innocent lives lost,” the court made clear that it was aware that

       Harman was the only victim to lose her life in this instance. Id. Moreover,

       while Harman acted in concert with Diaz in threatening Steele, the court

       believed that she had been “sucked into” the situation as a less-than-willing

       participant, and Diaz does not suggest that the evidence does not support the

       court’s assessment. Id. Diaz certainly does not suggest that Harman deserved

       to die for her actions. Diaz’ contention on this issue is without merit.


                                   Issue Four: Inappropriate Sentence

[21]   Finally, Diaz contends that his sentence is inappropriate in light of the offenses

       and his character. Indiana Appellate Rule 7(B) provides that “[t]he 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.” This court has recently

       held that “[t]he advisory sentence is the starting point the legislature has


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 10 of 12
       selected as an appropriate sentence for the crime committed.” Sanders v. State,

       71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has

       recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[22]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 11 of 12
[23]   On appeal, Diaz contends that his sentence is inappropriate in light of the

       nature of the offenses and his character because the offenses “do not fall in the

       category of the worst” of such offenses and because Diaz does not “fall in the

       category of the worst offender.” Appellant’s Br. at 23. Diaz’ argument misses

       the mark. First, it is of no moment that the nature of the offenses and Diaz’

       character are not “the worst.” The trial court did not impose the maximum

       sentence. Second, as the trial court found, the instant offenses were

       “completely senseless,” and Diaz initiated and escalated the violent

       confrontation with Steele, which resulted in Harman’s death and injured a

       bystander. Finally, Diaz’ character is reflected by his criminal history and his

       continued bad behavior in jail pending trial and in court during his trial. As the

       trial court observed, Diaz “continues to show complete disdain for authority,

       disdain for the order and process of this Court and for other rules and social

       norms that we expect others in our society to abide by.” Tr. Vol. 7 at 126. We

       cannot say that Diaz’ 101-year sentence is inappropriate in light of the nature of

       the offenses and his character.


[24]   Affirmed in part, reversed in part, and remanded with instructions.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1359 | February 17, 2020   Page 12 of 12
