MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Apr 25 2019, 8:52 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
R. Brian Woodward                                        Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General of Indiana
Crown Point, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Stephone Currie,                                  April 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2728
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1709-MR-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019                 Page 1 of 16
                               Case Summary and Issues
[1]   Robert Currie pleaded guilty to voluntary manslaughter, a Level 2 felony, and

      one count of attempted obstruction of justice, a Level 6 felony, and was

      sentenced to serve twenty-four years in the Indiana Department of Correction.

      Currie appeals his sentence, raising several issues for our review that we restate

      as: 1) whether the trial court abused its discretion in sentencing him, and 2)

      whether his sentence is inappropriate in light of his character and his offenses.

      Concluding the trial court did not abuse its sentencing discretion and the

      twenty-four-year sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   The stipulated factual basis underlying the guilty plea in this case reveals the

      following: Currie is affiliated with the Villeblock faction of the Vice Lord gang

      and Ashanti Walden was affiliated with the YMH faction in Northwest

      Indiana. The two had issues due to their rival gang affiliations and Walden had

      once robbed Currie at gunpoint and wounded him. On June 23, 2017, Currie

      saw Walden and Jamell Patrick having a conversation on an East Chicago

      sidewalk during what is described as a “block party[.]” Transcript, Volume 2 at

      41. When Currie saw Walden, “the prior altercation, gang animosity, anger

      and rage overcame [Currie] causing him sudden heat[.]” Appendix of the

      Appellant, Volume Two at 112. Currie approached the two from behind and

      shot both Walden and Patrick. Patrick was shot in the foot and survived his

      injuries. Walden was shot once on the left side of his hip and once on the right

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 2 of 16
      side of his chest and died as a result of his injuries. Miguel Carter, among

      others, was an eyewitness to the shooting.


[3]   The State charged Currie with murder, a felony, and battery by means of a

      deadly weapon, a Level 5 felony. A warrant was issued for Currie’s arrest and

      he was ordered to be held without bail. After Currie was arrested, he filed a

      petition to set bail. While that petition was pending, Currie was in contact with

      other members of the Villeblock gang and encouraged attempts to intimidate

      and prevent witnesses from testifying at the bail hearing. Specifically, Carter

      was a target of threats and someone shot at his vehicle; “afraid for his life and

      his family’s life[,]” Carter did not appear to testify at the bail hearing despite

      having been subpoenaed. Id. at 114. Because of these threats, the State

      amended the charging information to add three counts of attempted obstruction

      of justice, all Level 6 felonies.


[4]   Less than one week before Currie’s jury trial was scheduled to begin, Currie

      agreed to plead guilty to voluntary manslaughter, a Level 2 felony and a lesser

      included offense of murder, and one count of attempted obstruction of justice.

      In exchange, the State would dismiss the remaining counts. The plea

      agreement stated that the parties were “free to fully argue their respective

      positions as to the sentence to be imposed by the Court[,]” but that Currie’s

      sentences for the two counts would be served concurrently. Id. at 109.


[5]   At the sentencing hearing, several witnesses testified for each side, and letters

      were admitted into evidence both from the victim’s family describing their loss


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 3 of 16
and from Currie’s family and friends attesting to his good character. The trial

court accepted the plea agreement and made the following observations

relevant to sentencing:


        Sentencing Considerations:


        1. The Court considers the nature and circumstance of the
        crimes committed and the character of the defendant, including:
        The defendant and the victim were associated with rival gangs.
        During the pendency of the . . . bail proceedings, the defendant
        committed [attempted obstruction of justice].
        2. The mandatory nature of the plea agreement as to the
        concurrent sentences.
        3. The reasons stated on the record, including:
        Mitigating Circumstances: . . .
        1. The defendant has minimal history of criminal activity.
        2. The defendant has pled guilty and admitted responsibility.
        Aggravating Circumstances: . . .
        1. The defendant has a history of criminal convictions as
        follows: As an adult, the defendant was convicted of possession
        of marijuana . . . on July 12, 2016.
        2. The character of the defendant is dishonest and manipulative.
        3. As outlined in the factual basis for the plea agreement, the
        defendant attempted to intimidate a witness for the State in an
        effort to undermine the State’s case against him.
        4. Another individual was shot . . . during the shooting incident.
        The shooting is attributed to the defendant.


Id. at 142-43. In addition to these written findings, the trial court’s oral

sentencing statement acknowledged Currie’s strong family support and that,

“[n]o question . . . you have people that think well of you. . . . People think you

are capable of doing a lot of good things in life, but yet at 24 years of age, you


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 4 of 16
      find yourself guilty of murder. . . . That sudden heat factor is what otherwise

      reduces murder to voluntary manslaughter . . . and I can accept that.” Tr., Vol.

      2 at 76.


[6]   The court imposed a sentence of twenty-four years for voluntary manslaughter

      and two years for attempted obstruction of justice, to be served concurrently. 1

      The court noted that “this is a fair and proper sentence given the factors as

      listed. It’s not the maximum sentence because I do not believe the maximum

      sentence is appropriate given the lack of criminal history specifically and

      defendant pleading guilty accepting responsibility to some extent.” Id. at 82.

      Currie now appeals his sentence.



                                   Discussion and Decision
                                       I. Abuse of Discretion
[7]   Currie first contends the trial court abused its discretion in sentencing him by

      failing to consider significant mitigating evidence of his good character and by

      using an element of the offense to aggravate the sentence.




      1
        Originally, the trial court stated the sentences were to be served consecutively, but when reminded that the
      terms of the plea agreement stated the sentences would be served concurrently, the trial court maintained the
      sentences of twenty-four and two years but ordered them to be served concurrently for a total of twenty-four
      years.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019                    Page 5 of 16
                                       A. Standard of Review
[8]    Sentencing decisions rest within the trial court’s discretion and are afforded

       considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       Accordingly, we review sentencing decisions for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (2007). A trial court abuses its discretion when its 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.” Id.


[9]    There are several ways in which a trial court can abuse its discretion in

       sentencing:


               (1) failing to enter a sentencing statement, (2) entering a
               sentencing statement that explains reasons for imposing the
               sentence but the record does not support the reasons, (3) the
               sentencing statement omits reasons that are clearly supported by
               the record and advanced for consideration, or (4) the reasons
               given in the sentencing statement are improper as a matter of
               law.


       Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015). Currie contends the

       trial court erred by omitting a mitigating circumstance clearly supported by the

       record and by finding an improper aggravating circumstance.


                                  B. Mitigating Circumstances
[10]   The finding of a mitigating circumstance is discretionary, and the trial court is

       neither obligated to accept the defendant’s argument as to what constitutes a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 6 of 16
       mitigating circumstance nor required to give the same weight to mitigating

       evidence that the defendant would. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct.

       App. 2017), trans. denied. Furthermore, if the trial court declines to find the

       existence of a mitigating circumstance, it is not obligated to explain why it has

       found that the circumstance does not exist. Anglemyer, 868 N.E.2d at 493.

       When presenting the question of whether a trial court failed to identify

       mitigating circumstances on appeal, an appellant must “establish that the

       mitigating evidence is both significant and clearly supported by the record.”

       Hunter, 72 N.E.3d at 935.


[11]   Currie claims the trial court abused its discretion in failing to identify his “good

       character” as a mitigating circumstance. Appellant’s Brief at 11. Currie notes

       he submitted sixteen letters of support attesting to the “type of individual he is.”

       Id. Currie believes this evidence of his past good deeds is indicative of his

       attitude and that he is unlikely to commit another crime, and he asserts that the

       trial court “ignored” this good character evidence. Id. at 12.


[12]   We cannot agree with Currie that the trial court failed to consider the letters

       submitted on Currie’s behalf. At the outset of the sentencing hearing, the court

       noted that both sides had submitted letters that morning and that it had

       reviewed them all. See Tr., Vol. 2 at 13. In making its sentencing statement at

       the conclusion of the hearing, the trial court noted that people think well of

       Currie and believe he has potential. See id. at 76. Therefore, the record

       demonstrates that the trial court did consider the positive statements made on

       Currie’s behalf when determining his sentence.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 7 of 16
[13]   As for the content of the letters and the live testimony offered on Currie’s

       behalf, the trial court is not obligated to give the evidence the same weight that

       Currie would. See Hunter, 72 N.E.3d at 935. Furthermore, the trial court was

       not required to state why it did not consider this evidence to be mitigating. See

       Anglemyer, 868 N.E.2d at 493.2 Nonetheless, it seems obvious from the trial

       court’s recognition of Currie’s gang affiliation and the impact gangs have on the

       community, a situation the court described as “[j]ust plain horrible[,]” tr., vol. 2

       at 77, that the trial court assessed Currie’s character by giving more weight to

       Currie’s gang affiliation and intimidation tactics than to evidence of his prior

       good deeds. That the trial court did not find Currie’s mitigating evidence to be

       significant in light of the overall picture of Currie’s character was not an abuse

       of the trial court’s sentencing discretion.


                                   C. Aggravating Circumstances
[14]   Currie also claims it was improper for the trial court to identify his prior

       misdemeanor conviction of possession of marijuana, his dishonest and

       manipulative character, and his attempts to intimidate a witness as aggravating

       circumstances.




       2
         Currie contends in his reply brief that “[i]f the Court did not find [his good character evidence] to be
       mitigating, then it was obligated to say so. The Court’s silence indicates that it was not considered, not that it
       considered it and failed to assign it any weight.” Appellant’s Reply Brief at 6. This is not, in fact, the law.
       See supra, ¶ 10. A trial court is only obligated to include in its sentencing statement those mitigating
       circumstances that it finds to be significant. Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019                       Page 8 of 16
[15]   The trial court’s written sentencing order both identifies Currie’s “minimal

       history of criminal activity” as a mitigating circumstance and his “history of

       criminal convictions” as an aggravating circumstance. App. of the Appellant,

       Vol. Two at 143. As Currie points out, “It cannot be both.” Appellant’s Br. at

       13. During the trial court’s oral statement at the hearing, however, the trial

       court stated Currie had “no significant criminal record” and clearly indicated

       that it did not find Currie’s single misdemeanor conviction to be aggravating

       because it was “so unrelated to why we’re here that it’s hard to – and I won’t do

       it either – put much stock in [it.]” Tr., Vol. 2 at 75. Where the written and oral

       sentencing statements conflict, we examine the two together “to assess the

       conclusions of the trial court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind.

       2007). Given the trial court’s oral statement and the inclusion of Currie’s

       “minimal history of criminal activity” as a mitigating circumstance in the

       written sentencing order, we conclude the trial court’s intention was that

       Currie’s criminal history be considered a mitigating circumstance and included

       it as an aggravating circumstance in the written order in error.


[16]   Currie addresses the next two aggravators—his dishonest and manipulative

       character and his attempts to intimidate a witness—under the single argument

       that the trial court improperly used an element of the offense to aggravate his

       sentence. See Appellant’s Br. at 13-14 (“In essence, the second and third

       aggravators are mirror images and both improper.”). The trial court stated at

       the sentencing hearing:




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 9 of 16
               Your intent to intimidate a witness not to show up for a bail
               hearing [is] dishonest [and] manipulative . . . . [T]his instance in
               which you were involved in which you had a specific hand in
               trying to intimidate a witness is a significant event given the
               totality of the circumstances here. . . . It’s so significant that I
               think . . . it’s an aggravating factor for the charge of voluntary
               manslaughter.


       Tr., Vol. 2 at 81. A material element of a crime may not be used as an

       aggravating circumstance supporting an enhanced sentence for that crime.

       Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016), trans. denied. This

       is because the legislature has determined the appropriate advisory sentence

       based on the elements of the crime committed. Gomillia v. State, 13 N.E.3d 846,

       852 (Ind. 2014). A court may, however, consider the nature and circumstances

       of the crime as an aggravating circumstance. McCann v. State, 749 N.E.2d 1116,

       1120 (Ind. 2001). This is generally thought to be “associated with particularly

       heinous facts or situations” and the trial court must detail the particularized

       circumstances beyond the elements of the crime itself that warrant an enhanced

       sentence. McElroy, 865 N.E.2d at 589-90 (holding that where the trial court

       examined the unique circumstances of the defendant’s reckless behavior in

       repeatedly igniting a lighter in the cargo area of a paint truck transporting

       thirteen painters and flammable materials, setting a fire that killed two painters

       and seriously burned the others, the trial court did not err in identifying the

       nature and circumstances of the offense as aggravating).


[17]   Here, intimidating a witness is not a material element of voluntary

       manslaughter. Rather, presenting a slightly different scenario than is typical,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 10 of 16
the trial court used the elements of attempted obstruction of justice—a crime for

which Currie was also convicted and sentenced in this proceeding—as an

aggravating circumstance to support an enhanced sentence for voluntary

manslaughter. The trial court spoke at some length about the general difficulty

of securing convictions because of interference with witnesses:


        Your intent to intimidate a witness not to show up for a bail
        hearing. That’s dishonest, that’s manipulative and that’s an
        aggravating factor. I know for a fact that these things happen,
        and I know that we’ll have some cases from time to time, next
        thing you know, maybe a year goes by, six months, nine months,
        state files a motion to dismiss the case. Well, what happened?
        Our witnesses died. Our witnesses left the area. We have no
        witnesses that will speak. We can’t get in contact with witnesses
        that once decided to cooperate. And they just check out. And
        now what was once a viable murder charge is now a dismissal.
        We see this all the time. . . . In this case, you were caught.


Tr., Vol. 2 at 81. The trial court referenced in both its oral and written

sentencing statements the stipulated factual basis which detailed in fourteen

paragraphs multiple attempts to intimidate witness Carter to keep him from

testifying at Currie’s bail hearing. See Tr., Vol. 2 at 80-81; App. of the

Appellant, Vol. Two at 143 (“As outlined in the factual basis for the plea

agreement, the defendant attempted to intimidate a witness for the State . . . .”).

In that stipulation, Currie admitted to at least three separate instances of

contacting a fellow gang member to encourage him to intimidate Carter. Currie

admitted to the fact that someone associated with him approached Carter and

told him not to appear in court and acknowledged that gun shots were directed


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 11 of 16
       at Carter’s vehicle. And the stipulated factual basis indicated that Carter was

       afraid for his and his family’s lives as a result of these threats. Currie pleaded

       guilty to one count of attempted obstruction of justice, when the facts and

       circumstances of the case demonstrate multiple instances of attempted

       obstruction and threatening behavior directed toward Carter over the course of

       several weeks. “[T]he particular facts – the ongoing nature and length of [the]

       criminal conduct – can properly be considered as aggravation.” Phipps v. State,

       90 N.E.3d 1190, 1198 (Ind. 2018). Because the trial court detailed the reasons

       why the intimidation of this witness went beyond the mere statutory

       requirements of the one count of attempted obstruction to which Currie pleaded

       guilty, we conclude the trial court did not abuse its discretion in identifying the

       intimidation of a witness as an aggravating circumstance, either on its own or

       as a reflection of Currie’s character.


[18]   Although the trial court erred in including Currie’s history of criminal

       convictions as an aggravating circumstance in its written sentencing statement

       when it is clear the trial court intended Currie’s minimal criminal history to be a

       mitigating circumstance, the remaining aggravating circumstances were proper. 3

       When a trial court considers an improper aggravating circumstance, we may

       nevertheless affirm the sentence if we can say with confidence that the trial

       court would have imposed the same sentence absent the improper finding.




       3
         Notably, Currie does not challenge the trial court’s finding that it was an aggravating circumstance that
       another individual was shot during this incident.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019                   Page 12 of 16
       Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011), trans. denied.

       Despite one listed aggravator being improper, it does not appear from the

       record that the trial court actually considered that to be an aggravating

       circumstance in crafting Currie’s sentence, and regardless, the trial court

       properly considered three other aggravating circumstances. As such, we are

       confident the trial court would have imposed the same sentence.


                                  II. Inappropriate Sentence
                                       A. Standard of Review
[19]   Currie requests that we revise his sentence, claiming the twenty-four-year

       sentence he received is inappropriate given the nature of his offenses and his

       character. He requests that we revise his sentence to the advisory sentence for a

       Level 2 felony. “The 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.” Ind. Appellate Rule 7(B).


[20]   The defendant has the burden to persuade us that the sentence imposed by the

       trial court is inappropriate. Anglemyer, 868 N.E.2d at 494. “[W]hether we

       regard a sentence as appropriate 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 factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224. The sentence imposed by the trial court should be upheld

       unless we find compelling evidence “portraying in a positive light the nature of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 13 of 16
       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).


                                           B. Currie’s Sentence
[21]   The nature of the offense references a defendant’s actions in comparison with

       the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.

       2018), trans. denied. The nature of the offense can be analyzed by using the

       advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494. The

       sentencing range for voluntary manslaughter, a Level 2 felony, is ten to thirty

       years, with an advisory sentence of seventeen and one-half years.4 Ind. Code §

       35-50-2-4.5.


[22]   The record is necessarily limited due to Currie’s guilty plea, but we do have the

       benefit of an extensive stipulated factual basis for the plea and the trial court’s

       statement from the sentencing hearing. Currie pleaded guilty to voluntary

       manslaughter and attempted obstruction of justice. We note that Currie was

       originally charged with murder for the death of Walden, battery by means of a

       deadly weapon for injuring Patrick, and four counts of attempted obstruction of

       justice for the various ways in which he attempted to keep Carter from




       4
        Because the sentence for attempted obstruction of justice is concurrent to the sentence for voluntary
       manslaughter, we focus on the voluntary manslaughter sentence as the longer of the two.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019                   Page 14 of 16
       testifying at his bail hearing. Currie received a substantial benefit from the plea

       agreement, which he did not enter until approximately a week before his case

       was set for jury trial, and although the stipulated factual basis acknowledges

       that Currie caused injury to Patrick, the crimes for which he was convicted and

       sentenced do not reflect that injury. Generally, the presence of multiple victims

       justifies the imposition of enhanced and/or consecutive sentences. Sanchez v.

       State, 938 N.E.2d 720, 723 (Ind. 2010). Additionally, there were other

       bystanders that night – an investigating officer described the scene of the crime

       as “there was [sic] a lot of people out there. There was some type of block party

       going on. There was a lot of smoking, a lot of drinking, just a lot of

       congregating[.]” Tr., Vol. 2 at 41. Under those circumstances, the possibility of

       injury to many more people when Currie fired a gun multiple times was high.


[23]   The character of the offender refers to “general sentencing considerations and

       the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at

       280. In conducting our review, we consider the aggravators and mitigators

       found by the trial court, but also any other factors appearing in the record.

       Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied.


[24]   Currie highlights that he is only twenty-four years old, that he has graduated

       high school and attended some college classes, that he was employed full-time

       when he was arrested, that he is not a drug user, and that “there was an

       enormous community outpouring describing Currie’s good character.”

       Appellant’s Br. at 16. We acknowledge and commend Currie for all these

       admirable attributes. Yet, he was affiliated with a gang, he carried a firearm,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 15 of 16
       and he shot and killed a member of a rival gang with whom he had ongoing

       animosity. The trial court accepted his assertion that he acted in sudden heat

       upon seeing Walden and remembering Walden’s previous crimes against him.

       But the fact remains that he killed another man who had no opportunity to

       defend himself and injured a bystander in the process. Even after being arrested

       for this crime, Currie committed the additional crime of attempting to obstruct

       justice by engaging in a weeks-long campaign to intimidate an eyewitness to the

       shooting. On the whole, we cannot say that Currie’s character is so stellar as to

       warrant a revision of his sentence.


[25]   In sum, Currie has not met his burden of convincing us that his sentence is

       inappropriate.



                                               Conclusion
[26]   The trial court did not abuse its discretion in sentencing Currie and the twenty-

       four year sentence the trial court imposed is not inappropriate in light of the

       nature of Currie’s offenses and his character. Accordingly, the judgment of the

       trial court is affirmed.


[27]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2728 | April 25, 2019   Page 16 of 16
