      MEMORANDUM DECISION
                                                                        Apr 02 2015, 8:31 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald R. Shuler                                          Gregory F. Zoeller
      Barkes, Kolbus, Rife & Shuler, LLP                        Attorney General of Indiana
      Goshen, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Nicholas A. Rushlow,                                      April 2, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A03-1408-CR-310
              v.                                                Appeal from the Elkhart Circuit
                                                                Court.
                                                                The Honorable Terry C. Shewmaker,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 20C01-1306-FA-28




      Barteau, Senior Judge


                                       Statement of the Case
[1]   The State accused Nicholas A. Rushlow of going to a house in the middle of

      the night and shooting at its occupants. Rushlow appeals his convictions and



      Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015      Page 1 of 13
                                                                                   1
      aggregate sentence for attempted murder, a Class A felony, and criminal
                                                 2
      recklessness, a Class C felony. We affirm.


                                                         Issues
[2]   Rushlow raises three issues, which we restate as:

                 I. Whether the trial court abused its discretion in denying
                 Rushlow’s motion to hire an expert witness.
                 II. Whether the evidence is sufficient to sustain Rushlow’s
                 convictions.
                 III. Whether Rushlow’s sentence is inappropriate in light of the
                 nature of the offense and the character of the offender.


                                   Facts and Procedural History
[3]   In June 2010, James Curtis complained to the police that Rushlow had

      physically attacked him. The State filed criminal charges against Rushlow, and

      James testified against him. Later, during the first week of October 2010,

      James’ wife, Ashley Curtis, was walking in her neighborhood when she saw

      Rushlow sitting on the steps of a house. Rushlow told her, “It’s not over with.”

      Tr. p. 338.


[4]   In the very early morning hours of October 11, 2010, James and Ashley were

      asleep in their house in Elkhart. The house had an enclosed front porch with a




      1
          Ind. Code §§ 35-42-1-1 (2007), 35-41-5-1 (1977).
      2
          Ind. Code § 35-42-2-2 (2006).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 2 of 13
      door, and inside the porch one could enter the house through a glass front door

      with an attached storm door. Ashley’s nine-year-old son, James’ cousin

      Johnny, Johnny’s girlfriend Tina, Tina’s son, and James’ mother were also in

      the house. James’ mother slept on the ground floor of the house on a couch not

      far from the front door.


[5]   James and Ashley were awakened by someone pounding on their front door.

      Ashley came downstairs with one of her dogs. As she came down the steps, she

      heard a person on the porch yell, “Elkhart City Police, open up. We have [a]

      warrant for Jimmy.” Id. at 348. Ashley loudly said, “Give me a moment,”

      because she needed to take her dog back upstairs. Id. at 349.


[6]   At that point, James turned on the lights for the stairway and the front room

      and began walking down the stairs. He heard a person on the porch claiming to

      be the police and claiming to have a warrant for his arrest.


[7]   Ashley started back up the stairs. As she did so, she turned around to order her

      dog, who was at the front door, to follow her. She looked out the front door

      and saw Rushlow. James, who was still on the stairs, also saw Rushlow,

      carrying a handgun. James saw Rushlow point the gun at him, heard a shot,

      and felt the bullet hit his head.


[8]   Next, James pushed Ashley onto the stairs and shielded her body with his.

      Ashley heard five gunshots. James urged her to go upstairs. She did so and

      called 911 after checking on her son. The 911 operator asked Ashley who shot

      her, and she identified Rushlow.

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[9]    Meanwhile, James and Ashley’s neighbor, Laura Smith, heard the gunshots,

       followed by the sound of “shoes pounding the pavement,” as if a person was

       running very quickly. Id. at 421. Another neighbor, Charles Landis, was

       awakened by the gunshots. He looked out a window and saw a person running

       away from where Landis believed the shots had been fired. The person was

       wearing a dark-colored hooded sweatshirt.

                                                                                                                     3
[10]   Police were dispatched to James and Ashley’s house. Sergeant Nathan Lanzen

       arrived at 1:37 a.m. He saw that the porch door’s latch was broken. Inside the

       porch, he saw that the top half of the front door’s glass had been shattered.


[11]   Sergeant Lanzen spoke with James and Ashley. James had a “graze wound”

       on top of his head. Id. at 301. Sergeant Lanzen also saw five bullet holes in a

       wall along the stairwell. James told Sergeant Lanzen that Rushlow was the

       shooter. Sergeant Lanzen notified other officers, who found Rushlow at home.


[12]   Later on October 11, Smith took her dog for a walk, going in the same direction

       as the running noises she had heard during the night. After walking for a few

       blocks, she saw a row of bushes. Someone had discarded a black hooded

       sweatshirt and a black glove under a bush. Next, she looked under a different

       bush and found a handgun. Smith called the police. Officer Chris Bella arrived




       3
         Sergeant Lanzen was a patrolman at the time of the incident and was promoted prior to the trial. We refer
       to him as Sergeant.

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       and collected the items. The police found another, matching black glove in the

       same area the next day.


[13]   After collecting the items that Smith had pointed out, Officer Bella went to

       James and Ashley’s house to look for spent bullets. James tore open the

       stairway wall where the bullets had struck, and Officer Bella found several

       bullet fragments.


[14]   The State tested the handgun, a .38 special, in comparison with the bullet

       fragments. The State determined, and Rushlow stipulated at trial, that one of

       the bullet fragments that was found in the wall of James and Ashley’s house

       could have been fired from the .38 special. The other fragments were

       “unsuitable for microscopic examination.” Id. at 492.


[15]   The State collected a DNA sample from Rushlow and compared it to DNA

       found on the sweatshirt. The sweatshirt had DNA from three different persons,

       two females and one male. Rushlow’s DNA sample matched the male

       contributor “to a degree of scientific certainty.” Id. at 575. In addition, one of

       the unknown females was genetically related to Rushlow and the other

       unknown female. During this time period, Rushlow lived with his girlfriend,

       and they had a young daughter together. Finally, testing revealed that Rushlow

       could not be ruled out as a contributor to a mixture of DNA found on one of

       the gloves.


[16]   On June 6, 2013, the State charged Rushlow with attempted murder as to

       James and criminal recklessness as to Ashley. Rushlow was indigent, but his

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 5 of 13
       family hired an attorney to represent him. On May 30, 2014, almost a year

       after the State filed the charges, and almost a month before trial, Rushlow filed

       a motion to allocate public funds for him to hire a DNA expert. After a

       hearing, the trial court denied Rushlow’s motion.


[17]   The case was tried to a jury. During trial, Rushlow objected to the admission of

       any and all DNA evidence, noting that the court had denied his request to hire

       a DNA expert using public funds. The court reaffirmed its decision to deny

       Rushlow’s request for funds to hire an expert and overruled Rushlow’s

       objection. Later during the trial, Rushlow conceded that the hooded sweatshirt

       belonged to him.


[18]   The jury determined that Rushlow was guilty as charged. The court sentenced

       Rushlow to the maximum aggregate sentence of fifty-eight years, to be served

       consecutively to his sentence in a federal case that preceded the current charges.

       This appeal followed.


                                    Discussion and Decision
                              I. Appointment of Expert Witness
[19]   Rushlow claims the trial court erred by denying his request to hire a DNA

       expert at public expense because it unduly hampered his defense, and the

       subsequent admission of the DNA evidence at trial violated his right to due

       process of law. Decisions about expert services for indigent defendants are

       committed to the trial court’s sound discretion, and such decisions are not

       overturned absent an abuse of that discretion. Jackson v. State, 758 N.E.2d 1030,

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 6 of 13
       1034 (Ind. Ct. App. 2001). A defendant who requests funds for an expert

       witness has the burden of demonstrating the need for that expert. Tidwell v.

       State, 644 N.E.2d 557, 560 (Ind. 1994). The decision must be made on a case-

       by-case basis. Id.


[20]   The central inquiries for a trial court in deciding whether to allocate expert

       witness funds to a defendant are whether the expert witness’s services are

       necessary to assure an adequate defense, and whether the defendant specifies

       precisely how he or she would benefit from the requested expert services. Scott

       v. State, 593 N.E.2d 198, 200 (Ind. 1992). The following considerations, among

       others, are relevant to those inquiries: (1) whether the expert’s services bear on

       an issue which is generally regarded to be within the common experience of the

       average person, or on an issue for which expert opinion would be necessary; (2)

       whether the requested services could be performed by counsel; (3) whether it is

       improbable that the proposed expert could demonstrate that which the

       defendant desires; (4) whether the purpose of the expert appears to be

       exploratory only; (5) whether the expert services will go toward answering a

       substantial question or simply an ancillary one; (6) the seriousness of the

       charge(s) at issue and the severity of the possible penalty; (7) the complexity of

       the case; (8) the proposed cost of the expert services; (8) the timeliness of the

       defendant’s request; (9) whether the defendant is making the request in good

       faith; (10) whether the expert’s testimony would be admissible at trial; and (11)

       whether the evidence for which the expert’s services are requested is cumulative

       of other evidence. Id. at 200-01.


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[21]   Rushlow argues that the trial court erred because the topic for which he

       requested expert assistance, DNA testing, is beyond the common experience of

       the average person and cannot be performed by counsel. He notes that he was

       facing serious charges and potentially severe penalties. Finally, he asserts that

       he explained to the trial court that he needed an expert witness to determine

       whether the State’s expert’s testing was performed accurately and without bias.


[22]   Rushlow’s points are counterbalanced, and outweighed, by the following

       factors. The State filed charges against Rushlow in June 2013, but Rushlow did

       not file his motion for public funds to hire an expert witness until June 2014, a

       year later. The trial court deemed his motion untimely, as it was filed only a

       month before the scheduled trial date. Rushlow did not identify a proposed

       expert witness or provide any estimate of how much the expert’s services would

       cost. Further, Rushlow’s purpose appears to have been merely exploratory,

       because he failed to specify any precise benefit to be gained by hiring his own

       expert. Finally, the DNA evidence—which was intended to connect Rushlow

       to the hooded sweatshirt and a glove, and thereby tie him to the scene of the

       crimes—was merely cumulative of James and Ashley’s identifications of

       Rushlow and of Rushlow’s own testimony that the sweatshirt was his. The trial

       court did not abuse its discretion in denying Rushlow’s request to hire an expert

       witness at public expense. See Kocielko v. State, 938 N.E.2d 243, 255 (Ind. Ct.

       App. 2010) (no abuse of discretion in denying defendant’s motion to hire DNA

       expert at public expense where the DNA evidence was cumulative and the

       defendant “failed to provide specifics as to identity, cost, and the precise benefit


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       to be gained”), rev’d in part on other grounds on rehearing, 943 N.E.2d 1282 (2011),

       trans. denied.


                                  II. Sufficiency of the Evidence
[23]   Rushlow claims the State failed to prove that he committed the crimes at issue.

       When we review the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). We neither reweigh

       the evidence nor resolve questions of credibility when determining whether

       identification evidence is sufficient. Rutherford v. State, 866 N.E.2d 867, 871

       (Ind. Ct. App. 2007). We will affirm if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed the trier of fact to find

       the defendant guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d

       124, 126 (Ind. 2005).


[24]   There is ample evidence from which a reasonable jury could have determined

       beyond a reasonable doubt that Rushlow committed the crimes. He had a

       grudge against James for complaining about him to the police and for testifying

       against him in court. Rushlow threatened Ashley a week before the crimes

       occurred.


[25]   In addition, Ashley told the 911 operator that Rushlow was the shooter, James

       told Sergeant Lanzen that Rushlow was the shooter, and both Ashley and

       James identified Rushlow in court as the shooter. Rushlow claims that the

       validity of their identifications is questionable, but “the reliability of particular

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 9 of 13
       evidence must be gauged by the fact-finder.” Gorman v. State, 968 N.E.2d 845,

       850 (Ind. Ct. App. 2012), trans. denied. Any potential errors in eyewitness

       identification must be resolved during trial, not on appeal. Id.


[26]   Furthermore, an eyewitness, Landis, saw a person in a dark hooded sweatshirt

       run away from the site of the shooting. The following morning, a black

       sweatshirt and a .38 special were found several blocks from James and Ashley’s

       house. Testing revealed that the .38 special could have fired one of the shots

       into the house, and Rushlow’s DNA was found on the sweatshirt. Rushlow

       admitted at trial that the sweatshirt was his. He testified that someone stole the

       sweatshirt out of his car three weeks prior to the shooting, but that is a matter of

       witness credibility for the finder of fact to weigh. The State presented sufficient

       evidence of identity to sustain Rushlow’s convictions.


                                III. Appropriateness of Sentence
[27]   Rushlow asserts that his sentence is too high and asks this Court to revise it.

       Article 7, section 4 of the Indiana Constitution authorizes independent

       appellate review of a sentence even if the trial court acted within its discretion

       in imposing a sentence. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This

       review is implemented through Appellate Rule 7(B), which states that we may

       revise a sentence, even if authorized by statute, if “after due consideration of the

       trial court’s decision,” the sentence is inappropriate “in light of the nature of the

       offense or the character of the offender.”




       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 10 of 13
[28]   The principal role of such review is to attempt to leaven the outliers. Knapp v.

       State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert. denied, 135 S. Ct. 978 (2015).

       “Sentence review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). In fact, Appellate Rule

       7(B) preserves for the trial court the central role in sentencing. Kucholick v. State,

       977 N.E.2d 351, 351 (Ind. 2012). The burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Conley, 972 N.E.2d

       at 864.


[29]   We first note Rushlow’s sentence. At the time he committed his crimes, a Class

       A felony was punishable by imprisonment for a fixed term of between twenty

       and fifty years, with the advisory sentence being thirty years. Ind. Code § 35-

       50-2-4 (2005). In addition, a Class C felony was punishable by imprisonment

       for a fixed term of between two and eight years, with the advisory sentence

       being four years. Ind. Code § 35-50-2-6 (2005). The trial court sentenced

       Rushlow to the maximum sentences of fifty and eight years, to be served

       consecutively. Further, the court directed that Rushlow would serve his

       aggregate sentence consecutively to his sentence in a federal case that preceded

       the current charges.


[30]   Turning to the nature of the offense, Rushlow argues that James’ injury was

       “minimal” and that the evidence was not more unfavorable to him than what is

       “generally necessary to establish the offenses of attempted murder and criminal

       recklessness.” Appellant’s Br. p. 17. We do not agree. Rushlow’s acts placed

       several persons in danger. He approached a home in the middle of the night

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       and repeatedly fired a handgun into it. In so doing, he endangered not only

       James and Ashley, but also their guests, including James’ mother, who was

       sleeping in a room near the front door. Rushlow clearly planned his attack

       because he pretended to be a police officer in order to lure people to the door.

       In addition, we share the trial court’s concern that Rushlow attacked James and

       Ashley in retaliation for James’ prior testimony in court, which is also an attack

       on the judicial system. Finally, Rushlow abandoned the handgun in a bush

       along a street, where it could have been found by anyone, including children.


[31]   As for the character of the offender, Rushlow has an extensive criminal record.

       As a juvenile, he accrued adjudications for acts that would have constituted

       criminal recklessness and burglary if they had been committed by an adult. As

       an adult, Rushlow was convicted of possession of a bomb, a Class C felony,

       false informing, a Class B misdemeanor, and nonsupport of a dependent child,

       a Class C felony, in Indiana state courts. In addition, he was convicted in

       federal court of use of a firearm during a crime of violence and of possession of

       a firearm while being an unlawful user of a narcotic. He has accrued his

       convictions on a frequent basis, demonstrating an inability to avoid

       incarceration for more than one or two years at a time. In addition, he has been

       placed on probation twice as an adult and failed to successfully complete either

       term. He was on federal probation when he committed the current crimes, and

       that probation was revoked.


[32]   Rushlow argues that positive factors include his employment history and his

       involvement with his son’s little league team. However, his incarcerations have

       Court of Appeals of Indiana | Memorandum Decision 20A03-1408-CR-310 | April 2, 2015   Page 12 of 13
       kept him from being employed for any significant amount of time and have

       limited his involvement in his children’s lives.


[33]   Rushlow has failed to carry his burden of demonstrating that his sentence is

       inappropriate.


                                                 Conclusion
[34]   For the reasons stated above, we affirm the judgment of the trial court.


[35]   Affirmed.


       Baker, J., and Riley, J., concur.




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