MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Aug 28 2019, 9:06 am
regarded as precedent or cited before any
                                                                                  CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Jesse R. Drum
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lincoln Ray Pickett,                                     August 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2791
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable William G. Sleva,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause Nos.
                                                         47D01-1602-MR-129
                                                         47D01-1601-F6-105



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019                  Page 1 of 14
                                          Statement of the Case
[1]   Lincoln Ray Pickett appeals his convictions for murder, a felony, and unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony, and he

      appeals his sentence for those and other convictions 1 following a jury trial.

      Pickett presents three issues for our review:


               1.       Whether the trial court erred when it admitted evidence
                        that law enforcement officers had seized pursuant to a
                        search of his residence.

               2.       Whether some of his convictions constitute an episode of
                        criminal conduct and require a sentence revision.

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


[2]   We affirm.


                                    Facts and Procedural History
[3]   On January 18, 2016, Pickett drove Kamie Ratcliff and her infant daughter to

      Pickett’s home with his wife Jasmine Pickett (“Jasmine”) and their three

      children. Kamie and her daughter stayed with the Picketts for three nights. On




      1
        Pickett was also convicted of obstruction of justice, a Level 6 felony; abuse of a corpse, a Level 6 felony;
      false informing, as a Class A misdemeanor; and failure to report a dead body, a Class A misdemeanor. In his
      prayer for relief in his brief on appeal, Pickett purports to request that we vacate all of his convictions.
      However, in his opening statement at trial, Pickett’s defense counsel explicitly stated that Pickett was “guilty”
      of each of the offenses listed above and only contested the murder charge. Tr. Vol. 5 at 61. Because Pickett
      expressly conceded his guilt at trial, to the extent he appeals those convictions here, any alleged error was
      invited. See Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019                     Page 2 of 14
      the morning of January 21, Kamie told the Picketts that she wanted to go

      home. Jasmine, Kamie, and Kamie’s daughter got into Pickett’s red Chevrolet

      Blazer, with Pickett in the driver’s seat. As they were driving, Kamie asked

      Pickett to drive her to a friend’s house, but Pickett refused. Pickett told Kamie

      that he would drive her to her boyfriend’s house or to her mother’s house.

      Kamie became angry and threatened that both Pickett and Jasmine would “go

      to jail.” Tr. Vol. 7 at 37. Pickett became angry and yelled at Kamie. Kamie,

      who was sitting in the back seat with her daughter, hit Pickett. And at some

      point, Pickett hit Jasmine so hard that Jasmine lost consciousness. A short time

      later, Jasmine heard a gunshot and regained consciousness. Pickett had shot

      Kamie in the head. Pickett told Jasmine to put her head down, and she

      complied. Jasmine heard “gurgling” sounds coming from the back seat of the

      vehicle. Id. at 44.


[4]   Pickett drove to his home. Jasmine got out of the Blazer, Pickett backed the

      Blazer into the garage, and Pickett “handed [Jasmine] the baby.” Id. at 48.

      Jasmine took Kamie’s daughter inside the home. At some point, Pickett left for

      a few hours and came home. The next day, January 22, Pickett drove to his

      sister’s house. Pickett told his sister, Allayna O’Neal, that he needed a “safe

      vehicle to drive.” Tr. Vol. 5 at 81. Pickett also showed O’Neal a small pistol

      and two knives, and he told her that he had “shot a girl in the face.” Id. at 86.

      Pickett explained that “the girl” was in the backseat of his Blazer when she had

      threatened to accuse him of “criminal confinement” and had “started punching

      him in the head.” Id. Pickett told O’Neal not to tell anyone.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 3 of 14
[5]   At some point, O’Neal’s boyfriend, Mel Roush, came home, and he agreed to

      let Pickett borrow his Subaru. Accordingly, the three of them drove three

      vehicles, including the Subaru and Pickett’s Blazer, to Pickett’s house. When

      they arrived, O’Neal saw a baby there, and someone told her that Jasmine was

      babysitting the baby. After a short time, Kamie’s mother and stepfather arrived

      to pick up Kamie’s daughter. Jasmine had called Kamie’s mother and said that

      she and Pickett “didn’t know where Kamie was” and had asked her to “come

      pick up the baby.” Tr. Vol. 7 at 52. Kamie’s stepfather returned to the Picketts’

      home the following day looking for Kamie, but Pickett and Jasmine told him

      that “they had no idea where she was at.” Tr. Vol. 5 at 139. On January 24,

      Kamie’s mother filed a missing person report with the Mitchell Police

      Department.


[6]   On January 28, Pickett asked Jasmine to help him get Kamie’s body out of the

      Blazer. Jasmine saw Kamie’s body wrapped in a sheet in the backseat, and she

      saw Kamie’s feet. Jasmine told Pickett that she could not help him, and she

      proceeded to the front yard. Pickett then put Kamie’s body into a wood pile

      and started a fire. Pickett found Jasmine on the front porch and gave her a gun,

      and he told her to put the gun away. Jasmine took the gun and put it

      underneath their mattress inside the house.


[7]   After a short time, officers with the Mitchell Police Department arrived at

      Pickett’s home. The officers had a search warrant to look for evidence related

      to Kamie. Officers questioned Pickett and Jasmine separately, and they

      observed the fire in the burn pile. At one point, an officer started poking

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 4 of 14
      around the fire, and he saw what looked like a human “spinal column and rib

      cage” in the fire. Id. at 197. The officers arrested Pickett and Jasmine. Officers

      thereafter obtained and executed an additional search warrant for Pickett’s

      home and a search warrant for his Blazer. 2


[8]   The State initially charged Pickett with unlawful possession of a firearm by a

      serious violent felon, a Level 4 felony; obstruction of justice, a Level 6 felony;

      abuse of a corpse, a Level 6 felony; two counts of false informing, as Class A

      misdemeanors; and failure to report a dead body, a Class A misdemeanor. The

      State then charged Pickett with murder under a separate cause number. Pickett

      moved to suppress the evidence and alleged that the search of his home was

      unconstitutional. The trial court denied that motion following a hearing. Prior

      to trial, the State dismissed one count of false informing. A jury found Pickett

      guilty as charged on all counts but unlawful possession of a firearm by a serious

      violent felon. The trial was bifurcated, and the trial court found Pickett guilty

      on that count. The trial court entered judgment of conviction accordingly and

      sentenced Pickett to an aggregate term of eighty-four years executed. This

      appeal ensued.




      2
          At some point, Pickett had removed from the Blazer door panels and trim pieces because of blood spatter.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019                  Page 5 of 14
                                      Discussion and Decision
                                        Issue One: Search Warrant

[9]    Pickett first contends that the trial court “abused its discretion in admitting all

       of the evidence at trial obtained from the issuance of the search warrants.”

       Appellant’s Br. at 12. Pickett maintains that the search warrants were not

       supported by probable cause and should not have been issued. We cannot

       agree.


[10]   As our Supreme Court has explained,


                [t]he existence of probable cause is evaluated pursuant to the
                “totality-of-the-circumstances” test. Illinois v. Gates, 462 U.S.
                213, 238, 103 S. Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).
                Probable cause exists “when ‘there is a fair probability that
                contraband or evidence of a crime will be found in a particular
                place.’” U.S. v. Grubbs, 547 U.S. 90, 95, 126 S. Ct. 1494, 1499,
                164 L.Ed.2d 195 (2006) (quoting Gates, 462 U.S. at 238, 103 S.
                Ct. 2317). Significantly, “probable cause requires only a
                probability or substantial chance of criminal activity, not an
                actual showing of such activity.” Gates, 462 U.S. at 245 n.13,
                103 S. Ct. 2317. The trial court’s task is to determine whether
                “there is a fair probability that contraband or evidence of a crime
                will be found in a particular place[,]” id. at 238, 103 S. Ct. 2317,
                while a reviewing court must “ensure that the magistrate had a
                ‘substantial basis for . . . conclud[ing]’ that probable cause
                existed.” Id. at 238-39, 103 S. Ct. 2317 (quoting Jones v. US, 362
                U.S.257, 271, 80 S. Ct. 725, 736, 4 L.Ed.2d 697 (1960)).


       Eaton v. State, 889 N.E.2d 297, 299 (Ind. 2008).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 6 of 14
[11]   Here, in support of the application for the first search warrant, Mitchell Police

       Department officer Matt England testified at a probable cause hearing that:

       Kamie’s mother had reported Kamie missing on January 24, 2016; “at the time

       [Kamie] was last seen she was residing with” Pickett and Jasmine at Pickett’s

       home; Pickett and Jasmine confirmed that Kamie had stayed with them but

       then “left without them knowing”; Kamie’s mother was concerned that Kamie

       “had not returned for the child”; the father of Kamie’s three older children said

       they had not heard from Kamie for over one week, which was “out of the

       ordinary”; Kamie usually checked on her older children “every couple of days”;

       it was reported that Kamie might have been using “illegal substances”; and

       “law enforcement [was] concerned about her welfare” at that time. Appellant’s

       App. Vol. 2 at 196-201.


[12]   Pickett asserts that, without any testimony, that “any illegal activity had

       occurred at Pickett’s home” and, given the “numerous plausible, legal reasons

       why [Kamie] could not be located,” there was no probable cause to support the

       initial search warrant of his home. Appellant’s Br. at 13. Pickett adds that “the

       officer failed to make any connection [between] Kamie’s disappearance and the

       items police believed might be found in the home.” Id. Pickett’s argument

       misses the mark.


[13]   Here, at the time of the probable cause hearing, Kamie had been reported

       missing for several days. Pickett and Jasmine confirmed that no one had seen

       Kamie since she had last been seen at their home, where she had been living for

       a few days. Inexplicably, Pickett and Jasmine had Kamie’s infant daughter in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 7 of 14
       their care, and Kamie had not contacted her older children for more than one

       week, which was unusual for her. We hold that Officer England’s testimony

       sufficiently established probable cause for the initial search warrant for Pickett’s

       home. Once there, officers found human remains in the burn pit and obtained

       additional warrants. The evidence supports the trial court’s determination that

       sufficient probable cause supported the search warrants. We hold that the trial

       court did not err when it admitted the evidence officers obtained pursuant to

       those search warrants.


                               Issue Two: Episode of Criminal Conduct

[14]   Pickett next contends that some of his offenses constitute an episode of criminal

       conduct and are subject to a sentencing cap. An “episode of criminal conduct”

       means offenses or a connected series of offenses that are closely related in time,

       place, and circumstance. Ind. Code § 35-50-1-2(b) (2018). And Indiana Code

       Section 35-50-1-2(c) provides in relevant part that, except for crimes of violence,

       the total of the consecutive terms of imprisonment to which the defendant is

       sentenced for multiple felony convictions arising out of an episode of criminal

       conduct “shall not exceed the period described in subsection (d).” Subsection

       (d) provides in relevant part that


               the total of the consecutive terms of imprisonment to which the
               defendant is sentenced for felony convictions arising out of an
               episode of criminal conduct may not exceed the following: (1) If
               the most serious crime for which the defendant is sentenced is a
               Level 6 felony, the total of the consecutive terms of
               imprisonment may not exceed four (4) years. . . .


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 8 of 14
       Id.


[15]   Here, Pickett maintains that “the total of the consecutive terms of

       imprisonment, with the exception of the sentences for murder and for the

       [serious violent felon] conviction, could not exceed 4 years[.]” Appellant’s Br.

       at 15. In other words, Pickett asserts that the offenses underlying his

       convictions other than for murder and unlawful possession of a firearm

       constitute an episode of criminal conduct. However, as the State correctly

       points out, the episode of criminal conduct sentencing cap only applies to felony

       convictions. Accordingly, Pickett can only challenge his sentences for

       obstruction of justice and abuse of a corpse. We thus address whether those

       two offenses constitute an episode of criminal conduct.


[16]   Our supreme court has explained that, in determining whether multiple offenses

       constitute an episode of criminal conduct, the focus is on the timing of the

       offenses and the simultaneous and contemporaneous nature of the crimes. See

       Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006). Our courts have also held

       that, where a complete account of a crime can be given without referring to the

       other offense, the offenses are not a single “episode of criminal conduct.”

       Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1995). However, our

       Supreme Court has stated that our courts’ emphasis on the “complete account”

       analysis “is a bit of an overstatement.” Reed, 856 N.E.2d at 1200. The Court

       explained:


               We are of the view that although the ability to recount each
               charge without referring to the other can provide additional
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 9 of 14
               guidance on the question of whether a defendant’s conduct
               constitutes an episode of criminal conduct, it is not a critical
               ingredient in resolving the question. Rather, the statute speaks in
               less absolute terms: “a connected series of offenses that are
               closely connected in time, place, and circumstance.” I.C. § 35-
               50-1-2(b). And as we have observed, “Tedlock emphasizes the
               timing of the offenses” and “refers to the ‘simultaneous’ and
               ‘contemporaneous’ nature of the crimes which would constitute a
               single episode of criminal conduct.” Smith v. State, 770 N.E.2d
               290, 294 (Ind. 2002) (citing Tedlock, 656 N.E.2d at 276).


       Id.


[17]   Here, Pickett committed obstruction of justice when he “altered or damaged or

       removed from [the] crime scene[, the Blazer,] Kamie’s body, 2 door panels,

       multiple pieces of trim,” and the baby’s car seat. Tr. Vol. 8 at 39. And he

       committed abuse of a corpse when he burned Kamie’s body. On appeal,

       Pickett contends as follows:


               It is true that the State alleged the offenses did not all occur on
               the same day. Yet it was unclear from the evidence presented
               when Pickett took apart the Blazer and began burning Kamie’s
               body. Nevertheless, offenses in a single episode of criminal
               conduct can occur over a period of time, so long as they are
               closely related in place and circumstance, as they were in this
               case. The offenses, with the exception of the murder, occurred at
               Pickett’s home, and each offense was a circumstance related to
               Kamie’s murder.


       Appellant’s Br. at 17.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 10 of 14
[18]   In short, Pickett emphasizes the relationship of the crimes to each other rather

       than the timing of the offenses. But we cannot say that “a complete account” of

       each offense cannot be given without referring to the other offense. Tedlock, 656

       N.E.2d at 276. Pickett destroyed evidence of the murder found in the Blazer,

       and he burned Kamie’s dead body. Those acts are related only in that they

       were both efforts to cover up the murder, but they are distinct in that they can

       each be described without reference to the other. Moreover, without evidence

       that the obstruction of justice and abuse of a corpse occurred simultaneously or

       contemporaneously, or even when they occurred, we cannot say that these two

       offenses constitute an episode of criminal conduct. See Reed, 856 N.E.2d at

       1200.


                                            Issue Three: Sentence

[19]   Finally, Pickett contends that his sentence is inappropriate in light of the nature

       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 often recognized that “[t]he advisory sentence is the

       starting point the legislature has 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 explained that “[t]he principal role of

       appellate review should be to attempt to leaven the outliers . . . but not achieve

       a perceived ‘correct’ result in each case. Defendant has the burden to persuade

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 11 of 14
       us that the sentence imposed by the trial court is inappropriate.” Shoun v. State,

       67 N.E.3d 635, 642 (Ind. 2017) (citations omitted; omission in original).


[20]   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 v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). 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).


[21]   Here, the trial court imposed the maximum possible sentence of eighty-four

       years executed.3 Pickett contends that his sentence is inappropriate in light of

       the nature of the offenses. In particular, Pickett “does not dispute that Kamie’s




       3
         The trial court imposed consecutive maximum sentences as follows: sixty-five years for murder; twelve
       years for unlawful possession of a firearm by a serious violent felon, a Level 4 felony; two and a half years
       each for obstruction of justice and abuse of a corpse, each Level 6 felonies; one year for false informing, as a
       Class A misdemeanor; and one year for failure to report a dead body, a Class A misdemeanor.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019                    Page 12 of 14
       murder occurred in front of her young daughter, which made this murder more

       egregious than others. But there was nothing remarkable about Pickett’s other

       offenses that would call for the maximum sentence on each one.” Appellant’s

       Br. at 18. We are not persuaded. Pickett has not directed us to “compelling

       evidence portraying in a positive light” the nature of the offenses. Stephenson,

       29 N.E.3d at 122. Accordingly, we defer to the trial court and cannot say that

       his sentence is inappropriate in light of the nature of the offenses. Id.


[22]   Pickett next contends that his sentence is inappropriate in light of his character.

       Pickett points out that he had “a difficult childhood”; only completed the sixth

       grade in school; was employed but “had stress and anxiety” due to “financial

       instability”; relied on marijuana “to ease his anxiety”; and had a “good

       relationship” with his four children. Appellant’s Br. at 19. Pickett asserts that

       his offenses are not “the worst” and he is not “the most depraved” of offenders.

       Id.


[23]   Pickett’s criminal history includes multiple adjudications as a juvenile

       delinquent in 1998 and 1999, including adjudications for burglary, theft,

       receiving stolen property, marijuana possession, and carrying a handgun

       without a license. Pickett’s adult criminal history includes four misdemeanors,

       including battery and resisting law enforcement. In addition, Pickett violated

       the terms of his probation in 2002. Moreover, as the State points out, Jasmine

       testified that Pickett was physically and psychologically abusive to her. Finally,

       Pickett has not directed us to evidence of any “substantial virtuous traits or

       persistent examples of good character” to support a revision of his sentence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 13 of 14
       based on his character. Stephenson, 29 N.E.3d at 122. We cannot say that

       Pickett’s sentence is inappropriate in light of his character, and we affirm his

       sentence.


[24]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2791 | August 28, 2019   Page 14 of 14
