MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be                                   Aug 24 2016, 10:07 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                    Gregory F. Zoeller
Crown Point, Indiana                                      Attorney General of Indiana

                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Dominique D. Randolph,                                    August 24, 2016
Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          45A04-1512-CR-2358
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador
Appellee-Plaintiff.                                       Vasquez, Judge
                                                          Trial Court Cause No.
                                                          45G01-1412-F3-21



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016           Page 1 of 10
                                              Case Summary
[1]   Dominique Randolph appeals his conviction and sentence for Level 3 felony

      armed robbery. We affirm.


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

                       I.      whether the trial court properly admitted the
                               victim’s testimony that his wife died of cancer
                               shortly before the robbery;

                       II.     whether the sentence violates the
                               proportionality clause of the Indiana
                               Constitution; and

                       III.    whether the sentence is inappropriate in light
                               of the nature of the offense and the character
                               of the offender.

                                                      Facts
[3]   On December 8, 2014, Thomas O’Neill left his Hammond apartment at

      approximately 5:30 p.m. to purchase a pack of cigarettes. As he was walking

      on Cedar Street, he saw a gray SUV, and he was approached by three men.

      They circled him and said, “Where’s it at?” Tr. p. 86. O’Neill responded,

      “What?” and they said, “Give it up,” and “Don’t move.” Id. One of the men

      then pulled a gun out and pointed it at O’Neill while another man went through

      O’Neill’s pockets. They took sixty dollars from O’Neill’s pocket. The man

      with the gun said, “We’re the new police around here now,” and they left in the

      gray SUV. Id. at 94. O’Neill ran to a nearby business and called 911. A police


      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 2 of 10
      officer met with O’Neill and got a description of the vehicle. The officer told

      O’Neill to go home and wait for them to call.


[4]   Officers soon located a gray SUV and pursued two occupants, Maurice McCoy

      and Deandre Barnes, on foot. Randolph was located hiding in the SUV. When

      a police officer picked up O’Neill and took him to the scene, O’Neill identified

      Randolph, Barnes, and McCoy as the men who robbed him. O’Neill was

      unable to identify a fourth man that had been detained. McCoy had sixty-one

      dollars in cash in his possession. A handgun was later found in a backyard near

      where one of the foot chases occurred.

[5]   Near the time and location of the O’Neill robbery, Nicholas Ruiz was also

      robbed. Randolph was charged with the Ruiz robbery, and a jury found him

      guilty of Level 3 felony armed robbery. In July 2015, a trial court sentenced

      him to nine years with four years suspended to probation.


[6]   With respect to the O’Neill robbery, the State charged Randolph, Barnes, and

      McCoy with Level 3 felony armed robbery. The trial court granted a motion in

      limine to exclude evidence of the Ruiz robbery. At the jury trial, O’Neill

      identified Randolph as the man who pointed a firearm at him, Barnes as the

      man who took the money, and McCoy as the man who searched his pockets.

      A jury found the men guilty as charged. In November 2015, the trial court

      sentenced Randolph to ten years in the Department of Correction. Randolph

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 3 of 10
                                                   Analysis
                                           I. O’Neill’s Testimony

[7]   Randolph argues that the trial court abused its discretion by admitting O’Neill’s

      testimony that his wife had died shortly before the robbery. Generally, a trial

      court’s ruling on the admission of evidence is accorded “a great deal of

      deference” on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). Because

      the trial court is best able to weigh the evidence and assess witness credibility,

      we review its rulings on admissibility for abuse of discretion. Id. We will

      reverse only if a ruling is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights. Id.


[8]   O’Neill testified on direct and cross-examination that he was nervous and upset

      when talking to the officer after the robbery. During cross-examination of

      O’Neill, he was repeatedly questioned by the defendants’ attorneys regarding

      discrepancies between his identification of the parties on the evening of the

      robbery, his deposition testimony, and his trial testimony. He was questioned

      regarding the reasons for the discrepancies, medications that he was taking, and

      his mental health status and diagnosis. During redirect examination, the State

      asked: “I know that being robbed was an upsetting incident to you that night.

      Was there anything else that had kind of been upsetting you that evening?” Tr.

      p. 159. O’Neill answered, “Well, a month-and-a-half prior to this robbery, my

      wife died from brain cancer. She had to go through hospice and gave her

      morphine and Adavan [sic] to keep her comfortable. And she died- -.” Id.

      Randolph’s attorney objected that the question was “outside the scope” and

      Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 4 of 10
       “not relevant.” Id. The trial court overruled the objections, and O’Neill

       testified: “That’s what happened. I will probably never get over my wife’s

       death, and to have this happen to me a month-and-a-half later, it’s just terrible.”

       Id. at 160.


[9]    On appeal, Randolph argues that the testimony regarding O’Neill’s wife was

       not relevant and that any probative value was outweighed by its prejudicial

       effect. Randolph argues that, “[d]ue to the uncertainty of Mr. O’Neill’s

       identification of the defendants, any evidence that would generate additional

       sympathy for him would have carried significant weight.” Appellant’s Br. p. 9.


[10]   The State argues that the evidence was properly admitted because the

       defendants had inquired into O’Neill’s mental health history and prescribed

       medications in an effort to undermine his credibility. The State contends that

       the defendants put O’Neill’s state of mind at issue and that “matters related to

       any mental or emotional distress [O’Neill] may have been under during the

       crime or while giving statements regarding the crime were fair game on

       redirect.” Appellee’s Br. p. 12.


[11]   To the extent that the trial court erred by allowing the testimony, we conclude

       that any error was harmless. Randolph was found hiding in the vehicle that

       O’Neill identified as containing the men who robbed him. O’Neill repeatedly

       identified Randolph as one of the men who robbed him. Randolph and the

       other defendants had already questioned O’Neill extensively regarding

       discrepancies in his identification of the defendants. Moreover, Randolph


       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 5 of 10
       concedes that “if Mr. O’Neill was still traumatized by the death of his wife at

       the time of the robbery, it would make his identification less certain, thereby

       injuring the State’s case.” Appellant’s Reply Br. p. 6. Any error in the

       admission of O’Neill’s brief testimony regarding the death of his wife did not

       affect Randolph’s substantial rights.


                                         II. Proportionality Clause

[12]   Randolph argues that his sentence violates the proportionality clause of the

       Indiana Constitution. Article 1, Section 16 of the Indiana Constitution requires

       that “[a]ll penalties shall be proportioned to the nature of the offense.”

       “Though Article 1, Section 16 sweeps somewhat more broadly than the Eighth

       Amendment, its protections are still narrow.”                 Knapp v. State, 9 N.E.3d 1274,

       1289 (Ind. 2014), cert. denied. The proportionality clause is violated “only when

       the criminal penalty is not graduated and proportioned to the nature of the

       offense.” Id. at 1289-90. We “cannot set aside a legislatively sanctioned

       penalty merely because it seems too severe.” Id. at 1290. The proportionality

       clause “requires us to review whether a sentence is not only within statutory

       parameters, but also constitutional as applied to the particular defendant.” Id.

       A sentence may be unconstitutional by reason of its length if it is so severe and

       entirely out of proportion to the gravity of the offense committed as “to shock

       public sentiment and violate the judgment of a reasonable people.” Pittman v.

       State, 45 N.E.3d 805, 819 (Ind. Ct. App. 2015).

[13]   Randolph argues that his sentence violates the proportionality clause because

       he was convicted of two robberies that were committed within minutes of each
       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 6 of 10
       other and received different sentences for each robbery. Both convictions were

       for Level 3 felonies. Under Indiana Code Section 35-50-2-5(b), a person that

       commits a Level 3 felony “shall be imprisoned for a fixed term of between three

       (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” For

       the Ruiz robbery, a trial court sentenced Randolph to the advisory sentence of

       nine years with four years suspended to probation. For the O’Neill robbery, a

       different trial court sentenced Randolph to ten years in the Department of

       Correction. At the sentencing hearing, the trial court noted the sentence in the

       Ruiz case and stated: “I am not suspending any of that to be served on

       probation, respectful of Judge McGraw’s sentence. It’s not a sentence that, in

       this case, I find to be the appropriate or fair sentence.” Tr. p. 442.

[14]   The sentence imposed in the O’Neill robbery is well within the range allowed by

       Indiana Code Section 35-50-2-5. In fact, it is only one year more than the

       advisory sentence and the sentence imposed for the Ruiz robbery. Although the

       trial court in the Ruiz robbery case suspended part of the sentence to probation,

       the additional felony conviction at the time of the sentencing for the O’Neill

       robbery conviction and emotional harm to the victim could justify the different

       sentences. We cannot say that the difference between the sentences is so severe

       and out of proportion to the gravity of the offense committed as “to shock

       public sentiment and violate the judgment of a reasonable people.” Pittman, 45

       N.E.3d at 819. Randolph’s argument fails.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 7 of 10
                                         III. Inappropriate Sentence

[15]   Next, Randolph argues that his sentence is inappropriate. He asks that we

       revise the sentence to match the sentence imposed for his conviction in the Ruiz

       robbery.


[16]   Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by

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

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

       the offender. Although Appellate Rule 7(B) does not require us to be

       “extremely” deferential to a trial court’s sentencing decision, we still must give

       due consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873

       (Ind. Ct. App. 2007). We also understand and recognize the unique perspective

       a trial court brings to its sentencing decisions. Id. “Additionally, a defendant

       bears the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Id.


[17]   The principal role of Appellate Rule 7(B) review “should be to attempt to leaven

       the outliers, and identify some guiding principles for trial courts and those

       charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

       than the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,



       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 8 of 10
       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224.


[18]   The nature of the offense is that Randolph and his co-defendants robbed fifty-

       four-year-old O’Neill at gunpoint. At the trial, O’Neill identified Randolph as

       the man with the gun and the man that said, “We’re the new police around here

       now.” Tr. p. 94. The trial court noted that O’Neill was “dramatically affected”

       by the robbery and that he was “now afraid to leave his home.” Appellant’s

       App. p. 83.


[19]   As for the character of the offender, the trial court found nineteen-year-old

       Randolph’s criminal history as an aggravating factor. Randolph had numerous

       juvenile arrests and a 2013 conviction in Illinois for possession of a controlled

       substance. He was on probation for that conviction at the time of the instant

       offense. Additionally, he was convicted of Level 3 felony armed robbery for the

       Ruiz robbery, which occurred on the same night as the instant offense. The trial

       court noted that he had been given leniency in the past but continued

       participating in criminal behavior. The trial court found Randolph’s “sad and

       challenging childhood” to be a mitigator of relatively low weight. Id.


[20]   Randolph argues that he should have been sentenced to the same sentence as

       was given in the Ruiz robbery. However, nothing required the trial court here

       to give the same sentence. In fact, the trial court noted the sentence for the

       Ruiz robbery but believed that it was too lenient. Moreover, we were provided

       with no information regarding the details of the Ruiz robbery. O’Neill,


       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 9 of 10
       however, was significantly affected by the instant robbery. See Hogan v. State,

       274 Ind. 119, 122, 409 N.E.2d 588, 591 (1980) (holding that extreme physical,

       mental, and emotional harm to elderly robbery victims was a proper

       consideration in sentencing defendant). Given Randolph’s criminal history and

       the nature of the offense, we cannot say that the ten-year sentence is

       inappropriate.


                                                  Conclusion
[21]   Any error in the admission of evidence concerning the death of O’Neill’s wife

       was harmless. Randolph’s sentence does not violate the proportionality clause,

       and we cannot say it is inappropriate. We affirm.


[22]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1512-CR-2358 | August 24, 2016   Page 10 of 10
