MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 29 2019, 9:22 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodney Evans,                                            October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-958
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G03-1708-MR-31041



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019                   Page 1 of 10
                                             Case Summary
[1]   Rodney Evans appeals his five-year sentence in the Department of Correction

      (“DOC”) imposed for his conviction for the level 5 felony involuntary

      manslaughter of his friend Rodney Lewis. Evans argues that his sentence is

      inappropriate based on the nature of the offense and his character. Concluding

      that Evans has failed to carry his burden to show that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On April 21, 2017, sixty-year-old Evans lived at 2450 North Webster Avenue,

      Indianapolis, with Darrell Holton and Darrell’s girlfriend Tishawn Blackwell.

      Evans has spinal stenosis and arthritis in both of his knees. In 2011, the Social

      Security Administration determined that he was disabled under the Social

      Security Act. Evans uses a cane to walk and had several canes in his home.

      That night, Evans, Lewis, and two of Evans’s female friends drank alcohol and

      smoked marijuana at Evans’s home. Holton and Blackwell were in Holton’s

      bedroom.


[3]   On April 22, 2017, at about 4:00 a.m., Indianapolis Metropolitan Police

      Department (“IMPD”) Officers Samuel House and Ross Allison were

      dispatched to the 2400 block of North Webster Avenue to investigate the report

      of a person down. The officers found a black male, later identified as Lewis,

      who was “severely beaten” and lying in the front yard of 2456 North Webster

      Avenue. Tr. Vol. 2 at 71. Lewis was bleeding from the head and appeared to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 2 of 10
      have suffered “severe head trauma.” Id. at 60. His “face was all bloody,

      swollen,” and his “[c]lothes were bloody.” Id. at 71. Lewis was grunting or

      moaning. He was also wet and shivering from being out in the cold. The

      officers immediately called for an ambulance.


[4]   Lewis was taken by ambulance to the hospital. He suffered extremely severe

      injuries to his face and head. He never regained consciousness and was

      transferred to a hospice facility where he died of his injuries in August 2017.

      An autopsy revealed that edema resulting from his head trauma caused his

      brain to stop controlling his vital organs, he was unable to swallow, and sputum

      aspirated in his lungs. Id. at 167.


[5]   After locating Lewis, Officers Allison and House investigated the area and

      observed “drag marks” that appeared to lead to Evans’s house. Id. at 61, 72.

      Following the drag marks, the officers observed blood on the driveway and

      Evans’s front porch. IMPD Detective Christopher Edwards arrived, and the

      officers showed him where Lewis had been found and the drag marks.

      Detective Edwards observed “blood drops from the sidewalk [in front of

      Evans’s house] into the driveway, and then further into the driveway, and then

      on the porch and the little sidewalk area that led up to the porch, and then on

      the handrail, and then even on the outside of the door.” Id. at 87. Detective

      Edwards knocked on the door, and Evans answered. Detective Edwards

      immediately saw blood on the floor inside the house, blood spatter on the wall,

      and blood on Evans’s shirt, pants, and socks. Id. at 89. Police got everyone out



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 3 of 10
      of the house, took Evans, Holton, and Blackwell to the police station for

      questioning, and obtained a search warrant for Evans’s house. 1


[6]   Evans was advised of and waived his rights and agreed to speak to the police.

      His statement was recorded. State’s Ex. 28; State’s Ex. 29 (transcript of

      statement). Evans told Detective Edwards three versions of what happened,

      finally admitting that he hit Lewis with his cane and that Lewis was so injured

      he was unable to walk out of the home. Conf. Ex. Vol. 1 at 65-99; Tr. Vol. 3 at

      83. In summary, Evans told police that on April 21, he smoked crack cocaine.

      Sometime later, two lady friends came to his home, and the three drank alcohol

      and smoked marijuana. That evening, Lewis joined the group and also drank

      alcohol and smoked marijuana. During the night, Evans consumed a pint and

      a couple of beers. 2 Conf. Ex. Vol. 1 at 76. At some point, Holton and

      Blackwell entered the home and went into Holton’s bedroom.


[7]   Late in the evening, Lewis began to get on Evans’s nerves, and Evans told

      Lewis to leave. Id. at 73; Tr. Vol. 3 at 79. Lewis refused. Evans grabbed

      Lewis, and the two men began grabbing and pushing each other. Lewis

      grabbed a board and started swinging it at Evans. Conf. Ex. Vol. 1 at 81-82.

      Evans hit the board out of Lewis’s hands, and the men fell against the wall and

      broke chairs. Evans was very angry. Id. at 81. At one point, Holton came out




      1
          The record is unclear as to when Evans’s two female friends left the home.
      2
          At trial, Evans testified that he was drinking gin and beer. Tr. Vol. 3 at 55.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019      Page 4 of 10
      of his bedroom, but Evans told him that he did not need his help, and Holton

      returned to the bedroom. Id. at 80. Evans eventually pulled Lewis over to the

      side door and out of the house.


[8]   Lewis returned, knocked on the front door, and started yelling. Evans opened

      the door, and Lewis pushed his way into the house. Id. at 92. The two started

      fighting again. Evans hit Lewis with his cane five to ten times. Id. at 94. Lewis

      was on the ground, attempting to cover himself from the beating. Id. at 95.

      Evans dragged Lewis out of the house, down the porch, and over to the

      adjacent yard. Id. at 95-96. Evans’s cane was broken, so he threw it in the

      trash can outside his house where police found it. Id. at 98.


[9]   The State charged Evans with murder. A jury trial was held. During the

      State’s case in chief, the trial court admitted the recording of Evans’s statement

      and a transcript of that statement into evidence. State’s Exs. 28 and 29. Evans

      took the stand and asserted that he hit Lewis in self-defense. His trial testimony

      was different in several respects from the statement that he gave to police. Tr.

      Vol. 3 at 83. Most significantly, he testified that in addition to drinking alcohol

      and smoking marijuana, Lewis smoked synthetic marijuana and afterward

      started acting strangely. Id. at 79. Evans testified that he had to physically

      force Lewis out of his home twice, and Lewis forced himself into the home the

      second time he returned. Evans testified that while he and Lewis were

      wrestling, Holton came out of his bedroom and used Evans’s cane to hit Lewis

      several times, and that it was Holton who broke Evans’s cane. Id. at 71. Evans

      testified that Holton asked Blackwell to bring him his pistol, which he used to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 5 of 10
       hit Lewis, and that was why Lewis had such severe injuries. Id. at 72-74.

       Evans also testified that Holton was the person who dragged Lewis outside, and

       when Holton came back in the house, he washed his hands and changed his

       clothes. 3 Id. at 74-75, 82.


[10]   The jury found Evans guilty of the lesser included offense of level 5 felony

       involuntary manslaughter. At sentencing, the trial court found that Evans had

       used crack cocaine, marijuana, and alcohol on the day of his offense, and that

       Evans had a history of drug and alcohol abuse that had “virtually consumed”

       his adult life. Id. at 186. That history included a dishonorable discharge from

       the Army in 1984 due to possession of marijuana, a 1999 conviction for class D

       felony maintaining a common nuisance, and three inpatient stays in facilities

       for substance abuse treatment. The trial court noted that despite that history,

       Evans had indicated in the presentence investigation report (“PSI”) that he had

       never had a problem with alcohol or drugs. Further, Evans was initially offered

       probation for his class D felony conviction, but he violated the conditions of

       probation, and it was revoked. The trial court also observed that Lewis was

       Evans’s friend, yet Evans had beat him and left him “discarded in a front lawn

       to lay there and suffer after the beating that he endured.” Id. at 188. The trial

       court also noted that Evans’s trial testimony and deposition were inconsistent,




       3
         Holton testified as a witness for the State via deposition. Tr. Vol. 2 at 219-50. He testified that he broke up
       “a little scuffle” between Evans and Lewis, that he never saw Evans hit Lewis with a cane or other object,
       that Lewis fell in the house and broke a chair, that Lewis fell down at least two times outside, that Lewis was
       yelling that someone was chasing him, and that he did not know how Lewis ended up in the condition he
       was in. Id. at 225, 231, 234, 238, 242-43, 248, 250.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019                     Page 6 of 10
       and that Evans had lied. Finally, the trial court observed that although Evans

       was disabled, his disability did not prevent him from beating Lewis and

       inflicting injuries so serious that they resulted in Lewis’s death. The trial court

       found that a slightly aggravated sentence was appropriate and sentenced Evans

       to five years, all executed. This appeal ensued.


                                      Discussion and Decision
[11]   Evans asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B),

       which states, “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.” When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result in

       each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not

       look to determine if the sentence was appropriate; instead we look to make sure

       the sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). “[S]entencing is principally a discretionary function in which the trial

       court’s judgment should receive considerable deference.” Cardwell, 895 N.E.2d

       at 1222. “Such deference should prevail 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). In conducting

       our review, we may consider all aspects of the penal consequences imposed by

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 7 of 10
       the trial court in sentencing, i.e., whether it consists of executed time,

       probation, suspension, home detention, or placement in community

       corrections, and whether the sentences run concurrently or consecutively.

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess

       the nature of the offense and character of the offender, “we may look to any

       factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

       Ct. App. 2013). Evans has the burden to show that his sentence is

       inappropriate. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218.


[12]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

       range for a level 5 felony is one to six years, with an advisory sentence of three

       years. Ind. Code § 35-50-2-6(b). The trial court imposed a sentence above the

       advisory and ordered it fully executed in the DOC. Evans contends that a fully

       executed sentence above the advisory is inappropriate.


[13]   Specifically, Evans asserts that the sentence is inappropriate because the jury

       concluded that he did not commit murder or voluntary manslaughter, and

       Lewis’s death was the tragic, unintended consequence of a conflict between two

       friends, which was precipitated by Lewis’s drug-induced behavior. Evans’s

       argument relies on his self-serving trial testimony, which was inconsistent with

       his police statement. Undeniably, Evans contributed to the brutal beating of his

       friend, much of it delivered while Lewis cowered on the ground. Then, Lewis

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 8 of 10
       was dragged outside and abandoned on the ground in the cold in the middle of

       the night. Despite the severity of Lewis’s injuries, Evans made no attempt to

       obtain medical help for Lewis. The nature of Evans’s crime does not persuade

       us that an executed sentence above the advisory is inappropriate.


[14]   As to Evans’s character, he points to his relatively inconsequential criminal

       history. However, he ignores that his class D felony maintaining a common

       nuisance was based on his use of drugs and that he committed the current

       offense after using drugs and alcohol. Thus, although he has but one prior

       felony, it is significant because of its similarity to the current offense.

       Additionally, although Evans was granted the benefit of probation, he was

       unable or unwilling to obey the conditions of his probation, and it was revoked.

       None of this reflects well on Evans’s ability to conform his behavior to the law.


[15]   Evans argues that commitment to the DOC is unsuitable because he needs

       genuine drug treatment and is disabled. Although he now argues that he needs

       drug treatment, Evans failed to acknowledge that he had a drug problem in the

       PSI. Should Evans decide to address his substance abuse issues, he can receive

       substance abuse treatment while incarcerated by participating in the Purposeful

       Incarceration program as recommended by the trial court. Evans’s disability

       did not prevent him from committing the current offense, and he does not

       specifically articulate why his disability makes incarceration inappropriate. We

       further observe that Evans appears to have a deceitful character, as shown by

       the significant differences between his trial testimony and his statement to

       police. His lack of compassion toward Lewis, his friend, reflects poorly on his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 9 of 10
       character as well. Evans presents no evidence of virtuous traits or persistent

       examples of good character. Accordingly, Evans’s character does not persuade

       us that a term of incarceration in the DOC above the advisory sentence is

       inappropriate.


[16]   We conclude that Evans has failed to carry his burden to show that his sentence

       is inappropriate based on the nature of the offense and his character.

       Therefore, we affirm.


[17]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-958 | October 29, 2019   Page 10 of 10
