MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Feb 09 2016, 8:20 am
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
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Travion D. Kirkland,                                     February 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1507-CR-1057
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff                                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1312-MR-9



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016         Page 1 of 10
[1]   Defendant Travion Kirkland appeals his conviction for Felony Murder.1

      Kirkland argues that there is insufficient evidence supporting the conviction.

      He also argues that the trial court abused its discretion when it found certain

      aggravating circumstances during sentencing and that the fifty-nine-year

      sentence imposed by the trial court is inappropriate in light of the nature of the

      offense and his character. Finding that the evidence is sufficient, that the trial

      court did not abuse its discretion during sentencing, and that the sentence is not

      inappropriate, we affirm.


                                                        Facts
[2]   On April 16, 2012, Kirkland went to his grandmother’s house in Elkhart with

      his cousin, DeAndre Jones. Kirkland and Jones arrived at Kirkland’s

      grandmother’s house sometime around 10:15 p.m. During the evening of April

      16, Kirkland texted two of his friends, asking them if they wanted to “hit a

      lick,” meaning “to rob someone, take somebody’s money, [or] beat somebody

      up.” Tr. p. 410, 431. However, both friends declined. Kirkland and Jones left

      Kirkland’s grandmother’s house at 10:22 p.m. and returned around 11:00 p.m.


[3]   That day, Vince Jacobs and Dakota Ellsworth were visiting the home of Jesse

      Bowen in Elkhart. At some point between 10:30 p.m. and 11:00 p.m., two

      Black men entered the living room of the house and demanded money and

      marijuana. The men were dressed in black and were wearing some sort of mask




      1
          Ind. Code § 35-42-1-1(2); I.C. § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 2 of 10
      or nylon covering over their faces. Ellsworth identified one of the men as

      Kirkland, with whom he was familiar because they had gone to school together

      and because Kirkland had purchased marijuana from Bowen in the past while

      Ellsworth was also present. However, Ellsworth did not recognize the other

      man.


[4]   According to Ellsworth, the man that he identified as Kirkland had a silver

      handgun in his right hand. Kirkland grabbed Bowen by putting his left arm

      around Bowen, and a struggle ensued. After Bowen told Kirkland to let him go

      so he could get the “stuff,” tr. p. 153, Bowen grabbed an aluminum baseball bat

      and swung it at the two men, hitting one of them. At this point, Kirkland shot

      Bowen, who eventually died from the resulting gunshot wound.


[5]   After the shot was fired, Ellsworth ran out of the back door, while Jacobs ran

      out of the front door. Once outside, Ellsworth saw Kirkland and the other man

      running down an adjacent street. Ellsworth and Jacobs sought help from

      Bowen’s neighbors, who called 911.


[6]   After Kirkland and Jones returned to Kirkland’s grandmother’s house, she

      noticed that Jones had an emerging knot on his head. Kirkland told his

      grandmother that Jones had fallen down at Ferrettie Baugo Park. However,

      Kirkland later told Ellsworth’s girlfriend that Jones had slipped and fallen at a

      7-Eleven, and told someone else that Jones had fallen at a gas station. When

      questioned by police, Kirkland told them that Jones had fallen at the park and




      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 3 of 10
      hit his head on the car in which they had been traveling. However, there were

      no visible marks on the car.


[7]   At the scene of the shooting, Detective Charles Osterday of the Elkhart County

      Sheriff’s Department discovered a dark blue piece of cloth lying in the street on

      the north side of the property. Forensic testing of DNA found on the piece of

      cloth showed that one in 1.2 billion unrelated people would have the genetic

      profile identified on the cloth, and that Kirkland could not be excluded.

      Further, a dark blue, long-sleeve t-shirt with one of its sleeves missing was

      found in Kirkland’s grandmother’s home. Forensic analysis revealed that there

      were no significant differences between the composition of the shirt and the

      composition of the piece of cloth found at the scene of the shooting.


[8]   Officers also found a .22-caliber shell inside Bowen’s home. Forensic testing on

      the shell casing and the bullet retrieved from Bowen’s body showed that the

      bullet came from the casing found in the home. At trial, Kirkland’s friend

      testified that he had seen Kirkland in possession of a .22-caliber handgun in the

      summer of 2011.


[9]   On December 18, 2013, the State charged Kirkland with murder, and his jury

      trial took place on June 1, 2015. On June 5, 2015, the jury found Kirkland

      guilty as charged. At the July 2, 2015, sentencing hearing, the trial court

      considered aggravators and mitigators, explicitly stating that any one of the

      aggravators taken individually, or all of them taken as a whole, would outweigh




      Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 4 of 10
       the mitigators. Appellant’s App. p. 116. The trial court sentenced Kirkland to

       fifty-nine years imprisonment. Kirkland now appeals.


                                    Discussion and Decision
                                I. Sufficiency of the Evidence
[10]   First, Kirkland argues that there is insufficient evidence to support his

       conviction. To convict Kirkland of murder, the State was required to prove

       beyond a reasonable doubt that he knowingly took property from Bowen by

       using or threatening the use of force or by putting Bowen in fear, and that while

       doing so, Bowen was killed. I.C. § 35-42-1-1(2); I.C. § 35-42-5-1. Our standard

       of review for sufficiency of the evidence is well settled:

               When reviewing the sufficiency of the evidence to support a
               conviction, we consider only the probative evidence and
               reasonable inferences supporting the trial court’s decision. It is
               the fact-finder’s role, and not ours, to assess witness credibility
               and weigh the evidence to determine whether it is sufficient to
               support a conviction. When we are confronted with conflicting
               evidence, we consider it most favorably to the trial court’s ruling.
               We will affirm a conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Therefore, it is not necessary that the evidence overcome
               every reasonable hypothesis of innocence; rather, the evidence is
               sufficient if an inference reasonably may be drawn from it to
               support the trial court’s decision.


       Brummett v. State, 10 N.E.3d 78, 89 (Ind. Ct. App. 2014) (internal citations

       omitted).



       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 5 of 10
[11]   In support of his argument, Kirkland contends that the testimony of Ellsworth

       identifying him as the shooter fails to support the reasonable inferences

       necessary to conclude that Kirkland committed the offense of felony murder.

       Among other alleged discrepancies in Ellsworth’s testimony, Kirkland points to

       the fact that Ellsworth initially stated that Bowen hit Kirkland in the head with

       a glass bottle, but later stated that Bowen hit Kirkland with a baseball bat.

       Kirkland also argues that Ellsworth’s testimony was not corroborated by other

       evidence in the record, as Jacobs was too intoxicated at the time of the incident

       to provide reliable testimony.


[12]   However, it is the factfinder’s role to assess the credibility of Ellsworth’s

       statements, and the jury deemed them credible. Our role is limited to

       determining whether the evidence presented by the State could lead a

       reasonable factfinder to find all the requisite elements to be established beyond

       a reasonable doubt.


[13]   The State presented evidence from which a reasonable factfinder could

       conclude that Kirkland committed felony murder. This evidence includes

       Kirkland’s texts discussing “hit[ting] a lick,” tr. p. 410, 431, Ellsworth’s

       identification of Kirkland, and the piece of blue fabric found at the scene of the

       shooting, which contained DNA linking it to Kirkland. Considering the

       evidence in the light most favorable to the trial court’s ruling, we find the

       evidence sufficient to sustain the verdict.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 6 of 10
                                             II. Sentencing
[14]   Next, Kirkland argues that the trial court abused its discretion during

       sentencing by considering Kirkland’s juvenile history and inconsistent

       statements to be aggravating factors. He also argues that his fifty-nine-year

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


                                     A. Abuse of Discretion
[15]   Under the advisory sentencing scheme, trial courts no longer have any

       obligation to weigh aggravators and mitigators against each other when

       imposing a sentence. Richardson v. State, 906 N.E.2d 241, 243 (Ind. Ct. App.

       2009). Instead, a trial court may impose any sentence authorized by statute and

       must provide a sentencing statement that gives a reasonably detailed recitation

       of the trial court’s reasons for imposing a particular sentence. Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[16]   First, Kirkland argues that the trial court’s consideration of his juvenile referral

       for possession of marijuana as an aggravating circumstance was an abuse of

       discretion because such juvenile history is insignificant for sentencing purposes.

       However, under Indiana law, juvenile adjudications reflecting a history of

       criminal behavior may be considered as aggravating circumstances. Williams v.

       State, 838 N.E.2d 1019, 1021 (Ind. 2005). Moreover, according to our Supreme

       Court, “[b]ecause the trial court no longer has any obligation to ‘weigh’

       aggravating and mitigating factors against each other when imposing a

       sentence, . . . a trial court can not now be said to have abused its discretion in

       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 7 of 10
       failing to ‘properly weigh’ such factors.” Anglemyer, 868 N.E.2d at 491. As

       such, it is not our role to review the weight assigned to the aggravating and

       mitigating factors by the trial court. Because Kirkland’s juvenile history is a

       proper aggravator and we may not consider its weight, we find no abuse of

       discretion on this issue.


[17]   Kirkland also argues that the trial court abused its discretion when it found his

       inconsistent statements regarding the incident to be an aggravating factor. In

       support of this argument, Kirkland seeks to establish that his statements to

       police and during trial were not in fact inconsistent with each other. It is

       unclear whether the existence of inconsistent statements is a proper

       consideration when determining aggravating factors; regardless, if the trial court

       would have imposed the same sentence even if it had not considered an

       improper aggravator, we will affirm the sentence. Id. Considering the trial

       court’s statement that “any one of the aggravators taken individually or all of

       them taken as a whole outweigh the mitigators,” appellant’s app. p. 116, it is

       clear that the trial court would have imposed the same sentence even without

       considering this aggravator. In sum, we do not find that the trial court abused

       its discretion when considering the aggravating and mitigating factors at

       sentencing.


                                         B. Appropriateness
[18]   Indiana Appellate Rule 7(B) provides that this Court may revise a sentence if it

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


       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 8 of 10
       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principle role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[19]   Turning to the nature of Kirkland’s offense, we concede that its circumstances

       were not particularly exceptional. However, as noted by the trial court,

       Kirkland left the victim languishing and did not seek medical attention for him.

       Kirkland’s fifty-nine-year sentence was only enhanced four years above the

       advisory sentence of fifty-five years, and was six years less than the maximum

       sentence of sixty-five years. Ind. Code § 35-50-2-3(a). Considering the

       relatively minimal nature of the enhancement, we find that it was not

       inappropriate in light of the nature of the offense.


[20]   Turning to Kirkland’s character, we note that the trial court found that Kirkland

       tried to involve others in his plan to rob Bowen, he continued to use illegal

       drugs frequently after his juvenile referral, and he admitted that he committed a

       residential burglary at Bowen’s residence prior to the felony murder. We

       acknowledge that the evidence of Kirkland’s character is not especially

       egregious; however, as previously stated, our role is to leaven the outliers, not

       to achieve a “correct” sentence. As the four-year enhancement was relatively

       minimal, we do not find that the sentence imposed by the trial court was

       inappropriate in light of the nature of the offense and Kirkland’s character.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 9 of 10
[21]   The judgment of the trial court is affirmed.


       Bradford, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1507-CR-1057 | February 9, 2016   Page 10 of 10
