MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                           FILED
regarded as precedent or cited before any                  May 11 2017, 7:51 am
court except for the purpose of establishing
                                                                CLERK
the defense of res judicata, collateral                     Indiana Supreme Court
                                                               Court of Appeals
estoppel, or the law of the case.                                and Tax Court




ATTORNEYS FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                      Curtis T. Hill, Jr.
Brooke Smith                                           Attorney General
Keffer Barnhart LLP
Indianapolis, Indiana                                  Caryn N. Szyper
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Kevin Nobel Eastwood,                                  May 11, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       82A01-1611-CR-2506
        v.                                             Appeal from the Vanderburgh
                                                       Superior Court
State of Indiana,                                      The Honorable Robert J. Tornatta,
Appellee-Plaintiff.                                    Judge
                                                       Trial Court Cause No.
                                                       82D03-1507-F1-3926



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 1 of 7
                                      Statement of the Case
[1]   Kevin Nobel Eastwood appeals his convictions for attempted murder, a Level 1

      felony, and battery, as a Level 5 felony, following a jury trial. Eastwood

      presents the following issues for our review:

              1.      Whether the trial court abused its discretion when it
                      denied his request for an admonishment during voir dire.

              2.      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 July 1, 2015, Rodney Kessler and Anastacia Eastwood attended a court

      hearing to address issues of Kessler’s visitation and parenting time with their

      child, C.W. Later that night, Kessler and his wife, Crystal, were inside their

      mobile home when Crystal heard someone open a gate in their front yard.

      Kessler was about to open the front door when Eastwood, Anastacia’s husband,

      kicked it open and entered the home. Eastwood was wielding a knife, and he

      said, “[N]ow you meet me, mother****er, you’re going to die and you’ll never

      see [C.W.]” Tr. Vol. I at 182. Kessler tried to close the door, but Eastwood

      forced his way through the door and began stabbing Kessler multiple times.

      Kessler’s wife, Crystal, intervened and struck Eastwood with a plunger handle,

      but Eastwood chased her outside, where she fell to the ground. Eastwood cut

      her wrist and hand as she held her hands up in a defensive posture. Eastwood


      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 2 of 7
      then fled the scene, but, as he ran away, he told Crystal that “if he didn’t get

      [them] now he was going to come back and kill them both because [they]

      weren’t ever allowed to see [C.W.] again.” Id. at 205. Kessler’s wounds were

      severe, and he and Crystal applied tourniquets in an effort to stanch the

      bleeding while they waited for emergency medical technicians to arrive.


[4]   Eastwood then drove himself to the home of Anastacia’s grandparents, Randall

      and Patricia Williams, in Kentucky. When he arrived there at approximately

      2:00 a.m., he was crying and told Patricia “that he messed up.” Id. at 233.

      Eastwood told Patricia that he and Kessler “got into a fight.” Id. at 234.

      Patricia drove Eastwood back to Evansville and, when they arrived at the police

      station, Eastwood told Patricia that he had stabbed Kessler. Eastwood then

      turned himself into the police.


[5]   The State charged Eastwood with attempted murder, burglary, and battery. At

      his trial, during voir dire, the prosecutor asked a prospective juror who had

      been the victim of a burglary this question: “If you were called to give an initial

      statement or even maybe testify in trial would you [have] gone and testif[ied]

      about what you saw and what you observed?” Id. at 41. When the prospective

      juror responded yes, the prosecutor asked him why, and the prospective juror

      said, “To see if the right person who did it was prosecuted.” Id. The prosecutor

      then said, “Right because we don’t (inaudible) that’s not what we do.” Id.

      Defense counsel then asked to approach the bench.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 3 of 7
[6]   During the ensuing side bar conference, defense counsel said, “That last

      comment was probably a little bit over the line on, he said we don’t want to get

      the wrong guy, he is kind of intervening [sic] that he has some superior

      knowledge here and he can’t prosecute that portion. I think that is what he

      said.” Id. at 42. The prosecutor responded, “I mean I’m the first one to say it,

      we should prove our case beyond a reasonable doubt, and we should bring the

      right person. I’m not insinuating anything.” Id. Defense counsel moved for a

      mistrial and said, “I just think that his comment crossed the line as to personal

      vouching as to the strength of his personal belief and the State’s case which is

      not (inaudible).” Id. The trial court then said, “I think you are taking it

      differently than I took it” and “He is saying they are not out to get the wrong

      guy.” Id. at 43. The court denied the motion for mistrial and, when defense

      counsel asked for an admonishment, the court said, “I’m hesitant to even go

      back and make a big deal out [of] what he said because I think we might take

      something that is really innocuous and make it an issue.” Id. Accordingly, the

      trial court did not admonish the prospective jurors.


[7]   The jury found Eastwood guilty of attempted murder and battery, but acquitted

      him of burglary. The trial court entered judgment and sentenced Eastwood to

      the advisory sentence of thirty years for attempted murder and the advisory

      sentence of three years for battery, and the court ordered those sentences to run

      concurrently. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 4 of 7
                                    Discussion and Decision
                                          Issue One: Voir Dire

[8]   Eastwood first contends that the trial court abused its discretion when it denied

      his request for an admonishment during voir dire. Trial court decisions

      regarding admonishments to the jury are reviewed only for an abuse of

      discretion. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998). An abuse of

      discretion exists where the decision is clearly against the logic and effect of the

      facts and circumstances. Id.


[9]   Eastwood maintains that the prosecutor’s comment during voir dire “was

      vouching for the credibility of his case by responding to the prospective juror’s

      answer and suggesting that he would not prosecute the wrong person

      “because . . . that’s not what we do.” Appellant’s Br. at 9. But we agree with

      the State that, both because the prosecutor’s statement was only partially

      transcribed and because the trial court reasonably interpreted the statement to

      mean that “they are not out to get the wrong guy,” Eastwood cannot show an

      abuse of discretion on this issue. Tr. Vol. I at 43. In any event, in light of the

      abundant evidence of Eastwood’s guilt, including Eastwood’s own statements

      to the Williamses in the aftermath of the offenses, if there were any error in the

      trial court’s failure to admonish the prospective jurors it would be harmless.

      Ind. Appellate Rule 66(A).




      Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 5 of 7
                                            Issue Two: Sentence

[10]   Eastwood next contends that his sentence is inappropriate in light of the nature

       of the offenses and his character. As we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “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.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[11]   Eastwood asserts that the concurrent advisory sentences are inappropriate in

       light of the nature of the offenses because they “stemmed from prior stress and

       frustration concerning C.W. and parenting time” and he immediately admitted

       his guilt and apologized. Appellant’s Br. at 10. And Eastwood maintains that

       his sentence is inappropriate in light of his character because he is employed,

       attends community college, and has an “active and positive influence on his

       young children.” Id. at 11. We cannot agree.


[12]   Regarding the nature of the offenses, reacting to Kessler’s desire to spend more

       time with C.W., Eastwood repeatedly threatened to kill Kessler while he

       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 6 of 7
       stabbed him multiple times, and he threatened to kill Crystal after she

       intervened to save Kessler from further injury. Eastwood left Kessler lying in a

       pool of blood, reiterated his threat to kill Kessler as he fled, and drove to

       Kentucky. Eastwood had “punctured the sac around [Kessler’s] spinal cord

       and it got infected,” so Kessler required surgery one month later. Tr. Vol. 1 at

       185. Regarding his character, while we commend Eastwood for his work ethic,

       pursuit of higher education, and dedication to family, his criminal history

       consists of three prior felonies, including battery against a law enforcement

       officer, and two misdemeanors. And we note that, because there were two

       victims here, the trial court had discretion to impose consecutive sentences. We

       cannot say that the concurrent advisory sentences are inappropriate in light of

       the nature of Eastwood’s offenses and his character and, thus, we affirm his

       sentence.


[13]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1611-CR-2506 | May 11, 2017   Page 7 of 7
