MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing                              Sep 06 2019, 8:48 am

the defense of res judicata, collateral                                        CLERK
estoppel, or the law of the case.                                          Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Dwayne Lee, Jr.,                                 September 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-502
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1712-F4-48817



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019                   Page 1 of 9
                                             Case Summary
[1]   Kenneth Dwayne Lee, Jr., appeals the twelve-year sentence imposed by the trial

      court following his conviction for level 4 felony unlawful possession of a

      firearm by a serious violent felon. He asserts that the trial court abused its

      discretion during sentencing and that his sentence is inappropriate in light of the

      nature of the offense and his character. Finding no abuse of discretion and

      concluding that Lee has not met his burden to establish that his sentence is

      inappropriate, we affirm.


                                 Facts and Procedural History
[2]   On December 20, 2017, Indianapolis Metropolitan Police Department Officers

      Ryan Enochs and Mark Klonne were patrolling the area around 36th Street and

      Sherman Drive. At approximately 10:55 p.m., a vehicle “cut [them] off” and

      then immediately made a left turn without signaling. Tr. Vol. 2 at 26. The

      officers activated the emergency lights on their police cruiser and initiated a

      traffic stop.


[3]   Officer Enochs approached the front driver’s side of the vehicle while Officer

      Klonne stood by the back passenger side of the vehicle. Officer Enochs asked

      for license and registration information from the driver, and then also asked the

      passenger, later identified as Lee, for his identification because he was not

      wearing a seatbelt. Lee refused to provide any identification to Officer Enochs,

      simply telling him “not to worry about it.” Id. at 31. Officer Enochs walked

      back to Officer Klonne to discuss how to proceed. As the officers spoke, Lee


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 2 of 9
      opened the passenger door of the vehicle and fled from the vehicle into an open

      field.


[4]   Officer Enochs chased after Lee. Officer Enochs could see with his flashlight

      that Lee was grabbing at the waistband of his pants as he ran. As Lee

      continued to run, Officer Enochs saw him again grab at his waistband, and

      Officer Enochs observed the wooden handle of what he believed to be a

      handgun that Lee was grabbing for. “At that point, [Lee’s] pants fell down

      about mid-knee [and] [h]e fell face first onto the ground and then [a] revolver

      came flying out.” Id. at 34. Officer Enochs drew his handgun and ordered Lee

      to stay on the ground. Lee ignored this command and got up and “attempted

      to flee again. He started to crawl and then run.” Id. at 35. His drooping pants

      quickly caused him to fall again, and at this point Officer Enochs put his

      handgun away, drew his taser, and ordered Lee to stay on the ground with his

      hands behind his back.1 Lee complied with this order and was handcuffed.

      Officers subsequently discovered that Lee had an outstanding arrest warrant

      and was on probation.


[5]   While incarcerated at the Marion County Jail, Lee made a phone call to a

      person identified as C.P. Lee discussed the incident surrounding his arrest.




      1
        Officer Enochs stated that he put his handgun away and drew his taser because Lee’s second fall was far
      enough away from Lee’s discarded revolver that “it was no longer a deadly force encounter” and so “a more
      intermediate weapon such as a taser” was appropriate. Tr. Vol. 2 at 35.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019               Page 3 of 9
      During the conversation, C.P. asked Lee, “Why you didn’t throw it?” State’s

      Ex. 12. Lee responded, “I did … I did, yea.” Id.


[6]   The State charged Lee with level 4 felony unlawful possession of a firearm by a

      serious violent felon, class A misdemeanor carrying a handgun without a

      license, and class A misdemeanor resisting law enforcement. The State also

      alleged that Lee was a habitual offender. The State subsequently dismissed the

      two class A misdemeanor charges. Following a trial, the jury found Lee guilty

      of unlawful possession of a firearm but not guilty of being a habitual offender.

      The trial court imposed a twelve-year executed sentence. This appeal ensued.


                                     Discussion and Decision

       Section 1 – The trial court did not abuse its discretion during
                                sentencing.
[7]   Lee first asserts that the trial court abused its discretion during sentencing.

      Specifically, Lee complains that the trial judge made comments on the record

      indicating her disagreement with the jury’s decision to find him not guilty of

      being a habitual offender. Lee posits that the trial judge’s statements indicate

      that her decision to impose the maximum twelve-year sentence for his level 4

      felony was improperly influenced by the jury’s acquittal on the habitual

      offender charge. We disagree.


[8]   During sentencing, after finding several aggravating circumstances including

      Lee’s long history of illegal substance abuse, his extensive criminal history, and



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 4 of 9
his many prior revocations of probation, the trial judge acknowledged that Lee

definitely had the support of his family. The judge explained,


        [Y]our family has not turned their back on you, right? They’ve
        been there for you and they’re going to still be there for you. So I
        recognize that and I think that’s a right thing. That’s something
        that I wish everybody could have.

        I think that your family’s prayers were answered in the [jury’s]
        verdict in this finding you not to be [a] habitual offender. And
        I—I can only assume that God knows much better than I could
        know, right? Because clearly, you were eligible to be treated as a
        habitual offender. And they found that you had the two prior
        felonies that were alleged in the—in the trial. But I think that
        somehow it was some divine intervention. Probably from the
        prayers of your family that you were—that you were spared that
        extra 20 years on your sentence because you would have gotten
        the full boat, right? It would have been the 32-year sentence. And
        that’s pretty much what you would have expected.

        But what you have instead is this history of criminal behavior
        and failures on pre-trial release, etcetera, that make it very
        difficult for me to place you there, place you back in the
        community on different kinds of supervision, because none of
        that’s really worked for you in the past. You know, I pray that it
        will work for you sometime in the future, but I’m not going to do
        that. I’m going to do a DOC sentence. And its hard to tell you,
        but it will be 12 years.

        So you know, I think that’s … I think it’s the right thing to do. It
        is not the 32 years that you would have got if they had come back
        differently. Your history is one that requires that I be able to
        answer to the community as well as to you and your family. And
        I’m going to honor your criminal history by this, because this is
        an aggravated sentence and I think it’s right.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 5 of 9
       Tr. Vol. 2 at 216-17.


[9]    Contrary to Lee’s claims, this case is not akin to cases in which our appellate

       courts have found that the trial court’s statements on the record demonstrate

       that the court invaded the province of the jury and improperly enhanced a

       sentence to compensate for what the court believed to be an erroneous jury

       verdict. See, e.g., Hammons v. State, 493 N.E.2d 1250, 1253 (Ind. 1986); Gambill

       v. State, 436 N.E.2d 301, 305 (Ind. 1982); Phelps v. State, 24 N.E.3d 525, 528

       (Ind. Ct. App 2015). Rather, this case is more akin to one in which the judge’s

       statements indicate that the judge merely “entertain[ed] a degree of skepticism”

       of the jury verdict based upon the evidence presented at trial. See, e.g., Wilson v.

       State, 458 N.E.2d 654, 656 (Ind. 1984).


[10]   Here, the trial judge did not blatantly express that she thought the jury’s

       habitual offender determination was improper or erroneous or that she was

       resolutely opposed to the verdict. She simply observed that Lee could have

       received a thirty-two-year sentence had the jury found differently on the

       habitual offender charge. The judge then went on to explain that the maximum

       sentence of twelve years for the level 4 felony was more than justified based

       upon Lee’s extensive criminal history and multiple probation violations. Under

       the circumstances, we do not think the trial court’s imposition of a twelve-year

       sentence was “a direct consequence of the trial court’s outspoken disagreement”

       with the jury’s habitual offender determination or that an enhanced sentence in

       this case should be viewed as otherwise “suspect.” Phelps, 24 N.E.3d at 529.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 6 of 9
       Therefore, we conclude that the trial court did not abuse its discretion during

       sentencing.


       Section 2 – Lee has not met his burden to demonstrate that his
        sentence is inappropriate in light of the nature of his offense
                              or his character.
[11]   Lee next requests that we reduce the twelve-year sentence imposed by the trial

       court pursuant to Indiana Appellate Rule 7(B), which provides that we may

       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.” The defendant bears the

       burden to persuade this Court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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). The principal

       role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

       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 under Appellate Rule 7(B) is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

       Ct. App. 2007).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 7 of 9
[12]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for a level 4 felony is between two and twelve years, with an advisory sentence

       of six years. Ind. Code § 35-50-2-5.5. As stated above, the trial court here

       imposed the maximum twelve-year sentence.


[13]   When reviewing the nature of the offense, this Court considers “the details and

       circumstances of the commission of the offense.” Washington v. State, 940

       N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Lee argues that the facts

       and circumstances surrounding his possession of a firearm offense “are not

       particularly egregious.” Appellant’s Br. at 19. We disagree, as the evidence

       presented at trial demonstrates much more than a run-of-the-mill case where a

       serious violent felon is found to be in possession of a firearm. Lee fled the scene

       of a valid traffic stop and, as he fled, was grabbing at the loaded handgun in his

       possession. He then tripped and fell, but then got up and fled again, ignoring a

       clear law enforcement command to stop. There was also evidence that Lee

       attempted to rid himself of the incriminating handgun during the chase. It was

       only after Lee tripped and fell a second time, and an officer drew his taser, that

       Lee finally became compliant. Lee has not persuaded us that sentence revision

       is warranted based on the nature of this offense.


[14]   Lee fares no better when we consider his character. The character of the

       offender is found in what we learn of the offender’s life and conduct. Croy v.

       State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 8 of 9
       a review of an offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251

       (Ind. Ct. App. 2015), trans. denied (2016). Lee’s criminal history includes seven

       prior felony and six prior misdemeanor convictions, as well as countless arrests

       both as an adult and a juvenile. While previously incarcerated, Lee amassed at

       least forty-six conduct reports. When previously granted the grace of probation

       or alternative placement, Lee violated the terms and had his probation or

       placement revoked. Lee has demonstrated a continued disregard for authority

       and a complete unwillingness to conform his conduct to the law, and although

       he blames his struggles with substance abuse for his behavior, nothing about his

       character inspires us to reduce his sentence. In sum, he has not met his burden

       to demonstrate that his sentence is inappropriate in light of the nature of the

       offense or his character. We therefore affirm the twelve-year sentence imposed

       by the trial court.


[15]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-502 | September 6, 2019   Page 9 of 9
