MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Oct 26 2016, 8:56 am
this Memorandum Decision shall not be
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
Amber M. Neal                                             Gregory F. Zoeller
Muncie, Indiana                                           Attorney General of Indiana

                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA
Brian L. Blevins, Sr.,                                    October 26, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A05-1603-CR-714
        v.                                                Appeal from the Delaware Circuit
                                                          Court
State of Indiana,                                         The Honorable Linda Ralu Wolf,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          18C03-1304-FA-03



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016       Page 1 of 10
                                              Case Summary
[1]   Brian L. Blevins, Sr., appeals his conviction for class A felony conspiracy to

      commit murder following a jury trial. He contends that the evidence is

      insufficient to support his conviction and that the forty-year sentence imposed

      by the trial court is inappropriate in light of the nature of the offense and his

      character. Finding the evidence sufficient and that Blevins has not met his

      burden to demonstrate that his sentence is inappropriate, we affirm.


                                  Facts and Procedural History
[2]   In February 2013, Billy Hartman’s residence in Eaton was burglarized.

      Approximately $30,400 in cash was taken from a safe in the home and several

      firearms were stolen. Blevins was arrested for that crime, booked into the

      Delaware County Jail, and placed in cell block D. While in jail, Blevins

      became acquainted with Jeffrey Markham, who had been arrested a few

      months earlier for battery with a deadly weapon and had also been placed in

      cell block D.


[3]   Blevins and Markham spent a considerable amount of time talking in order to

      “pass the time.” Tr. at 119. Markham told Blevins that he hoped to get a job

      driving taxi cabs in Muncie when he was released from jail. Blevins told

      Markham that he knew a guy that owned a taxi cab company in Muncie “that

      always carried a lot of money and what an easy mark he would be to rob.” Id.

      at 121. While Blevins talked about robbery at first, his focus quickly turned to

      murder. Blevins explained to Markham about how the cab company owner


      Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 2 of 10
      “was a pretty large fella, you’d have to subdue him somehow and then that

      progressed [to] … you’d have to kill the man.” Id. Blevins discussed with

      Markham how Markham could accomplish a robbery, and the plan went from

      Markham shooting the owner “in the leg” to subdue him, to shooting him “in

      the head.” Id. at 122. Blevins eventually told Markham that the name of the

      intended victim was Billy Hartman, the individual whose home Blevins had

      recently been arrested for burglarizing. Blevins told Markham that he would

      probably need to kill Hartman, his wife, and his seven-year-old granddaughter

      who lived in the home as well.

[4]   Over the next month, Blevins continued to try to enlist Markham’s help to rob

      and murder Hartman. He gave several handwritten notes to Markham stating

      that he was “dead serious” about wanting Markham to help him. State’s Ex. 5.

      He told Markham that Markham would have to be “ruthless most likely” and

      stated, “[I] don’t care if you got to take out the whole family LOL.” State’s

      Exs. 3, 5. In one note, Blevins questioned Markham’s desire to participate in

      the crimes and asked Markham for assurances that he wasn’t going to “screw”

      Blevins. State’s Ex. 2. Blevins told Markham that he had found someone else

      in the jail that would commit the crimes if Markham would not, but told

      Markham that he just “felt better” about Markham doing it. Id. Markham

      responded to the note, reassuring Blevins “I AM REAL!!! Not my 1st Rodeo.”

      Id.


[5]   Once Blevins was satisfied that Markham had agreed to participate in the

      crimes, Blevins told him that he would call his parents so that they would come

      Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 3 of 10
      post bail for Markham. Blevins told Markham that on the night of his release,

      he should go straight to Hartman’s residence and kill him and his family.

      Blevins instructed Markham to then come back and stand outside the jail at

      midnight and signal Blevins with a “thumbs up that the job was done.” Tr. at

      133. Blevins told Markham that his “cut was going to be a third” of whatever

      money was stolen, but instructed him that he would need to give some of the

      money to Blevins’s parents and that he should give the rest to Blevins’s

      girlfriend to hold until Blevins was released from jail. Id. at 125. Blevins said

      he would “divvy up the funds” with Markham after his release. Id.                        Blevins

      drew Markham a map to show him exactly where Hartman lived in Eaton.

      State’s Ex. 1.

[6]   On April 3, 2013, Markham decided that he wanted no part in Blevins’s plan,

      so he informed guards at the jail that he needed to talk to someone. Markham

      met with Delaware County Sheriff’s Investigator Kurt Walthour and told him

      what Blevins was planning. Investigator Walthour wired Markham with a

      recording device and sent him back to cell block D. Markham and Blevins

      continued to discuss the details of the plan, including how Markham would

      enter Hartman’s residence and kill Hartman and his family. State’s Ex. 6 & 7.

      Markham asked Blevins numerous times whether he was sure that he wanted

      “them all dead.” Tr. at 151. “Every single time, without fail, [Blevins] said yes

      ….” Id. Later that day, Blevins called his father from the jail, and on April 4,

      2013, Blevins’s father posted bail for Markham.




      Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016     Page 4 of 10
[7]   The State charged Blevins with class A felony conspiracy to commit murder.

      Following a trial, the jury found Blevins guilty as charged. The trial court

      imposed a forty-year sentence. This appeal ensued.


                                      Discussion and Decision

           Section 1 – The evidence is sufficient to support Blevins’s
                                 conviction.
[8]   Blevins first contends that the State presented insufficient evidence to support

      his conviction. When reviewing a claim of insufficient evidence, we neither

      reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

      499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

      therefrom that support the verdict and will affirm if there is probative evidence

      from which a reasonable factfinder could have found the defendant guilty

      beyond a reasonable doubt. Id. In short, if the testimony believed by the trier

      of fact is enough to support the verdict, then the reviewing court will not disturb

      the conviction. Id. at 500.


[9]   The charging information here provided as follows:

              The undersigned says that between March 1, 2013, and April 4,
              2013, in Delaware County, State of Indiana, Brian Lee Blevins
              Sr. did knowingly agree with another person or persons, to-wit:
              Jeff Markham or other unnamed co-conspirators, to commit the
              crime of murder, and either Blevins or the other person or
              persons with whom he agreed did perform one or more overt acts
              in furtherance of the agreement, to-wit:
                     1. exchange handwritten notes;
                     2. drew a map;

      Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 5 of 10
                        3. possessed a map;
                        4. called Ovia Blevins;
                        5. made arrangements to bail Jeff Markham out of jail,
                        contrary to the form of the statutes in such cases made and
                        provided by I.C. 35-42-1-1(1) and I.C. 35-41-5-2 and
                        against the peace and dignity of the State of Indiana.


       Appellant’s App. Vol. II at 21. Indiana Code Section 35-41-5-2 provides in

       relevant part,


               (a) A person conspires to commit a felony when, with intent to
               commit the felony, he agrees with another person to commit the
               felony. A conspiracy to commit a felony is a felony of the same
               class as the underlying felony. However, a conspiracy to commit
               murder is a Class A felony.

               (b) The state must allege and prove that either the person or
               person with whom he agreed performed an overt act in
               furtherance of the agreement.


       Further, Indiana Code Section 35-42-1-1 provides that a person who

       “knowingly or intentionally kills another human being … commits murder, a

       felony.”


[10]   Accordingly, to convict Blevins of conspiracy to commit murder, the State had

       to prove beyond a reasonable doubt that Blevins, (1) with the intent to commit

       murder, (2) agreed with Markham to commit murder, and (3) either Blevins or

       Markham performed an overt act in furtherance of the agreement. See Ind.

       Code § 35-41-5-2. The State need not “present direct evidence of a formal

       express agreement. The agreement as well as the requisite guilty knowledge and


       Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 6 of 10
       intent may be inferred from circumstantial evidence alone, including overt acts

       of the parties in pursuance of the criminal act.” Erkins v. State, 13 N.E.3d 400,

       407 (Ind. 2014) (citation omitted).

[11]   Here, Markham gave detailed testimony regarding his agreement with Blevins

       to rob and murder Hartman, and the numerous overt acts that they each

       performed in furtherance of that agreement, including the exchange of

       handwritten notes, a map drawn by Blevins with directions to Hartman’s

       residence, and Blevins’s call to his father to arrange to have Markham bailed

       out of jail. Blevins concedes that there was sufficient evidence to establish that

       he conspired with Markham to commit robbery or burglary, but maintains that

       there was insufficient evidence that he conspired to commit murder.

       Essentially, Blevins contends that the plan to commit murder was Markham’s

       plan alone. Blevins’s argument is merely a request for this Court to reweigh the

       evidence and reassess witness credibility, which we cannot do. In short, based

       upon Markham’s unequivocal testimony and the circumstantial evidence

       presented, a reasonable factfinder could have found Blevins guilty beyond a

       reasonable doubt of conspiracy to commit murder. The evidence is sufficient to

       support his conviction.


       Section 2 – Blevins has not met his burden to demonstrate that
                        his sentence is inappropriate.
[12]   Blevins next claims that his sentence is inappropriate and invites this Court to

       reduce his sentence pursuant to Indiana Appellate Rule 7(B) which provides

       that we may revise a sentence authorized by statute if, after due consideration

       Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 7 of 10
       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.


[13]   Regarding the nature of the offenses, 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 class A felony is between twenty and fifty years, with an advisory sentence

       of thirty years. Ind. Code § 35-50-2-4. The trial court here imposed an

       aggravated sentence of forty years.


[14]   As for the nature of the offense, the evidence indicates that Blevins sought out

       Markham to enlist his help with the plan to rob and murder Hartman. Blevins

       worked hard to cultivate a relationship with Markham and then, for more than

       a month, continued to plan with and instruct Markham on how to carry out the

       scheme. The plan included the murder of not just Hartman, but his whole

       Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 8 of 10
       family if necessary. Blevins’s apparent motive was pure greed, and perhaps the

       desire to eliminate Hartman as the main witness against him in a pending case.

       Nothing about the nature of this offense warrants a reduction in Blevins’s forty-

       year sentence.


[15]   Blevins does not fare much better regarding his character. When considering

       the character of the offender, one relevant consideration is the defendant’s

       criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).

       Blevins has a moderately lengthy criminal history consisting of both felony and

       misdemeanor convictions involving crimes of violence. Indeed, he was in jail

       and on probation for a felony conviction when he committed the instant

       offense. Blevins’s history demonstrates his utter disdain for the law and does

       not reflect favorably upon his character. Moreover, Blevins was clearly the

       principal in this serious crime and was calling all the shots. While Blevins

       attempts to excuse his past and present behavior by pointing to his longstanding

       untreated substance abuse problem, we defer to the trial court’s decision to

       attribute minimal mitigating weight to this circumstance. Blevins has not

       persuaded us that a sentence reduction is warranted based upon his character.


[16]   In sum, the State presented sufficient evidence to support Blevins’s conviction,

       and he has not met his burden to establish that the forty-year sentence imposed

       by the trial court is inappropriate. We therefore affirm his conviction and

       sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 9 of 10
[17]   Affirmed


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A05-1603-CR-714 | October 26, 2016   Page 10 of 10
