      MEMORANDUM DECISION
                                                                           Jul 15 2015, 8:49 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      R. Patrick Magrath                                        Gregory F. Zoeller
      Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
      Madison, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James D. Sowder,                                          July 15, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                40A05-1409-CR-454
              v.                                                Appeal from the Jennings Circuit
                                                                Court
      State of Indiana,                                         The Honorable Jon W. Webster,
                                                                Judge
      Appellee-Plaintiff
                                                                Case No. 40C01-1208-MR-1




      Crone, Judge.


                                               Case Summary
[1]   James D. Sowder appeals the trial court’s judgment following his convictions

      and seventy-year aggregate sentence for class A felony voluntary manslaughter,

      class A felony burglary, class C felony intimidation, class D felony criminal

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015         Page 1 of 15
      recklessness, and class A misdemeanor carrying a handgun without a license.

      We address five issues presented for our review: (1) whether the State presented

      sufficient evidence to support Sowder’s burglary conviction; (2) whether his

      burglary conviction violates principles of double jeopardy because he was

      acquitted of residential entry; (3) whether his burglary conviction violates

      double jeopardy principles because the same evidence used to enhance the

      conviction to a class A felony was used to support the criminal recklessness

      conviction; (4) whether the trial court abused its discretion in considering an

      aggravating factor at sentencing; and (5) whether his sentence is inappropriate

      in light of the nature of the offenses and his character. We conclude as follows:

      (1) the evidence presented was sufficient; (2) the first double jeopardy argument

      is an impermissible claim of inconsistent jury verdicts; (3) the burglary

      enhancement violates double jeopardy principles vis-à-vis the criminal

      recklessness conviction; (4) the trial court did not abuse its discretion; and (5)

      Sowder failed to show that his sentence is inappropriate. Therefore, we vacate

      his criminal recklessness conviction on double jeopardy grounds, but affirm his

      remaining convictions and sentence.


                                  Facts and Procedural History
[2]   Sowder and his ex-wife, Candice Sowder, had been divorced since 2001 but

      maintained an on-again, off-again relationship in the years that followed. In

      July of 2012, Sowder was living in Seymour, Jackson County, and Candice was

      living in North Vernon, Jennings County. Candice’s adult daughter, Regina



      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 2 of 15
      Johnson, and Regina’s boyfriend, John Charles, lived with Candice. Sowder

      still had strong feelings for Candice, including jealousy.


[3]   On July 25, 2012, Sowder received an explicit text message from Candice’s

      phone describing Candice’s sexual encounters with Regina’s boyfriend, John.

      Although the text was sent from Candice’s phone, it was actually authored and

      sent by Regina. On July 29, 2012, Sowder was still upset by the text and called

      his brother, Lester Sowder, to vent. Sowder accused Regina of sending the text

      and said that he should kill Candice. Lester told Sowder to move on, and from

      that point Sowder considered himself split up from Candice.


[4]   Meanwhile, Candice had invited her grandson, Josh Johnson, and Josh’s four

      friends over to swim and have drinks by her pool. Candice, Josh, and Josh’s

      friends left the house after dinner and drove to visit a friend of Candice. Regina

      and John stayed at home and went to sleep in their shared bedroom. Shortly

      thereafter, Sowder walked into Regina and John’s bedroom demanding to

      know Candice’s whereabouts. Sowder had driven from his house in Seymour to

      Candice’s house in North Vernon and entered the house uninvited, without a

      key. Sowder punched Regina in the face, and in retaliation, John picked up a

      lamp and swung it at Sowder. Sowder repeatedly said, “[I]t all ends tonight.”

      Tr. at 529. Sowder struck Regina two more times before leaving the bedroom.

      Once he exited, John called 911.


[5]   Shortly thereafter, Candice, Josh, and Josh’s friends returned to the house and

      pulled into the driveway. When Candice saw Sowder’s vehicle parked at her


      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 3 of 15
      house, she wondered aloud why he was there and said that he needed to leave.

      Candice encountered Sowder on her front deck and told him to “get the f**k

      out of here.” Id. at 440. Sowder walked past Candice to his vehicle and

      retrieved a handgun. He walked back up to the deck with his gun and said,

      “[T]his all ends tonight, mother f**kers.” Id. at 463, 481, 514. Candice opened

      the front door of the house, and Sowder immediately grabbed her and pulled

      her back onto the deck. Sowder held his gun to Candice’s head and pulled the

      trigger, killing her.


[6]   Sowder then re-entered the house and rammed against Regina and John’s

      bedroom door, which they were bracing to hold shut. Sowder broke the door off

      its hinges and entered the bedroom. He told Regina that he had killed her

      mother and was going to kill her next. Sowder raised his gun to Regina’s face

      and fired. The bullet grazed Regina’s skull, and she fell to the floor, bleeding.

      Sowder left the house, and police stopped his vehicle nearby. A .38 caliber

      revolver was found on the front passenger seat. Police found Candice’s body on

      the front deck of her home. Regina was admitted to an Indianapolis hospital for

      observation, and while the gunshot wound did cause bodily injury, her treating

      physician reported that it did not cause a substantial risk of death.


[7]   The State charged Sowder with the murder of Candice, class A felony

      attempted murder of Regina, class B felony aggravated battery of Regina, class

      A felony burglary resulting in bodily injury to Regina, class D felony residential

      entry, class C felony intimidation of Regina, class C felony intimidation of

      John, class A misdemeanor criminal trespass, and class A misdemeanor

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 4 of 15
      carrying a handgun without a license. The trial court granted Sowder’s motion

      for directed verdict and dismissed the aggravated battery charge on grounds of

      insufficient evidence. The jury convicted Sowder of class A felony voluntary

      manslaughter as a lesser included offense of murder; class D felony criminal

      recklessness while armed with a deadly weapon as a lesser included offense of

      attempted murder; class A felony burglary resulting in bodily injury; class C

      felony intimidation of Regina; and class A misdemeanor carrying a handgun

      without a license. The jury found Sowder not guilty of class D felony residential

      entry and class C felony intimidation of John. The trial court vacated the jury’s

      guilty verdict for criminal trespass due to double jeopardy concerns vis-à-vis the

      burglary conviction.


[8]   Sowder was sentenced to thirty-five years for voluntary manslaughter, a

      consecutive term of thirty-five years for burglary, and concurrent terms of six

      years for intimidation, two and one-half years for criminal recklessness, and one

      year for carrying a handgun without a license, resulting in an aggregate seventy-

      year sentence. This appeal ensued.


                                     Discussion and Decision

      Section 1— The State presented sufficient evidence to support
       Sowder’s burglary conviction because it was not required to
             prove the completion of the underlying felonies.
[9]   Burglary is the breaking and entering of a building or structure of another

      person with the intent to commit a specific felony therein. Ind. Code § 35-43-2-1

      (2012). The State alleged that Sowder committed burglary by breaking and

      Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 5 of 15
       entering Candice’s house with the intent to commit aggravated battery or

       murder upon Regina. Appellant’s App. at 36. Sowder argues that because the

       State failed to prove that he committed aggravated battery or murder upon

       Regina, there was insufficient evidence to convict him of burglary. Sowder’s

       argument misunderstands Indiana law. The burglary statute requires an intent to

       commit a specific underlying felony. It does not require actual completion of

       the underlying felony. See Swaynie v. State, 762 N.E.2d 112, 114 (Ind. 2002)

       (holding that burglary is a separate offense from the predicate intended felony).

       “The person’s culpability is established at the point of entry regardless of

       whether the underlying intended felony is ever completed.” Id.


[10]   When reviewing the sufficiency of the evidence to support a conviction, we

       examine only the probative evidence and reasonable inferences that support the

       verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We do not assess

       witness credibility or reweigh evidence. Id. Rather, we consider only the

       evidence most favorable to the verdict and will affirm the conviction unless no

       reasonable factfinder could find the elements of the crime proven beyond a

       reasonable doubt. Id.


[11]   To sustain a conviction for burglary, the State needed to prove that Sowder

       broke and entered Regina’s house with the intent to commit the felonies of

       murder or aggravated battery against her. The State did not need to prove that

       Sowder killed Regina, that he attempted to kill her, or that she suffered a degree

       of injury rising to the level of aggravated battery. The evidence that Sowder,

       after killing Candice, re-entered the house while armed, threatened to kill

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 6 of 15
       Regina, and then fired his gun at her head is sufficient to support his burglary

       conviction. The jury could reasonably infer from this evidence that Sowder re-

       entered the house with his gun because he intended, at the moment of entry, to

       commit murder or aggravated battery against Regina.


             Section 2— Sowder’s claim that his burglary conviction
           violates double jeopardy principles because he was acquitted
              of residential entry is really an impermissible claim of
                             inconsistent jury verdicts.
[12]   A person who knowingly or intentionally breaks and enters the dwelling of

       another person commits residential entry. Ind. Code § 35-43-2-1.5. Sowder

       asserts that his acquittal of residential entry requires that his burglary conviction

       be vacated on double jeopardy grounds. We agree with the State that Sowder’s

       argument is really an impermissible claim of inconsistent jury verdicts. 1

       Jury verdicts in criminal cases are not subject to appellate review on grounds

       that they are inconsistent, contradictory, or irreconcilable. Beattie v. State, 924

       N.E.2d 643, 649 (Ind. 2010). A ‘“criminal defendant convicted by a jury on one

       count [cannot] attack that conviction because it was inconsistent with the jury’s

       verdict of acquittal on another count.’” Id. at 645 (quoting United States v.

       Powell, 469 U.S. 57, 58 (1984)).




       1
         We are unpersuaded by Sowder’s reliance on Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013), which
       involved “acquittal on one offense and retrial on another offense,” not an acquittal on one offense and a
       conviction on another offense, which happened in this case.

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015               Page 7 of 15
[13]   In Beattie, the defendant was convicted of possession of cocaine within 1000 feet

       of a family housing complex yet acquitted of possession of cocaine. Id. at 644.

       Our supreme court held that the jury’s acquittal on the lesser included charge

       did not require the vacation of the jury’s guilty verdict on the greater charge. Id.

       at 649. Similarly, the jury’s acquittal on the lesser included charge of residential

       entry in this case does not require the vacation of the jury’s verdict on the

       greater charge of burglary.


       Section 3—The enhancement of Sowder’s burglary conviction
       violates double jeopardy principles because the same evidence
          used to enhance the conviction was used to support the
                     criminal recklessness conviction.
[14]   Sowder’s second double jeopardy argument asserts that enhancing his burglary

       conviction to a class A felony violated double jeopardy principles because the

       same facts were used to support his criminal recklessness conviction. 2 The

       punishment classification of certain crimes may be enhanced if the behavior

       which constitutes the crime is accompanied by certain specified additional

       behavior or causes certain specified additional harm. McCann v. State, 854

       N.E.2d 905, 914 (Ind. Ct. App. 2006). In situations where a defendant has been

       convicted of one crime for engaging in the specified additional behavior or




       2
        The State asserts that Sowder waived this argument because he did not “develop or clarify the legal basis for
       his argument” and thus “failed to make a cogent argument as required by Ind. Appellate Rule 46(A)(8)(a).”
       Appellee’s Br. at 14 n. 9. The State’s argument is well taken, but we prefer to address arguments on the merits
       and exercise our discretion to do so here.

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015               Page 8 of 15
       causing the specified additional harm, that behavior or harm cannot also be

       used as an enhancement of a separate crime. Id.

               When two convictions are found to contravene double jeopardy
               principles, a reviewing court may remedy the violation by reducing
               either conviction to a less serious form of the same offense if doing so
               will eliminate the violation. In the alternative, a reviewing court may
               vacate one of the convictions to eliminate a double jeopardy violation.
               In making that determination, we must be mindful of the penal
               consequences that the trial court found appropriate.
       Id. at 915.


[15]   In McCann, we found that the enhancement of a burglary conviction was

       improper where the defendant was convicted of A felony burglary, enhanced

       due to shooting the victim, and attempted murder, wherein an essential element

       was shooting the victim. Id. at 912. We held that because the same evidence

       was used to support the conviction for attempted murder and the enhancement

       of the burglary conviction, the enhancement should not stand. Id. at 914.


[16]   Here, Sowder was convicted of burglary and criminal recklessness. A person

       who breaks and enters the building or structure of another person, with intent to

       commit a felony in it, commits class C felony burglary. Ind. Code § 35-43-2-1.

       Burglary may be enhanced to a class B felony if it is committed while armed

       with a deadly weapon and to a class A felony if it results in bodily injury or

       serious bodily injury to any person other than the defendant. Id. A person who

       recklessly, knowingly, or intentionally performs an act that creates a substantial

       risk of bodily injury to another person commits class B misdemeanor criminal



       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 9 of 15
       recklessness, which may be enhanced to a class D felony if it is committed

       while armed with a deadly weapon. Ind. Code § 35-42-2-2.


[17]   In this case, the class D felony criminal recklessness conviction rests on the

       evidence that Sowder recklessly, knowingly, or intentionally performed an act

       that created a substantial risk of bodily injury to Regina, namely shooting her,

       while armed with a deadly weapon. The class A felony burglary conviction

       rests on the evidence that Sowder broke and entered Candice’s home with the

       intent to commit a felony which resulted in bodily injury or serious bodily

       injury to Regina, namely her gunshot wound. As such, we are presented with a

       double jeopardy violation.


[18]   While it is typical for this Court to reduce the enhancement where there is a

       double jeopardy issue of this nature, we must be mindful of the penal

       consequences that the trial court found appropriate. McCann, 854 N.E.2d at

       915. Given the trial court’s determination that Sowder’s actions merit a seventy-

       year sentence, we elect to vacate the criminal recklessness conviction to

       eliminate the double jeopardy violation.                3




       3
         We note that reducing the burglary conviction to a class B felony would not cure the double jeopardy
       violation because an essential element of that offense is “armed with a deadly weapon,” which is also an
       essential element of class D felony criminal recklessness. And reducing the burglary conviction to a class C
       felony would reduce Sowder’s sentence far below its current seventy years. See Ind. Code § 35-50-2-6 (setting
       sentencing range for a class C felony between two and eight years).

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015             Page 10 of 15
           Section 4 — The trial court did not abuse its discretion in
                considering an aggravating factor at sentencing.
[19]   Sowder claims that the trial court abused its discretion by expressing

       “disagreement with the jury’s verdict” in convicting him of voluntary

       manslaughter instead of murder as a reason for imposing a more stringent

       sentence. Appellant’s Br. at 18. “[S]entencing decisions rest within the sound

       discretion of the trial court and are reviewed on appeal only for an abuse of

       discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218. An abuse of discretion may occur if the court: (1) fails to enter

       a sentencing statement, (2) enters a sentencing statement that explains reasons

       for imposing the sentence but the record does not support the reasons, (3) the

       sentencing statement omits reasons that are clearly supported by the record and

       advanced for consideration, or (4) the reasons given are improper as a matter of

       law. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). An abuse of discretion

       is shown only where the trial court’s decision is “clearly against the logic and

       effect of the facts and circumstances before the court, or the reasonable,

       probable, and actual deductions to be drawn therefrom.” Anglemyer, 868 N.E.2d

       at 490.


[20]   In the sentencing order, the trial court found as an aggravating factor that

       Sowder “had ample time to reflect on his actions before carrying through with

       the commission of these crimes.” Appellant’s App. at 216. The trial court did

       not explicitly say that it disagreed with the jury’s verdict, thus there is no basis

       to conclude that the court used Sowder’s murder charge as an aggravating

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 11 of 15
       factor. Even giving due deference to the jury’s decision that Sowder acted in

       sudden heat when he killed Candice, it was a valid aggravator for the remaining

       crimes that he had time to consider his actions beforehand. See Bustamante v.

       State, 557 N.E.2d 1313, 1322 (Ind. 1990) (holding that an inference of planning

       or premeditation constitutes a valid aggravator). One may reasonably infer that

       Sowder planned to break into Candice’s house. He drove from his house in

       Seymour to Candice’s house in North Vernon, he was not invited over, and he

       did not have a key. He carried a gun in his vehicle. During the drive from

       Seymour to North Vernon, Sowder had time to cool off. Absent an explicit

       statement of disagreement with the jury’s verdict, Sowder has failed to show

       that the court abused its discretion.


        Section 5— Sowder has failed to establish that his sentence is
                             inappropriate.
[21]   Sowder argues that his seventy-year sentence is inappropriate in light of the

       nature of the offense and his character. This “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.” Ind. Appellate Rule 7(B). Whether the

       reviewing court regards a sentence as inappropriate turns on a “sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a

       trial court’s sentencing decision, both because Rule 7(B) requires us to give due

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 12 of 15
       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.”’ Gil v. State,

       988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866

       N.E.2d 858, 866 (Ind. Ct. App. 2007)). The defendant bears the burden of

       persuading this Court that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006). The defendant bears the burden of showing

       both prongs of the inquiry—the nature of the offense and the character of the

       defendant—favor revision of his sentence. Anderson v. State, 989 N.E.2d 823,

       827 (Ind. Ct. App. 2013), trans. denied.


[22]   Sowder first argues that there was nothing in the record tending to show that

       the nature of the offenses exceeded the statutory proscription. The advisory

       sentence is only “the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Anglemyer, 868 N.E.2d at 494.

       A person who commits a class A felony “shall be imprisoned for a fixed term of

       between twenty and fifty years with the advisory sentence being thirty years.”

       Ind. Code § 35-50-2-4. Sowder was sentenced to thirty-five years for class A

       felony voluntary manslaughter and a consecutive term of thirty-five years for

       class A felony burglary, with concurrent sentences on the remaining counts.


[23]   Sowder committed voluntary manslaughter by knowingly or intentionally

       killing Candice while acting under sudden heat by means of a deadly weapon.

       Ind. Code § 35-42-1-3. Additionally, he committed burglary by breaking and

       entering the home of Candice and Regina with the intent to commit murder or

       aggravated battery on Regina, which resulted in bodily injury to her when he

       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 13 of 15
       shot her. Ind. Code § 35-43-2-1. In light of the senselessness and brutality of

       these crimes, in which Sowder shot his victims in the head at point-blank range,

       a sentence only five years in excess of the advisory for each of these crimes is

       certainly reasonable. Ordering the sentences for voluntary manslaughter and

       burglary to be served consecutively is not inappropriate because multiple

       victims justify the imposition of consecutive sentences. Gleaves v. State, 859

       N.E.2d 766, 772 (Ind. Ct. App. 2007).


[24]   Regarding his character, Sowder argues that his criminal history was “minor

       and remote,” rendering his sentence inappropriate. Appellant’s Br. at 9. We

       disagree. Sowder has an extensive history of domestic violence against Candice,

       including two prior convictions for battery upon her; at least one admitted

       incident of uncharged battery upon her; and eight prior misdemeanor

       convictions. He threatened in the past to kill Candice, and we now see that

       those threats were credible. Despite some evidence of provocation by Regina in

       sending the text message, Sowder’s killing of Candice was the culmination of

       years of domestic violence committed against her. Sowder also could have

       killed Regina when he shot her in the head. His behavior displayed in these

       crimes further reflects his poor character. Thus, Sowder has failed to show that

       both the nature of the offenses and his character render his sentence

       inappropriate. Consequently, we affirm his sentence and convictions with the

       exception of the criminal recklessness conviction, which we vacate.




       Court of Appeals of Indiana | Memorandum Decision 40A05-1409-CR-454 | July 15, 2015   Page 14 of 15
[25]   Affirmed in part and vacated in part.


       Brown, J., and Pyle, J., concur.




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