MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Dec 16 2015, 8:54 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
Paul J. Podlejski                                       Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

De’Auntaye White,                                       December 16, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A04-1501-CR-24
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas Newman,
Appellee-Plaintiff                                      Jr., Judge
                                                        Trial Court Cause No.
                                                        48C03-1312-MR-2377



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015    Page 1 of 10
[1]   De’Auntaye White appeals his conviction of Murder,1 a felony. He argues that

      the trial court issued misleading jury instructions and that his sentence is

      inappropriate in light of the nature of the offense and his character. Finding

      that the jury instructions were not erroneous and that his sentence is not

      inappropriate, we affirm.


                                                    Facts
[2]   On December 15, 2013, Terrence Cotton and Quayshawn Jordan were playing

      video games at Cotton’s house in Anderson. They wanted to smoke marijuana

      but did not have any. Cotton called White, who was eighteen years old at the

      time, to obtain some marijuana, and told him that he wanted around seven

      grams. When White asked Cotton who else was present, Cotton responded

      that he “was with Bruh.” Tr. 476. White agreed to supply the weed.


[3]   White, however, did not have seven grams, and so he called his friend, Steve

      Smith. Smith had the seven grams but did not have a car, so White called

      Ronnie Frye to ask for a ride. Frye had his Green Blazer. Frye picked up

      White and Smith, and the trio headed over to the Greater Community Center

      to complete the transaction. Smith would later testify that he asked White who

      they were selling to and White responded: “T.C. and that was it.” Tr. 877.

      Then Smith asked who was with Cotton and White responded: Jordan.




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 2 of 10
[4]   White and Jordan had a strained relationship. Although they were cousins and

      interacted civilly—White once bailed Jordan out of jail—they had had a falling

      out roughly a week before the December 15 incident. Although the details are

      murky, White would later testify that Jordan gave him a gun to hide but then

      became angry when White did not give it back. According to White, in the

      days leading up to December 15, Jordan phoned him: “[Jordan] told me he was

      going to shoot me because of the situation that we were arguing over . . . .” Tr.

      1087. The night before the incident, White texted Jordan an expletive-laced

      message, saying “stop talkin bout me,” “im a hitter,” “u on[?],” and “letS get it

      poppin.” State’s Ex. 81. At trial, White maintained that he had no idea that

      Jordan would be at the transaction.


[5]   Cotton and Jordan arrived at the Community Center first. As they waited in

      the car, Jordan was on the passenger side with the seat reclined all the way

      back. Neither Cotton nor Jordan had a gun.


[6]   The trio of Frye, White, and Smith arrived shortly after. They remained in

      their car for a few minutes while Smith prepared a baggie of marijuana. White

      exited the Blazer with the baggie in one hand and a handgun in his hoodie

      pocket.


[7]   Jordan exited his car at roughly the same time, and the two began approaching

      each other. White would later testify that when he saw who it was, he felt

      afraid—he thought he observed a gun. Cotton saw White pull out his gun.

      Jordan put his hands up and took a step backward, but White fired. Those at


      Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 3 of 10
       the scene—Cotton, Smith, and Frye—reported hearing between three and four

       shots; two shots hit Jordan, including one in the abdomen. Jordan did not die

       immediately: he lingered in pain, and Cotton found him on the ground telling

       himself, “Don’t die.” Tr. 495. Cotton rushed him to the hospital, but Jordan

       did not survive his injuries.


[8]    On December 17, 2013, the State charged White with murder. After a jury trial

       held from November 18, 2014, through November 25, 2014, the jury found

       White guilty as charged.


[9]    The trial court held a sentencing hearing on December 15, 2014. In asking for

       the maximum sixty-five years, the State presented White’s juvenile record. In

       2006, an allegation of battery led to an informal adjustment and probation. In

       2008, he was alleged to have committed what would be intimidation if

       committed by an adult. In that same year, he was placed on probation for what

       would have been conversion if committed by an adult. In 2009, he was alleged

       in January to have committed what would be receiving stolen property; in

       March to have committed false information and criminal mischief; and in

       September to have committed disorderly conduct and to have possessed

       marijuana. In 2010, he was alleged to have possessed a firearm, but the

       allegation was dismissed.


[10]   Between 2010 and 2013, White was involved in six more juvenile causes,

       including criminal recklessness, pointing a firearm, carrying a handgun without

       a license, battery resulting in bodily injury, intimidation, theft (twice), and


       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 4 of 10
       possession of marijuana. Although the instant case is his first adult conviction,

       White has been arrested fourteen times.


[11]   The State stressed two incidents in particular. In the first, White was alleged to

       have had a gun and was found with bullets in his pockets. The second occurred

       a few months later, when White was alleged to have shot a gun at his brother.

       Tr. 1326.


[12]   The trial court found White’s age to be a slight mitigator because of this prior

       juvenile history. “Aggravating circumstances are that the defendant’s prior

       criminal history and the fact that this incident was a drug related incident and []

       also the victim in this case was a family member which doesn’t seem to bother

       the defendant. . . .” Tr. 1333. The trial court sentenced White to sixty-five

       years. White now appeals.


                                    Discussion and Decision
[13]   White raises two arguments on appeal: (1) that the trial court’s instructions

       regarding White’s claim of self-defense were misleading; and (2) that the length

       of White’s sentence is inappropriate. We will address each in turn.


                                    I. The Jury Instructions
[14]   Jury instruction is a matter within the trial court’s sound discretion, and we

       review such decisions for an abuse of that discretion, granting “great deference”

       to the trial court. Cline v. State, 726 N.E.2d 1249, 1256 (Ind. 2000). In

       reviewing a trial court’s decision to give or refuse tendered instructions, we


       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 5 of 10
       consider: (1) whether the instruction correctly states the law; (2) whether there

       was evidence in the record to support the giving of the instruction; and (3)

       whether the substance of the tendered instruction is covered by other

       instructions that are given. Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000).

       Jury instructions are not to be considered in isolation, but as a whole, and with

       reference to each other. Maslin v. State, 718 N.E.2d 1230, 1233 (Ind. Ct. App.

       1999). Therefore, the trial court’s ruling will not be reversed unless the

       instructional error is such that the charge to the jury misstates the law or

       otherwise misleads the jury. Lewis v. State, 759 N.E.2d 1077, 1080 (Ind. Ct.

       App. 2001).


[15]   Among the instructions the trial court provided for self-defense is the following

       language: “Notwithstanding [a person’s right to self-defense], a person is not

       justified in using force if [] he is committing, or is escaping after the commission

       of a crime.” Tr. 1268. The section ends: “There must be an immediate causal

       connection between the crime and the confrontation.” Id. at 1269.


[16]   White argues that this instruction is incomplete according to our decision in

       Smith v. State, 777 N.E.2d 32 (Ind. Ct. App. 2002). There, a divided panel held

       that “a defendant who is committing a crime at the time may not be precluded

       from asserting the defense of self-defense if there is no immediate causal

       connection between his or her crime and the confrontation which occasioned

       the use of force.” Id. at 36. The court found reversible error where the jury

       instructions failed to explain this nuance. Id. at 37. White claims the trial

       court’s instructions in his case were misleading because, while the instructions

       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 6 of 10
       do instruct the jury regarding the causal connection, it is only “one sentence

       that immediately follows a very lengthy instruction on self-defense. . . .”

       Appellant’s Br. 10.


[17]   White’s argument fails. The Smith court specifically limited its decision to the

       situation where the defendant “tendered such an instruction,” and excluded the

       situations in which “there is no indication that the defendant tendered an

       instruction explaining this point of law.” Smith, 777 N.E.2d at 36. Although

       the record contains a suggestion that White tendered different instructions to

       the trial court, tr. 1188-94, he admits, “Both the State’s and Defense’s Proposed

       Final Instructions that were tendered to the trial court are not contained

       anywhere in the record provided to appellate counsel.” Appellant’s Br. 10, n. 8.


[18]   Even if we were to assume that a single sentence is insufficient to explain the

       causal connection requirement, since we do not have White’s proposed final

       instructions, we cannot know whether his proposed instructions better

       explained this point of law than the trial court’s instructions. Therefore, we

       cannot say the trial court abused its discretion to instruct the jury as it did.


                                   II. Appropriate Sentence
[19]   Indiana Appellate Rule 7(B) provides the following: “The 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.” The principal role of such

       review is to attempt to leaven the outliers, but not to achieve a perceived

       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 7 of 10
       “correct” sentence. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       Sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference. Id. at 1222. “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[20]   Turning to the instant case, we find no such compelling evidence. As for the

       nature of White’s crime, it was a relatively cold-blooded murder. Witness

       accounts suggest that Jordan took a step back and had his hands raised when

       White fired multiple gun shots. Jordan did not have a gun. His death was not

       instantaneous; he was conscious after the shooting and died at the hospital.

       The jury accepted the State’s theory of the case, that this was not a family

       quarrel but rather a brutal murder over “drugs and money.” Tr. 1213. The

       texts sent by White the night before the murder—“im a hitter,” “u on[?],” and

       “letS get it poppin,” State’s Ex. 81—hardly display restraint or regard for his

       victim. His lack of regard for the victim before the crime parallels his lack of

       regard for the victim after the crime; when interviewed for the preparation of

       the pre-sentencing investigation report, White said, of the man he had

       murdered, “I regret falling prey to him.” App. 53. We find no compelling

       evidence portraying White’s crime in a positive light.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 8 of 10
[21]   Turning to White’s character, we find a troubled young man with a lengthy

       juvenile history. He has been arrested fourteen times and adjudged delinquent

       on multiple occasions. His history is certainly made worse by his previous

       involvement with drugs and guns, both of which played a role in this crime. In

       spite of these repeated encounters with the law, White continued to sell drugs

       and carry a gun. We cannot characterize this history as consisting of persistent

       examples of good character.


[22]   We remain mindful that, as our Supreme Court has explained, “[s]entencing

       considerations for youthful offenders—particularly for juveniles—are not

       coextensive with those for adults.” Brown v. State, 10 N.E.3d 1, 6 (Ind. 2014).

       In the context of that case, the Court found an aggregate sentence of 150 years

       for a sixteen-year-old to be a “denial of hope; it means that good behavior and

       character improvement are immaterial; it means that whatever the future might

       hold in store for the mind and spirit of the [juvenile] convict, he will remain in

       prison for the rest of his days.” Id. at 8 (citing Graham v. Florida, 560 U.S. 48,

       70 (2010)).


[23]   A sixty-five-year sentence does not mean such a denial of hope—White will, in

       all likelihood, outlive his sentence, meaning any self-improvement he

       accomplishes in prison will not be immaterial. Indeed, in Brown itself, our

       Supreme Court preserved hope for that defendant by reducing his sentence only

       to eighty years. Id.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 9 of 10
[24]   In sum, neither the nature of White’s offense nor his character provide a

       compelling reason to deem his sentence inappropriate.


[25]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1501-CR-24 | December 16, 2015   Page 10 of 10
