MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                          Mar 15 2018, 9:09 am

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
Michael C. Borschel                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Landon Tompkins,                                         March 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1706-CR-1418
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1401-FA-2295



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 1 of 22
                               Case Summary and Issues
[1]   Following a jury trial, Landon Tompkins was convicted of attempted murder, a

      Class A felony, and the trial court sentenced him to forty-eight years in the

      Indiana Department of Correction. Tompkins now appeals his conviction and

      sentence, raising four issues for our review which we restate as: (1) whether the

      trial court committed fundamental error regarding the State’s use of two

      peremptory strikes; (2) whether the State presented sufficient evidence to

      support his conviction for attempted murder; (3) whether the trial court abused

      its sentencing discretion; and (4) whether Tompkins’ sentence is inappropriate.

      Concluding the trial court did not commit fundamental error, the State

      presented sufficient evidence, the trial court did not abuse its discretion, and

      Tompkins’ sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   On January 13, 2014, Tompkins, Deandre Franklin, and Joshua Henderson

      decided to rob a taxi driver. Tompkins, then eighteen, drove the others to

      Abney Lake Apartments in Indianapolis and called Yellow Cab. Taxi driver

      Ricardo White was dispatched to the apartments and when he arrived, Franklin

      and Tompkins entered his car, leaving Henderson behind. As evidenced by a

      video recording later admitted into evidence, Franklin entered through the rear

      passenger door and slid across to the rear driver side, followed by Tompkins

      who remained on the passenger side. The two told White to drive to “Uh, 38th

      and Martin Luther King,” before almost immediately instructing White to stop

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 2 of 22
      the car. State’s Exhibit 7. Tompkins opened the rear passenger door and put

      his handgun to White’s head; upon noticing the handgun, White said “Oh,

      sh*t,” put his arm up, and flinched. Id. Tompkins shot White through his jaw

      and into his neck before immediately fleeing the scene. Franklin then reached

      around with a handgun and shot White in his shoulder before following

      Tompkins from the scene. No demand for money was ever made.


[3]   Bleeding profusely, White drove to the entrance of the apartment complex and

      fell out of his car to the concrete below. White was eventually discovered on

      the ground and rushed to the hospital where his heart stopped twice. The bullet

      fired by Tompkins hit White’s external carotid artery and is still lodged in his

      neck. White also had to have his jaw replaced.


[4]   The day after the shooting the police released still photographs of Tompkins

      and Franklin taken from the recording. That same day, Tompkins Googled

      “cab shooting” on his phone, clicked on local news stories about the shooting,

      and deactivated his Facebook account before continuing the search the next

      day. Transcript, Volume III at 2. Tompkins also Googled “how to check to see

      if you have a warrant” and “how many years do you get for attempted

      murder.” Id. at 3-4.


[5]   On January 23, 2014, Tompkins was charged with attempted murder and

      attempted robbery, both Class A felonies, and aggravated battery, a Class B

      felony. The State subsequently dismissed the charge of aggravated battery and

      a jury trial was conducted over a period of two days. During voir dire,


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 3 of 22
      Tompkins objected to the State’s use of peremptory strikes on two prospective

      jurors who were African American but the trial court permitted the strikes over

      Tompkins’ objection.


[6]   The jury eventually found Tompkins guilty of attempted murder but not guilty

      of the charge of attempted robbery. At his sentencing hearing, the court found

      Tompkins’ lengthy criminal history and the nature and circumstances of his

      crime to be aggravators and found no mitigators before sentencing Tompkins to

      forty-eight years. Tompkins now appeals.



                                 Discussion and Decision
                                       I. Batson Challenges
[7]   Tompkins alleges that the trial court committed clear error in overruling his

      “two timely Batson challenges on the record to the State’s peremptory strikes of

      two African-American veniremen.” Brief for Appellant at 22.


[8]   In Batson v. Kentucky, the United States Supreme Court held that a prosecutor’s

      use of peremptory challenges in a criminal case—the dismissal of jurors without

      cause—may not be used to exclude jurors based solely on their race. 476 U.S.

      79, 100 (1986). “Purposeful racial discrimination in selection of the venire

      violates the defendant’s right to equal protection because it denies him the

      protection that a trial by jury is intended to secure.” Id. at 86. The Court

      therefore outlined a three-step process to be employed where a party raises a

      Batson challenge. “Upon appellate review, a trial court’s decision concerning

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 4 of 22
       whether a peremptory challenge is discriminatory is given great deference, and

       will be set aside only if found to be clearly erroneous.” Forrest v. State, 757

       N.E.2d 1003, 1004 (Ind. 2008).


[9]    The first step involves a defendant showing “circumstances raising an inference

       that discrimination occurred.” Addison v. State, 962 N.E.2d 1202, 1208 (Ind.

       2012). This is a low burden and commonly referred to as a “prima facie”

       showing. Id. Here, the State exercised peremptory challenges on the only two

       African American men—Juror No. 1 and Juror No. 18. In Addison, our

       supreme court explained:


                Although the removal of some African American jurors by the
                use of peremptory challenges does not, by itself, raise an
                inference of racial discrimination, the removal of the only . . .
                African American juror that could have served on the petit jury
                does raise an inference that the juror was excluded on the basis of
                race.


       Id. (citation and quotations omitted). We need not decide whether Tompkins

       established a prima facie case because, “where, as here, a prosecutor has offered

       a race-neutral explanation for the peremptory challenge and the trial court has

       ruled on the ultimate question of intentional discrimination, the preliminary

       issue of whether the defendant had made a prima facie showing of purposeful

       discrimination becomes moot.” Cartwright v. State, 962 N.E.2d 1217, 1222 (Ind.

       2012).


[10]   Having satisfied the first step, the second step involves shifting the burden to the

       prosecution to “offer a race-neutral basis for striking the juror in question.”
       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 5 of 22
       Addison, 962 N.E.2d at 1209. Although this race-neutral reason need not be

       particularly “persuasive, or even plausible,” it must be more than a mere denial

       of improper motive and lack inherent discriminatory intent. Id.


[11]   Tompkins appears to allege that the State’s race-neutral reason for striking Juror

       No. 1 was his “Muslim background.” Br. for Appellant at 25. However, our

       review of the record reveals something different. During voir dire, the State

       engaged in the following exchange:


               [State]:         Okay. And I would – there are times that
                                somebody does take to a plan to a crime and – but
                                sometimes it’s just a spur of the moment thing.
                                [Juror No. 1], what do you think about that?


               [Juror No. 1]: Well you know it’s the I guess by me being – I got
                            family that always was into something you know
                            the crime stuff like that so. You least don’t take –
                            watching them you least don’t take it. Sometimes
                            they don’t be thinking you know what they be
                            doing.


               [State]:         Okay. Do– are you – are you kind of saying that
                                sometimes maybe people are just to [sic] rash?


               [Juror No. 1]: Yeah. You know sometimes you got – you know
                            they’re not thinking. You know rationally. You
                            know sometimes you know – sometimes I found out
                            with my background – but sometimes people like
                            they fighting within themselves. You know -- so.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 6 of 22
Supplemental Transcript, Volume II at 34-35. The State later exercised a

peremptory strike on Juror No. 1, explaining:


         [State]:        . . . He indicated that he had a lot of –
                         (indiscernible) in the system and he indicated that
                         he thinks that we had to (indiscernible).


        [The Court]: All right. For the purposes of - -


        [Defense]:       - - (Indiscernible).


        [State]:         Okay. And I - - first of all I would disagree that
                         we’ve got there because I don’t believe there’s been
                         a pattern shown.


        [The Court]: Once [sic] person can be a pattern. Then -- then the
                     law makes Batson makes it very - - hold on.


        [Defense]:       I don’t understand how are saying going to the
                         Islamic people –


        [State]:         Shhh.


        [Defense]:       -- background in arguing the system is only - -
                         already –


        [State]:         I’m talking about what he said when I
                         (indiscernible)


        [The Court]: Okay. All right. You’ve shown that there is -- that
                     someone was struck who’s a minority. Which is
                     prima facia case for the purposes of it. I have a [sic]

Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 7 of 22
                                it butted with a racially neutral reason for the
                                dismissal. Note -- noted for the record. All right.
                                Your motion for (indiscernible) is denied. All right.
                                Thank you.


       Id. at 62-63.


[12]   “A neutral explanation means an explanation based on something other than

       the race of the juror.” Blackmon v. State, 47 N.E.3d 1225, 1232 (Ind. Ct. App.

       2015) (citation and quotation omitted). The State’s proffered reasons for

       striking Juror No. 1 were the facts that he had family experience with the

       criminal justice system and that he would have held the State to a higher

       burden of proof. As such, the State presented valid race-neutral reasons for

       striking Juror No. 1 from the panel. See, e.g., Brown v. State, 751 N.E.2d 664,

       668 (Ind. 2001) (holding that the State presented a valid race-neutral reason for

       removing a potential juror who said she would have trouble judging credibility

       and would therefore hold the State to a higher burden of proof).


[13]   Similarly, Tompkins alleges that the State’s use of a peremptory strike on Juror

       No. 18 was “pretextual and not race-neutral[.]” Br. for Appellant at 28.

       During voir dire, the State presented Juror No. 18 with the following

       hypothetical:


               [State]:         [Defense counsel] gave you the hypothetical of a
                                shoplifting case. Someone walked out -- from the
                                store with merchandise, makes no effort to pay, gets
                                out to their car. I think we can all agree we’ve
                                satisfied all the elements. This person wanted to
                                take this property. They intended to take the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 8 of 22
                         property out of the store. Did not intend to pay for
                         it. We all agree?


        [Jurors]:        No audible response.


        [State]:         Okay. So we all agree that the proper verdict for
                         theft would be guilty. Is that right?


        [Jurors]:        No audible response.


        [State]:         All right. Now what if we had two witnesses, they
                         are both in agreement that this guy walked out of
                         the store (indiscernible). One witness says he got
                         into a black car and the other witness says he got
                         into a blue car. [Juror No. 18], what’s your verdict
                         there? They’re both -- they’re both sure it was this
                         guy that walked out of the store with the
                         merchandise and I’m gonna make this a very
                         obvious hypothetical, there was a video of this man
                         walking out of the store with the merchandise in his
                         hand. However, unclear about which car he got
                         into at that point. What’s your verdict?


        [Juror No. 18]: (Unintelligible).


        [State]:         Okay. I -- I changed up the hypothetical sir. I do
                         have a camera now. The camera shows the guy.


        [Juror No. 18]: Yeah.


        [State]:          Okay. . . .




Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 9 of 22
Supp. Tr., Vol II at 67-68. After the State used a peremptory strike on Juror

No. 18, Tompkins objected:


        [State]:         I want the state to have to prove there’s a racially
                         unbiased reason for striking [Juror No. 18].


        [The Court]: Okay. All right. I note then it was -- to go through
                     thing. I note that there was a minority member who
                     was here that was stricken. State?


        [State]:         Thank you Judge. Judge from his answers I spent
                         probably about four or five minutes on the
                         hypothetical that I intended to make increasingly,
                         and increasingly obvious, and he would not give me
                         an answer. Would not give me a straight answer
                         about whether that’s [sic] be enough. Basically said,
                         if we satisfied all the elements of the crime, we had
                         this unrelated issue would that be enough for you
                         and he said —— he would not give an answer. He
                         said it wasn’t enough and then would not give an
                         answer. I think he’s gonna have an incredibly high
                         burden of prove [sic]. It sounds like he would get
                         caught up on unrelated issues quite frankly. I’m not
                         entirely sure he understood the hypothetical cause I
                         think it was very obvious –


        [The Court]: Okay.


        [State]:          —— to the jurors.


        [The Court]: All right.


        [State]:         And so I’ve got issues number one that I -- I think
                         he’s [sic] burden of proof would be unrealistically
Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 10 of 22
                         high because based on his reactions to the
                         hypothetical. Reason number two would be if those
                         —— if that didn’t reflect it, it’s an unreasonably
                         high burden of proof, then he just didn’t understand
                         it and I mean jurors were laughing ——


        [The Court]: Okay.


        [State]:         -- because it’s obvious.


        [The Court]: All right. I believe the state has satisfied its burden.


        [State]:         I would also point out that it’s same ——


        [Defense]:       Judge, just for the record (indiscernible).
                         (Indiscernible) struck the only two black man [sic]
                         that were in the jury pool.


        [The Court]: Yep, and they’ve given me -- and you can make
                     your record but they have given me ——


        [State]:          —— shh. Judge, we have (indiscernible).


        [The Court]: —— I’m getting there. They’ve given me a natural
                     reasoning.


        [Defense]:       And I just want that part to be part of the record.


        [The Court]: Okay, but I’m gonna also point out for the record
                     that they in fact there are —— whether men or
                     females, also there are minorities on this jury panel.



Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 11 of 22
               [State]:         And specifically to, I’ve got African American
                                females –


               [The Court]: Okay.


               [State]:         (Indiscernible).


               [The Court]: So, I’m stating that you’re —— you’re [sic] request
                            for the motion for (indiscernible) any way, shape, or
                            form, but the fact is that I think the state has
                            without a doubt provided me with necessary
                            rebuttal aspects to your challenge.


               [State]:         And I would also, just for the record, that’s the
                                exact same reason that we struck [Juror No. 1]
                                because was also unrealistic and ——


               [The Court]: That’s fine. Well that was even earlier.


               [The State]: I just wanted to make that –


               [The Court]: That was fine. All right.


       Id. at 82-84.


[14]   As with Juror No. 1, the State presented a valid race-neutral reason for striking

       Juror No. 18. The State explained that because of Juror No. 18’s reaction to

       the hypothetical, the State feared he would require too high a burden of proof

       and become distracted by unrelated issues. “Unless a discriminatory intent is

       inherent in the prosecutor’s explanation, the reason offered will be deemed race

       neutral.” Addison, 962 N.E.2d at 1209.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 12 of 22
[15]   The third step of the Batson inquiry requires the trial court to determine

       “whether the defendant has shown purposeful discrimination.” Id. As we have

       previously explained:


               It is then that implausible or fantastic justifications may (and
               probably will) be found to be pretexts for purposeful
               discrimination. The third step requires the trial court to assess
               the credibility of the State’s race-neutral explanation in light of all
               evidence with a bearing on it. At this stage, the defendant may
               offer additional evidence to demonstrate that the prosecutor’s
               explanation was pretextual. Although this third step involves
               evaluating the persuasiveness of the justification proffered by the
               prosecutor, the ultimate burden of persuasion regarding racial
               motivation rests with, and never shifts from, the opponent of the
               strike. In considering a Batson objection, or in reviewing a ruling
               claimed to be Batson error, all of the circumstances that bear upon
               the issue of racial animosity must be consulted.


       Blackmon, 47 N.E.3d at 1232-33 (citation and quotations omitted).


[16]   Regarding this third step, Tompkins alleges that the trial court “clearly erred by

       failing to make specific findings as to the State’s offered race-neutral

       explanations.” Br. for Appellant at 30. Although this court has stated that “a

       trial court is not required to make explicit fact-findings following a Batson

       challenge[,]” Blackmon, 47 N.E.3d at 1233, our supreme court has warned

       against the dangers of combining the second and third steps of the Batson

       inquiry because the “analytical structure established by Batson cannot operate

       properly if the second and third steps are conflated.” Addison, 962 N.E.2d at

       1210. Like the trial court’s failure in Addison to indicate “whether or why it


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 13 of 22
       found the State’s proffered explanation credible,” id., here, the trial court also

       failed to make findings—simply stating that the “state has satisfied its burden,”

       Supp. Tr., Vol. II at 83, and that there was a “racially neutral reason for the

       dismissal,” id. at 62.


[17]   With that said, other than expressing that he did not “understand” the State’s

       rationale for striking Juror No. 1, Tompkins never objected to the State’s

       proffered race-neutral reasons nor rebutted them with arguments that they were

       pretextual. Supp. Tr., Vol. II at 62. Rather, Tompkins advances this argument

       for the first time on appeal and, in such cases, we apply the fundamental error

       doctrine. Addison, 962 N.E.2d at 1213 (applying the fundamental error doctrine

       where a defendant failed to object to the State’s proffered race-neutral

       explanation). Our supreme court explained the fundamental error doctrine as:


               extremely narrow, and applies only when the error constitutes a
               blatant violation of basic principles, the harm or potential for
               harm is substantial, and the resulting error denies the defendant
               fundamental due process. The error claimed must either make a
               fair trial impossible or constitute clearly blatant violations of
               basic and elementary principles of due process. Further,
               fundamental error applies only when the actual or potential harm
               cannot be denied.


       Id. (citations and quotations omitted).


[18]   On appeal, Tompkins has still failed to advance a coherent argument regarding

       why the State’s proffered reasons were pretextual—merely positing that they

       were “implausible.” Br. for Appellant at 30. Therefore, in light of this rigorous


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 14 of 22
       standard of review and having concluded that the State’s proffered race-neutral

       reasons are supported by the record, we conclude the trial court’s denial of

       Tompkins’ Batson challenges was not fundamental error.


                               II. Sufficiency of the Evidence
                                       A. Standard of Review
[19]   When reviewing a challenge to the sufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783

       N.E.2d 1132, 1139 (Ind. 2003). A reviewing court looks only to the probative

       evidence supporting the judgment and the reasonable inferences from that

       evidence to determine whether a reasonable trier of fact could conclude the

       defendant was guilty beyond a reasonable doubt. Id. We will uphold the

       conviction if there is substantial evidence of probative value to support it. Id.


                                        B. Attempted Murder
[20]   To sustain a conviction for attempted murder, the State must prove two

       elements beyond a reasonable doubt:


               First, the defendant must have been acting with a specific intent to
               commit the crime, and second, he must have engaged in an overt
               act which constitutes a substantial step toward the commission of
               the crime.


       Spradlin v. State, 569 N.E.2d 948, 949 (Ind. 1991). On appeal, Tompkins claims

       that “the State failed to show beyond a reasonable doubt that Mr. Tompkins



       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 15 of 22
       intended to kill, rather than merely harm, Mr. White.” Br. for Appellant at 11.

       We disagree.


[21]   In Henley v. State, our supreme court explained:


               A conviction for attempted murder requires proof of a specific
               intent to kill. Because intent is a mental state, we have noted that
               intent to kill may be inferred from the deliberate use of a deadly
               weapon in a manner likely to cause death or serious injury. And
               firing a gun in the direction of an individual is substantial
               evidence from which a jury may infer intent to kill.


       881 N.E.2d 639, 652 (Ind. 2008) (citations omitted).


[22]   Here, the State presented video footage from the taxi’s interior camera. The

       video shows Tompkins hold a handgun to White’s head, adjust his aim as

       White’s head moved, and then shoot White in the jaw from point-blank range.

       This evidence alone is sufficient for the jury to infer Tompkins’ intent. See

       Booker v. State, 741 N.E.2d 748, 756 (Ind. Ct. App. 2000) (holding that direct

       evidence of defendant shooting victim in the neck from point-blank range was

       sufficient for jury to infer that defendant acted with the intent to kill).


                                    III. Tompkins’ Sentence
[23]   Next, Tompkins alleges that the trial court abused its discretion in sentencing

       him and that his forty-eight year sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 16 of 22
                                         A. Abuse of Discretion
[24]   Tompkins alleges that the trial court abused its discretion in sentencing him.

       The sentencing range for a Class A felony is twenty to fifty years, with an

       advisory sentence of thirty years. Ind. Code § 35-50-2-4 (2013). Tompkins

       received a sentence of forty-eight years.


[25]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). Therefore, if a sentence is within the statutory range, as here,

       we review the sentence only for abuse of discretion. Id. An abuse of discretion

       will be found where the 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. Id. We have explained that a trial court

       may abuse its discretion in sentencing in the following ways:


               (1) failing to enter a sentencing statement at all; (2) entering a
               sentencing statement that includes aggravating and mitigating
               factors that are unsupported by the record; (3) entering a
               sentencing statement that omits reasons that are clearly
               supported by the record; or (4) entering a sentencing statement
               that includes reasons that are improper as a matter of law.


       Williams v. State, 997 N.E.2d 1154, 1164 (Ind. Ct. App. 2013).


[26]   Here, the trial court found a number of aggravators supporting Tompkins’ near-

       maximum sentence. The trial court explained:




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 17 of 22
               All right. Mr. Tompkins, I don’t know – two things. Two things.
               The State said something and the Defense said something. I take
               issue with both of them actually. I think the State said something
               to the effect of, We all understood what happened. And my
               answer is no. I still don’t understand what happened. I sat here
               and I watched a crime. Your attorney – yeah. We don’t know
               what was going on in your head. And I don’t. And I probably
               never will because what I saw was – it wasn’t a robbery. It
               wasn’t anything other than a man trying to kill another man.
               And not out of anger. Not out of hate. Not out of reason. Just
               simply for the hell of it. And I’ve seen a lot of things in this
               court. I’ve seen a lot of horrible, horrible, horrible things. I’ve
               seen – I’ve seen people mutilated with knives to the point where
               you can’t recognize them. I’ve seen bodies killed, tied and burnt
               to a crisp where you can’t recognize them. I’ve seen some of the
               most horrific things in my life sitting here in this chair, but I don’t
               think I’ve ever seen anything as horrific as what I saw in that
               video which was someone putting a gun to another man’s head
               for no reason whatsoever and pulling the trigger. It was
               something out of – it was something akin to a Vietnam photo out
               of Life Magazine. It was something that will never escape my
               mind. And that person was you.


       Tr., Vol. III at 54-55.


[27]   Tompkins alleges that the foregoing explanation is evidence that the trial court’s

       “emotional reaction, rather than Mr. Tompkins’ actions in and of themselves,

       was the basis for enhancing Mr. Tompkins’s sentence beyond the advisory 30-

       year sentence . . . ,” and that “the trial court wrongly used an essential element

       of the crime, viz. intent, to enhance Mr. Tompkins’ sentence (48 years) to

       nearly the statutory maximum (50 years), where the record does not support the

       enhancement, as described by the sentencing court.” Br. for Appellant at 14-16.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 18 of 22
       On review, we view the trial court’s statements simply as a consideration of the

       nature and circumstances of Tompkins’ crime—a valid aggravator. Anglemyer,

       868 N.E.2d at 492.


[28]   Finally, Tompkins argues that the trial court abused its discretion by failing to

       relate Tompkins’ criminal history to the instant offense. The weight of a

       defendant’s criminal history is measured “by the number of prior convictions

       and their gravity, by their proximity to or distance from the present offense, and

       by any similarity or dissimilarity to the present offense that might reflect on a

       defendant’s culpability.” Duncan v. State, 857 N.E.2d 955, 959 (Ind. 2006).


[29]   Here, although the trial court did not expressly relate Tompkins’ criminal

       history to the instant offense, the trial court did observe Tompkins’ “lengthy

       juvenile history” and noted that “[i]t’s not as if there was a large gap between

       his criminal [sic] and adult crimes.” Tr., Vol. III at 57. Additionally,

       Tompkins’ crimes are similar to the instant offense and include adjudications

       for battery resulting in bodily injury, resisting law enforcement, burglary, auto

       theft, and battery against a police officer. We therefore conclude the trial court

       did not abuse its discretion in identifying Tompkins’ juvenile criminal history as

       an aggravating factor.


                                       B. Inappropriate Sentence
[30]   We may review and revise criminal sentences pursuant to the authority derived

       from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule

       7(B) empowers us to revise a sentence “if, after due consideration of the trial

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 19 of 22
       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 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), and we may look to any

       factors appearing in the record in making such a determination, Stokes v. State,

       947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.


                                       1. Nature of Tompkins’ Offense

[31]   The sentencing range for a Class A felony is twenty to fifty years, with an

       advisory sentence of thirty years. Ind. Code § 35-50-2-4 (2013). Tompkins

       received a sentence of forty-eight years.


[32]   Tompkins alleges that the nature of his offense renders his sentence

       inappropriate because, although Tompkins “vaguely intended to rob a cab

       driver . . . no demand regarding robbery was ever made . . . .” Brief for

       Appellant at 19. We fail to understand how this fact renders Tompkins’

       sentence inappropriate for attempted murder and we instead observe that it

       renders his crime even more senseless. Regardless, the evidence established

       that the crime was premeditated. Tompkins lured White to the scene of the

       crime and Tompkins shot White from point-blank range before fleeing the

       scene. We find nothing about the nature of Tompkins crime to render his

       sentence inappropriate.


                                            2. Tompkins’ Character

[33]   We have previously explained:

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 20 of 22
               The “character of the offender” portion of the standard refers to
               the general sentencing considerations and the relevant
               aggravating and mitigating circumstances. We assess the trial
               court’s recognition or non-recognition of aggravators and
               mitigators as an initial guide to determining whether the sentence
               imposed was inappropriate.


       Reis v. State, 88 N.E.2d 1099, 1105 (Ind. Ct. App. 2017) (citations omitted).


[34]   Tompkins also alleges that his sentence is inappropriate in light of his character.

       In so doing, Tompkins points to several factors he argues are favorable to his

       character including the fact that he was “barely” eighteen at the time of the

       crime; that although he contested his intent to kill, he accepted responsibility for

       shooting White; and that his juvenile criminal history is unrelated to the instant

       offense. Br. for Appellant at 19. We find Tompkins’ arguments unconvincing.


[35]   First, Tompkins’ lengthy juvenile criminal record includes adjudications for

       battery resulting in bodily injury, three instances of resisting law enforcement,

       three instances of burglary, auto theft, and battery against a police officer. Even

       a minor criminal record reflects poorly on a defendant’s character, Rutherford v.

       State, 886, N.E.2d 867, 874 (Ind. Ct. App. 2007), and we cannot say an

       eighteen-year-old with that many adjudications has only a “minor criminal

       record.” Second, Tompkins has several adjudications for violent offenses

       which is contrary to his assertion that his criminal history is unrelated to the

       instant offense. And third, the fact that Tompkins “only” contested his intent at

       trial is entitled to little value because the shooting was captured on video,

       leaving little room for Tompkins’ denial.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1418 | March 15, 2018   Page 21 of 22
[36]   Additionally, Tompkins argues that his sentence is inappropriate because his

       “near-maximum sentence is materially disproportionate to that received by his

       equally culpable and only slightly younger co-defendant, Deandre Franklin.”

       Br. for Appellant at 20. Again, we disagree. Franklin was a minor at the time

       of the crime and, as reflected by the very nature of our juvenile criminal justice

       system, he is not equally culpable. Franklin also cooperated with the

       investigation and accepted responsibility for his actions by way of a guilty plea.

       Most importantly, however, Tompkins’ crime was different than Franklin’s.

       The record reflects that Tompkins took the lead and lured White to the

       apartment complex before instructing him where to go and when to stop. Only

       after Tompkins shot White in the head did Franklin follow suit and shoot

       White in the shoulder.


[37]   In sum, we find nothing about the nature of Tompkins’ offense or his character

       to render his sentence inappropriate. We therefore decline Tompkins’

       invitation to revise his sentence.



                                               Conclusion
[38]   For the reasons explained above, we affirm Tompkins’ conviction and sentence.


[39]   Affirmed.


       Crone, J., and Bradford, J., concur.




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