MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Oct 29 2018, 10:06 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals

                                                         Kelly A. Loy
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darvon L. Smith,                                         October 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-505
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D05-1710-F1-16



Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018                Page 1 of 14
                                       Statement of the Case
[1]   Darvon L. Smith appeals his five convictions for rape, each as a Level 1 felony;

      his three convictions for criminal confinement, each as a Level 3 felony; his

      adjudication as a habitual offender; and his aggregate sentence of 179 years,

      following a jury trial. Smith raises five issues for our review, which we restate

      as follows:


              1.       Whether Smith preserved for appellate review his
                       argument that the trial court denied his right to a speedy
                       trial under Indiana Criminal Rule 4(B).


              2.       Whether he preserved for appellate review his argument
                       that the trial court erred when it instructed the jury.


              3.       Whether the trial court violated Smith’s right to confront a
                       witness when it admitted the witness’s deposition
                       testimony into evidence after the witness had failed to
                       appear at trial.


              4.       Whether the State presented sufficient evidence to support
                       his convictions.


              5.       Whether his 179-year aggregate sentence is inappropriate
                       in light of the nature of the offenses and Smith’s character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In August and September of 2017, Smith lived in apartment 410 at the East

      Central Towers in Fort Wayne. William Hackett lived down the hallway in
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 2 of 14
      apartment 415, but he had been absent from the apartment for some time.

      Other people had forced the door to apartment 415 open, breaking the locking

      mechanism in the process, and they used the apartment for various purposes.


[4]   On August 19, Smith responded to an online advertisement for “escort”

      services from T.J. Tr. Vol. 2 at 33-34. T.J. met Smith at the East Central

      Towers and they entered apartment 415. There, Smith “snatched” T.J.’s

      phone, told her she was “not going back outside,” “pulled out a knife,” and told

      her he was going to “slice [her] neck from the left to the right.” Id. at 41. T.J.

      thought the knife “looked like a steak knife.” Id. at 43. Smith “told [T.J.] to

      give him oral sex,” and she complied. Id. at 44. Smith then gave T.J. the knife

      and told her to “throw it across the room,” which she did, “but [T.J.] was still

      scared out of her mind.” Id. Smith then “put his penis in [T.J.’s] vagina.” Id.

      at 46. At some point thereafter, T.J. gouged Smith in the eyes and escaped the

      apartment by moving a television that he had placed to block the door. She ran

      naked down the hallway “screaming for help” and saying, “he’s trying to rape

      me, he’s trying to kill me.” Id. at 48. She escaped into apartment 410, but

      Smith also went to apartment 410 and found her there. T.J. then jumped out of

      the window to escape him. She later woke up at Lutheran Hospital with

      multiple broken bones, a concussion, and a lacerated liver.


[5]   On September 2, Smith responded to another online advertisement for “escort”

      services, this time from L.R. L.R. met Smith at the East Central Towers and

      accompanied him into apartment 415. There, Smith blocked the front door

      with a television and “pulled a knife” on L.R., and she felt she did

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 3 of 14
      “not . . . ha[ve] a choice” in how to proceed from there. Id. at 217. L.R.

      thought the knife “was like . . . a serrated steak knife.” Id. at 218. Smith then

      had L.R. perform oral sex on him, after which he compelled her to engage with

      him in sexual intercourse. L.R. was “scared” and “d[id not] want to,” but she

      complied. Id. at 223. Afterwards, Smith told L.R. that “if [she] were ever going

      to call the police that he would kill [her].” Id. at 225. Not long after her

      encounter with Smith, L.R. moved to California.


[6]   On September 18, Smith once again responded to an online advertisement for

      “escort” services, this time from A.Y. A.Y. met Smith at the East Central

      Towers and accompanied him into apartment 415. As soon as they were in the

      apartment, Smith put “a knife . . . in [A.Y.’s] face.” Tr. Vol. 3 at 20. A.Y.

      “started crying and . . . shaking,” and she told Smith to “just put the knife

      down . . . . You’ll get what you want, . . . just put the knife down.” Id. at 21.

      Smith then compelled A.Y. to engage with him in sexual intercourse, which

      A.Y. “didn’t want.” Id. Afterwards, Smith refused to let A.Y. leave the

      apartment until the next morning, when he again compelled her to engage with

      him in sexual intercourse.


[7]   On October 6, the State charged Smith with five counts of rape, each as a Level

      1 felony; three counts of criminal confinement, each as a Level 3 felony; and

      with being a habitual offender. On October 11, Smith requested a speedy trial.

      On October 20, the trial court set Smith’s trial for January 3, 2018, over Smith’s

      speedy trial objection. However, Smith did not move for discharge or dismissal

      prior to his trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 4 of 14
[8]    At his ensuing trial, T.J. and A.Y. appeared in person and testified against

       Smith. However, L.R. refused to board a plane from California to Indiana

       despite the court’s order for her to appear and despite the State’s payment for

       her plane tickets and local accommodations. Due to her failure to appear, the

       State sought to admit L.R.’s pretrial deposition, which Smith’s counsel had

       taken two weeks prior to Smith’s trial. Smith objected on the grounds that

       L.R.’s failure to appear at trial in person violated his state and federal

       constitutional rights to confront her. The trial court overruled Smith’s objection

       and admitted the deposition testimony.


[9]    Following the presentation of evidence and closing arguments, the court

       instructed the jury. In particular, the court gave the following instruction with

       respect to the evidence of Smith’s use of a knife: “It is not required that the

       deadly weapon be held on the victim at all times. The initial showing of deadly

       force and the victim’s awareness of the defendant’s continued constructive

       possession of the weapon may be sufficient to satisfy the ‘armed with a deadly

       weapon’ element.” Appellant’s App. Vol. II at 111. Smith objected to that

       instruction on the grounds that “the concept is adequately covered by the

       Court’s pattern instructions . . . and it gives undue emphasis and support to the

       State’s argument to give that as an instruction.” Tr. Vol. 3 at 114. The court

       overruled Smith’s objection and instructed the jury accordingly.


[10]   The jury found Smith guilty as charged, including on the habitual offender

       allegation, and the court entered judgment of conviction against Smith on each

       count. The court then held a sentencing hearing, after which it concluded that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 5 of 14
       “there are no mitigating circumstances” but “[t]here are substantial aggravating

       circumstances.” Sent. Tr. at 25-26. In particular, the court found that Smith’s

       “criminal history, the fact that there are multiple victims, and multiple acts of

       sexual violence” to be aggravating circumstances. Id. at 26. The court then

       ordered Smith to serve the advisory sentence for each conviction. However, the

       court ordered the sentence for each rape conviction to be served consecutive to

       the others. The court further ordered Smith’s sentence for his criminal

       confinement conviction with respect to T.J. to be served consecutive to his

       other sentences “because of the extraordinary injuries she suffered in order to

       escape that confinement.” Id. The court ordered the other two sentences on

       the criminal confinement convictions to be served concurrent with Smith’s

       sentences for his rape convictions, and the court enhanced Smith’s sentence for

       his rape of T.J. by twenty years based on Smith being a habitual offender.

       Thus, the court ordered Smith to serve an aggregate term of 179 years in the

       Department of Correction. This appeal ensued.


                                      Discussion and Decision
                                          Issue One: Speedy Trial

[11]   On appeal, Smith first asserts that the trial court erred when, over his objection,

       it did not hold his trial within seventy days of his speedy trial request pursuant

       to Indiana Criminal Rule 4(B). However, it is well established that, even

       though a defendant may object to the trial court’s setting of a trial date outside

       the seventy-day window of Rule 4(B), “this [i]s not sufficient to preserve” a

       Rule 4(B) issue for our review. Parker v. State, 965 N.E.2d 50, 52 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 6 of 14
       2012), trans. denied. Rather, “a defendant waives review of a speedy trial

       request” if he does not also “make a motion for discharge or motion for

       dismissal prior to trial.” Id. (quotation marks omitted). The record here does

       not indicate or otherwise reflect that Smith moved for discharge or dismissal

       prior to trial. Therefore, his purported issue under Rule 4(B) has not been

       preserved for our review, and we do not consider it. See id.


                                        Issue Two: Jury Instruction

[12]   Smith next asserts that the trial court abused its discretion when it instructed the

       jury, over his objection, on Smith’s use of a deadly weapon. In particular,

       Smith asserts on appeal that, although the instruction was “a correct statement

       of the law,” the court erred because the instruction was “misleading” and

       “incomplete.” Appellant’s Br. at 37-38. However, in the trial court Smith

       objected to the instruction on the ground that the instruction was covered by

       other instructions and that it gave undue emphasis and support to the State’s

       case. Tr. Vol. 3 at 114. In other words, Smith objected to the instruction on

       one ground at trial but asserts a different ground for error on appeal. “A

       defendant may not raise one ground for objection at trial and argue a different

       ground on appeal.” Willsey v. State, 698 N.E.2d 784, 793 (Ind. 1998). Thus,

       Smith has waived this issue for our review. See id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 7 of 14
                              Issue Three: Admission of L.R.’s Deposition

[13]   Smith next asserts that the trial court violated his right under the Sixth

       Amendment to the United States Constitution1 to confront L.R. when it

       admitted her deposition testimony over his objection. The Sixth Amendment

       provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

       right . . . to be confronted with the witnesses against him.” However, the

       Supreme Court of the United States has explained that this does not prohibit

       the admission of testimonial statements of a witness who has not appeared at

       trial when the witness was unavailable to testify at the trial and the defendant

       had had a prior opportunity to cross-examine the witness. See Crawford v.

       Washington, 541 U.S. 36, 53-54 (2004). Because Smith’s argument alleges a

       constitutional violation, our standard of review is de novo. E.g., Ackerman v.

       State, 51 N.E.3d 171, 177 (Ind. 2016).


[14]   Smith first asserts that L.R. was available to testify at trial but simply chose not

       to appear. “With regard to unavailability, our Supreme Court has provided

       that ‘[a] witness is unavailable for purposes of the Confrontation Clause

       requirement only if the prosecution has made a good faith effort to obtain the

       witness’s presence at trial.’” Tiller v. State, 896 N.E.2d 537, 543 (Ind. Ct. App.

       2008) (quoting Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002)) (alteration

       original to Tiller), trans. denied. Here, Smith’s arguments aside, the State made a




       1
         Although Smith also references Article 1, Section 13 of the Indiana Constitution, he does not separately
       analyze that provision on these facts. We limit our review accordingly.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018                  Page 8 of 14
       good faith effort to obtain L.R.’s presence at trial. The State served her with a

       subpoena for trial, it purchased her plane tickets, it paid for her local

       accommodations during the trial, and it confirmed those arrangements with

       L.R. prior to the trial. And, aside from suggesting that the State should have

       also sought to have L.R. held in contempt, Smith offers no suggestions for what

       more the State reasonably might have done to attempt to secure L.R.’s presence

       at trial. We cannot say that the trial court erred when it deemed L.R.

       unavailable.


[15]   Smith also argues on appeal that he was denied the right to examine L.R. at her

       deposition. But L.R.’s deposition was held at Smith’s request, and his counsel

       examined her at that deposition. Thus, he was not denied his right to confront

       L.R.


[16]   Insofar as Smith further asserts that the manner in which L.R.’s deposition

       occurred denied him his right to confront her or otherwise rendered the

       deposition inadmissible, Smith did not preserve that issue either for the trial

       court’s review or for our review. Indiana Trial Rule 32(D)(3)(b) states:


               Errors and irregularities occurring at the oral examination in the
               manner of taking the deposition, in the form of the questions or
               answers, in the oath or affirmation, or in the conduct of the
               parties and errors of any kind which might be obviated, removed,
               or cured if promptly presented, are waived unless reasonable
               objection thereto is made at the taking of the deposition.


       Smith did not make any such objections during L.R.’s testimony. Accordingly,

       we do not consider this purported issue on appeal. Likewise, Smith did not
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 9 of 14
       object to the manner in which the trial court presented L.R.’s deposition to the

       jury, and thus his purported argument on that issue also has not been preserved

       for our review.


                                   Issue Four: Sufficiency of the Evidence

[17]   We next turn to Smith’s argument that the State failed to present sufficient

       evidence to support his rape and criminal confinement convictions.2 In

       reviewing the sufficiency of the evidence, we consider only the evidence and

       reasonable inferences most favorable to the convictions, neither reweighing the

       evidence nor reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958

       (Ind. 2016). We will affirm the judgment unless no reasonable fact-finder could

       find the defendant guilty. Id.


[18]   Smith argues on appeal that the evidence shows that each of the alleged rapes

       was in fact consensual, that they were financial transactions for “escort”

       services, that none of the three women were in fact confined, and that he did

       not threaten T.J. or L.R. with a knife. In support of those arguments, Smith

       relies on his own testimony at trial and on perceived weaknesses in his victims’

       testimonies. Smith’s arguments are contrary to our standard of review, and we

       reject them.




       2
         Smith does not suggest that the State failed to present sufficient evidence to support his habitual offender
       adjudication.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018                    Page 10 of 14
[19]   Considering only the evidence most favorable to his convictions, as we must,

       we conclude that the State readily presented sufficient evidence to support each

       of Smith’s convictions. The testimony of a victim deemed credible by the finder

       of fact is, itself, sufficient evidence to support a conviction. See, e.g., Sallee v.

       State, 51 N.E.3d 130, 135 (Ind. 2016). T.J. testified that Smith had compelled

       her against her will to engage with him in sexual intercourse and to perform

       oral sex on him, which were the bases for Count I and Count II, respectively.

       She further testified that Smith had blockaded the front door to the apartment in

       which he assaulted her, and, in that apartment, he had threatened her with a

       knife, which was the basis for Count VI. L.R. similarly testified that Smith had

       compelled her against her will to engage with him in sexual intercourse and to

       perform oral sex on him, which were the bases for Count III and Count IV,

       respectively. And she further testified that Smith had blockaded the front door

       to the apartment in which he assaulted her, and, in that apartment, he had

       threatened her with a knife, which was the basis for Count VII. Finally, A.Y.

       testified that Smith had compelled her against her will to engage with him in

       sexual intercourse, which was the basis of Count V, and that he had confined

       her in the apartment to do so, which was the basis for Count VIII.

       Accordingly, we affirm Smith’s convictions.


                                      Issue Five: Appellate Rule 7(B)

[20]   Finally, Smith asserts that his 179-year aggregate sentence is inappropriate in

       light of the nature of the offenses and his character. Indiana Appellate Rule

       7(B) provides that “[t]he Court may revise a sentence authorized by statute if,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 11 of 14
       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.” As the Indiana Supreme Court has explained, the “principal

       role of appellate review” under Rule 7(B) “should be to attempt to leaven the

       outliers” and not to “achieve a perceived ‘correct’ result in each case.” Cardwell

       v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant has the burden to

       persuade us that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d

       482, 494 (Ind. 2007).


[21]   For his five Level 1 felony convictions, his three Level 3 felony convictions, and

       the habitual offender adjudication, Smith faced a maximum possible term of

       268 years. See Ind. Code §§ 35-50-2-4(b), -5(b), -8(i)(1) (2018). In imposing

       Smith’s sentence, the trial court concluded that there were no mitigating

       circumstances, but the court concluded that the following aggravating

       circumstances did exist: Smith’s criminal history, that there were multiple

       victims, and that Smith had conducted multiple acts of sexual violence. The

       court further found the extraordinary injuries suffered by T.J. to be an

       additional aggravating circumstance. In light of those findings, the court

       ordered Smith to serve the advisory sentence for each conviction, but the court

       ordered the sentences for each rape conviction, and the sentence for the

       criminal confinement conviction relating to T.J., to run consecutively, for an

       aggregate term of 179 years.


[22]   Smith asserts that his 179-year term is inappropriate because “these offenses

       were not particularly heinous”; because “the offenses . . . were a part of a single

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 12 of 14
       episode of criminal conduct”; because neither L.R. or A.Y. “needed

       hospitalization”; because he was not “factually or legally responsible for [T.J.’s]

       injuries”; and because his criminal history is “not the ‘worst of the worst.’”

       Appellant’s Br. at 53-54. Smith goes on to state that his sentence “smacks of

       vindictive justice” and that, “if the trial court wanted to impose a sentence that

       ensured that [he] die in prison, it could have come up with a sentence without

       the fanfare of a 179 year term.” Id. at 55.


[23]   We initially note that Smith’s arguments that his sentence fails to account for a

       single episode of criminal conduct, is the result of unconstitutional vindictive

       justice, or is inappropriate “fanfare” are not supported by cogent reasoning. See

       Ind. Appellate Rule 46(A)(8)(a). Thus, we do not consider those purported

       arguments.


[24]   We cannot say that Smith’s sentence is inappropriate in light of the nature of

       the offenses. Smith thrice lured women into an abandoned apartment on the

       fourth floor of a residential tower, where he confined them, brandished a knife,

       and compelled them to engage him in multiple sex acts. And, in escaping from

       her confinement, T.J. suffered substantial injuries. Nothing about the nature of

       Smith’s offenses renders his consecutive, advisory terms inappropriate.


[25]   We also cannot say that Smith’s sentence is inappropriate in light of his

       character. Smith has five prior felony convictions and five prior misdemeanor

       convictions spanning twenty years. He committed the instant offenses while on

       parole for a prior felony offense. He has also previously had his probation


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 13 of 14
       revoked. And he owes more than $100,000 in child support. Smith’s sentence

       is not inappropriate in light of his character. We affirm his 179-year aggregate

       sentence.


                                                 Conclusion
[26]   In sum, we affirm Smith’s convictions and sentence.


[27]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-505 | October 29, 2018   Page 14 of 14
