      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                          FILED
      this Memorandum Decision shall not be                                      May 04 2018, 10:17 am
      regarded as precedent or cited before any
                                                                                      CLERK
      court except for the purpose of establishing                                Indiana Supreme Court
                                                                                     Court of Appeals
      the defense of res judicata, collateral                                          and Tax Court

      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                 Attorney General of Indiana
      Brooklyn, Indiana
                                                              Matthew B. Mackenzie
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Phillip Evans,                                          May 4, 2018
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              84A01-1709-CR-2116
              v.                                              Appeal from the Vigo Superior
                                                              Court
      State of Indiana,                                       The Honorable Michael J. Lewis,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              84D06-1401-MR-51



      Barnes, Judge.


                                             Case Summary
[1]   Phillip A. Evans appeals his sixty-year sentence for murder. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018                  Page 1 of 7
                                                     Issue
[2]   The sole issue before us is whether Evans’s sentence is inappropriate in light of

      the nature of the offense and his character.


                                                     Facts
[3]   Pamela Jones and her boyfriend, Devlin Decker, planned to host a party in

      Terre Haute on December 31, 2013. That evening, they picked up Decker’s

      uncle, Evans, and his roommate, Joshua Thomas. They stopped briefly at a gas

      station so Evans could withdraw money from an ATM. Evans returned to the

      car and angrily accused Thomas, whom he had earlier allowed access to his

      bank card, of withdrawing money from his account. Thomas denied doing so.

      They all returned to Jones’s home and drank until they were intoxicated.


[4]   Later, Thomas began to flirt with Jones. Decker and Thomas argued and

      began to fight. The fight spilled outside. Evans, who was still angry with

      Thomas, followed Decker and Thomas outside. Evans watched as Decker

      kicked and punched Thomas repeatedly. Jones’s next door neighbors, Eric and

      Diana Goucher, heard the commotion, looked outside, and saw Thomas with

      “his hands up . . . saying I’m sorry, please stop[.]” Tr. p. 179. Decker knocked

      Thomas off the porch onto the concrete surface below. When Thomas rose to

      his hands and knees, Decker lifted a wooden table weighing approximately fifty

      pounds and slammed it down onto his head. Decker then walked back into

      Jones’s house. When Thomas attempted to re-enter the house, Evans pinned

      him against the house, “kind of looked around and took a step back and hit


      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 2 of 7
      him.” Id. at 26. Thomas’s body went limp and “fell onto [Evans].” Id. at 27.

      Both men crashed off the porch with Evans landing on top of Thomas. The

      noise brought Decker running from the house; he jumped off the porch, and

      “started to stomp [Thomas] in the head and Phillip Evans started to kick

      [Thomas] in the side.” Id. at 29. Thomas was unconscious.


[5]   Diana Goucher dialed 911 “telling them they need[ed] to hurry up cause

      [Decker and Evans were] gonna hurt [Thomas] bad.” Id. at 181. “[T]hey were

      kicking him so hard that, in the head and stuff [that she] looked away at one

      point.” Id. Decker and Evans stopped their attack on Thomas when they “saw

      [the Gouchers] looking out the window” at them. Id. Decker enlisted a newly-

      arrived party guest, Camron Wormser, to help him move Thomas. As

      Wormser helped drag Thomas, Decker resumed kicking Thomas’s head.


[6]   Officers of the Terre Haute Police Department arrived at the scene. Decker ran

      into Jones’s house in a panic and told her that he had stabbed Thomas. Soon

      thereafter, Evans came into the house and told Jones and Wormser’s girlfriend,

      Courtney Dailey, that he too had stabbed Thomas. Medical responders

      transported Thomas to the hospital, where he died. An autopsy revealed

      multiple abrasions to his head and torso as well as three stab wounds, one of

      which had perforated his heart, killing him.


[7]   Evans told Detective Darren Long of the Terre Haute City Police Department

      that he had called 911; that four members of the Aryan Brotherhood had

      attacked Thomas; and that they had knocked Evans unconscious when he tried


      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 3 of 7
      to render aid. The Gouchers contradicted Evans’s account and advised that

      Evans was “not a witness” but a participant in the attack on Thomas. Id. at 95.


[8]   On January 8, 2014, the State charged Evans with murder and Class B felony

      aggravated battery, later filing an additional information alleging that he was an

      habitual offender. He was tried by a jury and found guilty as charged on May

      11, 2017. On August 16, 2017, the trial court imposed a sixty-year sentence for

      the murder conviction and enhanced that sentence by thirty years because

      Evans was an habitual offender. He now appeals his sixty-year sentence.1


                                                      Analysis
[9]   Evans argues that his sixty-year sentence is inappropriate in light of the nature

      of the offense and his character. Indiana Appellate Rule 7(B) provides that we

      may revise a sentence authorized by statute if, after due consideration of the

      trial court’s decision, we find that the sentence is inappropriate in light of the

      nature of the offenses and the character of the offender. When considering

      whether a sentence is inappropriate, we need not be “extremely” deferential to

      a trial court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.

      Ct. App. 2007). Still, we must give due consideration to that decision. Id. We

      also understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. Under this rule, the burden is on the defendant to




      1
          Evans does not challenge the thirty-year habitual offender enhancement.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 4 of 7
       persuade the appellate court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       correct result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[11]   Under Indiana Code Section 35-50-2-3, a person convicted of murder “shall be

       imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years,

       with the advisory sentence being fifty-five (55) years.” Evans argues that his

       sixty-year sentence is inappropriate because “Decker was the primary

       aggressor”; that his own “actual participation in the fight was . . . not as

       involved as Decker’s”; that Decker “apparently inflicted the fatal stab wounds”;

       that the most serious offense on his extensive criminal history is a Class C

       felony; that he suffers from mental illness and alcohol abuse; that he expressed

       remorse at sentencing and offered condolences to Thomas’s family; and that he

       “did not intend to seriously harm or kill Thomas,” whom he “had taken in”

       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 5 of 7
       and “provided . . . with a home when Thomas needed help.” Appellee’s Br. p.

       12, 13, 14.


[12]   Regarding the nature of the offense, the record reveals that Evans and Decker

       both viciously kicked, punched, and stabbed Thomas in an attack that ended his

       life. The record is clear that Thomas died of a knife wound to his heart. As for

       his character, in 1992, Evans was admitted to an inpatient program as a

       juvenile “for his violent behavior” and “was diagnosed with oppositional

       defiant disorder and conduct disorder.” Conf. App. Vol. III, p. 11. In 2001, he

       was court-ordered to attend anger management courses, but was discharged for

       failing to attend sessions. His pre-sentencing investigation report states, “[He]

       stated that he is innocent in this case and that his drinking caused him to lie to

       the police”; “[h]e has abused alcohol for many years and been referred to

       treatment multiple times”; but “[h]e has never successfully completed

       treatment.” Id.


[13]   Evans’s criminal history includes three juvenile adjudications for theft and

       alcohol consumption by a minor, as misdemeanors, and felony criminal

       recklessness. As an adult, he has ten misdemeanor convictions for alcohol

       consumption by a minor, driving with a suspended license (twice), receiving

       stolen property, glue sniffing, public intoxication (three times), criminal

       trespass, and possession of marijuana, as well as five felony convictions for

       sexual battery, battery resulting in bodily injury, intimidation, and failure to

       register as a sex offender, as Class D felonies, and Class C felony battery

       resulting in bodily injury. In the instant offense, Evans looked on as Decker

       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 6 of 7
       brutally kicked, punched, and smashed a fifty-pound table on Thomas’s head.

       For his part, Evans looked around to see if he was being watched before he

       stabbed Thomas; he also kicked Thomas as he lay unconscious and lied to

       police investigators at the scene.


[14]   Evans’s multiple contacts with the criminal justice system and court-ordered

       participation in treatment programs or alcohol and drug abuse and mental

       health issues have not deterred him from violent crime. Given his extensive

       criminal history, including multiple battery convictions, his inability and

       unwillingness to address his alcohol problem and to correct his behavior, the

       viciousness of his attack on Thomas, and his fabricated claims of rogue

       assailants and his own heroics, we cannot say that his sentence is inappropriate.


                                                 Conclusion
[15]   Evans’s sixty-year sentence is not inappropriate. We affirm.


[16]   Affirmed.


[17]   Vaidik, C.J, and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2116 | May 4, 2018   Page 7 of 7
