David J. Harman v. State of Indiana
2014 Ind. App. LEXIS 77
| Ind. Ct. App. | 2014Background
- On May 31, 2011, David J. Harman entered J.R. Jenkins’s home and brutally attacked the 77‑year‑old: beating, striking with a chair, kicking, and slicing Jenkins’s throat; Jenkins nearly bled to death and spent ~2 months hospitalized. Harman was nicknamed “Red.”
- Jenkins identified Harman in the hospital by writing “Red.” Harman made statements to bystanders admitting severe violence and attempted to wash/dispose of clothes and boots after the attack.
- The State charged Harman with Class A attempted murder, Class B aggravated battery, and Class C battery; the jury convicted him on all counts and the court merged lesser counts into the Class A conviction.
- Prior to trial the State obtained a motion in limine excluding (1) Jenkins’s 1979 convictions for conspiracy/solicitation/attempted murder and (2) a more recent protective‑order violation by Jenkins against his ex‑wife Cathy; the court prohibited introduction of those matters absent the door being opened.
- At trial Harman sought to offer a police report regarding the protective‑order violation as an offer of proof; the court heard proffer and denied admission as irrelevant/remote/hearsay but formally marked the report as an offered-and-refused exhibit. Harman did not make an offer to prove about the 1979 convictions.
- At sentencing the court found multiple aggravators (seriousness of injury, brutal nature, victim’s age, Harman’s criminal history, lack of remorse, violent propensity), found no mitigators, and imposed 45 years (advisory is 30; range 20–50). Harman appealed.
Issues
| Issue | State's Argument | Harman's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying opportunity to make offer of proof about protective‑order incident | Court properly allowed proffer and considered the police report but excluded it as irrelevant/remote/hearsay; no denial of chance to make offer | Court denied opportunity to make offer to prove excluded evidence, violating preservation rules | Reversed? No. Court held no abuse — trial court afforded opportunity to proffer, and properly excluded the report for relevance/hearsay; appellant failed to show abuse |
| Whether exclusion of Jenkins’s 1979 convictions was erroneous | Exclusion under motion in limine was proper; defendant failed to make offer to prove at trial so issue waived | Evidence of prior violent convictions was relevant to impeachment/identification/credibility | Held: waived on appeal for failure to make proper offer to prove; no review of admissibility |
| Whether trial court abused discretion by failing to find mitigators (military service; limited criminal history; family support) | Court appropriately evaluated mitigators and need not credit them; evidence not sufficiently significant or clearly supported | Military service, limited criminal history, and family support should be mitigating | Held: No abuse — military service and limited history were not clearly significant mitigators; family‑support argument waived for lack of cogent briefing |
| Whether 45‑year sentence is inappropriate under App. R. 7(B) | Sentence within statutory range and supported by brutal facts, severe injuries, offender character and multiple aggravators | Sentence excessive/inappropriate given Harman’s character and circumstances | Held: No — 45 years is not inappropriate given nature of offense and offender; appellate court affirms sentence |
Key Cases Cited
- Stroud v. State, 809 N.E.2d 274 (Ind. 2004) (standard for reversing exclusion of evidence and preservation via offer of proof)
- Nelson v. State, 792 N.E.2d 588 (Ind. Ct. App. 2003) (requirements and importance of offering an offer of proof)
- Arhelger v. State, 714 N.E.2d 659 (Ind. Ct. App. 1999) (purpose of offers of proof to preserve error)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standards for abuse of discretion in sentencing and treatment of mitigators)
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (App. R. 7(B) review: role and focus of sentence‑appropriateness review)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (guidance on appellate sentence revision and limits of 7(B) review)