97 N.E.3d 253
Ind. Ct. App.2018Background
- In April 2016 Howell shot Beverly Karns in the head during a confrontation; he then left with her truck, wrecked it, fled into woods, later fired into a truck occupied by Charles Scales (wounding him), and stole a different vehicle before surrendering.
- Howell was charged with murder (Count 1), attempted murder of Scales, attempted robbery while armed, and auto theft; jury convicted him of voluntary manslaughter (lesser-included of murder), criminal recklessness (lesser-included of attempted murder), attempted robbery, and auto theft; he admitted firearm use on the manslaughter count.
- Trial court found multiple aggravators (including victim injury/age, substance abuse, presence of children, attempted body disposal, high-speed chase) and no mitigators; sentenced to 25 years for voluntary manslaughter + 15-year firearm enhancement, 15 years for attempted robbery (concurrent with recklessness), and 2 years for auto theft, for an aggregate 57 years.
- On appeal Howell argued (1) Instruction 9 on lesser-included offenses created fundamental error; (2) double jeopardy barred dual convictions for attempted robbery and criminal recklessness; (3) firearm enhancement was improper because offenses were a single episode of criminal conduct; (4) sentencing abused discretion and was inappropriate.
- The Court of Appeals affirmed the manslaughter conviction and the sentence, held attempted robbery and criminal recklessness convictions violated Indiana double jeopardy principles, and remanded to vacate the criminal recklessness conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Howell) | Held |
|---|---|---|---|
| Jury instruction/fundamental error (Instruction 9 on lesser-included offenses) | Instruction 3 correctly defined murder and voluntary manslaughter; instructions as a whole cured any error. | Instruction 9 misstated law by directing the jury to consider lesser-included offenses if any element of murder was not proved, causing fundamental error. | Instruction 9 was erroneous in isolation but, taken with Instruction 3 and the charge as a whole, did not produce fundamental error; manslaughter conviction affirmed. |
| Double jeopardy: attempted robbery vs. criminal recklessness | The statutory elements differ; attempted robbery requires an attempted taking, while criminal recklessness focuses on risk creation, so convictions may stand. | Actual-evidence test: both convictions rested on the same evidentiary fact (discharging a firearm into Scales’s vehicle), so dual convictions violate Indiana double jeopardy. | Applying the actual-evidence test, there was a reasonable possibility the jury used the same facts (shooting into vehicle) for both convictions; criminal recklessness conviction must be vacated. |
| Firearm enhancement applicability (single episode of criminal conduct) | Firearm enhancement statute allows one enhancement per episode; enhancement properly applied to voluntary manslaughter because that offense qualifies and §35-50-1-2 definition governs “episode.” | Subsection (i) bars enhancement where the offense is part of a single episode of criminal conduct involving multiple offenses; here all offenses were a single episode so enhancement improper. | §35-50-1-2(b) definition applies; offenses were not a single episode (shooting in Vanderburgh v. subsequent Warrick County acts were not closely related in time/place/circumstance); enhancement on manslaughter was proper. |
| Sentencing aggravators and appropriateness under App. R. 7(B) | Trial court permissibly relied on particularized facts (victim injury, age, drug history, attempted disposal, chase) to aggravate; sentence within statutory range. | Trial court abused discretion by finding improper aggravators (lack of remorse, intent to harm Scales) and sentence is inappropriate given character and nature of offense. | No abuse of discretion: court’s aggravators were supported by record and particularized facts; appellant failed to show sentence was inappropriate. Aggregate sentence affirmed. |
Key Cases Cited
- Quiroz v. State, 963 N.E.2d 37 (Ind. Ct. App. 2012) (jury instructions judged as a whole; error reversible only if misleading)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (failure to contemporaneously object waives issues absent fundamental error)
- Brown v. State, 929 N.E.2d 204 (Ind. 2010) (definition and narrowness of fundamental error doctrine)
- Evans v. State, 727 N.E.2d 1072 (Ind. 2000) (voluntary manslaughter defined by sudden heat; State must negate sudden heat once raised)
- Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App. 2013) (instructional structure that prevents consideration of lesser-included offenses can require reversal or ineffective-assistance review)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (Indiana actual-evidence double jeopardy test explained)
- Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (reasonable-possibility standard for actual-evidence test)
- Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (defendant must show reasonable possibility that same facts supported multiple convictions)
- Stewart v. State, 866 N.E.2d 858 (Ind. Ct. App. 2007) (firing at/into occupied vehicle can support both attempted and recklessness convictions under actual-evidence analysis)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (distinct evidentiary bases can permit convictions for separate offenses arising from same episode)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standards for appellate review of sentencing and abuse of discretion)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (Appellate Rule 7(B) review principles)
- Stephenson v. State, 29 N.E.3d 111 (Ind. 2015) (burden on defendant to show sentence inappropriate)