Carter v. State

31 N.E.3d 549 (Table)

Darrell Dewayne CARTER, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1403–CR–108.

Court of Appeals of Indiana.

March 30, 2015.

Gregory L. Fumarolo, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Larry D. Allen, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

KIRSCH, Judge.

[1] Following a jury trial, Darrell Dewayne Carter was convicted of Class A felony burglary,¹ Class C felony disarming a law enforcement officer,² and Class A misdemeanor resisting law enforcement.³ After the jury reconvened, Carter was found to be a habitual offender.⁴ The trial court sentenced Carter to an aggregate sentence of eighty-nine years executed with the Indiana Department of Correction. Carter appeals his convictions and sentence, raising the following issues:

I. Whether the State presented sufficient evidence to support Carter's convictions for burglary and disarming a law enforcement officer;

II. Whether the trial court erred in refusing Carter's request to give a lesser-included-offense jury instruction for burglary as a Class C felony;

III. Whether the trial court abused its discretion by allowing the State to proceed with a habitual offender enhancement, which Carter claims was belatedly filed; and

IV. Whether his eighty-nine year sentence is inappropriate in light of the nature of the offense and the character of the offender.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] On May 3, 2013, Captain William Corn, with the Fort Wayne Police Department (“FWPD”), responded to a burglar alarm at the Botanical Garden Conservatory (“Conservatory”) in Fort Wayne, Indiana. FWPD Detective Brent Roddy also responded to the alarm. Once at the Conservatory, Captain Corn, who was in uniform, and Detective Roddy, who was in plain clothes with a badge on his belt, checked the outside of the building, but found no signs of forced entry. Robert Anspach, a Conservatory employee, arrived at the scene and escorted the officers inside the building to check for an intruder. Anspach told the officers that no one was supposed to be in the building. Upon entering the Magnolia Room, the men heard a metallic banging sound, which Anspach said was not normal. Anspach and Captain Corn continued through the Conservatory, and Detective Roddy maintained his watch in the Magnolia Room, which was a common exit for the building.

[4] Soon thereafter, Detective Roddy heard someone coming, and when Carter entered the room, Detective Roddy had his firearm in a “low ready” position. Tr. at 191.⁵ Carter did not have permission to be inside the Conservatory. When Detective Roddy saw that it was not Captain Corn, he raised his service firearm to a “high ready” position and “[g]ave [Carter] very loud verbal commands, stop, police, get on the ground.” Id. at 192. The men were about twenty to thirty feet away from each other. Id. at 218. Carter, moving toward Detective Roddy, “closed the distance faster than [Detective Roddy] could react, [Carter] then latched on top of [Detective Roddy's] service weapon.” Id. at 192. In the struggle, the magazine was released from Detective Roddy's gun and fell to the floor. Detective Roddy continued to give Carter “verbal commands to get away from me, let go of my gun, get on the ground.” Id. at 193.

[5] Captain Corn, upon hearing Detective Roddy shout “Police! Get on the ground. Get on the ground,” ran back to the Magnolia Room to help. Id. at 119–20, 193. The Magnolia Room was well lit, and Captain Corn could see Carter struggling with Detective Roddy. He could also see Detective Roddy's gun magazine on the floor. Detective Roddy had a grip on his pistol, and Carter, who was holding the barrel as it pointed in his direction, still had both of his hands on Detective Roddy's gun. Id. at 120.

[6] Captain Corn “moved in and gave a front kick to [ ] Carter. And that was enough that [Carter] disengaged and backed off a little bit.” Id. at 121. Captain Corn “tried to direct [Carter] to the ground, ... [but Carter] just stood there looking about.” Id. At some point, Captain Corn holstered his gun, “moved in,” grabbed Carter by his lapels, “[t]ried to pull him down, and put some knee strikes on him.” Id. Carter, who was eighty to one hundred pounds heavier than Captain Corn, did not budge.” Id. at 121–22. Captain Corn could not maintain his grip, and Carter “just turned” around and “went through the door.” Id. at 121.

[7] Captain Corn and Detective Roddy pursued Carter outside the Conservatory, but temporarily lost sight of him when Carter jumped over a fence and attempted to hide in some underbrush. As Captain Corn was getting ready to go over the fence, he noticed that “the end of [his] left hand, his ring finger[,] was just dangling.” Id. at 122. Upon being discovered in the underbrush, Carter climbed onto the roof of a covered walkway next to the Conservatory and then jumped nearly forty-five feet down into a drainage ditch. Carter was apprehended by other officers who had responded to the scene. Captain Corn was transported to a nearby hospital where he learned that the tendon had detached at the last joint of his finger, causing a condition called “[h]ammer finger.” Id. at 125. Detective Roddy, who had remained at the scene, was able to identify Carter as the person who had broken into the Conservatory. Inside the Conservatory, officers found several damaged door frames, tools that were “apparently used in the break in,” and a safe with a screwdriver sticking out of it. Tr. at 157–61; State's Exs. 7–19. Later, officers found pry marks on a door leading into the Conservatory from a courtyard. Tr. at 158; State's Ex. 6.

[8] On May 9, 2013, the State charged Carter with: Count I, Class A felony burglary resulting in bodily injury; Count II, Class C felony disarming a law enforcement officer; Count III, Class D felony resisting law enforcement; and Count IV, Class A misdemeanor resisting law enforcement. On January 21, 2014, the State filed a notice of intent to add a habitual offender enhancement to the charging information. Also on that date, the State filed a motion to dismiss Count III. Following a hearing, the trial court granted the State's motion to dismiss Count III and allowed the State to add a habitual offender enhancement. Supp. Tr. at 11.⁶ Carter did not request a continuance; in fact the trial judge specifically asked him if it was his “decision to proceed to trial [the next day].” Id. at 13. To which Carter responded, “Yes.” Id.

[9] A two-day trial commenced on January 29, 2014. During the second day of trial, and out of the presence of the jury, counsel discussed the final jury instructions. Specifically, Carter requested that the trial court give the jury an instruction on Class C felony burglary as a lesser-included offense of Count I. The trial court denied the request. Final instructions were read, and after deliberations, the jury returned verdicts of guilty on the remaining three counts. The jury was reconvened on the habitual offender phase and found Carter to be a habitual offender.

[10] Following a sentencing hearing, the trial court sentenced Carter to fifty years for the burglary, enhanced by a term of thirty years for being a habitual offender, eight years for disarming a law enforcement officer, and one year for resisting law enforcement. The trial court ordered all sentences to run consecutively to each other, for an aggregate sentence of eighty-nine years executed with the Department of Correction. Carter now appeals his convictions and sentence.

Discussion and Decision

I. Sufficiency of the Evidence

[11] On appeal, Carter contends that there was insufficient evidence to support his convictions for Class A felony burglary resulting in bodily injury and Class C felony disarming a law enforcement officer. Upon a challenge to the sufficiency of evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. Mc Henry v. State, 820 N.E.2d 124, 126 (Ind.2005) ; Toney v. State, 961 N.E.2d 57, 58 (Ind.Ct.App.2012). We consider only the probative evidence supporting the verdict and reasonable inferences drawn therefrom, and we will affirm if that evidence and those inferences could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Toney, 961 N.E.2d at 58.

[12] Indiana Code section 35–43–2–1 provides, “[a] person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony.” Burglary is elevated to a Class A felony if it results in “bodily injury” or “serious bodily injury” to “any person other than the defendant.” Ind.Code § 35–43–2–1(2). Therefore, to convict Carter of Class A felony burglary, the State had to prove that he broke and entered the Conservatory, with intent to commit a felony therein, and that the burglary resulted in bodily injury or serious bodily injury to one other than Carter. Indiana Code section 35–31.5–2–29 defines “bodily injury” as “any impairment of physical condition, including physical pain.”

[13] Carter “concedes that, based upon the evidence presented, a reasonable trier of fact could have found [him] guilty of a Class C felony burglary.” Appellant's Br. at 13. Instead, he contends that “it was unreasonable for the jury to find him guilty of Class A felony burglary because there was insufficient evidence that the burglary resulted in injury to Captain Corn's finger.” Id. at 13–14. During trial, Captain Corn testified that he “grabbed [Carter] by his lapels,” and injured his finger “when [he] engaged in [sic] Mr. Carter.” Tr. at 121, 122. In describing the injury to his finger, Captain Corn further stated, “It has a slight dip to it, and always will. It doesn't...