Smith v. State

1

Eric J. Smith, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 23A-CR-692

Court of Appeals of Indiana

October 31, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Sullivan Superior Court The Honorable Hugh R. Hunt Judge Trial Court Cause No. 77D01-2110-F5-674

ATTORNEY FOR APPELLANT Spenser G. Benge The Law Office of Spenser G. Benge Anderson, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

CRONE JUDGE.

Case Summary

[¶1] Following a jury trial, Smith was convicted of operating a motor vehicle while privileges are forfeited for life, a level 5 felony, and was sentenced to six years executed. On appeal, Smith argues that the trial court abused its discretion in refusing his necessity defense instruction and in considering aggravating and mitigating factors at sentencing. Smith also contends that his sentence is inappropriate in light of the nature of the offense and his character and that it violates the Indiana Constitution's proportionality clause. We affirm.

Facts and Procedural History

[¶2] On October 10, 2021, Sullivan County Sheriff's Deputy Colt Thompson ran the license plate of a passing pickup truck and discovered that its registered owner, Smith, "was a habitual traffic violator [HTV] for life[,]" i.e., that Smith's driving privileges had been forfeited for life. Tr. Vol. 2 at 135. Deputy Thompson stopped the truck, confirmed that the driver was Smith, and confirmed that Smith "was HTV for life[.]" Id. at 140. The deputy determined that Smith's passenger, Brenda St. John, "had a valid driver's license." Id. St. John told the deputy that "she was dumped out in the coal mine by her boyfriend, that they had been into a domestic situation, and she had called [Smith] to come pick her up." Id. at 144. Smith gave the deputy "the same story[.]" Id. at 145. Deputy Thompson arrested Smith.

[¶3] The State charged Smith with operating a motor vehicle while privileges are forfeited for life, a level 5 felony. A jury trial was held in February 2023. The State presented testimony from Deputy Thompson, as well as evidence that Smith's driving privileges were forfeited for life in 2010. Smith testified that he had known St. John for approximately thirty years. According to Smith, on October 10, St. John had called him "[v]ery distraught" and "crying profusely[,]" saying that she "and her boyfriend had gotten into a big fight and that he'd slapped her around, threw her and all of her belongings out of the car, that she was out on the rural county road[.]" Id. at 174. "She stated that she had called multiple people and couldn't get anybody to answer." Id. at 178-79. Smith testified that he drove toward St. John's location and was flagged down by two farmers who had picked her up in their truck. The farmers "threw her belongings in the back of [Smith's] truck, and [St. John] hopped in the truck." Id. at 175. Smith claimed that St. John was in no condition to drive his truck at that point because "she was pretty much in hysterics for a while[.]" Id. at 176. On cross-examination, Smith acknowledged that St. John had cell service and "could have called the police[.]" Id. at 178. Smith also acknowledged that "calling the cops would have been an adequate alternative to [him] driving as an HTV[.]" Id. at 184.

[¶4] At the close of evidence, Smith tendered an instruction on the defense of necessity, which the trial court refused on the basis that Smith himself admitted that "there was another alternative" to him driving his truck to pick up St. John. Id. at 193. The jury found Smith guilty as charged. At sentencing, the trial court found Smith's extensive criminal history, including his eleven driving-related convictions, as an aggravating factor, and it found no mitigating factors. The court remarked that Smith had been convicted of the same offense in Porter County in 2014 and was given "the sentence of six years at the Department of Correction[] with two years suspended, so it's hard for me to go lower than that [_] when we've got that." Id. at 243. The court sentenced Smith to the statutory maximum of six years executed. This appeal ensued.

Discussion and Decision

Section 1 - The trial court did not abuse its discretion in refusing Smith's necessity defense instruction.

[¶5] Smith first contends that the trial court erred in refusing his necessity defense instruction. "The giving of jury instructions is a matter within the sound discretion of the trial court, and we review the trial court's refusal to give a tendered instruction for an abuse of that discretion." Howard v. State, 755 N.E.2d 242 247 (Ind.Ct.App. 2001).

Generally, we will reverse a trial court for failure to give a tendered instruction if: (1) the instruction is a correct statement of the law; (2) it is supported by the evidence; (3) it does not repeat material adequately covered by other instructions; and (4) the substantial rights of the tendering party would be prejudiced by failure to give it.

Id.

[¶6] In Indiana, the law "is well settled that a defendant in a criminal case is entitled to have the jury instructed on any theory or defense which has some foundation in the evidence." Toops v. State, 643 N.E.2d 387, 389 (Ind.Ct.App. 1994).

"And this is so even if the evidence is weak or inconsistent." Id. at 390. As reflected in Smith's tendered instruction, "six factors must be present in order to establish a necessity defense." Hernandez v. State, 45 N.E.3d 373, 377 (Ind. 2015). One of those factors is that "[t]here was no adequate alternative to the commission of the act[.]" Id. at 376.^[1] Here, the act at issue was operating a motor vehicle while privileges are forfeited for life, and Smith himself admitted that there was an adequate alternative to the commission of that act: calling the police for assistance. Accordingly, we conclude that Smith's instruction was not supported by the evidence, and thus the trial court did not abuse its discretion in refusing it.

Section 2 - The trial court did not abuse its discretion in sentencing Smith.

[¶7] Smith asserts that the trial court erred in considering aggravating and mitigating circumstances at sentencing. "Sentencing is a discretionary function of the trial court, which we review only for an abuse of discretion." Scott v. State, 162 N.E.3d 578, 581 (Ind.Ct.App. 2021). "A trial court abuses its discretion if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. at 582 (citation and quotation marks omitted).

A trial court may abuse its discretion at sentencing by: (1) failing to enter a sentencing statement, (2) entering a sentencing statement that includes reasons for imposing a sentence that are unsupported by the record, (3) leaving out factors advanced for consideration and supported by the record, or (4) providing reasons that are improper as a matter of law.

Addis v. State, 212 N.E.3d 183, 185 (Ind.Ct.App. 2023). "A trial court is not obligated to credit proffered mitigating factors in the same manner as the defendant, nor explain why a proffered mitigating circumstance was not found." T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind.Ct.App. 2016). "To support the allegation that the trial court failed to find a valid mitigating circumstance, a defendant must demonstrate that mitigating evidence is both significant and clearly supported by the record." Addis, 212 N.E.3d at 185 (citation, quotation marks, and brackets omitted).

[¶8] Smith contends that the trial court abused its discretion in considering his driving-related convictions as an aggravating circumstance, characterizing them as an element of his offense. Our supreme court has stated that "[w]here a trial court's reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is improper as a matter of law." Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (citation and quotation marks omitted). Smith argues,

[T]he State convicted Mr. Smith of driving a motor vehicle after his license was suspended as a Habitual Traffic Violator. Thus, Mr. Smith being a Habitual Traffic Violator was an element of his offense. When the trial court then found aggravation in his criminal history, noting especially his prior driving offenses -including the offenses which caused him to be adjudged a Habitual Traffic Violator and his convictions for operating a motor vehicle after being adjudged a Habitual Traffic Violator -it found an element of Mr. Smith's offense in aggravation for his sentence. This was "improper as a matter of law."

Appellant's Br. at 28 (quoting Gomillia, 13 N.E.3d at 853).

[¶9] The only elements of Smith's offense are that he operated a motor vehicle after his driving privileges were forfeited for life. Ind. Code § 9-30-10-17(a)(1). Smith cites no authority for the proposition that the predicate offenses that led to the suspension of his driving privileges for life, or those that were committed after the suspension but prior to the instant offense, are elements of that offense. Moreover, as the State points out, Smith has been convicted of numerous other felonies and misdemeanors. Accordingly, we find no abuse of discretion here.

[¶10] Smith also contends that the trial court abused its discretion in rejecting three...