Stevie D. Tyus v. State of Indiana

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Pursuant to Ind.Appellate Rule 15(A)(3), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

 
ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

SCOTT A. DANKS    JEFFREY A. MODISETT
DANKS & DANKS    Attorney General of Indiana

             JANET BROWN MALLETT
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

STEVIE D. TYUS, ) ) Appellant-Defendant, ) ) vs. ) No. 82A01-9804-CR-159 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Richard L. Young, Judge
Cause No. 82C01-9708-CF-00750

 
October 6, 1998

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge Case Summary

    Appellant-defendant, Stevie D. Tyus ("Tyus"), appeals his sentence for Reckless Homicide, a Class C felony. We affirm.
Issues
    Tyus raises three issues which we restate as:
    I.     Whether the trial court incorrectly applied an aggravating factor to enhance
        Tyus' sentence;

    II.     Whether the trial court erred by ignoring mitigating factors; and,

    III.    Whether the sentence is manifestly unreasonable.

Facts and Procedural History
    The facts most favorable to the judgment show that on August 6, 1997, Tyus drove to the home of the victim, Damond Miller ("Miller"), and waited for two hours for him to return home. Tyus claims that he wanted to confront and fight Miller following a previous altercation, wherein Miller knocked Tyus' fiancée unconscious and threw Tyus to the ground. When Miller arrived home, Tyus confronted him. He fired four "warning shots" away from Miller because he thought Miller might have a gun. Accordingly, Miller dove into his car for cover. Tyus followed Miller into the car and began to hit him over the head repeatedly with his gun. Miller put his hands up and stated "let's talk" but subsequently reached for Tyus' gun. The gun discharged, and Miller was shot in the abdomen. Miller died as a result of the gunshot wound. The State charged Tyus with Murder, however, the jury convicted

Tyus of Reckless Homicide, a lesser included offense. The judge sentenced Tyus to eight years, the maximum sentence for a Class C felony, after concluding that the aggravating factors in the case outweighed the mitigating factors. This appeal ensued.
Discussion and Decision
I.
    Tyus argues that the trial court improperly considered the "depreciating the seriousness of the crime" consideration as an aggravating factor. We disagree.
    Indiana Code § 35-38-1-7.1(b)(4) allows the court to consider as an aggravating factor whether "[i]mposition of a reduced sentence . . . would depreciate the seriousness of the crime." As the language of the statute makes clear, a trial court should only use the "depreciate seriousness" consideration as an aggravating factor when it is considering a reduced sentence; thus, where a court justifies an enhanced sentence on this aggravator alone, the trial court has erred. Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)
    The trial court properly applied the "depreciate seriousness" factor in this case. At the sentencing hearing, the trial court stated: "I believe that a suspended or reduced sentence would depreciate the seriousness of the offense." (R. 567-68)(emphasis added). This statement followed a specific request by defense counsel to impose a less than presumptive sentence. Thus, the record discloses that the court did not use this factor to enhance Tyus' sentence. Rather, the court enhanced Tyus' sentence based on other aggravating factors that Tyus does not dispute.
    II.     Additionally, Tyus argues that the trial court erred by ignoring mitigating factors clearly delineated in the record. For example, Tyus complains that the trial court ignored that he earned an honorable discharge from the Air Force and a Bachelor of Science Degree. Again, we conclude that the trial court did not err.
    The trial court has the discretion to determine whether a sentence will be enhanced or mitigated due to aggravating or mitigating factors. Concepcion v. State, 567 N.E.2d 784, 790 (Ind. 1991). A finding of mitigating circumstances is within the trial court's discretion. Green v. State, 650 N.E.2d 307, 310 (Ind. Ct. App. 1995). Nevertheless, if a trial court bases a sentence on mitigating or aggravating factors, the trial court is obliged to consider and address all evidence of significant mitigating and aggravating circumstances. Crawley v. State, 677 N.E.2d 520, 521 (Ind. 1997); Indiana Code § 35-38-1-3. Thereafter, the trial court must evaluate and balance the mitigating and aggravating factors. Id. A trial court is not obligated to weigh the mitigating circumstances in the same manner as the defendant. Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986).
    The trial court sufficiently considered the mitigating factors presented at the sentencing hearing and adequately weighed them against the aggravating factors. Although the trial court judge did not restate every specific mitigating factor at the sentencing hearing, his comments either expressly or impliedly addressed the significant mitigating circumstances presented by defense counsel. The judge expressly stated that the defendant had no criminal history and that he had a stable work history; additionally, the court acknowledged that Tyus showed remorse for the crime. The judge impliedly addressed other

mitigating factors when he stated that prior to the crime in question Tyus was a role model and that he would be unlikely to commit "a crime like this considering his prior background." (R. 567)(emphasis added). Such comments evidence that the trial court considered all evidence of significant mitigating factors.
    III.
    Finally, Tyus argues that his sentence was manifestly unreasonable. We cannot agree.
    The trial court has the discretion to determine the sentence of the defendant, and the decision of the court will be reversed only for an abuse of that discretion. Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994). As mentioned, the trial court has the discretion to determine whether a sentence will be enhanced or mitigated due to aggravating or mitigating factors. Concepcion, 567 N.E.2d at 790. A sentence which is authorized by statute will not be reversed unless the sentence is manifestly unreasonable. Beason v. State, 690 N.E.2d 277, 284 (Ind. 1998); Indiana Appellate Rules, Rule 17(B).
    Tyus argues that the only factor outlined under Indiana Code § 35-38-1-7.1(a) that justifies an enhanced sentence is "the nature and circumstances of the crime." According to Tyus, the trial court could not reasonably conclude that the aggravating factors outweighed the mitigating factors; for, the trial court found that Tyus had an exemplary character and was unlikely to commit a similar crime in the future. Tyus' argument is without merit. The trial court's findings highlight what this court has already concluded: that the trial court carefully considered the mitigating circumstances of the case. The trial court simply concluded that these factors were outweighed by the "nature and circumstances of the case." Tyus laid in

wait for the victim. Correspondingly, laying in wait with the intent to inflict bodily injury is a proper aggravating factor. Kingery v. State, 659 N.E.2d 490, 497 (Ind. 1995). Additionally, Tyus shot the weapon used in the crime five times. Such a particularized method of using a weapon can be considered an aggravating factor. Ector, 639 N.E.2d at 1016 (Ind. 1994). Based on the record, therefore, we believe that the trial court's sentence is reasonable. The trial court considered all of the relevant evidence regarding aggravating and mitigating factors and sentenced Tyus accordingly.
    Affirmed.
KIRSCH, J., and STATON, J. concur.

Converted by Andrew Scriven