Pursuant to Ind. Appellate Rule 65(D), 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:
DONALD C. SWANSON, JR. GREGORY F. ZOELLER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
May 29 2014, 10:16 am
IN THE
COURT OF APPEALS OF INDIANA
MARDEL HILL, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1309-CR-378
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D06-1209-FB-152
May 29, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
CRONE, Judge
Case Summary
The State charged Mardel Hill with class B felony burglary, class B felony attempted
arson, class D felony criminal mischief, and class D felony intimidation. Hill was found
guilty as charged and was sentenced to an aggregate term of twenty-two years. He appeals,
arguing that the evidence is insufficient to support his convictions and that his sentence is
inappropriate.1 Concluding that the evidence is sufficient to support Hill’s convictions and
that he fails to carry his burden to show that his sentence is inappropriate, we affirm.
Facts and Procedural History
The facts most favorable to the convictions follow. Hill and Tiana Washington had
been dating on and off for several years. Sometimes, Washington gave Hill a key to her
apartment. Tr. at 178, 396. Hill never gave the key back to her, so “whenever [she] needed
her key back, [she’d] have to sneak it back while he was asleep or something, or when he
wasn’t looking.” Id. at 179-80. On June 15, 2012, Washington gave a key to her apartment
to Hill’s mother for Hill’s use. At some point, she asked Hill to return her key. It was a
1
This is an appeal from cause number 02D06-1209-FB-152 (“Cause 152”). The State also charged
Hill in cause number 02D05-1209-FD-1263 (“Cause 1263”) with various other crimes. The State filed a
motion to join the charges in these causes, which the trial court granted. Indiana Appellate Rule 38 provides,
When two (2) or more actions have been consolidated for trial or hearing in the trial
court or Administrative Agency, they shall remain consolidated on appeal. If any party
believes that the appeal should not remain consolidated, that party may file a motion to sever
the consolidated appeal within thirty (30) days after the first Notice of Appeal is filed.
Although Causes 152 and 1263 were joined at trial, Hill did not file a consolidated appeal. He separately
appealed from each cause. This Court did not notice the error until another panel had issued an opinion in the
appeal of Cause 152. In Hill’s appeal from Cause 1263, he argued that the trial court erred in granting the
State’s motion to join the offenses. Another panel of this Court concluded that Hill invited any error based on
the allegedly improper joinder and affirmed Hill’s convictions. Hill v. State, No. 02A03-1309-CR-377, slip
op. at 3-4 (Ind. Ct. App. Mar. 27, 2014). Accordingly, we will not address the same joinder issue Hill raises in
this appeal because it has already been decided. We address only the issues pertaining solely to Cause 152.
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“struggle getting her key back.” Id. at 179. She had to “sneak [the key] off of his chain to
get it back from him.” Id. at 263.
On June 21, 2012, Washington thought that Hill did not have a key to her apartment.
That day, Washington and a friend drove up to her apartment building and saw Hill walking
out. Washington got out of the car, and Hill pulled her into her apartment. Washington saw
that her apartment door was open even though she had locked her door when she left. She
asked Hill how he got in, and he told her not to worry about it. She thought that Hill had the
key to her apartment and used it to unlock her door.
On July 12, 2012, Hill and Washington were arguing at her apartment. Hill stripped
Washington’s bed and hauled her new mattress out of the apartment. He told Washington
that “wasn’t no other man be sleeping in his bed or he would burn it down for another man
lay his head in there.” Id. at 192. Hill was “very jealous” and had told Washington that “if I
can’t have you[,] can no one have you.” Id.
Washington spent the next four nights at her parents’ home because she was afraid
that Hill would return to her apartment. She reported the mattress theft to the police. She
sent Hill a text message, asking him to return her mattress. Over the next three days, she
received numerous texts and calls from Hill. She responded to some of his texts, but did not
answer his calls. One of Hill’s calls to Washington was answered by a friend’s boyfriend.
On July 16, 2012, Washington returned to her apartment. When she opened the door,
she smelled gas and saw that her apartment had been “trashed.” Id. at 196. Flour, grease,
taco meat, detergent, and bleach had been thrown on the floor, walls, and furniture. The
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stove was on. Someone had piled pots and pans on it, and they were burned. Some of her
clothes had been thrown in the bathtub and bleach poured on them. Other belongings were
strewn about. The thermostat was set to approximately 100 degrees Fahrenheit, and the
water heater was turned to boiling. The smoke detector had been removed. Washington saw
a key to her apartment on the floor. No one that Washington knew other than Hill would
have had a reason to do this to her apartment. Id. at 375. Some of her possessions were
missing, including shoes and important papers such as her birth certificate and social security
card. Hill was the only person, other than Washington, who knew where she kept her
important documents. Id. at 216, 374.
Washington turned off the kitchen appliances and the gas and went to see her
neighbor, Jill Maroney. Maroney had been on vacation and had returned the day before.
Washington told Maroney what happened and called the police. Maroney went to
Washington’s apartment and saw trash and debris everywhere. She also saw that a canister
of flame retardant over the stove had deployed and that the lamp cover above the stove had
melted. The apartment was so hot that Maroney had to leave.
The arson investigator concluded that the fire was not an accident but had been started
by a person. Id. at 331. In the investigator’s opinion, if the flame retardant canister had not
deployed, the fire would have spread to the cabinets, through the apartment, and eventually to
the entire building. Id. at 332.
Washington gave the police her cell phone, which contained text messages between
Hill and Washington from July 10 to July 16, 2012. Id. at 244-48.; State’s Exs. 43-61. One
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of Hill’s texts read, “I gtta go im bout to f**k dis white girl in my nw bed.” State’s Ex. 47.
Washington sent Hill a text that told him to stop texting her and that she had a new boyfriend.
Hill sent a text that read, “yu cant never hide…im go beat yo ass, shot his ass den beat yo ass
again for thinkin im plyin.” State’s Ex. 56.
The State charged Hill in Cause 152 with class B felony burglary, class B felony
attempted arson, class D felony criminal mischief, and class D felony intimidation. The State
also charged Hill in Cause 1263 with other crimes. The State filed a motion to join the
offenses in Cause 1263 and Cause 152, which the trial court granted.
During Hill’s incarceration prior to trial, he made several phone calls to Washington,
which were recorded. In one of the conversations, Hill told Washington to go tell the
prosecutor that she wanted to dismiss the case and then walk out. Tr. at 416; State’s Ex. 65.
He also told her to “forget” his cell phone number and to tell the prosecutor that the phone
number that sent the texts to her cell phone was not his. Id. at 371, 414-15; State’s Ex. 65.
In a conversation they had just a few days before Washington was scheduled to give a
deposition, Washington stated, “I’m afraid my words are going to come out like I lied about
everything. …. They’re going to know I’m lying.” Id. at 412; State’s Ex. 62. Hill
responded, “[I]t don’t matter what they know they got to be able to prove it.” Id. at 413;
State’s Ex. 62. He also said, “[I]t don’t matter if they know you lying or not, if you tell them
that’s not what happened, then that’s not what happened.” Id.; State’s Ex. 62. They also
talked about what would happen if Washington did not show up to testify and the State
issued a warrant. Washington said, “[A] warrant wouldn’t be good.” Id. at 416; State’s Ex.
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62. Hill told Washington that she needed to get out of her mother’s house and go stay with
his mother or grandmother. Id. at 417. In another conversation, Washington told Hill that
she was mad because she did not have any shoes, and Hill responded, “[D]id I not say you
gonna get all that s**t back.” Id. at 374, 409; State’s Ex. 62.
At trial, Washington testified for the State. Hill testified in his defense. In Cause 152,
the jury found Hill guilty as charged.
At Hill’s sentencing hearing, the trial court stated that the nature of Hill’s offenses
was among the worst he had seen in twenty-five years on the bench. The trial court also
found that Hill’s criminal history was an aggravating factor because Hill had failed to
respond to multiple efforts at rehabilitation. The trial court found no mitigating
circumstances. The trial court sentenced Hill to twenty years for his attempted arson
conviction to be served concurrently to a ten-year sentence for burglary and a two-year
sentence for criminal mischief. This appeal ensued.
Discussion and Decision
Section 1 – Sufficiency of the Evidence
Hill challenges the sufficiency of the evidence supporting his convictions for burglary,
attempted arson, and criminal mischief. Our standard of review is well settled.
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. We consider only the probative evidence and reasonable inferences
supporting the verdict, and we will affirm if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
6
Chappell v. State, 966 N.E.2d 124, 129 (Ind. Ct. App. 2012) (citations omitted), trans.
denied.
Specifically, Hill contends that there is insufficient evidence that he was present at
Washington’s apartment between July 12 and 16, 2012, when the burglary, attempted arson,
and criminal mischief were committed.2 He claims that his case is similar to McAllister v.
State, 161 Ind. App. 644, 317 N.E.2d 200 (1974), in which another panel of this Court
reversed McAllister’s arson conviction. There, McAllister and his wife separated. He told
her that unless she would take him back he would rather see her dead than see her with
somebody else. His sister-in-law heard him threaten to kill his wife and throw her in the
White River. About three and a half months after the separation, someone set fire to
McAllister’s wife’s duplex. On that day, at 9:25 p.m., a security officer saw McAllister
leaving work. At about 9:30 p.m., McAllister’s sister-in-law saw him at a church, where his
wife and children were attending services. At 9:45 p.m., the fire department arrived at
McAllister’s wife’s duplex after the residents in the lower half of the duplex had reported
hearing strange noises and seeing flames. A little before 10:00 p.m., a security officer saw
McAllister return to his job. McAllister’s wife’s duplex was four minutes from his place of
employment. An arson investigator concluded that a forcible entry had been made into the
wife’s duplex and that three separate fires had been started. The day after the arson occurred,
2
Hill does not challenge any of the other elements necessary to prove burglary, attempted arson, or
criminal mischief, and therefore we need not set forth the elements of each crime.
7
McAllister’s sister-in-law asked him why he did it, and he said “he didn’t, but if he had there
wasn’t a damn thing she could do about it.” Id. at 646, 317 N.E.2d at 202.
McAllister was charged with and convicted of arson, which he appealed on the basis
of insufficient evidence. The McAllister court stated that the evidence supported a
reasonable inference that McAllister had opportunity to burn his estranged wife’s apartment
but that there was no evidence from which a reasonable inference could be drawn that he was
in fact the person who set the fire. The court explained,
The missing link is presence. No evidence indicated that he was present at the
scene of the crime. ….
There was no evidence of any kind indicating incendiary activity by
McAllister, e.g., possession of flammable materials, burns, scorched clothing,
etc. No direct or indirect evidence tended to place him at his wife’s duplex.
The State only proved he was seen at a church some distance from the scene of
the crime at about the time the fire occurred—a suspicious circumstance.
Id. at 648, 317 N.E.2d at 203.
McAllister is distinguishable from the instant case. Here, in addition to Hill’s threats
to Washington, the evidence shows that she had given him a key to her apartment that she
found on the floor of her apartment after the offenses were committed. The presence of the
key at Washington’s apartment supports a reasonable inference that he was there between
July 12 and 16, 2012. Thus, the evidence shows that Hill had motive, opportunity, and was
present at the scene of the crime. Also, Washington’s important documents, such as her birth
certificate and social security card, had been taken from her apartment. She testified that the
only other person who knew where she kept those documents was Hill. Finally, Hill’s calls
to Washington from jail were recorded. Although he did not outright admit to committing
8
the burglary, he made statements from which a reasonable inference of guilt can be drawn.
For example, he essentially told Washington to lie about his cell phone number and seemed
to accept that if she changed her story about what happened she would be lying, and when
she complained about her missing items, he told her that he was going to get them back.
Thus, there are three sources of evidence from which a reasonable inference can be drawn
that Hill committed the burglary, attempted arson, and criminal mischief. We conclude that
the probative evidence and the reasonable inferences arising therefrom were sufficient for a
reasonable trier of fact to find Hill guilty beyond a reasonable doubt. Therefore, we affirm
his convictions.
Section 2 – Inappropriateness of Sentence
Hill contends that the twenty-year sentence imposed for his class B felony attempted
arson conviction is inappropriate pursuant to Indiana Appellate Rule 7(B).3 Our supreme
court has stated that “‘appellate review should focus on the forest—the aggregate sentence—
rather than the trees—consecutive or concurrent, number of counts, or length of the sentence
on any individual count.’” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011) (quoting
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). Therefore, in reviewing Hill’s
sentence, we must consider the aggregate twenty-two-year sentence he received rather than
specific sentences for individual convictions.
3
Hill also challenges the appropriateness of the ten-year sentence for his burglary conviction, which
he mistakenly states is fifteen years.
9
Indiana Appellate Rule 7(B) states, “The Court may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
offender.” Hill has the burden to show that his sentence is inappropriate. Anglemyer v. State,
868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
Concerning the nature of the offense, the advisory sentence is the starting point the
Legislature selected as appropriate for the crime committed. Id. Hill was convicted of two
class B felonies and two class D felonies and received a twenty-two-year sentence. For class
B felonies, the advisory sentence is ten years, with a minimum term of six years and a
maximum term of twenty years. Ind. Code § 35-50-2-5. For class D felonies, the advisory
sentence is one and a half years, with a minimum term of six months and a maximum term of
three years. Ind. Code § 35-50-2-7.
Hill received concurrent terms of ten years for his burglary conviction, twenty years
for his attempted arson conviction, and two years for his criminal mischief conviction. We
observe that Indiana Code Section 35-50-1-2 limits the authority of the trial court to order
consecutive sentences where the crimes arose out of a single episode of criminal conduct, but
that limitation does not apply “between a crime of violence and those that are not crimes of
violence.” See Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000). In this case, Hill’s burglary
and attempted arson arose out of a single episode of criminal conduct, but the consecutive
sentence limitation does not apply between them because class B felony burglary is a crime
of violence. Ind. Code § 35-50-1-2. Thus, the trial court could have imposed consecutive
10
sentences for class B felony burglary and attempted arson, and Hill faced a maximum
sentence of forty years for these two crimes. He also could have received up to three years
for the class D felony intimidation. With this in mind we turn to the nature of Hill’s crimes.
The trial court stated that the nature of Hill’s crimes was among the worst that he had
seen in twenty-five years on the bench. Hill’s actions in Washington’s apartment were
indeed destructive. Hill threw flour, grease, taco meat, detergent, and bleach throughout
Washington’s apartment. Clothes and furniture were ruined. Hill’s attempt to set fire to
Washington’s apartment damaged the stove and her pots and pans. Washington suffered
thousands of dollars of damage to her property and to her apartment. Tr. at 250. In addition,
although Washington was not present in her apartment when Hill attempted to set it on fire,
the fire could have spread to other apartments and endangered the lives of other residents.
As for Hill’s character, he has six juvenile adjudications. Although not serious in
nature, his failure to respond to multiple opportunities for rehabilitation shows his disrespect
for the law. As an adult, Hill was convicted of failure to register a firearm in federal court.
He was on supervised release when he committed the instant offenses, and a petition to
revoke supervision has been filed. Hill’s treatment of Washington is also a poor reflection of
his character. In their phone conversations and in his text messages he was consistently
abusive to and disrespectful of Washington. His words and actions show a complete
disregard for her wellbeing. Based on the nature of his crimes and his character, Hill has
failed to carry his burden to show that his aggregate twenty-two year sentence is
inappropriate. Accordingly, we affirm his sentence.
11
Affirmed.
BAKER, J. and NAJAM, J., concur.
12