FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
Feb 24 2014, 9:16 am
IN THE
COURT OF APPEALS OF INDIANA
DAVID J. HARMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1304-CR-153
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-1106-FA-32
February 24, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
David J. Harman (“Harman”) appeals, following a jury trial, his conviction and
sentence for Class A felony attempted murder.1
We affirm.
ISSUES
1. Whether the trial court abused its discretion in its evidentiary rulings.
2. Whether the trial court erred in sentencing Harman.
FACTS
In May 2011, Harman, who was nicknamed “Red,” was dating Cathy Jenkins
(“Cathy”), who had previously been married to J.R. Jenkins (“Jenkins”). Jenkins and
Cathy, who divorced in 2007, had two sons, Joe and A.2 Jenkins lived on Oakdale
Avenue in Hammond, Indiana, and A. lived with him. Cathy and Joe lived with Cathy’s
mother in Illinois. At times, Cathy stayed with Harman, who lived with his mother in
Illinois. Cathy and Harman also stayed sometimes with Cathy’s friend, Lori Jones
(“Jones”), and Jones’s fiancé, Kevin Hanshew (“Hanshew”), who lived in Highland,
Indiana.
On May 31, 2011, Harman was doing yard work for Hanshew and Jones at their
house in Highland. That afternoon, while Jones was out running an errand, Harman
asked Hanshew to drive him to Hammond. Harman directed Hanshew on where to drive
and had him park in an alley near Jenkins’s house. Harman told Hanshew that he would
1
Ind. Code §§ 35-41-5-1, 35-42-1-1.
2
At the time of the crime, Joe was over eighteen years of age, and A. was fourteen years old.
2
be gone “a couple of minutes.” (Tr. 135). Hanshew waited twenty minutes and then left
because he was hot.
During this time, Harman went to Jenkins’s house and asked to speak to him about
Jenkins’s older son, Joe. Jenkins invited Harman in, and they sat at the kitchen table. As
they were talking, forty-seven-year-old Harman “sprung out with his left hand” and hit
seventy-seven-year-old Jenkins in the face, knocking off Jenkins’s glasses and toupee.
(Tr. 313). Harman then started “beating” Jenkins. (Tr. 313). As Jenkins was “slumped
down . . . against the wall and the table,” Harman “busted” a “heavy duty” wooden chair
over Jenkins. (Tr. 314). When Jenkins tried to get off the ground, Harman repeated, “lay
there and die, you son of a bitch, you’re dead, you’re dead” and “[l]ay there and die, you
son of a bitch, you’re worth more to us dead than you are alive.” (Tr. 314). Harman
continued to hit and kick Jenkins. Then, as Jenkins was trying to get up, Harman
“slic[ed]” Jenkins’s throat with some sort of sharp object. (Tr. 315). Harman cut
Jenkins’s throat with such force that he cut “through skin, muscle and into [his] thyroid
cartilage.” (Tr. 92). As Harman cut him, Jenkins asked Harman, “Red what the F are
you doing[?]” (Tr. 315). Jenkins saw that his “blood was shooting everywhere” and
heard Harman repeating, “you’re dead, you son of a bitch, lay there and die.” (Tr. 315).
Jenkins then lost consciousness.
Thereafter, Harman called Hanshew, who was “almost halfway home” to
Highland, and asked Hanshew to pick him up. (Tr. 137). As Hanshew drove on Oakdale
Avenue, Hanshew saw Harman “beating and kicking” an older man on a porch. (Tr.
138). When Hanshew saw that the man being beat had “blood all over” him, Hanshew
3
kept driving and returned to his house. (Tr. 139). Harman then called Jones, yelling that
Hanshew had left him, and asked her to pick him up in Hammond. After Jones dropped
Harman back at the house, he took a shower, washed his clothes, and threw away his
boots.
Meanwhile, Jenkins regained consciousness and was able to get up and eventually
make his way to the house of Janet (a/k/a Jackie) Jenkins (“Jackie”),3 who lived a few
houses down from him. When Jenkins went in Jackie’s house, he was weak and “his
neck was bleeding profusely.” (Tr. 416). Jackie sat him on the sofa, put a towel on his
neck, and called the paramedics. When Jackie asked Jenkins who had hurt him, he
responded, “Red, Cathy’s boyfriend[.]” (Tr. 317). Jenkins then lost consciousness due to
his blood loss.
Later in the evening, Cathy arrived at Jenkins’s house to drop off A. When she
arrived, she saw the police and police tape around Jenkins’s house. Cathy then went to
the police station to speak to the police. Thereafter, Cathy called Jones to tell her that she
would be delayed in getting to Jones’s house and informed Jones about what happened at
Jenkins’s house with the police. After Jones got off the phone, she went into the
bedroom where Harman was sleeping, hit him on his feet, and asked “what did you
do[?]” (Tr. 236). Harman responded, “I kicked the shit out of him, I should’ve fucking
killed him.” (Tr. 236).
Jenkins was initially taken to a local hospital but was then airlifted to a hospital in
Illinois due to the traumatic nature of his injuries. Jenkins suffered a subdural hematoma,
3
Jackie was Jenkins’s ex-wife, and they divorced in 1972.
4
a neck fracture, and an “extremely large and deep neck wound.” (Tr. 75). Jenkins’s neck
wound stretched “clear across his neck” and was so deep that his trachea was cut. (Tr.
79). Jenkins’s neck laceration was so “extensive” that the trauma surgeon described it as
“filleted.” (Tr. 79). Jenkins’s injuries caused him to undergo a “traumatic arrest” where
his loss of a large amount of blood caused his heart to stop. (Tr. 76). Jenkins spent a
total of approximately two months in the hospital due to his injuries and complications
from them. For a time, Jenkins was unable to talk and had to have a tracheostomy tube
and a feeding tube.
On June 7, 2011, police officers went to the hospital to interview Jenkins. Jenkins,
who was unable to speak because of his tubes, identified Harman as the perpetrator of the
crime against him by writing the name “Red” on a piece of paper. Thereafter, the State
charged Harman with Count I, Class A felony attempted murder; Count II, Class B felony
aggravated battery; and Count III, Class C felony battery.
The trial court held a five-day jury trial from January 28, 2013 to February 1,
2013. Prior to trial, the State filed a motion in limine, seeking to exclude evidence of
Jenkins’s prior convictions, arrests, and charges pursuant to Evidence Rules 401, 404(b),
608, and 609. Specifically, the State sought to preclude evidence regarding: (1)
Jenkins’s convictions, in Illinois in September 1979, for conspiracy to commit murder,
solicitation to commit murder, and attempted murder;4 and (2) Jenkins’s guilty plea,
4
Jenkins finished serving his sentences on these convictions in 1983.
5
“sometime prior” to May 2011, to threatening Cathy on the telephone in violation of a
protective order issued by an Illinois court against him and in favor of Cathy.5 (App. 73).
Prior to the presentation of witnesses, the trial court heard argument regarding the
State’s motion in limine. The State argued that the prior convictions and the protective
order, which was issued as part of Jenkins and Cathy’s dissolution, were not relevant and
would confuse the issues at trial. Harman’s counsel stated that he was not planning on
introducing any evidence regarding Jenkins’s 1979 criminal convictions “due to the
remoteness in time” but argued that Jenkins’s violation of the protective order protecting
his ex-wife Cathy was “extremely relevant” because Harman was dating Cathy. (Tr. 19).
The trial court granted the State’s motion in limine to exclude evidence of the prior
convictions and the protective order. Specifically, the trial court ruled:
All right. The Court has an obligation to make sure that the jury hears
relevant evidence and that it does not get confused or sidetracked on
collateral matters or minutia that have no bearing on the case. Based on
what I’ve heard so far, I’m granting the State’s motion as to both of those
issues as set forth in their motion in limine. The Court will not allow any
testimony to be elicited regarding the conviction of Mr. Jenkins back in 79
or this issue of a protective order that was issued against Mr. Jenkins by a
family law court in [Illinois]. If, of course, if the door’s opened by Mr.
Jenkins during his testimony to these issues or if there’s otherwise some
relevant, some relevance revealed through his testimony about these issues,
then certainly the Court may reconsider it’s [sic] ruling. And we will re-
visit both these issues at the appropriate time during the trial as required by
the rules.
(Tr. 26-27).
Harman’s defense at trial focused on identification, with him contending that there
was no “scientific evidence” to link Harman to the crime. (Tr. 71). During trial, prior to
5
The violation of the protective order occurred almost seven months before the crimes at issue.
6
cross-examining Jenkins, Harman renewed his objection to the trial court’s pre-trial
limine ruling that he was precluded from presenting evidence regarding Jenkins’s
violation of the protective order entered in favor of Cathy. Also, as part of an offer to
prove, he sought to introduce a police report on the protective order violation. Harman
did not renew his objection or make an offer to prove regarding the trial court’s pre-trial
limine ruling that he could not present evidence regarding Jenkins’s 1979 convictions.
The jury found Harman guilty as charged. At sentencing, the trial court
determined that there were no mitigating circumstances. The trial court found the
following to be aggravating circumstances: (1) the injury suffered by the victim was
greater than the elements necessary to prove the crime; (2) Harman’s criminal history; (3)
the age of the victim being over sixty-five years of age; (4) the nature and circumstances
of the “brutal” attack against the victim; (5) Harman possessed “a violent and depraved
nature[;]” and (6) Harman’s lack of remorse. (App. 90). The trial court merged Counts
II and III into Count I due to double jeopardy concerns, entered judgment of conviction
on the attempted murder conviction only, and imposed a forty-five (45) year sentence in
the Department of Correction. Harman now appeals. Additional facts will be provided
as necessary.
DECISION
1. Evidentiary Rulings
Harman contends that the trial court abused its discretion by (a) denying him an
opportunity to make an offer to prove regarding a protective order issued against Jenkins;
and (b) excluding evidence that Jenkins had been convicted in 1979 of conspiracy to
7
commit murder, solicitation to commit murder, and attempted murder. We will review
each in turn.
A. Offer to Prove
Harman argues that the trial court abused its discretion by denying him an
opportunity to make an offer to prove regarding Jenkins’s violation of the protective
order entered in favor of Cathy.6 We disagree.
To reverse a trial court’s decision to exclude evidence, there must have been error
by the court that affected the defendant’s substantial rights and the defendant must have
made an offer of proof or the evidence must have been clear from the context. Stroud v.
State, 809 N.E.2d 274, 283 (Ind. 2004). An offer to prove consists of three parts: “(1)
the substance of the evidence, (2) an explanation of its relevance, and (3) the proposed
grounds for its admissibility.” Nelson v. State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003)
(citing Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998), reh’g granted on other grounds),
trans. denied. “[T]he purpose of an offer to prove is ‘to preserve for appeal the trial
court's allegedly erroneous exclusion of evidence.’” Arhelger v. State, 714 N.E.2d 659,
664 (Ind. Ct. App. 1999) (quoting Bradford v. State, 675 N.E.2d 296, 302 (Ind. 1996),
reh’g denied). A party traditionally makes an offer to prove after the trial court has
sustained an objection to the admission of the party’s evidence. See Arhelger, 714
N.E.2d at 664. However, it may also be made before the trial court’s ruling on an
6
Harman also contends that the trial court’s denial of the opportunity to make an offer to prove violated
his due process rights under the federal and state constitutions. Because Harman did not assert this
constitutional argument at trial, he has waived it on appeal. See, e.g., Saunders v. State, 848 N.E.2d 1117,
1122 (Ind. Ct. App. 1999) (holding that the defendant waived his argument that excluded evidence
violated his constitutional right to confront witnesses by failing to make that argument at trial), trans.
denied.
8
objection in order to aid in the admissibility ruling. See id. “In general, ‘a party has a
right to make an offer of proof,’ and ‘it is reversible error for a trial court to deny a party
the opportunity to explain the substance, relevance, and admissibility of excluded
evidence with an offer of proof.’” Duso v. State, 866 N.E.2d 321, 324 (Ind. Ct. App.
2007) (quoting Nelson, 792 N.E.2d at 595).
In Nelson, a defendant’s cross-examination question was not allowed when the
trial court sustained the State’s objection to the question. Nelson, 792 N.E.2d at 594.
When the defendant informed the trial court that he would like to make an offer to prove,
the trial court responded “No” and did not allow the defendant’s counsel to discuss the
matter any further. Id. On appeal, our Court held that the trial court had erred by
denying the defendant’s attempt to make an offer to prove, explaining that “[w]e cannot
very well require trial counsel to make an offer of proof to preserve error on appeal,
while at the same time we allow the trial court to deny counsel the opportunity to make
such a record.” Id. at 594-95.
Here, unlike in Nelson, the trial court did not deny Harman the opportunity to
make an offer to prove. The record before us reveals that before cross-examining
Jenkins, Harman’s counsel asked the trial court for a sidebar hearing, during which he
renewed his objection to the trial court’s pre-trial limine ruling that excluded any
evidence that Jenkins had previously violated a protective order entered in favor of
Cathy. Harman’s counsel then indicated that he was wanted to cross-examine Jenkins
about the divorce proceedings between Jenkins and Cathy and some insurance policies
that Jenkins had with his sons as beneficiaries. The trial court—reminding Harman’s
9
counsel that the scope of the State’s direct examination was that Harman “slashed
[Jenkins’s] throat, told him to die, you S.O.B., and that we’re better off with you dead”—
instructed counsel that he was confined to the scope of the direct examination. (Tr. 344).
Harman’s counsel responded that he “believe[d] that [he] should be able to go further
than the State did on direct examination so that the jury [could] get a better understanding
of the dynamics between the relationship of all three individuals prior to May 31st of
2011.” (Tr. 345). The trial court told Harman that he was not entitled to go beyond the
scope of direct because there was no testimony from Jenkins about protective orders,
insurance policies, or relationships. The trial court, however, stated that Harman was
“free to address those issues on [his] case in chief if [he] wish[ed] to present evidence.”
(Tr. 346). The trial court then affirmed its previous ruling excluding any evidence about
the protective order.
Thereafter, Harman told the trial court that he had a police report from the
protective order violation incident, and he “mov[ed] to make it part of the record as far as
[his] objection to the Court’s granting [of] the motion in limine[.]” (Tr. 353). The trial
court responded that it was “not an offer of proof in a technical sense because [Harman]
ha[d]n’t attempted to introduce, elicit that testimony.” (Tr. 354). Harman’s counsel
acknowledged that he would be unable to elicit such testimony due to the trial court’s
ruling on the motion in limine. The trial court then asked Harman’s counsel if Harman
was offering the police report as “an offer of proof” and arguing that the report would
have been relevant had the trial court ruled that he could have introduced testimony
regarding the protective order violation. (Tr. 355). Harman’s counsel responded, “That
10
is correct, your Honor.” (Tr. 355). The State then argued that the police report, which
was dated November 1, 2010, was not relevant because it was remote in time and not
shown to be connected to the crimes at issue. Harman’s counsel argued that the report
was relevant because it showed that Jenkins and Cathy had a “contentious divorce” in
2007 and because the report contained a quote from Cathy to police regarding the threat
that Jenkins had made to her.7 (Tr. 357). The trial court ruled that the report was not
relevant, contained hearsay, and was remote in time and stated that it was refusing
Harman’s invitation to “speculate and stretch this.” (Tr. 358). The trial court initially
stated that it would “not accept [the police report] a[s] an exhibit for an offer of proof”
because Harman had not shown any relevance. (Tr. 358-59). When Harman’s counsel
asked if the report needed to be marked for purposes of appeal, the trial court stated that it
would mark it as being “offered” as Defendant’s Exhibit C and “refused.” (Tr. 359).
Thereafter, Harman cross-examined Jenkins.8
Based on the record before us, we conclude that the trial court did not deny
Harman the opportunity to make an offer to prove. Indeed, the trial court gave Harman
the chance to explain the substance, relevance, and admissibility of the proposed
7
According to the police report, Cathy told police that Jenkins had called and stated, “If you come over
here something bad is going to happen to you, and I[’]ll make it look like it was your fault.” (Defendant’s
Ex. C).
8
Harman neither called Jenkins as his own witness nor presented any other witnesses.
11
evidence. Cf. Nelson, 792 N.E.2d at 594. Thus, Harman has failed to show that the trial
court abused its discretion regarding its evidentiary ruling on the protective order.9
B. Exclusion of Evidence
Harman also argues that the trial court abused its discretion by excluding evidence
of Jenkins’s 1979 convictions. Prior to trial, the trial court granted the State’s motion in
limine to exclude any evidence regarding these prior convictions. However, Harman
never made an offer to prove at trial showing why evidence regarding the convictions
was admissible. Therefore, he has waived this argument on appeal. See Carter v. State,
932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010) (“The failure to make an offer to prove
results in a waiver of the asserted evidentiary error.”).
2. Sentencing
Harman’s sentencing argument is a mélange of the following two arguments: (1)
the trial court abused its discretion by failing to find mitigating circumstances; and (b) his
sentence is “excessive” under Indiana Appellate Rule 7(B). (Harman’s Br. 19). Before
addressing his arguments, we pause to note that the focus of any challenge to a sentence
under Appellate Rule 7(B) is whether the sentence is “inappropriate,” not excessive. See
App. R. 7(B) (providing that our Court may revise a sentence if we find it to be
“inappropriate in light of the nature of the offense and the character of the offender”).
9
Harman makes no specific or cogent argument that the trial court abused its discretion by excluding
evidence regarding the protective order violation. Even if he had raised such an argument, we would not
review a challenge to the admissibility of this evidence because Harman did not make a proper offer.
While his counsel provided the substance of the excluded evidence by submitting the police report and
argued that he believed that evidence of the protective order violation was relevant, his counsel did not
specifically identify the grounds for the admission of the testimony. Thus, he did not make a proper offer
to prove. Arhelger, 714 N.E.2d at 665 (finding defendant did not make a “valid offer of proof” where
defendant did not “even touch upon the grounds for . . . admission” of the cross-examination testimony).
12
Further, “our Supreme Court has made clear [that] inappropriate sentence and abuse of
discretion claims are to be analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind.
Ct. App. 2008) (citing See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified
on reh’g, 875 N.E.2d 218 (Ind. 2007)). Therefore, we will separately address each
argument.
A. Abuse of Discretion
Harman argues that the trial court abused its discretion when it failed to recognize
the following proffered mitigators: (1) his prior military service and honorable discharge;
and (2) his “limited criminal history.”10 (Harman’s Br. 12).
Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer, 868 N.E.2d at 490. One
way in which a court may abuse its discretion is by entering a sentencing statement that
omits mitigating circumstances that are clearly supported by the record and advanced for
consideration. Id. at 490–91. However, a trial court is not obligated to accept a
defendant’s claim as to what constitutes a mitigating circumstance. Rascoe v. State, 736
N.E.2d 246, 249 (Ind. 2000). A claim that the trial court failed to find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
10
In the final sentence of his sentencing argument, Harman contends that the trial court erred by failing to
find the support of his family and friends as a mitigating circumstance. Harman, however, cites to no
authority and makes no cogent argument in support of this contention. Therefore, any such argument is
waived. See Ind. App. R. 46(A)(8)(a) (requiring that an appellant’s argument be supported by cogent
argument and citations to relevant authority).
13
Harman first contends that the trial court erred by failing to find his prior military
service as a mitigating circumstance. We acknowledge that the presentence investigation
report indicates that Harman served three years in the United States Marines and was
honorably discharged, and we recognize that service to our country is a commendable
act. However, military service is not necessarily a mitigating circumstance, see Forgey v.
State, 886 N.E.2d 16, 23–24 (Ind. Ct. App. 2008) (finding trial court was within its
discretion in rejecting defendant’s military record as a mitigating factor), and Harman
fails to explain why it should be considered so in this case. Indeed, as the State pointed
out during the sentencing hearing, “Harman’s actions were the actions of a monster and
not of a Marine[.]” (Tr. 940). Accordingly, the trial court did not abuse its discretion by
not finding Harman’s military service to be a mitigating circumstance. See Forgey, 886
N.E.2d at 23–24; see also Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct. App. 2005)
(finding no abuse of discretion where the defendant failed to show that proposed
mitigating factor of military service was significant and clearly supported in the record);
Garrison v. State, 575 N.E.2d 700, 704-05 (Ind. Ct. App. 1991) (determining that the trial
court appropriately exercised its discretion when refusing to consider the defendant’s
honorable discharge from the military as a mitigating circumstance), trans. denied.
Harman also suggests that the trial court should have found his “limited criminal
history” to be a mitigating circumstance. (Harman’s Br. 12). The record reveals that
Harman had a criminal history, including a Class D felony aggravated driving while
intoxicated conviction, a misdemeanor operating a vehicle while intoxicated conviction,
and a reckless driving infraction. Accordingly, we cannot say that the trial court erred by
14
rejecting Harman’s criminal history as a mitigating circumstance. See, e.g., Robinson v.
State, 775 N.E.2d 316, 321 (Ind. 2002) (explaining that trial court properly attached no
mitigating weight to defendant’s criminal history consisting of one misdemeanor
possession of marijuana conviction and some traffic infractions); Townsend v. State, 860
N.E.2d 1268, 1272 (Ind. Ct. App. 2007) (finding no abuse of discretion in trial court’s
refusal to find a mitigating circumstance in defendant’s criminal history consisting of
single misdemeanor conviction for reckless driving), trans. denied.
B. Inappropriate Sentence
Harman contends that his forty-five-year sentence is inappropriate. Specifically,
he argues that his sentence was “excessive” given his character. (Harman’s Br. 21).
We may revise a sentence if it is inappropriate in light of the nature of the offense
and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’
result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a
sentence is inappropriate ultimately turns on “the culpability of the defendant, the
severity of the crime, the damage done to others, and a myriad of other factors that come
to light in a given case.” Id. at 1224.
When determining whether a sentence is inappropriate, we acknowledge that the
advisory sentence “is the starting point the Legislature has selected as an appropriate
15
sentence for the crime committed.” Childress, 848 N.E.2d at 1081. Here, the jury found
Harman guilty of Class A felony attempted murder, Class B felony aggravated battery,
and Class C felony battery, and the trial court merged the latter two convictions into the
Class A felony conviction. The sentencing range for a Class A felony is between twenty
(20) and fifty (50) years, with the advisory sentence being thirty (30) years. I.C. § 35-50-
2-4. At sentencing, the trial court found multiple aggravating circumstances and no
mitigating circumstances, and it imposed a forty-five (45) year sentence for Harman’s
Class A felony attempted murder conviction.
In regard to the nature of Harman’s offense, the record reveals that Harman went
to Jenkins’s house, claiming that he wanted to speak to Jenkins about one of Jenkins’s
sons. Suddenly, forty-seven-year-old Harman started to beat seventy-seven-year-old
Jenkins in the face, knocking off Jenkins’s glasses and toupee. Harman also broke a
wooden chair over Jenkins. Jenkins faded in and out of consciousness as Harman beat
and kicked him. When Jenkins tried to get off the ground, Harman repeated, “lay there
and die, you son of a bitch, you’re dead, you’re dead.” (Tr. 314). Harman then
continued to hit and kick Jenkins. As Jenkins tried to get up, Harman “slic[ed]” Jenkins’s
throat from ear to ear. (Tr. 315). Even as Jenkins’s “blood was shooting everywhere,”
Harman repeated, “you’re dead, you son of a bitch, lay there and die.” (Tr. 315). The
trial court found that the “brutal” nature of the offense was a “significant” aggravating
factor. (Tr. 944, 945).
As to Harman’s character, the record reveals that Harman has a criminal history
that includes a Class D felony aggravated driving while intoxicated conviction in Illinois
16
in 2000, a misdemeanor operating a vehicle while intoxicated conviction in Indiana in
2007, and a reckless driving infraction in Indiana in 2008. The presentence investigation
report also indicates that Harman has various arrests, including arrests for domestic
violence, driving under the influence of alcohol, and driving on a suspended license.
Furthermore, as the trial court discussed during the sentencing hearing, Harman’s
character can also be seen by the fact that he chose to attack a “physically infirm[]” man
who was thirty years older and sixty pounds lighter than Harman. (Tr. 946). Finally, we
note that Harman has failed to include the last three pages of his presentence
investigation report, which are the pages that include information on his alcohol/drug use
and his mental and physical states. During the sentencing hearing, however, the State
discussed these pages and mentioned that Harman had issues with his temper and had
been in alcohol and drug rehab in the 1980’s.
Harman has not persuaded us that that his sentence is inappropriate. Therefore,
we affirm the trial court’s sentence.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
17