Jan 23 2015, 9:49 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMMERLY A. KLEE GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DORVAE BARNETT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1404-CR-283
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Stoner, Judge
Cause No. 49G06-1303-MR-19927
January 23, 2015
OPINION – FOR PUBLICATION
MAY, Judge
Dorvae Barnett appeals the five-year enhancement of his sentence for Class C felony
reckless homicide1 based on Barnett’s knowing use a firearm in the commission of that
crime.2 Barnett presents two issues, which we restate as:
1. Whether the finding Barnett used a firearm was erroneous as a factual matter;
and
2. Whether the finding that he used a firearm was improper as a matter of law.
We affirm.
FACTS AND PROCEDURAL HISTORY
On March 23, 2013, Barnett planned to attend a birthday party with his cousin, James
Chatman. As Barnett got ready for the party, Chatman noticed Barnett’s revolver and asked
to borrow it for the night. Barnett permitted him to do so.
A few hours later, the two men began to argue and shove one another. The revolver
fell out of Chatman’s pants, and Barnett picked it up. Barnett entered the driver’s seat of his
girlfriend’s car and placed the gun on his lap. Chatman reached in the car, grabbed the gun,
and pointed it at Barnett’s face. Barnett grabbed Chatman’s hand, twisting Chatman’s wrist
to point the gun away from himself, and then the gun fired, shooting Chatman in the face.
Chatman died at the scene.
The State charged Barnett with murder and requested Barnett’s sentence be enhanced
by five years because he knowingly used a firearm in the commission of the crime. In the
1
Ind. Code § 35-42-1-5 (2012) (reckless homicide).
2
Ind. Code § 35-50-2-11 (permitting five-year enhancement if defendant “knowingly or intentionally used a
firearm in the commission of the offense”).
2
first half of a bifurcated trial, a jury found Barnett not guilty of murder, but guilty of the
lesser included offense of Class C felony reckless homicide. Barnett then waived his right to
a jury trial on the sentencing enhancement for using a firearm. The trial court found he
knowingly used a firearm in the commission of reckless homicide. It imposed a twelve-year
sentence, which included seven years for the underlying Class C felony and five years for the
firearm enhancement.
DISCUSSION AND DECISION
1. Factual Arguments
Barnett first alleges the evidence is insufficient to support his convictions.3 Our
standard for reviewing such claims is well settled:
When we review the sufficiency of the evidence to support a criminal
conviction, we consider only the probative evidence and reasonable inferences
therefrom supporting the verdict. We neither reweigh the evidence nor assess
witness credibility. And unless no reasonable fact-finder could conclude the
elements of the crime were proven beyond a reasonable doubt, we will affirm
the conviction. That is, we will hold the evidence sufficient ‘if an inference
may reasonably be drawn from it to support the verdict.’
Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014) (citations omitted).
Barnett wishes us to hold the facts herein could not support finding both that he
knowingly used a firearm and that he recklessly killed Chatman. See Ind. Code § 35-42-1-5
(Class C felony reckless homicide occurs when a person “recklessly kills another human
3
Within this argument, Barnett also asserts: “The trial court’s ruling on the sentence enhancement is in conflict
with the jury’s verdict, where the jury had previously rejected the State’s argument that Barnett knowingly
killed Chatman by shooting a deadly weapon.” (Appellant’s Br. at 8.) We may not address an allegation that
verdicts conflict with one another; “verdicts in criminal cases are not subject to appellate review on grounds
that they are inconsistent, contradictory or irreconcilable.” Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).
Thus, we address only Barnett’s allegation that the evidence is insufficient.
3
being”); and see Ind. Code § 35-50-2-11 (permitting court to enhance sentence if defendant
“knowingly or intentionally used a firearm in the commission of the offense”). However, as
Barnett himself notes, we rejected that factual argument in Cooper v. State, 940 N.E.2d 1210
(Ind. Ct. App. 2011), reh’g denied, trans. denied.
In essence, Cooper’s challenge to the sufficiency of the evidence is that
the offense of reckless homicide only requires the State to prove that he acted
recklessly, while the firearm enhancement requires proof of intentional or
knowing conduct. However it is clear that while the State must prove that
Cooper’s reckless act caused the death of Gelinas in the first instance, it was
required to prove that Cooper knowingly or intentionally used a firearm to
commit a reckless act.
In this case, the evidence demonstrated that Cooper purchased a
shotgun and shells, armed himself with the gun, and loaded it. He then drove
to Gelinas’s residence and exited the vehicle with the gun in his possession.
Thereafter, Cooper intentionally confronted Gelinas, allegedly intending only
to “scare the sh*t out of him.” However, as the two wrestled, Cooper
apparently discharged the shotgun that resulted in Gelinas’s death.
From this evidence, it was reasonable for the jury to conclude that
Cooper’s use of the shotgun was intentional, even if the actual killing resulted
from reckless conduct. In other words, Cooper intentionally used the shotgun
and recklessly discharged it, causing Gelinas’s death. As a result, Cooper’s
argument that the evidence was insufficient to support the enhancement is
unavailing.
Id. at 1213-14 (record citations omitted). We find no merit in Barnett’s claim that his facts
are sufficiently different from those in Cooper to require a different result. Although Cooper
intentionally brought his shotgun to Gelinas’ house, there is no doubt that Barnett knew his
handgun was at the party, as he is the one who permitted Chatman to carry the weapon to the
scene. When the gun fell out of Chatman’s pants as Barnett and Chatman fought in the
parking lot, Barnett picked up the gun, sat in his girlfriend’s car, and placed the gun on his
lap; that evidence is sufficient to show Barnett’s knowing use of a handgun. That Chatman
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died from a gunshot wound inflicted as Barnett and Chatman struggled for control of
Barnett’s gun was sufficient to prove reckless homicide. See id. (affirming conviction of
reckless homicide where shotgun discharged as two men wrestled for it). The evidence was
sufficient to support his conviction and the sentence enhancement.
2. Waiver of Trial by Jury
After the jury found Barnett guilty of Class C felony reckless homicide, he waived his
right to have a jury decide whether the facts supported the sentencing enhancement premised
on his knowing or intentional use of a firearm in the commission of the offense. The court
discussed the waiver with him. Barnett confirmed he understood his right to have a jury hear
and decide whether he committed facts permitting the sentencing enhancement. He testified
he had not been forced to sign the waiver, he had not been offered anything of value to
convince him to sign it, and he was waiving his right to a jury trial of his “own free will.”
(Tr. at 487.) The court found Barnett made “a knowing, voluntary and intelligent waiver of
his right to a trial by jury on the Firearm Sentencing Enhancement . . . .” (Id.)
Barnett now claims that waiver violated his Sixth Amendment right to a jury trial, as
explained in Blakely v. Washington, 542 U.S. 296 (2004), and Smylie v. State, 823 N.E.2d
679 (Ind. 2005), and he asserts “the language of Ind. Code § 35-50-2-11 precluded Barnett’s
waiver of jury” for the sentence enhancement.4 (Appellant’s Br. at 13.)
4
The pertinent statutory language provides:
If the person was convicted of the offense in a jury trial, the jury shall reconvene to hear
evidence in the enhancement hearing. If the trial was to the court, or the judgment was
entered on a guilty plea, the court alone shall hear evidence in the enhancement hearing.
Ind. Code § 35-50-2-11(d).
5
Barnett invited any error. “Invited error” is a doctrine based in estoppel that prohibits
a party from taking advantage of any error that party committed or invited, or that was “the
natural consequence of his own neglect or misconduct.” Brewington v. State, 7 N.E.3d 946,
975 (Ind. 2014), reh’g denied, petition for cert. pending. “[E]ven constitutional errors may
be invited.” Id. at 977. Barnett’s knowing and intelligent waiver of his right to jury trial as
to the facts underlying the sentence enhancement invited any possible statutory or
constitutional violation that could have occurred therein and are not grounds for reversal of
his sentence.
Nonetheless, we briefly note his waiver did not violate his Sixth Amendment right to a
jury under Blakely, see Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007) (“[u]nder Blakely
a trial court may not enhance a sentence based on additional facts, unless those facts are . . .
(4) facts found by the sentencing judge after the defendant has waived Apprendi rights and
consented to judicial factfinding.”), nor the language of the controlling statute, see Gonzalez
v. State, 757 N.E.2d 202 (Ind. Ct. App. 2005) (affirming defendant’s ability to knowingly and
intelligently waive right to jury trial for habitual offender enhancement under Ind. Code § 35-
50-2-8, which also provides the trial “shall” be to a jury when a jury convicted the person of
a felony), trans. denied.
CONCLUSION
As we find merit in none of Barnett’s arguments, we affirm his conviction and
sentence enhancement.
Affirmed.
6
VAIDIK, C.J., and FRIEDLANDER, J., concur.
7