MEMORANDUM DECISION FILED
May 11 2018, 9:01 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, Attorney General of Indiana
P.C.
Nappanee, Indiana Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Raquan Charles McKinstry, May 11, 2018
Appellant-Defendant, Court of Appeals Case No.
50A03-1711-CR-2689
v. Appeal from the Marshall Superior
Court
State of Indiana, The Honorable Robert O. Bowen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
50D01-1603-F3-8
Najam, Judge.
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Statement of the Case
[1] Raquan Charles McKinstry appeals his conviction for armed robbery, as a
Level 3 felony, and the trial court’s imposition of the advisory sentence for that
conviction. McKinstry raises the following two issues for our review:
1. Whether the trial court abused its discretion when it
admitted into evidence a photograph of McKinstry.
2. Whether his sentence is inappropriate in light of the nature
of the offense and his character.
[2] We affirm.
Facts and Procedural History
[3] In February of 2016, E.Z., a minor, was looking to buy an iPhone. E.Z.’s
cousin, A.H., knew McKinstry, and A.H. and McKinstry arranged to have
McKinstry sell his iPhone to E.Z. Prior to that meeting, A.H. showed E.Z.
some photographs of McKinstry from McKinstry’s Facebook page. In one of
the photographs, McKinstry was displaying what is commonly known as the
“double bird.” Appellant’s Br. at 9; see State’s Ex. 15. Standing next to
McKinstry in the photograph were two unidentified black males. One of those
males was pointing downward in the photograph; the other was holding a bottle
in one hand and making a gesture with his other hand in which he appears to be
holding his middle finger down with his thumb while his other fingers are
extended outward.
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[4] E.Z.’s friend J.C. drove E.Z. and A.H. to meet McKinstry in a Sears parking lot
in Plymouth after hours. E.Z. exited J.C.’s vehicle and approached McKinstry,
who sat in the back seat of a different vehicle. A black female sat in the driver’s
seat of that vehicle, and a black male sat in the front passenger seat. Thereafter,
the male in the front passenger seat pulled out a firearm, pointed it at E.Z., and
demanded E.Z.’s money, which E.Z. surrendered to McKinstry. McKinstry
and the other two then left. E.Z. and A.H. each later identified McKinstry to
investigating officers.
[5] On March 3, the State charged McKinstry with armed robbery, as a Level 3
felony. At his ensuing jury trial, E.Z. and A.H. testified against McKinstry.
During E.Z.’s testimony, the State sought to introduce McKinstry’s Facebook
photographs that E.Z. had seen prior to the robbery. McKinstry objected to the
admission of the photograph that showed McKinstry with the other two males
on the grounds that the other two males “appear to be throwing down . . . gang
signs.” Tr. at 30. The trial court overruled the objection and permitted the
admission of the photograph. The jury then found McKinstry guilty as
charged, and the trial court sentenced him to the advisory sentence of nine
years executed. This appeal ensued.
Discussion and Decision
Issue One: Admission of Photograph
[6] On appeal, McKinstry first asserts that the trial court abused its discretion when
it admitted the photograph of McKinstry standing with the two other males.
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The trial court has “inherent discretionary power on the admission of evidence,
and its decisions are reviewed only for an abuse of that discretion.” McManus v.
State, 814 N.E.2d 253, 264 (Ind. 2004) (internal quotation marks omitted). An
abuse of discretion occurs when the trial court’s judgment “is clearly against the
logic and effect of the facts and circumstances and the error affects a party’s
substantial rights.” Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
[7] According to McKinstry, the trial court erred when it found that the probative
value of the photograph was not substantially outweighed by the danger of
unfair prejudice to McKinstry. Indiana Evidence Rule 403 states that a trial
court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .” The Indiana Supreme
Court has explained the trial court’s broad discretion to apply Rule 403:
“Trial judges are called trial judges for a reason. The reason is
that they conduct trials. Admitting or excluding evidence is what
they do.” United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017)
(Wilkinson, J., dissenting). That’s why trial judges have
discretion in making evidentiary decisions. This discretion
means that, in many cases, trial judges have options. They can
admit or exclude evidence, and we won’t meddle with that
decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind.
1999). There are good reasons for this. “Our instincts are less
practiced than those of the trial bench and our sense for the
rhythms of a trial less sure.” Hall, 858 F.3d at 289. And trial
courts are far better at weighing evidence and assessing witness
credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
In sum, our vantage point—in a “far corner of the upper deck”—
does not provide as clear a view. State v. Keck, 4 N.E.3d 1180,
1185 (Ind. 2014).
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***
The unfair prejudice from [the challenged evidence] . . . was not
so high that it overrode the trial court’s wide discretion. See
Dunlap[ v. State], 761 N.E.2d [837, 842 (Ind. 2002)]. We thus
decline to second-guess the trial court’s determination that the
[evidence’s] relevance . . . was not substantially outweighed by
the danger of unfair prejudice. The trial court could have
admitted or excluded the [evidence]. The trial court chose
admission. . . .
Snow v. State, 77 N.E.3d 173, 177, 179 (Ind. 2017).
[8] Contrary to McKinstry’s assertion on appeal, any danger of unfair prejudice
from the relevant photograph1 was not so high that it overrode the trial court’s
discretion under Rule 403. See id. Indeed, McKinstry’s argument on this issue
is premised on his own speculation that the hand gestures of the other two
males “could be interpreted as gang signs.” Appellant’s Br. at 9. But there is
no evidence to support that speculation, and the jury could just as well have
surmised that the photograph demonstrated three goofball teenagers.
Accordingly, the trial court acted within its discretion when it admitted the
photograph, and we will not second-guess the court’s exercise of that discretion.
We affirm the trial court’s admission of the photograph and McKinstry’s
conviction.
1
McKinstry does not dispute that the photograph was relevant.
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Issue Two: Inappropriateness of Sentence
[9] We thus turn to McKinstry’s challenge to his sentence. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court
to “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.” We assess the trial court’s
recognition or nonrecognition of aggravators and mitigators as an
initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
App. 2006). The principal role of appellate review is to “leaven
the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). A defendant must persuade the appellate court that his or
her sentence has met the inappropriateness standard of review.
Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[10] Here, the trial court identified the following aggravating factors when it
imposed its sentence: McKinstry had not successfully completed probation in
the past; he violated the conditions of probation within one year; and the
instant offense was a crime of violence. The court identified the following
mitigating factors: McKinstry “did not point the weapon at the victim,” and he
was seventeen years of age at the time of the offense. Appellant’s App. Vol. II
at 176. Although the court did not expressly state that the aggravators and
mitigators were in equipoise, the court apparently found as much as it then
imposed the advisory term of nine years executed. See Ind. Code § 35-50-2-5(b)
(2017).
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[11] McKinstry asserts that his sentence is inappropriate in light of the nature of the
offense because the armed robbery “could have ended with much worse
consequences than it otherwise did,” because McKinstry was not the one who
pointed the firearm, and because the jury was instructed on a lesser-included
Class A misdemeanor offense, which carries a maximum term of one-year
imprisonment. Appellant’s Br. at 13. And McKinstry asserts that his sentence
is inappropriate in light of his character because he was seventeen at the time of
the offense, because his only prior criminal history is two juvenile adjudications
for nonviolent possession of marijuana, because he has the emotional support
of his family, and because he “gave a heartfelt statement at sentencing
admitting to culpability.” Id. at 12.
[12] We cannot say that the advisory sentence, which is the starting point for the
imposition of a criminal sentence, is inappropriate here. See, e.g., Sanders v.
State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). Regarding the nature of the
offense, McKinstry arranged the fictitious sale of the iPhone and otherwise
participated in the robbery whether he actually held the firearm or not.
McKinstry was not merely present at the scene of the crime but an integral part
of it and took the money from the victim. Regarding his character, we will not
disregard his two prior juvenile adjudications for possession of marijuana.
While nonviolent, McKinstry was released to probation for each of his prior
offenses. He failed his first probationary term when he committed his second
possession offense, and he failed his second probationary term when he
committed the instant offense. This reflects poorly on McKinstry’s character.
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Further, we are not persuaded that McKinstry’s age, the support of his family,
or his statements at sentencing are significant. We cannot say that the advisory
sentence of nine years executed is inappropriate, and we affirm McKinstry’s
sentence.
[13] Affirmed.
Robb, J., and Altice, J., concur.
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