MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 25 2019, 8:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brian Woodward Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Stephone Currie, April 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2728
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1709-MR-7
Robb, Judge.
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Case Summary and Issues
[1] Robert Currie pleaded guilty to voluntary manslaughter, a Level 2 felony, and
one count of attempted obstruction of justice, a Level 6 felony, and was
sentenced to serve twenty-four years in the Indiana Department of Correction.
Currie appeals his sentence, raising several issues for our review that we restate
as: 1) whether the trial court abused its discretion in sentencing him, and 2)
whether his sentence is inappropriate in light of his character and his offenses.
Concluding the trial court did not abuse its sentencing discretion and the
twenty-four-year sentence is not inappropriate, we affirm.
Facts and Procedural History
[2] The stipulated factual basis underlying the guilty plea in this case reveals the
following: Currie is affiliated with the Villeblock faction of the Vice Lord gang
and Ashanti Walden was affiliated with the YMH faction in Northwest
Indiana. The two had issues due to their rival gang affiliations and Walden had
once robbed Currie at gunpoint and wounded him. On June 23, 2017, Currie
saw Walden and Jamell Patrick having a conversation on an East Chicago
sidewalk during what is described as a “block party[.]” Transcript, Volume 2 at
41. When Currie saw Walden, “the prior altercation, gang animosity, anger
and rage overcame [Currie] causing him sudden heat[.]” Appendix of the
Appellant, Volume Two at 112. Currie approached the two from behind and
shot both Walden and Patrick. Patrick was shot in the foot and survived his
injuries. Walden was shot once on the left side of his hip and once on the right
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side of his chest and died as a result of his injuries. Miguel Carter, among
others, was an eyewitness to the shooting.
[3] The State charged Currie with murder, a felony, and battery by means of a
deadly weapon, a Level 5 felony. A warrant was issued for Currie’s arrest and
he was ordered to be held without bail. After Currie was arrested, he filed a
petition to set bail. While that petition was pending, Currie was in contact with
other members of the Villeblock gang and encouraged attempts to intimidate
and prevent witnesses from testifying at the bail hearing. Specifically, Carter
was a target of threats and someone shot at his vehicle; “afraid for his life and
his family’s life[,]” Carter did not appear to testify at the bail hearing despite
having been subpoenaed. Id. at 114. Because of these threats, the State
amended the charging information to add three counts of attempted obstruction
of justice, all Level 6 felonies.
[4] Less than one week before Currie’s jury trial was scheduled to begin, Currie
agreed to plead guilty to voluntary manslaughter, a Level 2 felony and a lesser
included offense of murder, and one count of attempted obstruction of justice.
In exchange, the State would dismiss the remaining counts. The plea
agreement stated that the parties were “free to fully argue their respective
positions as to the sentence to be imposed by the Court[,]” but that Currie’s
sentences for the two counts would be served concurrently. Id. at 109.
[5] At the sentencing hearing, several witnesses testified for each side, and letters
were admitted into evidence both from the victim’s family describing their loss
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and from Currie’s family and friends attesting to his good character. The trial
court accepted the plea agreement and made the following observations
relevant to sentencing:
Sentencing Considerations:
1. The Court considers the nature and circumstance of the
crimes committed and the character of the defendant, including:
The defendant and the victim were associated with rival gangs.
During the pendency of the . . . bail proceedings, the defendant
committed [attempted obstruction of justice].
2. The mandatory nature of the plea agreement as to the
concurrent sentences.
3. The reasons stated on the record, including:
Mitigating Circumstances: . . .
1. The defendant has minimal history of criminal activity.
2. The defendant has pled guilty and admitted responsibility.
Aggravating Circumstances: . . .
1. The defendant has a history of criminal convictions as
follows: As an adult, the defendant was convicted of possession
of marijuana . . . on July 12, 2016.
2. The character of the defendant is dishonest and manipulative.
3. As outlined in the factual basis for the plea agreement, the
defendant attempted to intimidate a witness for the State in an
effort to undermine the State’s case against him.
4. Another individual was shot . . . during the shooting incident.
The shooting is attributed to the defendant.
Id. at 142-43. In addition to these written findings, the trial court’s oral
sentencing statement acknowledged Currie’s strong family support and that,
“[n]o question . . . you have people that think well of you. . . . People think you
are capable of doing a lot of good things in life, but yet at 24 years of age, you
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find yourself guilty of murder. . . . That sudden heat factor is what otherwise
reduces murder to voluntary manslaughter . . . and I can accept that.” Tr., Vol.
2 at 76.
[6] The court imposed a sentence of twenty-four years for voluntary manslaughter
and two years for attempted obstruction of justice, to be served concurrently. 1
The court noted that “this is a fair and proper sentence given the factors as
listed. It’s not the maximum sentence because I do not believe the maximum
sentence is appropriate given the lack of criminal history specifically and
defendant pleading guilty accepting responsibility to some extent.” Id. at 82.
Currie now appeals his sentence.
Discussion and Decision
I. Abuse of Discretion
[7] Currie first contends the trial court abused its discretion in sentencing him by
failing to consider significant mitigating evidence of his good character and by
using an element of the offense to aggravate the sentence.
1
Originally, the trial court stated the sentences were to be served consecutively, but when reminded that the
terms of the plea agreement stated the sentences would be served concurrently, the trial court maintained the
sentences of twenty-four and two years but ordered them to be served concurrently for a total of twenty-four
years.
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A. Standard of Review
[8] Sentencing decisions rest within the trial court’s discretion and are afforded
considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).
Accordingly, we review sentencing decisions for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (2007). A trial court abuses its discretion when its decision is “clearly
against the logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions to be drawn therefrom.” Id.
[9] There are several ways in which a trial court can abuse its discretion in
sentencing:
(1) failing to enter a sentencing statement, (2) entering a
sentencing statement that explains reasons for imposing the
sentence but the record does not support the reasons, (3) the
sentencing statement omits reasons that are clearly supported by
the record and advanced for consideration, or (4) the reasons
given in the sentencing statement are improper as a matter of
law.
Phelps v. State, 24 N.E.3d 525, 527 (Ind. Ct. App. 2015). Currie contends the
trial court erred by omitting a mitigating circumstance clearly supported by the
record and by finding an improper aggravating circumstance.
B. Mitigating Circumstances
[10] The finding of a mitigating circumstance is discretionary, and the trial court is
neither obligated to accept the defendant’s argument as to what constitutes a
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mitigating circumstance nor required to give the same weight to mitigating
evidence that the defendant would. Hunter v. State, 72 N.E.3d 928, 935 (Ind. Ct.
App. 2017), trans. denied. Furthermore, if the trial court declines to find the
existence of a mitigating circumstance, it is not obligated to explain why it has
found that the circumstance does not exist. Anglemyer, 868 N.E.2d at 493.
When presenting the question of whether a trial court failed to identify
mitigating circumstances on appeal, an appellant must “establish that the
mitigating evidence is both significant and clearly supported by the record.”
Hunter, 72 N.E.3d at 935.
[11] Currie claims the trial court abused its discretion in failing to identify his “good
character” as a mitigating circumstance. Appellant’s Brief at 11. Currie notes
he submitted sixteen letters of support attesting to the “type of individual he is.”
Id. Currie believes this evidence of his past good deeds is indicative of his
attitude and that he is unlikely to commit another crime, and he asserts that the
trial court “ignored” this good character evidence. Id. at 12.
[12] We cannot agree with Currie that the trial court failed to consider the letters
submitted on Currie’s behalf. At the outset of the sentencing hearing, the court
noted that both sides had submitted letters that morning and that it had
reviewed them all. See Tr., Vol. 2 at 13. In making its sentencing statement at
the conclusion of the hearing, the trial court noted that people think well of
Currie and believe he has potential. See id. at 76. Therefore, the record
demonstrates that the trial court did consider the positive statements made on
Currie’s behalf when determining his sentence.
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[13] As for the content of the letters and the live testimony offered on Currie’s
behalf, the trial court is not obligated to give the evidence the same weight that
Currie would. See Hunter, 72 N.E.3d at 935. Furthermore, the trial court was
not required to state why it did not consider this evidence to be mitigating. See
Anglemyer, 868 N.E.2d at 493.2 Nonetheless, it seems obvious from the trial
court’s recognition of Currie’s gang affiliation and the impact gangs have on the
community, a situation the court described as “[j]ust plain horrible[,]” tr., vol. 2
at 77, that the trial court assessed Currie’s character by giving more weight to
Currie’s gang affiliation and intimidation tactics than to evidence of his prior
good deeds. That the trial court did not find Currie’s mitigating evidence to be
significant in light of the overall picture of Currie’s character was not an abuse
of the trial court’s sentencing discretion.
C. Aggravating Circumstances
[14] Currie also claims it was improper for the trial court to identify his prior
misdemeanor conviction of possession of marijuana, his dishonest and
manipulative character, and his attempts to intimidate a witness as aggravating
circumstances.
2
Currie contends in his reply brief that “[i]f the Court did not find [his good character evidence] to be
mitigating, then it was obligated to say so. The Court’s silence indicates that it was not considered, not that it
considered it and failed to assign it any weight.” Appellant’s Reply Brief at 6. This is not, in fact, the law.
See supra, ¶ 10. A trial court is only obligated to include in its sentencing statement those mitigating
circumstances that it finds to be significant. Battles v. State, 688 N.E.2d 1230, 1236 (Ind. 1997).
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[15] The trial court’s written sentencing order both identifies Currie’s “minimal
history of criminal activity” as a mitigating circumstance and his “history of
criminal convictions” as an aggravating circumstance. App. of the Appellant,
Vol. Two at 143. As Currie points out, “It cannot be both.” Appellant’s Br. at
13. During the trial court’s oral statement at the hearing, however, the trial
court stated Currie had “no significant criminal record” and clearly indicated
that it did not find Currie’s single misdemeanor conviction to be aggravating
because it was “so unrelated to why we’re here that it’s hard to – and I won’t do
it either – put much stock in [it.]” Tr., Vol. 2 at 75. Where the written and oral
sentencing statements conflict, we examine the two together “to assess the
conclusions of the trial court.” McElroy v. State, 865 N.E.2d 584, 589 (Ind.
2007). Given the trial court’s oral statement and the inclusion of Currie’s
“minimal history of criminal activity” as a mitigating circumstance in the
written sentencing order, we conclude the trial court’s intention was that
Currie’s criminal history be considered a mitigating circumstance and included
it as an aggravating circumstance in the written order in error.
[16] Currie addresses the next two aggravators—his dishonest and manipulative
character and his attempts to intimidate a witness—under the single argument
that the trial court improperly used an element of the offense to aggravate his
sentence. See Appellant’s Br. at 13-14 (“In essence, the second and third
aggravators are mirror images and both improper.”). The trial court stated at
the sentencing hearing:
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Your intent to intimidate a witness not to show up for a bail
hearing [is] dishonest [and] manipulative . . . . [T]his instance in
which you were involved in which you had a specific hand in
trying to intimidate a witness is a significant event given the
totality of the circumstances here. . . . It’s so significant that I
think . . . it’s an aggravating factor for the charge of voluntary
manslaughter.
Tr., Vol. 2 at 81. A material element of a crime may not be used as an
aggravating circumstance supporting an enhanced sentence for that crime.
Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016), trans. denied. This
is because the legislature has determined the appropriate advisory sentence
based on the elements of the crime committed. Gomillia v. State, 13 N.E.3d 846,
852 (Ind. 2014). A court may, however, consider the nature and circumstances
of the crime as an aggravating circumstance. McCann v. State, 749 N.E.2d 1116,
1120 (Ind. 2001). This is generally thought to be “associated with particularly
heinous facts or situations” and the trial court must detail the particularized
circumstances beyond the elements of the crime itself that warrant an enhanced
sentence. McElroy, 865 N.E.2d at 589-90 (holding that where the trial court
examined the unique circumstances of the defendant’s reckless behavior in
repeatedly igniting a lighter in the cargo area of a paint truck transporting
thirteen painters and flammable materials, setting a fire that killed two painters
and seriously burned the others, the trial court did not err in identifying the
nature and circumstances of the offense as aggravating).
[17] Here, intimidating a witness is not a material element of voluntary
manslaughter. Rather, presenting a slightly different scenario than is typical,
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the trial court used the elements of attempted obstruction of justice—a crime for
which Currie was also convicted and sentenced in this proceeding—as an
aggravating circumstance to support an enhanced sentence for voluntary
manslaughter. The trial court spoke at some length about the general difficulty
of securing convictions because of interference with witnesses:
Your intent to intimidate a witness not to show up for a bail
hearing. That’s dishonest, that’s manipulative and that’s an
aggravating factor. I know for a fact that these things happen,
and I know that we’ll have some cases from time to time, next
thing you know, maybe a year goes by, six months, nine months,
state files a motion to dismiss the case. Well, what happened?
Our witnesses died. Our witnesses left the area. We have no
witnesses that will speak. We can’t get in contact with witnesses
that once decided to cooperate. And they just check out. And
now what was once a viable murder charge is now a dismissal.
We see this all the time. . . . In this case, you were caught.
Tr., Vol. 2 at 81. The trial court referenced in both its oral and written
sentencing statements the stipulated factual basis which detailed in fourteen
paragraphs multiple attempts to intimidate witness Carter to keep him from
testifying at Currie’s bail hearing. See Tr., Vol. 2 at 80-81; App. of the
Appellant, Vol. Two at 143 (“As outlined in the factual basis for the plea
agreement, the defendant attempted to intimidate a witness for the State . . . .”).
In that stipulation, Currie admitted to at least three separate instances of
contacting a fellow gang member to encourage him to intimidate Carter. Currie
admitted to the fact that someone associated with him approached Carter and
told him not to appear in court and acknowledged that gun shots were directed
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at Carter’s vehicle. And the stipulated factual basis indicated that Carter was
afraid for his and his family’s lives as a result of these threats. Currie pleaded
guilty to one count of attempted obstruction of justice, when the facts and
circumstances of the case demonstrate multiple instances of attempted
obstruction and threatening behavior directed toward Carter over the course of
several weeks. “[T]he particular facts – the ongoing nature and length of [the]
criminal conduct – can properly be considered as aggravation.” Phipps v. State,
90 N.E.3d 1190, 1198 (Ind. 2018). Because the trial court detailed the reasons
why the intimidation of this witness went beyond the mere statutory
requirements of the one count of attempted obstruction to which Currie pleaded
guilty, we conclude the trial court did not abuse its discretion in identifying the
intimidation of a witness as an aggravating circumstance, either on its own or
as a reflection of Currie’s character.
[18] Although the trial court erred in including Currie’s history of criminal
convictions as an aggravating circumstance in its written sentencing statement
when it is clear the trial court intended Currie’s minimal criminal history to be a
mitigating circumstance, the remaining aggravating circumstances were proper. 3
When a trial court considers an improper aggravating circumstance, we may
nevertheless affirm the sentence if we can say with confidence that the trial
court would have imposed the same sentence absent the improper finding.
3
Notably, Currie does not challenge the trial court’s finding that it was an aggravating circumstance that
another individual was shot during this incident.
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Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011), trans. denied.
Despite one listed aggravator being improper, it does not appear from the
record that the trial court actually considered that to be an aggravating
circumstance in crafting Currie’s sentence, and regardless, the trial court
properly considered three other aggravating circumstances. As such, we are
confident the trial court would have imposed the same sentence.
II. Inappropriate Sentence
A. Standard of Review
[19] Currie requests that we revise his sentence, claiming the twenty-four-year
sentence he received is inappropriate given the nature of his offenses and his
character. He requests that we revise his sentence to the advisory sentence for a
Level 2 felony. “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.” Ind. Appellate Rule 7(B).
[20] The defendant has the burden to persuade us that the sentence imposed by the
trial court is inappropriate. Anglemyer, 868 N.E.2d at 494. “[W]hether we
regard a sentence as appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. The sentence imposed by the trial court should be upheld
unless we find compelling evidence “portraying in a positive light the nature of
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the offense (such as accompanied by restraint, regard, and lack of brutality) and
the defendant’s character (such as substantial virtuous traits or persistent
examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind.
2015).
B. Currie’s Sentence
[21] The nature of the offense references a defendant’s actions in comparison with
the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App.
2018), trans. denied. The nature of the offense can be analyzed by using the
advisory sentence as a starting point. Anglemyer, 868 N.E.2d at 494. The
sentencing range for voluntary manslaughter, a Level 2 felony, is ten to thirty
years, with an advisory sentence of seventeen and one-half years.4 Ind. Code §
35-50-2-4.5.
[22] The record is necessarily limited due to Currie’s guilty plea, but we do have the
benefit of an extensive stipulated factual basis for the plea and the trial court’s
statement from the sentencing hearing. Currie pleaded guilty to voluntary
manslaughter and attempted obstruction of justice. We note that Currie was
originally charged with murder for the death of Walden, battery by means of a
deadly weapon for injuring Patrick, and four counts of attempted obstruction of
justice for the various ways in which he attempted to keep Carter from
4
Because the sentence for attempted obstruction of justice is concurrent to the sentence for voluntary
manslaughter, we focus on the voluntary manslaughter sentence as the longer of the two.
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testifying at his bail hearing. Currie received a substantial benefit from the plea
agreement, which he did not enter until approximately a week before his case
was set for jury trial, and although the stipulated factual basis acknowledges
that Currie caused injury to Patrick, the crimes for which he was convicted and
sentenced do not reflect that injury. Generally, the presence of multiple victims
justifies the imposition of enhanced and/or consecutive sentences. Sanchez v.
State, 938 N.E.2d 720, 723 (Ind. 2010). Additionally, there were other
bystanders that night – an investigating officer described the scene of the crime
as “there was [sic] a lot of people out there. There was some type of block party
going on. There was a lot of smoking, a lot of drinking, just a lot of
congregating[.]” Tr., Vol. 2 at 41. Under those circumstances, the possibility of
injury to many more people when Currie fired a gun multiple times was high.
[23] The character of the offender refers to “general sentencing considerations and
the relevant aggravating and mitigating circumstances.” Cannon, 99 N.E.3d at
280. In conducting our review, we consider the aggravators and mitigators
found by the trial court, but also any other factors appearing in the record.
Walters v. State, 68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied.
[24] Currie highlights that he is only twenty-four years old, that he has graduated
high school and attended some college classes, that he was employed full-time
when he was arrested, that he is not a drug user, and that “there was an
enormous community outpouring describing Currie’s good character.”
Appellant’s Br. at 16. We acknowledge and commend Currie for all these
admirable attributes. Yet, he was affiliated with a gang, he carried a firearm,
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and he shot and killed a member of a rival gang with whom he had ongoing
animosity. The trial court accepted his assertion that he acted in sudden heat
upon seeing Walden and remembering Walden’s previous crimes against him.
But the fact remains that he killed another man who had no opportunity to
defend himself and injured a bystander in the process. Even after being arrested
for this crime, Currie committed the additional crime of attempting to obstruct
justice by engaging in a weeks-long campaign to intimidate an eyewitness to the
shooting. On the whole, we cannot say that Currie’s character is so stellar as to
warrant a revision of his sentence.
[25] In sum, Currie has not met his burden of convincing us that his sentence is
inappropriate.
Conclusion
[26] The trial court did not abuse its discretion in sentencing Currie and the twenty-
four year sentence the trial court imposed is not inappropriate in light of the
nature of Currie’s offenses and his character. Accordingly, the judgment of the
trial court is affirmed.
[27] Affirmed.
Baker, J., and Najam, J., concur.
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