Dewayne Harris v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   FILED
regarded as precedent or cited before any                                           Dec 15 2020, 9:08 am
court except for the purpose of establishing
the defense of res judicata, collateral                                                 CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
estoppel, or the law of the case.                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Matthew D. Anglemeyer                                   Attorney General of Indiana
Indianapolis, Indiana
                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Dewayne Harris,                                         December 15, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2681
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Barbara Crawford,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1710-MR-38458



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020        Page 1 of 19
                                             Case Summary

[1]   Dewayne Harris appeals his conviction for Murder, a felony, claiming that the

      trial court abused its discretion in excluding the victim’s toxicology report from

      evidence, and that it erred in admitting photographs of items that police officers

      seized during the search of a residence. Harris also argues that the fifty-five

      year sentence for murder and the twenty-year enhancement for the use of a

      firearm in the crime amounted to cruel and unusual punishment in violation of

      the Eighth Amendment to the United States Constitution because it was a de

      facto life sentence. Harris further contends that the seventy-five-year aggregate

      sentence was inappropriate when considering the nature of the offense and his

      character.


[2]   We affirm the trial court’s judgment but remand for a correction of the

      sentencing order because the trial court’s oral statement at sentencing conflicted

      with the written sentencing order and abstract of judgment.


                                 Facts and Procedural History

[3]   On September 29, 2017, several individuals were playing a dice game outside a

      residence on 28th Street in Indianapolis. Ebony Holifield was watching the

      game and noticed that seventeen-year-old Harris, a/k/a “Bruh Bruh,” was one

      of the participants. Transcript Vol. II at 139-40.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 2 of 19
[4]   Shortly after 6:00 p.m., James Butler approached the area and sold some

      marijuana to one of the residents at the 28th Street house. Thereafter, several

      of the dice players urged Butler to join the game. Some of them chided Butler

      for refusing to play and accused him of being “broke.” Id. at 146. In response,

      Butler pulled out “a lot of money,” waved it at the group, and responded,

      “who’s broke?” Id. at 146.


[5]   After Butler displayed the money, Holifield saw Harris look at his brother to

      “get [his] attention.” Id. at 148-49. Butler started to walk away, and Harris

      followed. Holifield thought she observed the outline of a gun through Butler’s

      clothing but did not actually see a weapon. Holifield then saw Harris draw a

      gun, point it at Butler’s back, and demand his money. Holifield never saw

      whether Butler drew a gun, as she was scared and began to run from the scene.

      She then heard several gunshots and upon returning a few minutes later, she

      saw Butler lying face down on the ground.


[6]   A short time later, IMPD officers and detectives responded to a 911 dispatch

      about the shooting. Upon their arrival, the officers found the owner of the 28th

      Street residence standing over Butler, who was bleeding from the chest and

      throat area. They also noticed a .44 caliber revolver on the ground next to

      Butler. The EMTs arrived and pronounced Butler dead shortly thereafter.


[7]   The police officers secured the area and observed five spent 9 mm shell casings

      near Butler’s body. Butler had sustained five gunshot wounds, including one

      shot to the corner of his mouth, shots to the right and left sides of his chest, and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 3 of 19
       shots to his right and left thigh. A 9mm bullet remained lodged in Butler’s

       chest.


[8]    When the officers initially spoke to Holifield, she provided an incorrect last

       name because there was an outstanding warrant for her arrest. Holifield also

       denied any knowledge of the shooting, claiming that she had been watching

       television with a friend inside the 28th Street residence. Holifield later told the

       detectives what she had seen and identified Harris as the only shooter.


[9]    The day after the shooting, Harris saw Butler’s mother sitting on the porch of

       her residence. Harris approached her, pointed a gun in her direction, and stated

       that he did not have anything to do with the shooting.


[10]   On October 4, 2017, Harris was arrested at a residence on Boulevard Place in

       Indianapolis. While executing a search warrant at the house, the police seized

       several new pairs of shoes and various new clothing items that were still in

       shopping bags. Three phones were seized, including a silver iPhone and a

       white iPhone on a bed next to a school ID card that belonged to Harris’s

       girlfriend.


[11]   After obtaining search warrants to extract data from the phones, the white

       iPhone showed a video of Harris “flashing money” in the back of a vehicle.

       Transcript Vol. III at 102; State’s Ex. 83. That phone also revealed that someone

       had used the phone to visit Butler’s Facebook profile at approximately 11:00

       p.m. on the evening of the shooting and had viewed two news videos regarding

       the 28th Street shooting.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 4 of 19
[12]   At some point, the police interviewed Harris in the presence of his parents.

       Although Harris initially denied being at the 28th Street residence when Butler

       was killed, he later admitted that he was there but had nothing to do with the

       shooting. The State charged Harris with murder on October 6, 2017.

       Thereafter, the State amended the charging information to include a sentence

       enhancement count for Harris’s use of a firearm during the commission of the

       offense.


[13]   While awaiting trial, Harris called his girlfriend from the jail and the two

       discussed the iPhone video. Harris told his girlfriend that others would see him

       in the video holding a lot of cash. Harris also talked with other friends about

       the witnesses who would testify against him, and Harris told them that he had a

       copy of the probable cause affidavit that listed the names of the “snitches.” Id.

       at 174.


[14]   At Harris’s jury trial that commenced on September 23, 2019, several police

       officers testified about the items of clothing that were seized during the search

       of the Boulevard Place residence. The trial court denied Harris’s relevancy

       objection and admitted photos of those items into evidence.


[15]   A firearms examiner testified for the State that five of the spent cartridge casings

       found near Butler’s body were fired from the same 9 mm firearm, and not from

       the revolver found next to Butler. The trial court admitted a drawing into

       evidence that showed the location of Butler’s gunshot wounds. That diagram

       was prepared by Dr. Christopher Poulos who conducted Butler’s autopsy. Dr.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 5 of 19
       Poulos concluded that Butler’s death was a homicide and that the multiple

       gunshot wounds were the cause of death.


[16]   Also attached to the autopsy report were toxicology test results that showed the

       presence of Xanax and THC in Butler’s system. Harris sought to have the

       toxicology results admitted into evidence, along with the autopsy report on the

       grounds that those documents were part of a business record. The State

       objected to the admission of the toxicology report, whereupon the trial court

       conducted a hearing outside the jury’s presence.


[17]   During the hearing, Dr. Poulos testified that while it is standard protocol for the

       coroner’s officer to collect and provide blood samples for toxicology analysis,

       he is not personally involved in the testing or the preparation of the toxicology

       report. Dr. Poulos explained that the toxicology findings are routinely included

       with the autopsy report. Dr. Poulos further testified that while the substances in

       Butler’s system might have affected Butler’s state of mind at the time of the

       shooting, he could not testify about the precise effects they may have had on

       Butler because he is not a toxicologist or pharmacologist. Dr. Poulos stated

       that he could provide only “generalities as to what a given compound would

       have done to an individual,” noting the “studies” cited in the toxicology report.

       Id. at 77–78.


[18]   The trial court excluded the toxicology report from evidence, finding that it was

       not relevant to establishing Butler’s state of mind at the time of the shooting.

       The trial court expressed concern about Dr. Poulos being placed in a position of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 6 of 19
       testifying outside his area of expertise, and the possibility that the jury could be

       misled and confused about the central issues in the case.


[19]   After the evidence was presented, the jury found Harris guilty as charged.

       Harris waived his right to a jury trial on the sentence enhancement count and

       requested the trial court to issue its finding at sentencing. At the sentencing

       hearing on October 17, 2019, the trial court noted that Harris was first

       adjudicated a delinquent at the age of twelve and has since accumulated four

       misdemeanor and four felony delinquency adjudications. Harris was also on

       pretrial release for armed robbery when he committed the instant offense.

       While awaiting trial for Butler’s murder, Harris accumulated over twenty

       misconduct violations for breaking jail and Indiana Department of Correction

       (DOC) rules.


[20]   The trial court identified Harris’s lack of remorse and lack of respect, his

       significant juvenile delinquency history, and the fact that he committed the

       instant offense while on pretrial release, as aggravating factors. It then found

       Harris’s age as a mitigating circumstance and determined that the aggravators

       outweighed any mitigating factors. The trial court stated on the record that it

       was sentencing Harris to fifty-five years for murder and enhancing that term by

       twenty years for use of a firearm during the commission of that offense.

       However, the abstract of judgment and written sentencing order omitted the

       twenty-year enhancement.


[21]   Harris now appeals.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 7 of 19
                                      Discussion and Decision


                                           I. Evidentiary Rulings


[22]   Harris first claims that the trial court abused its discretion in excluding the

       toxicology results because the presence of Xanax and THC in Butler’s system at

       the time of the shooting was relevant to establish Butler’s state of mind. Harris

       argues that the exclusion of this evidence necessarily precluded him from

       raising a self-defense claim.


[23]   We initially observe that evidence is relevant “if: (a) it has any tendency to

       make a fact more or less probable than it would be without the evidence; and

       (b) the fact is of consequence in determining the action.” Indiana Evid. R. 401.

       The decision to admit or exclude evidence falls within the trial court’s

       discretion and is reviewed for an abuse of that discretion. Dycus v. State, 108

       N.E.3d 301, 303 (Ind. 2018). The ruling on the admission or exclusion of

       evidence warrants reversal only if the decision was clearly against the logic and

       effect of the facts and circumstances before it. Id. Furthermore, a claim that the

       trial court erred in the admission or exclusion of evidence will not prevail on

       appeal unless the error affects the substantial rights of the defendant. Nicholson

       v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). There is a strong presumption that

       the trial court properly exercised its discretion when ruling on the admissibility

       of evidence. Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002). Thus, we will

       affirm the trial court’s decision on any basis apparent in the record, whether or

       not relied on by the trial court. Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 8 of 19
[24]   In this case, Harris sought to have the entire autopsy report admitted into

       evidence that included the attached toxicology results. Harris claimed that

       those results would establish Butler’s state of mind during the confrontation.

       And because the evidence showed that Xanax and THC both have depressant

       and reality distorting effects, Harris asserts that Dr. Poulos was qualified to

       testify as to how Butler might have behaved or acted under the influence of

       those drugs.


[25]   Notwithstanding Harris’s claim, Dr. Poulos testified that he was not able to

       testify about how an individual might react to a given drug. Dr. Poulos also

       could not state when Butler ingested the drugs or how much he had consumed.

       When Harris sought to have the toxicology results admitted, no prior testimony

       had been offered as to Butler’s behavior at the time of the shooting, or whether

       Butler might have become violent or aggressive when under the influence of the

       drugs.


[26]   In the absence of evidence that Butler provoked Harris or that Butler was likely

       to become aggressive when intoxicated, we agree with the trial court that the

       toxicology results might very well have confused the issues and misled the jury.

       Butler may have taken the drugs several days before the shooting, and it is not

       known what impact the Xanax and THC would have had on Butler.


[27]   Moreover, Harris has failed to demonstrate that the exclusion of this evidence

       prevented him from advancing an alleged self-defense claim. Harris has not

       demonstrated that excluding the toxicology results limited his ability to present


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 9 of 19
       evidence of Butler’s behavior. For all these reasons, we conclude that the trial

       court did not abuse its discretion in excluding Butler’s toxicology results from

       the evidence.


[28]   Harris also contends that the trial court erred in admitting photographs of the

       clothing and shoes that were seized from the Boulevard Place residence. Harris

       argues that this evidence was irrelevant as to whether he shot and killed Butler

       and that it was offered only for the purpose of portraying him “as a hardened

       criminal who couldn’t wait to selfishly spend [the stolen money].” Appellant’s

       Brief at 25.


[29]   The evidence established, among other things, that Harris took a substantial

       amount of cash from Butler and was in possession of new and expensive items

       shortly after the shooting. This evidence, along with the other evidence

       presented at trial that included Holifield’s eyewitness testimony that Harris

       pointed the gun at Butler and demanded his money just before Butler was shot

       and killed, was relevant and admissible to show that Harris committed the

       charged offense. See, e.g., Murray v. State, 479 N.E.2d 1283, 1289 (Ind. 1985)

       (evidence of a large quantity of drugs, scales, and a substantial amount of cash

       seized from an apartment where the defendant had previously sold drugs, was

       relevant and material to show that the defendant was involved in possessing

       and dealing in illegal drugs). Thus, Harris’s claim that the trial court abused its

       discretion in admitting this evidence, fails.


                                              II. Sentencing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 10 of 19
                                            A. De Facto Life Sentence


[30]   Harris argues that the aggregate seventy-five-year sentence constitutes cruel and

       unusual punishment in violation of the Eighth Amendment to the United States

       Constitution. Harris maintains that the sentence cannot stand because the trial

       court imposed a de facto life sentence, and no evidence was presented regarding

       the “significance of [Harris’s] youth and [the] attendant characteristics.”

       Appellant’s Brief at 18.


[31]   Our Supreme Court recently considered the issue of de facto life sentences, along

       with a sentencing court’s duty to address a defendant’s youth and its attendant

       circumstances prior to sentencing a child to life in prison, in Wilson v. State, No.

       19S-PC-548 (Ind. Nov. 17, 2020). 1


[32]   In Wilson, the sixteen-year-old defendant was sentenced to 183 years following

       his convictions for two counts of murder and armed robbery and an

       enhancement for criminal gang activity. When imposing the sentence, the trial




       1
          Our Supreme Court also decided State v. Stidham, No. 20S-PC-634 (Ind. Nov. 17, 2020), that same day. In
       Stidham, the defendant committed murder and several other crimes when he was a juvenile and was
       ultimately sentenced to 138 years of incarceration—the maximum that could be imposed at the time. After
       several appeals, our Supreme Court ultimately determined that this sentence was inappropriate under
       Indiana Appellate Rule 7(B) and reduced Stidham’s sentence to an aggregate term of eighty-eight years. Slip
       op. at 18. Because the Stidham Court found the defendant’s argument under App. R. 7(B) dispositive, it
       declined to address the additional claim that the sentence amounted to “an impermissible discretionary de
       facto life-without-parole sentence.” Slip op. at 7.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020             Page 11 of 19
       court cited several aggravating factors, and identified Wilson’s youth as a

       mitigating factor.


[33]   Thereafter, Wilson petitioned for post-conviction relief, alleging ineffective

       assistance of both trial and appellate counsel. The post-conviction court denied

       Wilson’s request for relief, and a panel of this court reversed. Our Supreme

       Court granted the State’s petition for transfer, and first addressed Wilson’s

       claim that his sentence constituted cruel and unusual punishment under the

       Eighth Amendment. Id., slip op. at 7. In determining that it did not, the Court

       discussed the recent evolution in juvenile sentencing requirements. More

       particularly, it noted that nearly ten years ago, Miller v. Alabama, 567 U.S. 460

       (2012) determined that the Eighth Amendment “forbids a sentencing scheme

       that mandates life in prison without possibility of parole for juvenile

       [murderers].” Id. at 479. As a result, Miller provides that the sentencing court

       in such cases “[a]t the least, . . . should look at” the “hallmark features” of

       youth, the defendant’s background, and “the circumstances of the homicide

       offense” before imposing a “discretionary life without parole sentence.” Id. at

       477–78.


[34]   The Wilson Court observed that since Miller, a split of authority has developed

       as to whether a term of years sentence constitutes a “de facto” life without parole

       sentence that implicates heightened fact-finding sentencing requirements. Slip

       op. at 11. More specifically, the Court observed that some jurisdictions have

       held that Miller’s requirements apply to term-of-years-sentences that are lengthy

       enough to be considered de facto life sentences, while a handful of others find

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 12 of 19
       Miller inapplicable to aggregate sentences that exceed the juvenile’s life

       expectancy. Id. at 12. There are also jurisdictions that apply the Miller

       requirements only to de jure life-without-parole sentences and not to other

       discretionary sentences, including life with the possibility of parole. Id. at 13.

       Wilson observed that “[the] courts . . . are split approximately evenly on

       whether Miller . . . should be extended to at least some de facto life sentences.”

       Slip op. at 13 (emphasis added).


[35]   In its thoughtful analysis of the differing rationales, the Court noted that Miller

       and at least one other United States Supreme Court case explicitly stated that

       their holdings are limited to the “particular” penalty of “life without parole.” Id.

       at 14. See Miller, 567 U.S. at 83; Graham v. Florida, 560 U.S. 48, 50 (2010).

       Thus, the Wilson Court reasoned that the “implication from this distinction is

       that the Miller holding was “not meant to extend to . . . other types of

       sentences.” Wilson, slip op. at 14. The Court observed that an attempt at

       determining what constitutes a de facto life sentence would be a “line drawing

       exercise” that can end up “creating requirements that would vastly alter

       sentencing procedures for a large swath of juveniles.” Id. at 16. Hence, the

       Court commented that “‘while we are duty-bound to enforce the Eighth

       Amendment consistent with the Supreme Court’s directives’ we must interpret

       this precedent based ‘upon case-specific holdings rather than general

       expressions in an opinion that exceed the scope of any particular holding.’”

       Wilson, slip op. at 16 (quoting State v. Slocumb, 827 S.E.2d 148, 153 (S.C. 2019)).

       The Court concluded that the enhanced protections in Miller did not apply to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 13 of 19
       the defendant’s 181-year “term of years sentence” and thus, such sentence did

       not violate the Eighth Amendment “because [the] Miller [holding] . . . applies

       only to life-without-parole sentences.” Slip op at 16-17 (emphasis added).


[36]   And so it is here. Harris was sentenced to an aggregate seventy-five-year term

       of incarceration. That sentence does not violate the Eighth Amendment

       because, as our Supreme Court has held, the protections outlined in Miller for

       juvenile life-without-parole sentences do not apply to Harris’s “term of years

       sentence.” See Wilson, slip op. at 29. We thus proceed to address Harris’s

       argument that his sentence was inappropriate under App. R. 7(B).


                                          B. Inappropriate Sentence


[37]   Harris claims that the eighty-five-year-sentence was inappropriate when

       considering the nature of the offense and his character. See App. R. 7(B).

       Harris argues that his sentence should be revised to a term of forty-five years for

       murder and enhanced by five years based on his possession of a firearm.


[38]   App. R. 7(B) provides the standard by which we exercise our constitutional

       authority to review and revise sentences. We “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision,

       [this] Court finds that the sentence is inappropriate in light of the nature of the

       offense and the character of the offender.” App. R. 7(B). Whether we find a

       sentence inappropriate “turns on myriad factors that come to light in a given

       case” and ultimately “boils down to our collective sense of what is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 14 of 19
       appropriate.” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017). The trial court’s

       findings of aggravators and mitigators does not limit our review under

       Appellate Rule 7(B). Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014).


[39]   The “principal role of our review is to leaven outliers rather than achieving a

       perceived correct sentence.” Gibson v. State, 51 N.E.3d 204, 215 (Ind. 2016).

       The question under App. R. 7(B) analysis is “not whether another sentence is

       more appropriate” but rather “whether the sentence imposed is inappropriate.”

       Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020). It is the

       defendant’s burden to persuade us that the sentence is inappropriate. Crabtree v.

       State, 152 N.E.3d 687, 704 (Ind. Ct. App. 2020). In determining whether a

       sentence is inappropriate, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.

       Flowers v. State, 154 N.E.3d 854, 873 (Ind. Ct. App. 2020).


[40]   Harris was convicted of murder, which carries a sentencing range of between

       forty-five years and sixty-five years, with an advisory term of fifty-five years.

       Ind. Code § 35-50-2-3(a). The firearm enhancement has a sentencing range of

       between five years and twenty years. I. C. § 35-50-2-11(g). With this general

       guidance in mind, we consider whether Harris’s aggregate seventy-five-year

       sentence is inappropriate in light of the nature of his offenses and his character.


[41]   The “nature of the offense is found in the details and circumstances of the

       commission of the offense.” Townsend v. State, 45 N.E.3d 821, 831 (Ind. Ct.

       App. 2015), trans. denied. Harris admits the “seriousness of this crime and its


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 15 of 19
       atrocity . . . and does not seek to minimize its gravity.” Appellant’s Brief at 26.

       Hence, he does not claim that the nature of the offense warrants a revision of

       his sentence. Thus, we proceed to address Harris’s claim that the sentence was

       inappropriate when considering his character.


[42]   We note that “the character of the offender is found in what [is learned] of the

       offender’s life and conduct.” Washington v. State, 940 N.E.2d 1220, 1222 (Ind.

       Ct. App. 2011), trans. denied. A defendant’s criminal history and willingness to

       continue committing crimes is relevant for analysis of character under App. R.

       7(B). Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied.


[43]   Although Harris was only seventeen years old when he shot and killed Butler,

       his life of crime began at the age of twelve. By the time Harris was eighteen

       years old, he had accumulated four misdemeanor and four felony delinquency

       adjudications. Two of those adjudications involved the dangerous possession

       of a firearm. Harris had also been waived to adult court on a pending armed

       robbery charge.


[44]   Harris participated in some court-ordered services, but his successful

       completions of those programs occurred early in his juvenile history. As a

       juvenile, Harris failed probation, violated supervised release, and was

       eventually sentenced to the DOC as a juvenile.


[45]   When Harris was on pre-trial release for the pending armed robbery charge that

       had been waived to adult court, he committed the instant offense. From the

       time that Harris was incarcerated for this offense until the time that the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 16 of 19
       Presentence Investigation Report was filed, Harris had committed over twenty

       prison and county jail violations. Harris’s escalating criminal history at a

       relatively young age demonstrates his unwillingness and inability to reform his

       behavior. His actions show that he has a clear disregard for the law, authority,

       and rehabilitation objectives.


[46]   Harris’s poor character is further exhibited by his actions after he committed

       this offense, including his lies to the police, the lack of remorse, and his failure

       to accept responsibility for his actions. Harris approached Butler’s mother the

       day after the murder, pointed a gun in her direction, and denied committing the

       murder. During phone calls from the jail, Harris sought to prevent Holifield

       and others from testifying against him. All of these circumstances reflect poorly

       on Harris’s character.


[47]   In sum, Harris has failed to show that his sentence is inappropriate when

       considering the nature of his offense and his character.



                          C. Remand for Correction of Sentencing Order


[48]   On cross-appeal, the State contends, and we agree, that this case must be

       remanded for a correction of the trial court’s sentencing order. The State points

       out that the sentence the trial court announced at the hearing included the

       twenty years on the firearm enhancement, while the written sentencing order

       and abstract of judgment do not.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 17 of 19
[49]   When oral and written sentencing statements conflict, we will examine them

       together to discern the intent of the sentencing court. Walker v. State, 932

       N.E.2d 733, 738 (Ind. Ct. App. 2010). When such a conflict is apparent, we

       may remand the case for the correction of clerical errors. Willey v. State, 712

       N.E.2d 434, 445 n.8 (Ind. 1999); Walker, 932 N.E.2d at 738.


[50]   At the sentencing hearing, the trial court announced on the record that he was

       sentencing Harris to fifty-five years for murder, plus a twenty-year enhancement

       for the use of a firearm in committing that offense. But the trial court’s written

       sentencing order and the abstract of judgement omit the twenty-year

       enhancement.


[51]   Harris acknowledges that the trial court’s oral sentencing order is correct, in

       that he concedes that the aggregate sentence imposed was seventy-five years.

       Based on the unambiguous nature of the trial court’s oral sentencing

       pronouncement, we conclude that the abstract of judgment and sentencing

       order contain an obvious clerical error. Thus, we remand this case for a

       correction of that error to include the twenty-year enhancement. In all other

       respects, the judgment of the trial court is affirmed.


[52]   Affirmed and remanded.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2681 | December 15, 2020   Page 18 of 19
Riley, J. and May, J., concur.




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