MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 20 2016, 9:53 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbra A. Stooksbury Gregory F. Zoeller
Howes & Howes, LLP Attorney General of Indiana
LaPorte, Indiana Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnny Dutrayl McSwain, October 20, 2016
Appellant-Defendant, Court of Appeals Case No.
46A03-1510-CR-1812
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff Bergerson, Judge
Trial Court Cause No.
46D01-1409-MR-264
Baker, Judge.
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[1] Johnny McSwain appeals his convictions for Murder,1 a Felony; Attempted
Murder,2 a Level 1 Felony; and Conspiracy to Commit Murder,3 a Level 2
Felony. He argues that the conspiracy charge should have been severed, that
there is insufficient evidence supporting his conspiracy conviction, and that his
sentence is inappropriate in light of the nature of the offenses and his character.
Finding no error in the joinder of charges, that there is sufficient evidence, and
that his sentence is not inappropriate, we affirm.
Facts
[2] On August 15, 2014, Barry Williams and Daniel Mallett were visiting a house
in LaPorte. Around 10:30 p.m., they left to go to a gas station.
[3] McSwain, Tyrone Stalling, and Larry Crume, Jr., arrived across the street from
the house shortly thereafter. McSwain and Stalling approached the house and
knocked on the door. They asked whether Mallet was home, and when told
that he had just left, McSwain and Stalling went back across the street.
[4] When Williams and Mallett returned from the store, McSwain, Stalling, and
Crume confronted them. McSwain asked, “why you all making it hot over
here, we can’t make no money.” Tr. p. 863. McSwain was accusing them of
1
Ind. Code § 35-50-2-3(a).
2
Ind. Code § 35-41-5-1(a).
3
I.C. § 35-41-5-2.
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attracting police attention, which made it more difficult to sell drugs. Williams
responded, “f*ck you all.” Id. at 864.
[5] The two sides began preparing to fight, with Williams and Mallett slowly
backing away. McSwain then punched Williams in the face, knocking him
unconscious. Mallett threw a punch at McSwain and then began running
toward the house. Mallett heard McSwain yell, “shoot that n****r.” Id. at
1207. Crume pulled out a gun that he had been keeping in his hoodie pocket
and fired several shots at Mallett. Bullets flying past his head, Mallett was able
to get into the house without being hit. Crume then walked over to Williams,
who was still lying unconscious on the ground, and shot him in the head.
McSwain and Crume fled the scene.
[6] The following day, McSwain bailed his friend, Deanbra Martin, out of the
LaPorte County Jail. Martin came to McSwain’s house and McSwain relayed
the events of the previous day to him. According to Martin, McSwain admitted
that “he nod[ded] at Crume and told him to kill” Williams. Id. at 1387.
McSwain then asked Martin to kill Mallett so that Mallett could not talk to the
police. The group began to meet regularly to discuss the best way to kill
Mallett. McSwain spoke about getting walkie-talkies, “a low low car,”4 and
handicap license plates to facilitate the attack. Id. at 1397.
4
McSwain was referring to an inconspicuous car that would not attract police attention.
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[7] On September 12, 2014, Martin was arrested. He signed an agreement to give
information regarding Williams’s death and to become a confidential
informant. Through Martin, police kept track of the plan as it unfolded.
McSwain was concerned that “they name was hot in the streets,” and so
planned to be seen at a Wal-Mart to establish an alibi. Id. at 1403-05. On
September 19, McSwain gave Martin a .45-caliber gun. Later, McSwain spoke
with Martin on the phone and told him that he was at the Wal-Mart. The
police went to the Wal-Mart, where they found McSwain and Crume, whom
they arrested. While executing a search warrant of McSwain’s house, the
police found handicap license plates.
[8] A trial was held from June 22 through July 1, 2015. Prior to the trial, McSwain
filed several motions, including a request to sever the conspiracy charge, a
request that was apparently never ruled upon. The jury found McSwain guilty
as charged.5 After a September 23, 2015, sentencing hearing, the trial court
sentenced McSwain to 55 years for murder, 35 years for attempted murder, and
30 years for conspiracy, all to be served consecutively, for an aggregate term of
120 years. McSwain now appeals.
Discussion and Decision
[9] McSwain has three arguments on appeal, namely, that the trial court should
have severed the conspiracy charge from the murder and attempted murder
5
Crume was tried at the same trial and found guilty, but is appealing separately.
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charges; that there was insufficient evidence to support the conspiracy
conviction; and that his sentence is inappropriate.
I. Severance of Charges
[10] Regarding the joinder or severance of multiple criminal charges, Indiana law
provides the following:
(a) Two (2) or more offenses may be joined in the same
indictment or information, with each offense stated in a separate
count, when the offenses:
(1) are of the same or similar character, even if not part of
a single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme
or plan.
Ind. Code § 35-34-1-9. On the other hand, a defendant has a right to the
severance of charged offenses “whenever two (2) or more offenses have been
joined for trial in the same indictment or information solely on the ground that
they are of the same or similar character . . . .” Ind. Code § 35-34-1-11(a). In
such circumstances, we review a trial court’s decision de novo. Pierce v. State,
29 N.E.3d 1258, 1264 (Ind. 2015). Even where the defendant does not have a
right to sever the charged offenses,
the court, upon motion of the defendant or the prosecutor, shall
grant a severance of offenses whenever the court determines that
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severance is appropriate to promote a fair determination of the
defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the
evidence and apply the law intelligently as to each offense.
I.C. § 35-34-1-11(a). In these circumstances, “where the offenses have been
joined because the defendant’s underlying acts are connected together,” the trial
court has broad leeway in ruling on the motion to sever. Pierce, 29 N.E.3d at
1264.
[11] McSwain’s charged offenses were the following: along with his accomplice,
Crume, he attempted to murder Mallett; a moment later, they did murder
Williams; and then, over the course of the ensuing weeks, they conspired with a
confidential informant to murder Mallett so that he would not talk to the police
about their previous two crimes. Given that the first two offenses were
committed within moments of each other, and that the third offense was
committed to kill the same victim of the attempted murder offense and
eliminate a witness to their crimes, we have little difficulty finding that the
underlying acts were connected together. See Smoote v. State, 708 N.E.2d 1, 3
(Ind. 1999) (finding a proper joinder of offenses where “State’s theory . . . was
that the defendant killed the victim in order to assure that the victim would not
implicate him in the bank robbery”).
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[12] We turn to whether, despite the underlying acts’ connection, the factors listed in
subsection -11(a) compelled the trial court to sever the charges. First, McSwain
was charged with only three crimes. Second, the evidence before the jury
consisted mainly of the testimony of eyewitnesses and a confidential informant,
and so was not overly complex. Third, the evidence supporting each offense
was distinct to each offense, enabling the jury to come to an intelligent decision
regarding each charge. The trial court did not err by finding that none of these
three factors required a severance of McSwain’s charges.
II. Sufficiency of the Evidence
[13] McSwain argues that there is insufficient evidence to support his conspiracy to
commit murder conviction. He contends that his conviction cannot stand
where the main evidence against him is “the testimony of a known Felon and
Confidential informant facing a significant penalty for his criminal actions
leading up to Johnny’s arrest.” Appellant’s Br. p. 18.
[14] When reviewing the sufficiency of the evidence supporting a conviction, we will
neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51
N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence
supporting the judgment and any reasonable inferences that may be drawn
therefrom, and we will affirm if a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id.
[15] The State was required to prove beyond a reasonable doubt that McSwain
conspired to commit the felony of murder. “A person conspires to commit a
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felony when, with intent to commit the felony, the person agrees with another
person to commit the felony.” Ind. Code § 35-41-5-2(a). “The state must allege
and prove that either the person or the person with whom he or she agreed
performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2(b).
[16] Here, Martin testified that McSwain was party to an agreement to kill Mallett.
Moreover, Martin testified that McSwain provided him with a gun, which is an
overt act in furtherance of the agreement to kill Mallett. Thus, there was
sufficient evidence by which a jury could determine that each element of the
conspiracy was established beyond a reasonable doubt. McSwain’s argument
amounts to a request that we reweigh the evidence and assess the credibility of
witnesses—a request that we decline.
III. The Sentence Is Not Inappropriate
[17] McSwain argues that his sentence is inappropriate. Indiana Appellate
Rule 7(B) provides, “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.” The principal role of such review is to attempt to leaven the
outliers, but not to achieve a perceived “correct” sentence. Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a discretionary
function in which the trial court’s judgment should receive considerable
deference. Id. at 1222. We “should focus on the forest—the aggregate
sentence—rather than the trees—consecutive or concurrent, number of counts,
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or length of the sentence on any individual count.” Id. at 1225. The defendant
bears the burden of showing us that his sentence is inappropriate. Kennedy v.
State, 934 N.E.2d 779, 788 (Ind. Ct. App. 2010).
[18] McSwain faced between forty-five and sixty-five years for his murder
conviction, with the advisory sentence being fifty-five years. I.C. § 35-50-2-3(a).
Attempted murder is a Level 1 felony, which carries a sentence of between
twenty and fifty years, with the advisory sentence being thirty years. I.C. § 35-
41-5-1(a); Ind. Code § 35-50-2-4. A conspiracy to commit murder that does not
result in the death of a person is a Level 2 felony, which carries a sentence of
between ten and thirty years, with the advisory sentence being seventeen and
one-half years. I.C. § 35-41-5-2; I.C. § 35-50-2-4.5. McSwain received the
advisory sentence for murder, the advisory sentence for attempted murder, and
the maximum sentence for conspiracy to commit murder, and his sentences
were ordered to run consecutively. This amounts to an aggregate sentence of
120 years.
[19] Turning to the nature of McSwain’s offenses, he and an accomplice came to the
house where their victims were staying with the intent to start a confrontation
over illegal drugs. Although McSwain argues that “he did not direct the bullets
to hit” Mallett, appellant’s br. p. 16, the evidence shows that he yelled to
Crume, “shoot that n****r.” Tr. p. 1207. McSwain was then an accomplice to
the cold-blooded killing of Williams, who was lying unconscious on the ground
because McSwain had knocked him out. One witness testified that McSwain
admitted that he nodded his head toward the unconscious Williams, telling
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Crume to shoot him. And although McSwain argues that this was only “a
situation which got quickly out of hand,” appellant’s br. p. 16, the evidence
shows that he spent the following month calmly deliberating and planning the
murder of Mallett, whom he and Crume had unsuccessfully attempted to
murder in the first place. While a 120-year sentence might have been
inappropriate for a single, unplanned incident, we find that the month-long
conspiracy to commit a second murder reflects a wanton disregard for the value
of human life. And as our Supreme Court has explained, regarding the purpose
of consecutive sentences, “consecutive sentences seem necessary to vindicate the
fact that there were separate harms and separate acts against more than one
person.” Serrino v. State, 798 N.E.2d 852, 857 (Ind. 2003). McSwain has not
carried his burden of showing us that the nature of his offense renders his 120-
year sentence inappropriate.
[20] Turning to McSwain’s character, we find a lengthy criminal history. McSwain
has juvenile adjudications for battery, battery with injury, disorderly conduct,
burglary, and theft. He has adult convictions for criminal recklessness and
possession of marijuana. Although we note that McSwain did apologize to
Williams’s family for their loss, tr. p. 1847, McSwain’s character does not
persuade us to modify his sentence. We find that McSwain’s sentence is not
inappropriate in light of the nature of the offenses and his character.
[21] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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Johnny Dutrayl McSwain v. State of Indiana (mem. dec.)
Combined Opinion