Court of Appeals of Indiana | Memorandum Decision 46A03

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### 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

court except for the purpose of establishing CLER K

Indiana Supreme Court

Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT

Barbra A. Stooksbury

Howes & Howes, LLP

LaPorte, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Johnny Dutrayl McSwain,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff October 20, 2016

Court of Appeals Case No.

46A03

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- CR

- 1812

Appeal from the LaPorte Superior

Court

The Honorable Michael S.

Bergerson, Judge

Trial Court Cause No.

46D01

- 1409

- MR

- 264

Baker, Judge.Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 2 of 10 [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 ac cusing 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.Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 3 of 10 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 t hat 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[ d ed] 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.Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 4 of 10 [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.Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 5 of 10 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 cir cumstances, 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 thatCourt of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 6 of 10 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 underl ying 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”).Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 7 of 10 [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 aCourt of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 8 of 10 felony when, with intent to commit the felony, the person agrees with another

person to commit the felony.” I nd. 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

fu nction 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,Court of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 9 of 10 or length of the sente nce 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 offense s, 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 th e 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, tellingCourt of Appeals of Indiana | Memorandum Decision 46A03

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- 1812 | October 20, 2016 Page 10 of 10 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, “consecutiv e 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.