Court of Appeals of Indiana | Memorandum Decision 45A04

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### MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT

P. Jeffrey Schlesinger

Crown Point, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Dominique D. Randolph,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. August 24, 2016

Court of Appeals Cause No.

45A04

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- 2358

Appeal from the Lake Superior

Court

The Honorable Salvador

Vasquez, Judge

Trial Court Cause No.

45G01

- 1412

- F3

- 21

Barnes, Judge.Court of Appeals of Indiana | Memorandum Decision 45A04

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### Case Summary

[1] Dominique Randolph appeals his conviction and sentence for Level 3 felony

armed robbery. We affirm.



### Issues

[2] Randolph raises three issues, which we restate as:

I. whether the trial court properly admitted the

victim ’ s testimony that his wife died of cancer

shortly before the robbery;

II. whether the sentence violates the

proportionality clause of the Indiana

Constitution; and

III. whether the sentence is inappropriate in light

of the nature of the offense and the character

of the offender.



### Facts

[3] On December 8, 2014, Thomas O ’ Neill left his Hammond apartment at

approximately 5:30 p.m. to purchase a pack of cigarettes. As he was walking

on Cedar Street, he saw a gray SUV, and he was approached by three men.

They circled him and said, “ Where ’ s it at? ” Tr. p. 86. O ’ Neill responded,

“ What? ” and they said, “ Give it up, ” and “ Don ’ t move. ” Id. One of the men

then pulled a gun out and pointed it at O ’ Neill while another man went through

O ’ Neill ’ s pockets. They took sixty dollars from O ’ Neill ’ s pocket. The man

with the gun said, “ We ’ re the new police around here now, ” and they left in the

gray SUV. Id. at 94. O ’ Neill ran to a nearby business and called 911. A policeCourt of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 3 of 10 officer met with O ’ Neill and got a description of the vehicle. The officer told

O ’ Neill to go home and wait for them to call.

[4] Officers soon located a gray SUV and pursued two occupants, Maurice McCoy

and Deandre Barnes, on foot. Randolph was located hiding in the SUV. When

a police officer picked up O ’ Neill and took him to the scene, O ’ Neill identified

Randolph, Barnes, and McCoy as the men who robbed him. O ’ Neill was

unable to identify a fourth man that had been detained. McCoy had sixty

- one

dollars in cash in his possession. A handgun was later found in a backyard near

where one of the foot chases occurred.

[5] Near the time and location of the O ’ Neill robbery, Nicholas Ruiz was also

robbed. Randolph was charged with the Ruiz robbery, and a jury found him

guilty of Level 3 felony armed robbery. In July 2015, a trial court sentenced

him to nine years with four years suspended to probation.

[6] With respect to the O ’ Neill robbery, the State charged Randolph, Barnes, and

McCoy with Level 3 felony armed robbery. The trial court granted a motion in

limine to exclude evidence of the Ruiz robbery. At the jury trial, O ’ Neill

identified Randolph as the man who pointed a firearm at him, Barnes as the

man who took the money, and McCoy as the man who searched his pockets.

A jury found the men guilty as charged. In November 2015, the trial court

sentenced Randolph to ten years in the Department of Correction. Randolph

now appeals.Court of Appeals of Indiana | Memorandum Decision 45A04

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### Analysis

I. O ’ Neill ’ s Testimony

[7] Randolph argues that the trial court abused its discretion by admitting O ’ Neill ’ s

testimony that his wife had died shortly before the robbery. Generally, a trial

court ’ s ruling on the admission of evidence is accorded “ a great deal of

deference ” on appeal. Hall v. State

, 36 N.E.3d 459, 466 (Ind. 2015). Because

the trial court is best able to weigh the evidence and assess witness credibility,

we review its rulings on admissibility for abuse of discretion. Id. We will

reverse only if a ruling is clearly against the logic and effect of the facts and

circumstances and the error affects a party ’ s substantial rights. Id.

[8] O ’ Neill testified on direct and cross

- examination that he was nervous and upset

when talking to the officer after the robbery. During cross

- examination of

O ’ Neill, he was repeatedly questioned by the defendants ’ attorneys regarding

discrepancies between his identification of the parties on the evening of the

robbery, his deposition testimony, and his trial testimony. He was questioned

regarding the reasons for the discrepancies, medications that he was taking, and

his mental health status and diagnosis. During redirect examination, the State

asked: “ I know that being robbed was an upsetting incident to you that night.

Was there anything else that had kind of been upsetting you that evening? ” Tr.

p. 159. O ’ Neill answered, “ Well, a month

- and

- a

- half prior to this robbery, my

wife died from brain cancer. She had to go through hospice and gave her

morphine and Adavan [sic] to keep her comfortable. And she died

- -

. ” Id.

Randolph ’ s attorney objected that the question was “ outside the scope ” andCourt of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 5 of 10 “ not relevant. ” Id. The trial court overruled the objections, and O ’ Neill

testified: “ That ’ s what happened. I will probably never get over my wife ’ s

death, and to have this happen to me a month

- and

- a

- half later, it ’ s just terrible. ”

Id. at 160.

[9] On appeal, Randolph argues that the testimony regarding O ’ Neill ’ s wife was

not relevant and that any probative value was outweighed by its prejudicial

effect. Randolph argues that, “ [d]ue to the uncertainty of Mr. O ’ Neill ’ s

identification of the defendants, any evidence that would generate additional

sympathy for him would have carried significant weight. ” Appellant ’ s Br. p. 9.

[10] The State argues that the evidence was properly admitted because the

defendants had inquired into O ’ Neill ’ s mental health history and prescribed

medications in an effort to undermine his credibility. The State contends that

the defendants put O ’ Neill ’ s state of mind at issue and that “ matters related to

any mental or emotional distress [O ’ Neill] may have been under during the

crime or while giving statements regarding the crime were fair game on

redirect. ” Appellee ’ s Br. p. 12.

[11] To the extent that the trial court erred by allowing the testimony, we conclude

that any error was harmless. Randolph was found hiding in the vehicle that

O ’ Neill identified as containing the men who robbed him. O ’ Neill repeatedly

identified Randolph as one of the men who robbed him. Randolph and the

other defendants had already questioned O ’ Neill extensively regarding

discrepancies in his identification of the defendants. Moreover, RandolphCourt of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 6 of 10 concedes that “ if Mr. O ’ Neill was still traumatized by the death of his wife at

the time of the robbery, it would make his identification less certain, thereby

injuring the State ’ s case. ” Appellant ’ s Reply Br. p. 6. Any error in the

admission of O ’ Neill ’ s brief testimony regarding the death of his wife did not

affect Randolph ’ s substantial rights.



### II. Proportionality Clause

[12] Randolph argues that his sentence violates the proportionality clause of the

Indiana Constitution. Article 1, Section 16 of the Indiana Constitution requires

that “ [a]ll penalties shall be proportioned to the nature of the offense. ”

“ Though Article 1, Section 16 sweeps somewhat more broadly than the Eighth

Amendment, its protections are still narrow. ” Knapp v. State

, 9 N.E.3d 1274,

1289 (Ind. 2014), cert. denied

. The proportionality clause is violated “ only when

the criminal penalty is not graduated and proportioned to the nature of the

offense. ” Id. at 1289

- 90. We “ cannot set aside a legislatively sanctioned

penalty merely because it seems too severe. ” Id. at 1290. The proportionality

clause “ requires us to review whether a sentence is not only within statutory

parameters, but also constitutional as applied to the particular defendant. ” Id.

A sentence may be unconstitutional by reason of its length if it is so severe and

entirely out of proportion to the gravity of the offense committed as “ to shock

public sentiment and violate the judgment of a reasonable people. ” Pittman v.

State

, 45 N.E.3d 805, 819 (Ind. Ct. App. 2015).

[13] Randolph argues that his sentence violates the proportionality clause because

he was convicted of two robberies that were committed within minutes of eachCourt of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 7 of 10 other and received different sentences for each robbery. Both convictions were

for Level 3 felonies. Under Indiana Code Section 35

- 50

- 2

- 5(b), a person that

commits a Level 3 felony “ shall be imprisoned for a fixed term of between three

(3) and sixteen (16) years, with the advisory sentence being nine (9) years. ” For

the Ruiz robbery, a trial court sentenced Randolph to the advisory sentence of

nine years with four years suspended to probation. For the O ’ Neill robbery, a

different trial court sentenced Randolph to ten years in the Department of

Correction. At the sentencing hearing, the trial court noted the sentence in the

Ruiz case and stated: “ I am not suspending any of that to be served on

probation, respectful of Judge McGraw ’ s sentence. It ’ s not a sentence that, in

this case, I find to be the appropriate or fair sentence. ” Tr. p. 442.

[14] The sentence imposed in the O ’ Neill robbery is well within the range allowed by

Indiana Code Section 35

- 50

- 2

- 5. In fact, it is only one year more than the

advisory sentence and the sentence imposed for the Ruiz robbery. Although the

trial court in the Ruiz robbery case suspended part of the sentence to probation,

the additional felony conviction at the time of the sentencing for the O’Neill

robbery conviction and emotional harm to the victim could justify the different

sentences. We cannot say that the difference between the sentences is so severe

and out of proportion to the gravity of the offense committed as “ to shock

public sentiment and violate the judgment of a reasonable people. ” Pittman

, 45

N.E.3d at 819. Randolph ’ s argument fails.Court of Appeals of Indiana | Memorandum Decision 45A04

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### III. Inappropriate Sentence

[15] Next, Randolph argues that his sentence is inappropriate. He asks that we

revise the sentence to match the sentence imposed for his conviction in the Ruiz

robbery.

[16] Indiana Appellate Rule 7(B) permits us to revise a sentence authorized by

statute if, after due consideration of the trial court ’ s decision, we find that the

sentence is inappropriate in light of the nature of the offense and the character of

the offender. Although Appellate Rule 7(B) does not require us to be

“ extremely ” deferential to a trial court ’ s sentencing decision, we still must give

due consideration to that decision. Rutherford v. State

, 866 N.E.2d 867, 873

(Ind. Ct. App. 2007). We also understand and recognize the unique perspective

a trial court brings to its sentencing decisions. Id. “ Additionally, a defendant

bears the burden of persuading the appellate court that his or her sentence is

inappropriate. ” Id.

[17] The principal role of Appellate Rule 7(B) review “ should be to attempt to leaven

the outliers, and identify some guiding principles for trial courts and those

charged with improvement of the sentencing statutes, but not to achieve a

perceived ‘ correct ’ result in each case. ” Cardwell v. State

, 895 N.E.2d 1219, 1225

(Ind. 2008). We “ should focus on the forest

— the aggregate sentence

— rather

than the trees

— consecutive or concurrent, number of counts, or length of the

sentence on any individual count. ” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crime,Court of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 9 of 10 the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224.

[18] The nature of the offense is that Randolph and his co

- defendants robbed fifty

four

- year

- old O ’ Neill at gunpoint. At the trial, O ’ Neill identified Randolph as

the man with the gun and the man that said, “ We ’ re the new police around here

now. ” Tr. p. 94. The trial court noted that O ’ Neill was “ dramatically affected ”

by the robbery and that he was “ now afraid to leave his home. ” Appellant ’ s

App. p. 83.

[19] As for the character of the offender, the trial court found nineteen

- year

- old

Randolph ’ s criminal history as an aggravating factor. Randolph had numerous

juvenile arrests and a 2013 conviction in Illinois for possession of a controlled

substance. He was on probation for that conviction at the time of the instant

offense. Additionally, he was convicted of Level 3 felony armed robbery for the

Ruiz robbery, which occurred on the same night as the instant offense. The trial

court noted that he had been given leniency in the past but continued

participating in criminal behavior. The trial court found Randolph ’ s “ sad and

challenging childhood ” to be a mitigator of relatively low weight. Id.

[20] Randolph argues that he should have been sentenced to the same sentence as

was given in the Ruiz robbery. However, nothing required the trial court here

to give the same sentence. In fact, the trial court noted the sentence for the

Ruiz robbery but believed that it was too lenient. Moreover, we were provided

with no information regarding the details of the Ruiz robbery. O ’ Neill,Court of Appeals of Indiana | Memorandum Decision 45A04

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- 2358 | August 24, 2016 Page 10 of 10 however, was significantly affected by the instant robbery. See Hogan v. State

,

274 Ind. 119, 122, 409 N.E.2d 588, 591 (1980) (holding that extreme physical,

mental, and emotional harm to elderly robbery victims was a proper

consideration in sentencing defendant). Given Randolph ’ s criminal history and

the nature of the offense, we cannot say that the ten

- year sentence is

inappropriate.



### Conclusion

[21] Any error in the admission of evidence concerning the death of O ’ Neill ’ s wife

was harmless. Randolph’s sentence does not violate the proportionality clause,

and we cannot say it is inappropriate. We affirm.

[22] Affirmed.

Riley, J., and Bailey, J., concur.