Howell v. State, Court of Appeals Case No. 82A05–1707–CR–1474

• Decision Date: 13 March 2018
• Docket Number: Court of Appeals Case No. 82A05–1707–CR–1474
• Citation: 97 N.E.3d 253
• Parties: Michael Damien HOWELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff
• Court: Indiana Appellate Court

97 N.E.3d 253

Michael Damien HOWELL, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff

Court of Appeals Case No. 82A05–1707–CR–1474

Court of Appeals of Indiana.

FILED March 13, 2018

Attorney for Appellant: Matthew J. McGovern, Anderson, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Katherine Cooper, Deputy Attorney General, Indianapolis, Indiana

Crone, Judge.

Case Summary

[1] Michael Damien Howell was convicted of level 2 felony voluntary manslaughter, level 6 felony criminal recklessness while armed with a deadly weapon, level 3 felony attempted robbery while armed with a deadly weapon, and level 6 felony auto theft. On appeal, he contends that his voluntary manslaughter conviction must be reversed because an allegedly erroneous jury instruction resulted in fundamental error. He also argues that his convictions for criminal recklessness and attempted robbery violate double jeopardy principles and requests that we vacate his criminal recklessness conviction.

[2] In addition, Howell raises three challenges to his fifty-seven-year aggregate sentence. He argues that the trial court improperly enhanced his sentence for voluntary manslaughter for using a firearm in the commission of the offense. He also asserts that the trial court abused its discretion in sentencing him by finding improper aggravating factors. Finally, he argues that his sentence is inappropriate based on the nature of the offenses and his character.

[3] We conclude that the jury instructions as a whole did not mislead the jury, and therefore we affirm his voluntary manslaughter conviction. However, we conclude that his criminal recklessness conviction and his attempted robbery conviction run afoul of the constitutional protection against double jeopardy, and therefore we remand with instructions to vacate his criminal recklessness conviction. As for his sentencing challenges, we conclude that the trial court did not err in enhancing his voluntary manslaughter sentence and did not abuse its discretion in finding aggravating factors, and we conclude that he has failed to carry his burden to show that his sentence is inappropriate. Therefore, we affirm Howell's sentence.

Facts and Procedural History

[4] In February 2016, Howell and his wife, with whom he has two children, separated. While Howell was staying with a friend, he was introduced to Beverly Karns. Howell moved in with her. Other individuals also lived with Karns including Brandon Davis and Abigail Autry. Howell and Karns used marijuana and methamphetamine together. While Howell lived with Karns, her drug use increased and she became paranoid that someone was stealing from her. Karns sometimes carried a gun in her purse. She owned a .38 Special revolver and a .22 rifle. Howell went with Karns to buy a .45 caliber handgun. Karns also bought a 9–millimeter handgun. Howell and Karns practiced shooting together. Karns began making romantic advances toward Howell, but he was not interested.

[5] In early April 2016, Karns and Howell were in her kitchen when she accidentally fired one of her guns in Howell's direction. After that, Howell moved out of Karns's residence and stayed at a hotel. In the hotel parking lot, while in a vehicle with his wife and children, Howell had a confrontation with Karns, Davis, and Autry, during which Karns accused Howell of stealing her property. During the confrontation, Autry pointed a gun at Howell and demanded that he open his trunk, Karns pointed a gun at Howell's wife, and Howell pointed a gun at Davis. Eventually, Davis persuaded Karns and Autry to back off, and Howell drove away. Later Karns called Howell to apologize.

[6] In the early morning hours of April 9, 2016, Howell was staying with Coty Clark and his wife in Vanderburgh County. Karns came to Clark's house, and she and Howell talked and used drugs. Karns left and returned to Clark's home around 8:00 or 9:00 a.m. with some of Howell's belongings. Karns told Howell that she wanted him to move back in with her and expressed her desire to have a romantic relationship with him. Howell told her that he was not interested and that he never wanted to see her again. Karns became angry, and she and Howell argued in the middle of the living room. At some point, Karns started going through her purse. Howell saw her pull something out of her purse that flashed like it was chrome, and he heard a clinking noise of metal on metal. He thought that she was going to pull a gun on him, and he was frightened. He pulled his gun from his waistband and shot Karns in the head. Tr. Vol. 3 at 175–76. Karns fell to the floor, and Howell saw that she had an e-cigarette and not a weapon. Howell "freaked out." Id. at 179. Karns died because of the gunshot wound

.

[7] Clark was home at the time, and Howell's father had come to visit Howell. Howell's father drove Karns's truck to the back of Clark's house, and he and Clark loaded Karns into the back of her truck. Howell gave his father a hug and removed his wedding band and gave it to his father. Howell's father told Howell to wait a minute while he pulled his car around and they would figure out what to do. By the time Howell's father retrieved his car and drove it to the back of the house, Howell had taken Karns's truck and left.

[8] While driving in Warrick County, Howell lost control of the truck. It flipped and landed in a ditch. Howell's head was injured

, and he was still under the influence of methamphetamine and marijuana. He got out of the truck, grabbed some stuff, and ran from the scene into a wooded area.

[9] A witness saw Howell flip the truck and land in the ditch, and she called 911. While she talked to the dispatcher, she saw Howell get out of the truck, grab some stuff, and run up the hill and into the woods. She went to the accident site to see if anyone else was hurt, and she found Karns's body wrapped in a carpet in the truck's camper shell, which had come off when the truck flipped.

[10] While still in Warrick County, Howell came out of the woods as Charles Scales was backing his truck out of a driveway. A witness noticed Howell standing by Scales's truck. She observed Scales briefly pause from backing out and Howell reach for the back door of Scales's truck. She saw Howell pull a gun and start firing at Scales. Scales quickly resumed backing out. Howell fired at Scales five times. One of the bullets hit Scales's leg, but he was able to drive away.¹ The witness ran to get her phone and call 911. Meanwhile, Howell noticed a Ford Explorer, saw that the keys were in the ignition, and drove it away.

[11] Law enforcement in multiple counties were dispatched, the Explorer was located, and a car chase ensued. Eventually, Howell pulled over somewhere in Dubois County and surrendered to police. In Vanderburgh County, the State charged Howell with the murder of Karns and sought a sentencing enhancement for his use of a firearm in the commission of the offense. The State also charged Howell with level 1 felony attempted murder of Scales, level 3 felony attempted robbery of Scales while armed with a deadly weapon, and level 6 felony auto theft. Howell filed a motion to dismiss the counts for the offenses that were committed in Warrick County. The trial court denied his motion to dismiss, finding that his Warrick County offenses for purposes of venue and/or joinder² were "part of the series of events that constituted the commission" of the offenses committed in Vanderburgh County. Appellant's App. Vol. 2 at 44.

[12] A jury found Howell guilty of level 2 felony voluntary manslaughter of Karns as a lesser-included offense of murder, guilty of level 6 felony criminal recklessness as a lesser-included offense of attempted murder of Scales, and guilty of attempted robbery and auto theft as charged. Howell admitted to using a firearm in the commission of voluntary manslaughter.

[13] In sentencing Howell, the trial court found the following aggravating factors: Scales was injured and was over sixty-five years old; Howell's history of substance abuse; Howell's continued abuse of drugs after completing a forensic diversion program; children were present when he committed voluntary manslaughter; his attempted disposal of Karns's body; and police were forced to engage in a high-speed chase before Howell eventually surrendered. Id. at 187–88. The trial court found no mitigating circumstances. The trial court sentenced Howell as follows: twenty-five years for his voluntary manslaughter conviction, plus fifteen years for using a firearm in its commission; two years for his criminal recklessness conviction and fifteen years for his attempted robbery conviction, to be served concurrent to each other but consecutive to his sentence for voluntary manslaughter; and two years for his auto theft conviction, to be served consecutive to the other counts, for an aggregate sentence of fifty-seven years. This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Section 1—The jury instruction on voluntary manslaughter did not result in fundamental error.

[14] Howell contends that his conviction for voluntary manslaughter, the lesser-included offense of his murder charge, must be reversed because the trial court erred in giving Final Instruction 9 ("Instruction 9"),³ which addressed lesser-included offenses as follows:

If you find that the State has failed to prove any one of the essential elements of the charged crimes of Murder and Attempted Murder, you should then decide whether the State has proved beyond a reasonable doubt all elements of the included crimes of Voluntary Manslaughter and Criminal Recklessness which have been defined for you.

If the State failed to prove each of the essential elements of the included crime beyond a reasonable doubt, the defendant should be found not guilty. If the State did prove each of the elements of the included crime beyond a reasonable doubt, you should find the defendant guilty of the lesser included

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