Kelley v. State
| Decision Date | 14 November 2019 |
| Docket Number | Court of Appeals Case No. 19A-CR-890 |
| Citation | 138 N.E.3d 975 (Table) |
| Parties | Clyde Nelson Magnum KELLEY, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Carlos I. Carrillo, Greenwood, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Courtney Staton, Deputy Attorney General, Indianapolis, Indiana
[1] Following a bench trial, Clyde Kelley, III, was convicted of Level 6 felony battery resulting in moderate bodily injury, Level 6 felony strangulation, Level 6 felony domestic battery, two counts of Level 6 felony resisting law enforcement, and one count of Class A misdemeanor resisting law enforcement. The trial court subsequently sentenced Kelley to an aggregate term of seven years for his convictions. On appeal, Kelley presents eight issues for our review, which we consolidate and restate as:
[2] We affirm in part, reverse in part, and remand with instructions.
[3] The facts most favorable to the convictions follow. In 2017, Kelley lived in Kentucky and was in a relationship with Star O'Bannon. By July 2018, their relationship had turned "very hostile," so O'Bannon broke up with Kelley and went to stay with Vesheena Walton, who lived in an apartment in West Lafayette, Indiana. Transcript Vol. II at 19. In an effort to reconcile, O'Bannon invited Kelley to visit her in West Lafayette, and Kelley did so on July 12, 2018. When Kelley arrived, he and O'Bannon went out to dinner and then shopping.
[4] Once back at Walton's apartment, Kelley and O'Bannon remained outside and argued about another woman. Walton came out several times to check on O'Bannon. After about an hour, O'Bannon told Kelley that she "want[ed] to break up" and asked him to leave. Id . at 21. Kelley said that he was not going to leave until he got "his revenge" and then he grabbed a crowbar out of his vehicle and hit the passenger window of O'Bannon's car, shattering it. Id . at 65. Kelley then got in his car and drove away. Walton called the police.
[5] Officer Drew Adams of the West Lafayette Police Department was dispatched in response to the call and was advised that Kelley was driving a blue Ford Mustang. As Officer Adams was driving toward the apartment complex, he passed a car matching the description and initiated a traffic stop. After talking to Kelley, Officer Adams escorted Kelley back to the apartment complex, where Officer Adams presented Kelley with a trespass warning.1
[6] About an hour later, Walton drove to a nearby gas station and O'Bannon started cleaning the glass out of her car and taking items from her car into Walton's apartment. On her second trip, Kelley ran up to O'Bannon in the common area outside Walton's apartment door. Kelley pushed O'Bannon against the wall, put his forearm against her and a knife to her throat, and said, "bitch if you scream, I will kill you." Id . at 27. As Kelley walked O'Bannon back outside, Walton pulled up in her car. Kelley put his knife back in his pocket, but when Walton questioned why Kelley was there, Kelley took the knife out and made a stabbing motion toward O'Bannon's chest. O'Bannon took off running. Kelley then approached Walton, who was still sitting in her car, and began stabbing her through her open car window. Kelley then took off running after O'Bannon.
[7] Kelley caught up with O'Bannon and after a "little tussle," they both fell to the ground. Id . at 29. Once on the ground, Kelley put both of his hands around O'Bannon's neck and began choking her. O'Bannon could not breathe and felt as though Kelley was "crushing" her throat. Id . Kelley had his hands around O'Bannon's neck for only a short time before he again put his knife to her throat, poking her with the sharp point of the knife blade. Kelley told O'Bannon, "I could have killed you," and then he got up and ran away. Id . at 30. After Kelley was gone, O'Bannon went to find Walton and located her at another friend's apartment. Walton was hysterical and was bleeding from cuts on her hand, shoulder, chest, and stomach. Walton had already called the police to report the attack by Kelley.
[8] Officer Lutz of the West Lafayette Police Department was on duty at 3:00 a.m. on Friday July 13, 2018, when the "all units call" came over the radio reporting the stabbing and identifying the stabbing suspect's vehicle as a blue Mustang. Id . at 123. As Officer Lutz drove toward the identified location, he passed the suspect vehicle. As soon as Officer Lutz turned his car around, Kelley sped up. Officer Lutz activated his emergency lights and continued to follow Kelley, who continued to speed up while making several "quick maneuvers". Id . at 125. Kelley eventually pulled over and exited the car. Despite Officer Lutz's orders to stop, Kelley ran into a wooded ravine. Not knowing if Kelley was armed, Officer Lutz decided not to further pursue Kelley for his own safety and requested additional assistance.
[9] Deputies Kenneth Rooze and Austin Waibel of the Tippecanoe County Sheriff's Department learned of the search for Kelley as they started their Friday morning shifts. Deputy Rooze went to assist with the search. He eventually saw an individual matching the suspect's description walk into a McDonald's restaurant and then out another set of doors. When Deputy Rooze engaged Kelley in the parking lot, Kelley initially put his hands up. As Deputy Rooze reached for Kelley's arm to detain him, Kelley took off running. Deputy Rooze gave chase but could not keep up with Kelley. Deputy Rooze requested assistance as he returned to his police vehicle.
[10] Deputy Waibel also assisted in the search and set up a perimeter around where Kelley was believed to be. When Kelley emerged from a wooded area, Deputy Waibel ordered Kelley to kneel. Kelley paused, but turned and ran as Deputy Waibel started to approach him. Deputy Waibel pursued Kelley on foot through a wooded area until Deputy Waibel fell going down a creek embankment and sustained an injury to his wrist
. Thereafter, Officer Kyle Goodman of the West Lafayette Police Department saw Kelley emerge from the wooded area. He began chasing Kelley and ordered him to stop. Officer Goodman caught up with Kelley and apprehended him.
[11] On July 18, 2018, the State charged Kelley with Count I, Level 5 felony battery by means of a deadly weapon; Count II, Level 6 felony battery resulting in moderate bodily injury; Count III, Level 6 felony strangulation; Count IV, Class A misdemeanor domestic battery; Count V, Level 6 felony resisting law enforcement; Count VI, Level 6 felony resisting law enforcement; and Count VII, Class A misdemeanor resisting law enforcement. The State also filed an information alleging Kelley was a habitual offender. The State subsequently added Count VIII, Class A misdemeanor invasion of privacy, Counts IX and X, Class A misdemeanor trespass, and Count XI, Level 5 felony intimidation with a deadly weapon.2 On October 30, 2018, Kelley filed his notice of self-defense.
[12] A bench trial commenced on March 5, 2019. At the conclusion of the State's evidence, Kelley moved for a directed verdict as to Counts IV, VIII, IX, and X. The trial court dismissed Counts VIII, IX, and X, but denied Kelley's request regarding Count IV. The bench trial continued the following day. At the conclusion of all the evidence, the trial court found Kelley guilty of Counts II, III, IV, V, VI, and VII3 and entered judgment of conviction thereon.
[13] The trial court held a sentencing hearing on March 29, 2019. The court identified as mitigating factors Kelley's acknowledgment of responsibility, history of employment, education, and support of others. The court identified Kelley's criminal history as an aggravating factor, specifically noting that Kelley had accumulated a 2009 rape conviction, a manslaughter conviction in Kentucky, prior convictions for resisting law enforcement, theft, and false informing, and four petitions to revoke probation. The court also found as aggravating that Kelley was on parole at the time of the instant offense and that he had a child support arrearage. The trial court sentenced Kelley to two years on Counts II and III and one year on Count IV and ordered Counts III and IV be served concurrently, but consecutive to Count II. With regard to the resisting law enforcement convictions, the trial court sentenced Kelley to one and a half years on Counts V and VI and one year on Count VII and ordered the sentences on Counts V and VII be served concurrently, but consecutive to Count VI. The court ordered the sentences on Counts V, VI, and VII to be served consecutive to Counts II and III, for a total aggregate sentence of seven years. Kelley now appeals. Additional facts will be provided as necessary.
[14] Kelley argues that the evidence is insufficient to support his convictions under Counts II, III, and IV because the State failed to rebut his claim of self-defense and because the victims' testimonies were incredibly dubious. The standard of review for a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency claim. Wilson v. State , 770 N.E.2d 799, 801 (Ind. 2002). We consider only the probative evidence and reasonable inferences supporting the trial court's decision. Tharpe v. State , 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied . We neither reweigh the evidence nor judge the credibility of witnesses. Wilson , ...
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