Reese Levi Keith v. State of Indiana

On May 14, 2017, following an automobile accident that occurred when he was

intoxicated on methamphetamine, Keith was arrested and admitted for

treatment at Johnson Memorial Hospital, in Franklin, Indiana, before being

escorted to jail. Keith was discharged from the hospital into police custody but

was readmitted to Johnson Memorial shortly thereafter due to reported seizure

activity. Keith was not in police custody when he was readmitted for

treatment.

[5] Sometime after 3:20 a.m. on May 15, 2017, Keith disconnected himself from

his heart monitor and IV and left the hospital without being formally discharged

by his physician. Keith entered the garage of the nearby home of ninety-year

old Clayton Dixon and eighty-eight-year-old Ella Dixon (the Dixons). Keith

initially slept in the Dixons’ garage but later broke into the Dixons’ home

through a basement window so that he could steal clothing in order to change

out of the hospital gown he was still wearing.

[6] Shortly after Keith broke into their basement, the Dixons left home to do

errands. While they were away, Keith changed into Clayton’s clothing and ate

the Dixons’ food. Keith also ransacked the home and discovered the Dixons’

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firearm cabinet. The Dixons surprised Keith by returning from their errands

quickly. Ella entered the back door of the home into the kitchen and was met

by Keith, who was wearing a ski mask and pointing one of the rifles he had

found in the home at her. Ella attempted to call 9-1-1 on her cell phone, but

Keith grabbed the cell phone from her. Clayton then entered through the back

door and attempted to subdue Keith, only ceasing his efforts upon Ella’s pleas

to Clayton to cooperate to avoid injury.

[7] Keith used duct tape to bind Ella’s and Clayton’s hands. He then ordered them

into their hallway because he feared they could be seen through the home’s

large picture window. Keith used more duct tape to bind Clayton by his arms

and legs to a chair. Keith took Clayton’s wallet from him and removed the

cash it contained. Keith also duct taped Ella’s arms and legs to her walker. He

rummaged her purse and removed cash and the keys to the Dixons’

automobile. After holding the Dixons in their home for approximately forty

minutes, Keith drove away in their automobile, taking three guns and cash with

him. Clayton accessed his pocketknife and used it to cut himself and Ella free.

Ella alerted the authorities, who discovered Keith’s hospital identification

bracelet and hospital gown in the garage where he had discarded them.

Subsequent investigation revealed the presence of Keith’s DNA on the hospital

gown and on shards of glass collected from the Dixons’ broken basement

window. Clayton and Ella sustained substantial bruising as a result of being

bound. After the offenses, Clayton complained to Ella that his bruises “were

sore.” (Transcript Vol. II, p. 73).

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[8] On May 16, 2017, the State filed an Information, charging Keith with multiple

offenses. After a series of amendments to the Information, the final charges

against Keith were for burglary to a dwelling resulting in serious bodily injury, a

Level 1 felony; two Counts of robbery while armed with a deadly weapon, a

Level 3 felony;1 two Counts of criminal confinement while armed with a deadly

weapon, Level 3 felonies; and auto theft, a Level 6 felony. The State also

sought to have Keith adjudicated as an habitual offender.

[9] A warrant for Keith’s arrest was served on him in Richmond, Indiana, on June

20, 2017. On June 21, 2017, Detective Scott Carter (Detective Carter) of the

Franklin Police Department interviewed Keith. At the beginning of the

interview, Keith informed Detective Carter that he had last used

methamphetamine on June 20, 2017, around 2:00 p.m. and that he was still

“kind of high right now, so.” (Exh. 37, p. 42).2 Keith believed that the effect of

the methamphetamine had been reactivated when he had eaten after his arrest,

but he confirmed that he had been given some medication “to help” and that he

had been “medically cleared.” (Exh. 37, p. 42). In response to a question

regarding his level of education, Keith reported that he had taken some college

classes. Keith appeared to Detective Carter to be nervous but conscious, alert,

and in control of his faculties. Detective Carter provided Keith with his



1 The State charged both robberies as Level 3 robberies with a deadly weapon. (Appellant’s App. Vol. II, pp. 53, 59). It appears that the trial court’s sentencing order and the abstract of judgment mistakenly refer to Keith’s conviction for Count IV as robbery resulting in bodily injury. (Appellant’s App. Vol. II, pp. 24, 248). 2 All references to exhibit page numbers are to the pagination of the Exhibit Volume PDF.

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Miranda advisements, which Keith also read silently to himself. Keith executed

the waiver form which provided that he understood his rights, did not wish an

attorney, and agreed to speak without threat or coercion. During the interview,

which lasted approximately one hour, Keith made incriminating statements,

including admissions that he had broken into the Dixons’ home and taken their

car, money, and guns and that he “made them think there were bullets in the

gun.” (Exh. 37, p. 52). Detective Carter also interviewed Keith on May 23,

2017, for approximately forty-five minutes. After executing a written waiver of

his Miranda rights, Keith acknowledged that, despite the fact that he was high

when he provided his first statement to Detective Carter, everything that he had

said was true.

[10] On October 6, 2017, and May 24, 2018, the trial court convened Keith’s bench

trial. Ella and the Dixons’ two sons testified regarding the changes in Clayton’s

behavior after the offenses. Clayton had been diagnosed with Alzheimer’s

dementia in August 2016. His symptoms of memory loss and cognitive

disfunction had been stabilized with medication, and the Dixons had enjoyed

an active life together. Immediately after the offenses, Clayton became more

sedentary and withdrawn. Clayton’s mood then turned sullen and aggressive

toward Ella. Clayton spoke to Ella using foul language and told his wife of

almost seventy years that he wanted a divorce, behavior that he had never

before exhibited. Clayton eventually became so confused that he telephoned

the police and inaccurately reported that his son Greg had tried to rob them.

The family became concerned when Clayton began cleaning his guns and

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keeping a firearm close at hand in the house. Clayton was taken to a

psychiatric hospital where he was treated for a month, and he was subsequently

transferred to an assisted living facility because he had lost the ability to care for

himself physically. Clayton was not expected to ever return home or to live

independently again.

[11] In furtherance of its theory that Keith had caused serious bodily injury in the

form of “permanent or protracted loss or impairment of the function of Clayton

Dixon’s mind” as charged in the burglary Information, the State also presented

the testimony of a neurologist, Dr. Dawn Zapinski (Dr. Zapinski), who had

treated Clayton before and after the offenses. (Appellant’s App. Vol. II, p. 58).

Dr. Zapinski saw Clayton on April 27, 2017, and had noted that his condition

continued to be stabilized by his medication. Dr. Zapinski next saw Clayton in

September of 2017, after the offenses. She noted that Clayton’s condition had

significantly worsened in that he was more confused and had lost memory since

his last examination.

[12] According to Dr. Zapinski, physical or mental stress can cause cognitive decline

because stress hormones cause the production of proteins that cause irreversible

cell death in the brain, a part of the body which she agreed could be

characterized as “an organ.” (Tr. Vol. II, p. 174). It was Dr. Zapinski’s

opinion that, as a result of the offenses, Clayton had experienced an “acute

insult to the brain” which had caused permanent loss of some of his brain

function. (Tr. Vol. II, p. 183). Dr. Zapinski noted that although decline was

inevitable with Alzheimer’s dementia, that decline was normally more gradual

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when a patient was on a medication regimen. She believed that it was the

offenses that caused Clayton’s decline because he had experienced a rapid,

acute decline immediately after those events.

[13] On May 31, 2018, the trial court found Keith guilty as charged. After the State

presented evidence that Clayton had five prior unrelated felony convictions, the

trial court adjudicated Keith to be an habitual offender. On July 11, 2018, the

trial court conducted Keith’s sentencing hearing. The trial court found Keith’s

criminal history consisting of six felonies, five misdemeanors, and seven

probation violations as a significant aggravating circumstance. The trial court

found as additional aggravators that the Dixons were both significantly older

than sixty-five, Keith was on probation when the offenses were committed, and

that Keith prevented Ella from calling 9-1-1. The trial court found as a

mitigating circumstance that Keith spoke to law enforcement and admitted his

involvement in the offenses. The trial court found that the aggravating

circumstances outweighed the mitigating circumstance and sentenced Keith as

follows:

Count I Burglary Level 1 35 years

Count II Robbery Level 3 12 years

Count III Confinement Level 3 12 years

Count IV Robbery Level 3 12 years

Count V Confinement Level 3 12 years

Count VI Auto Theft Level 3 2 years

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The trial court ordered Keith to serve his sentences for the burglary and the

Count II robbery consecutively. The trial court ordered Keith to serve all of his

other sentences concurrently, for a base sentence of forty-seven years. The trial

court enhanced Keith’s sentence by fifteen years for being an habitual offender,

which it ordered was “consecutive” to the burglary and robbery sentences, for

an aggregate sentence of sixty-two years. (Tr. Vol. II, p. 233).

[14] Keith now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence of Serious Bodily Injury

[15] Keith contends that the State did not prove beyond a reasonable doubt that the

burglary he committed resulted in serious bodily injury sufficient to elevate the

offense to a Level 1 felony. It is well-established that when we review the

sufficiency of the evidence to support a conviction, we consider only the

probative evidence and the reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court

to assess witness credibility or to weigh the evidence. Id. We will affirm the

conviction unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt. Id.

[16] The State charged Keith with Level 1 felony burglary of a dwelling resulting in

serious bodily injury. The serious bodily injury alleged by the State was the

“permanent or protracted loss or impairment of the function of Clayton Dixon’s

mind.” (Appellant’s App. Vol. II, p. 64). One of Keith’s challenges to the

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evidence supporting his conviction for burglary is that the State did not charge

him with inflicting an injury consistent with the statutory definition of serious

bodily injury because it charged him with permanent or protracted loss or

impairment of function “not to a body part or organ of Clayton, but to his

mind.” (Appellant’s Br. p. 21). Resolution of this issue requires us to examine

and construe the statutory definition of serious bodily injury to determine if the

injury alleged by the State fits within its parameters. Whenever we construe a

statute, our primary purpose is to ascertain and give effect to the intent of the

legislature in enacting the statute. Adams v. State, 960 N.E.2d 793, 798 (Ind.

2012). We first look to the words of the statute itself, as it is the best evidence

of legislative intent. Id. If the terms of a statute are clear and unambiguous, we

must apply the plain meaning of the terms without resorting to any other rules

of statutory construction. Pierce v. State, 29 N.E.3d 1258, 1265 (Ind. 2015).

[17] For our purposes, “serious bodily injury” is defined by statute as “bodily injury

. . . that causes [] permanent or protracted loss or impairment of the function of

a bodily member or organ[.]” I.C. § 35-31.5-2-292. The term “bodily injury” is

further defined in relevant part as “any impairment of physical condition.” I.C.

§ 35-31.5-2-29. Thus, a serious bodily injury must be a bodily injury, which is an

impairment of a physical condition. Neither party argues that the terms

employed in these statutes are ambiguous, and we do not find them to be so.

Applying the plain meanings of the terms, we conclude that an injury to the

mind, as alleged here by the State, does not qualify as a bodily injury. The State

did not allege that Keith had damaged Clayton’s brain but, rather, that he had

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damaged Clayton’s mind. The mind may be defined as “[t]he source of thought

or intellect; the seat of mental faculties.” Black’s Law Dictionary (8th ed. 2004).

Although the mind has a physical location in the brain, its functioning is

primarily mental, not physical. Thus, any impairment to its functioning is not

primarily the impairment of a physical condition. To hold otherwise would be

to eviscerate the meaning of the term “physical condition” and would

conceivably allow the State to charge a defendant with an offense resulting in

serious bodily injury whenever it negatively impacted the victim’s mental state.

[18] Although our research uncovered no Indiana cases bearing directly on the issue,

our conclusion is buttressed by our supreme court’s decision in Bailey v. State,

979 N.E.2d 133, 139 (Ind. 2012), in which it concluded that any amount of

physical pain constitutes bodily injury. As part of its analysis, the court noted

that

[b]odily injury is defined as “physical pain, illness, or any impairment of physical condition,” Model Penal Code § 210.0(2), and “includes more than the consequences of direct attack. It also covers pain, illness, or physical impairment caused indirectly . . .” Model Penal Code § 211.1 cmt. 3. The minimum floor, as it were, is simply “the fact or prospect of physical injury.” Model Penal Code § 211.1 cmt. 2. “Mere offensive contact” and “wrongs based solely upon insult or emotional trauma” are excluded because they can be punished under other substantive provisions, and “[t]he principle thrust of Section 211.1 is to reach the infliction of physical injury.” Model Penal Code § cmts. 2-3.

Id. (emphasis added, footnote omitted). We glean from the fact that the Bailey

court cited these passages with approval that it generally considers the statutory

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definitions of bodily injury, and by extension serious bodily injury, to

encompass some form of physical injury and not the mental injury alleged here.

Id.

[19] We also note that other jurisdictions intending to include mental injuries within

the ambit of the definition of their equivalent of bodily injury have used

specific, express terms in order to do so. See, e.g., Colo. Rev. Stat. § 18-1-901(c)

(“‘Bodily injury’ means physical pain, illness, or any impairment of physical or

mental condition.”); Mont. Code Ann. § 45-2-101(5) (“‘Bodily injury’ means

physical pain, illness, or an impairment of physical condition and includes

mental illness or impairment.”). If the General Assembly had wished to

include mental illness or injury within the statutory definition of bodily injury

and serious bodily injury, it could have done so. It did not. See Thompson v.

State, 5 N.E.3d 383, 388 (Ind. Ct. App. 2014) (noting that in construing a

statute we do not read terms into the statute and that “it is just as important to

recognize what the statute does not say as to recognize what it does say.”).

[20] Concluding that the injury to Clayton alleged by the State did not qualify as

serious bodily injury, we do not address Keith’s other claims regarding the

sufficiency of the evidence. In cases where we find insufficient evidence to

support the element which elevates the felony level of an offense, we order the

trial court to “vacate the conviction upon the improperly elevated offense and

enter a judgment of conviction on the highest class of offense supported by the

evidence.” See Williams v. State, 748 N.E.2d 887, 892-93 (Ind. Ct. App. 2001)

(vacating Williams’ conviction for Class A felony aiding burglary where

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evidence did not support a finding of bodily injury and remanding for entry of

judgment as a Class B felony which was supported by the evidence).

Accordingly, we will examine the record to determine the next highest level of

burglary offense that was supported by the evidence.

[21] A person who breaks and enters the dwelling of another person with the intent

to commit a felony or theft commits burglary, a Level 4 felony. I.C. § 35-43-2

1(1). A burglary is elevated to a Level 2 felony if it is committed while armed

with a deadly weapon. I.C. § 35-43-2-1(3)(A). However, that portion of the

statute does not contemplate a situation such as presented here, where the

burglar enters unarmed and thereafter becomes armed. State v. McHenry, 74

N.E.3d 577, 579 (Ind. Ct. App. 2017), trans. denied. A burglary is elevated to a

Level 3 felony if it results in bodily injury to someone other than the defendant.

I.C. § 35-43-2-1(2). As noted above, evidence of any degree of pain experienced

by the victim will sustain a finding of bodily injury. Bailey, 979 N.E.2d at 135.

Ella testified that after the offenses, Clayton complained of pain as a result of

the bruising he sustained when Keith duct taped him to a chair. We conclude

that this evidence supports a conviction for Level 3 felony burglary. Therefore,

we vacate Keith’s conviction for Level 1 burglary and remand for entry of

judgment and resentencing on the conviction as a Level 3 burglary.

II. Continuous Crime Doctrine

[22] Keith next contends that his convictions must be vacated because they are

barred by the continuous crime doctrine. This doctrine is a species of common

law double jeopardy, the application of which is limited to situations where a

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defendant has been charged multiple times with the same continuous offense.

Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). “The continuous crime

doctrine does not seek to reconcile the double jeopardy implications of two

distinct chargeable crimes; rather, it defines those instances where a defendant’s

conduct amounts only to a single chargeable crime.” Id. Whether multiple

convictions are precluded based on the continuous crime doctrine is a question

of law which we review de novo. Id.

[23] Keith bases his argument on this court’s decision in Buchanan v. State, 913

N.E.2d 712 (Ind. Ct. App. 2009), trans. denied, in which we held, in light of the

State’s acknowledgement on appeal that it had conceded the issue at

sentencing, that Buchanan’s convictions for false reporting and intimidation

were so compressed in time, place, singleness of purpose, and continuity of

action that they constituted but one single transaction, leading us to vacate

those convictions. Id. at 720-21. The sum total of Keith’s argument on this

issue is that his convictions for two Counts of robbery, two Counts of criminal

confinement, and auto theft fall within the scope of the burglary “because the

crimes were so compressed in terms of time, place, singleness of purpose, and

continuity of action to constitute a single transaction.” (Appellant’s Br. p. 24).

Keith does not apply Buchanan or any other legal authority to the facts of his

case to explain why the doctrine should apply. We remind Keith that it is an

appellant’s burden to develop his argument on the issues he presents and to

support his argument with cogent reasoning, legal authority, and citations to

the record on appeal. See Ind. Appellate Rule 46(A)(8)(a). Any application of

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the continuous crime doctrine is necessarily fact-sensitive. Given Keith’s utter

failure to apply the facts of his particular case to the legal authority he has cited,

we conclude that he has waived this claim. See Griffith v. State, 59 N.E.3d 947,

958 n.5 (Ind. 2016) (holding that Griffith waived a claim where he failed to

develop it with cogent reasoning).

[24] However, even if he had not waived his continuous crime doctrine argument, it

is not well-taken. In Hines, our supreme court expressly disapproved of

Buchanan, holding that “[t]o the extent that Buchanan stands for the proposition

that the continuous crime doctrine may be judicially extended to two distinct

offenses, we disagree.” Hines, 30 N.E.3d at 1220. Therefore, the only sets of

offenses to which the doctrine could potentially apply were Keith’s two robbery

and two criminal confinement convictions, as they are multiple charges of the

same offense. However, the doctrine does not apply to those sets of convictions

either because different victims were involved. See Frazier v. State, 988 N.E.2d

1257, 1264 (Ind. Ct. App. 2013) (concluding that no double jeopardy violation

existed under either the continuous crime doctrine or the actual evidence test

where offenses charged involved different victims). Thus, in addition to his

waiver of the issue, the continuous crime doctrine does not bar Keith’s

convictions.

III. Voluntariness of Keith’s Statements

[25] Keith also contends that the trial court abused its discretion when it admitted

into evidence his May 21, 2017, and May 23, 2017, statements to Detective

Carter. Keith argues that he was intoxicated on methamphetamine on May 21,

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2017, which rendered his statement involuntary and that his subsequent

statement, made when he was no longer intoxicated, was fruit of the poisonous

tree. Decisions to admit or to exclude evidence are within the sound discretion

of the trial court. Wright v. State, 108 N.E.3d 307, 313 (Ind. 2018).

Accordingly, we afford those decisions deference and will reverse only upon an

abuse of the trial court’s discretion resulting in error and affects the defendant’s

substantial rights. Id. However, issues implicating constitutional questions,

such as the voluntariness of a confession, are reviewed de novo. Guilmette v.

State, 14 N.E.3d 38, 40 (Ind. 2014).

[26] Keith argues that under “Indiana law” his statements were involuntary.

(Appellant’s Br. p. 25). Article I, Section 14, of our state constitution provides

that “[n]o person, in any criminal prosecution, shall be compelled to testify

against himself.” Part of this constitutional protection is that, in order for a

defendant’s statement to be admissible at trial against him, it must have been

given voluntarily. Under state law, when a defendant challenges the

voluntariness of his confession, the State must prove beyond a reasonable doubt

that the confession was given voluntarily. Jackson v. State, 735 N.E.2d 1146,

1153 n.4 (Ind. 2000). The voluntariness of a defendant’s statement is

determined by examining the totality of the circumstances, including any

violence, threats, promises or other improper influences brought to bear to bring

about the statement. Luckhart v. State, 736 N.E.2d 227, 229 (Ind. 2000). Upon

review of a challenge to a trial court’s admission of a confession, we do not

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reweigh the evidence, and we examine the record for substantial, probative

evidence of voluntariness. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000).

[27] Keith notes that he argued at trial that his statements to Detective Carter were

involuntary because he was “subjected to a ‘confined environment, a coercive

environment, questioned for an hour on one occasion, and . . . forty-five

minutes or so on another occasion.’” (Appellant’s Br. p. 25). However, Keith

develops no further argument that the environment or duration of his statement

rendered it involuntary. The gravamen of Keith’s argument regarding the

voluntariness of his statement is that he was intoxicated on methamphetamine

when he gave his first statement to Detective Carter. However, a confession

made while voluntarily intoxicated may still be given knowingly and

voluntarily. Ellis v. State, 707 N.E.2d 797, 802 (Ind. 1999). A confession will

only be deemed involuntary when a defendant is so intoxicated as to be not

conscious of what he is doing or when it produces a state of mania. Id. Any

lesser degree of intoxication goes merely to the weight to be given to the

confession, not to its admissibility. Wilkes v. State, 917 N.E.2d 675, 680 (Ind.

2009), reh’g denied.

[28] Our independent examination of the video recording of Keith’s May 21, 2017,

statement leads us to conclude that his voluntary intoxication on

methamphetamine did not render his statement involuntary. Keith informed

Detective Carter at the beginning of the interview that he had last ingested

methamphetamine around 2:00 p.m. the day before and that he thought that he

was still intoxicated. Although at times Keith spoke rather quickly, moved

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compulsively, and became emotional, we observe that he read and signed a

waiver of his rights, understood why Detective Carter wished to speak to him,

spoke coherently to Detective Carter, and logically answered questions in

detail. Keith exhibited understanding of his situation when he conversed with

Detective Carter about the evidence that he had left at the scene and what level

of felonies he might be charged with. Keith also initiated a conversation about

cooperating with law enforcement, presumably as a confidential informant, in

order to improve his prospects. Despite his intoxication, these circumstances

lead us to conclude that Keith’s statement was voluntary. See Luckhart, 736

N.E.2d at 231 (statement voluntary where Luckhart confessed while intoxicated

on crack cocaine but was oriented as to time and place, answered questions in a

logical sequence, carried on a lucid conversation, and appeared to be in control

of her faculties).

[29] Keith also exhibited control over his physical person, as he walked into the

interview room and stayed seated in his chair without assistance, signed the

waiver form, and consumed a soda without difficulty. See id. (considering the

fact that Luckhart was able to walk of her own volition as evidence of

voluntariness); see also Owens v. State, 754 N.E.2d 927, 930 (Ind. 2001)

(considering evidence of Owens’ physical coordination in sipping a soda while

giving his statement and his ability to initial his written statement as evidence of

voluntariness despite intoxication). We conclude that, under the totality of

these circumstances, Keith was not so intoxicated on methamphetamine that he

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was unaware of what he was doing, nor was he in a state of mania, when he

gave his statement. See Luckhart, 736 N.E.2d at 231.

[30] Keith does not argue that he was unaware of what he was doing or in a manic

state when he spoke with Detective Carter on May 21, 2017. Rather, he points

to evidence in the record that he had been intoxicated on methamphetamine

prior to the offenses, which we find has little bearing on his mental and physical

state one week later when he gave his statement. Keith also argues that

Detective Carter acknowledged that Keith exhibited some indicia of

methamphetamine intoxication and that Detective Carter “should have had

Keith examined to determine the level and the kinds of intoxicants causing

Keith’s impairment before continuing his questioning of Keith.” (Appellant’s

Br. p. 26). However, Keith provides no legal authority for his apparent

proposition that a specialized medical examination to measure and assess his

intoxication was constitutionally necessary to render his statement voluntary,

and we note that Keith had been examined before making his statement, had

been medically cleared, and had been given medication “to help.” (Exh. 37, p.

42). Because Keith was not so intoxicated on methamphetamine at the time he

provided his initial statement so as to render it involuntary, the trial court did

not abuse its discretion when it admitted either his May 21, 2017, or his May

23, 2017, statements into evidence. Wright, 108 N.E.3d at 313.

IV. Sentencing

[31] Because we have determined that Keith’s Level 1 felony burglary conviction

must be vacated and re-entered as a Level 3 felony, we remand for resentencing.

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However, we will address Keith’s argument that the trial court abused its

discretion when it sentenced him, as some of the same issues may reoccur upon

resentencing. The trial court found as the sole mitigator in this case that Keith

had cooperated with law enforcement by speaking with them after his arrest.

Keith argues that the trial court abused its discretion because it did not consider

as mitigating circumstances his remorse, his family support network, and the

Indiana Risk Assessment System Community Corrections Tool assessment,

included in his presentence investigation report, which placed him at a high risk

to re-offend.

[32] As a general matter, so long as a sentence imposed by a trial court is within the

statutory range for the offense, it is subject to review only for an abuse of

discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

875 N.E.2d 218 (Ind. 2007). An abuse of the trial court’s sentencing discretion

occurs if its decision is clearly against the logic and effect of the facts and

circumstances before the court, or the reasonable, probable, and actual

deductions to be drawn therefrom. Id. A trial court abuses its discretion when

it fails to enter a sentencing statement at all, its stated reasons for imposing

sentence are not supported by the record, its sentencing statement omits reasons

that are clearly supported by the record and advanced for consideration, or its

reasons for imposing sentence are improper as a matter of law. Id. at 490-91.

[33] As to his remorse, Keith simply states that the trial court did not find it as a

mitigator, despite his expressions of remorse during his two custodial

interviews. It was Keith’s burden on appeal to establish that the trial court

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overlooked mitigating evidence that was both clearly supported by the record

and significant. Green v. State, 65 N.E.3d 620, 636 (Ind. Ct. App. 2016), trans.

denied. Even if we were to determine that his remorse was supported by the

record, Keith has made no effort to convince us that his remorse was significant

for sentencing purposes and has failed to meet his burden of persuasion.

Indeed, while he expressed his concern for the Dixons and his remorse about

what he had done several times during his two custodial interviews, the trial

court was not obligated to accept his expressions of remorse as mitigating.

Phelps v. State, 969 N.E.2d 1009, 1020 (Ind. Ct. App. 2012), trans denied. It is

equally true that the trial court was not obligated to explain on the record why

it failed to credit Keith’s remorse with mitigating weight. See Anglemyer, 868

N.E.2d at 493. Accordingly, we find no abuse of discretion on the part of the

trial court. Keith’s contention that the trial court failed to find his family

support as mitigating suffers the same fate, as he develops no argument on

appeal regarding why that factor is supported by the record or is significant in

his case. Green, 65 N.E.3d at 636.

[34] Regarding Keith’s argument that the trial court failed to consider his risk

assessment as a mitigator, we agree with the State that this factor was not

advanced at sentencing. It is well-settled that it is not an abuse of the trial

court’s discretion to fail to consider a mitigating circumstance that a defendant

did not raise at sentencing. Anglemyer, 868 N.E.2d at 492. Because this factor

was not advanced by Keith at sentencing and is raised for the first time on

Court of Appeals of Indiana | Opinion 18A-CR-1961 | June 20, 2019 Page 22 of 23



appeal, we find no abuse of the trial court’s discretion in failing to recognize it

as a mitigator. Id.

[35] We address an additional sentencing issue sua sponte. The trial court imposed

the fifteen-year habitual offender enhancement consecutively to the sentences

for the burglary and Count II robbery convictions, rather than specifically

attaching the enhancement to one of those two felonies. The habitual offender

statute provides in relevant part as follows:

The court shall attach the habitual offender enhancement to the felony conviction with the highest sentence imposed and specify which felony count is being enhanced. If the felony enhanced by the habitual offender determination is set aside or vacated, the court shall resentence the person and apply the habitual offender enhancement to the felony conviction with the next highest sentence in the underlying cause, if any.

I.C. § 35-50-2-8(j). As part of its resentencing order, the trial court must attach

the habitual offender enhancement to one of Keith’s felony convictions.3

Based on the foregoing, we conclude that the evidence did not support the trial

court’s finding that Keith inflicted serious bodily injury upon Clayton as

charged in the Information. We remand for entry of the burglary conviction as a Level 3 felony and for resentencing. We also conclude that Keith’s

convictions are not barred by the continuous crime doctrine, Keith’s statements

to law enforcement were voluntary and, thus, were properly admitted, and the

trial court did not abuse its discretion when it failed to find additional

mitigating circumstances. However, we conclude that the trial court must

attach the habitual offender enhancement to one of Keith’s felony convictions

upon resentencing and that the trial court must correct the abstract of judgment

to reflect that Count IV was a conviction for robbery with a deadly weapon.

[37] Affirmed in part, reversed in part, and remanded with instructions.