Sebastian S. Smith v. State of Indiana

Lafayette robber sentenced to 35 years in prison

Sebastian S. Smith shot and seriously injured Brendon Firth during an armed

robbery. A jury found Smith guilty on six felony counts and 3 misdemeanor

counts. The trial court entered judgment of conviction only for one count of

level 2 felony robbery resulting in serious bodily injury and entered an

enhanced sentence based upon Smith’s use of a firearm during the robbery.

Smith now appeals asserting that the trial court abused its discretion in

excluding certain evidence, that his conviction and sentence enhancement

violate double jeopardy principles, and that his sentence is inappropriate. The

State cross-appeals urging that remand for amendment of the sentencing order

and abstract of judgment is necessary to provide for consecutive sentencing with

a term of imprisonment imposed in another county. We disagree with Smith

but agree with the State. Accordingly, we affirm Smith’s conviction and

sentence, but remand for amendment of the sentencing order and abstract of

judgment.

Facts and Procedural History

[2] The evidence most favorable to Smith’s conviction reveals that on August 10,

2016, Smith, Tre’velle Young, and some other individuals were at Smith’s

residence smoking “[w]eed and some other stuff,” and discussing robbing a

drug dealer, Ryan Wall, who lived nearby. Tr. Vol. 2 at 108. Smith and Young

later went to Wall’s apartment under the pretext of buying drugs in order to

“feel the place out.” Id. Wall, his girlfriend, and two of Wall’s friends, one of

who was Brendon Firth, were present. While at Wall’s apartment, Smith

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purchased Xanax from Wall and spoke to him about the possibility of selling

him a television. Smith told Wall that he would return later with the television.

[3] Smith and Young went back to Smith’s residence and planned how the robbery

would take place. They then returned to Wall’s apartment with a television.

The television sale was just a “sham” to get back into Wall’s apartment. Id. at

113. As Wall was checking to see if the television worked, Smith instructed

Young to go down to the car to retrieve “the remote.” Id. at 80. This was

“code” instructing Young to retrieve a gun from the car. Id. at 145. After

Young returned with a gun, Smith pulled out his handgun and pointed it

around the room at the people. Smith yelled at Wall, “Where is the sh*t at?”

and ordered Wall to give him “everything [he] had.” Id. at 94, 171. Firth stood

up, pulled out a knife, and stepped toward Smith telling him that he “wasn’t

getting anything from anyone.” Id. at 171. Wall told Firth that they should just

comply with Smith’s demands and “giv[e] him everything[,]” and Wall tossed a

Crown Royal bag full of pills onto the coffee table toward Smith. Id. Smith

looked at Wall, and back at Firth, and then shot Firth in the chest. After

shooting Firth, Smith grabbed the bag full of pills, threw it to Young, and ran

out of the apartment. Firth suffered life-threatening injuries as a result of the

gunshot.

[4] The State initially charged Smith with one count of level 2 felony robbery

resulting in serious bodily injury. The State subsequently added charges for

level 3 felony conspiracy to commit robbery, level 3 felony criminal

confinement, class A misdemeanor theft, level 3 felony battery, two counts of

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level 5 felony battery, class A misdemeanor carrying a handgun without a

license, and level 5 felony carrying a handgun without a license. The State also

requested a sentence enhancement due to Smith’s use of a firearm during the

commission of his offenses. In September 2018, the State also added one count

of level 1 felony attempted murder.

[5] A jury trial was held in June 2019. The jury found Smith not guilty of

attempted murder, but guilty on all other counts. The trial court entered

judgment of conviction solely on the level 2 robbery count and found that the

State had proved the elements of the use-of-a-firearm sentence enhancement

beyond a reasonable doubt. The trial court sentenced Smith to twenty-five

years for the level 2 felony, enhanced by fifteen years for the use of a firearm,

with thirty-five years executed and five years suspended to probation. This

appeal ensued. We will provide additional facts in our discussion when

necessary.

Discussion and Decision

Section 1—The trial court did not abuse its discretion in

excluding certain evidence.

[6] Smith first contends that the trial court abused its discretion in excluding certain

evidence. We review the trial court’s ruling on the admission or exclusion of

evidence for an abuse of discretion. Johnson v. State, 38 N.E.3d 658, 660-61 (Ind.

Ct. App. 2015), trans denied. We reverse only where the decision is clearly

against the logic and effect of the facts and circumstances. Id. at 661. Even if

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the trial court’s decision was an abuse of discretion, we will not reverse if the

admission or exclusion constituted harmless error. Id.

[7] Although Smith attempted to serve Wall with several subpoenas to appear at

trial, Wall failed to appear as a witness. During trial, Smith sought to elicit

testimony from a police detective, over the State’s objection, that on the night of

the robbery, Wall told the detective that Smith and Firth had engaged in a

struggle prior to the shooting. Smith claimed that Wall’s out-of-court statement

supported his claim of self-defense, and was admissible pursuant to the excited

utterance exception to the hearsay rule. The trial court excluded the evidence

as inadmissible.

[8] “Hearsay” is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Ind. Evidence Rule 801(c). As a general rule, hearsay evidence is

inadmissible. Ind. Evidence Rule 802. One exception to the hearsay rule is the

“excited utterance” exception contained in Evidence Rule 803(2). This rule

provides that “[a] statement relating to a startling event or condition, made

while the declarant was under the stress of excitement that it caused” is not

excluded by the hearsay rule, even if the declarant is available as a witness.

Ind. Evidence Rule 803(2). In order for a hearsay statement to be admitted as

an excited utterance, three elements must be present: (1) a startling event has

occurred; (2) a statement was made by a declarant while under the stress of

excitement caused by the event; and (3) the statement relates to the event.

Boatner v. State, 934 N.E.2d 184, 186-87 (Ind. Ct. App. 2010). “This is not a

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mechanical test, and the admissibility of an allegedly excited utterance turns on

whether the statement was inherently reliable because the witness was under

the stress of the event and unlikely to make deliberate falsifications.” Id. “The

heart of the inquiry is whether the declarant was incapable of thoughtful

reflection.” Id. (citation omitted). While the amount of time that has passed is

not dispositive, “a statement that is made long after the startling event is usually

less likely to be an excited utterance.” Id.

[9] Here, the record does not support a claim that Wall’s statement “was inherently

reliable” because he was “under the stress of the event” and therefore “unlikely

to make deliberate falsifications.” See id. Smith vaguely asserts that the

statement was made “shortly” after the shooting, Appellant’s Br. at 12, but the

record is unclear as to exactly when Wall spoke to the detective.

1

The State

emphasized that the record indicated that Wall “spoke to multiple officers” well

before he made the statement in question, and there was no evidence that Wall

“was under the stress of the event still” when speaking to the detective. Tr. Vol.

3 at 108. Additionally, the record indicates that Wall, a known drug dealer,

and the other witnesses present deliberately lied to and concealed evidence from

the officers who arrived on the scene within minutes of the shooting. This cuts

against any assertion that Wall was incapable of thoughtful reflection and

unlikely to make deliberate falsifications in his subsequent statement. Under

1 Smith’s attorney stated that he believed the statement was made “within an hour or two” of the shooting,

but he admitted he was unsure. Tr. Vol. 3 at 108.

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the circumstances, we cannot say that the trial court abused its discretion in

excluding Wall’s out-of-court statement as inadmissible hearsay.

[10] In any event, we agree with the State that any error in the exclusion of Wall’s

statement was harmless at most. Errors in the exclusion of evidence are

considered harmless unless they affect the substantial rights of a party.

Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006). To determine

whether an error in the exclusion of evidence affected a party’s substantial

rights, we assess the probable impact of the evidence on the jury. Id. Smith

sought to introduce Wall’s statement regarding a struggle with Firth to support

his claim of self-defense to the charge of attempted murder, for which he was

acquitted. This self-defense theory had no bearing on his conviction for robbery

resulting in bodily injury.2 Accordingly, Smith cannot demonstrate that any

error in the exclusion of Wall’s out-of-court statement affected his substantial

rights.

Section 2 – Smith’s robbery conviction and sentencing

enhancement do not violate double jeopardy principles.

[11] Next, Smith argues that his conviction for level 2 felony robbery and the use-ofa-firearm sentence enhancement attached to that conviction violate Indiana’s

double jeopardy principles. We review questions of double jeopardy de novo,

giving no consideration to the trial court’s decision below. Goldsberry v. State,

2 Smith’s theory of defense regarding the robbery was that Young was the perpetrator of, and possessed the

requisite mens rea for, the robbery, and that Smith was essentially at the wrong place at the wrong time. Tr.

Vol. 3 at 160, 171-73.

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821 N.E.2d 447, 458 (Ind. Ct. App. 2005). Article 1, Section 14 of the Indiana

Constitution provides: “No person shall be put in jeopardy twice for the same

offense.” This provision was intended to “prevent the State from being able to

proceed against a person twice for the same criminal transgression.” Richardson

v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under Richardson, “two or more

offenses are the same offense ... if, with respect to either the statutory elements

of the challenged crimes or the actual evidence used to convict, the essential

elements of one challenged offense also establish the essential elements of

another challenged offense.” Id.

[12] While Richardson is aimed primarily at multiple convictions, our supreme court

has recognized a series of rules of statutory construction and common law that

supplements the constitutional protections afforded by the Indiana Double

Jeopardy Clause. Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (citing Pierce v.

State, 761 N.E.2d 826, 830 (Ind. 2002)). These rules prohibit conviction and

punishment “for an enhancement of a crime where the enhancement is imposed

for the very same behavior or harm as another crime for which the defendant

has been convicted and punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J.,

concurring). The court has explained that claims of multiple enhancements

require statutory interpretation, and the crux of these cases revolves around

what, if any, legislative direction has been given. Nicoson v. State, 938 N.E.2d

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660, 662-63 (Ind.2010).

3

In other words, multiple enhancements are

permissible if the legislature clearly intends it to be so. See id.

[13] Smith was convicted of robbery resulting in serious bodily injury. He argues

that the “serious bodily injury element” of his offense “was caused by and as a

direct result of use of a firearm” during the crime. Appellant’s Br. at 16.

Accordingly, he maintains that the firearm sentence enhancement was imposed

for “the very same behavior or harm” that supported his conviction for robbery

resulting in serious bodily injury, and thus he claims that the sentence

enhancement violates double jeopardy principles and must be set aside. Id.

[14] Our supreme court’s decision in Nicoson is instructive here. In Nicoson, the

defendant was convicted of criminal confinement as a class B felony because he

was armed with a deadly weapon. Nicoson, 938 N.E.2d 660, 662-63. The trial

court attached an additional fixed five-year term to his sentence pursuant to

Indiana’s Firearm Enhancement Statute, Indiana Code Section 35-50-2-11,

because the defendant “used” a firearm while committing his offense. Id. at

661. That section provides that upon proof beyond a reasonable doubt “that

3 Another panel of this Court has specifically determined that firearm sentencing enhancements do not

implicate double jeopardy. Specifically, the panel in Cooper v. State, 940 N.E.2d 1210 (Ind. Ct. App. 2011),

trans. denied, noted that several jurisdictions have concluded that firearm sentencing enhancements similar to

ours do not raise double jeopardy concerns because the enhancement is merely a cumulative punishment

rather than a separate offense. Id. at 1215 (collecting cases). The Cooper panel agreed with those jurisdictions

in recognizing that sentencing enhancements are not offenses for double jeopardy purposes. Id. at 1217.

While we acknowledge the general principle that sentencing enhancements do not constitute separate

offenses, controlling precedent of our supreme court directs that we must still consider whether the firearm

sentencing enhancement, as applied here, runs afoul of Indiana’s supplemental prohibition “against double

enhancements ‘absent explicit legislative direction.’” Nicoson, 938 N.E.2d at 663.

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the person knowingly or intentionally used a firearm in the commission of the

offense under subsection (d), the court may sentence the person to an additional

fixed term of imprisonment of between five (5) years and twenty (20) years.”

Ind. Code § 35-50-2-11. The Nicoson court determined, among other things,

that the use-of-a-firearm sentence enhancement did not run afoul of double

jeopardy principles. Id. at 661, 662-63, 665.

[15] In reaching that result, the court emphasized that

[t]he “extra” five years about which Nicoson complains is not

part of these provisions in the confinement statutes that authorize

higher classes of felonies to be charged. Rather, it appears in the

part of the Code on penalties. The section at issue authorizes an

additional fixed sentence for the underlying offense where a

firearm is used.

....

Here, the State initially needed to prove only that Nicoson

committed confinement while armed with a deadly weapon. Ind.

Code § 35-42-3-3. To apply the additional fixed five-year term the

statute requires the State to prove Nicoson “used” a firearm in

commission of his offense. Ind. Code § 35-50-2-11. The record

clearly reveals that Nicoson was not only armed with a deadly

weapon, but that he used the firearm—firing into the air,

ordering the victims from the vehicle with it, and firing at the

victims’ vehicle as they drove away.

Id. at 664, 665.

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[16] As in Nicoson, the sentence enhancement about which Smith complains does

not concern, in any way, an elevation of a statutory offense to a higher class of

felony. The sentence enhancement that applies to Smith’s use of a firearm in

the commission of his offense is embodied in the penalties provision of the

Indiana Code in which the legislature has specifically provided a harsher

penalty based on the use of a firearm. The legislature’s intent is clear that

certain criminal offenses committed with firearms, including those felonies

resulting in death or serious bodily injury, are to receive additional punishment.

Ind. Code § 35-50-2-11(b)(1).

[17] Moreover, Smith was charged with the crime of robbery as a level 2 felony. An

individual commits that offense if he or she knowingly or intentionally takes

property from another person or from the presence of another person by using

or threatening the use of force on any person, or by putting any person in fear,

and “it results in serious bodily injury to any person other than a defendant.”

Ind. Code § 35-42-5-1. Proof of that offense did not require any showing that

Smith used a weapon, and the jury was not required to determine that Smith

used a firearm in the commission of the underlying offense.

[18] In other words, Smith was convicted of a single offense, and only one sentence

enhancement was imposed as a result of his use of the firearm in the

commission of the crime. Thus, we are not concerned with multiple

enhancements. Contrary to Smith’s suggestion, it is of no moment that his use

of a firearm caused the serious bodily injury relied upon for both the underlying

offense and the enhancement. If the legislature intended that offenses resulting

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in serious bodily injury alleged to have been committed with a firearm were to

be excepted from the use-of-a-firearm sentence enhancement, it could have

drafted the statute to reflect that intent. Instead, the legislature specifically

included all felonies “under IC 35-42” that result in “serious bodily injury.”

Ind. Code § 35-50-2-11. “[T]he inclusion of that requirement renders it

virtually certain that the legislature would have foreseen that many of those

injuries would be inflicted by the use of firearms.” Cooper v. State, 940 N.E.2d

1210, 1217 (Ind. Ct. App. 2011), trans. denied. For the foregoing reasons, we

conclude that no double jeopardy violation occurred, and we reject Smith’s

contention that his sentence enhancement must be set aside.

Section 3 – Smith had not met his burden to demonstrate that

his sentence is inappropriate.

[19] Smith finally requests that we reduce his sentence pursuant to Indiana

Appellate Rule 7(B), which provides that we may 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.” The defendant bears the burden to persuade this Court that

his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Indiana’s flexible sentencing scheme allows trial courts to tailor an

appropriate sentence to the circumstances presented, and the trial court’s

judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to

“leaven the outliers.” Id. at 1225. Whether we regard a sentence as

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inappropriate at the end of the day turns on “our sense of the culpability of the

defendant, the severity of the crime, the damage done to others, and myriad

other facts that come to light in a given case.” Id. at 1224. “The question under

Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

the question is whether the sentence imposed is inappropriate.” Fonner v. State,

876 N.E.2d 340, 344 (Ind. Ct. App. 2007).

[20] Regarding the nature of the offense, the advisory sentence is the starting point

that the legislature has selected as an appropriate sentence for the crime

committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Smith was convicted

of level 2 felony robbery resulting in serious bodily injury, and he was found to

have knowingly or intentionally used a firearm during the commission of his

offense. The sentencing range for a level 2 felony is between ten and thirty

years, with an advisory sentence of seventeen and a half years. Ind. Code § 35-

50-2-4.5. If a person knowingly or intentionally uses a firearm during the

commission of certain offenses, the trial court may impose an additional fixed

term of imprisonment between five and twenty years. Ind. Code § 35-50-2-11.

The trial court here imposed a twenty-five-year sentence for Smith’s robbery

conviction, enhanced by fifteen years for his use of a firearm, resulting in an

aggregate sentence of forty years (thirty-five years executed and five years

suspended to probation), which was well below the maximum fifty-year

allowable sentence.

[21] When reviewing the nature of the offense, this Court considers “the details and

circumstances of the commission of the offense.” Washington v. State, 940

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N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Smith urges that,

although any robbery is a serious offense, the current robbery was not so

egregious as to justify the sentence imposed. We disagree. There was evidence

in the record that not only was Smith an active participant in pointing a loaded

gun at a group of people, placing them in fear, and taking property, but he also

planned and conspired to commit this crime in advance. Indeed, there was

evidence to suggest that Smith was the mastermind of this drug heist gone

horribly wrong. It is disingenuous to suggest that Smith was unaware that

committing an armed robbery of a known drug dealer and his friends was not

likely to result in an escalation of violence, namely, the serious bodily injury

suffered by Firth. The details and circumstances of the commission of this

offense do not persuade us that a sentence reduction is warranted.

[22] Turning to Smith’s character, we note that the character of the offender is found

in what we learn of his life and conduct. Croy v. State, 953 N.E.2d 660, 664

(Ind. Ct. App. 2011). Included in that assessment is a review of an offender’s

criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

trans. denied (2016). Smith has an extensive criminal history beginning as a

juvenile offender when he committed grand theft in Florida. At the young age

of thirty, he had already amassed multiple felony convictions (theft, auto theft,

possession of methamphetamine, possession of marijuana with a prior

conviction, burglary) and seven misdemeanor convictions. As noted by the trial

court, Smith’s daily drug use (heroin, methamphetamine, painkillers) has

unfortunately “led to a life of crime,” and despite numerous arrests,

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convictions, and opportunities at probation and rehabilitation, there has been

“just no compliance anywhere.” Tr. Vol. 4 at 25. Smith has demonstrated utter

“disdain for the court,” failing to appear before the court when ordered at least

sixteen times, and he has just continued to do “whatever the heck [he] wanted.”

Id. at 25-26. Indeed, Smith committed the current offense shortly after release

on his own recognizance from the Benton County Jail, where he was being held

on pending burglary and habitual offender charges. Nothing we have learned

about Smith’s character persuades us that the sentence imposed by the trial

court should be reduced. Smith has not met his burden to demonstrate that his

sentence is inappropriate in light of the nature of his offense or his character.

Section 4 – Remand is necessary for the trial court to correct

its sentencing order.

[23] The State cross-appeals and asserts that remand is necessary for the trial court

to correct its sentencing order. Specifically, the State points out that the order

does not address the fact that Smith committed the instant offense while

released on his own recognizance during the pendency of his Benton County

case, cause number 04C01-1512-F4-229, and that pursuant to statute, the

sentences imposed in both causes must be ordered to run consecutively.

Indiana Code Section 35-50-1-2 provides in relevant part:

(e) If, after being arrested for one (1) crime, a person commits

another crime:

(1) before the date the person is discharged from probation,

parole, or a term of imprisonment imposed for the first crime; or

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(2) while the person is released:

(A) upon the person’s own recognizance; or

(B) on bond;

the terms of imprisonment for the crimes shall be served

consecutively, regardless of the order in which the crimes are

tried and sentences are imposed.

[24] The record indicates that Smith committed the current crime while released on

his own recognizance from the Benton County Jail where he had been held on

burglary charges. Accordingly, pursuant to statute, the terms of imprisonment

for the current crime and his Benton County crime shall be served

consecutively.4

Therefore, we remand with instructions for the trial court to

correct the sentencing order and abstract of judgment to reflect that the terms of

imprisonment for the current conviction and the Benton County conviction

shall be served consecutively. The trial court’s judgment of conviction and

sentence is affirmed in all other respects.



4 At the time of sentencing, Smith had already been convicted of level 4 felony burglary and found to be a

habitual offender in the Benton County cause, and was serving the imposed fourteen-year executed sentence

in the Department of Correction.

Affirmed and remanded.