MEMORANDUM DECISION
Case Summary
[1] Steven Atkins appeals his conviction and sentence for Murder, a felony.
1
We affirm.
Issues
[2] Atkins presents three issues for review:
I. Whether evidence of other acts was admitted in contravention of Indiana Rule of Evidence 404(b);
II. Whether the trial court abused its sentencing discretion by refusing to recognize mitigating circumstances; and
III. Whether Atkins’ sentence is inappropriate.
Facts and Procedural History
[3] In 2022 and 2023, Sharon Hagler-Ellis maintained a residence on Lillie Street in Fort Wayne where she lived with her young child. Hagler-Ellis also provided housing for other young adults, including twenty-year-old Kiera Zepke. Zepkes boyfriend, Michael Rau, Jr., was a frequent visitor. In late November of 2022, Atkins moved into the Lillie Street residence to be with his girlfriend, Alicia King.
[4] After King moved out, Atkins “continued to come around.” (Tr. Vol. II, pg. 215.) He and Hagler-Ellis discussed a business venture that required the purchase of a candy press. However, after the candy press was obtained, a disagreement arose about the purposes for which it would be used. Zepke agreed to give Atkins, in the process of moving out his things, a ride to transport a television set. Atkins carried out a large object covered in a blanket. When Zepke learned that the object was the candy press, she told Hagler-Ellis where Atkins had taken it.
[5] Atkins began to contact Zepke and Hagler-Ellis with texts and voice mails expressing his outrage at what he perceived as a betrayal. With respect to Zepke, Atkins claimed that he loved her and did not know why she did not return that love. He also let Zepke know that he had been watching her. Rau characterized the messages to Zepke as “disrespectful.” (Tr. Vol. III, pg. 5.)
[6] On March 23, 2023, shortly before four a.m., Hagler-Ellis received a text from a number that she recognized as belonging to Atkins. The import of the text was that Atkins “was going to take care of [her] and the one who talked too much and two orphans were better than one.” (Tr. Vol. II, pg. 218.) Hagler-Ellis understood the reference to orphans to mean her child and Zepkes infant. The text “was followed by gunshots coming through [her] house.” (Id.) Hagler-Ellis called 9-1-1 at 3:50 a.m. to report the shooting. At 4:05, she received a text from Atkins as follows:
That s*** funny right now – that s*** funny now right? Hope yall stay safe out in them streets, its F*** up out. Good luck. Lucky right.
(Tr. Vol. III, pg. 70.)
[7] On May 9, 2023, Rau and Zepke returned to the Lillie Street house after spending several hours arranging things at a storage unit. They decided to go inside, get a shower, and return to the vehicle to watch movies on a laptop computer. When Zepke opened the drivers side door, Rau could see that a red laser beam was trained on them. Atkins walked up to the vehicle, pulled down his mask, and said “I should kill both of you.” (Id. at 13.) Rau did not take this as a serious threat, having seen Atkins pull a gun on King and walk away.
[8] Rau and Zepke had started gathering their possessions when gunfire erupted. Zepke screamed and jumped onto Raus lap in the passenger side of the vehicle. Atkins then proceeded around to the passenger side and fired additional shots into the vehicle. Hagler-Ellis, who had run to the window to look outside upon hearing shots, saw Atkins with a gun and saw Zepke “go down.” (Tr. Vol. II, pg. 223.) Realizing that Zepke had been hit, Rau carried her into the Lillie Street house, screaming for assistance. Emergency responders arrived shortly, but they were unable to save Zepkes life. Meanwhile, Atkins ran from the scene and tried in vain to get a ride from a friend, claiming that the police were after him.
[9] In the ensuing police investigation, Rau and Hagler-Ellis each identified Atkins as the shooter. On May 16, 2023, the State charged Atkins with Murder and Criminal Recklessness, as a Level 6 felony.
2
The State also sought a use-of-firearm enhancement pursuant to Indiana Code Section 35-50-2-11. A jury found Atkins guilty as charged and determined that he had used a firearm in the commission of his crimes. On October 6, 2023, the trial court vacated the Criminal Recklessness conviction due to double jeopardy concerns. The trial court sentenced Atkins to sixty-five years imprisonment for Murder, enhanced by twenty years for the use of a firearm. Atkins now appeals.
Discussion and Decision
Other Acts Evidence
[10] Atkins argues that the trial court should have excluded evidence that he fired shots into the Lillie Street residence and sent threatening text messages to Zepke. According to Atkins, there is insufficient proof that he committed those acts but, even assuming that he did so, “the probative value is slight, as compared to the significant and unfair prejudice to Atkins.” Appellants Brief at 14. As such, Atkins contends that the jury was permitted to draw forbidden inferences in violation of Indiana Evidence Rule 404(b).
[11] A trial court has broad discretion in ruling on the admissibility of evidence. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009). We will reverse the trial courts decision only when it is clearly against the facts and circumstances before the court. Granger v. State, 946 N.E.2d 1209, 1213 (Ind. Ct. App. 2011).
[12] Evidence Rule 404(b)(1) provides:
Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character.
Evidence of extrinsic offenses poses the danger that the jury will convict the defendant because he or she is a person of bad character generally or has a tendency to commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The rationale for the prohibition against bad act and character evidence is that the jury is precluded from making the forbidden inference that the defendant had a criminal propensity and therefore engaged in the charged conduct. Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). When a defendant objects to the admission of evidence on the grounds that it violates Evidence Rule 404(b), and specific acts evidence is offered for “other purposes,” the trial court is to
determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendants propensity to commit the charged act[,] ․ determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act[,] ․ [a]nd third ․ balance the probative value of the evidence against its prejudicial effect pursuant to Rule 403.
Camm, 908 N.E.2d at 223.
[13] Here, however, Atkins did not object to any of the testimony that he now claims should have been excluded. Hagler-Ellis described the texts she received before and after six shots were fired into her residence, and what caused her to believe those were from Atkins. Atkins lodged no contemporaneous objection. Again, when Rau testified that Zepke received disrespectful communications from Atkins, and when Detective Amanda Miller testified that Zepke had reported receiving threatening messages from Atkins, no contemporaneous objection was lodged. As such, Atkins did not request that the trial court make a contemporaneous determination of whether the evidence was admissible for a permissible purpose under Evidence Rule 404(b)(2) – such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident – or engage in the balancing of probative value against prejudicial effect. As a general rule, the failure to object at trial amounts to waiver of an issue on appeal. Stokes v. State, 908 N.E.2d 295, 301 (Ind. Ct. App. 2009), trans. denied.
[14] Having waived his claim of reversible error, Atkins can prevail only upon a showing of fundamental error.
An error is fundamental, and thus reviewable on appeal, if it “made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014) (internal quotation marks omitted). These errors create an exception to the general rule that a partys failure to object at trial results in a waiver of the issue on appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). This exception, however, is “extremely narrow” and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. Id. At the same time, “if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.” Brewington, 7 N.E.3d at 974.
Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). “[F]undamental error in the evidentiary decisions of our trial courts is especially rare.” Merritt v. State, 99 N.E.3d 706, 709 (Ind. Ct. App. 2018), trans. denied. Here, the State presented the testimony of two eyewitnesses who saw Atkins kill Zepke. The admission of evidence of other acts was not so unduly prejudicial as to make “a fair trial impossible.” Knapp, 9 N.E.3d at 1281. We find no fundamental error.
Abuse of Sentencing Discretion – Mitigators
[15] At the sentencing hearing, defense counsel made the following argument on behalf of Atkins:
This is a man who has but a ninth-grade education, grew up in Chicago. He denies being a product of the streets, but he very much was influenced by the way the East Chicago streets handled themselves [sic]. Throughout his life, he has not had strong figures to lead him down the right path and Im hoping that a proper sentence at this time, based on the Judges clemency towards knowing that this gentleman did not have those upbringings [sic] that most people do have, he will be given a good sentence based upon his actions and his history.
(Tr. Vol. IV, pg. 32.) Atkins now contends that the trial court “failed to give any weight whatsoever to the circumstances and mitigators presented by defense counsel during sentencing and presented in the Pre-Sentence Investigation Report.” Appellants Brief at 16.
[16] Sentencing decisions rest within the sound discretion of the trial court, and as long as a sentence is within the statutory range, it is subject to review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on rehg, 875 N.E.2d 218. An abuse of discretion occurs where the trial courts decision is clearly against the logic and effect of the facts and circumstances before it, or the reasonable, probable, and actual deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App. 2014). A trial court may abuse its discretion if the sentencing statement omits mitigating factors that are clearly supported by the record and advanced for consideration. Anglemyer, 868 N.E.2d at 490–91. However, the relative weight or value assignable to reasons properly found is not subject to review for abuse of discretion. Id. at 491.
[17] Atkins asserted that he has little education and lacked positive role models during his upbringing. However, a trial court is not obligated to accept the defendants argument concerning what constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied. Moreover, if the trial court does not find the existence of a mitigator after it has been advanced by counsel, the court is not obligated to explain why it found the circumstance not to be mitigating. Anglemyer, 868 N.E.2d at 493. Here, the trial court simply did not find Atkins’ limited education and the absence of positive role models to be mitigating circumstances. On appeal, Atkins has not established that his claimed mitigators are significant and clearly supported by the record. We find no abuse of the trial courts sentencing discretion.
Inappropriateness of Sentence
[18] Atkins contends that his sentence is inappropriate in light of the nature of the offense and his character. Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and revision of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration in original). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
[19] Indianas flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial courts judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as 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 factors that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendants character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[20] The sentencing range for Atkins’ murder conviction is between forty-five and sixty-five years, with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3. The enhancement for use of a firearm consists of an additional fixed term of five to twenty years. I.C. § 35-50-2-11(g). Accordingly, Atkins’ sentence is the maximum sentence within the statutory range.
[21] When considering the nature of the offense, we look at the defendants actions in comparison to the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. After threatening and stalking Zepke, Atkins fired multiple bullets into Zepkes vehicle, killing her. In so doing, Atkins also endangered the life of Rau. He left Atkins’ infant son motherless, as he had threatened to do. There are in the record before us no compelling positive facts about the nature of the offense.
[22] Nor does Atkins’ character warrant a sentence reduction. He was adjudicated a juvenile delinquent. His adult criminal history includes eight felonies, primarily consisting of drug related offenses. In the past, Atkins has had probation revoked; he was on parole at the time he murdered Zepke. He was captured on a jail camera facing Rau and making a gesture as if to point a gun at Rau. The sentencing record does not suggest that Atkins has “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122. He has failed to demonstrate that his sentence is inappropriate in light of his character.
Conclusion
[23] The admission of evidence of Atkins’ prior conduct did not amount to fundamental error. The trial court did not abuse its sentencing discretion, and Atkins’ sentence is not inappropriate.
[24] Affirmed.
FOOTNOTES
1
. Ind. Code § 35-42-1-1.
2
. I.C. § 35-42-2-2(a).
Bailey, Judge.
Altice, C.J., and Mathias, J., concur.