These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MONROE CIRCUIT COURT. The Honorable Kenneth G. Todd, Judge. Cause No. 53C03-1106-MR-523.
ATTORNEY FOR APPELLANT: LENEIGHA DOWNS, Monroe County Public Defender, Bloomington, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, J.T. WHITEHEAD, Deputy Attorney General, Indianapolis, Indiana.
BRADFORD, Judge. MATHIAS, J., and PYLE, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Appellant-Defendant Bruce Foster had been in a romantic relationship with Angela Holder, but the two were apparently no longer involved when he came to her apartment one morning while she was taking her daughter to school. A neighbor witnessed Foster attempting to break into Holder's apartment with a knife when Holder arrived home. Foster jumped down from the balcony on which he was attempting to gain entry to the apartment and confronted Holder. When Holder attempted to enter the apartment, Foster forced his way in after her and closed the door behind them. The neighbor heard what sounded like six to eight thumps and, shortly thereafter, Foster emerged and left in Holder's car. Eventually, Holder's body was found by her daughter, and it was determined that Holder had been stabbed seven times in the chest and ten times on the extremities. Foster was tried and convicted of murder and auto theft and was found to be a habitual offender. Foster received a sixty-five year sentence, enhanced thirty years by virtue of his habitual offender status.
Foster contends that (1) the State failed to produce sufficient evidence to sustain his murder conviction; (2) the trial court abused its discretion in admitting certain evidence; (3) the trial court abused its discretion in sending Foster's recorded statements to the jury room during deliberations; (4) the trial court abused its discretion in refusing to remove a juror for alleged, implied bias; and (5) Foster's sentence is inappropriately harsh. Because we conclude that Foster's challenges to his conviction are without merit and that his sentence is not inappropriate, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On the morning of June 7, 2011, Holder drove her daughter Anastasia ("Anna") to school. At approximately 9:30 to 10:30 a.m., neighbor A.J. Strole, who knew Foster, witnessed him standing on a balcony and attempting to "jimmy" a second-story window to Holder's apartment with a wooden-handled knife. Tr. p. 95. Foster and Holder had been in a romantic relationship but were apparently no longer involved. When Holder arrived home, Foster dropped down from the balcony and approached Holder as she was walking up to her apartment's door. Foster, who was visibly upset, said, "you dumbass bitch you got me out here doing this stupid ass shit" just as Holder opened the door. Tr. p. 100. Holder gave a large backpack to Foster, who opened it and said, "no bitch this ain't all my shit[,] barged his way in the door[,] turned[,] and locked the door[.]" Tr. p. 101. Strole then heard six to eight "thumps" against the wall. Tr. p. 101. Foster emerged and drove off in Holder's car.
Anna arrived home from school around 3:00 p.m. Anna had forgotten her key and had tried, in vain, to contact Holder via text message and telephone. Anna called her grandmother Sherry Runyon, who soon arrived with her sister. The trio went shopping and while shopping, Runyon received a telephone call from her husband that police had found Holder's purse in Cascades Park at approximately 3:00 p.m. The trio returned to Holder's apartment and secured a key from the manager's office. When Anna unlocked the door, the door would barely open, and, upon looking inside, she saw her mother's body and screamed. Holder had been stabbed seven times in the chest with a single-edged knife, causing her death, in addition to ten times in the extremities. The forensic pathologist determined that Holder died no later than two hours after 10:00 a.m. On June 8, 2011, Foster called Detective William Jeffers of the Bloomington Police Department, and Detective Jeffers recorded the conversation. On June 15, 2011, a knife was found in Cascades Park, and swabs taken from the knife were determined to contain Holder's DNA.
Also on June 8, 2011, the State charged Foster with murder and Class D felony auto theft and alleged that he is a habitual offender. On June 18, 2012, a jury found Foster guilty of auto theft but failed to reach a verdict on the murder count. A second jury trial was held on the murder and habitual offender counts. During the second trial, the State presented evidence based on Foster's mobile telephone records indicating activity on the morning of June 7, 2011, at or near the areas in Cascade Park where Holder's purse and the knife were found. On December
10, 2012, the second jury found Foster guilty of murder and of being a habitual offender. The trial court sentenced Foster to sixty-five years of incarceration for murder (enhanced thirty years by virtue of his habitual offender status) and ordered the sentence to be served consecutively to his three-year sentence for auto theft.
DISCUSSION AND DECISION
I. Whether the State Produce Sufficient Evidence to Sustain Foster's Conviction
When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder's role to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. We consider conflicting evidence in the light most favorable to the trial court's ruling.
Id. We affirm the conviction unless no reasonable fact-finder could find that the elements of the crime were proven beyond a reasonable doubt.
The State produced more than sufficient evidence to sustain Foster's murder conviction. Strole testified that he saw Foster attempting to break into Holder's apartment at approximately 9:30 to 10:30 a.m. on the morning in question. Foster, who was in possession of a knife, then argued with Holder before forcing his way into her apartment and closing the door. Soon thereafter, Foster left. The State also presented evidence that Holder died of multiple knife wounds within one to two hours after 10:00 a.m. Moreover, a knife bearing Holder's DNA was later found in Cascades Park, the same park where her purse had been found earlier. Given that the State produced evidence that Foster was at the scene of Holder's murder around the time she died and in possession of a knife, we have little trouble concluding that the State produced sufficient evidence to sustain his murder conviction.
II. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence
The admissibility of evidence is within the sound discretion of the trial court.
Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will only reverse a trial court's decision on the admissibility of evidence upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.
Id. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court.
Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. ...