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Harman v. State

Court of Appeals of Indiana

February 24, 2014

DAVID J. HARMAN, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff

Page 210

[Copyrighted Material Omitted]

Page 211

APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Clarence D. Murray, Judge. Cause No. 45G02-1106-FA-32.

ATTORNEY FOR APPELLANT: MARK SMALL, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JOSEPH Y. HO, Deputy Attorney General, Indianapolis, Indiana.

PYLE, Judge. MATHIAS, J., and BRADFORD, J., concur.

OPINION

Page 212

PYLE, Judge.

STATEMENT OF THE CASE

David J. Harman (" Harman" ) appeals, following a jury trial, his conviction and sentence for Class A felony attempted murder.[1]

We affirm.

ISSUES

1. Whether the trial court abused its discretion in its evidentiary rulings.

2. Whether the trial court erred in sentencing Harman.

FACTS

In May 2011, Harman, who was nicknamed " Red," was dating Cathy Jenkins (" Cathy" ), who had previously been married to J.R. Jenkins (" Jenkins" ). Jenkins and Cathy, who divorced in 2007, had two sons, Joe and A.[2] Jenkins lived on Oakdale Avenue in Hammond, Indiana, and A. lived with him. Cathy and Joe lived with Cathy's mother in Illinois. At times, Cathy stayed with Harman, who lived with his mother in Illinois. Cathy and Harman also stayed sometimes with Cathy's friend, Lori Jones (" Jones" ), and Jones's fiancé, Kevin Hanshew (" Hanshew" ), who lived in Highland, Indiana.

On May 31, 2011, Harman was doing yard work for Hanshew and Jones at their

Page 213

house in Highland. That afternoon, while Jones was out running an errand, Harman asked Hanshew to drive him to Hammond. Harman directed Hanshew on where to drive and had him park in an alley near Jenkins's house. Harman told Hanshew that he would be gone " a couple of minutes." (Tr. 135). Hanshew waited twenty minutes and then left because he was hot.

During this time, Harman went to Jenkins's house and asked to speak to him about Jenkins's older son, Joe. Jenkins invited Harman in, and they sat at the kitchen table. As they were talking, forty-seven-year-old Harman " sprung out with his left hand" and hit seventy-seven-year-old Jenkins in the face, knocking off Jenkins's glasses and toupee. (Tr. 313). Harman then started " beating" Jenkins. (Tr. 313). As Jenkins was " slumped down . . . against the wall and the table," Harman " busted" a " heavy duty" wooden chair over Jenkins. (Tr. 314). When Jenkins tried to get off the ground, Harman repeated, " lay there and die, you son of a bitch, you're dead, you're dead" and " [l]ay there and die, you son of a bitch, you're worth more to us dead than you are alive." (Tr. 314). Harman continued to hit and kick Jenkins. Then, as Jenkins was trying to get up, Harman " slic[ed]" Jenkins's throat with some sort of sharp object. (Tr. 315). Harman cut Jenkins's throat with such force that he cut " through skin, muscle and into [his] thyroid cartilage." (Tr. 92). As Harman cut him, Jenkins asked Harman, " Red what the F are you doing[?]" (Tr. 315). Jenkins saw that his " blood was shooting everywhere" and heard Harman repeating, " you're dead, you son of a bitch, lay there and die." (Tr. 315). Jenkins then lost consciousness.

Thereafter, Harman called Hanshew, who was " almost halfway home" to Highland, and asked Hanshew to pick him up. (Tr. 137). As Hanshew drove on Oakdale Avenue, Hanshew saw Harman " beating and kicking" an older man on a porch. (Tr. 138). When Hanshew saw that the man being beat had " blood all over" him, Hanshew kept driving and returned to his house. (Tr. 139). Harman then called Jones, yelling that Hanshew had left him, and asked her to pick him up in Hammond. After Jones ...


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