ANTHONY P. SHARP, JR., Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
APPEAL FROM THE ELKHART CIRCUIT COURT. The Honorable Terry C. Shewmaker, Judge. Cause No. 20C01-1210-MR-4.
ATTORNEY FOR APPELLANT: DONALD R. SHULER, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, IAN MCLEAN, Deputy Attorney General, Indianapolis, Indiana.
DARDEN, Senior Judge. BROWN, J., and PYLE, J., concur.
DARDEN, Senior Judge
STATEMENT OF THE CASE
Anthony P. Sharp, Jr., appeals from his conviction of and sentence for felony murder, contending that there was insufficient evidence to support his conviction, that the felony murder statute was improperly applied in this situation, and that his sentence is inappropriate in light of the nature of the offense and the character of the offender. Consistent with our standard of review, we affirm Sharp's conviction. However, we reverse the trial court's sentencing decision and remand with instructions to modify Sharp's sentence.
FACTS AND PROCEDURAL HISTORY
On the morning of October 3, 2012, sixteen-year-old Jose Quiroz was at his residence at 1922 Frances Avenue in Elkhart, Indiana with sixteen-year-old Blake Layman, and seventeen-year-old Levi Sparks. The three decided to commit a burglary and explored potential homes to burglarize in the neighborhood, with a preference for unoccupied homes. It was discussed that burglarizing occupied homes was more dangerous because the presence of the homeowner could result in injuries and more severe legal consequences. Quiroz, Layman, and Sparks then walked from Quiroz's residence to Tracy Lehman's house at 1904 Frances Avenue. Lehman, who was upstairs taking a bath, heard a knock on the front door of her house. Sparks was later identified as the person who had knocked on her door. Lehman heard her dogs bark and the sound of one or more people pacing on her front porch.
Lehman then heard a second knock on her door while her dogs continued to bark, and after some time, heard the sound of people leaving her front porch. Sparks told Quiroz that the home was not a suitable target for the burglary because of the presence of the dogs. They next determined that another home was unsuitable as a burglary target because someone was home.
Michael Couch lived at 1920 Roys Avenue, an address which was on the same block and slightly southwest of Rodney Scott's house, which ultimately was burglarized by the group. At approximately 2:20 p.m., Couch saw two people walk through the alley separating his house from Scott's, before they disappeared from Couch's view behind a garage. They reappeared walking in the alley. They left the alley and walked between Scott's house, located at 1919 Frances Avenue, and the house of Scott's next-door neighbor, Julia Leazenby, who lived at 1913 Frances Avenue.
Scott, who had been laid off from his regular employment, had awakened that morning at approximately 6:00 a.m. He watched television in the downstairs portion of his two-story home until 9:00 a.m. when he became sleepy and returned to his bedroom upstairs. Scott used a powered breathing mask to sleep. The construction of Scott's house was such that anyone in the upstairs portion of the house could not always hear someone knocking on the front door. The doorbell at Scott's house was not functioning, but he had installed a wireless doorbell. The wireless doorbell, however, only chimed on the first floor of his residence.
Quiroz, Layman, and Sparks chose Scott's house as the target for the burglary. Subsequently, Quiroz called Sharp, who had just turned eighteen years old on June 6, 2012, and his cousin, Danzele Johnson, to " help . . . get into the house." Tr. p. 934. The group met at Quiroz's residence where they spent some time socializing. They were still at the house when Quiroz's mother, Rebecca McKnight, left to meet a friend for lunch. McKnight recalled that they also spent some time together on the porch of the house. Sharp later told police officers that during this meeting at Quiroz's house, Quiroz and Johnson discussed where the money was and where the police were. There is no evidence that the dangers associated with burglarizing homes was discussed in Sharp's presence. The group then left to burglarize Scott's house. Sparks told police officers that he remained outside Scott's house with a cell phone in the event that the police or a visitor arrived at the scene. Quiroz also had a cell phone with him at that time.
Scott awoke around 2:30 p.m. Scott later recalled, " As soon as I sat up on the side of the bed, there was this boom, and my whole house just shook." Id. at 1067. Scott heard a second loud booming noise and felt another vibration. Quiroz, Layman, Johnson, and Sharp had entered Scott's house by kicking open the rear door to Scott's kitchen, a door which Scott kept locked when he was sleeping. The force used was such that it ripped away enough of the door's frame to allow entry through the doorway and into the kitchen. The group then began looking for items to steal from Scott's home. A knife block containing knives was located in the kitchen. Scott's watch and wallet, which were also located near the knife block, were taken by the burglars.
As Scott picked up his cell phone, he remembered that a burglary had occurred in the neighborhood earlier that week.
He retrieved a handgun from his bedroom and opened the bedroom door. Scott, who weighed approximately 270 pounds, decided to proceed by loudly running down the wood stairs, to the first floor in case there were burglars inside his home, hoping that they would hear him and flee. He did so and walked through the living room of his house to determine if anyone was on the first floor.
As Scott reached the dining room, looking to one side, he saw someone in his kitchen turn and flee from the house through the kitchen's back door. Looking to the other side, Scott saw two burglars standing at the door to the bedroom adjacent to the dining room. Scott was between them and the kitchen exit door. Scott, who held his handgun at his side, feared that he might be hurt or killed, and did not know if the burglars were armed. He decided to frighten the burglars and cause them to remain in the bedroom before they could attack him and before the burglar who fled might return. Scott began firing his handgun, aiming low toward the floor. A subsequent examination of Scott's residence confirmed that the shots he fired struck several locations just above the level of the floor.
The two burglars in the bedroom fled into the bedroom's closet and closed the door behind them. Scott then called 911 and spoke with a dispatcher who informed him that police officers were en route to his location. The closet door then opened and Scott shouted, " Keep the door closed" and " Don't open up that door." Id. at 1080. The door opened a few moments later and Scott observed one of the burglars go to the floor. Quiroz told Scott that the burglar who had fallen to the floor, who was later identified as Johnson, had been shot. Scott, who had remained in contact with the police dispatcher, informed the dispatcher about the injury and requested an ambulance. At this point, Scott recognized Quiroz as a neighbor, later noting, " I watched him grow up. I watched his family move into that house." Id. at 1084. Scott had made reference to that fact to Quiroz at the time of the burglary, but Quiroz claimed that he was not from that area.
Scott observed a third male, who he had not seen before, emerge from the closet holding his leg and asking if he could sit on the bed. That male was later identified as Layman. Scott denied Layman's request, telling him to remain where he was. Quiroz poked his head out of the closet, but Scott told him to remain where he was. When the police arrived and entered Scott's house, Scott put his handgun down and told the officers, " They're right there in the bedroom by the closet." Id. at 1085.
Scott later recalled that Quiroz " flew out of the closet, pushed over the armoire that was in front of the window, went over the top of the two that was [sic] there on the floor, and just crashed through the window" of the bedroom. Id. The officer pursued Quiroz and the dispatcher told Scott to exit his house. Scott followed the dispatcher's instructions, and the instructions given by other officers on the scene. Officers then entered the house ...