MAY, Judge.
Quintez Deloney appeals his convictions of and sentences for Class A felony attempted robbery resulting in serious bodily injury
We find the trial court erred in admitting DNA evidence, but affirm Deloney's conviction of and sentence for Class A felony burglary resulting in bodily injury, and remand to the trial court to reduce his conviction of and sentence for attempted robbery from a Class A felony to a Class C felony.
On January 22, 2007, Lewis James was shot and killed. The evidence at the crime scene included a cell phone and a red hat. Deloney and Lance Douglas were arrested three weeks later after it was discovered the cell phone at the scene belonged to Douglas and Deloney allegedly had bragged about his involvement in the crime. The State charged Deloney with Class A felony attempted robbery resulting in serious bodily injury, Class A felony burglary resulting in bodily injury, and murder.
At trial, the State presented evidence and expert testimony, over Deloney's objection, from DNA technician Amy Winters regarding DNA collected from the red hat found at the scene. She testified the sample contained DNA from two or three people, which made it impossible for her to
Following a jury trial, Deloney was acquitted of murder, but convicted of Class A felony attempted robbery resulting in serious bodily injury and Class A felony burglary resulting in bodily injury. The court sentenced him to fifty years for Class A felony attempted robbery resulting in bodily injury, and thirty years for Class A felony burglary resulting in bodily injury, with his sentences to be served consecutively for an aggregate sentence of eighty years.
A trial court has broad discretion in ruling on the admissibility of evidence, and on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind.Ct.App.2000). When reviewing a decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the decision. Id. A claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected. Ind. Evidence Rule 103(a). In determining whether error in the introduction of evidence affected a defendant's substantial rights, we assess the probable impact of the evidence on the jury. Sparkman, 722 N.E.2d at 1262.
To be admissible at trial, evidence must be relevant, that is, it must have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid. R. 401. Evidence which is not relevant must be excluded. Evid. R. 402. The admission of expert testimony about DNA evidence is governed by Evid. R. 702:
DNA expert Amy Winters
At trial, Winters testified she could not exclude Deloney or Douglas as one of the people who deposited DNA on the red hat, but neither could she include them: "there just was not enough information for me to say that they [Deloney and Douglas] are contributors." (Id. at 650.) She further testified she could not calculate the statistical significance of any matches between Deloney's profile and the DNA profiles found on the hat because the mixed sample did not allow for statistical analysis; thus, she could not calculate the probability the sample on the hat from the crime scene had or had not come from Deloney.
DNA evidence is admissible in Indiana when the DNA analysis indicates a defendant's profile is consistent with DNA found at the crime scene because such evidence has high probative value. See, e.g., Smith v. State, 702 N.E.2d 668 (Ind. 1998). However, we have not addressed the admissibility of DNA evidence when— as in this case—a defendant could not be excluded from a possibly infinite number of people matching the crime-scene DNA and the DNA expert cannot offer a statistical probability whether the crime scene DNA came from the defendant. We therefore look to decisions from our sister states for guidance regarding the admissibility of DNA evidence in this circumstance.
The reliability of techniques to procure and analyze DNA evidence is evolving, and states have responded differently to the admissibility of less-than-exact results. There seem to be three approaches, which we summarize as: (1) admissibility without statistical data if no match is found,
The third approach, which requires accompanying statistical data for DNA evidence to be admissible, comports best with our existing law regarding admissibility of evidence. For example, in Commonwealth v. Mattei, 455 Mass. 840, 920 N.E.2d 845 (2010), the Massachusetts Supreme Court held it was reversible error to admit expert testimony that the defendant could not be excluded as a potential source of
In the instant case, Winters was unable to exclude Deloney as a contributor to the DNA profile on the hat, and she was unable to give any statistical analysis of the probability of a match. Therefore, her testimony could not assist the jury in understanding the evidence or make the existence of some fact more probable or less probable. See Tester, 968 A.2d at 907. Thus, the DNA evidence and Winters' testimony lacked relevancy and should not have been admitted by the trial court.
Even though the trial court abused its discretion by admitting the DNA evidence and corresponding testimony, we need not reverse Deloney's conviction if the error was harmless. An error in the admission of evidence is harmless if the conviction is supported by such substantial independent evidence of guilt that there is no substantial likelihood that the impermissible evidence contributed to the conviction. Gonzalez v. State, 929 N.E.2d 699, 702 (Ind.2010). The State presented evidence Deloney had bragged on multiple occasions about his involvement in the crime, was seen near the scene of the crime on the night of the crime, and had stopped calling the cell phone Douglas dropped at the crime scene. Those pieces of evidence provide substantial independent evidence of guilt that leaves us without doubt that the jury would have convicted Deloney without the impermissible DNA evidence. There existed substantial independent evidence of Deloney's guilt, and thus the trial court's error in admitting the DNA evidence was harmless.
Deloney's convictions of two Class A felonies, when each crime was elevated to a Class A felony based on the same serious bodily injury, i.e., James' death, subjected him to double jeopardy. See Smith v. State, 872 N.E.2d 169, 176 (Ind.Ct.App.2007) ("if the same bodily injury was used to enhance Smith's conviction of burglary to a Class A felony as was used to enhance his conviction of robbery to a Class A felony, entering a judgment of conviction for both counts would be improper"), trans. denied. Deloney argues his Class A felony attempted robbery conviction should be reduced to a Class C
The State concedes Deloney's Class A felony attempted robbery conviction should be reduced, but argues it should be reduced only to a Class B felony. The record presented to us does not permit us to reduce his conviction to a Class B felony. A person may be convicted of Class B felony robbery if the State proves either "bodily injury" to the victim or the defendant was "armed" with a deadly weapon. See Ind.Code § 35-42-5-1 ("the offense is a Class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than the defendant"). The record before us does not indicate the jury determined Deloney was armed with a weapon.
Deloney challenges his sentence as both an abuse of discretion and as inappropriate in light of his character and the nature of his offense. Because we reverse and remand for the trial court to modify Deloney's conviction of and sentence for attempted robbery, we need not evaluate the appropriateness of an aggregate sentence that no longer exists. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008) ("appellate review should focus on the forest—the aggregate sentence— rather than the trees—consecutive or concurrent, number of counts, or length of sentence on any individual count").
Nevertheless, we can consider whether the trial court abused its discretion when determining the mitigating and aggravating factors relevant to Deloney's sentence. Sentencing decisions are within the trial court's discretion. Anglemyer v.
The trial court considered the following aggravating factors when sentencing Deloney: "the harm suffered by the victim was significant and greater than the elements necessary to prove the commission of the crime," (Tr. at 2093), Deloney's criminal history, and the victim's mental infirmity at the time of the crime.
Deloney argues the consideration of the circumstances surrounding James' death was improper, as he was acquitted of James' murder. However, his acquittal does not preclude the trial court from using the circumstances of James' death as an aggravating factor when determining his sentence for the other two crimes. In Smith, we held Smith's acquittal of attempted murder, based explicitly on an allegation Smith shot the victim, precluded the State from using the allegation of a shooting to elevate the robbery or burglary charge, when the jury found Smith guilty of those charges based only on an injury inflicted by a blow to the victim's head. Smith, 872 N.E.2d at 177. In the instant case, the jury convicted Deloney of enhanced versions of robbery and burglary based on the serious bodily injury sustained by James. Therefore, this case is distinguishable from Smith, and the court did not abuse its discretion by considering the circumstances surrounding James' death as an aggravating factor during sentencing. See, e.g., Anglemyer, 868 N.E.2d at 492 (using seriousness of crime as a proper aggravator).
The trial court also considered Deloney's criminal history to be an aggravating factor. The trial court found Deloney's past adjudications of delinquency for acts that would have been resisting law enforcement and theft "obviously had no deterrent effect," (Tr. at 2095), and while his criminal history was somewhat brief, it "has quickly escalated in seriousness and in violence." (Id.) A defendant's criminal history is a valid aggravating factor in sentencing. Rutherford v. State, 866 N.E.2d 867, 874 (Ind.Ct.App.2007). Thus, we cannot find an abuse of discretion by the trial court in considering Deloney's criminal history as an aggravating factor in determination of his sentence.
Finally, the trial court found the victim's mental infirmity to be an aggravating factor: "... the victim was mentally infirm. And the reason I bring this up is that granted, the victim induced his state of intoxication himself, but the fact is you knew it, and your plan was to take advantage of it." (Tr. at 2096.) Deloney
In Scheckel v. State, 620 N.E.2d 681 (Ind.1993), our Indiana Supreme Court held the trial court erred by finding an aggravating factor in the victim's mental infirmity. That trial court had found, "the victim was in a physically or mentally infirm state in that he was asleep at 3:00 a.m. and had a blood alcohol content of .18 percent." Id. at 684. However, while the record did not contain any evidence regarding the victim's exact blood alcohol content, it did contain evidence the defendant and victim had scuffled in the moments leading up to the murder, which indicated the victim had not been asleep when the murder occurred. Thus, our Indiana Supreme Court held, "[b]ecause the evidence fails to support the trial court's finding that the victim was in a mentally or physically infirm state due to sleep or blood alcohol content, it was error to find an aggravating circumstance." Id. at 684.
In the instant case, there was testimony that James was intoxicated the night of his murder. (See Tr. 1163, 1174-75.) However, witness testimony also indicates James ran upstairs to flush drugs upon hearing loud knocks at the door because James believed the police had arrived, when in fact Deloney and Douglas had arrived to rob him. (Id. at 1185.) Thus, based on the Scheckel reasoning, James was not "mentally infirm" for the purposes of Ind. Code § 35-38-1-7.1(b)(6), and his mental state could not be used as an aggravator in sentencing Deloney.
However, the error was harmless because we believe even without this aggravator the court would have imposed the same or a similar sentence for Class A felony burglary. Deloney was sentenced to thirty years for Class A felony burglary resulting in serious bodily injury, which is the advisory sentence. Ind.Code § 35-50-2-4. The trial court properly found aggravators in the harm suffered by the victim and Deloney's criminal history. The trial court also found Deloney's age, lack of direction, and lack of father figure to be mitigating circumstances. We hold the finding the victim's mental infirmity was an aggravating factor was harmless because the court would have imposed the same sentence. Roney v. State, 872 N.E.2d 192 (Ind.Ct.App.2007) (trial court's abuse of discretion in considering Roney's substance abuse as an aggravating circumstance was harmless error because his sentence remained the same based on the weighing of other aggravators and mitigators). Even though we hold the error was harmless, we remand to the trial court should they wish to revise Deloney's sentence
We hold the trial court abused its discretion in its admission of the DNA evidence, but the error was harmless because there was substantial independent evidence supporting Deloney's conviction. Thus, we affirm his conviction of and sentence for Class A felony burglary. To prevent Deloney's exposure to double jeopardy, we vacate his conviction of Class A felony robbery and remand for the court to reduce his conviction of robbery to a Class C felony. On remand, the court should enter a sentence for Class C felony robbery and consider whether it wishes to shorten Deloney's sentence for burglary based on our holding the court erred by finding an aggravator in James' alleged mental infirmity at the time of the crime.
Affirmed in part, reversed in part, and remanded in part.
BAILEY, J., and CRONE, J., concur.
