Deandre Chavez Little, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Case Summary

[1] Deandre Little appeals his convictions for unlawful possession of a firearm by a serious violent felon, a Level 4 felony, and domestic battery, a Level 6 felony, claiming that the trial court abused its discretion in denying his motion for a continuance, that it was error to try him in absentia, and that the evidence was insufficient to support the firearm conviction. Little also contends that his sentence is inappropriate in light of the nature of his offenses and character.

[2] We affirm.

Facts and Procedural History

[3] Little and C.N.—the parents of two small children—were in an “on-and-off” relationship. Transcript Vol. I at 175. On the morning of October 28, 2022, Little drove to C.N.’s apartment in Greenwood where she and the children were living. When Little arrived, C.N. was talking on the phone with another man. Little became angry, grabbed C.N.’s phone, and demanded her passcode. C.N. refused, and the two began arguing in the hallway.

[4] C.N.’s neighbor, Desiree Gramlin, heard the two shouting. She noticed that C.N. was crying and appeared frightened and disheveled. Little and C.N. continued to argue and at some point, Little shoved C.N., grabbed her arm, and shouted, “this is why you get your ass beat.” Id. at 135. Little then pinned C.N. against the wall, placed his arm around C.N.’s neck, and choked her. C.N. thought she was losing consciousness because her body started to go limp. Little released C.N. and pulled a handgun from his backpack.

[5] Gramlin saw Little holding the gun, wave it around, and strike C.N.’s television and other objects in the apartment. At that point, Gramlin feared for her safety, so she called 911 and reported that Little had a gun. Shortly thereafter, Little fled the scene. When C.N. returned to her apartment, Gramlin observed that C.N. “was very red and poofy in the face” and that she had bruising on her arms and a busted lip. Id. at 139.

[6] Greenwood Police Department Officer Jacob Ponder was dispatched to the apartments and met with C.N. in the parking lot. C.N. was barefoot, breathless, and crying. C.N. told Officer Ponder that she had been involved in a domestic dispute with Little. Officer Ponder noticed some red marks on C.N.’s neck, approximately two inches above her collarbone. C.N. reported the make and model of Little's vehicle to Officer Ponder, and she told him that Little “has a gun on him.” Id. at 169-70. C.N. further explained that Little pulled the gun out during their fight. C.N. then provided Officer Ponder with a photograph of Little.

[7] At some point, Officer Ponder saw Little enter a vehicle in the apartment complex parking lot. A chase ensued, and Little evaded capture. Thereafter, a warrant was issued, and Little was eventually apprehended. Although Little was not in possession of a handgun when he was arrested—nor was one subsequently recovered—the State charged Little with Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 felony domestic battery, and Level 6 felony strangulation, on January 9, 2023. Little was placed on home detention with GPS monitoring during the pendency of the proceedings.

[8] On July 13, 2023, Little appeared with counsel for a pre-trial conference. At that time, the trial court ordered Little to appear for an additional pre-trial conference on August 3, 2023, and for a jury trial on August 15, 2023. The trial court explained to Little that if he failed to appear, a warrant would be issued and if he missed the trial date, the trial could commence without him. Little acknowledged that he understood, and stated, “yeah. Thanks.” Id. at 26.

[9] Later that day, Officer Taylor Logan—a field officer and special deputy with Johnson County Court Services—received an electronic alert that Little had interfered with his GPS monitor. The GPS device showed a location at the Home Depot on Southport Road in Indianapolis. Although Officer Logan went to that location, he could not find Little or the GPS device. Logan and several other officers made further attempts to contact Little but were unsuccessful.

[10] Little was charged with misdemeanor criminal mischief and felony escape, and he did not appear for the August 3, 2023 pre-trial conference in this case. Little's defense counsel moved to continue the trial date and objected to a jury trial in absentia, but the trial court denied that request. A final pre-trial conference was conducted on August 10, 2023, at which Little failed to appear. Little's counsel informed the trial court that she advised Little via email to appear for the pretrial conference and the August 15th jury trial. The email further explained that “both hearings would [likely] go with or without [Little's] presence.” Id. at 37. Counsel further stated that she left a voicemail at Little's “last known number,” informing him of the court dates and his required presence. Id. at 38. The trial court denied Little's second request to continue the trial.

[11] Little was tried in absentia on August 15, 2023. During the second phase of the trial, the State presented evidence that Little was convicted of burglary in 2009. Following the presentation of evidence, the jury found Little guilty of the firearm and domestic battery charges. The strangulation count was dismissed, as the jury was unable to reach a verdict on that offense.

[12] Little was apprehended and returned to court for sentencing on October 19, 2023. At the sentencing hearing, the presentence investigation report (PSI) showed that Little amassed juvenile adjudications for criminal recklessness, auto theft, and criminal trespass, had those offenses been committed as an adult. Little also had prior convictions as an adult for burglary and resisting law enforcement.

[13] The PSI also reflected that in 2019, Little pled guilty to unlawful possession of a firearm by a serious violent felon in federal court in exchange for supervised release. Following his release, Little was arrested five more times on charges that included two counts of domestic battery involving C.N. The domestic battery charges were dismissed, however, because after they were filed, C.N.’s car was shot at and her house was burglarized, causing her to fear for her and the children's lives.

[14] During the sentencing hearing, C.N. testified that Little had pressured her at his initial hearing to “take back everything [she] said about everything that happened that day.” Transcript Vol. II at 10. C.N. further claimed that Little had threatened her and “[took] away every single electronic in [her] house.” Id. C.N. described an incident in August or September of 2023 where Little chased her down the hall at her residence with a handgun. C.N. also stated that she did not attend Little's trial because he had threatened to kill her if she ever went back to court.

[15] Little acknowledged at the sentencing hearing that the trial court had informed him of the jury trial date, and that the trial would proceed if he failed to appear. Little then offered the following explanation as to why he did not appear:

I was in circumstances where I couldn't – with bein’ in the household that I was in—like, I had to get outta there and I felt like—only way—I just wanted to get away from my problems. I was overwhelmed with a lot of stuff. Work, kids, this case. Uh, the pending divorce, tryin’ to get the divorce done. I just had a lot goin’ on. ․ I was trying to get away from everything.

Id. at 8.

[16] The trial court identified Little's criminal history and his failure to appear for trial as aggravating circumstances. No mitigating circumstances were found. The trial court sentenced Little to eight years for unlawful possession of a firearm by a serious violent felon and two years for Level 6 felony domestic battery. The sentences were ordered to run concurrently for an aggregate term of eight years. Little now appeals.

Discussion and Decision

I. Motion for Continuance

[17] Little argues that the trial court abused its discretion in denying his motion to continue the trial. Little asserts that his motion should have been granted because he had not been in contact with his defense counsel and, therefore, the case “could not be properly prepared.” Appellant's Brief at 16.

[18] Unless otherwise provided by statute (which Little does not argue), the decision to grant or deny a request for a continuance falls within the discretion of the trial court and will be reversed only for an abuse of discretion. Ramirez v. State, 186 N.E.3d 89, 96 (Ind. 2022). An abuse of discretion occurs only where the decision is clearly against the logic and effect of the facts and circumstances. Jackson v. State, 758 N.E.2d 1030, 1033 (Ind. Ct. App. 2001), trans. denied. A defendant cannot establish an abuse of discretion without showing that he was prejudiced by the court's ruling. Harris v. State, 659 N.E.2d 522, 527 (Ind. 1995). A defendant must make a “specific showing” as to how additional time would have aided his defense or how he was prejudiced by the trial court's denial of a continuance. Jones v. State, 701 N.E.2d 863, 871 (Ind. Ct. App. 1998) (emphasis added). To prove prejudice, a defendant must make specific showings why more time was necessary, how it would have benefited the defense, and that the defendant was not at fault. Ramirez, 186 N.E.3d at 96. Continuances allowing more time for preparation are generally disfavored in criminal cases. Olson v. State, 563 N.E.2d 565, 569 (Ind. 1990).

[19] In this case, Little's counsel requested a continuance because she had not been in communication with Little and, therefore, could not adequately prepare his case. Little's counsel, however, failed to specifically indicate how her preparation was hindered, how additional time would have aided Little's defense, or how the denial of a continuance would have prejudiced him. Moreover, the record demonstrates that the trial court advised Little of the August 10, 2023 pre-trial conference and the August 15, 2023 trial date. Little acknowledged that his presence in court was required and that the trial could proceed in his absence. In light of these circumstances, we conclude that the trial court did not abuse its discretion in denying Little's motion to continue the trial.

II. Trial in Absentia

[20] Little argues that the trial court erred in trying him in absentia. Specifically, Little maintains that he did not waive his right to be present at trial because “the record is ambiguous as to whether [he] knew” of his scheduled trial date. Appellant's Brief at 18.

[21] In general, a criminal defendant has a right to be present during his trial under the Sixth Amendment to the United States Constitution and under Article I, Section 13 of the Indiana Constitution. Fennell v. State, 492 N.E.2d 297, 299 (Ind. 1986). On the other hand, a defendant may waive his right to be present at trial in a non-capital case, so long as the waiver is voluntary, knowing, and intelligent. Ellis v. State, 525 N.E.2d 610, 611 (Ind. Ct. App. 1987). A trial court may presume that a defendant has waived his right to be present and may try him in absentia upon a showing that the defendant knew the scheduled trial date but failed to appear. Soliz v. State, 832 N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied. We will consider the entire record to determine whether the defendant voluntarily, knowingly, and intelligently waived his right to be present at trial, and we review the trial court's decision to continue in a defendant's absence for an abuse of discretion. See Reel v. State, 567 N.E.2d 845, 846 (Ind. Ct. App. 1991).

[22] Contrary to Little's contention that he was not aware of his scheduled trial date, we note the following exchange that occurred at the July 13, 2023 pretrial hearing:

THE COURT: Mr. Little is here today appearing in person and by counsel. Um, we have a pre-trial today, August 15 trial date.

․

THE COURT: Deandre, you're under a continuing order to appear on the 15th for ․ trial ․ [and] to appear on August the 3rd at 1:30. As always, if you fail to appear, a warrant will issue and if you miss the trial date, we can conduct the trial without you, okay?

․

DEFENDANT: Yeah. Thanks.

Transcript Vol. I at 26 (emphases added).

[23] Even though Little knew of the trial date, he failed to appear for trial and did not contact either the court or defense counsel and provide a reason for his absence. And at the final pre-trial conference on August 10, 2023, Little's counsel explained to the trial court:

My office [․] sent an email to [Little] advising him that he was to be in court today, albeit we told him 9:00. He wasn't here at 9:00 either. And we advised him that he was scheduled for jury on August 15th at 8:00. And we told him that both of these hearings would go with or without, uh, his presence, in all likelihood. And ․ we highly advised him to ․ appear in court ․ or to contact our office immediately. And on that same date, we attempted to call the client ․ at the last number that we had. Someone unknown to us answered the phone and immediately hung up. We tried ․ to call the second time. It went directly to voicemail. We left a voicemail that was the same message as above ․ that the dates are set. And ․ we've heard nothing.

Id. at 37-38.

[24] In light of Little's knowledge of the trial date, and the numerous notifications sent to him by his counsel, the trial court properly presumed that Little's absence from his trial was knowing and voluntary and could proceed with the trial in absentia. See, e.g., Maez v. State, 530 N.E.2d 1203, 1206 (Ind. Ct. App. 1988) (the continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver of the right to be present), trans. denied.

[25] Finally, we note that the trial court afforded Little the opportunity to explain his absence from trial. At the sentencing hearing, Little stated that he did not appear for trial because he “wanted to get away from [his] problems ․ [and] was trying to get away from everything,” including this case. Transcript Vol. II at 8. In sum, Little has failed to show that the trial court's decision to try him in absentia was an abuse of discretion.

III. Sufficiency of the Evidence

[26] Little claims that the evidence was insufficient to support his conviction for possession of a firearm by a serious violent felon. Specifically, Little maintains that the conviction must be set aside because a firearm was never recovered and the evidence failed to show the “make, model, or manufacturer of the gun” that he allegedly possessed. Appellant's Brief at 13.

[27] When reviewing a challenge to the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we view the evidence in a light most favorable to the judgment, examining whether a reasonable factfinder could have found the defendant guilty beyond a reasonable doubt. Id. So long as there is substantial evidence of probative value supporting each element of the offense, we will affirm. Lehman v. State, 203 N.E.3d 1097, 1104 (Ind. Ct. App. 2023), trans. denied.

[28] Circumstantial evidence alone may support a conviction. Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App. 2016), trans. denied. And it is not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Stubbers v. State, 190 N.E.3d 424, 429 (Ind. Ct. App. 2022), trans. denied. Finally, we note that a conviction for a possessory offense does not depend on catching a defendant “red-handed.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

[29] To convict Little of unlawful possession of a firearm by a serious violent felon as a Level 4 felony, the State was required to prove that Little had been convicted of a serious violent felony and that he knowingly or intentionally possessed a firearm. See Ind. Code § 35-47-4-5(c). “Serious violent felon” means a person who has been convicted of committing a serious violent felony. I.C. § 35-47-4-5(a). “Serious violent felony” includes burglary, for which Little was convicted in 2009. See I.C. § 35-47-4-5(b)(19).

[30] The sole element of the charged offense that Little challenges on appeal is his possession of a firearm. While Little claims that the conviction must be set aside because no firearm was recovered or accurately identified, we note that Gramlin unequivocally testified at trial that she saw Little holding a handgun during the October 28 altercation. C.N. reported to Officer Ponder that Little “has a gun on him,” and Gramlin corroborated that statement and reported to the 911 dispatcher that Little was armed with a handgun. Transcript Vol. I at 170. Gramlin further testified that she saw Little strike a television and other objects in the apartment with the gun and “wave it around.” Id. at 137. Gramlin identified the gun as a firearm because she owned guns, grew up around them, and was previously employed at a firearms store. Gramlin also testified that she was familiar with pellet and BB guns and did not believe that the weapon Little held was either of those.

[31] In sum, Little's arguments amount to impermissible requests to reweigh the evidence and judge the credibility of the witnesses. From the evidence at trial, the jury could reasonably conclude beyond a reasonable doubt that Little possessed a firearm. Thus, Little's sufficiency of the evidence challenge fails.

IV. Sentencing

[32] Little claims that his sentence is inappropriate. Specifically, he maintains that we must revise his sentence because, when considering the nature of the offense and his character, “less executed time is warranted.” Appellant's Brief at 26.

[33] Our standard of review for inappropriate sentence claims is well-settled:

Indiana Appellate Rule 7(B) gives us the authority to revise a sentence if it is inappropriate in light of the nature of the offense and the character of the offender. Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record. The appellant bears the burden of demonstrating [a] sentence [is] inappropriate.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020), trans. denied.

[34] When considering the nature of the offense, we first look to the advisory sentence for the crime. McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020). When the trial court imposes a sentence greater than the advisory term, we consider whether there is anything more egregious about the offense committed by the defendant that distinguishes it from the typical offense considered by the General Assembly when it set the advisory sentence. Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021).

[35] A Level 4 felony is punishable by a term of imprisonment between two to twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5. The sentencing range for a Level 6 felony is between six months to two and one-half years, with a one-year advisory sentence. I.C. § 35-50-2-7(b). Here, Little faced a possible maximum sentence of fourteen and one-half years. He was sentenced to an aggregate term of eight years, which is significantly less than the maximum sentence that could have been imposed.

[36] As for the nature of the offense, the evidence at trial demonstrated that Little, a serious violent felon, appeared at C.N.’s residence armed with a handgun. Upon discovering that C.N. was on the phone with another man, Little attacked her as their two small children watched. Little shoved C.N., grabbed her wrists, choked her, and pulled her into the apartment as she was attempting to leave. He then pulled out a handgun, waved it around, threatened C.N., and struck various objects in the apartment with it. Little's actions frightened C.N. and caused her to cry. Little also showed a complete lack of restraint and sensitivity by committing these actions in front of his two small children.

[37] Little's behavior was far worse than that contemplated by the statute criminalizing possession of a firearm by a serious violent felon because he also used the handgun to intimidate and threaten C.N. Thus, we cannot say that Little's sentence is inappropriate when considering the nature of his offenses.

[38] Next, when assessing Little's character, we engage in a broad consideration of his qualities. Madden, 162 N.E.3d at 564. A defendant's character is shown by his life and conduct. Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020). Throughout the pendency of this case, Little made extraordinary efforts to avoid responsibility for his actions. For instance, after the July 13, 2023 pretrial conference, Little destroyed his GPS monitor and absconded from the jurisdiction until his arrest three months later. And notwithstanding Little's knowledge of his trial date, he intentionally failed to appear because he wanted to “get away from [his] problems” and was “overwhelmed with a lot of stuff.” Transcript Vol. II at 8. Little's intentional disregard for the court's orders and his abscondence from the jurisdiction are indicative of his general disregard for the law and his poor character.

[39] A defendant's criminal history is also a relevant factor in analyzing character. The significance of such varies based on the “gravity, nature, and number of prior offenses in relation to the current offense.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016). The record shows that Little amassed several juvenile delinquency adjudications and adult criminal convictions for burglary and resisting law enforcement. Little committed the instant offenses after pleading guilty to being a serious violent felon in federal court in 2019. Following that conviction, Little was arrested several more times for battering C.N., who testified at Little's sentencing hearing that those charges were dismissed because her “car was shot up and [her] house was broken into so [she] was afraid for [her] life and [her] kids’ life.” Transcript Vol. II at 11. Little also continued to threaten C.N. during the pendency of this case.

[40] In sum, Little's juvenile and criminal history—including the commission of additional crimes during the pendency of this case—absconding from the jurisdiction and disregarding the court's authority, and threatening others to avoid prosecution, all demonstrate Little's poor character. Given the nature of Little's offenses and his character, we conclude that his sentence is not inappropriate.

[41] Judgment affirmed.

Bailey, J. and Mathias, J., concur.

Altice, Chief Judge.

Judges Bailey and Mathias concur.