Earon W. Ervin, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Earon W. Ervin, Jr., appeals his convictions of murder ¹ and Level 5 felony attempted robbery.² He presents three arguments, which we restate as:

1. Whether the State presented sufficient evidence he committed Level 5 felony attempted robbery;

2. Whether the State presented sufficient evidence to rebut his claim that he was not guilty of murder because he acted in self-defense; and

3. Whether his sixty-three-year sentence is inappropriate based on the nature of his offenses and his character.

We affirm.

Facts and Procedural History

[2] In late 2020, Ervin was in a romantic relationship with Taylor Heniff, and the two had a child together. The family lived in an apartment on Wallace Street in Indianapolis. In the early morning hours of December 1, 2020, Indianapolis Metropolitan Police Department (“IMPD”) officers responded to a report of shots fired near 19th Street and Dequincy Avenue. When they arrived at the scene, they saw a man, later identified as Adam Sayers, lying on the ground in front of 4836 E. 19th Street (“the 19th Street address”), which was near the Wallace Street property where Ervin and Heniff lived. Sayers had a handgun underneath him, and in his pocket were a cell phone and his wallet containing approximately $480 in cash. Sayers, who was dead, had gunshot wounds to his head and abdomen.³

[3] Around the same time, police received a call of a person with a gunshot wound at Community Hospital East, which was located approximately one mile from the 19th Street address where Sayers died. Police went to the emergency room and encountered Ervin, who had gunshots wounds on his chin and arm. Ervin told IMPD Officer William McMillan that a “[l]ight skinned black” man robbed him at his sister's apartment. (Ex. Vol. I at 71.) Ervin said the man took his money. Later in that conversation, Ervin told Officer McMillan that there were three people in the backseat of a car and the “guy who shot [him] ․ [was] in the backseat.” (Id. at 74.) Two weeks later, Ervin spoke with Detective Ryan Clark and told him someone named “John John” who was a “bigger dude, light skinned black male” robbed him “at the mailboxes in front of [his] sister's house.” (Tr. Vol. IV at 44.)

[4] As part of their investigation into Sayers's murder, police searched Ervin's cell phone, Sayers's cell phone, and Heniff's cell phone. On all three cell phones, police found an escort/prostitution ad with Heniff's phone number on it. When contacted at that number, Heniff had corresponded with potential customers via an application called TextNow. Ervin was able to see Heniff's TextNow interactions on his own phone.

[5] Sayers had contacted Heniff in response to the prostitution ad, and Sayers and Heniff negotiated services and payment. Sayers indicated he would meet Heniff at the 19th Street address. Heniff and Sayers also exchanged pictures, ostensibly so that they would be able to recognize one another. When Sayers arrived at the 19th Street address, he texted Heniff, who responded that she would be out shortly. There were no further messages on Sayers's phone.

[6] When searching Heniff and Ervin's phones, police also discovered a conversation from November 30, 2021, on the TextNow application between Heniff and Jaron Pridgen. In that conversation, Heniff and Pridgen discussed pricing for several sexual acts. Heniff told Pridgen he had to pay in cash. Pridgen arrived at the 19th Street address around 6:00 p.m. on November 30, 2023, and texted Heniff, but she did not respond. When police contacted Pridgen, he reported a man had arrived at the 19th Street address wearing a black “COVID mask ․ covering his face and mouth” (Tr. Vol. III at 73), pointed a gun at Pridgen, and told Pridgen to give him all his money. Pridgen surrendered the $200 that he brought to pay Heniff for prostitution and left the scene.

[7] During a search of the Wallace Street address, police found a black Covid mask like the one Pridgen told police had been worn by his robber. Police determined that Ervin had met Pridgen and Sayers at the 19th Street address instead of Heniff. Sayers had shot Ervin in the chin and arm, and Ervin had shot Sayers in the abdomen and head.

[8] On February 19, 2021, the State charged Ervin with murder of Sayers, felony murder of Sayers,⁴ Level 2 felony attempted robbery resulting in serious bodily injury of Sayers,⁵ and Level 3 felony armed robbery Pridgen.⁶ The trial court held Ervin's jury trial from March 12, 2024, to March 14, 2024. During trial, Ervin testified on his own behalf. He indicated he would often accompany Heniff when she engaged in prostitution, and he would “hold onto [their] money while she meets the guy and would kind of make sure they wouldn't overstay their welcome.” (Tr. Vol. IV at 12.) He also testified that he lied about the details of the crime when he talked to Officer McMillan at the hospital because he “was afraid to associate [himself] with the encounter that [he] had with Mr. Sayers.” (Id. at 29.) Ervin's attorney asked why he would lie about the incident when Sayers pulled a gun on him first and Ervin then fired back. Ervin answered, “I didn't know about self-defense at the time.” (Id.)

[9] The jury instructions included an instruction regarding self-defense. After deliberating, the jury returned guilty verdicts on murder, felony murder, and Level 2 felony attempted robbery. The jury returned a not guilty verdict for the Level 3 felony armed robbery charge involving Pridgen. Because of double jeopardy concerns, the trial court entered a conviction of murder but not felony murder, and it entered a conviction of Level 5 felony attempted robbery as a lesser-included offense of the Level 2 felony attempted robbery found by the jury. On April 4, 2024, the trial court held Ervin's sentencing hearing. The trial court found Ervin's criminal history and the fact that he was on pre-trial release for another crime when the instant offense occurred as aggravators. The trial court found a mitigator in Ervin's completion of classes while in jail. The trial court ordered Ervin to serve sixty years for murder consecutive to three years for Level 5 felony attempted robbery, for an aggregate sentence of sixty-three years.

Discussion and Decision

1. Sufficiency of the Evidence – Attempted Robbery

[10] Ervin argues the State did not present sufficient evidence to prove he committed Level 5 felony attempted robbery. When evaluating insufficient evidence claims, we must consider only evidence that supports the verdict and any reasonable inferences from that favorable evidence. Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). Evaluating witness credibility and deciding the weight of the evidence is left to the fact-finder. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). A conviction will be affirmed unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016).

[11] Robbery occurs when a person “knowingly or intentionally takes property from another person ․ (1) by using or threatening force on any person; or (2) by putting any person in fear[.]” Ind. Code § 35-42-5-1(a). A person attempts to commit a crime when he “acts with the culpability required” to commit the crime and “engages in conduct that constitutes a substantial step toward the commission of the crime.” Ind. Code § 35-41-5-1(a). In its charging information, the State alleged Ervin engaged in conduct that constituted a substantial step toward robbing Sayers by “luring Adam Sayers to an apartment building under the guise of prostitution[.]” (App. Vol. II at 38.) Ervin contends the State did not present evidence he lured Sayers to the 19th Street address because he had no part in the conversation between Heniff and Sayers that resulted in Sayers's arrival at the 19th Street address.

[12] The State presented evidence that Ervin knew Heniff engaged in prostitution and that Ervin could see the TextNow messages between Heniff and Sayers in which Heniff and Sayers discussed sexual acts and payment therefor. Like Pridgen, Sayers arrived expecting to meet Heniff, but he encountered Ervin instead. As he did with Pridgen, Ervin brought a gun to the meeting with Sayers. Thus, a reasonable jury could conclude from these facts that Ervin acted in concert with Heniff to lure Sayers to a location where Ervin could rob him. Ervin's argument that he was not involved in luring Sayers to the location where the crime occurred is an invitation for us to reweigh the evidence, which we cannot do. See Teising, 226 N.E.3d at 783 (appellate court cannot reweigh evidence or judge the credibility of witnesses). Based on the evidence most favorable to the jury's decision, we conclude the State presented sufficient evidence to prove Ervin committed Level 5 felony attempted robbery. See, e.g., Kerner v. State, 178 N.E.3d 1215, 1229 (Ind. Ct. App. 2021) (State presented sufficient evidence to prove Kerner committed attempted robbery because Kerner had a plan to rob the victim under the guise of a drug deal), trans. denied.

2. Self-Defense

[13] Ervin also argues the State failed to negate his self-defense claim beyond a reasonable doubt. Our standard of review for such claims is the same as our standard of review for other sufficiency-of-the-evidence issues. Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019). “We neither reweigh the evidence nor judge the credibility of witnesses. We will reverse a conviction only if no reasonable person could say that the State negated the defendant's self-defense claim beyond a reasonable doubt.” Id. (internal citation omitted).

[14] “Self-defense is a legal justification for an otherwise criminal act.” Stewart v. State, 167 N.E.3d 367, 376 (Ind. Ct. App. 2021), trans. denied. Indiana Code section 35-41-3-2(c) provides: “A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.” The use of deadly force is justified “if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.” Id.

[15] However, “a person is not justified using force if ․ the person is committing ․ a crime.” Ind. Code section 35-41-3-2(g). For the use of force to not be justified, there must be a “causal connection between the crime [committed during the confrontation] and the confrontation.” Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). The causal connection arises when the evidence shows that “but for the defendant committing the crime, the confrontation resulting in injury to the victim would not have occurred.” Id.

[16] Here, Ervin attempted to rob Sayers by working in concert with Heniff to lure Sayers to the 19th Street address under the guise that Heniff would perform sexual acts for money. The attempted robbery turned deadly when Sayers was also armed. If Ervin had not attempted to rob Sayers by taking a substantial step toward the crime, then the gun battle would not have occurred. We therefore hold the State presented sufficient evidence to rebut Ervin's claim of self-defense because Ervin's need to use force against Sayers directly resulted from his attempt to rob Sayers, and therefore, Ervin's use of force was not justified. See, e.g., Roche v. State, 690 N.E.2d 1115, 1124 (Ind. 1997) (“A person who kills while committing or attempting to commit a robbery is a person who kills while committing a crime and so the defense of self-defense is not available.”).

3. Inappropriate Sentence

[17] Ervin argues his sentence is inappropriate.⁷ Under Indiana Appellate Rule 7(B), a sentence may be revised if, “after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Sentencing is a function of the trial court, whose judgment “should receive ‘considerable deference.’ ” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023) (quoting Cardwell v. State, 895 N.E.3d 1219,1222 (Ind. 2008)). This deference can only be “ ‘overcome by compelling evidence portraying in a positive light the nature of the offense’ and ‘the defendant's character.’ ” Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Oberhansley, 208 N.E.3d at 1267). Appellate review of a sentence is “to leaven outliers, ․ but not to achieve the perceived ‘correct’ result in each case.” Nicholson v. State, 221 N.E.3d 680, 684 (Ind. Ct. App. 2023) (quoting Cardwell, 895 N.E.2d at 1225), trans. denied. The burden of proving a sentence is inappropriate falls to the defendant. Littlefield v. State, 215 N.E.3d 1081, 1089 (Ind. Ct. App. 2023), trans. denied.

[18] “Our analysis of the nature of the offense requires us to look at the nature, extent, heinousness, and brutality of the offense.” Pritcher v. State, 208 N.E.3d 656, 668 (Ind. Ct. App. 2023). As our Indiana Supreme Court has explained, “compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality)” may lead to a downward revision of the defendant's sentence. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). “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 a sentence deviates from the advisory sentence, “we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.” Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021).

[19] The sentencing range for murder is forty-five to sixty-five years, with an advisory sentence of fifty-five years. Ind. Code § 35-50-2-3(a). The sentencing range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). Ervin contends his sixty-three-year sentence is inappropriate based on the nature of his crime because, although Sayers's murder was “senseless[,]” Sayers was “shot twice and died quickly.” (Br. of Appellee at 39.) Ervin knew Sayers would have cash on him because he saw the communications between Heniff and Sayers wherein Heniff told Sayers that she required cash as payment for sexual favors. Ervin met Sayers when Sayers expected to meet Heniff. Ervin shot Sayers twice when attempting to rob him. While details of the attempted robbery may be unremarkable, the fact that Sayers's murder was, as Ervin acknowledges, “senseless” justifies his slightly aggravated sentence. See Merriweather v. State, 151 N.E.3d 1281, 1286 (Ind. Ct. App. 2020) (sentence above the advisory is not inappropriate based in part on the fact that the crime was senseless and, if not for the sentence cap in the plea agreement, “the nature of the offenses would warrant a sentence increase rather than a reduction”). Ervin's sentence was not inappropriate based on the nature of his offenses.

[20] “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Ervin argues his sentence is inappropriate based on his character because his criminal history is minor, he expressed remorse for the crime, and he completed several classes while incarcerated at the Marion County Adult Detention Center. Even though Ervin's criminal history included only three misdemeanor convictions prior to these charges, “[e]ven a minor criminal history is a poor reflection of a defendant's character.” Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020). Further, at the time he murdered Sayers, Ervin was on pretrial release following an arrest for Level 6 felony theft, and that reflects poorly on his character. See, e.g., Eisert v. State, 102 N.E.3d 330, 335 (Ind. Ct. App. 2018) (violation of pre-trial release reflects poorly on defendant's character), trans. denied. Finally, Ervin lied multiple times when police asked how he was shot. Based thereon, we conclude Ervin's sixty-three-year sentence is not inappropriate. See, e.g., Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (Robinson's criminal history outweighed any mitigators and therefore his sentence above the advisory was not inappropriate).

Conclusion

[21] The State presented sufficient evidence to prove Ervin committed Level 5 felony attempted robbery. The State also presented sufficient evidence to rebut Ervin's claim that he acted in self-defense when he shot Sayers. Finally, Ervin's sentence was not inappropriate based on the nature of his offenses and his character. Accordingly, we affirm.

[22] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1).

2.   Ind. Code § 35-42-5-1(a) (robbery); Ind. Code § 35-41-5-1(a) (attempt).

3.   Sayers's autopsy revealed that either wound would have been fatal.

4.   Ind. Code § 35-42-1-1(2).

5.   Ind. Code § 35-42-5-1(a) (robbery); Ind. Code § 35-41-5-1(a) (attempt).

6.   Ind. Code § 35-42-5-1(a).

7.   Ervin specifically argues his sixty-year sentence for murder is inappropriate, but our focus in evaluating an inappropriate sentence claim is on “the forest - the aggregate sentence - rather than the trees - consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Accordingly, we evaluate Ervin's sixty-three-year sentence.

May, Judge.

Judges Tavitas and DeBoer concur. Tavitas, J., and DeBoer, J., concur.