Dimitrius Walker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Dimitrius Walker was convicted of murder, a felony; attempted robbery, as a Level 5 felony; and arson, as a Level 6 felony, and he was found to have used a firearm in the commission of the offenses. The court then sentenced him to an aggregate term of seventy-six years in the Department of Correction. Walker now appeals. We affirm.

Issues

[2] Walker raises two issues for our review:

1. Whether the court abused its discretion when it declined to give his proffered jury instruction on assisting a criminal as a lesser-included offense to murder.

2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

Facts and Procedural History

[3] On September 26, 2023, Austin Seiman used the Facebook messenger application to communicate with Nasir Owens about meeting near South Lafayette Street in Fort Wayne to sell Owens drugs. Shortly thereafter, Walker, his girlfriend Neveah Gunter, and Owens drove to a gas station in Walker's mother's silver Hyundai Sonata. They returned to Walker's house, and Walker and Owens again left in the Sonata, and they were gone for “a couple hours.” Tr. Vol. 4 at 10. Video footage from a surveillance camera located approximately one block from Lafayette Street showed the Hyundai Sonata driving toward a dead-end road at 9:20 p.m.

[4] At around 10:00 p.m., Victor Lopez, who lived on Lafayette Street, looked out his window and saw “[o]ne white person and one brown” person fighting in an alley. Tr. Vol. 2 at 208. Lopez saw that the “brown one was hitting ․ [t]he white one” and that another black male arrived in a vehicle. Id. at 209. Lopez then observed the third individual get out of the car, go to where “the other was,” return to the car, and get “something out of the car.” Id. at 209-10. Lopez saw that the third man “had something in between his arms” as he left the car, and then he heard gunshots. Id. at 210. Lopez watched the two black men leave and then return twenty minutes later. Lopez saw them exit the car with plastic that looked like “a black bag” and then saw them put “the body of [a] person” into their car and drive away. Id. at 212. Lopez, who does not speak English, told a friend what he had seen, and the friend called 9-1-1. When officers arrived, they discovered a bloody shirt in the alley. Officers also learned that a silver or light blue sedan was involved in the shooting.

[5] At approximately 1:00 a.m. the next morning, Bunita Boyd, Walker's mother, reported that her car had been stolen. When officers arrived, Boyd informed them that Walker was the last one to have driven the car. Officers then spoke with Walker, who initially reported that the Sonata he had been driving was stolen from a gas station approximately thirty minutes prior. However, he later reported that it had been stolen at around 10:15-10:30 p.m. the previous night from a different location.

[6] Also in the early morning hours of September 27, Melissa Bridges “heard a blast” that “kind of shook” her house. Tr. Vol. 3 at 10. When she looked outside, she saw a “pretty big” fire beyond her fence. Id. at 11. Officers were dispatched to the area and, when they arrived, discovered that a vehicle was on fire. The officers used the vehicle's VIN number to identify the car involved in the fire as the same Sonata that Boyd had reported stolen. Officers located a wallet with Seiman's Speedway card and a gas can by the car. And firefighters determined that the fire was “intentionally set” using “ignitable liquids[.]” Id. at 75, 77.

[7] On September 28, Charles Smith was kayaking in a river when he found a body. Officers recovered the body and identified the person as Seiman. Seiman had died as a result of nine gunshot wounds. Officers were also able to determine that the blood on the shirt found in the alley belonged to Seiman.

[8] Based on the conversations between Seiman and Owens, officers identified Owens as a suspect in Seiman's murder. And based on the information that Walker was the last person to drive the Sonata that matched the description of the car involved in the shooting and his varied reports about the alleged theft of the car, officers also identified Walker as a suspect in the shooting.

[9] During the investigation, officers obtained footage from several surveillance cameras. One camera captured a Sonata arriving at Owens’ house shortly after 11:00 p.m. on September 26. That video showed two males walking from the car to the house. Then, at around 12:06 a.m. the next day, two individuals again entered the Sonata and left, followed by an SUV. Other surveillance cameras captured the Sonata and the SUV pulling into an alley near a park, two individuals running back and forth between the two cars, the start of a car fire, and the individuals running away from the fire. Officers also obtained cell phone data from Owens and Walker. The location data from Owens’ phone placed Owens at the scene of the shooting and at a bridge over the river in which Seiman's body was found.

[10] The State charged Walker with murder, a felony (Count 1); arson, as a Level 6 felony (Count 2); felony murder, a felony (Count 4); and attempted robbery, as a Level 2 felony (Count 5). The State also alleged that he had used a firearm in the commission of the offenses (Count 3). While incarcerated in January 2024, Walker spoke with Aaron McAtee, an inmate on the same cell block as Walker, about the offenses. In particular, Walker told McAtee that Owens had asked Walker to go with him to “rob a white kid that was selling drugs on Facebook” and that the “white kid” was named Austin. Tr. Vol. 4 at 60-61. Walker also told McAtee that he drove Owens to “some alley,” that Owens exited the car and went to meet Seiman, and that Walker heard arguing and went “to where they were arguing at.” Id. at 62. Walker told McAtee that he then grabbed Seiman's gun and a gun on the ground and ran back to the car and that Owens also ran back to the car and took the guns from Walker. Walker further told McAtee that he and Owens went back to where Seiman was “and shot him.” Id. at 63. Walker then told McAtee that he and Owens left the scene, returned later, dragged Seiman's body to the car, put the body in the trunk, and met up with a person who led them to a river where they dumped the body. Walker then told McAtee that they burned the car.

[11] The court held a multi-day, bifurcated jury trial on Walker's charges. At the conclusion of the presentation of evidence, Walker proffered the following jury instruction on assisting a criminal as a lesser-included offense to murder:

Included in the crime of Murder, a felony, as charged in this case, is the offense of Assisting a Criminal, a level 5 felony. If the State of Indiana proves the Defendant guilty of Murder, a felony, you need not consider the included crime. However, if the State of Indiana fails to prove the Defendant guilty of Murder you may consider whether the Defendant committed the offense of Assisting a Criminal, which the Court will define for you. You must not find the Defendant guilty of more than one crime.

Assisting a Criminal, a level 5 felony, is defined by statute as follows:

A person not standing in relation of parent, child, or spouse to another person who has committed a crime or is a fugitive from justice who, with intent to hinder the apprehension or punishment of the other person, harbors, conceals, or otherwise assists the person commits assisting a criminal. The offense is a level 5 felony if the person assisted has committed murder․

Appellant's App. Vol. 2 at 107.

[12] Walker conceded that assisting a criminal “is not an inherently included offense of murder,” but argued that “it is a factually included offense.” Tr. Vol. 4 at 148-149. The State argued that it was not factually included and that there was not a serious evidentiary dispute. The court did “not agree that it's factually included” but found that, even if it were a factually included offense, there was “no serious evidentiary dispute ․ before this jury.” Id. at 151. As such, the court declined to give Walker's proffered instruction.

[13] At the conclusion of the first phase of the trial, the jury found Walker guilty of Counts 1, 2, 4, and 5. Then, following the second phase, the jury found that Walker had used a firearm in the commission of the offense. The court entered judgments of conviction on Counts 1 and 2 as charged and on Count 5 as a Level 5 felony and accepted the jury's determination on Count 3.¹ At sentencing, the court identified as mitigating the fact that Walker did not have a criminal history except for a guilty plea to Level 4 felony dealing in cocaine or a narcotic drug, which he had entered into that day. As aggravating, the court found that Walker had been involved in a dealing offense and the nature of the circumstances of the offenses. Accordingly, the court sentenced Walker to an aggregate term of seventy-six years executed in the Department of Correction. This appeal ensued.

Discussion and Decision

Issue One: Jury Instruction

[14] Walker first asserts that the trial court abused its discretion when it declined to give his proffered jury instruction on assisting a criminal. “Instructing the jury is a matter within the discretion of the trial court, and we'll reverse only if there's an abuse of that discretion.” Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019). “[W]e look to whether evidence presented at trial supports the instruction and to whether its substance is covered by other instructions.” Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019).

[15] Further,

[w]hen a defendant requests an instruction covering a lesser-included offense, a trial court applies the three-part analysis set forth in Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The first two parts require the trial court to determine whether the offense is either inherently or factually included in the charged offense. Id. If so, the trial court must determine whether there is a serious evidentiary dispute regarding any element that distinguishes the two offenses. Id. at 567; see also Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Wright held that, “if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense.” Wright, 658 N.E.2d at 567. Where a trial court makes such a finding, its rejection of a tendered instruction is reviewed for an abuse of discretion. Brown, 703 N.E.2d at 1019.

Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002) (footnote omitted). “In our review, we accord the trial court considerable deference, view the evidence in a light most favorable to the decision, and determine whether the trial court's decision can be justified in light of the evidence and circumstances of the case.” Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (quotation marks omitted).

[16] Here, Walker was charged with murder, which is defined as knowingly or intentionally killing another human being. See Ind. Code § 35-42-1-1(a). And Walker requested a jury instruction on assisting a criminal, which is defined as harboring, concealing, or otherwise assisting a person who has committed a crime, with the intent to hinder the apprehension or punishment of the other person.² See I.C. § 35-44.1-2-5(a).

[17] As Walker acknowledged at trial, “[a]ssisting a criminal is not an inherently lesser-included offense of murder[.]” Hauk v. State, 729 N.E.2d 994, 999 (Ind. 2000). Therefore, whether Walker was entitled to an instruction on assisting a criminal first depends on whether it was factually included. “To determine whether an alleged lesser-included offense is factually included in the crime charged, we must compare the charging instrument in the specific case with the statute defining the alleged lesser-included offense.” Id. “If the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser-included offense, then the alleged lesser-included offense is factually included in the crime charged and we must proceed to step three of the Wright analysis.” Id. at 999-1000.³

[18] Here, in its charging information, the State alleged that “Walker, while acting in concert with Nasir Owens, did knowingly or intentionally kill another human being, to wit: Austin Seiman[.]” Appellant's App. Vol. 2 at 22. Nothing in that charge identifies the “assistance” element of assisting a criminal. To be factually included, the State would have had to identify an individual who committed the underlying crime as well as alleged assistance by Walker in covering up the crime or helping Owens avoid apprehension. See Hauk, 729 N.E.2d at 1000.

[19] Although the State identified Owens in the charging information, it was not the person who committed the offense and to whom Walker only provided assistance. Rather, the information explicitly charges Walker with having acted “in concert with” Owens. Appellant's App. Vol. 2 at 22. Further, there is nothing in the charging information to indicate that Walker took any steps to cover up the crime or help Owens avoid apprehension. As such, assisting a criminal is not a factually included offense in this case. When the alleged lesser included offense “is neither inherently nor factually included in the crime charged, then the trial court should not give a requested instruction on the alleged lesser included offense.” Wright, 658 N.E.2d at 567. Because the alleged lesser included offense was neither inherently nor factually included in the charged offense, the court did not abuse its discretion when it denied Walker's proffered instruction.

Issue Two: Appropriateness of Sentence

[20] Walker next contends that his sentence is inappropriate in light of the nature of the offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he Court may revise a sentence authorized by statute 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.” This Court has held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has previously explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[21] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[22] The sentencing range for murder is forty-five to sixty-five years, with an advisory sentence of fifty-five years. I.C. § 35-50-2-3(a). The sentencing range for the Level 6 felony is six months to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7(b). The sentencing range for his Level 5 felony is one year to six years, with an advisory sentence of three years. I.C. § 35-50-2-6. And Walker was subject to an additional fixed term of five years to twenty years for his use of a firearm in the commission of the offense. I.C. § 35-50-2-11(g). Thus, Walker faced a possible total sentence of ninety and one-half years. Following a sentencing hearing, the court sentenced Walker to the advisory sentence of fifty-five years for murder, enhanced by fifteen years for having used a firearm in the commission of the offense, a slightly enhanced sentence of two years for the Level 6 felony conviction, and a slightly enhanced sentence of four years on the Level 5 felony conviction, for an aggregate term of seventy-six years in the Department of Correction.

[23] On appeal, the entirety of Walker's argument is as follows:

Walker should have received an executed sentence below the advisory on each offense based on his young age and lack of prior criminal convictions as well as Mr. McAtee's testimony that Walker attempted to de-escalate the situation by removing the guns from the reach of both Owens and Seiman during their altercation.

Appellant's Br. at 23.

[24] However, Walker has not met his burden on appeal to demonstrate that his sentence is inappropriate. Regarding the nature of the offenses, Walker agreed to Owens’ request to help rob Seiman during an alleged drug deal. Walker then used his mother's vehicle to drive Owens and, when an alteration broke out, Walker “gave [Owens] the gun” that Owens used to shoot Seiman. Tr. Vol. 4 at 83. Then, after Seiman died, Walker helped Owens wrap the body in plastic, drag the body to his car, load it in the trunk, and dump it in the river. Walker then proceeded to set his mother's car on fire. Walker has not presented compelling evidence portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.

[25] As for his character, we acknowledge that Walker has only one criminal conviction, a felony conviction for dealing in cocaine or a narcotic drug following a plea he entered on the same day he was sentenced for the instant offense. However, again, Walker agreed to help Owens rob Seiman, gave Owens the gun, and helped Owens dispose of the body and burn the car. In addition, Owens and Walker decided to shoot Seiman despite the fact that Seiman was only nineteen years old and was “begging for his life” simply because they felt things had “gone too far[.]” Tr. Vol. 4 at 63. Nothing about Walker's willingness to perform those acts demonstrates substantial virtuous traits or persistent examples of good character. See Stephenson, 29 N.E.3d at 122. We cannot say that Walker's sentence is inappropriate in light of the nature of the offenses and his character.

Conclusion

[26] The trial court did not abuse its discretion when it declined to give Walker's proffered jury instruction. And Walker's sentence is not inappropriate. We therefore affirm Walker's convictions and sentence.

[27] Affirmed.

FOOTNOTES

1.   The court initially entered judgment of conviction on Count 4 as charged and on Count 5 as a Level 2 felony. However, the court vacated the judgment of conviction on Count 4 and reduced Count 5 to a Level 5 felony.

2.   This is limited to people “not standing in the relation of parent, child, or spouse” to the person who has committed the crime. I.C. § 35-44.1-2-5(a).

3.   Walker focuses his argument on whether there was a serious evidentiary dispute and does not make any argument as to whether assisting a criminal is factually included in his charge for murder. Indeed, Walker does not even mention the charging information in his brief.

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.