MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jan 30 2019, 9:12 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes Kolbus Rife & Shuler, LLP                         Attorney General of Indiana
Goshen, Indiana                                          Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vincent L. Thompson,                                     January 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1733
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D04-1706-F6-893



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019              Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Vincent L. Thompson (Thompson), appeals his

      conviction for intimidation, a Level 6 felony, Ind. Code § 35-45-2-1(a)(1); -

      (b)(1)(A).


[2]   We affirm.


                                                   ISSUES
[3]   Thompson presents this court with two issues on appeal which we restate as:

      (1) Whether a material variance existed between the charging Information and

      the evidence presented at the bench trial which prejudiced Thompson in the

      preparation of his defense; and


      (2) Whether Thompson’s sentence is inappropriate considering the nature of his

      offense and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   When Rebecca Tramble (Rebecca) arrived home from work around noon on

      June 19, 2017, she noticed an unfamiliar vehicle and driver parked in her

      driveway. Upon entering the residence, Rebecca inquired with her eldest

      daughter about the car. Rebecca noticed that her daughter acted strangely

      when she informed Rebecca that the person in the driveway was looking for

      Rebecca’s youngest daughter, fifteen-year-old K.T.


[5]   Rebecca went outside to speak with the driver of the unfamiliar vehicle, who

      was later identified as forty-five-year-old Thompson. Thompson told Rebecca

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 2 of 9
      that K.T. “owed him money or sex and he was there to get her.” (Transcript p.

      22). He explained that K.T. “and some other of her friends were at his crib, []

      meaning [his] house, were partying and he provided her with alcohol and weed

      and [K.T.] told him that she would pay him for that.” (Tr. p. 27). Rebecca was

      “shocked” and, in an attempt to de-escalate the situation, told Thompson that

      he would have “to deal with [K.T.’s] father when he got home from work.”

      (Tr. p. 23). Doing “what he has to do to get paid[,]” Thompson told Rebecca

      that “he will bring his crew and shoot up [her] home.” (Tr. p. 54). After all,

      “he was the big time person of the GD Gangster Disciples and he’s not scared

      of anything or anybody and he has a crew he will bring with him.” (Tr. p. 25).

      During this conversation, Rebecca glanced down and noticed a gun on

      Thompson’s lap but Thompson never made any motion towards it. Following

      the incident, Rebecca called her husband, Gary Tramble (Gary) to come home

      from work.


[6]   When Gary arrived at the residence, Gary’s daughters were at home but

      Rebecca had left to pick up her brother. On her way, she saw Thompson’s car

      with Thompson and others driving towards her house. Rebecca stopped and

      called the police; meanwhile, she saw Thompson “strutting up to [her]

      husband.” (Tr. p. 27). She explained to the police that she was afraid

      Thompson would shoot her husband because Thompson had said earlier that

      he would “shoot [her] house up” when he came back. (Appellant’s App. Vol.

      II, p. 41).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 3 of 9
[7]   When Thompson started walking up the driveway, Gary walked towards

      Thompson. Thompson asked Gary whether he was “the man of the

      household,” and explained to him that he had three choices: Gary could

      “either give him $120, [or] [K.T.] come outside and [Thompson] take her with

      him, or they shootin’ up [Gary’s] house.” (Tr. p. 60). When the police officers

      arrived, Thompson took off running, and he was only apprehended after being

      subdued with a taser by the responding officers.


[8]   On June 21, 2017, the State filed an Information, charging Thompson with

      Count I, intimidation, a Level 6 felony; and Count II, resisting law

      enforcement, a Class A misdemeanor. On April 9, 2018, the case proceeded to

      a bench trial. At the beginning of the bench trial, Thompson pled guilty to

      resisting law enforcement, a Class A misdemeanor, and proceeded to trial on

      the intimidation charge only. At the conclusion of the evidence, the trial court

      took the matter under advisement. On May 24, 2018, the trial court issued an

      Order finding Thompson guilty of intimidation, a Level 6 felony. On June 20,

      2018, the trial court sentenced Thompson to concurrent terms of two-and-one-

      half years executed on the intimidation offense and one year for resisting law

      enforcement.


[9]   Thompson now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                           I. Charging Information



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 4 of 9
[10]   Thompson contends that a material variance existed between the Information

       and the evidence presented at trial. Specifically, he maintains that the trial

       court relied on evidence other than the alleged threat to Rebecca to find

       Thompson guilty of intimidation as a Level 6 felony. Because his defense

       rested on the threat uttered to Rebecca, Thompson claims to have been

       prejudiced by this material variance.


[11]   Because the charging information advises a defendant of the accusations against

       him, the allegations in the pleading and the evidence used at trial must be

       consistent with one another. Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct.

       App. 1992). A variance is an essential difference between the two. Mitchem v.

       State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances, however, are fatal.

       Id. Relief is required only if the variance (1) misled the defendant in preparing a

       defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future

       prosecution under the same evidence. Winn v. State, 748 N.E.2d 352, 356 (Ind.

       2001).


[12]   We resolve a claim of fatal variance under our sufficiency standard because the

       defendant’s essential argument is that the evidence produced at trial so differed

       from the charging information that it was insufficient to convict him as charged.

       Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014). Accordingly, we do not reweigh

       the evidence or judge the credibility of witnesses; rather, we consider and draw

       reasonable inferences from the evidence that support the judgment. Id. We will

       affirm a conviction unless no reasonable trier of fact could find every element

       proven beyond a reasonable doubt. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 5 of 9
[13]   On June 22, 2017, the State filed Count I, intimidation, a Level 6 felony,

       against Thompson, alleging that:


               One [Thompson] did communicate a threat to commit a forcible
               felony, to-wit: to shoot another person, to-wit: [Rebecca] with
               the intent that [Rebecca] engage in conduct against her will, to-
               wit: pay money[.]


       (Appellant’s App. Vol. II, p. 16). Pointing to a fatal material variance,

       Thompson maintains that the trial court erroneously relied on evidence of

       Thompson’s threat to Gary to convict him of intimidation.


[14]   Here, the evidence adduced at trial reflects that Thompson informed Rebecca

       that K.T. owed him “money or sex and he was there to get her.” (Tr. p. 22).

       When Rebecca told Thompson that he had to come back when Gary was

       home, Thompson told her that he would come back with his crew and shoot up

       her home. While the conversation took place, Thompson had a gun in his lap.


[15]   Furthermore, in its written Order, the trial court addressed Thompson’s

       contention of a material variance as follows:


               In this case, the State alleged in the charging [I]nformation that
               the forcible felony was “to shoot another person, to-wit:
               [Rebecca].” The evidence presented was that [Thompson]
               verbally threatened [Rebecca] to ‘shoot up the house.’ When he
               made the threat, [Rebecca] was standing in front of her house
               where [Thompson] knew she lived with [Gary] and her children.
               The fact that [Thompson] did not vocalize, ‘I am going to shoot
               you’ does not mean that [Thompson] did not threaten to shoot
               [Rebecca] inside her house when he stated that he would ‘shoot
               up the house.’ It is logical to infer that a threat to shoot up

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 6 of 9
               someone’s house means that the shots could, and very likely
               would, hit the individuals inside the house. For these reasons,
               the [c]ourt finds that there was no material variance.


       (Appellant’s App. Vol. II, p. 43). Accordingly, as the trial court’s Order

       clarifies, the court relied on evidence and reasonable inferences thereof to

       support Thompson’s threat to Rebecca and to find him guilty of intimidation.

       Therefore, we cannot say that a material variance existed between the evidence

       and the charging Information.


                                                   II. Sentence


[16]   Next, Thompson contends that the trial court imposed an inappropriate

       sentence pursuant to Indiana Appellate Rule 7(B). “Appellate review of the

       merits of a sentence may be sought on the grounds outlined in Appellate Rule

       7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). Under Indiana

       Appellate Rule 7(B), a reviewing court “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, the [c]ourt finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” Ind. Appellate Rule 7(B). Although Indiana

       Appellate Rule 7(B) leaves much to the discretion of appellate courts, it does

       not detract from the long-recognized principle that “sentencing is principally a

       discretionary function in which the trial court’s judgment should receive

       considerable deference.” Cardwell, 895 N.E.2d at 1222. In conducting review

       under this standard, our supreme court has acknowledged that “reasonable

       minds may differ” on the appropriateness of a sentence based on “our sense of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 7 of 9
       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.” Buchanan v.

       State, 767 N.E.2d at 967, 970 (Ind. 2002). Thompson has the burden to

       establish that his sentence is inappropriate in light of the nature of the offense

       and his character. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[17]   The “nature of the offense” portion of the 7(B) standard speaks to the statutory

       presumptive sentence for the class of crimes to which the offense belongs.

       Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). In other words, the

       presumptive sentence is intended to be the starting point for the court’s

       consideration of the appropriate sentence for the particular crimes committed.

       Id. Thompson was convicted of a Level 6 felony which carries with it a fixed

       term of between six months and two-and-one-half-years, with the advisory

       sentence being one year. See I.C. § 35-50-2-7(b). He pled guilty to a Class A

       misdemeanor, which limits imprisonment to “a fixed term of not more than one

       year.” I.C. § 35-50-3-2. The trial court sentenced Thompson to the maximum

       statutory sentence.


[18]   The specific circumstances of this offense should be appalling to any parent.

       Thompson, a forty-five-year-old male, insisted that a mother hand over her

       fifteen-year-old daughter for sex. Thompson believed he was owed payment for

       supplying minors with alcohol and weed and while failing to see the depravity

       of his action, he justified his demand by alleging that K.T. was “in the streets.”

       (Appellant’s App. Vol. II, p. 56). To enforce the significance of his demand, he



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 8 of 9
       told Rebecca that “he was the big time person of the GD Gangster disciples[.]”

       (Tr. p. 25).


[19]   In turn, the “character of the offender” prong of Indiana Appellate Rule 7(B)

       refers to the general sentencing considerations and the relevant aggravating and

       mitigating circumstances. Douglas, 878 N.E.2d at 881. Although Thompson

       has no extensive criminal history, the convictions he did accumulate are

       significant and revealing of his character. In 1995, Thompson was convicted of

       rape as a Class A felony and criminal confinement as a Class B felony. He was

       released in 2010. While he was on parole for the rape charge, he committed the

       instant offense. Thompson’s criminal history, combined with his lack of

       remorse and seemingly permissive attitude toward forcing a fifteen-year-old girl

       to have sex are suggestive of a questionable moral compass and an

       unwillingness to abide by societal rules. We decline Thompson’s request to

       revise his sentence.


                                             CONCLUSION
[20]   Based on the foregoing, we hold that there was no material variance between

       the evidence presented at trial and the State’s Information. In addition, we

       conclude that Thompson’s sentence is not inappropriate in light of the nature of

       the offense and his character.


[21]   Affirmed.


[22]   Kirsch, J. and Robb, J. concur



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1733 | January 30, 2019   Page 9 of 9
