MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Nov 30 2017, 9:13 am
regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark A. Thoma                                           Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                        Justin F. Roebel
Fort Wayne, Indiana                                     Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mar’Quita D. Thomas,                                    November 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1706-CR-1359
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Frances C. Gull, Judge
                                                        Trial Court Cause No.
                                                        02D05-1610-F4-68



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017        Page 1 of 17
[1]   Mar’Quita D. Thomas (“Thomas”) was convicted following a jury trial of

      attempted arson1 as a Level 4 felony and criminal mischief2 as a Class B

      misdemeanor, and the trial court ordered her to serve an aggregate executed

      sentence of six years and 180 days in the Indiana Department of Correction

      (“the DOC”). Thomas appeals, raising the following restated issues:


                 I. Whether her convictions for attempted arson and criminal
                 mischief were supported by sufficient evidence;


                 II. Whether the trial court abused its discretion during
                 sentencing; and


                 III. Whether her sentence is inappropriate considering the nature
                 of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In September 2016, Thomas and her girlfriend, B.R., were living together with

      B.R.’s four children, in B.R.’s Allen County home. Around 6:40 a.m. on the

      morning of September 30, Fort Wayne Police Department (“FWPD”) dispatch

      received a 911 call from B.R., who reported that Thomas, identified by B.R. as

      her ex-girlfriend, had broken a window in B.R.’s house. B.R. told dispatch that

      she was pregnant, and Thomas had beaten her up in the presence of her four



      1
          See Ind. Code §§ 35-43-1-1(a), 35-41-5-1.
      2
          See Ind. Code § 35-43-1-2(a).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 2 of 17
      children and then left the residence on foot. FWPD Officer Rickey Parrish

      (“Officer Parrish”) responded to the scene and took a photograph of the broken

      window. He also noted that B.R.’s hair was in disarray, and her shirt was

      pulled to one side and partially torn. Officer Parrish did not encounter Thomas

      at that time.


[4]   In the early morning hours of October 2, 2016, FWPD 911 dispatch received

      another call from B.R., who reported that her ex-girlfriend, Thomas, had hit

      B.R. in the face and was trying to take her cell phone. B.R. said that Thomas

      was drinking and had left the residence on foot carrying a liquor bottle. B.R.

      also told dispatch that Thomas had done the following: entered B.R.’s house

      without permission; broken B.R.’s window; and repeatedly appeared at B.R.’s

      house and harassed her. State’s Ex. 2. B.R. explained that she had told Thomas

      she wanted nothing to do with her. Officers Jason Fuhrman3 (“Officer

      Fuhrman”) and Kevin Peeper (“Officer Peeper”) responded to the scene around

      3:36 a.m., walked around the property, spoke with B.R., and “cleared [the] run

      at 3:46 a.m.” Tr. Vol. 2 at 73.


[5]   Ten minutes later, B.R. called 911 to report that Thomas had returned and was

      outside “beating on [her] window.” State’s Ex. 3. B.R. asked the officers to

      “hurry up” because Thomas had “already busted one of [her] windows.” Id.

      Officers Fuhrman and Peeper returned to B.R.’s home and found Thomas



      3
       We note that Fuhrman had been promoted by the time of trial; however, because he was an “officer” when
      he responded to the call, we use that designation. Tr. Vol. 2 at 71.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017    Page 3 of 17
      standing by the home’s side door, located next to the driveway, with a gas can

      in her hand. Officer Fuhrman, who smelled “a strong odor of gasoline in the

      air,” noted that Thomas had slurred speech, smelled of gasoline and alcohol,

      and was “kind of swaying around.” Tr. Vol. II. at 74, 75-76. Before placing her

      in the back seat of the cruiser, the officers put Thomas in handcuffs and, while

      searching her person for weapons, found two lighters.


[6]   On October 5, 2016, the State charged Thomas with domestic battery as a Level

      6 felony and criminal mischief as a Class B misdemeanor, based on the events

      of September 30, and with attempted arson as a Level 4 felony, based on the

      events of October 2. During the two-day jury trial, Officer Parrish testified that,

      on September 30, he responded to a call from B.R. reporting that Thomas had

      broken her window and had also hit B.R. in front of her children. During direct

      examination, Officer Parrish identified State’s Exhibits 8 and 9 as photographs

      he had taken of the broken window. In the State’s case-in-chief, B.R. conceded

      that she reported, in her 911 call of September 30, that Thomas broke her

      window, yet denied that Thomas had actually broken her window.


[7]   Officers Fuhrman and Peeper testified that they had been dispatched to B.R.’s

      home twice in the early morning hours of October 2. Officer Fuhrman

      explained that, during the second visit, he encountered Thomas with a gasoline

      can in her hand. Officers Fuhrman and Peeper testified that there was a very

      strong smell of gasoline in B.R.’s backyard, on the driveway side of the home,

      and on Thomas’s person. Resting at the threshold of B.R.’s side door, Officer

      Fuhrman found a piece of paper, torn from a Kingsford charcoal bag, with a

      Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 4 of 17
      burnt corner. Both officers testified that the smell of gasoline had not been

      present fifteen minutes earlier, during their first visit. Id. at 75, 86-87.


[8]   The smell of gasoline, Thomas’s two lighters, and the partially burnt paper

      prompted Officer Fuhrman to call Captain Thomas Rotering (“Captain

      Rotering”), an arson investigator with the Fort Wayne Fire Department. Once

      at the scene, Captain Rotering walked around B.R.’s house and found on the

      grass an empty gasoline can with a separated collar and spout. Captain

      Rotering noticed that the odor of gasoline intensified as he walked around the

      back of the house, and it remained strong as he walked to the other side of the

      yard, where he found a second can of gasoline near a lawnmower. Along the

      driveway side of the house, near the door, Captain Rotering noticed that the

      gasoline smell was “very strong,” and, at the threshold of that side door,

      Captain Rotering found the partially burnt paper. Id. at 103.


[9]   Captain Rotering believed that an arson investigation was necessary, saying,

      “[I]t would be very uncommon for somebody to have gasoline poured around

      their house.” Id. He found it suspicious that the nozzle and collar of the gas

      can were off, the can was completely empty, the gasoline had been poured on

      the lawn recently, and there was burnt paper on the threshold to the house. Id.

      at 103-04. Based on his knowledge of fire science, Captain Rotering

      determined that the burnt paper had been ignited and then placed intentionally

      on the threshold, saying, “[I]t’s scientifically impossible for [the paper] not to

      have burned in that place.” Id. at 109. He said that the fire was recent because

      the ash was still there and would have blown away if there had been wind or

      Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 5 of 17
       the door had opened. Based on his observations, Captain Rotering believed

       someone had tried to intentionally set a fire.


[10]   During trial, B.R. changed her version of events, testifying that she and Thomas

       were still dating on October 2 and that Thomas did not break her window.

       B.R. also testified that she had called her gas utility about a smell of gas a few

       days before the attempted arson, and the employee said the smell was gasoline,

       not natural gas.


[11]   Thomas, testifying on her own behalf, denied breaking the window on

       September 30. While admitting that she and B.R. had argued that day, Thomas

       asserted that the disagreement related to Thomas not helping around the house.

       Regarding the events of October 2, Thomas testified that the family was

       planning a cookout, and while buying groceries, Thomas and her stepson

       bought gasoline for the lawnmower. Thomas said that the family had two gas

       containers, but that one was broken and did not contain gasoline. Thomas

       testified that B.R. went out that evening, and when she returned in the middle

       of the night, B.R. woke up Thomas, and the two argued about Thomas not

       having cleaned up after grilling. Thomas went outside, but was drunk, and

       while returning to the house, she “tripped over the gas can, the grill,

       everything.” Id. at 191-92. Thomas testified, “I fell right on the gas, laid in the

       gas. I was -- I just wanted to lay down.” Id. at 192. Thomas explained that she

       had tripped over the grill, causing “ashes and everything” to go “all over the

       metal, all over my porch, my step.” Id. at 193. Thomas said she was trying to



       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 6 of 17
       pick up the spilled gas can when the police arrived. Thomas acknowledged

       having two lighters in her pocket, but claimed she also had cigarettes.


[12]   In rebuttal for the State, the gas utility employee who responded to B.R.’s call

       testified that he did not recall smelling gasoline at B.R.’s home. Officer

       Fuhrman testified that, contrary to Thomas’s statement, she did not possess

       cigarettes when arrested. Captain Rotering testified that the ash on the stoop

       was inconsistent with charcoal ash from barbequing because it was not

       granular; instead, the ash matched the paper. He also testified that the paper

       with the burnt corner was intentionally placed on the step. Finally, the State

       presented a recording of a call Thomas made from jail, in which she admitted

       that she broke B.R.’s window.


[13]   The jury found Thomas guilty of attempted arson and criminal mischief. but

       acquitted her of domestic battery. At sentencing, Thomas’s mother testified

       that Thomas has “a real good heart” but also has “a drinking problem and she

       really need[s] help with it.” Tr. Vol. 3 at 38. In her testimony, B.R. asked the

       court to be lenient in sentencing because Thomas “loved [her] and [her] kids a

       lot.” Id. at 49. On her own behalf, Thomas maintained she was innocent, but

       acknowledged, “[I]f I had not drank myself into a complete altered state, I . . .

       would not be here today.” Id. at 55. The trial court found Thomas’s consistent

       employment history was a mitigating factor and found her criminal history and

       the circumstances of the crime were aggravating factors. Thomas was

       committed to the DOC for a term of six years for attempted arson and 180 days

       for criminal mischief, to run consecutively. Thomas now appeals.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 7 of 17
                                      Discussion and Decision

                                 I. Sufficiency of the Evidence
[14]   Thomas contends that the evidence was insufficient to support her convictions

       of attempted arson and criminal mischief. Sufficiency of evidence claims “face

       a steep standard of review”: we consider only the evidence and reasonable

       inferences most favorable to the convictions. Griffith v. State, 59 N.E.3d 947,

       958 (Ind. 2016). “It is the fact-finder’s role, not that of appellate courts, to

       assess witness credibility and weigh the evidence to determine whether it is

       sufficient to support a conviction.” Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). We will affirm the conviction unless no reasonable fact-finder could find

       the defendant guilty beyond a reasonable doubt. Griffith, 59 N.E.3d at 958. “It

       is therefore not necessary that the evidence overcome every reasonable

       hypothesis of innocence.” Drane, 867 N.E.2d at 147 (internal quotation marks

       omitted). “We will hold the evidence sufficient if an inference may reasonably

       be drawn from it to support the verdict.” Buelna v. State, 20 N.E.3d 137, 141

       (Ind. 2014) (internal quotation marks omitted).


[15]   Recognizing that our court cannot reweigh the evidence or assess witness

       credibility, Thomas argues that we must review a conviction “with a mind

       towards the strong presumption of innocence until proven guilty,” and

       “impinge on what is generally considered to be the jury’s responsibility to judge

       witness credibility when it is confronted with inherently improbable

       testimony[.]” Appellant’s Br. at 20. Thomas argues that in such light no



       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 8 of 17
       reasonable fact-finder could have found Thomas guilty of the crimes. We

       disagree.


                                            A. Attempted Arson

[16]   Indiana Code section 35-43-1-1, as relevant here, provides that a person who,

       by means of fire, knowingly or intentionally damages the property of any

       person under circumstances that endanger human life, commits arson, a Level 4

       felony. Thomas is charged with attempted arson. To be guilty of an attempt,

       the actor must act with the culpability required for the commission of the crime

       and engage in conduct constituting a substantial step toward committing the

       offense. Ind. Code § 35-41-5-1.


[17]   The evidence presented to the jury was that, in the early morning hours of

       October 2, 2016, Officers Fuhrman and Peeper were called to B.R.’s house

       twice, just fifteen minutes apart. Tr. Vol. 2 at 72, 85-86. Upon arriving the

       second time, Officer Fuhrman saw Thomas standing in the yard with a gasoline

       can in her hand. Id. at 75. Officer Fuhrman testified that he noted an

       overwhelming odor of gasoline in the air and could smell gasoline fumes

       emanating from Thomas’s person. Id. at 74-76. Officer Peeper testified that,

       when he got to B.R.’s side door, “there was an overwhelming smell of gasoline

       pretty much throughout the backyard and on the side of the house.” Id. at 86.

       He testified, “[W]hen I got to Officer Fuhrman’s location with [Thomas], there

       was an overwhelming smell of gasoline both on her person and, like I said, right

       in the general[.]” Id. Both officers testified that the smell of gasoline had not

       been present fifteen minutes prior, during their first visit. Id. at 75, 86-87.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017   Page 9 of 17
       Resting at the threshold of B.R.’s driveway-side door, Officer Fuhrman found a

       piece of paper, torn from a Kingsford charcoal bag, with a burnt corner. Officer

       Fuhrman called Captain Rotering to the scene to conduct an arson

       investigation.


[18]   Captain Rotering, who was qualified as an expert in the field of fire

       investigation, testified as to his opinion:


               [T]he gasoline was taken out of the can that I found that was
               empty, it was spread along the back of the house and up the side
               of the house or the right side of the house up to and including the
               area of the door. I believe the paper was taken from underneath
               the grill, torn off of that bag, because that paper was dry and it
               had been raining all night. I believe that was taken around to the
               side of the house, it was then ignited with an open flame, and it
               was let burn and then either placed or thrown on the threshold of
               the door where it, for numerous reasons and luckily, did not
               ignite the gasoline that was present around the house.


       Tr. Vol. 2 at 129. Captain Rotering opined that the paper’s ash on the stoop

       “showed that particular paper and that particular ash burned in that particular

       place, it was intentionally put there[.]” Id. at 109. He testified that the fire was

       recent because the ash was still there and would have blown away if there had

       been wind or the door had opened. Id. at 141. Based on his observations,

       Captain Rotering stated, “[I]if it would have ignited, we would have had a

       significant fire and a significant problem with, one, the children that I saw

       inside the living room, and two, it would have ignited the house itself very

       readily and quickly . . . .” Id. at 129. By pouring gasoline in the yard and by


       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 10 of 17
       placing the ignited paper on the threshold of B.R.’s house, Thomas took a

       substantial step toward knowingly or intentionally damaging B.R.’s house by

       means of fire, under circumstances that put B.R.’s and her children’s lives in

       jeopardy. This evidence was sufficient to support Thomas’s conviction for

       attempted arson.


[19]   On appeal, Thomas argues that, in light of the evidence offered by the defense,

       the above evidence was insufficient to support her conviction. Regarding the

       smell of gasoline, Thomas suggests that there could have been an existing smell

       of gasoline that the utility employee overlooked. Appellant’s Br. at 23. She also

       contends that the State’s evidence “was consistent with [her] testimony,” which

       was that the family had a cookout on the night in question; the charred paper

       fell out of the grill that Thomas tripped over; and Thomas smelled of gasoline

       because she tripped over and spilled the contents of the gas can. Id. at 23-25.

       However, Thomas presented this same evidence to the jury during her trial, and

       the jury did not find her testimony to be credible. Accordingly, Thomas’s

       argument on appeal is merely a request that we reweigh the evidence and judge

       the credibility of witnesses, which we cannot do. See Thacker v. State, 62 N.E.3d

       1250, 1252 (Ind. Ct. App. 2016) (citing Drane, 867 N.E.2d at 146). Here, the

       evidence was sufficient to support Thomas’s conviction for attempted arson.


                                            B. Criminal Mischief

[20]   Thomas also contends that the State presented insufficient evidence to convict

       her of criminal mischief. A person who recklessly, knowingly, or intentionally

       damages or defaces property of another person without the other person’s
       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 11 of 17
       consent commits criminal mischief, a Class B misdemeanor. Ind. Code § 35-43-

       1-2(a). On appeal, Thomas challenges only the sufficiency of the evidence that

       she knowingly, intentionally, or recklessly broke the window. Appellant’s Br. at

       21.


[21]   The evidence presented at trial supporting Thomas’s conviction for

       intentionally breaking the window was that B.R. called the police on September

       30, 2016, and reported that Thomas had broken a window in B.R.’s house.

       State’s Ex. 1. When Officer Parrish responded, he took a photograph of the

       broken window. Those photographs, which Officer Parrish identified as State’s

       Exhibits 8 and 9, were introduced into evidence during the trial. Tr. Vol. 2 at

       67. Additionally, B.R. made two 911 calls on October 2, 2016, and in each call

       she repeated the accusation that Thomas broke a window in her house. State’s

       Exs. 2 & 3. Finally, after her arrest and while in jail, Thomas made a phone call

       and was recorded saying that she broke B.R.’s window two days earlier. State’s

       Ex. 67.


[22]   On appeal, Thomas argues that it is not clear how the window was broken, and

       therefore, her conviction cannot be supported by the evidence. Appellant’s Br. at

       21. She notes that the allegations B.R. made about the broken window in her

       911 calls to police are not credible in light of the fact that B.R. has been

       convicted of crimes of dishonesty on four prior occasions. Id. She also cites to

       B.R.’s trial testimony in which B.R. denied that Thomas broke the window. Id.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 12 of 17
[23]   Again, Thomas is asking this court to reweigh the evidence and take from the

       jury its proper functions of judging the credibility of witnesses, which we cannot

       do. Thacker, 62 N.E.3d at 1252. Based on the State’s evidence, including

       Thomas’s own admission, a reasonable jury could have found sufficient

       evidence that Thomas knowingly, intentionally, or recklessly broke the window

       and, thereby, committed criminal mischief. Accordingly, the evidence was

       sufficient to support Thomas’s conviction for criminal mischief.


                                      II. Abuse of Discretion
[24]   Thomas argues that the trial court abused its discretion during sentencing by

       finding her criminal history to be an aggravating factor, instead of mitigating, as

       she argued, and by refusing to allow alternative sentencing on the basis of

       Thomas’s “strong support system.” Appellant’s Br. at 27-28. “The finding of

       mitigating factors is not mandatory and rests within the discretion of the trial

       court, and the trial court is not required to accept the defendant’s arguments as

       to what constitutes a mitigating factor.” Williams v. State, 997 N.E.2d 1154,

       1163 (Ind. Ct. App. 2013). “Further, the trial court is not required to give the

       same weight to proffered mitigating factors as the defendant does, nor is it

       obligated to explain why it did not find a factor to be significantly mitigating.

       Id. at 1163-64.


[25]   When a defendant alleges that the trial court failed to identify a mitigating

       circumstance, she is required to establish that the mitigator is both significant

       and clearly supported by the record. Anglemyer v. State, 868 N.E.2d 482, 493


       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 13 of 17
       (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). By

       her own admission, Thomas “had contact with the criminal justice system five

       (5) times.”4 Appellant’s Br. at 27. In an attempt to downplay the significance of

       these contacts, Thomas argues that three of those contacts “were informal

       juvenile adjustments.” Id. It was within the discretion of the trial court,

       however, to decide whether Thomas’s history was a factor of mitigation or

       aggravation. Thomas has three prior adult misdemeanor convictions including

       minor consumption of alcohol, public intoxication, and battery. Appellant’s

       App. Vol. III at 6. While serving her first adult sentence, Thomas violated the

       terms of her suspended sentence. Id. And while her prior alcohol-related

       convictions occurred fifteen years ago, those convictions and the testimony at

       sentencing show that she has not yet addressed a long-term problem of alcohol

       abuse. Id. at 4; Tr. Vol. 3 at 38, 55. Thomas also has juvenile allegations for

       battery, leaving home, and possession of alcohol by a minor. Appellant’s App.

       Vol. III at 4. Here, the trial court did not abuse its discretion when it found

       Thomas’s criminal history was an aggravating factor.


[26]   Likewise, it is within the trial court’s discretion to decide whether alternative

       sentencing is warranted on the basis of a family support system. Defense

       counsel argued during sentencing that Thomas’s mother provided her strong

       support and that this support warranted alternative sentencing. Tr. Vol. 3 at 47,




       4
        Thomas’s CCS, however, reflects six contacts with the criminal justice system, three of which were
       committed when she was a juvenile. Appellant’s App. Vol. III at 5-6.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 14 of 17
       53. Thomas previously violated a suspended sentence when she was provided

       the benefit of an alternative placement. Appellant’s App. Vol. III at 6. While

       alternative placements may have been available, it was not clearly against the

       logic and effect of the facts and circumstances for the trial court to order

       Thomas to serve her sentence in the DOC.


                             III. Inappropriateness of Sentence
[27]   Finally, Thomas argues that her aggregate executed sentence of six years and

       180 days is inappropriate. Pursuant to Indiana Appellate Rule 7(B), a sentence

       authorized by statute can be revised where it is inappropriate in light of the

       nature of the offense and the character of the offender. Under Appellate Rule

       7(B) analysis, we do not determine “whether another sentence is more

       appropriate” but, rather, “whether the sentence imposed is inappropriate.”

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (quoting King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008)). “Sentence review under Appellate Rule

       7(B) is very deferential to the trial court.” Id. “The burden is on the defendant

       to persuade the appellate court that his sentence is inappropriate.” Id. (citing

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). “Therefore, when

       reviewing a sentence, our principal role is to ‘leaven the outliers’ rather than

       necessarily achieve what is perceived as the ‘correct’ result.” Id. (quoting

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).


[28]   We begin by noting that Thomas makes no claim that a 180-day sentence for

       her Class B misdemeanor is inappropriate. She also makes no claim that the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 15 of 17
       six-year advisory sentence is inappropriate for her attempted arson conviction.

       Appellant’s Br. at 32. Instead, she claims that only three years of her six-year

       sentence should have been executed at the DOC, with the balance suspended to

       probation.


[29]   “The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed.” Sanders, 71 N.E.3d at 844.

       “We also assess the trial court’s recognition or nonrecognition of aggravators

       and mitigators as an initial guide to determining whether the sentence imposed

       was inappropriate.” Id. “However, a defendant must persuade the appellate

       court that his or her sentence has met th[e] inappropriateness standard of

       review.” Id. (alteration in original) (internal quotation marks omitted).


[30]   Regarding the nature of the offense, B.R. had to call the police twice on the

       morning of October 2 to report trouble with Thomas. In their second response,

       the police decided that Thomas had attempted to commit arson at the house

       where her pregnant girlfriend lived with four children. Thomas had poured

       gasoline around the house, obtained a piece of dry paper on a rainy morning,

       and lit the paper in an effort to ignite a fire by the driveway-side entrance.

       Thomas was intoxicated during the arson incident and stated, “[I]f [she]had not

       drank [herself] into a complete altered state, [she] . . . would not be here today.”

       Tr. Vol. 3 at 55. However, Thomas had prior alcohol-related incidents and “a

       drinking problem” that she had not yet treated. Id. at 38, 51.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 16 of 17
[31]   We recognize that Thomas had not been convicted of a crime since 2009; had

       been gainfully employed for almost ten years; and had expressed a desire to

       further her education. Appellant’s Br. at 30. However, Thomas’s criminal

       history is a negative reflection on her character. Thomas has had six separate

       encounters with the judicial system, three of which were convictions for minor

       consumption of alcohol, public intoxication, and battery. Appellant’s App. Vol.

       III at 6. As the trial court noted, Thomas has been “given the benefit of short

       jail sentences, longer jail sentences, unsupervised probation, counseling at

       Addictive Behaviors, [and] counseling at the Center for Non Violence.” Tr.

       Vol. 3 at 57. Thomas had been revoked from a suspended sentence once and

       been given the benefit of home detention. Id. The trial court said, “You’ve

       been in treatment a couple of times and nothing seems to be working[.]” Id.

       Under these facts, we conclude that six years executed at the DOC for the

       attempted arson conviction was not inappropriate in light of the nature of the

       offense and the character of the offender. Id. Thomas’s sentence of six years

       and 180 days executed was not inappropriate.


[32]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1706-CR-1359 | November 30, 2017 Page 17 of 17
