MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Apr 05 2016, 8:25 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samuel Goldsmith,                                        April 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1508-CR-1044
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Carol J. Orbison,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-1407-F1-36675



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016      Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Samuel L. Goldsmith (Goldsmith), appeals his sentence

      following his conviction for attempted murder, a Level 1 felony, Ind. Code §§

      35-42-1-1(a), -41-5-1(a).


[2]   We affirm.


                                                     ISSUE

[3]   Goldsmith raises one issue on appeal, which we restate as follows: Whether

      Goldsmith’s sentence is inappropriate in light of the nature of the offense and

      his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On July 15, 2014, at approximately 8:30 p.m., seventeen-year-old M.W. arrived

      at her apartment on the east side of Indianapolis, Marion County, Indiana. She

      noticed that several of her friends were walking on the sidewalk across the street

      from her apartment building. As M.W. crossed the street to catch up with her

      friends, a black vehicle—an older model Buick—pulled up beside her. The

      driver, later identified as Goldsmith, asked M.W. if she needed a ride. M.W.

      declined, but Goldsmith persisted, driving slowly alongside M.W. as she

      walked on the sidewalk and demanding that she get into his vehicle. He made

      his intentions clear when he told her “that he wanted some pussy and that [she]

      needed a ride,” so she should “just get in his car before he get [sic] out and get

      [her].” (Tr. p. 66). M.W.’s requests to be left alone were ignored as Goldsmith

      continued to say “inappropriate things” to her. (Tr. p. 67).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 2 of 9
[5]   M.W. became angered by Goldsmith’s demands, and she began kicking his

      vehicle and cussing at him. She reached through Goldsmith’s open window

      and grabbed a shoe from his backseat, which she then threw at him. M.W.

      missed her mark, and the shoe flew through the open window and landed on

      the street. A resident of one of the nearby apartment complexes, Wanda Diggs

      (Diggs), was standing on the opposite sidewalk and witnessed the interaction

      between Goldsmith and M.W. Diggs indicated that, in addition to the shoe,

      M.W. threw other items from Goldsmith’s backseat onto the street. By this

      point, M.W.’s friends had turned back to assist and were yelling at Goldsmith

      to leave M.W. alone.


[6]   After M.W. and her friends walked away from Goldsmith, Goldsmith did a U-

      turn and stopped to retrieve his shoe and other belongings. As Goldsmith was

      collecting his property from the street, Diggs “could see the look on his face and

      he was mad.” (Tr. p. 144). Although Diggs warned Goldsmith to “just leave it

      alone[,]” Goldsmith did another U-turn and said, “Watch this, I’m going to hit

      that bitch.” (Tr. p. 146). Goldsmith nearly collided with another vehicle in the

      course of that U-turn, and the driver of the other vehicle clearly saw “a big

      smile” on Goldsmith’s face. (Tr. p. 189). Diggs “hollered for [M.W. and her

      friends] to get out of the way” as Goldsmith “gunned it.” (Tr. p. 174). M.W.

      turned around to see that Goldsmith had driven up onto the sidewalk and was

      rapidly approaching her. M.W. did not have time to react before Goldsmith

      ran her over and dragged her for approximately forty-five feet. The impact

      shattered the grille of Goldsmith’s vehicle.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 3 of 9
[7]   Right after Goldsmith hit M.W., several gunshots were fired, although it is not

      clear from where the shots originated. 1 Goldsmith sped away from the scene

      without stopping. At some point after being struck, M.W. lost consciousness.

      She suffered from a broken femur, which required surgery, as well as other

      scrapes. Due to her injuries, M.W. spent approximately four months in

      physical therapy. M.W. is now able to walk, but her gait is different and she

      continues to experience pain.


[8]   On July 24, 2014, the State filed an Information charging Goldsmith with

      Count I, attempted murder, a Level 1 felony, I.C. §§ 35-42-1-1(a), -41-5-1(a);

      Count II, aggravated battery, a Level 3 felony, I.C. § 35-42-2-1.5(2); and Count

      III, battery with a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(b)(1), (f)(2).

      Count III, which alleged that Goldsmith ran over the foot of one of M.W.’s

      friends, was dismissed prior to trial. On June 29-30, 2015, the trial court

      conducted a jury trial. At the close of the evidence, the jury returned guilty

      verdicts on the remaining Counts I and II.


[9]   On July 15, 2015, the trial court held a sentencing hearing. Due to double

      jeopardy concerns, the trial court merged Count II into Count I and entered a

      judgment of conviction for attempted murder, a Level 1 felony. The trial court




      1
        During the trial, a detective testified that he suspected the shooter was one of M.W.’s friends, but there was
      insufficient evidence to establish this.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016                Page 4 of 9
       imposed the maximum sentence of forty years, fully executed in the Indiana

       Department of Correction (DOC).


[10]   Goldsmith now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[11]   Goldsmith claims that his sentence is inappropriate. It is well established “that

       sentencing is principally a discretionary function in which the trial court’s

       judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). In this case, the trial court ordered a fully executed

       sentence of forty years—the maximum sentence for a Level 1 felony. I.C. § 35-

       50-2-4(b). Goldsmith, however, asserts that he should have been sentenced to

       the advisory term of thirty years. See I.C. § 35-50-2-4(b). Even where, as here,

       the trial court imposes a statutorily permissible sentence, our court may revise

       the sentence if, “after due consideration of the trial court’s decision, [we find]

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

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


[12]   The goal of sentence review under Appellate Rule 7(B) “should be to attempt to

       leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225.

       Ultimately, whether we consider a sentence to be inappropriate “turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.” Id.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 5 of 9
       at 1224. While “‘reasonable minds may differ’ on the appropriateness of a

       sentence[,]” we focus on “the length of the aggregate sentence and how it is to

       be served.” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014) (quoting Buchanan v.

       State, 767 N.E.2d 967, 970 (Ind. 2002)); Cardwell, 895 N.E.2d at 1224. “The

       question under Appellate Rule 7(B) is not whether another sentence is more

       appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015). Goldsmith

       bears the burden of proving that his sentence is inappropriate. Gleason v. State,

       965 N.E.2d 702, 712 (Ind. Ct. App. 2012) (citing Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006)).


[13]   We first consider the nature of the offense. Here, forty-seven-year-old

       Goldsmith observed seventeen-year-old M.W. walking down the sidewalk, and

       he supposedly mistook her for a prostitute. She repeatedly refused his demands

       for “some pussy” and tried to fend him off by throwing a shoe and other items

       at him and by kicking his vehicle and cussing at him. (Tr. p. 66). Angered,

       Goldsmith turned his vehicle around and “gunned it.” (Tr. p. 174). He drove

       up onto the sidewalk, where M.W. was walking away from Goldsmith, and he

       ran her down. She was dragged for approximately forty-five feet and sustained

       serious injuries, including loss of consciousness and a broken femur.


[14]   Goldsmith asserts that “the circumstances of the [a]ttempted [m]urder in this

       case were not among the worst this [c]ourt has seen. Running over M.W. was

       not part of a criminal plan, thought out in advance, but was purely an

       impulsive, spur of the moment act.” (Appellant’s Br. p. 12). We disagree.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 6 of 9
       Although Goldsmith initially turned in the opposite direction of M.W. to

       retrieve his belongings, he clearly made a deliberate decision to exact revenge

       on M.W. for rejecting and disrespecting him. Accordingly, he made a second

       U-turn—endangering at least one other driver in doing so—and told the

       bystanders, “Watch this, I’m going to hit that bitch.” (Tr. p. 146). After

       running her over, Goldsmith fled from the scene. As the trial court found, it is


               absolutely astonish[ing] that [M.W.] isn’t dead. She was hit with
               such force by the impact of . . . Goldsmith’s vehicle that the front
               [grille] was broken in several pieces. She was dragged a certain
               distance and the fact that she is able to walk into this courtroom
               during this trial and testify to this . . . is astonishing. . . .
               Goldsmith is very lucky that he did not kill her by his actions.


       (Tr. pp. 319-20).


[15]   Additionally, we are unimpressed with Goldsmith’s attempt to shift the blame

       for the incident to M.W., arguing that she was the one who “escalated the

       encounter beyond words and threats” by tossing his belongings onto the street,

       kicking his vehicle, and using “vile language.” (Appellant’s Br. p. 12). We find

       no merit in Goldsmith’s feeble attempt to distract us from the fact that M.W. is

       the victim in this case. Using his own vile language, Goldsmith repeatedly tried

       to solicit sex from a minor; he ignored her pleas to be left alone and eventually

       ran her over with a smile on his face. Goldsmith could not reasonably have

       expected our court to find that his nearly-lethal conduct was justified because he

       was provoked by foul language and the rejection of a teenage girl.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 7 of 9
[16]   Turning to the character of the offender, the record is devoid of any redeeming

       qualities that would warrant a sentence revision. Goldsmith acknowledges his

       criminal history, but he argues that “[m]ost of [his] prior offenses are unlike the

       current one[,]” and his “record does not place him in the worst category of

       offenders.” (Appellant’s Br. pp. 13-14). While the instant offense is

       Goldsmith’s first conviction for attempted murder, we nevertheless find that

       Goldsmith’s extensive criminal history is reflective of his poor character and

       disdain for the laws that govern our state. The trial court found that Goldsmith

       has been arrested at least fifty-six times. Between 1987 and 2013, Goldsmith

       was convicted of twelve felonies, including: resisting law enforcement,

       possession of cocaine, theft/receiving stolen property (eight times), dealing in

       cocaine, and auto theft/receiving stolen parts. During this time, he was also

       convicted of eighteen misdemeanors, including: criminal conversion (five

       times), driving with a suspended license (three times), check deception, failure

       to stop after an accident resulting in property damage, battery, criminal trespass

       (two times), prostitution, public intoxication, operating a vehicle without ever

       receiving a license, operating while intoxicated, and malicious injury to

       personal property of at least $2,000 (South Carolina).


[17]   For his prior criminal actions, Goldsmith was frequently afforded leniency with

       suspended sentences, probation, home detention, and fines. Instead of taking

       advantage of these opportunities to turn his life around, Goldsmith had his

       probation revoked at least seven times, committed approximately five parole

       violations, and had his home detention privileges revoked twice. Moreover,


       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 8 of 9
       none of these measures were sufficient to deter him from committing the

       present offense. Goldsmith’s refusal to lead a law-abiding life is also evidenced

       by his admission that on the day he hit M.W., he was under the influence of

       both alcohol and cocaine. Despite Goldsmith’s insistence that he did not strike

       M.W. intentionally—claiming instead that his “blood sugar was low[,] I have

       diabetes and [was] dranking [sic]”—he expressed no remorse for the injuries he

       inflicted upon her. (Appellant’s Conf. App. p. 140). Contrary to Goldsmith’s

       argument, the nature of the offense and his character do not entitle him to a

       sentence revision. We therefore affirm the forty-year sentence imposed by the

       trial court.


                                               CONCLUSION

[18]   Based on the foregoing, we conclude that Goldsmith’s sentence is not

       inappropriate.


[19]   Affirmed.


[20]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A04-1508-CR-1044 | April 5, 2016   Page 9 of 9
