      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Apr 20 2015, 9:37 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                        Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Jesse R. Drum
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Keandre Arnold,                                          April 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1407-CR-500
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Kurt M. Eisgruber,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G01-1305-FA-35062




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Keandre Arnold appeals the sentence he received for his convictions of

      attempted murder, a Class A felony, Indiana Code sections 35-42-1-1 (2007)



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      and 35-41-5-1 (1977), and invasion of privacy, a Class A misdemeanor, Indiana

      Code section 35-46-1-15.1 (2010). We affirm.


                                                     Issue
[2]   Arnold presents one issue for our review, which we restate as: whether the trial

      court abused its discretion in sentencing Arnold.


                               Facts and Procedural History
[3]   In May 2013, Arnold shot a gun at Aaron Coats in an attempt to kill Coats.

      Based upon this incident, Arnold was charged with attempted murder and

      invasion of privacy. The trial court sentenced Arnold to forty years on the

      attempted murder conviction and 365 days on the invasion of privacy

      conviction, to be served concurrent with the forty years. The final four years of

      Arnold’s sentence were to be served in a community corrections program.

      Arnold now appeals his sentence.


                                   Discussion and Decision
[4]   Arnold contends the trial court abused its discretion in sentencing him to an

      aggregate forty-year sentence. Sentencing decisions rest within the sound

      discretion of the trial court and are reviewed on appeal only for an abuse of

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218 (2007). An abuse of discretion occurs if the decision is clearly

      against the logic and effect of the facts and circumstances before the court, or

      the reasonable, probable, and actual deductions to be drawn therefrom. Id.


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      When imposing a sentence for a felony, a trial court must enter a sentencing

      statement including reasonably detailed reasons for imposing a particular

      sentence. Id. at 491. A trial court abuses its discretion when it fails to issue a

      sentencing statement, gives reasons for imposing a sentence that are not

      supported by the record, omits reasons clearly supported by the record and

      advanced for consideration, or considers reasons that are improper as a matter

      of law. Id. at 490-91. Remand for resentencing may be appropriate if we

      cannot say with confidence that the trial court would have imposed the same

      sentence had it properly considered the reasons supported by the record. Id. at

      491.


[5]   Arnold alleges that error occurred when a factor that is improper as a matter of

      law was considered in determining his sentence. Specifically, he claims the trial

      court abused its discretion by finding as an aggravating circumstance the fact

      that he fired a gun into a home. At sentencing, the trial court remarked that

      “shots were fired at that residence. That’s huge. It’s a huge aggravator in your

      instance.” Tr. p. 177. Arnold argues this is an improper aggravating

      circumstance because it constitutes a material element of the offense of

      attempted murder.


[6]   The nature and circumstances of an offense is a proper aggravating factor.

      McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). Arnold is correct, though,

      that a factor constituting a material element of an offense may not be used as an

      aggravating circumstance. See Spears v. State, 735 N.E.2d 1161, 1167 (Ind.

      2000). However, when the trial court evaluates the nature and circumstances of

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      an offense, it may properly consider the particularized circumstances of the

      factual elements as an aggravating factor. McElroy v. State, 865 N.E.2d 584,

      589-90 (Ind. 2007).


[7]   In order to convict Arnold of attempted murder, the State had to prove that he

      intentionally took a substantial step toward killing Coats by shooting a handgun

      at him. See Appellant’s App. p. 22; see also Ind. Code §§ 35-42-1-1, 35-41-5-1.

      The evidence at trial showed that at the time of this incident, Coats was at

      home with his girlfriend and her three daughters. The interior wood door was

      open but an exterior storm door closed the house to the outside. Through the

      storm door, the girls saw someone approaching the house. Coats went to the

      door and a man asked for one of the girls. Arnold then appeared, said

      “Remember me? I’m gonna kill ya,” and began shooting. Tr. p. 62. Coats saw

      the gun and told his family to run. Bullets entered the exterior of the home and

      exited into the interior of the home, and one bullet pierced the couch in the

      living room where the three girls had been sitting.


[8]   In sentencing Arnold, the trial court relied on the danger created by firing a gun

      into a room full of people as it considered the unique circumstances of this

      offense. This finding is supported by the evidence and is a proper comment

      upon the nature and circumstances of Arnold’s offense. See Hape v. State, 903

      N.E.2d 977, 1001-02 (Ind. Ct. App. 2009) (holding that trial court did not abuse

      its discretion in recognizing danger posed to community during car chase as

      aggravating circumstance in sentencing for offense of resisting law

      enforcement), trans. denied. Thus, the trial court did not err in finding as an

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       aggravating circumstance the fact that shots were fired into a room full of

       people.


[9]    Moreover, additional aggravating factors exist to support Arnold’s enhanced

       sentence. At sentencing, the trial court stated that “[t]he aggravators clearly

       overwhelm the mitigators.” Tr. p. 177. The court then discussed the

       aggravating circumstances, beginning with the fact that Arnold cut off his home

       detention ankle monitor just days before he attacked Coats, who was also the

       victim in Arnold’s previous case. The court labeled this a “worst case scenario”

       and then turned to Arnold’s juvenile record, which it stated was another “huge

       aggravator” and that Arnold had “built quite a record” for being only eighteen.

       Id. Thus, given the severity of the additional aggravators, we are not persuaded

       that the trial court would have imposed a different sentence even in the absence

       of the aggravating circumstance of firing a gun into a room full of people.


                                                Conclusion
[10]   For the reasons stated, we conclude the trial court did not err in finding

       Arnold’s act of firing a gun into a room full of people as an aggravating

       circumstance when it determined his sentence upon his convictions of

       attempted murder and invasion of privacy.


[11]   Affirmed.


[12]   Najam, J., and Pyle, J., concur.




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