MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                               Jul 30 2018, 10:08 am
the defense of res judicata, collateral
                                                                                CLERK
estoppel, or the law of the case.                                           Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David W. Stone IV                                         Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana

                                                          Evan Matthew Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Kirby,                                          July 30, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-342
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Angela G. Warner
Appellee-Plaintiff.                                       Sims, Judge
                                                          Trial Court Cause No.
                                                          48C01-1612-CM-2466



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018                        Page 1 of 6
                                           Case Summary
[1]   Robert L. Kirby was sentenced to a 365-day term of incarceration after he was

      found guilty of Class A misdemeanor domestic battery. In challenging his

      sentence on appeal, Kirby contends both that the trial court abused its

      discretion in sentencing him and that his sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   At approximately 10:00 p.m. on April 25, 2016, Anderson Police Officer Shad

      Grille responded to a reported domestic battery at the home of Gary Stanley.

      Upon arriving at the home, Officer Grille found Amber Smith, Kirby’s on-

      again-off-again girlfriend, lying on the floor with swelling and bruising on her

      face. Smith complained of “pain to her face and head.” Tr. p. 79.


[3]   Officer Grille observed that Smith appeared to be intoxicated. Smith admitted

      that she and Kirby had been drinking together at their home. An argument

      ensued after Smith “refused to have sex” with Kirby. Tr. p. 97. Smith took

      Kirby’s bicycle and a few beers from the couple’s refrigerator and fled the

      residence. She then made her way to Stanley’s home. Kirby followed Smith.

      After arriving at Stanley’s home, Kirby walk up to Smith and grabbed and

      pushed her before fleeing the scene.


[4]   The State charged Kirby with Class A misdemeanor domestic battery.

      Following trial, the jury found Kirby guilty as charged. On January 16, 2018,

      the trial court sentenced Kirby to a term of 365 days.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018   Page 2 of 6
                                 Discussion and Decision
[5]   Kirby raises two challenges to his sentence on appeal. First, he contends that

      the trial court abused its discretion by finding his criminal history to be an

      aggravating factor. Next, he contends that his 365-day sentence is

      inappropriate. We disagree with both contentions.


                                     I. Abuse of Discretion
[6]   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), modified on other grounds on reh’g, 875 N.E.2d 218

      (Ind. 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.

      (quotation omitted).


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law. Under
              those circumstances, remand for resentencing may be the
              appropriate remedy if we cannot say with confidence that the
              trial court would have imposed the same sentence had it properly
              considered reasons that enjoy support in the record.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018   Page 3 of 6
      Id. at 490-91. A single aggravating factor may support an enhanced sentence.

      Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).


[7]   Indiana Code section 35-38-1-7.1(a)(2) provides that in determining what

      sentence to impose, a trial court may consider the fact that the person “has a

      history of criminal or delinquent behavior.” The trial court found Kirby’s

      criminal history to be “lengthy.” Tr. p. 203. Kirby’s criminal history consists

      of six misdemeanor convictions and three federal felony convictions. We

      cannot say that the trial court abused its discretion by referring to a criminal

      history consisting of nine convictions as lengthy. Further, to the extent that

      Kirby asserts that the trial court placed too much weight on this factor, “a trial

      court no longer has any obligation to ‘weigh’ aggravating and mitigating factors

      against each other when imposing a sentence … [and] cannot now be said to

      have abused its discretion in failing to ‘properly weigh’ such factors.”

      Anglemyer, 868 N.E.2d at 491.


                             II. Appropriateness of Sentence
[8]   Indiana Appellate Rule 7(B) provides that “The 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.” In analyzing such claims, we “‘concentrate

      less on comparing the facts of [the case at issue] to others, whether real or

      hypothetical, and more on focusing on the nature, extent, and depravity of the

      offense for which the defendant is being sentenced, and what it reveals about


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018   Page 4 of 6
       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[9]    In challenging the appropriateness of his sentence, Kirby argues that he should

       not have received a maximum sentence because he “does not fall in the

       category of worst offender.” Appellant’s Br. p. 12. While Kirby’s actions and

       character may not represent the most egregious or depraved to ever come before

       this court, we cannot say that his 365-day sentence was inappropriate. Kirby

       and Smith argued after she rejected his sexual advances. The situation would

       likely have ended without violence had Kirby not decided to follow her after

       she attempted to remove herself from the contentious situation. Instead, Kirby

       decided to follow her to Stanley’s home where he grabbed her by the arms and

       hair and pushed her.


[10]   Kirby’s criminal history also reflects poorly on his character. “Additionally,

       although a record of arrests by itself is not evidence of a defendant’s criminal

       history, it is appropriate to consider such a record as a poor reflection on the

       defendant’s character, because it may reveal that he or she has not been

       deterred even after having been subjected to the police authority of the State.”

       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (citing Cotto v.

       State, 829 N.E.2d 520, 526 (Ind. 2005)). The record reveals that Kirby engaged

       in criminal activity over a span of more than three decades. In addition to his

       nine convictions, Kirby has been arrested three times for invasion of privacy.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018   Page 5 of 6
       He has been arrested twice each for criminal confinement, battery resulting in

       bodily injury, and resisting law enforcement. Kirby has also been arrested for

       battery, burglary, possession of a controlled substance for resale, disorderly

       conduct, maintaining a common nuisance, and interference with the reporting

       of a crime. Kirby’s continued participation in criminal activity demonstrates

       that he has failed to reform his behavior despite numerous opportunities to do

       so. Kirby has also long abused alcohol and such abuse appears to correspond

       with his decision to engage in criminal behavior. Kirby has failed to convince

       us that his 365-day sentence is inappropriate.


[11]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018   Page 6 of 6
