MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                    FILED
regarded as precedent or cited before any                                   Jul 10 2019, 9:20 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
Kay A. Beehler                                            Curtis T. Hill, Jr.
Terre Haute, Indiana                                      Attorney General of Indiana
                                                          Matthew B. Mackenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle R. Griffith,                                         July 10, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2496
        v.                                                Appeal from the Vigo Superior
                                                          Court
State of Indiana,                                         The Honorable John T. Roach,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          84D01-1804-F2-1107
                                                          84D01-1804-F4-1172
                                                          84D01-1407-F5-1838



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019                           Page 1 of 8
                                               Case Summary
[1]   Kyle R. Griffith appeals his fourteen-year aggregate sentence, received pursuant

      to his guilty plea, for battery with a deadly weapon, a Level 5 felony, and

      possession of a handgun as a serious violent felon, a Level 4 felony. We affirm.


                                                      Issues
[2]   Griffith raises two issues, which we restate as:


              I.       Whether the trial court relied upon improper aggravating
                       circumstances in imposing Griffith’s enhanced sentence.

              II.      Whether the trial court gave insufficient mitigating weight to
                       Griffith’s testimony.

                                                       Facts
[3]   On March 19, 2018, while he was on parole and probation from an earlier

      offense, Griffith entered his sister’s home and struck her boyfriend with a

      handgun. 1 Griffith was under the influence of methamphetamine and bath

      salts, which caused him to experience hallucinations and paranoid delusions.

      On April 5, 2018, the State charged Griffith under cause number 84D01-1804-

      F2-1107 with burglary, a Level 2 felony; battery by means of a deadly weapon,

      a Level 5 battery; and unlawful possession of a firearm by a serious violent

      felon, a Level 4 felony. At the time of his arrest, Griffith had a handgun in his




      1
       On July 14, 2014, the State charged Griffith under cause number 84D01-1407-F5-1838 with battery by
      means of a deadly weapon, a Level 5 felony, and criminal mischief, a Class B misdemeanor. He pleaded
      guilty to battery by means of a deadly weapon and was sentenced to four years executed pursuant to a plea
      agreement.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019                    Page 2 of 8
      possession. Accordingly, on April 10, 2018, the State charged Griffith under

      cause number 84D01-1804-F4-1172 with unlawful possession of a firearm by a

      serious violent felon, a Level 4 felony.


[4]   On September 21, 2018, Griffith pleaded guilty to battery with a deadly weapon

      in 84D01-1804-F2-1107 and unlawful possession of a handgun as a serious

      violent felon in 84D01-1804-F4-1172. 2 At sentencing, Griffith admitted his

      involvement with the criminal justice system since he was eleven years old; he

      also admitted that he failed treatment offered by the juvenile justice system and

      that he failed to complete the Freebirds program. 3 Griffith admitted that he was

      on parole for his earlier conviction when he committed the 84D01-1804-F2-

      1107 and 84D01-1804-F4-1172 offenses. Also, Griffith’s placements in

      community corrections and on probation were revoked in past cases.


[5]   In its sentencing statement, the trial court explicitly found, as aggravating

      factors, Griffith’s prior criminal history and Griffith’s violation of his probation

      and parole. The trial court sentenced Griffith to a five-year executed term in

      84D01-1804-F2-1107 and to a nine-year consecutive term in 84D01-1804-F4-

      1172, for an aggregate sentence of fourteen years. Griffith now appeals.




      2
       Griffith also admitted to violating the terms of his earlier probation and parole for the 84D01-1407-F5-1838
      offense by committing the new offenses charged in 84D01-1804-F2-1107 and 84D01-1804-F4-1172; the trial
      court did not impose a sanction for Griffith’s admitted probation violations. Griffith does not challenge the
      84D01-1407-F5-1838 probation violation adjudication on appeal.
      3
        The Freebirds program is a sober living program that provides housing in a sober environment for people
      recovering from addiction.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019                     Page 3 of 8
                                                   Analysis
                                    I.      Improper Aggravating Factors

[6]   Sentencing decisions rest within the sound discretion of the trial court.

      Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

      218 (Ind. 2007). So long as the sentence is within the statutory range, it is

      subject to review only for an abuse of discretion. Id. An abuse of discretion will

      be found where 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.


[7]   A trial court may abuse its discretion in a number of ways, including: (1) failing

      to enter a sentencing statement at all; (2) entering a sentencing statement that

      includes aggravating and mitigating factors that are unsupported by the record;

      (3) entering a sentencing statement that omits reasons that are clearly supported

      by the record; or (4) entering a sentencing statement that includes reasons that

      are improper as a matter of law. Id. at 490-91. If a trial court abuses its

      discretion by improperly considering an aggravating circumstance, we need to

      remand for resentencing only “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.” Anglemyer, 868 N.E.2d at 491.


[8]   Griffith argues that the trial court “improperly considered [his] possession of a

      handgun in both cases as an aggravating factor.” Appellant’s Br. p. 5.

      According to its oral and written sentencing statements, the trial court found


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019   Page 4 of 8
       only two aggravating factors: (1) Griffith’s prior criminal history; and (2)

       Griffith’s violation of his probation and parole. The record is clear that the trial

       court did not consider Griffith’s possession of a handgun in either the 84D01-

       1804-F2-1107 or 84D01-1804-F4-1172 causes as an aggravating factor. In

       recounting Griffith’s long criminal history, the trial court merely remarked that

       Griffith committed violent offenses with a deadly weapon. 4 In so doing, the

       trial court properly considered the severity of Griffith’s criminal history,

       coupled with his drug addiction, in sentencing him. The record does not

       support Griffith’s contention that the trial court improperly identified Griffith’s

       possession of a handgun as an aggravating factor.


[9]    Also, Griffith claims that the trial court abused its discretion by relying “upon

       factors which are not supported by the record.” Appellant’s Br. p. 8.

       Specifically, he argues that “there is no evidence in the record to support the

       trial court’s apparent opinion that . . . Griffith would have shot [his sister’s

       boyfriend].” Id. This is belied by the record.


[10]   In discussing Griffith’s violent tendencies caused by his drug-induced psychosis,

       the trial court stated, “there would have been every circumstance for an impulse



       4
         This observation was based on Griffith’s pre-sentence investigation report, which listed his prior criminal
       history including juvenile adjudications for the following acts, that if committed by an adult, would be: (1)
       criminal conversion, a Class A misdemeanor (2004); (2) theft, a Class D felony (2006); (3) criminal mischief,
       a Class B misdemeanor (2006); (4) criminal recklessness, a Class A misdemeanor (2006); (5) false reporting, a
       Class B misdemeanor (2007); (6) false reporting, a Class B misdemeanor, resisting law enforcement, a Class
       A misdemeanor, and battery on law enforcement, a Class D felony (2008). Griffith’s adult criminal history
       includes convictions for: (1) robbery resulting in bodily injury, a Class B felony, and battery with a deadly
       weapon, a Class C felony (2011) (one probation violation); (2) escape, a Class C felony (2012); and (3)
       battery with a deadly weapon (2015) (two probation violations).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019                     Page 5 of 8
       for [Griffith] to pull the trigger and shoot” his sister’s boyfriend. Tr. p. 30.

       Griffith’s argument mischaracterizes the trial court’s statement. The trial

       court’s comment was merely an observation of the gravity of the offense.


[11]   Next, Griffith asserts that the trial court found his admitted probation violation

       to be an aggravating factor. Griffith contends that, “[c]learly, the fact of a

       probation violation is a necessary element in a charge that he had violated his

       probation.” Appellant’s Br. p. 8. Griffith was actively on parole and probation

       when he committed the instant offenses. Pursuant to Indiana Code Section 35-

       38-1-7.1(a)(6), a trial court may consider recent probation and parole violations

       as aggravating factors. Griffith has failed to show that the trial court abused its

       discretion in recognizing his recent probation violation as an aggravating factor.


[12]   Even if the trial court had considered improper aggravators, another valid

       aggravating circumstance, that Griffith does not challenge, justify the sentence

       enhancement. In detailing Griffith’s violent criminal history, the trial court

       noted:


                You’ve got a violent offense as a juvenile, you’ve got robbery
                with bodily injury, inflicted with a deadly weapon in 2011,
                you’ve got the escape, you turn around and commit battery with
                a deadly weapon in 2015, you’ve got battery with a deadly
                weapon now, and then you’ve got violent felon in possession of a
                weapon, so that’s become a part of who you are is carrying this
                weapon, which, in my mind, makes your addiction even more
                scary.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019   Page 6 of 8
       Tr. Vol. II p. 30. Accordingly, Griffith has not convinced us that the trial court

       abused its discretion in sentencing him.


                                     II.      Overlooked Mitigating Factor

[13]   Griffith further contends that the trial court gave insufficient mitigating weight

       to Griffith’s testimony that his family understood that he would not have

       committed the offense absent his drug-induced psychosis. A trial court is not

       obligated to accept a defendant’s claim as to what constitutes a mitigating

       circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A trial court

       has discretion to determine whether the factors are mitigating, and it is not

       required to explain why it does not find the defendant’s proffered factors to be

       mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A

       claim that the trial court failed to find a mitigating circumstance requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Anglemyer, 868 N.E.2d at 493. A trial court’s

       sentencing order may not be challenged as reflecting an improper weighing of

       aggravating or mitigating circumstances. Id. at 491.


[14]   To the extent that Griffith asks us to afford more mitigating weight to his

       testimony that his family knew that he would not have committed the offense

       but for his drug-induced psychosis, we cannot do so. See id., (holding that “the

       relative weight or value assignable to” aggravating or mitigating circumstances

       that were either found or overlooked is not subject to review for abuse).

       Moreover, to the extent that Griffith contends the trial court erred by failing to

       consider this contention as a mitigating factor, the circumstance is neither
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019   Page 7 of 8
       significant nor clearly supported by the record. The trial court did not abuse its

       discretion in declining to find, as mitigating, that Griffith would not have

       committed the offense absent his drug usage.


                                                 Conclusion
[15]   The trial court did not abuse its sentencing discretion by relying upon improper

       aggravating circumstances or by declining to find a proposed mitigating

       circumstance. We affirm.


[16]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2496 | July 10, 2019   Page 8 of 8
