MEMORANDUM DECISION                                                     FILED
                                                                   Feb 21 2018, 8:47 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                            CLERK
                                                                    Indiana Supreme Court
precedent or cited before any court except for the                     Court of Appeals
                                                                         and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
David M. Payne                                         Curtis T. Hill, Jr.
Ryan & Payne                                           Attorney General of Indiana
Marion, Indiana
                                                       Larry D. Allen
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Dillon D. Scarbrough,                                      February 21, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           27A02-1706-CR-1243

        v.                                                 Appeal from the Grant Superior
                                                           Court
State of Indiana,                                          The Hon. Warren Haas, Judge
                                                           Trial Court Cause Nos.
Appellee-Plaintiff.
                                                           27D03-1606-F6-248
                                                           27D03-1607-F6-275




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018    Page 1 of 18
                                          Case Summary
[1]   In this consolidated appeal, Appellant-Defendant Dillon D. Scarbrough appeals

      from convictions and sentences arising out of two incidents. In June of 2016, a

      police officer noticed Scarbrough approaching in his truck from behind at a

      high rate of speed. When the officer directed Scarbrough to pull into a nearby

      parking lot, Scarbrough sped off instead, eventually stopping in a dark alley.

      When the officer followed, Scarbrough approached on foot, screaming, and

      forcibly resisted the officer. In cause number 27D03-1606-F6-248 (“Cause No.

      248”), Scarbrough was charged with and convicted of Level 6 felony resisting

      law enforcement and Class A misdemeanor resisting law enforcement.


[2]   In July of 2016, Scarbrough appeared outside the Grant County Jail restraining

      a person he claimed to be arresting. When officers instead decided to arrest

      Scarbrough on several charges, he told the jail officers who were booking him

      that he planned to perform citizen’s arrests on several officers and any who

      resisted would be killed. In cause number 27D03-1607-F6-275 (“Cause No.

      275”), Scarbrough was charged with and convicted of Level 6 felony

      intimidation. Following a combined sentencing hearing, the trial court

      imposed an aggregate sentence of four years of incarceration. Scarbrough

      appealed in both Cause Nos. 248 and 275, and this court ordered the appeals

      consolidated. Scarbrough contends that the trial court abused its discretion in

      admitting certain evidence, the State failed to introduce sufficient evidence to

      sustain his convictions, and his sentence is inappropriately harsh. Because we

      disagree, we affirm.


      Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 2 of 18
                            Facts and Procedural History
                                          I. Cause No. 248
[3]   At approximately 10:00 p.m. on June 25, 2016, Marion Police Sergeant

      Benjamin Williams noticed a General Motors truck “bearing down on [him] at

      a high rate of speed from behind.” Cause No. 248 Tr. Vol. I p. 125. When

      Sergeant Williams activated his lights to the rear, the truck, driven by

      Scarbrough, pulled alongside. Scarbrough rolled his window down and

      screamed, “Are you one of the f****** cops that stopped me the other day?”

      Cause No. 248 Tr. Vol. I p. 127. When Sergeant Williams directed Scarbrough

      to pull into a nearby parking lot, Scarbrough immediately drove away from

      him, “full on the accelerator.” Cause No. 248 Tr. Vol. I p. 130. Sergeant

      Williams began pursuit, activating his vehicle’s red and blue lights. After a

      short chase, Scarbrough pulled his truck “very deep” into a “dark alley[,]”

      passing by an easily-accessible, well-lit parking lot. Cause No. 248 Tr. Vol. I p.

      131.


[4]   After Scarbrough stopped his truck, he “jumped out of the passenger side and

      ran at [Sergeant Williams’s] squad car[,]” screaming incomprehensibly. Cause

      No. 248 Tr. Vol. I p. 132. Sergeant Williams told Scarbrough to stop; met him

      near the front fender of his police vehicle; and forced him down, face-forward,

      on the hood. As Sergeant Williams held Scarbrough down, Scarbrough was

      “fighting, resisting, throwing elbows, that sort of thing[.]” Cause No. 248 Tr.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 3 of 18
      Vol. I p. 134. After Marion Police Officer Kyle Griffith arrived, Scarbrough

      was subdued.


[5]   On June 27, 2016, the State charged Scarbrough in Cause No. 248 with Level 6

      felony resisting law enforcement with a vehicle and Class A misdemeanor

      forcibly resisting law enforcement. During Scarbrough’s trial, Sergeant

      Williams testified that the location where Scarbrough stopped his truck caused

      him “lots of concerns” and that it was not a usual traffic stop. Cause No. 248

      Tr. Vol. I p. 143. When asked to express what his concerns were, Sergeant

      Williams explained as follows, without objection:


              [T]his in police training would be referred to as a fatal funnel.
              This is a situation where there is nowhere to escape to as far as
              put in a police situation where you know safety of the police
              office[r]. This is a[sic] your stuck between two (2) buildings, and
              keep in mind, this is taken during the daytime. This was dark.
              Very dark after 10:00 o’clock at night. There was nowhere to go
              it was literally being trapped between two (2) buildings.
      Cause No. 248 Tr. Vol. I p. 143.


[6]   Officer Griffith was asked whether he saw any issues with the way the vehicles

      were stopped in the alley. Scarbrough objected to the question on relevancy

      grounds, to which the State responded that it was relevant to Scarbrough’s

      intent. Officer Griffith stated:


              [T]his is not an ideal situation for the officer. Essentially he’s
              placed in a larger version of what we call the fatal funnel. Which
              is generally referred to when you’re talkin[] about a doorway, or
              you’re entering a house, or another room. We call it the fatal
              funnel because if somebody’s gonna shoot you it’s generally

      Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 4 of 18
              gonna be through that doorway. So whenever you’re
              approaching you wanna try to be out of the main straight on
              view of the door. You wanna try to do it at an angle cut we’ll
              call it slicing the pie kind of checking you know the next room or
              whatever you’re looking at. Slowly so that you can make sure
              the threat isn’t there, but you would never wanna walk up to a
              door head face or straight on because you’re essentially getting in
              that funnel. Well this is essentially a larger version of it with the
              officer being you know in this funnel between these two (2)
              buildings.
[7]   Cause No. 248 Tr. Vol. I pp. 187–88. The jury found Scarbrough guilty as

      charged.


                                         II. Cause No. 275
[8]   At approximately 2:00 p.m. on July 1, 2016, Grant County Sherriff’s Jail

      Officer Roberta Stitnicky was on duty at the Grant County Jail when she heard

      tires screeching outside followed by pounding on an entrance generally used by

      officers to bring prisoners in. Jail Officer Stitnicky saw three men outside, one

      of whom yelled for her to come out. Instead of immediately going outside, Jail

      Officer Stitnicky radioed for assistance. Scarbrough, who was one of the three

      men, stated that he was making a citizen’s arrest. Scarbrough was restraining

      one of the other men and yelled at him, “[Y]ou keep stealing from me… I let

      you work it off and why would you just keep stealing from me?” Cause No.

      275 Tr. Vol. I p. 130. Scarbrough told the man to “shut the f*** up” or

      Scarbrough would punch him in the mouth. Cause No. 275 Tr. Vol. I p. 131.

      Jail Officer Stitnicky did eventually walk outside with another jail officer, and a

      few minutes later, Grant County Sheriff’s Deputies arrived to assist.



      Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 5 of 18
       Scarbrough, who was wearing brass knuckles, was arrested on suspicion of

       reckless driving, battery, and criminal confinement.


[9]    While Scarbrough was being booked by Jail Officers Stitnicky and Andrew

       Turner, he said that he was going to start arresting officers and stated that “if

       they resisted he would have them killed.” Cause No. 275 Tr. Vol. I p. 133.

       Scarbrough was aggressive with his threat, and Jail Officers Stitnicky and

       Turner both took it seriously. On July 11, 2016, the State charged Scarbrough

       with, inter alia, Level 6 felony intimidation, and on April 19, 2017, a jury found

       Scarbrough guilty of that charge.


                              III. Common Procedural Facts
[10]   On May 16, 2017, the trial court conducted a combined sentencing hearing for

       Cause Nos. 248 and 275. In Cause No. 248, the trial court sentenced

       Scarbrough to two years of incarceration for Level 6 felony resisting law

       enforcement with a vehicle and 266 days for Class A misdemeanor forcibly

       resisting law enforcement, to be served concurrently. In Cause No. 275, the

       trial court sentenced Scarbrough to two years of incarceration for Level 6 felony

       intimidation, to be served consecutively to his sentence in Cause No. 248.

       Scarbrough filed separate notices of appeal in Cause Nos. 248 and 275, and, on

       November 13, 2017, this court ordered that the appeals be consolidated.


                                  Discussion and Decision



       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 6 of 18
                   I. Admission of Evidence in Cause No. 248
[11]   Scarbrough challenges the trial court’s admission of testimony from two police

       officers regarding “fatal funnels.” The State contends that the evidence is

       relevant to prove Scarbrough’s intent to flee, while Scarbrough contends that it

       is unduly prejudicial. We will only reverse a trial court’s decision on the

       admissibility of evidence upon a showing of an abuse of that discretion. Curley

       v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). An abuse of discretion may

       occur if the trial court’s decision is clearly against the logic and effect of the

       facts and circumstances before the court, or if the court has misinterpreted the

       law. Id. The Court of Appeals may affirm the trial court’s ruling if it is

       sustainable on any legal basis in the record, even though it was not the reason

       enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App.

       2005). We do not reweigh the evidence and consider the evidence most

       favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind.

       Ct. App. 2006). “Errors in the admission of evidence are to be disregarded as

       harmless unless they affect the substantial rights of the defendant.” Goudy v.

       State, 689 N.E.2d 686, 694 (Ind. 1997).


[12]   Scarbrough did object to Officer Griffith’s testimony; however, even if we

       assume that the admission of Officer Griffith’s testimony was an abuse of

       discretion, it could only be considered harmless error in light of the

       overwhelming evidence of Scarbrough’s guilt. See, e.g., Manetta v. State, 527

       N.E.2d 178, 179 (Ind. 1988) (“We find it unnecessary to address this issue, for

       assuming arguendo the evidence was erroneously admitted, such admission


       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 7 of 18
       would be harmless where the evidence supporting the guilty finding was not

       only substantial but overwhelming.”). The evidence regarding Scarbrough’s

       actions is not in dispute, and clearly supports a conviction for resisting law

       enforcement. Indeed, Scarbrough’s testimony corroborates the testimony that

       he bypassed other parking lots before pulling deeply into the alley, contending

       only that he believed the alley to be the first convenient stopping place. In other

       words, Scarbrough admits that did not pull over immediately upon being told

       to, nor did he pull over where he was directed to. In light of the overwhelming

       evidence that Scarbrough fled from Sergeant Williams, the admission of Officer

       Griffith’s testimony, even if erroneous, could only be considered harmless.


[13]   As for Sergeant Williams’s testimony, Scarbrough did not object to it and has

       therefore waived any argument against it for appellate consideration. The

       purpose of the contemporaneous objection rule is to promote a fair trial by

       preventing a party from sitting idly by and appearing to assent to an offer of

       evidence or ruling by the court only to cry foul when the outcome goes against

       him. Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied

       (citation omitted). Scarbrough does not attempt to avoid the effects of his

       waiver by claiming that the admission amounted to fundamental error, which is

       “a clearly blatant violation of basic and elementary principles, where the harm

       or potential for harm cannot be denied, and which violation is so prejudicial to

       the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887

       N.E.2d 939, 942 (Ind. 2008). Even if Scarbrough had made a claim of

       fundamental error, it would not have helped him. As stated earlier, in light of



       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 8 of 18
       the evidence of Scarbrough’s guilt of Level 6 felony resisting law enforcement,

       any error in the admission of Sergeant Williams’s testimony (as with Officer

       Griffith’s testimony) could only be considered harmless.


                               II. Sufficiency of the Evidence
[14]   Scarbrough contends that the State failed to produce sufficient evidence to

       sustain his convictions for Level 6 felony and Class 1 misdemeanor resisting

       law enforcement in Cause No. 248 and Level 6 felony intimidation in Cause

       No. 275.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting verdict. 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. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.
       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in




       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 9 of 18
       original). “We will not reweigh conflicting evidence or judge the credibility of

       witnesses.” Heaton v. State, 483 N.E.2d 58, 59 (Ind. 1985).


                               A. Level 6 Felony Resisting Law
                                Enforcement in Cause No. 248
[15]   Indiana Code section 35-44.1-3-1 provides, in part, that


               [a] person who knowingly or intentionally … flees from a law
               enforcement officer after the officer has, by visible or audible
               means, including operation of the law enforcement officer’s siren
               or emergency lights, identified himself or herself and ordered the
               person to stop … commits resisting law enforcement, [a] Level 6
               felony if … the person uses a vehicle to commit the offense[.]


[16]   Scarbrough contends only that the State failed to prove that he fled from

       Sergeant Williams, noting that he ultimately pulled over approximately forty to

       fifty yards from where he was told to pull over and then turned to engage police

       instead of attempting further flight. Put another way, Scarbrough seems to

       maintain that the only reasonable interpretation of the evidence is that he did

       not drive far enough to establish flight and was simply attempting to comply

       with Sergeant Williams’s order to pull over.


[17]   We do not agree that this is the only reasonable interpretation of the evidence.

       As we recently noted, “[j]uries are uniquely positioned to decide whether a

       driver was unnecessarily increasing the burden on police officers, or whether a

       driver was taking reasonable steps that common sense would dictate.” Cowans

       v. State, 53 N.E.3d 540, 546 (Ind. Ct. App. 2016). All that is required is that the



       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 10 of 18
       record contain evidence from which a jury could conclude that Scarbrough

       made “‘a knowing attempt to escape law enforcement when … aware that a law

       enforcement officer ha[d] ordered him to stop or remain in place once there[,]’”

       however short the flight or unsuccessful the attempt ultimately proved to be. Id.

       at 545 (quoting Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App. 1998)).


[18]   The evidence most favorable to the judgment is that when Sergeant Williams

       told Scarbrough to pull over into an adjacent parking lot, Scarbrough instead

       accelerated “full on,” drove through an intersection, passed another well-lit

       parking area, turned left, and finally stopped in a dark alleyway. The jury could

       reasonably have concluded that these were not the actions of a person

       attempting to comply with an officer’s direction and that Scarbrough’s actions

       constituted flight. Scarbrough’s argument is nothing more than an invitation to

       reweigh the evidence, which we will not do. See Heaton, 483 N.E.2d at 59.


                         B. Class A Misdemeanor Resisting Law
                             Enforcement in Cause No. 248
[19]   Indiana Code section 35-44.1-3-1 provides, in part, that “[a] person who

       knowingly or intentionally … forcibly resists, obstructs, or interferes with a law

       enforcement officer or a person assisting the officer while the officer is lawfully

       engaged in the execution of the officer’s duties … commits resisting law

       enforcement, a Class A misdemeanor[.]” Scarbrough does not argue that he

       did not forcibly resist Sergeant Williams and Officer Griffith, only that the

       entire incident was the result a series of misunderstandings and/or he was

       somehow justified in doing so. Even if we were to assume that any of this

       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 11 of 18
       would help Scarbrough, the jury was under no obligation to credit his version of

       events, and apparently did not. As with the previous argument, this argument

       is nothing more than an invitation to reweigh the evidence, which we will not

       do.


                              C. Intimidation in Cause No. 275
[20]   Indiana Code section 35-45-2-1 provides, in part, that


               [a] person who communicates a threat to another person, with
               the intent:
                   (1) that the other person engage in conduct against the other
                   person’s will [or]
                   (2) that the other person be placed in fear of retaliation for a
                   prior lawful act …
               commits intimidation, a …
                   (1) Level 6 felony if:
                        (A) the threat is to commit a forcible felony[.]


       “To prove intimidation, the State must establish that the legal act occurred prior

       to the threat and that the defendant intended to place the victim in fear of

       retaliation for that act.” C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014).


[21]   We conclude that the State produced sufficient evidence to sustain Scarbrough’s

       conviction for intimidation. While Jail Officers Stitnicky and Turner were

       booking him, Scarbrough said that “he was going to … start arresting officers

       and if they resisted he would have them killed [and that] they’re not going to

       know where they’re coming from.” Cause No. 275 Tr. p. 133. At the very


       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 12 of 18
       least, a reasonable jury could have concluded that Scarbrough’s statement was a

       threat directed at the jail officers made with the intent to cause them to (1)

       submit to his future arrest of them against their will, (2) terminate Scarbrough’s

       booking process against their will, and/or (3) fear reprisals for their roles in

       facilitating his arrest and impending incarceration. Scarbrough makes several

       challenges to his intimidation convictions, none of which we find to be

       compelling.


[22]   Scarbrough claims that the State failed to prove a prior, legal act, i.e., that his

       arrest was somehow illegal. The record does not support this claim. Grant

       County Sheriff’s Deputy Matt Ogden indicated that he arrested Scarbrough for

       reckless driving, battery on the man that Scarbrough was restraining (based on

       the way that Scarbrough removed him from Scarbrough’s vehicle), and criminal

       confinement of that man. (Cause No. 275 Tr. Vol. I 177). Scarbrough does not

       dispute that probable cause to arrest him existed for all three of these charges.


[23]   Scarbrough’s first argument is essentially that because none of these charges

       resulted in conviction, his arrest for them must have been illegal. This

       argument is without merit. Dismissal of or acquittal on a criminal charge may

       occur for any number of reasons unrelated to the existence of probable cause at

       the time of arrest. If an arrest is legal at the time it is made, nothing that

       happens later can render is retroactively illegal, even if the prosecutor, a judge,

       or a jury eventually become convinced of the defendant’s innocence. See, e.g.,

       Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (“A valid arrest based




       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 13 of 18
       upon then-existing probable cause is not vitiated if the suspect is later found

       innocent.”).


[24]   Scarbrough also argues that his arrest was illegal because he was merely

       conducting a legal citizen’s arrest. At the time, however, all police had to go on

       was Scarbrough’s unverified claim to that effect. The record indicates that

       Deputy Ogden knew that officers had heard squealing tires, indicating possible

       reckless driving; had apparently seen Scarbrough pull another person out of his

       truck with force; and had seen Scarbrough restraining that person with force

       and heard him threatening to punch him in the face. This information in no

       way conclusively establishes that Scarbrough was conducting a valid citizen’s

       arrest and therefore provides more than enough probable cause to arrest

       Scarbrough. We will not craft a rule that would have required authorities to

       simply take Scarbrough’s word for it that he was conducting a valid citizen’s

       arrest.


[25]   Scarbrough also contends that his statement did not amount to a “threat” as it

       was conditional on the officers resisting his attempts to arrest them in the

       future. The Indiana Supreme Court, however, has made it clear that even a

       “conditional” threat may support an intimidation conviction by adopting this

       court’s conclusion to that effect. See Roar v. State, 54 N.E.3d 1001, 1002 (Ind.

       2016) (adopting and incorporating, in relevant part, Roar v. State, 52 N.E.3d 940

       (Ind. Ct. App. 2016), trans. granted). In our opinion in Roar, we rejected the

       notion that a threat could not contain conditional language and still be a threat,

       noting that “the language a defendant uses in communicating a threat may be


       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 14 of 18
       relevant to the fact-finder’s assessment of the defendant’s intent, but the

       language used is not the only relevant consideration.” Roar, 52 N.E.3d at 943.

       We also wholly agree with the Roar court’s observation that no defendant

       should be able to avoid prosecution for intimidation by rephrasing his threat as

       conditional. See id. (“Under the reasoning of [disapproved cases], no defendant

       can be convicted of intimidation if he has the presence of mind to explicitly use

       conditional language in the course of communicating his threat to another. But

       that is an unreasonable interpretation of our intimidation statute.”). To the

       extent that Scarbrough’s threat to Jail Officer’s Stitnicky and Turner may have

       been phrased conditionally, this does not help him.


[26]   Finally, Scarbrough argues that his statement about planning to arrest “officers”

       was not directed at the jail officers in his presence, but, rather, to the officers

       who arrested him, none of whom were in the vicinity at the time. This is a

       strained interpretation of the record for which there is no evidence. The jury

       was entitled to conclude that the statement was directed at Jail Officers

       Stitnicky and Turner, and it did. Scarbrough’s argument in this regard is

       nothing more than an invitation to reweigh the evidence, which we will not do.

       To summarize, we conclude that all of Scarbrough’s challenges to the

       sufficiency of the evidence supporting his convictions are without merit.


                                              III. Sentence
[27]   Scarbrough contends that his four-year, aggregate sentence is inappropriately

       harsh. We “may revise a sentence authorized by statute if, after due



       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 15 of 18
       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.” Ind. Appellate Rule 7(B). “Although appellate review of sentences

       must give due consideration to the trial court’s sentence because of the special

       expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)

       is an authorization to revise sentences when certain broad conditions are

       satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.

       denied (citations and quotation marks omitted). “[W]hether we regard a

       sentence as appropriate at the end of the day 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.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due

       consideration” we are required to give to the trial court’s sentencing decision,

       “we understand and recognize the unique perspective a trial court brings to its

       sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

       2007). The trial court sentenced Scarbrough to an aggregate sentence of four

       years of incarceration following his convictions for Level 6 felony resisting law

       enforcement, Level 6 felony intimidation, and Class A misdemeanor resisting

       law enforcement. The sentencing range for a Level 6 felony is from six to thirty

       months, with the advisory sentence being one year. See Ind. Code § 35-50-2-7.


[28]   As for the nature of Scarbrough’s offenses, they vary in seriousness. In Cause

       No. 248, the offenses were not particularly egregious. Scarbrough’s vehicular

       flight from Sergeant Williams was not long, and there is no evidence that any


       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 16 of 18
       other motorists were placed in any danger. While any vehicular flight has the

       potential to be dangerous, this is already reflected by the sentencing range

       mandated by the General Assembly for this particular form of resisting law

       enforcement. In Cause No. 275, Scarbrough’s intimidation was significantly

       more egregious, as it involved a threat directed at jail officers that he would

       have them killed if they resisted his attempts to arrest them. Pursuant to the

       intimidation statute, a threat involving any forcible felony raises the crime to

       felony status, and Scarbrough’s threat involved the most serious forcible felony

       of them all. Moreover, the threat was made to jail officers, public servants who

       were simply doing their jobs at the time. Overall, we conclude that the nature

       of Scarbrough’s offenses justifies a moderately enhanced sentence. While the

       nature of Scarbrough’s offenses might not have justified maximum sentences,

       that is not what the trial court imposed.


[29]   As for Scarbrough’s character, he has consistently shown a disregard for

       societal norms and authority and, recently, a willingness to demonstrate that

       contempt through the use of force. As an adult, Scarbrough (who was twenty-

       two years old when the crimes in Cause Nos. 248 and 275 were committed) has

       prior misdemeanor convictions for three counts of marijuana possession,

       paraphernalia possession, and resisting law enforcement. On August 7, 2016,

       Scarbrough received a jail write-up after telling a guard that he was going to be

       arresting several local police officers and would use a gun if necessary, he could

       fire a gun faster than any local officers, he owned body armor, and his local

       militia would assist him. On August 27, 2016, Scarbrough received a jail write-



       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 17 of 18
       up when authorities found “hooch” in his cell. Cause No. 275 Appellant’s

       App. Vol. II p. 103. Scarbrough was out on bond in Cause No. 248 when he

       committed his crime in Cause No. 275. Without going into detail,

       Scarbrough’s rejection of authority and refusal to accept responsibility for his

       actions is reflected in his extensive communications from jail. The

       communications contain frequent declarations of innocence, and, after

       Scarbrough became convinced that the trial court had “tossed” a

       communication from him, a letter to the trial court that ended, “You should

       have taken the higher road. I have your number!” Sent. Ex. D. Scarbrough’s

       brushes with the law, which are increasing in frequency and severity, do not

       speak well of his character. Moreover, Scarbrough’s seemingly total lack of

       remorse for his actions does him no credit. Scarbrough’s character supports the

       imposition of enhanced sentences. Scarbrough has failed to establish that, in

       light of the nature of his offenses and his character, his sentence is

       inappropriate.


[30]   We affirm the judgment of the trial court.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018   Page 18 of 18
