Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                  Jan 27 2014, 9:43 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

JARED MICHEL THOMAS, ESQ.                                   GREGORY F. ZOELLER
Evansville, Indiana                                         Attorney General of Indiana

                                                            RICHARD C. WEBSTER
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

NITA TROTT-FLUTY,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 82A05-1306-CR-290
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE VANDERBURG CIRCUIT COURT
                             The Honorable David D. Kiely, Judge
                               Cause No. 82C01-1207-FD-912


                                         January 27, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

           Nita Trott-Fluty (“Trott-Fluty”) was convicted after a jury trial of Resisting Law

Enforcement, as a Class D felony;1 Resisting Law Enforcement, as a Class A misdemeanor;2

and Disorderly Conduct, as a Class B misdemeanor.3 She was sentenced to an aggregate

term of eighteen months imprisonment, and now appeals.

           We affirm.

                                                  Issues

           Trott-Fluty presents two issues for our review, which we restate as:

             I.    Whether the trial court abused its discretion when it did not take into
                   account at sentencing her medical conditions; and

            II.    Whether her sentence was inappropriate.4

                                    Facts and Procedural History

           On July 17, 2012, Trott-Fluty was in Garvin Park in Evansville. Patrolling the park

that day in full uniform and on a marked motorcycle was Evansville Police Department

Officer Allen Gansman (“Officer Gansman”). Officer Gansman saw Trott-Fluty get in and

out of her car several times before she moved her car, parked it in a no-parking zone at the




1
    Ind. Code §§ 35-44.1-3-1(a)(3) & (b)(1)(A).

2
    I.C. § 35-44.1-3-1(a)(2).

3
    I.C. § 35-45-1-3(a)(1).

4
  Trott-Fluty frames these as a single issue—whether her sentence was inappropriate—but her argument
advances both an inappropriateness challenge and a challenge to the trial court’s determination of mitigating
factors.

                                                     2
entrance to a greenway in the park, and walked off the greenway path down a steep

embankment.

       Trott-Fluty’s conduct, together with the hot temperature that day, made Officer

Gansman worry that Trott-Fluty was in distress. Officer Gansman left his motorcycle and

approached Trott-Fluty to ask if she needed any help; Trott-Fluty responded by saying that

she was there to feed wildlife, but did not appear to have anything with her other than her

purse. Officer Gansman left Trott-Fluty and approached her car to check the plate on the

vehicle against public records to see if there were any alerts concerning Trott-Fluty.

       Soon thereafter, Trott-Fluty returned to her car and drove away at a high rate of speed

through the park. Officer Gansman used a laser-based speed detection device, which

measured the car’s speed at twenty-nine miles per hour—fourteen miles per hour faster than

the posted speed limit in the park.

       Officer Gansman turned on his motorcycle’s lights and siren and attempted to initiate

a traffic stop.   Trott-Fluty continued driving, however, travelling through numerous

intersections and passing numerous parking lots where she could have pulled over safely.

       As required by the department’s standard operating procedures, several other police

officers in marked police cars responded to assist Officer Gansman, including Officer Steve

Hicks (“Officer Hicks”). The officers pursued Trott-Fluty, whose driving while fleeing had

become sufficiently erratic that Officer Hicks was concerned for public safety.

       Trott-Fluty eventually stopped her car about a mile beyond where Officer Gansman

began his pursuit. Officer Hicks stopped his vehicle in order to block Trott-Fluty from


                                              3
fleeing and exited his vehicle with his service pistol drawn. When he approached Trott-

Fluty’s window, he observed her acting erratically, and she appeared to be yelling something

at him.

          Once stopped, Trott-Fluty did not exit the car on her own and continued to hold onto

the steering wheel with “white knuckles.” (Tr. at 82.) Finding the driver’s door locked,

Officer John McQuay (“Officer McQuay”) opened the passenger side of the vehicle and tried

to remove Trott-Fluty’s hand from the steering wheel; she actively resisted, and a struggle

ensued, during which Trott-Fluty continued to scream, yell, and act erratically. Officer

McQuay was, however, able to open the driver’s door so that other officers could assist him.

          Once out of the car, Trotty-Fluty continued to struggle with officers to such an extent

that a Taser was used, but she was eventually handcuffed. Trott-Fluty calmed down enough

to be placed in Officer Hicks’s police car for transport; however, Officer Hicks’s car began

to overheat and broke down. After pulling to the side of the road, Officer Hicks, Officer

McQuay, and another officer worked to arrange a transfer of Trott-Fluty from Officer

Hicks’s car to that of Officer McQuay.

          As Officer Hicks tried to move Trott-Fluty around his car and toward the other police

vehicle, Trott-Fluty twisted and jerked hard away from Officer Hicks. Officer Hicks was

able to move Trott-Fluty to the other police car only by dragging her toward the car. Upon

reaching the car, Trott-Fluty again stiffened up and resisted being placed in the backseat.

Officer McQuay ordered Trott-Fluty to sit, but she did not comply with this instruction, and it




                                                 4
was only when Officer McQuay used a Taser on Trott-Fluty that the officers were able to seat

her in the vehicle.

       Trott-Fluty’s struggling did not cease at this point, however. Once placed in Officers

McQuay’s car, she began to scream and flail around again, and the officers determined that a

police wagon would be necessary to transport Trott-Fluty. The officers removed her from the

vehicle and placed her on the ground so she could not easily injure herself or other people.

       Eventually, Trott-Fluty was calm enough to be moved into a seated position. At that

point, however, she saw several individuals standing outside a business nearby and began

yelling at those bystanders and then at a passing bicyclist. Officer Hicks twice instructed

Trott-Fluty to stop yelling, and she refused. Eventually, however, Trott-Fluty was picked up

by a police wagon for transport.

       On July 19, 2012, Trott-Fluty was charged with Resisting Law Enforcement, as a

Class D felony; Resisting Law Enforcement, as a Class A misdemeanor; and Disorderly

Conduct, as a Class B misdemeanor.

       On April 15, 2013, a jury trial was conducted, at the conclusion of which the jury

found Trott-Fluty guilty as charged.

       On May 15, 2013, a sentencing hearing was conducted. At its conclusion, the trial

court entered judgments of conviction on all three counts and sentenced Trott-Fluty to

eighteen months imprisonment for Resisting Law Enforcement, as a Class D felony; one year

of imprisonment for Resisting Law Enforcement, as a Class A misdemeanor; and 180 days




                                             5
imprisonment for Disorderly Conduct, as a Class B felony. Each of these were run

concurrent to one another, yielding an aggregate sentence of eighteen months.

       This appeal ensued.

                                  Discussion and Decision

                                      Mitigating Factors

       Trotty-Fluty challenges both the trial court’s determination of mitigating factors and

the appropriateness of her sentence. We address each issue in turn.

       Generally, we review a trial court’s sentencing decision for an abuse of discretion.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). An abuse of discretion occurs when

the trial court’s decision is clearly against the logic and effect of the facts and circumstances

before it. Id. A trial court “must enter a statement including reasonably detailed reasons or

circumstances for imposing a particular sentence.” Id. at 491. We will not, however,

reassess the weight the trial court assigned to each factor. Id. (“[t]he relative weight or value

assignable to reasons properly found or those which should have been found is not subject to

review for abuse [of discretion]”). At sentencing, where a trial court has abused its

discretion, we will only reverse and remand for resentencing “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.” Id. at 490. That is, if the trial court

would have reached the same result in fixing a defendant’s sentence with proper

determination of aggravating and mitigating factors, we will not disturb the sentence unless it

is inappropriate under Appellate Rule 7(B) or subject to some other defect.


                                               6
       Here, Trott-Fluty acknowledges that the trial court took into account her limited

criminal history as a mitigating factor, but contends that the trial court improperly

disregarded her medical conditions as a mitigating factor in fixing her sentences and did not

take into account the fact that the arresting officers in the case declined to appear at the

sentencing hearing. Our review of the record reveals that there is a single mention in the

presentencing report that Trott-Fluty suffers from anemia and asthma, but there is no

evidence as to the extent of those conditions. While the arresting officers did not appear at

the sentencing hearing, both Officers Hicks and McQuay sent email messages to the

probation office indicating that they believed Trott-Fluty to suffer an emotional or mental

disturbance, and Officer McQuay opined that some term of imprisonment would be

appropriate.

       Yet Trott-Fluty did not advance any of this as a basis for leniency during the

sentencing hearing; instead, counsel drew the trial court’s attention only to her limited

criminal history, while Trott-Fluty herself disputed the accuracy of the entire report and

voluntarily left the courtroom. Though she contends that the trial court did not enter specific

findings as to aggravating and mitigating factors at sentencing, the trial court set forth its

reasons—namely, the absence of a significant prior criminal history and the probation

department’s report that Trott-Fluty was a moderate risk to re-offend. And to the extent

Trott-Fluty insists that the trial court should have afforded more weight to her mitigating

factors, that facet of the court’s decision is not subject to appellate review. See Anglemyer,

868 N.E.2d at 491.


                                              7
        Under these circumstances, we cannot conclude that the trial court abused its

discretion at sentencing.

                                       Inappropriateness

        We turn to Trott-Fluty’s other contention on appeal, that her sentence was

inappropriate under Appellate Rule 7(B).

        The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which provides: “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.” Under

this rule, and as interpreted by case law, appellate courts may revise sentences after due

consideration of the trial court’s decision, if the sentence is found to be inappropriate in light

of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d

1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The

principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at

1225.

        Here, Trott-Fluty was convicted of Resisting Law Enforcement, as a Class D felony,

which carried a sentencing range of between six months and three years, with an advisory

term of eighteen months imprisonment, I.C. § 35-50-2-7(a); Resisting Law Enforcement, as a

Class A misdemeanor, which carries a maximum term of imprisonment of one year, I.C. §

35-50-3-2; and Disorderly Conduct, as a Class B misdemeanor, which carries a maximum


                                                8
term of imprisonment of 180 days. I.C. § 35-50-3-3. Trott-Fluty was sentenced to the

eighteen-month advisory term for Resisting Law Enforcement, as a Class D felony; the

maximum one-year term for Resisting Law Enforcement, as a Class A misdemeanor; and the

maximum term of 180 days for Disorderly Conduct, as a Class B felony. The three terms

were run concurrent to one another, yielding an aggregate term of imprisonment of eighteen

months.

       Trott-Fluty’s conduct resulted in a police chase and two separate struggles with police

officers—once when she stopped her car, and once when Officers Hicks and McQuay tried to

transfer her from Officer Hicks’s squad car to that of Officer McQuay. Police were twice

required to use Taser devices to subdue Trott-Fluty, and ultimately she was still too resistant

to be transported by police car.

       The trial court afforded Trott-Fluty some mitigation in the form of a limited criminal

history. Our review of the presentencing investigation report reveals that Trott-Fluty has

previously been convicted of misdemeanor-level Conversion, Resisting Law Enforcement,

Criminal Trespass, and Disorderly Conduct. She also has a history of encounters with law

enforcement, and at the time of her sentencing was facing charges for Resisting Law

Enforcement and Reckless Driving in an unrelated case. And while Trott-Fluty has some

college education, including an associate’s degree, she was not employed at the time of her

sentencing.




                                              9
       Having thus reviewed the matter, we conclude under Appellate Rule 7(B) that the trial

court did not impose an inappropriate sentence, and the sentence does not warrant appellate

revision. Accordingly, we decline to disturb the sentence imposed by the trial court.

                                       Conclusion

       The trial court did not abuse its discretion in determining mitigating factors at

sentencing. Trott-Fluty’s sentence is not inappropriate.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




                                            10
