MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Apr 19 2018, 10:18 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
Andrew Bernlohr                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Arthur Jerome Croom,                                     April 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1710-CR-2347
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1608-MR-32818



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018             Page 1 of 9
[1]   Following a jury trial, Arthur Croom was convicted of reckless homicide, a

      Level 5 felony, and battery resulting in serious bodily injury to a person less

      than 14 years of age, a Level 3 felony. Croom was sentenced to an aggregate

      term of twenty-two years, with two years suspended and one year of probation.

      On appeal, Croom challenges his sentence in two respects: (1) Croom argues

      that the trial court abused its sentencing discretion by relying on an improper

      aggravating factor and (2) he claims his sentence is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On August 17, 2016, then eleven-year-old T.C. was at his grandmother’s house

      with his thirteen-year-old sister, R.C., and a few others. Croom, T.C.’s uncle,

      was also present. At some point, Croom became angry with T.C. for recording

      him on his cell phone. When T.C. did not delete the video, Croom hit T.C.

      with a broom across his arm and side. T.C. went outside to get away from

      Croom, but Croom followed and hit him again with the broom, this time on his

      leg. T.C. went back in the house and went into the bathroom. He then called

      Henry Bennett to come and pick him up. Bennett was T.C.’s uncle, but T.C.

      referred to him as “father.” Transcript at 27.


[4]   Bennett picked T.C. up, and after they drove away, T.C. told Bennett that

      Croom had hit him with a broom. T.C. then realized he left his phone at his

      grandmother’s house, so Bennett took him back so he could retrieve it. Before

      T.C. exited the car, Croom approached and shook T.C. by the shoulders.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 2 of 9
      Bennett told Croom to keep his hands off of T.C. Bennett then got out of the

      car and he and Croom began arguing near the front of Bennett’s car. The

      altercation turned physical, with Bennett and Croom pushing each other and

      exchanging a series of punches. During the altercation, Bennett stumbled

      backwards and fell, hitting the back of his head on the concrete porch. T.C.

      attempted to intervene by jumping on Croom’s back, but Croom pushed him

      away.


[5]   After Bennett fell to the ground, Croom picked up a brick and threw it at

      Bennett’s feet before hitting Bennett in the head with other objects located

      nearby, including a stove rack, a milk crate, and a grill cover. Croom also

      kicked Bennett in the head multiple times. T.C. again tried to stop Croom from

      hitting Bennett with the various items, but Croom “got angry” and started

      hitting T.C. Id. at 42. T.C. suffered a “closed blow-out fracture” of the left

      orbit, i.e., a broken eye socket. Id. at 55. T.C. tried to call 911, but Croom

      grabbed his phone and threw it on the ground. He also took Bennett’s phone

      and another one nearby. When the police were called by someone else, Croom

      left. Croom returned briefly to see if Bennett was still alive, but then left again

      before the ambulance arrived. R.C. was outside on the porch and witnessed the

      entire altercation between Croom and Bennett. Bennett never regained

      consciousness, and ultimately died from the injuries he sustained. Following an

      autopsy, it was determined that Bennett’s cause of death was “[m]ultiple blunt

      force injuries, primarily to the head and the neck.” Id. at 129.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 3 of 9
[6]   On August 23, 2016, the State charged Croom with Count I, murder, a felony;

      Count II, battery resulting in serious bodily injury to a person less than fourteen

      years old, a Level 3 felony; and Count III, aggravated battery as a Level 3

      felony. A two-day jury trial commenced on August 21, 2017. At the

      conclusion of the evidence, the jury found Croom guilty on Count I of the lesser

      included offense of reckless homicide, a Level 5 felony, and Count II, but

      acquitted him of Count III. Following a sentencing hearing on September 20,

      2017, the trial court sentenced Croom to consecutive terms of six years on

      Count I and sixteen years with two years suspended and one year of probation

      on Count II. Croom now appeals. Additional facts will be provided as

      necessary.


                                          Discussion & Decision


                                           1. Abuse of Discretion


[7]   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. “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. at 490 (quoting

      K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its

      sentencing 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)


      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 4 of 9
      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.


[8]   A single aggravating factor can support enhanced sentences. See Willey v. State,

      712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

      may be sufficient to support an enhanced sentence). Although material

      elements of the crime may not be considered as aggravating factors at

      sentencing, the particularized circumstances of the elements properly may be

      considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

      2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006). If the trial court

      has abused its discretion, we will 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.” Anglemyer, 868

      N.E.2d at 491.


[9]   The trial court identified as aggravating factors Croom’s history of criminal and

      delinquent behavior, that Croom recently violated a condition of probation and

      pre-trial release, that his sentence in a prior case had been revoked, that T.C.

      was eleven years old, that Croom committed the violent crime in the presence

      of another child, and that the victims of the offenses were family members. The

      sole mitigating factor identified by the court was that Croom’s absence would

      be a hardship on his dependents.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 5 of 9
[10]   Croom argues that the trial court improperly considered T.C.’s age as an

       aggravating factor because his age is an element of the battery resulting in

       serious bodily injury conviction. See Ind. Code § 35-42-2-1 (providing that the

       offense of battery is a Level 3 felony “if it results in serious bodily injury to a

       person less than fourteen (14) years of age”). Aside from this argument, Croom

       does not challenge the other aggravating factors identified by the trial court.

       While Croom’s history of criminal and delinquent behavior is not terribly

       serious, it is indicative of a person that has an anger control problem. Croom

       has been consistently involved with the criminal justice system since he has

       been an adult, committing new crimes and violating terms of probation and pre-

       trial release. The trial court emphasized the fact that Croom committed these

       acts of violence against family members and in the presence of a child other

       than T.C. Even if we assume that the trial court abused its discretion

       considering T.C.’s age as an aggravating factor, we are confident the court

       would have imposed the same sentence in any event. See Anglemyer, 868

       N.E.2d at 491.


                                              2. Appropriateness


[11]   Croom next argues that his sentence is inappropriate in light of his character

       and the nature of his offense. Although a trial court may have acted within its

       lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the

       Indiana Constitution authorize independent appellate review and revision of a

       sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.

       App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 6 of 9
       implemented through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868

       N.E.2d at 491. Nevertheless, “we must and should exercise deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


[12]   The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is

       to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259

       (Ind. 2013). It is not our goal in this endeavor to achieve the perceived

       “correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.

       2014). Accordingly, “the question under Appellate Rule 7(B) is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008) (emphasis in original).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 7 of 9
[13]   To assess the appropriateness of a sentence, we look first to the statutory range

       established for the classification of the relevant offense. A Level 5 felony has a

       sentencing range of one to six years, with the advisory sentence being three

       years. Ind. Code § 35-50-2-6. A Level 3 felony has a sentencing range of six to

       twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5.


[14]   With respect to the nature of the offense, we think the trial court properly

       characterized the situation as a “vicious attack” that “went beyond anger and

       into rage.” Id. at 221. After Bennett fell to the ground, Croom picked up a

       brick and threw it toward Bennett’s feet. He continued his attack as Bennett

       was lying unresponsive on the ground by hitting Bennett with various objects

       that were in the area, including a stove rack, a milk crate, and a grill cover, as

       well as by kicking Bennett in the head numerous times. When T.C. tried to

       intervene, Croom hit him in the left eye, fracturing his eye socket. When police

       were called, Croom walked away. Further, we note that the crime was

       committed in front of two minor children to whom Croom was related. The

       nature of the offenses does not lead us to conclude that the sentence imposed is

       inappropriate.


[15]   Turning to Croom’s character, we note Croom’s history of criminal and

       delinquent behavior. As a juvenile, Croom accumulated seven referrals that

       resulted in true findings for resisting law enforcement, criminal mischief, and

       theft. As an adult, Croom has been arrested twelve times, resulting in

       convictions for driving while suspended, conversion, and battery resulting in

       bodily injury. Croom has pending charges for felony and misdemeanor

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 8 of 9
       offenses, including battery with moderate bodily injury, domestic battery, and

       possession of marijuana. He was on pre-trial release when he committed the

       instant offenses. Croom’s criminal history indicates that he has anger

       management issues and is unable to control his actions. He has been provided

       several opportunities to turn his life around, but none have proved successful.

       He has previously been afforded the leniency he now requests, but such did not

       reform his behavior. To the contrary, Croom’s criminal behavior has escalated,

       ultimately resulting in Bennett’s death. Croom’s history does not reflect

       positively on his character.


[16]   In light of the nature of the offense and the character of the offender, we cannot

       say that the aggregate twenty-two-year sentence, with two years suspended and

       one year of probation, is inappropriate. We, therefore, affirm the sentence

       imposed.


[17]   Judgment affirmed.


[18]   Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018   Page 9 of 9
