MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                             Apr 15 2020, 8:03 am
this Memorandum Decision shall not be
                                                                       CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jose J. Reyes,                                            April 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2541
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel R. Keirns,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          02D06-1904-F6-499



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020             Page 1 of 9
                                             Case Summary
[1]   Jose J. Reyes appeals his convictions and sentence for battery on a public safety

      official, a Level 6 felony, and resisting law enforcement, a Class A

      misdemeanor. We affirm.


                                                     Issues
[2]   Reyes raises two issues on appeal, which we restate as follows:


              I.       Whether the jury returned inconsistent verdicts; and


              II.      Whether Reyes’ sentence is inappropriate in light of the
                       nature of his offense and his character.


                                                      Facts
[3]   Ava Maria Hospitality House (“AMHH”) is located in Fort Wayne. AMHH is

      operated by St. Mary’s Catholic Church, which also operates a soup kitchen

      across the street from AMHH. AMHH provides food as well as telephone,

      computer, laundry, and shower amenities to homeless persons. Reyes was

      homeless for the three-year period preceding the instant events. Reyes

      “frequently” used AMHH’s facilities, which include a single shower stall. Tr.

      Vol. II p. 22.


[4]   On April 22, 2019, Reyes entered AMHH, intending to use the shower stall.

      Volunteer Vickie Schneider was on duty at the time. Reyes was agitated upon

      arrival and wanted to shower immediately; he became even more agitated on

      learning that the shower was occupied. Reyes added his name to AMHH’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 2 of 9
      shower signup sheet and, when the shower became available, Reyes entered to

      use it. Reyes immediately began to shout that the water was too cold.


[5]   The disturbance was brought to Schneider’s attention. Schneider approached

      the shower area and advised Reyes, who was still in the shower, that the water

      temperature was beyond AMHH’s control. Schneider stated that Reyes should

      exit the shower if the water was too cold. Reyes “became belligerent and

      started hollering and calling [Schneider] names[.]” Id. at 23. Schneider

      instructed a volunteer to notify Detective Larry Tague of the Fort Wayne Police

      Department, who worked a private security detail at the soup kitchen.


[6]   Reyes exited the shower stall, shouted that he would “kill everybody in the

      house[,]” and stated that he was not afraid of the police and “would kill” any

      police officer that responded to AMHH. Id. Schneider exited the shower area.

      Reyes followed Schneider, screamed obscenities at her, and shouted that he

      would kill her. The confrontation spilled outside to the porch of AMHH.


[7]   Detective Tague heard Reyes shouting well before Detective Tague reached the

      street. Detective Tague observed Reyes standing on the porch of AMHH and

      screaming obscenities at Schneider and other volunteers. Detective Tague

      approached and spoke to Schneider. Over Reyes’ shouting, Schneider stated

      that she wanted Reyes to leave AMHH’s premises. “Three to five” times,

      Detective Tague ordered Reyes to stop shouting; however, Reyes refused and

      told Detective Tague “that he wasn’t afraid of Detective Tague and that [ ] he

      would go after [ ] and kill [Detective Tague].” Id. at 24, 34.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 3 of 9
[8]    Detective Tague stepped closer to Reyes and administered a “last warning.” Id.

       at 34. Reyes “clenched his fists[ ] and yelled ‘f*** you’ at [Detective Tague]

       and took a combat stance.” Id. Detective Tague told Reyes: “[F]ine, you’re

       under arrest, turn around and put your hands behind your back[.]” Id. Reyes

       refused. Detective Tague “moved in to take [Reyes] into custody to make the

       arrest.” Id. at 35. As Detective Tague attempted to secure and handcuff Reyes’

       right wrist, Reyes “jerked away” his right arm, grabbed Detective Tague’s shirt

       collar, and “drew back to hit [Detective Tague].” Id. at 38.


[9]    Detective Tague and Reyes “swung at about the same time” and exchanged

       blows. Id. During the altercation, Reyes punched the left side of Detective

       Tague’s head while still maintaining his grip on Detective Tague’s shirt. Reyes

       continued to “swing[ ] at” Detective Tague, whose police radio and handcuffs

       fell to the ground during the struggle. Id. at 24. A bystander returned the police

       radio to Detective Tague, who called for backup. In the meantime, Detective

       Tague extricated himself from Reyes’ grip, drew his service weapon, and held

       Reyes at gunpoint until backup assistance arrived.


[10]   On April 25, 2019, the State charged Reyes with battery on a public safety

       official, a Level 6 felony; resisting law enforcement and criminal trespass, Class

       A misdemeanors; and disorderly conduct, a Class B misdemeanor. The trial

       court conducted a jury trial on September 4, 2019. The jury found Reyes guilty

       of the battery and resisting law enforcement counts, and not guilty of the

       criminal trespass and disorderly conduct counts.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 4 of 9
[11]   The trial court conducted Reyes’ sentencing hearing on October 1, 2019. In

       remarks to the trial court, Reyes stated: “I never hurt the police officer, never,

       ever”; “I never touched the police officer. I never sa[id] such mean words and

       terrible actions”; and that, “[in] thirty[-]five years in the United States[,] I never

       ha[d] a problem with the police[.]” Sent. Tr. pp. 6, 7. In imposing its sentence,

       the trial court identified Reyes’ prior criminal history and failed prior attempts

       at rehabilitation as aggravating factors and found no mitigating factors. The

       trial court imposed the following concurrent sentences: for battery, one and

       one-half years in the Department of Correction (“DOC”); and for resisting law

       enforcement, one year in the DOC. 1 Reyes now appeals.


                                                        Analysis
                                           I.       Inconsistent Jury Verdicts

[12]   Reyes argues that the jury’s verdicts were inconsistent and irreconcilable. See

       Reyes’ Br. p. 9 (“The convictions of battery and resisting law enforcement are

       logically and rationally inconsistent with the acquittal on disorderly conduct.”).

       This claim is not available for appellate review. See State v. O.E.W., 133 N.E.3d

       144, 158 (Ind. Ct. App. 2019) (quoting Beattie v. State, 924 N.E.2d 643, 649

       (Ind. 2010) (“Jury verdicts in criminal cases are not subject to appellate review

       on grounds that they are inconsistent, contradictory, or irreconcilable.”)).




       1
        Since May 24, 2019, Reyes has been subject to a hold for the United States Citizenship and Immigration
       Services. See Sent. Tr. p. 5 (advising the trial court “that there is an ICE hold on [Reyes], so as soon as this
       case is completed, [Reyes] will be going to Chicago”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020                         Page 5 of 9
                                     II.      Inappropriateness of Sentence

[13]   Reyes argues that his sentence is inappropriate in light of the nature of his

       offense and his character. Indiana Appellate Rule 7(B) provides that this Court

       may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” The defendant bears

       the burden to persuade this court that his or her sentence is inappropriate.

       Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v.

       State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[14]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; the trial court’s judgment receives “considerable deference.” Sanders

       v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see

       whether the defendant’s sentence is appropriate or “if another sentence might

       be more appropriate; rather, the question is whether the sentence imposed is

       inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008)).


[15]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for a

       Level 6 felony is six months to two and one-half years, with an advisory

       sentence of one year. See Ind. Code § 35-50-2-7. Here, the trial court imposed a

       one and one-half year sentence on Reyes’ conviction for battery on a public
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 6 of 9
       safety official, a Level 6 felony. The sentencing range for a Class A

       misdemeanor is a fixed term of not more than one year. I.C. § 35-50-3-2. Here,

       the trial court imposed a maximum, one-year sentence on Reyes’ conviction for

       resisting law enforcement, a Class A misdemeanor. Although Reyes faced a

       maximum aggregate sentence of three and one-half years, the trial court

       imposed concurrent sentences, resulting in an aggregate one and one-half-year

       sentence.


[16]   Our analysis of the “nature of the offense” requires us to look at the extent and

       depravity of the offense rather than comparing the instant facts to other cases.

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002). The nature of the

       instant offenses is as follows: At his jury trial, Reyes testified that he availed

       himself of AMHH’s hospitality and resources approximately twenty times in

       the year preceding the incident. See Jury Tr. p. 84. After Reyes shouted

       obscenities, made threats, and refused to leave AMHH, Reyes refused Detective

       Tague’s repeated orders to stop shouting and to leave. When Detective Tague

       attempted to handcuff Reyes, Reyes jerked his arm away, grabbed Detective

       Tague’s shirt collar, and struck Detective Tague’s head.


[17]   Regarding Reyes’ character, our assessment of the character of an offender

       requires us to consider the defendant’s background, criminal history, age, and

       remorse. See James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App. 2007). “The

       significance of a criminal history in assessing a defendant’s character is based

       on the gravity, nature, and number of prior offenses in relation to the current

       offense.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013) (citing

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 7 of 9
       Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)). Even a minor

       criminal history is a poor reflection of a defendant’s character. Moss v. State, 13

       N.E.3d 440, 448 (Ind. Ct. App. 2014).


[18]   Reyes’ adult 2 criminal history consists of convictions for leaving the scene of an

       accident (2004) and disorderly conduct (2005), Class B misdemeanors; and

       driving while suspended, Class A misdemeanors (2012, twice). Reyes had a

       previously-suspended sentence revoked and had a sentence modified. His prior

       convictions have resulted in executed jail time, probation, and home detention;

       however, his encounters with the justice system have not deterred him from

       criminal activity. Also, Reyes has never been issued an Indiana driver’s license,

       but has been convicted twice of driving without a license. These facts do not

       reflect well on Reyes’ character.


[19]   Reyes’ conduct at AMHH and attack on Detective Tague also reflect poorly on

       his character, given Reyes’ testimony that he availed himself of AMHH’s

       hospitality and resources approximately twenty times in the year preceding the

       incident and Reyes’ testimony that he knows better than to hit a police officer.

       See Jury Tr. p. 87 (Reyes’ testimony that “my father told me to don’t [sic] hit an

       officer”). We cannot say that Reyes’ sentence is inappropriate in light of the

       nature of his offenses and his character.




       2
           Reyes has no known juvenile criminal history.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 8 of 9
                                                 Conclusion
[20]   Reyes’ claim of inconsistent jury verdicts is not available for appellate review.

       Reyes’ sentence is not inappropriate in light of the nature of his offense and his

       character. We affirm.


[21]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2541 | April 15, 2020   Page 9 of 9
