MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                         Nov 10 2015, 9:02 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Donald R. Shuler                                        Gregory F. Zoeller
Barkes, Kolbus, Rife & Shuler, LLP                      Attorney General of Indiana
Goshen, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General




                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin L. Simons,                                        November 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        43A04-1501-CR-10
        v.                                              Appeal from the Kosciusko
                                                        Superior Court
State of Indiana,                                       The Honorable Joe V. Sutton,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        43D03-1402-FC-134



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 1 of 18
[1]   Kevin Simons appeals his convictions and sentence for Operating a Vehicle as a

      Habitual Traffic Violator,1 a class C felony; Battery2 as a Class B misdemeanor;

      Resisting Law Enforcement3 as a Class A misdemeanor; and Operating a

      Vehicle While Intoxicated4 as a Class D felony. Simons presents five issues for

      our review, which we restate as follows:


                 1. Did the trial court abuse its discretion in denying Simons’s
                    motion to dismiss?


                 2. Did the trial court abuse its discretion in admitting into
                    evidence the laboratory report of Simons’s blood draw?


                 3. Does Ind. Code § 35-36-11-1 violate the Confrontation Clause
                    of the United States and Indiana Constitutions?


                 4. Is the evidence sufficient to establish that Simons was
                    “operating” a vehicle so as to sustain his convictions for
                    operating a vehicle as a habitual traffic violator and operating
                    a vehicle while intoxicated?


                 5. Is Simons’s sentence inappropriate?




      1
       Ind. Code § 9-30-10-17. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because
      Simons committed this offense prior to that date, it retains its prior classification as a Class C felony.
      2
          Ind. Code § 35-42-2-1.
      3
          Ind. Code § 35-44.1-3-1(a)(1).
      4
        I.C. § 9-30-5-1(b); I.C. § 9-30-5-3(a)(1). Effective July 1, 2014, the latter statute was amended and now
      classifies this offense as a Level 6 felony. Because Simons committed this offense prior to that date, it retains
      its prior classification as a Class D felony.

      Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015               Page 2 of 18
[2]   We affirm.


                                       Facts & Procedural History


[3]   On the night of February 4, 2014, Steven Fields was driving home from work

      when he saw a car on top of a snow bank near The Frog, a local tavern in

      Syracuse. Fields called 911 and reported, “There’s a guy in front of The Frog

      that just ran his vehicle up on top of a snow embankment.” State’s Exhibit 1.

      Fields also stated to the 911 operator that the driver appeared to be “very

      drunk.” Id. Fields passed the scene, but circled back around to wait for a police

      officer to arrive.


[4]   Officer Joseph Keene of the Syracuse Police Department was dispatched

      around 11:17 p.m. on a report of a vehicle stuck in the snow. Upon arrival at

      the scene, Officer Keene observed a small green car mostly out of the roadway

      and stuck on top of a snow bank just as reported. Officer Keene also observed a

      white truck backed up to the car. Officer Keene activated his emergency lights

      and pulled his police car in behind the green car. Officer Keene then directed

      Reserve Officer Mike Barger, who was riding along with Keene, to speak with

      the individual in the white truck while he went to speak with the driver of the

      green car.


[5]   As Officer Keene approached the green car, he noted that the car’s engine was

      running and the car was in gear, as he heard the sound of the green car’s tires

      spinning in the snow. The driver’s side door was open and Officer Keene

      observed Simons sitting in the driver’s seat of the car. No one else was in the

      Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 3 of 18
      car. Officer Keene first asked Simons if he was okay and Simons indicated he

      was. Simons then volunteered that he “was trying to get home.” Transcript at

      254. Officer Keene noticed a strong odor of an alcoholic beverage coming from

      Simons’s breath. He further observed that Simons’s “speech was very slurred,”

      he “had [a] terrible time enunciating his words,” and he was not responding to

      Officer Keene’s requests. Id. at 256. Specifically, it took Simons several

      attempts to turn the car’s engine off after Officer Keene told him to do so.

      Simons also fumbled with retrieving his wallet out of his pants pocket so he

      could access his identification card.


[6]   Officer Keene returned to his police car to process Simons’s identification card,

      at which time he learned that Simons had a lifetime suspension on his record

      and was classified as a habitual traffic violator. He then returned to the car and

      asked Simons to participate in field sobriety tests. Simons initially agreed to

      participate in the horizontal gaze nystagmus test, but ultimately refused to

      complete it or participate in any further field sobriety tests. Simons also

      informed Officer Keene that he would not agree to a certified chemical test.

      Officer Keene then placed Simons under arrest and, believing Simons may have

      been too intoxicated to be taken to jail, transported him to a local hospital for

      medical clearance.


[7]   Once at the hospital, Simons maintained that he was not the driver of the car

      and again refused to cooperate by submitting to a chemical test. Officer Keene

      then prepared a probable cause affidavit and request for a search warrant

      seeking to obtain a blood sample from Simons. Based upon the information

      Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 4 of 18
       Officer Keene provided in the probable cause affidavit, a judge issued a search

       warrant to obtain a blood sample from Simons.


[8]    At the hospital, Simons was “combative” with the officers and medical staff,

       especially when they tried to obtain his blood sample pursuant to the search

       warrant. Id. at 311. Simons was flailing, kicking his legs, and causing such a

       commotion in the room at the hospital that additional staff entered to help

       restrain him. In total, it took six individuals to restrain Simons for purposes of

       the blood draw. Officer Keene described Simons’s demeanor as being

       “extremely angry.” Id. at 269. During the altercation, Simons kicked Linnia

       Woods, a phlebotomist who was helping to restrain Simons for the blood draw,

       in the wrist. An analysis of Simons’s blood revealed that he had a blood

       alcohol level of .251.


[9]    On February 20, 2014, the State charged Simons with operating a vehicle as a

       habitual traffic violator, a Class C felony; battery as a Class D felony; operating

       while intoxicated, a Class A misdemeanor, along with an enhancement for

       operating while intoxicated as a Class D felony; and resisting law enforcement

       as a Class A misdemeanor. Contemporaneously with the charging information,

       the State filed a Notice of Intent to Introduce Lab Report pursuant to Ind. Code

       § 35-36-11-2.


[10]   On January 16, 2015, the State sought to amend the battery charge to a Class B

       misdemeanor and to allow for a habitual offender enhancement. On the same

       day, Simons filed a belated motion to dismiss the charges against him based


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 5 of 18
       upon the loss or destruction of evidence. Following a hearing, the trial court

       denied Simons’s motion to dismiss. The court also granted the State’s motion

       to amend, but informed Simons that as a result, he was entitled to a

       continuance of the jury trial if he so wished. When Simons requested a

       continuance, the State moved to dismiss the habitual offender enhancement.


[11]   A two-day jury trial commenced on January 27, 2015. Before the start of the

       trial, the parties filed a written Offer of Stipulation, wherein Simons admitted

       that his driving privileges were validly suspended for life on the day in question.

       A motion in limine covered other aspects of Simons’s driving record. At the

       conclusion of the evidence, the jury found Simons guilty of operating a vehicle

       as a habitual traffic violator, battery, resisting law enforcement, and operating a

       vehicle while intoxicated. Simons then pleaded guilty to the enhancement of

       operating a vehicle while intoxicated as a Class D felony. The trial court held a

       sentencing hearing on February 23, 2015, and sentenced Simons to an

       aggregate term of six years and nine months executed. Additional facts will be

       provided where necessary.


                                             1. Motion to Dismiss


[12]   Simons argues that the trial court abused its discretion in denying his motion to

       dismiss. We review a trial court’s denial of a motion to dismiss for an abuse of

       discretion. Ingram v. State, 760 N.E.2d 615, 618 (Ind. Ct. App. 2001), trans.

       denied. In reviewing a trial court’s decision for an abuse of discretion, we




       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 6 of 18
       reverse only where the decision is clearly against the logic and effect of the facts

       and circumstances. Id.


[13]   Simons’s motion to dismiss is based upon his claim that there was a video of his

       arrest and that such video contained information that was materially

       exculpatory or was potentially useful to resolve any conflict between his and

       Officer Keene’s testimony regarding the events leading up to his arrest. Simons

       maintains that the loss or destruction of the video recording of his arrest violates

       his due process rights, and therefore, the trial court should have dismissed the

       charges against him.


[14]   When determining whether a defendant’s due process rights have been violated

       by the State’s failure to preserve evidence, we must first decide whether the

       evidence is potentially useful evidence or materially exculpatory evidence. State

       v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citing Land v. State, 802

       N.E.2d 45, 49 (Ind. Ct. App. 2004), trans. denied). Specifically,


               [e]vidence is materially exculpatory if it “possess[es] an
               exculpatory value that was apparent before the evidence was
               destroyed, and [is] of such a nature that the defendant would be
               unable to obtain comparable evidence by other reasonably
               available means.” Noojin v. State, 730 N.E.2d 672, 675-76 (Ind.
               2000) (quoting California v. Trombetta, 467 U.S. 479, 489, 104
               S.Ct. 2528, 81 L.Ed.2d 413 (1984)). Exculpatory evidence is
               defined as “[e]vidence tending to establish a criminal defendant’s
               innocence.” Black’s Law Dictionary 597 (8th ed. 2004). A
               prosecutor’s duty to preserve exculpatory evidence is limited to
               evidence that might be expected to play a significant role in the
               defendant’s defense. Noojin, 730 N.E.2d at 675 (quoting
               Trombetta, 467 U.S. at 488, 104 S.Ct. 2528). Failure to preserve
       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 7 of 18
               material exculpatory evidence violates due process regardless of
               whether the State acted in good or bad faith. Blanchard v.
               State, 802 N.E.2d 14, 27 (Ind. Ct. App. 2004) (citing Arizona v.
               Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281
               (1988)).


               Evidence is merely potentially useful if “no more can be said
               than that it could have been subjected to tests, the results of
               which might have exonerated the defendant.” Id. at 26 (citing
               Youngblood, 488 U.S. at 57, 109 S.Ct. 333). The State’s failure to
               preserve potentially useful evidence does not constitute a
               violation of due process rights unless the defendant shows bad
               faith on the part of the police. Id. at 26-27.


       Durrett, 923 N.E.2d at 453.


[15]   In November 2013 the Syracuse Police Department obtained new video

       recording equipment to install in two of its police cars. The video equipment

       was capable of recording events that occurred outside of the police car and

       could also record conversations that occurred within the passenger

       compartment of the vehicle. The video recording would automatically begin

       once an officer turned on the car’s emergency lights. After the devices were

       installed, officers were trained on how to operate the video cameras. Officer

       Keene explained that he would periodically turn over the recording equipment

       to a supervisor, who would then download and save the data thereon to a

       different device.


[16]   The incident involving Simons occurred on February 4, 2014. According to

       Officer Keene’s testimony, he believed that the system was working at the time


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 8 of 18
       of his encounter with Simons. Officer Keene further testified that in the days

       following his encounter with Simons, he turned the data from his recording

       device over to his supervisor to secure on a separate device. In April 2014,

       however, the Syracuse Police Department learned that there was an issue with

       the video recording equipment installed in their police vehicles. The police

       department contacted the manufacturer, who discovered that the recordings

       were in an incorrect format such that the data that had been recorded could not

       be downloaded and viewed. The police department permitted the manufacturer

       to reformat the video cameras’ hard drives, which “wiped everything off the

       hard drive.” Transcript at 72. The manufacturer worked with the police

       department to recover any missing data, but was able to recover only videos

       that were recorded after April 2014. Thus, the data that was transferred from

       Officer Keene’s recording device to a second device shortly after the encounter

       with Simons was not recovered.


[17]   Simons asserts that the video of his arrest as recorded by video equipment

       located in Officer Keene’s police car was exculpatory, but he does not elaborate

       on how it is exculpatory other than to assert that it is an unbiased account of his

       arrest. The jury was presented with direct testimony from Officer Keene and

       Simons regarding the circumstances of Simons’s arrest. To the extent there

       were conflicts, the jury was tasked with assessing the credibility of the

       witnesses. Simons’s assertion, without more, is insufficient to establish that the

       recording of his arrest was materially exculpatory. See Chissell v. State, 705

       N.E.2d 501, 504 (Ind. Ct. App. 1999) (noting that a court will not assume that


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 9 of 18
       the destroyed evidence contained exculpatory material when the record is

       devoid of such indication), trans. denied.


[18]   Simons also argues that the video recording of his arrest would have been

       potentially useful in his defense because it would have helped the jury to

       understand conflicts between his testimony and that of Officer Keene. To

       succeed on this argument, Simons must also establish that the police acted in

       bad faith. As noted by the trial court, the lack of a video recording of Simons’s

       arrest is explained by the fact that “[t]he technology, the equipment failed.

       There was no recording created, so there was none to destroy on the part of the

       police. . . . It is just a technology failure that was accidental and not the making

       of the police . . . .” Transcript at 85. Having reviewed the record, we agree.


[19]   Officer Keene testified that he believed the recording device in his car was

       working at all times and there was never any indication that there was any

       problem with device. He regularly turned the data over to his supervisor so that

       it could be stored on a separate device. It was not until a few months after

       Simons’s arrest that it was discovered that the recording devices were operating

       in an incorrect format. The malfunction affected all recording devices installed

       by the Syracuse Police Department and the reformatting conducted by the

       manufacturer erased all data, not just that related to Simons’s arrest. Simons

       has not established any bad faith on behalf of the police in not preserving,

       losing, or erasing, whatever the case may be, the recording of his arrest. The

       trial court did not abuse its discretion in denying Simons’s motion to dismiss.



       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 10 of 18
                                          2. Admission of Evidence


[20]   Simons argues that the trial court abused its discretion in admitting into

       evidence the lab report showing the results of his blood draw because the blood

       draw was done pursuant to an invalid search warrant. Specifically, Simons

       asserts that the probable cause affidavit presented in support of the search

       warrant was inadequate in that it was based on Officer Keene’s conclusions and

       inferences, not facts derived from direct observation or personal knowledge.


[21]   In his brief, Simons acknowledges that while his trial counsel objected to the

       admission of the lab report into evidence, the objection was not grounded on

       the claimed inadequacies of the probable cause affidavit. It is well settled that

       “a defendant may not argue one ground for objection at trial and then raise new

       grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000). In such

       case, the defendant has waived the issue raised on appeal. See Griffin v. State, 16

       N.E.3d 997, 1005 (Ind. Ct. App. 2014). To avoid waiver, Simons argues that

       the admission of the lab report into evidence amounted to fundamental error.

       The fundamental error exception is extremely narrow and applies only when

       an error constitutes a blatant violation of basic principles of due process. Isom v.

       State, 31 N.E.3d 469, 490 (Ind. 2015). The error must be “so prejudicial to the

       rights of a defendant a fair trial is rendered impossible.” White v. State, 846

       N.E.2d 1026, 1033 (Ind. Ct. App. 2006), trans. denied.


[22]   In arguing that the search warrant was invalid, Simons points to what he claims

       to be misstatements made by Officer Keene in the probable cause affidavit and


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 11 of 18
       inconsistencies between those statements and his testimony at trial. Simons

       also claims that many of Officer Keene’s statements in support of the probable

       cause affidavit were not based on his direct observations. We have reviewed

       Simons’s claims and conclude that there is no fundamental error. Each claimed

       misstatement or inconsistency is understood in the context of the situation and

       reasonable inferences drawn therefrom. Contrary to Simons’s argument,

       evidence obtained in violation of constitutional protections against unlawful

       searches and seizures does not ipso facto require reversal. See Brown v. State,

       929 N.E.2d 204, 207 (Ind. 2010). Further, our Supreme Court has noted that

       the fundamental error exception is available only in “‘egregious

       circumstances.’” Id. This is not one of those circumstances.


                                           3. Confrontation Clause


[23]   Simons challenges I.C. § 35-36-11-2 through 5, claiming that such notice-and-

       demand statutes are unconstitutional as applied to him. Specifically, Simons

       argues that such statutes violate his rights under the Confrontation Clause of

       both the United States and Indiana Constitutions.


[24]   The notice-and-demand statutes challenged by Simons provide as follows:

               Sec. 2. If the prosecuting attorney intends to introduce a
               laboratory report as evidence in a criminal trial, the prosecuting
               attorney must file a notice of intent to introduce the laboratory
               report not later than twenty (20) days before the trial date, unless
               the court establishes a different time.




       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 12 of 18
               Sec. 3. If the defendant wishes for the person who prepared the
               laboratory report to be present at the trial for cross-examination,
               the defendant must file a demand for cross-examination not later
               than ten (10) days after the defendant receives the notice filed
               under section 2 of this chapter, unless the court establishes a
               different time.


               Sec. 4. If the prosecuting attorney does not comply with section
               2 of this chapter, the prosecuting attorney may not introduce the
               laboratory report into evidence without the testimony of the
               person who conducted the test and prepared the laboratory
               report.


               Sec. 5. If the prosecuting attorney complies with section 2 of this
               chapter and the defendant does not comply with section 3 of this
               chapter, the defendant waives the right to confront and cross-
               examine the person who prepared the laboratory report.


       I.C. 35-36-11. Here, the State filed its Notice of Intent to Introduce Lab Report

       in accordance with I.C. § 35-36-11-2 contemporaneously with the charging

       information, which was filed on February 20, 2014. Simons never filed a

       demand for cross-examination as required by I.C. § 35-36-11-3.


[25]   At trial, when the State offered the lab report into evidence, Simons’s trial

       counsel objected on grounds of lack of foundation and concerns over the chain

       of custody; he did not, however, object on constitutional grounds. As a general

       rule, the failure to object at trial results in waiver of an issue on appeal. Bruno v.

       State, 774 N.E.2d 880, 883 (Ind. 2002). The rule of waiver in part protects the

       integrity of the trial court in that the trial court cannot be found to have erred as

       to an argument that it never had an opportunity to consider. T.S. v. Logansport

       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 13 of 18
       State Hosp., 959 N.E.2d 855, 857 (Ind. Ct. App. 2011), trans. denied. Moreover,

       a defendant cannot object on one ground at trial and then present a different

       claim of error on appeal. See Lyons v. State, 976 N.E.2d 137, 141 (Ind. Ct. App.

       2012). Simons’s failure to object to the admission of the lab report on

       constitutional grounds results in waiver of the issue for appellate review.


                                                  4. Sufficiency


[26]   Simons argues that the evidence is insufficient to support his convictions for

       operating a vehicle as a habitual traffic violator and operating a vehicle while

       intoxicated. When reviewing a challenge to the sufficiency of the evidence, we

       consider only the evidence supporting the judgment, together with any

       reasonable inferences that can be drawn from such evidence, and we may not

       reweigh evidence nor judge witness credibility. Thang v. State, 10 N.E.3d 1256,

       1258 (Ind. 2014). We will affirm if there is substantial evidence of probative

       value supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt. Bailey v.

       State, 979 N.E.2d 133, 135 (Ind. 2012) (citing Davis v. State, 813 N.E.2d 1176,

       1178 (Ind. 2004)).


[27]   The only element of both offenses that Simons challenges is whether the

       evidence sufficiently established that he “operated” a vehicle. An individual

       “operates” a vehicle when he or she is “in actual physical control of a vehicle.”

       West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (citing Ind. Code § 9-13-

       2-117.5), trans. denied. In assessing whether a person has operated a vehicle, this


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 14 of 18
       court has considered several factors, including, but not limited to (1) the

       location of the vehicle when discovered; (2) whether the vehicle was in motion

       when discovered; and (3) additional evidence that defendant was observed

       operating the vehicle before he or she was discovered. See Hampton v. State, 681

       N.E.2d 250, 251 (Ind. Ct. App. 1997). Here, we note that the jury was

       instructed as follows: “The term ‘operate’, means to navigate or otherwise be in

       actual physical control of a vehicle.” Appellant’s Appendix at 200.


[28]   Officer Keene was dispatched in response to a 911 call that a car was stuck on

       top of a snow bank. When he arrived at the location, he observed a small,

       green car off on the side of the road, mostly out of the roadway, and on top of a

       snow bank. As Officer Keene approached the car, he noted that the wheels

       were spinning in the snow thereby indicating to Officer Keene that the car was

       in gear. Officer Keene approached Simons, who was sitting in the driver’s seat,

       and after confirming Simons was not injured, asked Simons to put the car in

       park. Simons was the only individual in the car, and he informed Officer

       Keene that he “was trying to get home.”5 Transcript at 254. This evidence is

       sufficient to support the jury’s conclusion beyond a reasonable doubt that

       Simons was in actual physical control of the vehicle and that he was trying to

       navigate the vehicle out of the snow bank. See West, 22 N.E.3d at 876 (holding

       evidence sufficient to establish defendant operated a car where the car was




       5
        It was not until after he was transported to the hospital that Simons claimed he was not the driver of the
       green car that was stuck in the snow bank.

       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015           Page 15 of 18
       parked in a public spot, the driver explained that she had come to the

       courthouse that day, and when the officer approached the vehicle, the vehicle

       was running and defendant was sitting in the driver’s seat). The evidence

       supports the jury’s determination that Simons operated the vehicle.


                                                   5. Sentencing


[29]   As noted above, the trial court sentenced Simons to an aggregate term of six

       years and nine months imprisonment. The sentence is broken down as follows:

       one-hundred eighty days executed for battery as a class B misdemeanor and

       ninety days executed for resisting law enforcement as a Class A misdemeanor

       with the sentences to run consecutive to one another; six years for Class C

       felony operating a motor vehicle after lifetime forfeiture of driving privileges

       and one and one-half years for Class D felony operating a vehicle while

       intoxicated with a prior conviction, with these sentences to be served

       concurrent to one another and consecutive to the sentences imposed for battery

       and resisting law enforcement. Simons argues that his sentence is

       inappropriate.


[30]   Article 7, section 4 of the Indiana Constitution grants our Supreme Court the

       power to review and revise criminal sentences. See Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014). Pursuant to Ind. Appellate Rule 7, the Supreme Court

       authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if after due

       consideration of the trial court’s decision, the Court finds that the sentence is


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 16 of 18
       inappropriate in light of the nature of the offense and the character of the

       offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Appellate Rule 7(B)

       analysis is not to determine “whether another sentence is more appropriate” but

       rather “whether the sentence imposed is inappropriate.” King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Simons bears the

       burden on appeal of persuading us that his sentence is inappropriate. See

       Conley, 972 N.E.2d at 876.


[31]   With regard to the nature of the offense, we note that the circumstances

       surrounding the operating offenses were unremarkable. Later, however,

       Simons was uncooperative and eventually became combative toward hospital

       staff. With regard to the character of the offender, the record details Simons’s

       lengthy history of criminal activity, which includes nearly a dozen prior felony

       convictions and several prior misdemeanor convictions, many of which were

       alcohol-related offenses. We further note that Simons has been afforded

       leniency on numerous occasions, but has violated terms of probation, home

       detention, and parole. In light of his criminal history and his inability to abide

       by the rules of society and/or the Department of Correction, we cannot say that

       the aggregate six-year and nine-month sentence imposed in this case is

       inappropriate.


       Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 17 of 18
Riley, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 43A04-1501-CR-10 | November 10, 2015   Page 18 of 18
