 MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             May 24 2016, 9:30 am

regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott P. Wyatt                                          Gregory F. Zoeller
Casandra J. Nelson                                      Attorney General of Indiana
Campbell Kyle Proffitt, LLP
Carmel, Indiana                                         Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Nicolas Webb,                                           May 24, 2016
Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        29A02-1511-CR-1885
        v.                                              Appeal from the Hamilton Circuit
                                                        Court
State of Indiana,                                       The Honorable Paul A. Felix,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        29C01-1505-F4-4042



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016        Page 1 of 21
                                             Case Summary
[1]   Nicolas Webb appeals his convictions for Class A misdemeanor resisting law

      enforcement and Level 4 felony unlawful possession of a firearm by a serious

      violent felon. Webb also appeals his aggregate sentence of thirteen years. We

      affirm.


                                                    Issues
[2]   Webb raises five issues, which we consolidate and restate as:


                      I.       whether the trial court abused its discretion by
                               denying Webb’s request for a continuance;

                      II.      whether the trial court abused its discretion by
                               admitting testimony that, according to Webb,
                               referenced his criminal history;

                      III.     whether the trial court abused its discretion by
                               excluding from evidence a probable cause affidavit
                               from someone else’s criminal prosecution; and

                      IV.      whether Webb was properly sentenced.

                                                     Facts
[3]   On May 6, 2015, around 7:00 p.m., Fishers Police Officer Greg Weesner was

      on duty, in uniform and driving a marked police unit while patrolling Interstate

      69 in Hamilton County. Officer Weesner observed a blue Ford Taurus

      following the vehicle in front of it too closely and changing lanes without

      signaling. The driver of the Taurus was later identified as Shane Wilkins.

      Officer Weesner stopped the vehicle. Four people were riding in the Taurus,

      and Officer Weesner observed the rear backseat passenger, who was later


      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 2 of 21
      identified as Webb, looking out the back window and making “furtive

      movements leaning forward, things like that, towards the floorboard of the

      vehicle.” Tr. p. 131.


[4]   Officer Weesner approached the vehicle on the passenger side and asked the

      occupants to give him their identification. Webb and his wife, Samantha

      Jackson, who was also sitting in the backseat, did not have identification, so

      Officer Weesner asked them to write down their names. Webb identified

      himself as Christopher Webb. As Webb was handing Officer Weesner’s

      notepad back to him with his right hand, Officer Weesner observed Webb

      placing a gun in Jackson’s purse with his left hand. By the time Officer

      Weesner noticed the gun, additional officers had arrived. Officer Weesner

      pointed to Webb’s location in the vehicle in order to indicate his concern about

      that passenger, and then he asked Webb to step out of the car. Webb got out of

      the car and ran. For the next four hours, officers from several law enforcement

      departments pursued Webb on foot. The Indianapolis Police Department

      provided a helicopter with a search light to aid the officers on the ground.


[5]   While officers pursued Webb, Indiana State Police Trooper Nick Klingkammer

      and Fishers Police Officer Seth Goldstein searched the Taurus and observed a

      gun in an open purse in the passenger’s side of the back seat. Officer Goldstein

      also found Webb’s identification in the purse.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 3 of 21
[6]   Fishers Police Officer Kevin Silbaugh, who was present during the traffic stop,

      also chased Webb when he fled. During the chase, Officer Silbaugh saw Webb

      two more times but was unable to apprehend him.


[7]   Fishers Police Officer Joseph Hancock also participated in the search for Webb.

      While driving north on Interstate 69, Officer Hancock observed Webb in some

      brush at the top of a hill and ran after him. Officer Hancock ordered Webb to

      stop, but Webb fled and ran toward the highway. Officer Hancock testified

      Webb was almost struck twice as he ran across Interstate 69. First, a semi came

      within five or ten feet of hitting Webb. “It was really close. The semi locked up

      its brakes when he ran across the interstate.” Id. at 186. As Webb ran across

      the second set of interstate traffic lanes, he again came within about ten feet of

      being hit by the traffic. Noblesville Police Officer Brandon Brooks and his K-9

      partner Jaball participated in the search for Webb and encountered him three

      times. Each time, Officer Brooks identified himself as a law enforcement

      officer, and Webb fled.


[8]   Dustin Dixon is an officer and K-9 handler in the Hamilton County Sheriff’s

      Department. He and his canine partner Debo also participated in the search for

      Webb. Debo tracked Webb, and, after some time, Officer Dixon and Debo

      were close enough to Webb that Officer Dixon ordered Webb to stop. Webb

      began “trying to crawl up the side of the creek to get out of the creek back into

      the wooded area.” Id. at 245. Officer Dixon released Debo and ordered him to

      bite Webb. Webb “continued to crawl out of this creek bed . . . and he kind of

      kicked his leg and the dog came off . . . .” Id. at 246. Debo bit Webb again, “a

      Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 4 of 21
       full mouth bite to hold on a little bit better,” and Officer Dixon used Debo’s

       lead to pull Webb back into the creek bed in an attempt to gain control of

       Webb. Id. When Officer Dixon pulled Debo and Webb down, Webb “put his

       hand down on the dog’s head. I told him to get off the dog’s head. At that

       point he put the dog’s head under water in what I believe was an attempt to

       drown the dog to get the dog to come off the bite.” Id. at 246-47. Officer Dixon

       instructed Webb to release Debo and, when he did not comply, struck Webb’s

       face. Debo picked his head up out of the water and bit Webb on the arm.

       Officer Dixon was then able to arrest Webb.


[9]    The State charged Webb with Level 4 felony possession of a firearm by a

       serious violent felon, Class A misdemeanor carrying a handgun without a

       license, and seven counts of Class A misdemeanor resisting law enforcement.

       During the final pretrial hearing, Webb requested a continuance so that he

       could depose two witnesses. The trial court denied his request.


[10]   Webb’s trial was bifurcated, and, in the first portion, a jury found him guilty of

       carrying a handgun without a license and six counts of resisting law

       enforcement. The trial court granted Webb’s motion for a directed verdict as to

       one count of resisting law enforcement and dismissed that charge. In the

       second phase of the trial, a jury found Webb guilty of unlawful possession of a

       firearm by a serious violent felon. The trial court dismissed the charge for

       carrying a handgun without a license and merged the convictions for resisting

       law enforcement into one conviction for that crime—resisting Officer Weesner.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 5 of 21
[11]   The trial court sentenced Webb to serve twelve years in the Department of

       Correction with two years suspended for his felony conviction and one year for

       his misdemeanor conviction. The trial court ordered Webb to serve his

       sentences consecutively for an aggregate sentence of thirteen years with two

       years suspended. Webb now appeals his convictions and sentence.


                                                   Analysis
                                                I. Continuance

[12]   Webb first argues the trial court erred by denying his request for a continuance.

       “A defendant is statutorily entitled to a continuance where there is an absence

       of material evidence, absence of a material witness, or illness of the defendant,

       and the specially enumerated statutory criteria are satisfied.” Gibson v. State, 43

       N.E.3d 231, 236 (Ind. 2015) (citation omitted) (quotations omitted); see also Ind.

       Code § 35-36-7-1. Otherwise, “[c]ourts are generally reluctant to grant

       continuances in criminal cases merely to allow for additional preparation.” Id.

       at 235-36. Here, Webb concedes the statutory criteria were not satisfied. See

       Appellant’s Reply Br. p. 6. In that situation, “a trial court has wide discretion

       to deny a motion to continue.” Gibson, 43 N.E.3d at 236. A trial court abuses

       its discretion only where a defendant was prejudiced because the trial court did

       not grant him or her a continuance. Id. “In order to show abuse of discretion

       the record must reveal that the trial court’s ruling resulted in prejudice to the

       movant.” Salone v. State, 652 N.E.2d 552, 558 (Ind. Ct. App. 1995), trans.

       denied; see also Ross v. State, 844 N.E.2d 537, 544 (Ind. Ct. App. 2006).



       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 6 of 21
[13]   The following is the totality of the record related to Webb’s request for a

       continuance.


               [DEFENSE]:        Judge, I think we are the fourth choice
               setting. We were.


               THE COURT:               You’re the only case left for trial next week.


               [DEFENSE]:         And I – I had filed, or at least indicated to the
               Court that I needed a continuance the last time to take some
               depositions.


               THE COURT:               Uh-huh.


               [DEFENSE]:            Those have not taken place. My client is over
               at New Castle. We haven’t communicated to the degree that I
               would prefer that we communicate. I don’t think that I can be
               ready to go next Tuesday, and I would move for a continuance.
               I would apologize to the Court, but this case was filed in May so
               it’s not an old – old case. I need some – I need time to take two
               depositions for sure. One, I don’t have the address; my client’s
               got that back in New Castle with his papers. So I can’t – I can’t
               expedite that till he gets back to New Castle.


               THE COURT:           At one point in time Mr. Webb had requested
               an early trial pursuant Criminal Rule 4. … State?


                [THE STATE]: Your Honor, given that it’s better than the
               fifth choice, the State is prepared to proceed to trial and objects
               for – to a continuance.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 7 of 21
               THE COURT:           I have the charges as unlawful possession of a
               firearm by a serious violent felon, carrying a handgun without a
               license, and resisting law enforcement; correct?


               [THE STATE]:             Yes, Your Honor.


               THE COURT:        I’m going to deny – deny your request to
               continue. We will proceed to trial next week.


       Tr. Addendum pp. 4-5.


[14]   Webb did not specify to the trial court who he needed to depose. On appeal,

       however, he states he requested the continuance in order to depose Officer

       Weesner and Shane Wilkins. He also argues that he was prejudiced by the trial

       court’s denial of his request in a number of ways. The identity of the witnesses

       and those prejudice arguments, however, are not part of the trial record.

       Therefore, Webb failed to demonstrate before the trial court that any prejudice

       would result from the denial of his request for a continuance. Based on this

       sparse record, we conclude the trial court did not abuse its discretion when it

       denied Webb’s request for a continuance.


                              II. Testimony Related to Criminal History

[15]   Webb contends the trial court abused its discretion when it overruled his

       objection to a question he argues revealed inadmissible information about his

       criminal history. We review the admission of evidence for an abuse of

       discretion. Smart v. State, 40 N.E.3d 963 966 (Ind. Ct. App. 2015). An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 8 of 21
       facts and circumstances. Id. “Even if the trial court’s decision was an abuse of

       discretion, we will not reverse if the admission constituted harmless error.”

       Darringer v. State, 46 N.E.3d 464, 469 (Ind. Ct. App. 2015). “‘The improper

       admission [of evidence] is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court there is

       no substantial likelihood the challenged evidence contributed to the

       conviction.’” Evans v. State, 30 N.E.3d 769, 776 (Ind. Ct. App. 2015) (alteration

       in original) (quoting Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011)), trans.

       denied.


[16]   At the outset of the trial, the trial court granted Webb’s motion in limine and

       restricted the State from playing a portion of a phone call between Webb and

       Wilkins in which Webb asks Wilkins to testify on Webb’s behalf and says, “Just

       come on my behalf like [Jackson] did in mother-f***ing Marion County for me.

       And that’s how I came home last time on that in Marion County.” Tr. p. 305.

       The purpose of Webb’s motion in limine was to prevent the State from

       discussing Webb’s criminal history. The trial court instructed the State to

       redact Webb’s comment related to how he “came home” in “Marion County.”

       Id.


[17]   During Wilkins’s testimony, the State asked him, “And when you talked to the

       Defendant the last time, oh, the first time, did he indicate to you that he wanted

       you to help him like [Jackson] had helped him before?” Id. at 328. Wilkins

       answered, “No.” Id. Webb objected to the question, but the trial court

       overruled his objection. On appeal, Webb contends the question “was a clear

       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 9 of 21
       reference to Webb having a prior criminal case” and that it deprived him of a

       fair trial because “any reference, however slight, of Webb having been in this

       situation ‘before’ could have easily swayed the minds of the jury in favor of

       conviction.” Appellant’s Amended Br. p. 17 (citation omitted in original).


[18]   Assuming, arguendo, that the trial court abused its discretion by allowing the

       State to ask its question, that error was harmless. The State presented evidence

       that Officer Weesner observed Webb place a gun in purse located in the back

       seat of the car and that a gun was later recovered from a purse in the back seat

       of the car. The State also presented evidence that Webb identified himself with

       a false name and that he fled from the traffic stop and continued to flee from

       police for several hours. We conclude that independent evidence is more than

       enough to support Webb’s convictions, and we are satisfied there is no

       substantial likelihood the question Webb challenges contributed to his

       conviction. See Evans, 30 N.E.3d at 776.


                              III. Exclusion of Probable Cause Affidavit

[19]   Webb next argues the trial court erred by not admitting into evidence the

       probable cause affidavit filed in Jackson’s case. We review the admission of

       evidence for an abuse of discretion. Smart v. State, 40 N.E.3d 963, 966 (Ind. Ct.

       App. 2015). A trial court abuses its discretion when its decision is clearly

       against the logic and effect of the facts and circumstances. Id. “The admission

       of evidence is harmless and is not grounds for reversal where the evidence is

       merely cumulative of other evidence properly admitted.” Id.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 10 of 21
[20]   The State filed a motion in limine asking the trial court to restrict Webb from

       referencing “[a]ny evidence of the existence or outcome of State of Indiana v.

       Samantha Jackson . . . [because] [t]his evidence is irrelevant . . . [and] there is a

       substantial danger that such evidence will confuse the issues, mislead the jury,

       or be a needless waste of the Court’s time.” App. pp. 38-39. Webb sought to

       introduce Jackson’s probable cause affidavit for the purpose of attacking Officer

       Weesner’s credibility. Unlike the probable cause affidavit Weesner prepared in

       Webb’s case, the probable cause affidavit he prepared in Jackson’s case did not

       state that Officer Weesner observed Webb placing a handgun in Jackson’s

       purse. During arguments on the State’s motion in limine, Webb stated, “we

       think it’s very relevant that the probable cause affidavit come in and, likewise,

       that the State obtained a conviction against Samantha Jackson for the very

       same thing that [Webb] is being tried for this morning.” Tr. p. 8. Webb also

       noted that the State initially moved to have a joint trial for Jackson and Webb

       and argued that motion undercut the State’s argument that the jury would be

       confused by seeing affidavits for probable cause from the two cases.


[21]   The trial court granted the State’s motion in part and stated:

               I’m going to allow [Webb] to notify the jury that there was
               another case of Samantha Jackson and that she pled guilty to the
               charge of possession of a handgun, Carrying a Handgun Without
               a License I suppose is the charge she probably pled guilty to . . . I
               don’t see that this PCA is going to come in because I do think
               that will confuse the jury, the PCA for Samantha Jackson has a
               different purpose than the PCA for Nicolas Webb and I do
               believe that it would be very confusing to the jury to see that and
               impossible for the State of Indiana to try to explain why one
       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 11 of 21
                  sentence needs to be in the PCA for one defendant and does not
                  need to be in the PCA for another. So I see that the prejudice is
                  substantially, overly, substantially more prejudicial than it would
                  be probative for I foresee myself sustaining an objection on 403
                  grounds.


       Id. at 10.


[22]   Webb did not seek to introduce Jackson’s probable cause affidavit during his

       trial. The subject did come up, however, during Officer Weesner’s testimony

       when a juror seems to have asked a question about the probable cause affidavit

       in Jackson’s case.1 See id. at 165-167. During a discussion about final jury

       instructions, Webb made an offer of proof related to Jackson’s probable cause

       affidavit. He stated:

                  [I]t seemed to me that I should make an offer to prove, and since
                  I didn’t have an exhibit that was denied, that wasn’t done. But I
                  have the exhibit, I indicated to you yesterday that I had it to
                  publish to the jury. May I make the – may I ask to have the
                  probable cause affidavit marked and make an offer to prove?


       Id. at 226. The trial court allowed Webb to make his offer of proof and

       accepted the exhibit he tendered. See id. at 225-28.


[23]   “Rulings on motions in limine are not final decisions and, therefore, do not

       preserve errors for appeal.” Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002).




       1
           That question was not read into the record or included in the record on appeal.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 12 of 21
       “The purpose of a motion in limine is merely to prevent prejudical remarks

       from being made in the presence of the jury. To preserve error for appeal, the

       trial court must rule on the evidence during the trial.” Manning v. Allgood, 412

       N.E.2d 811, 817 (Ind. Ct. App. 1980) (cited with approval in McCraney v. State,

       425 N.E.2d 151, 152 (Ind. 1981)).


[24]   Although Webb ultimately made an offer of proof and tendered the exhibit, he

       failed to request relief from the State’s motion in limine during the admission of

       evidence. See Black v. State, 829 N.E.2d 607, 610 (Ind. Ct. App. 2005), trans.

       denied. This would have allowed the trial court an opportunity to make a final

       ruling on the matter in the context in which Webb sought to admit the

       evidence. See White v. State, 687 N.E2d 178, 179 (Ind. 1997). Because Webb

       made no attempt to offer Jackson’s probable cause affidavit into evidence, he

       has waived review of this issue. See McCraney, 425 N.E.2d at 152.


[25]   Waiver notwithstanding, we briefly address Webb’s contention that the trial

       court abused its discretion by not admitting Jackson’s probable cause affidavit

       into evidence. Although the trial court granted the State’s motion in limine

       with regard to Jackson’s probable cause affidavit, Officer Weesner himself

       testified regarding the very information from that affidavit that Webb hoped to

       use to his advantage. See Tr. pp. 159-60. Officer Weesner testified that Jackson

       was convicted and sentenced to jail. Id. at 159. He testified that he drafted one

       case report related to both Webb and Jackson and that the report stated Officer

       Weesner observed Jackson place the gun in Jackson’s purse. Id. at 159-60.

       Finally, Officer Weesner stated he prepared separate probable cause affidavits

       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 13 of 21
       in Jackson’s and Webb’s cases and that he did not include that observation in

       Jackson’s probable cause affidavit. Id. at 160.


[26]   Webb argues the trial court’s refusal to admit Jackson’s probable cause affidavit

       was not harmless error because that ruling affected his substantial rights. He

       contends, “Jackson’s [probable cause affidavit] could have been the key piece of

       evidence the jury needed to find that Officer Weesner’s statements about seeing

       Webb with a gun lacked credibility,” and he notes that a juror asked a question

       about Jackson’s probable cause affidavit. Appellant’s Reply Br. p. 10. We note

       again that the record does not include the juror’s question, and we are therefore

       unable to evaluate Webb’s claim that the probable cause affidavit could have

       been a linchpin piece of evidence. The probable cause affidavit at issue here is

       merely cumulative of Officer Weesner’s testimony. Waiver notwithstanding,

       we conclude any error in declining to admit that document was harmless.


                                                IV. Sentencing

[27]   Webb contends both that the trial court abused its discretion when it sentenced

       him and that his sentence in inappropriate pursuant to Indiana Appellate Rule

       7(B). We address each of his arguments.


[28]   We engage in a four-step process when evaluating a sentence under the current

       “advisory” sentencing scheme. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

       2007), r’hg granted on other grounds. First, the trial court must issue a sentencing

       statement that includes “reasonably detailed reasons or circumstances for

       imposing a particular sentence.” Id. Second, the reasons or omission of reasons


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 14 of 21
       given for choosing a sentence are reviewable on appeal for an abuse of

       discretion. Id. Third, the weight given to those reasons, i.e. to particular

       aggravators or mitigators, is not subject to appellate review. Id. Fourth, the

       merits of a particular sentence are reviewable on appeal for appropriateness

       under Indiana Appellate Rule 7(B). Id. Even if a trial court abuses its

       discretion by not issuing a reasonably detailed sentencing statement or in its

       findings or non-findings of aggravators and mitigators, we may choose to

       review the appropriateness of a sentence under Rule 7(B) instead of remanding

       to the trial court. See Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007).


                                             A. Abuse of Discretion

[29]   Webb asserts that the trial court abused its discretion by relying on aggravating

       factors that did not have support in the record or were improper as a matter of

       law. An abuse of discretion in identifying or not identifying aggravators and

       mitigators occurs if it 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.’” Anglemyer, 868 N.E.2d at 490 (quoting

       K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Additionally, an abuse of

       discretion occurs if the record does not support the reasons given for imposing

       sentence, or the sentencing statement omits reasons that are clearly supported

       by the record and advanced for consideration, or the reasons given are improper

       as a matter of law. Id. at 490-91.


[30]   Pursuant to Indiana Code Section 35-50-3-2, the maximum term of

       imprisonment for a Class A misdemeanor conviction is one year. Pursuant to
       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 15 of 21
       Indiana Code Section 35-50-2-5.5, the sentence for a Level 4 felony conviction

       is between two and twelve years. The trial court sentenced Webb to one year

       for his misdemeanor conviction and twelve years, with two years suspended to

       probation, for the Level 4 felony conviction.


[31]   The trial court did not find any mitigating factors. The trial court found several

       aggravating factors. First, the trial court noted Webb’s criminal and juvenile

       delinquency history, which began in 2006. “[S]ince September 1, 2006, you

       have almost every single year of your life been involved in one way or another

       with the criminal justice system . . . I don’t know if there has been a single full

       calendar year where you were not being arrested or in jail or on probation.” Tr.

       p. 449. The trial court also noted that, at the time of this offense, Webb was on

       pretrial release and charged with possession of a firearm by a serious violent

       felon. The trial court cited rule violations while Webb was incarcerated in the

       Department of Correction and detained in juvenile facilities and the fact he was

       suspended or expelled from school. It noted that Webb fathered a child but

       does not know the child’s whereabouts. The trial court stated, “I see that you

       have a hard time being truthful with authority. Even to my probation officer

       you had a hard time letting her know that you are a gang member.” Id. at 451.

       The trial court found “the particularized circumstances” of these crimes to be

       aggravating and stated, “you placed officers’ lives and citizens’ lives in danger.

       That you, from the evidence it appears that you were attempting to kill a K-9

       police officer.” Id. at 451. Finally, the trial court noted that the State’s risk

       assessment determined Webb to be at high risk of reoffending.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 16 of 21
[32]   Webb argues the trial court abused its discretion by considering his conduct

       while fleeing as an aggravator because the record does not support it.

       According to Webb, “[n]o evidence was presented demonstrating that Webb

       was armed with a weapon, assaulted another person, or even threatened

       another person . . . no evidence was presented concerning any accidents [on the

       interstate] that occurred because of Webb’s flight.” Appellant’s Amended Br. p.

       22.


[33]   There is ample evidence that Webb’s prolonged flight, particularly his running

       across both the north- and southbound lanes of Interstate 69 with an officer in

       pursuit, created a dangerous situation for Officer Hancock and the citizens

       travelling the interstate at that time. Officer Hancock testified that two vehicles

       nearly struck Webb as he crossed the interstate and that a semi locked its brakes

       when it slowed to avoid hitting Webb. The likelihood of a serious traffic

       accident involving multiple cars travelling at high rates of speed as a result of

       Webb’s reckless actions was very high. Webb further placed law enforcement

       officers and the public at risk by leading police on a four-hour chase. This

       evidence alone is sufficient to support this aggravator.


[34]   Webb further argues the trial court abused its discretion by identifying as

       aggravating circumstances the fact Webb does not have contact with his child,

       has been affiliated with a gang, and, according to the risk assessment tool, is at

       high risk for reoffending. He also contends that the trial court abused its

       discretion by failing to articulate the rationale for imposing consecutive



       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 17 of 21
       sentences. 2 Because we conclude Webb’s sentence is not inappropriate in light

       of the nature of the offense and character of the offender, we need not address

       the merits of these abuse of discretion arguments. Assuming, without

       concluding, that the trial court did abuse its discretion by finding these

       aggravators, we need not remand this matter for resentencing. See Windhorst,

       868 N.E.2d at 507. Instead, we exercise our authority to review and revise

       Webb’s sentence pursuant to Indiana Appellate Rule 7(B). See id.


                                                   B. Appropriateness

[35]   We now assess whether Webb’s sentence is inappropriate under Appellate Rule

       7(B) in light of his character and the nature of the offense. See Anglemyer, 868

       N.E.2d at 491. Although Rule 7(B) does not require us to be “extremely”

       deferential to a trial court’s sentencing decision, we still must give due

       consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). We also understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Id. “Additionally, a defendant bears

       the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Id.




       2
         We note that Webb states the trial court “provided no further statement or explanation as to why the trial
       court was imposing a one-year sentence for the misdemeanor conviction . . . .” Appellant’s Amended Br. p.
       25. To the extent Webb suggests the trial court abused its discretion in this regard, we note that a trial court
       is only required to issue a sentencing statement “that includes a reasonably detailed recitation of the trial
       court’s reasons for the sentence imposed” when imposing a sentence for a felony. Anglemyer, 868 N.E.2d at
       484-85.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016                Page 18 of 21
[36]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on 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. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[37]   With regard to the nature of the offense, we note that Webb’s evasion of the

       police lasted approximately four hours and burdened officers from at least five

       law enforcement agencies. Webb led the officers on a chase through wooded,

       hilly terrain, where it was difficult to see, and it was likely an officer could have

       been injured while pursuing Webb. Webb endangered his own life, Officer

       Hancock’s life, and the lives of innocent citizens when he ran across both the

       north- and southbound lanes of Interstate 69. This was an exceptionally

       dangerous act in light of the high rate of speed at which vehicles travel on the

       interstate and the number of them that could have been involved in a traffic


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 19 of 21
       accident as a result of Webb’s reckless behavior. In addition to endangering a

       large number of human lives, Webb attempted to injure, if not kill, K-9 Officer

       Debo when he tried to evade his apprehension in the creek.


[38]   Webb is twenty-three years old and, as the trial court noted, has been involved

       in the juvenile delinquency and criminal justice systems since 2006. Webb’s

       juvenile delinquency includes adjudications for Class A misdemeanor criminal

       mischief and conversion; and Class D felony theft, auto theft, and resisting law

       enforcement. In 2010, Webb was waived to adult court and convicted of Class

       B felony robbery. His adult criminal history includes convictions for two

       counts of Class B felony robbery. While serving the suspended portion of his

       sentence for those convictions, Webb’s probation was revoked. He was also

       charged with Class 4 felony possession of a firearm by a serious violent felon,

       and he was on pretrial release at the time he committed this offense. In light of

       the nature of these offenses and Webb’s character as a violent felon with a

       lengthy criminal history amassed in a short period of time, we conclude his

       aggregate thirteen-year sentence is not inappropriate in light of the nature of the

       offense and character of the offender.


                                                 Conclusion
[39]   We conclude the trial court did not abuse its discretion when it denied Webb’s

       request for a continuance. We further conclude that any abuses of discretion in

       the admission or exclusion of evidence were harmless. Finally, we conclude

       Webb’s aggregate thirteen-year sentence is not inappropriate. We affirm.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 20 of 21
[40]   Affirmed.


[41]   Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CR-1885 | May 24, 2016   Page 21 of 21
