MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
this Memorandum Decision shall not be                                     Aug 14 2019, 6:08 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan W. Rogers,                                          August 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3043
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven Meyer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1806-F3-19




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019                    Page 1 of 9
                                             Case Summary
[1]   Ryan W. Rogers appeals his sentence, received pursuant to his guilty plea, for

      aggravated battery, a Level 3 felony, and the use of a firearm sentencing

      enhancement. We affirm.


                                                     Issue
[2]   Rogers raises one issue, which we restate as whether his sentence is

      inappropriate in light of the nature of his offense and his character.


                                                     Facts
[3]   On May 30, 2018, D.T. received a text from her then-boyfriend, Rogers, whom

      she had allowed to move into her house. Rogers told D.T., through text

      messages, that he had made dinner and it would be ready for her once she

      arrived home. Rogers asked D.T. what time she would return home, and she

      told him that she would return around 7:00 p.m. Before D.T. arrived, Rogers

      unplugged the garage door opener. When D.T. arrived home, she attempted to

      open the garage door, but it would not work. Rogers was standing at the front

      door and held it open for D.T.


[4]   As D.T. walked inside her home, Rogers grabbed her arm, threw D.T.’s

      cellphone against the wall, and threw D.T. on the couch. Rogers placed a

      dinner plate on a table in front of the couch, and he placed a pistol with bullets

      next to the plate. Rogers began hitting D.T. on her back and told her to eat the

      food that he had prepared for her. Rogers told D.T. that she was going to die

      and that he was going to kill her. Rogers then grabbed the gun and discharged
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 2 of 9
      two blank rounds near D.T.’s left ear. Rogers told D.T that the bullets that he

      shot next to her ear were only blanks. He also told her that it was not her time

      to die yet, but he would kill her later. Rogers then made D.T. watch the movie

      “Death Row.” D.T. pleaded with Rogers for her life. D.T. told Rogers that she

      would give him money and drugs if he wanted. Rogers replied to D.T. that he

      did not want anything from her.


[5]   At one point, Rogers struck D.T. with the butt of his gun on the right side of her

      face near her eye. D.T. bled, and Rogers wiped D.T.’s blood off her face and

      wiped it on his own face. Rogers pointed his gun at D.T.’s temple and

      discharged five more blanks. Rogers continued to taunt D.T., and told her that

      he was going to kill her. Rogers then picked up a bullet with a pink tip that he

      claimed was a special bullet for D.T. When Rogers began to lose his balance

      due to his intoxication, D.T. fled to a neighbor’s residence and hid there until

      the police arrived. Rogers searched for D.T. in the neighborhood, and he was

      eventually apprehended at D.T.’s house by a special response team. As a result

      of these events, D.T. suffered a ruptured ear drum, hearing loss, post-traumatic

      stress disorder, depression, and anxiety, and incurred $4,297.40 in medical bills.


[6]   On June 5, 2018, the State charged Rogers with: (1) aggravated battery, a Level

      3 felony; (2) criminal confinement, a Level 3 felony; (3) domestic battery by

      means of a deadly weapon; a Level 5 felony; (4) intimidation, a Level 5 felony;

      (5) domestic battery resulting in moderate bodily injury, a Level 6 felony; (6)

      criminal recklessness, a Level 6 felony; and (7) domestic battery, a Class A

      misdemeanor. On September 14, 2018, the State also charged Rogers with use

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 3 of 9
       of a firearm as a sentencing enhancement in relation to the offenses committed

       on May 30, 2018.


[7]    On October 29, 2018, Rogers pleaded guilty pursuant to a plea agreement to

       aggravated battery, a Level 3 felony, and the use of a firearm sentencing

       enhancement. The remaining charges were dismissed.


[8]    At sentencing, the trial court found the following aggravators: (1) Rogers’

       criminal history; (2) Rogers had unsuccessfully participated in a diversion

       agreement for a domestic battery against D.T. before committing the instant

       offense; (3) Rogers was on probation in a separate county when he committed

       the instant offense; (4) Rogers’ character and attitude during the sentencing

       hearing, which showed a lack of remorse; (5) Rogers’ violation of the no

       contact order when he attempted to directly and/or indirectly contact D.T.; and

       (6) that the harm, injury, loss, or damage suffered by D.T. was significant and

       greater than the elements necessary to prove the commission of the offense.


[9]    The trial court also found the following mitigating factors: (1) Rogers’ difficult

       childhood; (2) Rogers’ mental health, substance abuse, and alcohol issues,

       which the trial court found diminished by his failure to complete the diversion

       program; and (3) Rogers’ guilty plea. The trial court found that Rogers’ guilty

       plea was diminished by the benefits Rogers received from the plea agreement.


[10]   The trial court sentenced Rogers to fourteen years for his aggravated battery

       conviction to be served at the Department of Correction, with twelve years

       executed, and two years suspended on probation. The trial court imposed an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 4 of 9
       additional eight years for the use of a firearm sentencing enhancement with all

       eight years executed at the Department of Corrections. Rogers received an

       aggregate sentence of twenty-two years with two of the years suspended to

       probation.


                                                   Analysis
[11]   Rogers asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which provides that we 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.


[12]   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. Ct. App. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. Ct. App. 2008)), trans. denied. 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)).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 5 of 9
[13]   We look to the statutory range established for the classification of the offense.

       The sentence for a Level 3 felony ranges from three years to sixteen years, with

       an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Here, the trial

       court imposed a term of fourteen years, with a term of twelve years executed.

       The use of a firearm sentencing enhancement ranges from five years to twenty

       years, with no advisory sentence. I.C. § 35-50-2-11(g). The trial court imposed

       a term of eight years executed for the use of a firearm sentencing enhancement.

       In total, the trial court imposed an aggregate sentence of twenty-two years of

       which two years were suspended.


[14]   “[T]he advisory sentence is the starting point the Legislature has selected as an

       appropriate sentence.” Green v. State, 65 N.E.3d 620, 637-38 (Ind. Ct. App.

       2016), trans. denied. A deviation from the advisory sentence, when determining

       the appropriateness of a sentence, requires us to examine whether there is

       anything more or less egregious about the offense committed by Rogers that

       “makes it different from the ‘typical’ offense accounted for by the legislature

       when it set the advisory sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind.

       Ct. App. 2011) (quoting Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008),

       trans. denied).


[15]   Pursuant to Indiana Appellate Rule 7(B), we first review the nature of Rogers’

       offense. As the trial court stated at Rogers’ sentencing hearing:


               You threatened to kill the woman! The woman who took you
               into [her] home when you were homeless. You had nowhere else
               to go, and she took you in. And how do you treat her? You set

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 6 of 9
        up her house, you lock the garage door, you disassemble the
        electric remote, and you set a trap for this woman.


                                             *****


        You created this trap for her. You call her all nice or text her and
        say hey, you know, I’ve got dinner ready for you. She comes
        home thinking maybe you’ve turned the corner.


                                             *****


        So, I don’t think you can blame all this on alcohol where you just
        instinctively reacted. It’s a horrific, horrific crime that you’ve
        committed here. You held her captive. You held her hostage.
        You tortured the poor woman saying this is it, I’m gonna [sic]
        kill you. Held the gun to her head. She had every reason to
        believe this is it. That she’s watching her life go through, go past
        in her mind. And then you shoot a blank at her. Well wasn’t
        that nice. Ha! Ha! Scared ya! Let’s do it again. And again.
        And again. Every time, scaring the heck out of her, every time
        making her think she’s gonna lose her life. It is horrific. And, it
        can’t just be ignored by saying this is an immature twenty-one[-
        ]year[-]old who was drunk and has some mental health issues. I
        don’t buy it.


Conf. Tr. Vol. II pp. 56-58. Regardless of his assertion that he “was not in his

right mind” because he was “under the influence of alcohol and

methamphetamine[,]” the nature of Rogers’ offense is horrific. Appellant’s Br.

pp. 9-10. Under the pretense of making dinner, Rogers lured D.T. home so that

he could execute his plan of trapping and terrorizing her.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 7 of 9
[16]   As the trial court noted, Rogers disarmed the garage door to minimize D.T.’s

       options if she tried to escape. Rogers proceeded to torture D.T. once she came

       home by holding D.T. captive, telling D.T. that she was going to die, hitting

       her, and continuously shooting blank rounds next to her ear. During Rogers’

       sentencing, D.T. testified that she has a ruptured eardrum and suffers from

       anxiety, depression, and post-traumatic stress disorder as a result of Rogers’

       attack on her. D.T. also testified that she has recurring nightmares, that she

       had to get stitches on the right side of her face, and that she suffers from hearing

       loss. Additionally, D.T. testified that Rogers prompted someone to contact her

       on Facebook from prison. This person asked D.T. where she lived and stated

       that he could not believe that D.T. put Rogers in jail.


[17]   Next, we consider Rogers’ character. “When considering the character of the

       offender, one relevant fact is the defendant’s criminal history.” Garcia v. State,

       47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015), trans. denied. Rogers’ criminal

       history does not reflect well upon his character. His criminal history includes

       convictions for intimidation, leaving the scene of an accident, and operating a

       vehicle with a controlled substance in his body. As of the date of the

       presentence investigation report, Rogers had two petitions to revoke probation

       filed against him, as well a pending outstanding warrant. Rogers was on a

       diversion agreement for a prior battery against D.T. at the time of his offense.

       He was also on probation for his previous intimidation offense.


[18]   The trial court observed Rogers’ attitude and noted Rogers’ lack of remorse as

       an aggravating factor. During Rogers’ sentencing, D.T. testified that Rogers,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 8 of 9
       while in jail, convinced people to contact her. When Rogers addressed the

       court, he stated that “[D.T.] said someone contacted her from jail. That’s a lie.

       I’ve never told anyone her name in the jail.” Conf. Tr. p. 42.


[19]   After Rogers addressed the trial court, the trial court remarked:


               Your character and attitude concerns the Court. I do think that
               you’ve displayed an attitude and character of violence, anger
               management. Also, your character and attitude indicated to me
               that you’re not necessarily that remorseful. While you’ve been in
               jail for these last 182 days, you’ve done nothing to improve
               yourself. . . . Your character and attitude also concern me here
               today. This young woman who you victimized, who just talked
               about everything she went through and is still going through, and
               what do you do, you stand up and call her a liar! A liar! So,
               while you express remorse, I’m not sure you’re completely
               remorseful with that kind of attitude.


       Id. at 60-61. Rogers’ actions during his sentencing do not reflect well upon his

       character. Rogers has not convinced us that his sentence is inappropriate in

       light of the nature of the offense and his character.


                                                 Conclusion
[20]   Rogers has failed to meet his burden of demonstrating that his sentence is

       inappropriate in light of the nature of his offenses and his character. We affirm.


[21]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3043 | August 14, 2019   Page 9 of 9
