MEMORANDUM DECISION
                                                                      Mar 23 2015, 9:47 am
Pursuant to Ind. Appellate Rule 65(D), 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
Anthony S. Churchward                                    Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                         Angela N. Sanchez
Fort Wayne, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Steven W. Slater, Jr.,                                   March 23, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         92A05-1406-CR-263
        v.                                               Appeal from the Whitley Circuit
                                                         Court.
                                                         The Honorable James R. Heuer,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 92C01-1401-FB-10




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015         Page 1 of 9
[1]   Steven Slater appeals his convictions for two counts of class C felony Burglary, 1

      two counts of class C felony Theft,2 and two counts of class B misdemeanor

      Criminal Mischief,3 as well as the finding that he is an habitual offender. He

      argues that the trial court erred when it admitted certain testimony from one of

      his accomplices about their discussion while planning a burglary. Slater also

      argues that his sentence is inappropriate in light of the nature of his offenses and

      his character. Finding no error, we affirm.


                                                    Facts
[2]   In January 2014, Slater was living with his girlfriend, Haley Shultz, in an

      apartment close to Hosler’s TV and Appliance Store (Hosler’s) in Columbia

      City. Nathan Fugate lived in the apartment next to Slater. Occasionally,

      Chantal Bocskey, a friend of Fugate’s, would stay in Fugate’s apartment.


[3]   On January 2, 2014, Slater, Fugate, Shultz, and Bocskey were looking for a

      way to make money. They drove to a gas station, where they attempted to

      break into two Pepsi machines. Slater and Fugate attempted to pry open a

      machine with a crowbar, but were unsuccessful.


[4]   On January 5, 2014, the four successfully broke into a Pepsi machine in front of

      Krinder’s Meat Processing. The two women remained in the car, while Fugate




      1
          Ind. Code § 35-43-2-1.
      2
          I.C. § 35-43-4-2.
      3
          I.C. § 35-43-1-2.


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      and Slater pried open the machine with crowbars. Once they opened the

      machine, they took the metal change box from within, removed the change,

      and cashed it in at a machine in a Walmart. They used the money to purchase

      cocaine, which they smoked together.


[5]   The following day, January 6, 2014, all four drove to Clugston Senior Living

      Apartments, where a family friend of Fugate’s was living. Fugate, who had a

      key to the building, entered the lobby with Slater. While Fugate visited his

      friend, Slater took a 37-inch television from the lobby, placed it in the car, and

      took it to his apartment. The television was broken, so Slater took it to Hosler’s

      to have it repaired.


[6]   On January 9, 2014, the four were again discussing ways to obtain money.

      When he testified at trial, Fugate stated that, during this discussion, Slater

      suggested that the four break into a jewelry store. Fugate further testified that

      he told Slater he was too scared to break into a jewelry store and that Slater

      then suggested that they break into Hosler’s. Fugate testified that Slater told

      him that he had checked out the store and it did not have sensors or alarms.

      Slater objected at trial to this testimony regarding the jewelry store, arguing that

      it was inadmissible character evidence, but the trial court allowed it into

      evidence, ruling that it “was all part of the process of what they were going

      through.” Tr. p. 312.


[7]   After this discussion, the four drove a few blocks and picked up a brick. They

      parked near Hosler’s, where Slater exited the car with the brick. Soon after, the


      Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 3 of 9
       others heard a loud crashing sound when Slater threw the brick through the

       store’s glass window. Slater grabbed a television and got back in the car. The

       four drove the television to Fort Wayne. There, Slater gave the television to a

       drug dealer in exchange for cocaine, which Slater, Fugate, and Bocskey

       smoked.


[8]    Later that day, the owner of Hosler’s arrived to open the store. When he

       discovered that the store had been broken into and that a television had been

       stolen, he immediately contacted the police, who began conducting an

       investigation.


[9]    On January 26, 2014, the four were joined by Victoria Lowe, a friend of

       Fugate’s. The group decided to, once again, break into Hosler’s. Slater and

       Fugate walked to Hosler’s with a brick, which Slater threw through a window.

       Fugate grabbed a sound bar from the store and he and Slater ran back towards

       the car. However, as they ran, Fugate thought he saw a police officer, dropped

       the sound bar, and ran back to his apartment. Slater picked up the sound bar

       and placed it in the car. Fugate eventually returned to the car, and the group

       drove to Fort Wayne, where Slater exchanged the sound bar for more cocaine

       and some money.


[10]   That afternoon, police officers contacted the owner of Hosler’s to tell him that

       the store had again been the target of a break in. They asked him if he had any

       idea who might have been the perpetrator of the break in. The owner told them

       that he thought it might be one of the individuals living in the apartment


       Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 4 of 9
       complex adjacent to the store, and he mentioned that he suspected it might

       have been Fugate.


[11]   Police officers went to Fugate’s apartment, where they asked Fugate if he knew

       anything about the break in. While speaking with Fugate, the police officers

       discovered that Fugate appeared to be manufacturing methamphetamine.

       When he learned that he might be investigated for methamphetamine

       manufacturing, Fugate told the police officers that Slater had broken into

       Hosler’s.


[12]   On January 28, 2014, the State charged Slater with three counts of class C

       felony burglary, class D felony theft, and two counts of class B misdemeanor

       criminal mischief. On February 3, 2014, the State amended the information,

       alleging that Slater was an habitual offender. On April 17, 2014, the State

       amended the charging information to replace one class C felony burglary charge

       with a class D felony theft charge.


[13]   On April 23, 2014, a jury found Slater guilty as charged. The jury also found

       that he was an habitual offender. On May 19, 2014, the trial court sentenced

       Slater to eight years for each burglary conviction, to three years for each theft

       conviction, and to 180 days for each criminal mischief conviction, all to be

       served concurrently. The trial court imposed an additional four-year sentence

       for the habitual offender finding, resulting in an aggregate sentence of twelve

       years. Slater now appeals.




       Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 5 of 9
                                    Discussion and Decision
                                   I. Admission of Evidence
[14]   Slater argues that the trial court erred when it allowed Fugate’s testimony

       regarding the jewelry store discussion into evidence. The admission of evidence

       at trial is a matter left to the discretion of the trial court. Clark v. State, 994

       N.E.2d 252, 259-60 (Ind. 2013). We review these determinations for an abuse

       of that discretion, and will reverse only when the admission of evidence is

       clearly against the logic and effect of the facts and circumstances and the error

       affects a party’s substantial rights. Id. at 260.


[15]   Slater argues that the trial court’s decision to allow Fugate to testify that Slater

       suggested that they rob a jewelry store before they decided to break into

       Hosler’s is impermissible character evidence that violates Indiana Evidence

       Rule 404(b). Rule 404(b) provides that evidence of prior bad acts “is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” Slater argues that

       the evidence was used to show that he had a propensity to commit the crimes

       charged. He also argues that the trial court should have excluded the evidence

       because its probative value was substantially outweighed by the danger of unfair

       prejudice under Indiana Evidence Rule 403.


[16]   When ruling on Slater’s objection to the evidence at issue, the trial court

       determined it was admissible because it “was all part of the process of what they

       were going through.” Tr. p. 312. In other words, the trial court viewed the

       Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 6 of 9
       discussion as intrinsic evidence. Rule 404(b) does not bar the admission of

       evidence of uncharged acts that are “intrinsic” to the charged offense. Lee v.

       State, 689 N.E.2d 435, 439 (Ind. 1997). Other acts are “intrinsic” if they occur

       at the same time and under the same circumstances as the crimes charged.

       Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007). Evidence of

       happenings near in time and place that complete the story of the crime is

       admissible even if it tends to establish the commission of other crimes not

       included among those being prosecuted. Id.


[17]   Here, Fugate’s testimony regarding Slater’s suggestion that they rob the jewelry

       store is intrinsic to the charged offenses. It was part of the discussion in which

       Fugate and Slater decided to rob Hosler’s—the charged offense. Therefore, the

       admission of the evidence did not violate rule 404(b). In addition, the evidence

       had a high probative value, as it showed that Slater actively took part in

       determining which location the group would burglarize. Furthermore, in light

       of all the evidence presented against Slater, including the testimony of Fugate

       and other witnesses who saw Slater break into Hosler’s, its prejudicial effect

       was low. Therefore, we find that the trial court did not err in admitting

       Fugate’s testimony.


                                    II. Sentencing Challenge
[18]   Slater also argues that his sentence was inappropriate in light of the nature of

       the offenses and his character. On appeal, this Court “may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the


       Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 7 of 9
       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Ind. Appellate Rule 7(B). However, this

       Court does not substitute its judgment for that of the trial court. Foster v. State,

       795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate Rule 7(B), the

       question is not whether it is more appropriate to impose a different sentence

       upon the defendant, but whether the defendant’s sentence is appropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). On appeal, the

       defendant bears the burden of persuading this Court that the sentence he

       received is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[19]   Regarding the nature of the offenses, Slater perpetrated multiple crimes over

       several weeks. On two separate occasions, he threw a brick through the

       window of Hosler’s. In addition, he stole a television from a senior living

       center and used crowbars to pry open Pepsi machines. Slater had time between

       these crimes to determine that he would not repeat his behavior and instead

       chose to perpetrate more crimes. Futhermore, although Slater was convicted of

       multiple crimes, the trial court ordered that his sentences for those convictions

       be served concurrently. We do not find that Slater’s sentence was inappropriate

       in light of the nature of his offenses.


[20]   In considering Slater’s character, we note that he has an extensive criminal

       history. He has prior convictions for eight misdemeanors and six felonies. In

       addition, as a juvenile, he was adjudicated a delinquent when he committed

       burglary. Slater has been given many opportunities for rehabilitation. He has

       received probation in four cases, and, in all of those cases, he has violated

       Court of Appeals of Indiana | Memorandum Decision 92A05-1406-CR-263 | March 23, 2015   Page 8 of 9
       probation. While Slater admits to having a drug problem and has received

       substance abuse treatment during a prior incarceration, it is clear that he

       continues to use drugs and that he committed these offenses in order to sustain

       his drug use. Under these circumstances, we do not find that Slater’s sentence

       is inappropriate in light of his character.


[21]   The judgment of the trial court is affirmed.


       Friedlander, J., and Crone, J., concur.




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