MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                         Mar 14 2018, 10:35 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicholas F. Wallace                                      Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                                      Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Sybron L. Pinkston,                                      March 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1707-CR-1745
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1704-F6-355



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018             Page 1 of 13
                                             Case Summary
[1]   A jury convicted Sybron L. Pinkston of level 6 felony resisting law enforcement,

      class A misdemeanor operating a motor vehicle with a suspended license, and

      class B misdemeanor leaving the scene of an accident. He appeals, claiming

      that he was denied due process when he was forced to wear shackles during

      trial and challenging the sufficiency of the evidence to support his convictions.

      He also challenges the trial court’s treatment of mitigating circumstances during

      sentencing and claims that his two-and-a-half-year aggregate sentence is

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


                                 Facts and Procedural History
[2]   In March 2017, Fort Wayne Police Detective George Nicklow was working a

      midafternoon patrol. A silver vehicle passed him, and he noticed what

      appeared to be a bullet hole in the vehicle. He contacted fellow Detective

      Robert Hollo to request assistance. Detective Hollo pulled up next to the silver

      vehicle and recognized the driver as Pinkston, based on previous dealings. He

      later testified that he had “no doubt in [his] mind” that the driver was Pinkston,

      that he had a “clear unimpeded view” through the driver’s side window, and

      that there was nobody else inside the vehicle. Tr. Vol. 3 at 75-76, 82-83, 138-39.


[3]   Detective Nicklow, also familiar with Pinkston from past entanglements with

      law enforcement, knew that Pinkston had a suspended driver’s license, so he

      followed him. When Pinkston failed to use his turn signal, Detective Nicklow

      initiated a traffic stop. As he walked toward the vehicle, he recognized


      Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 2 of 13
      Pinkston’s face in the driver’s sideview mirror. Before he could engage

      Pinkston, Pinkston sped away. Detective Hollo pursued Pinkston, who

      momentarily evaded him by driving through a residential area at sixty-five

      miles per hour. Shortly thereafter, Detective Hollo came upon the vehicle,

      which Pinkston had crashed into a small tree in a private yard. Pinkston had

      fled the scene, and the officers were unable to apprehend him. The homeowner

      told police that the driver of the silver vehicle had not stopped to give him any

      insurance information or identification. Police discovered that the registered

      owner of the silver vehicle was Pinkston’s grandmother (“Grandmother”), who

      told police that she had given Pinkston her vehicle that afternoon and asked

      him to go buy her some food. According to Grandmother, Pinkston was alone

      when he left her home and never returned with any food. She later learned that

      her damaged vehicle was in the tow yard.


[4]   The State charged Pinkston with level 6 felony resisting law enforcement, class

      A misdemeanor driving on a suspended license, and class B misdemeanor

      leaving the scene of an accident. Pinkston proceeded pro se, and just before his

      jury trial, he asked the trial court about removing his leg shackles. The trial

      court indicated that they would not be removed but that the court had put

      safeguards in place to ensure that the jury would not be aware that he was

      wearing them. The jury convicted Pinkston as charged. During sentencing, the

      trial court found as aggravators Pinkston’s criminal history, particularly his

      convictions for escape and resisting law enforcement, his failure to respond to

      rehabilitation efforts, and his active warrant in Ohio. The trial court found his


      Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 3 of 13
      parental status to be mitigating and sentenced him to concurrent terms of two

      years and 183 days for resisting law enforcement, one year for driving while

      suspended, and 180 days for leaving the scene of an accident. Pinkston now

      appeals. Additional facts will be provided as necessary.


                                        Discussion and Decision

           Section 1 – Pinkston waived his due process argument by
             failing to object to wearing leg shackles during trial.
[5]   Pinkston first maintains that he was denied due process when the trial court

      forced him to wear leg shackles during his jury trial.1 At the outset, we note

      that Pinkston chose to proceed pro se throughout the proceedings below. It is

      well settled that pro se litigants are held to the same legal standards as licensed

      attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016). This

      means that they must follow the established rules of procedure and accept the

      consequences when they fail to do so. Id.


[6]   Where a party claims that he was denied due process, we review the matter de

      novo. Hilligoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct. App. 2015). Because he

      is presumed innocent until proven guilty, a defendant “has the right to appear



      1
         Pinkston also alleges that he was forced to wear prison attire. Because he has failed to develop a cogent
      argument with citation to relevant authority, he has waived this issue. Ind. Appellate Rule 46(A)(8); Nur v.
      State, 869 N.E.2d 472, 482 (Ind. Ct. App. 2007), trans. denied (2008). Even so, the record simply does not
      bear this out. During a pretrial conference, the trial court addressed clothing with Pinkston and indicated
      that the public defender’s office could provide him with an outfit suitable for trial. Pinkston assured the trial
      court that he could obtain clothing for trial. Also, two separate times, Pinkston was identified in court during
      trial as wearing two different-colored shirts, which suggests that he was not wearing prison garb.
      Accordingly, we limit our discussion to Pinkston’s leg shackles.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018               Page 4 of 13
      before a jury without physical restraints, unless such restraints are necessary to

      prevent the defendant’s escape, to protect those present in the courtroom, or to

      maintain order during the trial.” Overstreet v. State, 877 N.E.2d 144, 160 (Ind.

      2007). “For this presumption [of innocence] to be effective, courts must guard

      against practices that unnecessarily mark the defendant as a dangerous

      character or suggest that his guilt is a foregone conclusion.” Id. “[G]iven their

      prejudicial effect, due process does not permit the use of visible restraints if the

      trial court has not taken account of the circumstances of the particular case.”

      Deck v. Missouri, 544 U.S. 622, 632 (2005). In other words, if the trial court

      decides to physically restrain the defendant in the jury’s presence, it must place

      in the record its reasons and facts supporting its decision to use those restraints.

      Corbin v. State, 840 N.E.2d 424, 431 (Ind. Ct. App. 2006) (quoting French v.

      State, 778 N.E.2d 816, 820 (Ind. 2002)). That did not happen in this case.


[7]   Here, the trial court instructed Pinkston to conduct his voir dire while seated at

      counsel table. After voir dire and before the jury re-entered the courtroom,

      Pinkston asked why he still had to wear his leg shackles. The trial court

      responded, “Because you are in custody,” and Pinkston said, “Okay.” Tr. Vol.

      2 at 230. The court explained safeguards that it had put in place to ensure that

      the jury would be unaware of Pinkston’s shackles, i.e., the courtroom had been

      rearranged and counsel tables had been skirted. Id. As to each safeguard,

      Pinkston responded, “Okay,” and asked questions, if any clarification was

      necessary. Id. The court also explained the special procedure for proffered

      exhibits to be given to the bailiff to bring forward for introduction and ordered


      Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 5 of 13
      that any bench conferences be held outside the jury’s presence. Id.

      Additionally, to ensure parity, the court ordered that all arguments and

      questioning by both Pinkston and the prosecutor be made from a seated or

      standing position behind counsel tables. Id. at 223-24.


[8]   For as thoroughly as the trial court explained the safeguards, it failed in its duty

      to explain the reasons for requiring Pinkston to remain shackled in the first

      place, i.e., that he posed a flight risk or a risk to the security or order in the

      courtroom due to certain facts. See Overstreet, 877 N.E.2d at 160. Simply put,

      the trial court’s general in-custody statement, standing alone, is insufficient to

      warrant the use of restraints during trial. See Deck, 544 U.S. at 634 (trial court’s

      stated reason for defendant’s restraints during sentencing that he “has been

      convicted” held insufficient explanation of reasons).


[9]   However, Pinkston never objected to the trial court’s decision to keep him

      restrained in leg shackles. In fact, his repeated “okay” responses indicate his

      tacit agreement to the trial court’s arrangements. As such, he has waived the

      issue for appeal. See Corbin, 840 N.E.2d at 431 (finding waiver of argument that

      shackled defendant was denied constitutional presumption of innocence where

      defendant failed to object on that basis below); see also Howard v. State, 459

      N.E.2d 29, 32 (Ind. 1984) (failure to object to being tried in prison clothes held

      sufficient to waive due process right to appear before jury in civilian clothes).

      Waiver notwithstanding, the trial court put safeguards in place to eliminate the

      possibility that the jury would see Pinkston’s leg shackles, and the record before

      us is devoid of any evidence indicating that the jury in fact saw them or that the

      Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 6 of 13
       restraints interfered with the presentation of his case. We find no reversible

       error here.


          Section 2 – The evidence is sufficient to support Pinkston’s
                                 convictions.
[10]   Pinkston challenges the sufficiency of the evidence to support his convictions.

       When reviewing a challenge to the sufficiency of evidence, we neither reweigh

       evidence nor judge witness credibility. Moore v. State, 27 N.E.3d 749, 754 (Ind.

       2015). Rather, we consider only the evidence and reasonable inferences most

       favorable to the verdict and will affirm the conviction unless no reasonable

       factfinder could find the elements of the crime proven beyond a reasonable

       doubt. Id. Reversal is appropriate only when reasonable persons would be

       unable to form inferences as to each material element of the offense. McCray v.

       State, 850 N.E.2d 998, 1000 (Ind. Ct. App. 2006), trans. denied. The evidence

       need not “overcome every reasonable hypothesis of innocence.” Dalton v. State,

       56 N.E.3d 644, 647 (Ind. Ct. App. 2016 (quoting Drane v. State, 867 N.E.2d

       144, 147 (Ind. 2007)), trans. denied.


[11]   Pinkston’s only argument concerns his identity as the driver of the vehicle

       during the chase and ensuing crash. He asks that we impinge upon the jury’s

       function to judge witness credibility by applying the “incredible dubiosity” rule,

       which states,


               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 7 of 13
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.


       Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations omitted). For this

       rule to apply, there must be a sole testifying witness, testimony that is inherently

       contradictory, equivocal, or coerced, and a complete absence of circumstantial

       evidence. Moore, 27 N.E.3d at 756.


[12]   Pinkston’s reliance on the incredible dubiosity rule is misplaced. Detectives

       Nicklow and Hollo both testified that they recognized Pinkston as the driver of

       the vehicle involved in the police chase and registered to Grandmother, who

       testified that she lent Pinkston her vehicle shortly before the police chase. In

       other words, the identification testimony of more than one witness was

       supported by circumstantial evidence that Pinkston was the driver of the

       vehicle. As such, the incredible dubiosity rule does not apply.


[13]   Pinkston attempts to discredit Grandmother’s testimony based on her advanced

       age and medications that cause confusion. He also challenges the accuracy of

       the detectives’ identification through car windows and sideview mirrors and

       cites their conflicting testimony as to whether he was wearing a hat or a hoodie.

       These arguments are invitations to reweigh evidence and judge witness

       credibility, which we may not and will not do. See id. at 754. The evidence is

       sufficient to support Pinkston’s convictions, and therefore we affirm them.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 8 of 13
          Section 3 – The trial court acted within its discretion in its
          treatment of mitigating circumstances during sentencing.
[14]   Pinkston asserts that the trial court abused its discretion in its treatment of

       mitigating circumstances during sentencing. Sentencing decisions rest within

       the sound discretion of the trial court, and so long as a sentence is within the

       statutory range, it is subject to review only for an abuse of discretion. Anglemyer

       v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An

       abuse of discretion occurs where the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it, or the reasonable,

       probable, and actual deductions to be drawn therefrom. Sloan v. State, 16

       N.E.3d 1018, 1026 (Ind. Ct. App. 2014). One of the ways in which a trial court

       may abuse its discretion is if the sentencing statement omits mitigating factors

       that are clearly supported by the record and advanced for consideration.

       Anglemyer, 868 N.E.2d at 490-91.


[15]   The trial court is not obligated to accept the defendant’s argument concerning

       what constitutes a mitigating factor. Healey v. State, 969 N.E.2d 607, 616 (Ind.

       Ct. App. 2012), trans. denied. Moreover, if the trial court does not find the

       existence of a mitigator after it has been argued by counsel, the court is not

       obligated to explain why it found the circumstance not to be mitigating.

       Anglemyer, 868 N.E.2d at 493.


[16]   Here, Pinkston claims that the trial court overlooked as mitigators his desire to

       seek higher education as well as his being a loving father to his children. When

       pronouncing sentence, the trial court identified as mitigating Pinkston’s status
       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 9 of 13
       as a father but simply commented no further. As for Pinkston’s educational

       pursuits, the transcript shows an exchange during which Pinkston claimed that

       he “was on [his] way to college …. [in] Salt Lake City, Utah,” to which the trial

       court pointedly asked, “While you were on bond?” and Pinkston responded,

       “Yes ma’am.” Tr. Vol. 4 at 29-30. The fact that Pinkston disagrees with the

       court’s conclusion regarding the effect of his proffered mitigators on his

       sentence does not create an abuse of discretion on the court’s part. See Healey,

       969 N.E.2d at 616. The trial court acted within its discretion in its treatment of

       mitigating factors.


           Section 4 – Pinkston has failed to meet his burden of
       demonstrating that his sentence is inappropriate in light of the
                 nature of the offenses and his character.
[17]   Pinkston asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, our

       principal role is to leaven the outliers, focusing on the length of the aggregate

       sentence and how it is to be served. Bess v. State, 58 N.E.3d 174, 175 (Ind.

       2016); Foutch v. State, 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). This allows for

       consideration of all aspects of the penal consequences imposed by the trial court


       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 10 of 13
       in sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do “not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       the test is whether the sentence is ‘inappropriate.’” Foutch, 53 N.E.3d at 581

       (quoting Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied

       (2014)). The defendant bears the burden of persuading this Court that his

       sentence meets the inappropriateness standard. Bowman v. State, 51 N.E.3d

       1174, 1181 (Ind. 2016).


[18]   In considering the nature of Pinkston’s offenses, “the 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 (2017). When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant 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).


[19]   The jury convicted Pinkston of one level 6 felony, one class A misdemeanor,

       and one class B misdemeanor. The statutory range for a level 6 felony is six

       months to two and one-half years, with an advisory term of one year. Ind.

       Code § 35-50-2-7(b). A person convicted of a class A misdemeanor shall be

       imprisoned for a fixed term not to exceed one year. Ind. Code § 35-50-3-2. A

       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 11 of 13
       person convicted of a class B misdemeanor shall be imprisoned for a fixed term

       not to exceed 180 days. Ind. Code § 35-50-3-3.


[20]   At first glance, Pinkston’s offenses are not especially egregious. After all, no

       one was injured, and Pinkston damaged only a tree and his grandmother’s

       vehicle. However, the record shows that he led police on a high-speed chase,

       reaching speeds of over sixty-five miles per hour, in a residential neighborhood

       where pedestrians and residents were present. Thus, Pinkston’s actions were

       extremely dangerous and could have had catastrophic consequences. But

       Pinkston, a suspended driver out on bond for other crimes, and with an active

       arrest warrant in another state, did not stick around to assess or report the

       damage he had caused. Instead, he ran.


[21]   Pinkston’s character does not militate toward a shorter sentence. We conduct

       our review of his character by engaging in a broad consideration of his qualities.

       Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

       reh’g, 11 N.E.3d 571. Pinkston is a career criminal and “runner.” In reviewing

       the record and particularly the presentence investigation report, we find that

       Pinkston’s significant and protracted criminal history reflects a lifestyle of

       disregard for the law. He began his criminal activities at just thirteen years of

       age, and by the time he was twenty-eight, he had amassed nineteen

       misdemeanor and four felony convictions. He has demonstrated a penchant for

       violence, flight, and defiance of authority. His record includes battery and

       domestic battery, escape, and four previous convictions for resisting law

       enforcement, two as felonies, plus a juvenile true finding for the same offense.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 12 of 13
       He has failed to respond positively to lenient sentencing alternatives, having

       accumulated two probation revocations and one suspended sentence

       revocation. He was out on bond when he committed the current offenses and

       was the subject of an active arrest warrant in Ohio.


[22]   Finally, Pinkston’s allocution statement reflects an attempt to deflect blame and

       relitigate his guilt. He persisted in painting Grandmother as a forgetful and

       heavily medicated old woman and continued to hurl disparaging accusations

       against Detectives Nicklow and Hollo. See, e.g., Tr. Vol. 4 at 29 (the “officers

       are fabricating stories … deflating my character, and lying under perjury on

       myself”). Simply put, Pinkston’s behavior during sentencing was detrimental to

       making his case for a reduced sentence. Consequently, we affirm.


[23]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1707-CR-1745 | March 14, 2018   Page 13 of 13
