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                       Dec 18 2014, 8:23 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ANN SUTTON                                       GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL COLEMAN,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )         No. 49A02-1401-CR-1
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Barbara Cook Crawford, Judge
                            Cause No. 49F09-1308-FD-53165



                                      December 18, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Michael Coleman appeals his convictions for two counts of intimidation, as Class

D felonies, and disorderly conduct, as a Class B misdemeanor, following a jury trial.

Coleman presents four issues for our review:

       1.     Whether the trial court abused its discretion when it permitted
              evidence of Coleman’s intoxication and instructed the jury on
              voluntary intoxication.

       2.     Whether the trial court abused its discretion when it permitted
              certain testimony in response to a jury question.

       3.     Whether the State presented sufficient evidence to support his
              disorderly conduct conviction.

       4.     Whether the trial court abused its discretion when it sentenced him.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On August 12, 2013, at approximately 11:15 p.m., Indianapolis Metropolitan

Police Department Officers Aaron Schlesinger and Ronald Sayles were dispatched to 315

North Chester Avenue “on a call [regarding] a disturbance involving loud subjects, a

possible fight, subjects arguing, [and] possible narcotic usage as well.” Tr. at 113. When

the officers arrived, they found a large house party going on, with approximately eleven

to fifteen people standing in the front yard, sidewalk, and street in front of the house, and

loud music was being played on the front porch. Officer Schlesinger asked the group

“several times” to turn down the music, to no avail. Id. at 118. And Officer Schlesinger

asked the partygoers for the name of the homeowner, with no response. Finally, Officer




                                             2
Schlesinger, in a raised voice, threatened to issue a ticket to the homeowner for violating

a noise ordinance, and someone turned the music off.

          The officers continued trying to find the homeowner when some of the partygoers

became “upset” and began “voicing their opinions [and] wondering why” the officers

were there. Id. at 120-21. One of the partygoers, Coleman, “became more agitated” and

raised his voice so much that three neighbors came outside to see what was going on. Id.

at 121. Officer Schlesinger was “trying to calm people down and explain” why he was

there, but Coleman remained agitated. Id. After some of the partygoers expressed to the

officers that they thought the officers were just “messing with ‘em and harassing them for

no reason,” the officers asked everyone for identification “to verify who they were.” Id.

at 123.

          Officer Schlesinger approached Coleman and asked him for identification, but he

responded that he did not have any identification on him. Officer Schlesinger then asked

Coleman for his name, date of birth, and social security number. Officer Schlesinger

smelled an odor of alcohol on Coleman’s breath and person, and Coleman’s speech was

slightly slurred. Coleman was “slightly combative as if it was a waste of his time” and

gave Officer Schlesinger false information two or three times before he gave his real

name and birth date. Id. at 129. Coleman continued to yell at Officer Schlesinger and

was perceived as the loudest of the partygoers. Because Coleman refused to quiet down

after being asked to do so by Officer Schlesinger, the officer arrested Coleman for

disorderly conduct.




                                             3
       After Coleman was placed in handcuffs and ordered to sit on the sidewalk, Officer

Sayles monitored Coleman while Officer Schlesinger “conducted paperwork in [his]

vehicle.” Id. at 131. Coleman started talking to Officer Sayles and said that “the arrest

was bulls[***],” and Coleman was “calling Officer Schlesinger names[,]” including

“racial slurs.” Id. at 159. Coleman then stated that he was going to “AK” the officers,

which Officer Sayles interpreted to mean that he was going to “shoot us with an AK-47-

style rifle.” Id. Coleman stated that he was “going to be on top of [the residence] with

his rifle . . . [and would shoot] a hundred rounds every time [the officers drove by] in

[their] police vehicles on Chester Avenue.” Id. Coleman stated that he was going to kill

the officers, their wives, and their children. Coleman stated that he was going to go to

their funerals and laugh at them and “sodomize [their wives] on top of [their] grave[s].”

Id. at 160. Coleman eventually communicated the threats directly to Officer Schlesinger,

too. Coleman also stated to Officer Sayles that “he had shot somebody before and [had]

gotten away with it . . . [because] he had gotten the witnesses silenced.” Id. at 171-72.

       The State charged Coleman with two counts of intimidation, as Class D felonies,

and disorderly conduct, as a Class B misdemeanor. The State also charged Coleman with

being an habitual offender. At trial, after the jury began deliberating on the first phase of

the trial, the State dismissed the habitual offender count. The jury found Coleman guilty

of the remaining charges. The trial court entered judgment accordingly and sentenced

Coleman to an aggregate sentence of 545 days in the Department of Correction and 185

days on home detention. This appeal ensued.




                                             4
                               DISCUSSION AND DECISION

                              Issue One: Voluntary Intoxication

       Coleman first contends that the trial court abused its discretion when it permitted

evidence of his intoxication and instructed the jury on voluntary intoxication.                     In

particular, Coleman maintains that “the State both raised the issue of intoxication[] and

then sought to discredit it.” Appellant’s Br. at 7. And Coleman argues that it was

“defense counsel’s decision whether to put forth an intoxication defense,” and he chose

not to do so. Id. at 8. Coleman asserts that “[r]aising a defense that the actual defendant

did not put forth in order to discredit him must be a due process violation of great

magnitude[] and should not be permitted.”1 Id.

       Our standard of review of a trial court’s admission of evidence is an abuse of

discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court

abuses its discretion if its decision is clearly against the logic and effect of the facts and

circumstances before the court or if the court misapplies the law. See id. With respect to

jury instructions, we have explained that

       [t]he purpose of a jury instruction is to inform the jury of the law applicable
       to the facts without misleading the jury and to enable it to comprehend the
       case clearly and arrive at a just, fair, and correct verdict. Instruction of the
       jury is left to the sound judgment of the trial court and will not be disturbed
       absent an abuse of discretion. Jury instructions are not to be considered in
       isolation, but as a whole and in reference to each other. The instructions
       must be a complete, accurate statement of the law which will not confuse or
       mislead the jury.




       1
         Coleman makes no cogent argument to support his bald assertion that he was denied his right to
due process or his Sixth Amendment right “to present a defense.” Appellant’s Br. at 8. Those issues are
waived. Ind. Appellate Rule 46(A)(8)(a).
                                                  5
Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008) (citations and quotations

omitted).

       Here, at trial, the State presented evidence that Coleman was intoxicated,

including the fact that he smelled of alcohol, his speech was slightly slurred, and his eyes

were slightly glassy and red. Coleman did not object to any of the State’s evidence

regarding his intoxication. Failure to object to the admission of evidence at trial normally

results in waiver and precludes appellate review unless its admission constitutes

fundamental error. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). But, in his brief

on appeal, Coleman does not contend that the admission of that evidence was

fundamental error. Coleman has waived the admission of evidence issue on appeal.

       Next, the trial court gave the following jury instruction proffered by the State:

“Voluntary intoxication is not a defense to the charges of intimidation and disorderly

conduct. You may not take voluntary intoxication into consideration in determining

whether the defendant acted intentionally, knowingly[,] or recklessly as alleged in the

information.” Appellant’s App. at 161. Coleman objected to the instruction as follows:

       [W]e do not object as to the first line, however, we would object as to the
       second [line]. With the fact that it’s going into the intentionally knowingly
       or recklessly [sic] as alleged in this information. So, therefore, we would
       argue that the second line of the jury instruction should be stricken.

Tr. at 193. Coleman did not object to the instruction on the grounds that the evidence did

not support the instruction.

       On appeal, Coleman’s sole contention is that the jury instruction was improper

because he never raised an intoxication defense and “the facts brought by the defense did

not support giving such an instruction.” Appellant’s Br. at 8. But it is well settled that a
                                             6
defendant may not raise one ground for objection at trial and argue a different ground on

appeal. Small v. State, 736 N.E.2d 742, 747 (Ind. 2000). And, again, Coleman makes no

contention that the trial court committed fundamental error when it gave the challenged

jury instruction. Coleman has waived this issue for our review.

                           Issue Two: Admission of Evidence

         Coleman contends that the trial court abused its discretion when it permitted

Officer Sayles to respond to the following jury question: “In what way was Mr. Coleman

saying that he’d gotten away with it before? Did he describe anything?” Tr. at 171. The

trial court permitted Officer Sayles to answer the question over Coleman’s objection.

Officer Sayles testified as follows: “He said he had shot somebody before and gotten

away with it. He said he had gotten the witnesses silenced.” Id. at 171-72.

         On appeal, Coleman contends that the trial court should have excluded this

evidence under Evidence Rules 403 and 404(b). But Coleman does not direct us to any

part of the record to show that he objected to the evidence on those grounds to the trial

court.    Rather, the “court reporter was unable to hear [Coleman’s] objections and

arguments” regarding the challenged jury question, and “they are described as ‘inaudible’

in the appellate record.” Ind. Appellate Rule 31(C) Verified Statement of Evidence at 4.

Accordingly, Coleman prepared, and the trial court certified, a Verified Statement of the

Evidence to clarify that, in response to the challenged jury question, he “reiterated the

continuing objection stated earlier in Mr. Sayles’ testimony with respect to Mr.

Coleman’s statements to the officers.” Id.




                                             7
      But, in support of his contention on appeal, Coleman does not direct us to any part

of the record showing that his continuing objection to Coleman’s statements to the

officers, “stated earlier in Mr. Sayles’ testimony,” was based on Trial Rule 403 or 404(b)

grounds.   Id.   And our review of the record does not indicate on what grounds a

continuing objection was made. As we explained in Showalter v. Town of Thorntown,

902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied:

      A party generally waives appellate review of an issue or argument unless
      that party presented that issue or argument before the trial court. . . .

                                          ***

             This rule exists because trial courts have the authority to hear and
      weigh the evidence, to judge the credibility of witnesses, to apply the law to
      the facts found, and to decide questions raised by the parties. Appellate
      courts, on the other hand, have the authority to review questions of law and
      to judge the sufficiency of the evidence supporting a decision. The rule of
      waiver in part protects the integrity of the trial court; it cannot be found to
      have erred as to an issue or argument that it never had an opportunity to
      consider. Conversely, an intermediate court of appeals, for the most part, is
      not the forum for the initial decisions in a case. . . .

(Emphasis in original; citations and quotations omitted).      Because Coleman has not

demonstrated that he made an objection to the challenged jury question on Trial Rule 403

or 404(b) grounds to the trial court, Coleman has waived this issue for our review.

                       Issue Three: Sufficiency of the Evidence

      Coleman next contends that the State presented insufficient evidence to support

his disorderly conduct conviction.     When reviewing a claim of sufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the judgment and the reasonable inferences that may be drawn from that
                                            8
evidence to determine whether a reasonable trier of fact could conclude the defendant

was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative

value to support the conviction, it will not be set aside. Id.

       To prove disorderly conduct, as a Class B misdemeanor, the State was required to

show that Coleman recklessly, knowingly, or intentionally made unreasonable noise and

continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2). Coleman

maintains that the State “must prove the defendant produced decibels of sound that were

too loud for the circumstances” and that the harm suffered as a result of the noise “rose

above the level of a ‘fleeting annoyance.’” Appellant’s Br. at 12-13 (citing Whittington

v. State, 669 N.E.2d 1363, 1367 (Ind. 1996), and Price v. State, 622 N.E.2d 954, 960

(Ind. 1993)). This, Coleman contends, the State failed to do.

       But the State presented evidence that Coleman was the “loudest” of the

partygoers, and he was yelling so loudly that, on two separate occasions, several

neighbors emerged from their houses to see what was going on. Tr. at 123. Officers told

Coleman to stop yelling multiple times, but he continued to yell. Officer Schlesinger

testified that he “lost count” of how many times he had told Coleman to stop yelling. Id.

at 139.   Coleman’s argument on appeal amounts to a request that we reweigh the

evidence, which we will not do. The State presented sufficient evidence to support his

disorderly conduct conviction.

                                  Issue Four: Sentencing

       Finally, Coleman contends that the trial court abused its discretion when it

sentenced him. Sentencing decisions rest within the sound discretion of the trial court


                                              9
and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind.

2007). An abuse of discretion occurs if the decision 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. Id.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a
       finding of aggravating and mitigating factors if any—but the record does
       not support the reasons, 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 . . . .

              [However, b]ecause the trial court no longer has any obligation to
       “weigh” aggravating and mitigating factors against each other when
       imposing a sentence, . . . a trial court cannot now be said to have abused its
       discretion in failing to “properly weigh” such factors.

Id. at 490-91.

       Coleman contends that the trial court abused its discretion when it did not identify

as mitigating:   “the hardship [of his incarceration on] Mr. Coleman’s children, Mr.

Coleman’s drinking as an untreated disease, the letter of apology [to the victims,] and the

fact that there was no physical injury sustained in this case.” Appellant’s Br. at 9. The

determination of mitigating circumstances is within the trial court’s discretion. Rogers v.

State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial court is not

obligated to accept the defendant’s argument as to what constitutes a mitigating factor,

and a trial court is not required to give the same weight to proffered mitigating factors as

does a defendant. Id. A trial court does not err in failing to find a mitigating factor

where that claim is highly disputable in nature, weight, or significance. Id. An allegation
                                            10
that a trial court abused its discretion by failing to identify or find a mitigating factor

requires the defendant on appeal to establish that the mitigating evidence is significant

and clearly supported by the record. Id.

       On appeal, Coleman argues that the trial court should have identified his proffered

mitigators based solely on his self-serving statements at the sentencing hearing. But

Coleman has not demonstrated that the proffered mitigators are significant and clearly

supported by the record. Indeed, as the State points out, “absent special circumstances,

trial courts are not required to find that imprisonment will result in an undue hardship.”

Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Coleman alleges no special

circumstances here. Further, “a history of substance abuse is sometimes found by trial

courts to be an aggravator, not a mitigator.” Iddings v. State, 772 N.E.2d 1006, 1018

(Ind. Ct. App. 2002), trans. denied. And Coleman apologized to the victims as follows:

“I would like to apologize to the officers if I said anything to ‘em about their families or

kids or to ‘em while I was drunk. I would never say ‘em things if I had a sober mind.”

Pre-Sentence Investigation Report at 15. That attempt at an apology does not clearly

support mitigation of Coleman’s sentence. Finally, Coleman does not explain how the

fact that no one was injured by his actions supports a finding of mitigation. We hold that

the trial court did not abuse its discretion when it sentenced Coleman.

       Affirmed.

MATHIAS, J., and BRADFORD, J., concur.




                                            11
