MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Nov 12 2015, 6:24 am
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
Ryan W. Tanselle                                        Gregory F. Zoeller
Capper Tulley & Reimondo                                Attorney General of Indiana
Brownsburg, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerry Austin,                                           November 12, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        32A01-1504-CR-143
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Karen M. Love,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        32D03-1404-CM-290



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 1 of 17
[1]   Following a jury trial, Jerry Austin appeals his convictions for Class A

      misdemeanor resisting law enforcement1 and Class B misdemeanor disorderly

      conduct.2 He raises two issues that we restate as:


                 I. Whether the State presented sufficient evidence to support his
                 convictions for resisting law enforcement and disorderly conduct;
                 and

                 II. Whether Austin’s sentence is inappropriate in light of the
                 nature of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   In the early morning hours of March 27, 2014, Austin called IU Health West

      Hospital (“Hospital”) in Avon, Indiana. He spoke to the emergency room

      (“ER”) charge nurse, Natalie Burgess (“Burgess”) and complained of neck pain,

      telling her that he had taken Valium, but was not getting relief from the pain.

      Austin wanted to get to the Hospital, but did not want to drive, as he had taken

      Valium and the brakes on his vehicle were not operating properly. Burgess

      encouraged him to come to the Hospital so that he could be evaluated, and she

      offered the suggestion that he could call 911 or that a family member could




      1
       See Ind. Code § 35-44.1-3-1(a)(1). We note that, effective July 1, 2014, the Indiana General Assembly
      enacted a new version of each of the criminal statutes under which Austin was charged. Because he
      committed the offenses prior to that date, we apply the statutes in effect at that time.
      2
          See Ind. Code § 35-45-1-3(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015         Page 2 of 17
      bring him to the ER. Austin was agitated and “argued with [her] back and

      forth on the phone about how he was gonna get to the emergency department.”

      Tr. at 108. Eventually, Austin called 911, and an ambulance brought him to

      the ER.


[4]   Upon his arrival, he was “oriented” and “awake, alert, and talking.” Id. at 109,

      202. He was able to meet with Hospital personnel, including Burgess and

      EMT/Tech Andrew Hurst (“Hurst”), and describe the neck pain that brought

      him to the Hospital. Austin requested a specific narcotic pain medication, but

      the attending physician denied it, instead offering him Toradol, a non-narcotic

      pain medication administered through an I.V. line. Austin refused it, saying

      that it had not helped in the past, and he “didn’t want that f*cking medicine.”

      Id. at 110. He became angry, “ripped out his I.V.,” and threatened to go home

      and consume more pain medication, telling staff, “I’ll finish what I’ve started.”

      Id. at 111, 205; see also id. at 215, 216-17 (telling ER physician that he would

      “go home and take two hundred and fifty Vicodin and end it himself.”)

      Hospital staff considered Austin to be a suicidal patient, and his assigned ER

      room had a closed-circuit camera so that the nurses could view him from the

      nurses’ station.


[5]   After being denied the narcotic medication, Austin became increasingly angry

      and combative while in the ER. He yelled and screamed and used profanity.

      At some point, Burgess called for Hospital security to come and assist with the

      situation. Two Hospital security officers arrived, including Johnny Williams

      (“Williams”). Austin threatened to fight the security officers and continued

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 3 of 17
      yelling profanities, “C’mon mother f*ckers, I’ll take you on, I’ll take you on,

      c’mon.” Id. at 139. Security officers were able to calm Austin and left the ER,

      but were called back when the behavior resumed.


[6]   Shortly before 6:00 a.m., the charge nurse for the next shift arrived to replace

      Burgess, and upon viewing the situation, she called 911. Officer Chase Wilson

      of the Danville Police Department was on his way to work when he heard the

      radio dispatch and responded to the call.3 Austin was in his ER room, and

      Hurst was in the room with him. Although Austin’s door was closed, the

      interior could be seen, and was being viewed by the staff, via live feed on the

      television. Williams opened the door to Austin’s room, and when Austin saw

      Officer Wilson, he immediately became more upset and angry, stating, “Great,

      the police are here, now I can fight.” Tr. at 155, 165. Officer Wilson directed

      Hurst to step out of the room.


[7]   Officer Wilson tried several times to verbally de-escalate the situation, telling

      Austin to calm down so they could talk. Officer Wilson directed Austin to turn

      and face the wall and place his hands behind his back, to be handcuffed, but he

      refused. Austin grabbed his aluminum cane, waved it in the air, and began

      coming toward Officer Wilson with the cane “in an aggressive manner[.]” Id.

      at 157. Officer Wilson, who was approximately ten feet from Austin,




      3
       The town of Avon, where IU Health West is located, has its own police department. Even though Officer
      Wilson worked for the Danville Police Department, he responded to the radio dispatch because he was
      directly in front of the Hospital when he heard the call.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015     Page 4 of 17
      continued to order Austin to stop, turn around and put his hands behind his

      back, but Austin refused to comply. Throughout this entire encounter, Austin

      was yelling statements indicating that he “had no problem fighting the cops.”

      Id. Officer Wilson warned Austin that, if he did not stop, the officer would use

      his Taser on Austin.


[8]   Officer Wilson deployed his Taser, but the probes did not engage properly, such

      that its use resulted in “pain compliance,” but did not result in the intended

      total muscle lock-up, and Austin “continued to fight.” Id. at 159-60. After

      being hit with the Taser, Austin tried to get up from the ground and would not

      place his hands behind his back. Officer Wilson, Williams, Hurst, and two

      other security officers were in the room and attempting to restrain Austin, who

      continued to be combative and unwilling to comply with Officer Wilson’s

      commands. The Taser was used as a “drive stun” three more times before the

      men were able to restrain Austin and place him in the Hospital bed. Id. at 185.

      The Hospital kept Austin for initial observation, and later, he was transferred to

      Methodist Hospital in Indianapolis pursuant to an immediate detention order.


[9]   The State charged Austin with resisting law enforcement as a Class A

      misdemeanor and disorderly conduct as a Class B misdemeanor. At Austin’s

      request, a jury trial was held. Evidence was presented that Austin reported to

      staff that he had consumed, during the course of the day, 20-30 Valium, which

      Burgess described as a sedative and muscle relaxer. Burgess testified that, upon

      arriving at the ER, Austin was agitated, but “wide awake, alert” and able to

      comprehend, answer questions, and provide medical history and he did not

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 5 of 17
       exhibit signs of having consumed that amount of Valium. Id. at 131.

       EMT/Tech Hurst, who was one of the first Hospital staff to meet and converse

       with Austin, testified that Austin “was alert and oriented,” knew where he was,

       and was able to provide “detailed” medical history and current complaints. Id.

       at 202-03. Hurst testified, “In my opinion, he was not under the influence of a

       significant amount of Valium. He was [] coherent. He was alert. He was

       oriented.” Id. at 219. However, both Burgess and Hurst testified that Austin

       was frustrated about being denied the narcotic pain medication, making

       statements such as, “This place is f*ckin’ stupid. I just, I want my f*ckin’ pain

       under control. I can go home and finish taking care of this myself if you guys

       aren’t going to help me.” Id. at 112.


[10]   Hospital security guard Williams testified that Austin was combative and

       swinging his cane, yelling that “he wasn’t afraid of us” and “he could take us

       on[.]” Id. at 139. Williams testified, “All he wanted to do was [] fight.” Id. at

       140. Williams estimated that he was first in contact with Austin at around 2:00

       a.m., and he estimated that, as he walked toward the ER, he could hear Austin

       yelling and cursing from about fifty feet away. The 911 call was played for the

       jury, in which the incoming charge nurse for the next shift spoke to dispatch:

       “I’ve got [] a suicidal patient that’s threatening to leave and I’ve got both of my

       security guards in here and I need some back up before he leaves. He’s

       agitated. . . . My two security guards are asking for help because it’s escalating

       as we speak.” Id. at 114-15. Burgess recalled that Austin was yelling at Officer




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 6 of 17
       Wilson and security staff, “You can’t f*ckin’ take me down” and similar

       statements of that nature. Id. at 118.


[11]   EMT Hurst said “as the night went on,” Austin became more belligerent and

       aggressive, threatening staff and police officers. He was loud and

       argumentative “about absolutely everything.” Id. at 205. At one point, Austin

       put on his gloves “that he said were for beating people’s ass.” Id. When Austin

       saw Officer Wilson standing at his room door, he became “enraged” and

       “ready to fight.” Id. at 209-10. Hurst said that, at one point, Austin

       “charge[d]” at Officer Wilson with the cane. Id. at 210. Officer Wilson

       testified as to the dispatch call, and he described the events leading up to his use

       of the Taser. He also explained that he used the Taser, as opposed to pepper

       spray, to subdue Austin because he was in a hospital setting, and pepper spray

       “would contaminate the entire emergency room” and other patients could have

       been affected. Id. at 193. Hurst, along with Burgess, testified that Austin was

       disruptive to Hospital operations because he was yelling and using profanity,

       and Hospital staff had to expend extra time and resources to supervise him,

       which reduced staff available to other patients, some of whom complained

       about Austin’s behavior and said they “didn’t feel safe.” Id. at 208.


[12]   Austin was found guilty as charged of Class A misdemeanor resisting law

       enforcement and Class B misdemeanor disorderly conduct. The trial court

       sentenced him to an aggregate term of one year in the county jail, reduced by

       time served and good time credit, with the remainder suspended to probation.

       Austin now appeals.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 7 of 17
                                      Discussion and Decision

                                     I. Sufficiency of Evidence
[13]   Austin claims that the evidence was not sufficient to convict him of resisting

       law enforcement and disorderly conduct. When reviewing the sufficiency of the

       evidence to support a conviction, we do not reweigh evidence or reassess the

       credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). “We

       view all evidence and reasonable inferences drawn therefrom in a light most

       favorable to the conviction, and will affirm ‘if there is substantial evidence of

       probative value supporting each element of the crime from which a reasonable

       trier of fact could have found the defendant guilty beyond a reasonable doubt.’”

       Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[14]   To prove Class A misdemeanor resisting law enforcement as charged, the State

       was required to prove that Austin knowingly and forcibly resisted, obstructed,

       or interfered with an officer while said officer was lawfully engaged in the

       execution of his duties as a law enforcement officer. See Ind. Code § 35-44.1-3-

       1(a)(1); Appellant’s App. at 13. To prove Class B disorderly conduct as charged,

       the State was required to prove that Austin recklessly made unreasonable noise

       after being asked to stop. See Ind. Code § 35-45-1-3(a)(2). Specifically, the State

       charged that Austin, “did recklessly make unreasonable noise, to wit: yelling at

       [a] level that [a]ffected hospital operations; and continued to do so after being

       asked to stop” by Hospital staff and Officer Wilson. Appellant’s App. at 14.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 8 of 17
                                       A. Involuntary Intoxication

[15]   Austin claims that the evidence was not sufficient to convict him of resisting

       law enforcement and disorderly conduct because he was involuntarily

       intoxicated at the time of the offenses. The State charged Austin with resisting

       law enforcement by “knowingly” forcibly resisting, obstructing, or interfering

       with Officer Wilson’s duties. Id. at 13. “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b). The State charged

       Austin with committing disorderly conduct by “recklessly” making

       unreasonable noise and continuing to do so after being asked by Hospital staff

       and Officer Wilson to stop. Appellant’s App. at 14. “A person engages in

       conduct ‘recklessly’ if he engages in conduct in plain, conscious, and

       unjustifiable disregard of harm that might result and the disregard involves a

       substantial deviation from acceptable standards of conduct.” Ind. Code § 35-

       41-2-2(c). On appeal, Austin claims that he was involuntarily intoxicated by

       virtue of a possible Valium overdose and, therefore, was not able to form the

       requisite mens rea.


[16]   Indiana Code section 35-41-2-5 provides that intoxication is not a defense to

       prosecution unless the defendant meets the requirements of Indiana Code

       section 35-41-3-5, which provides:


               It is a defense that the person who engaged in the prohibited
               conduct did so while he was intoxicated, only if the intoxication
               resulted from the introduction of a substance into his body:


       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 9 of 17
               (1) Without his consent;

               (2) When he did not know that the substance might cause
               intoxication.


       Our Supreme Court has held, “Indiana Code section 35-41-2-5 reflects the

       legislative determination that defendants who are voluntarily intoxicated are

       responsible for their resulting actions, but recognizes that individuals who

       become intoxicated through no fault of their own are not to be held responsible

       for actions taken while intoxicated.” Sanchez v. State, 749 N.E.2d 509, 522 (Ind.

       2001). That is, “intoxication is a defense only if the defendant did not consent

       to the introduction of the substance into his body or if the defendant was

       unaware the substance might cause intoxication.” Davidson v. State, 849 N.E.2d

       591, 594 (Ind. 2006). When a defendant raises the intoxication defense, the

       State bears the burden of negating the defense in relation to the mens rea of the

       offense. Bassie v. State, 726 N.E.2d 242, 243-44 (Ind. 2000). Whether a

       defendant was so intoxicated that he could not form the mens rea required for

       the crime is a question for the trier of fact. Id. at 244.


[17]   Initially, we observe that the record shows Austin did not raise the defense of

       intoxication at trial. In fact, when the State requested that the court include a

       voluntary intoxication instruction, i.e. voluntary intoxication is not a defense,

       Austin’s counsel objected, arguing that intoxication was not an issue:

               We don’t have any medical records. We have no idea what
               [Austin] was under the influence [of] at that time and if you read
               the legal definition of intoxication, it states that your faculties

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 10 of 17
                and your mind both have to be [] at issue. Every single one of
                the State’s witnesses has said that he’s alert, he’s awake, he’s
                coherent. He knows where he is. He knows what’s going on. So
                how can [the State] now say that he’s intoxicated[.]


       Tr. at 224. The State responded that the defense “brought on” the issue of

       intoxication by asking on cross-examination about Austin having taken 20-30

       Valium. Id. at 225. Counsel for Austin replied that “the issue for the defense is

       the suicide not the intoxication level.” Id. Based on the record before us, we

       find that Austin did not preserve any claim regarding involuntary intoxication

       at trial; indeed, he took the position that intoxication was not at issue, and thus

       the issue is waived on appeal.4 Orta v. State, 940 N.E.2d 370, 376 (Ind. Ct. App.

       2011) (failure to raise issue at trial waives issue for appeal), trans. denied.


[18]   Waiver aside, we reject Austin’s claim that he was involuntarily intoxicated and

       unable to form the requisite mens rea for the crimes. Austin told Hospital staff

       that he had taken 20-30 Valium, but both Burgess and EMT Hurst testified that

       Austin was awake, alert, oriented, and able to speak with staff. He described

       his pain and asked for a specific narcotic drug by name, which the attending

       physician denied. Burgess and Hurst both opined that Austin’s condition and

       behavior was not consistent with someone who had taken 20-30 Valium. Upon




       4
         The trial court granted the State’s request for a voluntary intoxication instruction, which decision Austin
       does not challenge on appeal. The instruction read in part: “Voluntary intoxication is not a defense to a
       charge of Resisting Law Enforcement and/or Disorderly Conduct. You may not take voluntary intoxication
       into consideration in determining whether the Defendant acted knowingly and/or recklessly[.]” Appellant’s
       App. at 155.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015         Page 11 of 17
       being denied the requested narcotic, Austin made threats to leave the ER, go

       home, and consume large quantities of Vicodin, and this caused staff to be

       concerned about a possible overdose situation, particularly given that Austin

       reported having consumed Valium already. This concern about a possible

       overdose situation, however, does not establish or even indicate that Austin was

       intoxicated while at the ER.


[19]   Moreover, even if Austin was intoxicated, any intoxication was not shown to

       be involuntary. On appeal, Austin argues that “he was unaware that his

       consumption of Valium would cause him to be intoxicated.” Appellant’s Br. at

       8. The record does not support that position, however. Burgess testified that,

       during Austin’s early morning phone call when he stated that he wanted to get

       to the ER, “He proceeded to tell me how he had taken all of his Valium so he

       couldn’t drive and his truck didn’t have any brakes[.]” Tr. at 107 (emphasis

       added). Austin “felt it wasn’t a good idea” for him to drive, and he did not

       know how to get to the ER, so Burgess “gave him the options” of calling 911 or

       having a neighbor bring him to the Hospital. Id. Burgess’s testimony indicates

       that Austin was aware that, because he had taken Valium, he should not drive.

       Given the record before us, Austin has failed to persuade us that he was

       involuntarily intoxicated and unable to form the requisite mens rea. See Alfrey v.

       State, 960 N.E.2d 229, 234 (Ind. Ct. App. 2012) (rejecting defendant’s challenge

       to sufficiency of evidence that was based on his claim that his mens rea was

       lacking because of prescription medication intoxication), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 12 of 17
                                              B. Excessive Force

[20]   Austin claims that, because Officer Wilson used excessive force, he was not

       lawfully engaged in the execution of his duties, and, therefore, insufficient

       evidence was presented to convict him of resisting law enforcement. It is well-

       settled that police have a legal right to take reasonable steps to stabilize a

       situation during the course of their investigation for both the safety of the

       officers as well as the citizens present. Perez v. State, 981 N.E.2d 1242, 1249

       (Ind. Ct. App. 2013), trans. denied. This includes placing an individual in

       handcuffs to enable the officers to conduct their investigation and to ensure

       their own safety or the safety of others. Id. A citizen may not use force to resist

       a peaceful arrest by an individual he knows, or has reason to know, is a police

       officer performing his duties regardless of whether the arrest in question is

       lawful. Robinson v. State, 814 N.E.2d 704, 708 (Ind. Ct. App. 2004). However,

       when an officer uses unconstitutionally excessive force in effecting an arrest,

       that officer is no longer lawfully engaged in the execution of his or her official

       duty. Patterson v. State, 11 N.E.3d 1036, 1039 (Ind. Ct. App. 2014).


[21]   As Austin recognizes, claims of excessive force by law enforcement “are

       analyzed under the Fourth Amendment [] and its reasonableness standard.”

       Appellant’s Br. at 10; see also Patterson, 11 N.E.3d at 1039.


               The “reasonableness” of a particular use of force must be judged
               from the perspective of a reasonable officer on the scene, rather
               than with the 20/20 vision of hindsight. However, the
               “reasonableness” inquiry in an excessive force case is an
               objective one: the question is whether the officers’ actions are

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 13 of 17
               “objectively reasonable” in light of the facts and circumstances
               confronting them, without regard to their underlying intent or
               motivation.


       Patterson, 11 N.E.3d at 1039-40 (citations omitted).


[22]   Here, Hospital staff called 911 because Austin was profane and combative and

       security guards needed assistance. Upon seeing Officer Wilson, Austin yelled

       that he was ready to fight, and he grabbed his cane and waved it at Officer

       Wilson. Austin refused Officer Wilson’s requests to calm down so they could

       talk. Officer Wilson directed Austin several times to turn around and place his

       hands behind his back to be handcuffed, and again, Austin refused the

       commands. Officer Wilson testified that he was concerned not only for his own

       safety, but also for the safety of Hospital staff and other ER patients. Officer

       Wilson did not use the Taser on Austin until Austin began coming toward the

       officer in an aggressive manner, with his cane, which Officer Wilson considered

       at that point to be a weapon. Before deploying the Taser, Officer Wilson

       warned Austin that he would use it if Austin continued to fail to cooperate.

       Austin “proceeded to charge” at Officer Wilson with the cane, closing the space

       between them from about ten feet to three, at which time Officer Wilson

       deployed the Taser. Tr. at 210. However, it did not engage properly,

       administering only some “pain compliance,” but not muscle lock up, and

       Austin got up and continued to come toward Officer Wilson. Id. at 159.


[23]   Officer Wilson and Hospital staff – a total of five men – then entered Austin’s

       room and tried to subdue him, but he pulled away and refused to be

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 14 of 17
       handcuffed. Officer Wilson stunned Austin with the Taser three more times,

       and eventually, Officer Wilson and the others were able to gain control of

       Austin and placed him on the bed. Officer Wilson chose to use the Taser

       instead of pepper spray “because [pepper spray] would contaminate the entire

       emergency room,” and it could have affected other patients in the ER,

       especially if they had respiratory issues. Id. at 193. Given the facts and

       circumstances that Officer Wilson faced, we find that his actions were

       objectively reasonable, and the force he used was not excessive. See Patterson,

       11 N.E.3d at 1040 (officer’s force not excessive where officer struck defendant’s

       face with his hand and also considered using Taser during physical struggle

       with defendant, who pushed back, yelled in officers’ faces, and wrestled with

       them). Based on the record before us, we find that Officer Wilson lawfully

       detained Austin in order to stabilize the situation, and the State presented

       sufficient evidence to convict Austin of resisting law enforcement.


                                              II. Sentencing
[24]   The trial court sentenced Austin to an aggregate term of one year in the county

       jail, reduced by time served and good time credit, with the remainder

       suspended to probation. Austin argues that his sentence is inappropriate under

       Indiana Appellate Rule 7(B). He requests that we reduce the length of his

       suspended sentence and probation.


[25]   Appellate Rule 7(B) 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 offenses and the character
       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 15 of 17
       of the offender. A defendant bears the burden of showing that both prongs of

       the inquiry favor revision of his or her sentence. Anderson v. State, 989 N.E.2d

       823, 827 (Ind. Ct. App. 2013), trans. denied. We understand and recognize the

       unique perspective a trial court brings to its sentencing decisions. Rutherford v.

       State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). The trial court’s judgment

       “should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219,

       1222 (Ind. 2008). A defendant must persuade the appellate court that his or her

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


[26]   The maximum sentence for a Class A misdemeanor is one year of

       incarceration, and the maximum sentence for a Class B misdemeanor is one

       hundred and eighty days. Ind. Code §§ 35-50-3-2, -3. On the Class A resisting

       law enforcement conviction, the trial court imposed a sentence of one year in

       the county jail, but gave Austin credit for time served plus good time credit and

       suspended the remaining 351 days to probation. For the Class B misdemeanor

       disorderly conduct conviction, the trial court sentenced Austin to two days in

       the county jail, but credited Austin with two days of time served. The trial

       court imposed some “special conditions” of probation, including evaluation

       and completion of a substance abuse program, mental health evaluation and

       completion of treatment if recommended, providing a list of prescribed

       medications to probation officer, and anger control counseling. Tr. at 272.


[27]   As for the nature of the offense, Austin argues that his culpability was low given

       that he was suffering from a potential Valium overdose, induced by his desire to

       relieve his neck pain. Austin also observes that no one was hurt. While

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 16 of 17
       fortunately no one was hurt, Austin caused disruptions in the ER for hours. He

       was loud, profane, combative, and belligerent. He scared other patients, and he

       monopolized Hospital resources, namely staff that had to attend to him,

       making fewer staff available to other patients. He repeatedly threatened to fight

       security and Officer Wilson. Turning to Austin’s character, he argues that he is

       a person of “good character,” and a downward revision is warranted.

       Appellant’s Br. at 13. The record shows that he has one disorderly conviction

       from sometime in the 1990s, but otherwise has no criminal history.


[28]   The question before us is not whether another sentence is more appropriate;

       instead, the question is whether the sentence imposed is inappropriate. Marley

       v. State, 17 N.E.3d 335, 339 (Ind. Ct. App. 2014), trans. denied. Indiana’s

       sentencing scheme allows trial courts to tailor appropriate sentences to

       particular circumstances. Cardwell, 895 N.E.2d at 1224. We cannot say that

       the trial court’s imposition of a suspended sentence and probation, which

       included a number of conditions specifically tailored to Austin, was

       inappropriate.


[29]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-143 | November 12, 2015   Page 17 of 17
