MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Jul 22 2016, 9:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Denna Kay Kinser,                                        July 22, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         02A03-1601-CR-181
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1510-F6-949



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016        Page 1 of 6
                                             Case Summary
[1]   Deena Kinser appeals her one year and 183-day sentence following her

      conviction for Level 6 felony theft. We affirm.


                                                      Issue
[2]   The issue before us is whether Kinser’s one year and 183-day sentence is

      inappropriate.


                                                     Facts
[3]   Bernard and Carole Szuhaj, both seventy-three years old, suffered from health

      issues that required them to hire in-home caregivers. Several individuals

      employed by the Visiting Angels organization, including Kinser, came to the

      Szuhajes’ home in Fort Wayne to provide them with the care they needed.

      Kinser worked in the Szuhajes’ home on July 14, 15, 16, 22, and 23, 2015.


[4]   Bernard owned twenty-two rings, which he kept in a large jewelry case in an

      upstairs bedroom of his home. The rings were valued at $200 to $400 each,

      making their total value between $4,400 and $8,000. Bernard withdrew $1,000

      from his savings each month for his monthly expenses and kept that money

      hidden in books throughout his den. The $1,000 would last Bernard all month,

      and he would sometimes have money left over. Bernard also kept between

      $4,000 and $8,000 hidden in a desk in his den, which was money that he and

      his wife had saved over the course of twenty years.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016   Page 2 of 6
[5]   In July 2015, the $1,000 Bernard had withdrawn for monthly expenses only

      lasted him through July 15, 2015, forcing him to withdraw additional money.

      While Bernard was away from home for dialysis treatment, Kinser stole the

      twenty-two rings from his home. Kinser pawned some of the rings at a local

      pawn shop on July 16 and July 23, 2015. Quintus Cooper, Kinser’s husband as

      of August 11, 2015, pawned the rest of the rings at a different pawn shop on

      July 15, 16, and 17, 2015. On July 24, 2015, Kinser quit her employment with

      Visiting Angels.


[6]   On September 5, 2015, Bernard discovered that the money hidden in his desk

      and the twenty-two rings were missing from his home, and reported the missing

      items to the police. Bernard stated that someone from Visiting Angels had

      taken the items while he was away from home for dialysis treatment. Police

      investigated, learned that Kinser had been employed there, and tracked Kinser’s

      and Cooper’s pawning activity through the Leads Online database. Police

      subsequently recovered eleven of Bernard’s rings and returned them to him.

      The stolen money was never recovered. Insurance compensated Bernard for

      the un-recovered stolen rings but not for the money stolen from his desk.


[7]   Kinser was subsequently charged with Level 6 felony theft and pled guilty to the

      charge in an open plea. At Kinser’s sentencing hearing, the State argued that,

      based on Bernard’s claim that he was still missing $5,000 and his victim impact

      statement, Kinser should be ordered to pay $5,000 in restitution. Kinser

      objected to that restitution amount and maintained that no restitution was owed

      because she did not take the money from Bernard. The trial court declined to

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016   Page 3 of 6
      order restitution. The trial court went on to sentence Kinser “based on the facts

      and circumstances in this case” to one year and 183 days, with sixty days

      executed and one year and 123 days suspended to probation. Tr. p. 13. Kinser

      now appeals her one year and 183-day sentence.


                                                   Analysis
[8]   Kinser’s argument is that her one year and 183-day sentence is inappropriate

      under Indiana Appellate Rule 7(B) in light of her character and the nature of the

      offense. Although Rule 7(B) does not require us to be “extremely” deferential

      to a trial court’s sentencing decision, we still must give due consideration to that

      decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

      also understand and recognize the unique perspective a trial court brings to its

      sentencing decisions. Id. “Additionally, a defendant bears the burden of

      persuading the appellate court that his or her sentence is inappropriate.” Id.


[9]   The principal role of Rule 7(B) review “should be to attempt to leaven the

      outliers, and identify some guiding principles for trial courts and those charged

      with improvement of the sentencing statutes, but not to achieve a perceived

      ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

      2008). We “should focus on the forest—the aggregate sentence—rather than

      the trees—consecutive or concurrent, number of counts, or length of the

      sentence on any individual count.” Id. Whether a sentence is inappropriate

      ultimately turns on the culpability of the defendant, the severity of the crime,

      the damage done to others, and myriad other factors that come to light in a


      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016   Page 4 of 6
       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[10]   The sentencing range for a Level 6 felony is between six months and two-and-

       one-half years, with an advisory term of one year. Ind. Code § 35-50-2-7(b).

       Regarding the nature of the offense, Kinser’s actions were an ultimate violation

       of trust. Kinser was entrusted by the Szuhajes to care for them because they

       could not care for themselves. The Szuhajes were seventy-three years old and

       suffered from health issues. The Szuhajes were vulnerable victims who believed

       that Kinser was there to care for them, not to steal from them while they were

       away from their home receiving medical treatment. Kinser not only violated

       the Szuhajes’ trust, but she also invaded their personal space and affected the

       Szuhajes emotionally. Kinser stole over $4,000 in irreplaceable valuables and

       some of their savings accumulated over twenty years. This blatant violation of

       trust was the aggravating factor during sentencing.


[11]   Regarding her character, Kinser does not have a criminal history. However,

       Kinser is currently unemployed and over $50,000 in debt. Kinser is not taking

       any steps towards paying off her debt. Kinser has been terminated or quit every

       job she has had. The day after stealing over $4,000 in valuables from the

       Szuhajes, Kinser quit Visiting Angels. Kinser has also had her child taken by



       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016   Page 5 of 6
       the Department of Child Services and placed with her parents. Kinser recently

       married the man who helped her to pawn the Szuhajes valuables.


[12]   Given Kinser’s poor character and the violation of trust in committing this

       offense, we conclude that the one year and 183-day sentence is not

       inappropriate.


                                                 Conclusion
[13]   Kinser’s one year and 183-day sentence is not inappropriate. We affirm.


[14]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-CR-181 | July 22, 2016   Page 6 of 6
