MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                               Jun 30 2020, 9:26 am

court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Smith,                                    June 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-873
        v.                                               Appeal from the Adams Superior
                                                         Court
State of Indiana,                                        The Honorable Patrick R. Miller,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         01D01-1811-F6-219



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020                     Page 1 of 7
[1]   Christopher Smith appeals the sentence imposed by the trial court after Smith

      pleaded guilty to Level 6 felony theft of a firearm. Smith argues that the trial

      court neglected to find certain mitigators and found aggravators that are

      improper and/or not supported by the evidence in the record. Finding no

      reversible error, we affirm.


                                                     Facts
[2]   On August 29, 2018, Smith contacted Adam Affolder about a rifle that Affolder

      had listed for sale. Through a series of exchanged emails, Affolder agreed to

      sell the rifle to Smith for $1,000, to be paid by money order at the insistence of

      Smith and over the objections of Affolder. The exchange of the rifle and money

      order occurred on August 31, 2018. On September 10, 2018, Affolder’s bank

      informed him that the money order was forged or counterfeit; Affolder

      contacted law enforcement the next day.


[3]   On November 26, 2018, the State charged Smith with Level 6 felony theft of a

      firearm. On October 28, 2019, the morning of his jury trial, Smith pleaded

      guilty as charged, leaving sentencing open to the trial court’s discretion. The

      trial court ordered Smith to report to the probation department for a pre-

      sentence investigation (PSI) report and to community corrections to be pre-

      screened for home detention eligibility. The trial court also scheduled a

      sentencing hearing for November 13, 2019.


[4]   Smith failed to report to the probation department or community corrections

      and failed to appear at the sentencing hearing. The trial court issued a warrant

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020   Page 2 of 7
      for his arrest. On February 9, 2020, Smith was arrested pursuant to the

      warrant. As a result of that encounter, Smith was charged with resisting law

      enforcement.


[5]   Smith’s sentencing hearing took place on March 9, 2020. At that hearing,

      Smith stated that he had failed to report to the probation department or

      community corrections because of an inability to contact them for scheduling.

      He also claimed that he missed the original sentencing hearing because he was

      in the hospital for seventy-two hours in relation to his bipolar disorder. Smith

      has a son, C.S., who is almost eight years old and was a ward of the

      Department of Child Services (DCS) as a result of a Child in Need of Services

      (CHINS) case at the time Smith committed the instant offense. Smith and his

      wife have custody of C.S. under the CHINS case. As a result of Smith’s

      incarceration, it is possible that DCS will recommend that C.S. be moved to

      foster care.


[6]   The trial court found the following aggravating factors: Smith’s criminal

      history; Smith’s previous violations of probation; Smith’s failure to report to

      probation and community corrections and failure to appear at the original

      sentencing hearing; Smith’s new charge of resisting law enforcement; the fact

      that as a felon, Smith had no right to possess any firearm, let alone an “assault

      style rifle weapon,” tr. vol. II p. 39; and Smith’s detailed and methodical plan to

      steal the rifle. The trial court found the following mitigating factors: Smith’s

      guilty plea (though the trial court noted that he had pleaded guilty only on the

      morning of the jury trial when the jury had already been called); and the

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020   Page 3 of 7
      hardship to C.S. (though the trial court found that the hardship was not undue).

      The trial court sentenced Smith to 820 days, with 410 days to be executed at the

      county jail and the remaining to be served on home detention. Smith now

      appeals.


                                       Discussion and Decision
[7]   Smith argues on appeal that the trial court erred in the sentencing process.1 A

      trial court may err in the sentencing process by, in relevant part, giving reasons

      for the sentence that are not supported by the record, omitting reasons that are

      clearly supported by the record and advanced for consideration, or giving

      reasons for a sentence that are improper as a matter of law. Anglemyer v. State,

      868 N.E.2d 482, 492 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). If we

      find a sentencing error, we will still affirm unless we “cannot say with

      confidence that the trial court would have imposed the same sentence” absent

      the error. Id. at 491.


                                                    Mental Health

[8]   First, Smith argues that the trial court erred by declining to find his mental

      health to be a mitigating circumstance. In making this argument, Smith bears

      the burden of establishing that the mitigating circumstance is both significant

      and clearly supported by the record. Wert v. State, 121 N.E.3d 1079, 1084 (Ind.

      Ct. App. 2019), trans. denied. There are four factors that must be considered



      1
          He does not argue that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020                        Page 4 of 7
       when considering a defendant’s mental illness at sentencing: (1) the extent of

       the defendant’s inability to control his or her behavior due to the disorder;

       (2) overall limitations on functioning; (3) the duration of the mental illness; and

       (4) the extent of any nexus between the disorder and the commission of the

       crime. Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013).


[9]    The only evidence in the record of Smith’s mental illness is his own brief

       testimony. While he testified that he has been diagnosed with bipolar disorder

       and takes medication to treat the condition, he offered no documentation or

       other evidence to support that testimony. If the trial court found Smith to be of

       questionable credibility and veracity, the lack of supporting documentation may

       have been a significant omission with respect to the first three factors described

       above. Additionally, Smith did not elaborate at all about the nature of his

       mental illness, did not state that he was unable to control his behavior, and did

       not state the duration of the mental illness. The extent of his testimony in this

       regard was two brief sentences at the hearing and a brief statement to probation

       during the PSI process. Tr. Vol. II p. 21 (“I have bipolar”), 25 (“I was being

       seen for my bipolar. I was being seen for a serious panic episode.”); Appellant’s

       App. Vol. II p. 94 (Smith “reported he has been diagnosed with bipolar disorder

       and is currently taking [medication] to treat his symptoms”).


[10]   Moreover, Smith must also show a nexus between his mental illness and the

       crime for which he was being sentenced. He offered no evidence in this regard.

       Under these circumstances, even if the trial court had found Smith’s mental

       illness to be a mitigator, we are confident that it would have assigned the

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020   Page 5 of 7
       mitigator little weight and, as a result, would have imposed the same sentence.

       Therefore, we find no reversible error in this regard.


                                               Hardship to C.S.

[11]   Next, Smith argues that the trial court erred by finding that, while C.S. would

       experience hardship because of Smith’s incarceration, the hardship would not

       be undue. The trial court found hardship to C.S. to be a mitigator, which

       means that this argument amounts to a claim that the trial court did not assign

       it sufficient weight—which we may not review. Anglemyer, 868 N.E.2d at 492.


                                          Pending Criminal Charge

[12]   Next, Smith argues that the trial court erred by considering his pending charge

       for resisting law enforcement as an aggravator because he had not yet been

       convicted of that crime. It is well established, however, that allegations of

       criminal activity “need not be reduced to conviction before they may be

       properly considered as aggravating circumstances by a sentencing court.”

       Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012). Here, the trial court

       acknowledged the pending criminal charge and found it to be an aggravator,

       but also emphasized that “[Smith] is presumed innocent, he has not yet been

       convicted, [it] is a pending charge. Probable cause was found by the court[]

       therein and occurred while he was awaiting sentencing in this matter.” Tr. Vol.

       II p. 39. We find no error in this regard.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020   Page 6 of 7
                                       Nature of the Stolen Weapon

[13]   Finally, Smith argues that there is no support in the record for the trial court’s

       comment that the rifle that Smith stole was “an assault style rifle weapon[.]”

       Id. Initially, we note that Smith’s wife described the weapon as an “assault

       rifle[.]” Appellant’s App. Vol. II p. 20. Additionally, there was a photograph

       of the rifle admitted into evidence, and the trial court could have considered

       that photograph when contemplating the type of weapon and its bearing on the

       sentence to be imposed. In other words, there was evidence in the record

       supporting this statement.


[14]   Even if the evidence in the record in this regard is questionable, however, it is

       beside the point. The actual aggravator found by the trial court was that Smith,

       a felon, illegally acquired a firearm. That is unquestionably a valid and proper

       aggravator that is supported by the record. Therefore, we find no error in this

       regard.


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


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020   Page 7 of 7
