FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                           GREGORY F. ZOELLER
Fort Wayne, Indiana                         Attorney General of Indiana

                                            MICHAEL GENE WORDEN
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                   Mar 26 2014, 9:33 am


                            IN THE
                  COURT OF APPEALS OF INDIANA


ADAM BIGGER,                                )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 02A03-1308-CR-315
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )



                   APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable Frances C. Gull, Judge
                            Cause No. 02D05-1301-FC-8




                                  March 26, 2014

                            OPINION - FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

       Adam Bigger appeals his conviction and sentence for attempted robbery, a Class C

felony. Ind. Code §§ 35-42-5-1 (1984), 35-41-5-1 (1977). We affirm.

                                         ISSUES

       Bigger presents two issues for our review, which we restate as:

       I.     Whether the State presented sufficient evidence to disprove Bigger’s
              defense of abandonment.

       II.    Whether Bigger’s sentence is inappropriate.

                           FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the verdict follow. On December 21, 2012, Bigger

walked into a Chase Bank branch in Fort Wayne, approached one of the tellers, and

handed her a note indicating he had a gun and demanding money. The teller told Bigger

that she did not have the key for her cash drawer but that it was in her purse, and Bigger

indicated that she could retrieve the key. Upon retrieving the key, the teller emerged with

her hands in the air. At that time, Bigger began walking away from the teller window

and out of the bank. The teller then pushed the alarm.

      The State charged Bigger with attempted robbery, and, following a jury trial, he

was found guilty as charged. The trial court sentenced Bigger to eight years. It is from

this conviction and sentence that he now appeals.

                             DISCUSSION AND DECISION

                        I. SUFFICIENCY OF THE EVIDENCE




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       Bigger contends that the State’s evidence was not sufficient to disprove his

defense of abandonment. However, the State claims that Bigger has waived this issue on

appeal because he did not raise the defense before or during his trial.

       In response to the State’s assertion of waiver, Bigger argues in his reply brief that

the statute providing for the defense of abandonment does not require a formal pleading

or notice of the defense. See Ind. Code § 35-41-3-10 (1977). Although we find no

statutory or case law requirement that the defense of abandonment be formally pleaded,

our review of this case discloses that the jury was not even aware that they could consider

this defense.   Bigger did nothing to reveal his intent to rely on the defense of

abandonment in this case.      He did not file any pleading asserting the defense of

abandonment, he did not cross-examine the State’s witnesses regarding evidence of his

alleged abandonment, he did not mention his alleged abandonment in closing argument

or any other time at trial, and he did not tender any final instructions on the defense of

abandonment and the court gave none.

       We deem necessary the assertion of the defense in some manner.               Were it

otherwise, the trier of fact would not know to consider the defense in its deliberations of a

defendant’s guilt, as was the case at Bigger’s trial. See Norton v. State, 273 Ind. 635, 408

N.E.2d 514 (1980) (defendant tendered instruction on defense of abandonment); Barnes

v. State, 269 Ind. 76, 378 N.E.2d 839 (1978) (defendant tendered instruction on

abandonment); Gravens v. State, 836 N.E.2d 490 (Ind. Ct. App. 2005) (defendant filed

notice of affirmative defense of abandonment prior to trial and tendered instruction on

defense of abandonment at trial), trans. denied; cf. Fearrin v. State, 551 N.E.2d 472, 473

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(Ind. Ct. App. 1990) (recognizing that formal pleading of defense of entrapment is not

required but stating it is defendant’s duty to affirmatively raise defense and reliance on

defense may be revealed through cross-examination of State’s witnesses), trans. denied;

Townsend v. State, 418 N.E.2d 554, 558 (Ind. Ct. App. 1981) (holding that although

defendant need not raise entrapment defense before trial, he must indicate at some point

in proceedings his intention to rely upon defense).

       Moreover, as a general rule, a party may not present an argument or issue to an

appellate court unless the party raised the same argument or issue before the trial court.

Crafton v. State, 821 N.E.2d 907, 912 (Ind. Ct. App. 2005). Here, we find no evidence

that Bigger raised the issue of the defense of abandonment or indicated his intent to rely

on the defense at the trial court level, and he points to none. Therefore, this issue is

waived.

                                      II. SENTENCE

       As his second allegation of error, Bigger claims that his eight-year sentence is

inappropriate. We may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, we determine that the sentence is inappropriate in light of the

nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). A

defendant bears the burden of persuading the appellate court that his or her sentence has

met the inappropriateness standard of review. Anglemyer v. State, 868 N.E.2d 482, 494

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

       To assess the appropriateness of the sentence, we look first to the statutory range

established for the class of the offense. Here, the offense is a Class C felony, for which

                                              4
the advisory sentence is four years, with a minimum sentence of two years and a

maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005).

          Next, we look to the nature of the offense and the character of the offender. As to

the nature of the current offense, Bigger attempted to rob a bank by giving a teller a

threatening note stating he had a gun and “nothing to lose.” Tr. p. 94. The teller testified

that the first thing she noticed on the note was the word “gun” and that she was

“stunned,” “shocked,” and “scared” during the ordeal. Id. at 90-91.

          With regard to the character of the offender, we observe that Bigger was only

twenty-eight years old at the time of sentencing and already had amassed a notable

criminal history. As a juvenile, he had three delinquency adjudications, all involving

alcohol. As an adult, Bigger has accumulated eleven misdemeanor convictions, at least

four of which involved drugs and/or alcohol.              Moreover, three of the eleven

misdemeanors were committed after the instant offense. Bigger also has one previous

felony conviction involving drugs and has had his probation revoked at least once.

          It is clear that numerous prior brushes with the law have proven ineffective to

rehabilitate Bigger, and this offense is further proof that a longer period of incarceration

is appropriate. Bigger has not carried his burden of persuading this Court that his

sentence has met the inappropriateness standard of review. See Anglemyer, 868 N.E.2d

at 494.

                                       CONCLUSION

          For the reasons stated, we conclude that Bigger waived the defense of

abandonment by failing to raise it in the trial court. In addition, we conclude that

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Bigger’s sentence is not inappropriate in light of the nature of the offense and his

character.

       Affirmed.

MAY, J., and CRONE, J., concur.




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