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                                        Sep 29 2014, 9:58 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

DOUGLAS R. LONG                                         GREGORY F. ZOELLER
Anderson, Indiana                                       Attorney General of Indiana

                                                        JESSE R. DRUM
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

JEREMY RICHARD ROBERTS,                            )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 48A05-1404-CR-145
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Angela Warner Sims, Judge
                              Cause No. 48C01-1308-FD-1529


                                       September 29, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Jeremy Richard Roberts (“Roberts”) appeals his convictions and sentence for

Strangulation, a Class D felony,1 and two Class A misdemeanors, Domestic Battery2 and

Battery.3 We affirm.

                                                   Issues

          Roberts presents three issues for review:

          I.       Whether there is sufficient evidence to support his conviction for
                   Strangulation;

          II.      Whether the trial court abused its discretion in the admission of
                   evidence; and

          III.     Whether the aggregate three-year sentence is a product of an abuse of
                   discretion or is inappropriate.

                                    Facts and Procedural History

          On August 9, 2013, Roberts and his girlfriend, Jessica Ring (“Ring”) decided to host a

bonfire at their home for friends Lori Landers (“Landers”) and David Reyes (“Reyes”). In

preparation, they purchased a bottle of vodka. Roberts began drinking from the bottle before

the guests arrived.

          At some point, Ring went into the back yard and discovered that Roberts had set a

sofa on fire. Upset that the burning sofa was very near a tree and presented a fire hazard,




1
    Ind. Code § 35-42-2-9. The offense is now a level 6 felony.

2
    I.C. § 35-42-2-1.3.

3
    I.C. § 35-42-2-1.

                                                      2
Ring began to run back and forth with pails of water to extinguish the fire. She yelled at

Roberts, who merely laughed in response.

        Ring went into the house and was standing at a DVD player when Roberts entered.

He moved behind Ring, placed his hands around Ring’s neck, with his fingers touching, and

squeezed. Ring briefly felt as if the squeezing “blocked off her airway” and she felt pressure

in her head. (Tr. 130.) Roberts released his grip, calling Ring a “bitch” and “whore.” (Tr.

131.)

        Around fifteen minutes later, Landers and Reyes arrived and went into the back yard

by the bonfire. Roberts greeted Reyes by asking: “What’s up man? How you been?” (Tr.

238.) Roberts then asked Reyes: “What’s the capitol of Thailand?” and Reyes responded:

“Bangkok,” whereupon Roberts struck Reyes twice in the groin. (Tr. 238.) Reyes

announced that he was ready to leave; however, Landers wanted to visit with Ring. Landers

and Reyes went into the house. Roberts followed.

        Inside the house, Roberts was “running around … acting crazy.” (Tr. 135.) He began

shoving Reyes. He then called Ring a “bitch” and slapped her in the face. (Tr. 137.)

Landers, Ring, and Reyes went outside to leave in Lander’s truck; Roberts followed and

pushed Reyes down in the gravel driveway. When Reyes attempted to stand, Roberts pushed

him down again. Eventually, Reyes was able to stand and get into the truck. Landers drove

to a nearby private club to summon police, while Roberts gave chase on a bicycle.

Eventually, Roberts gave up the chase, went home and drank more vodka. Police officers

found him asleep on a sofa, woke him and placed him under arrest.


                                              3
       Roberts was charged with Strangulation and Domestic Battery for his conduct against

Ring and Battery for his conduct against Reyes. On March 6, 2014, a jury found Roberts

guilty as charged. He was sentenced to three years imprisonment for Strangulation, and one

year imprisonment for each of the Battery convictions. The sentences were to be served

concurrently, providing for an aggregate sentence of three years. This appeal ensued.

                                 Discussion and Decision

                                Sufficiency of the Evidence

       Roberts claims that, although he admittedly perpetrated an unwanted touching upon

Ring, the State failed to establish the elements of Strangulation. Specifically, the State was

required to prove beyond a reasonable doubt that Roberts touched Ring in a rude, angry, or

insolent manner, and knowingly or intentionally applied pressure to her throat or neck or

obstructed Ring’s nose or mouth in a manner that impeded Ring’s normal breathing or blood

circulation. Ind. Code § 35-42-2-9.

       The standard by which we review alleged insufficiency of the evidence to support a

criminal conviction is well-settled:

       When reviewing the sufficiency of the evidence to support a conviction,
       “appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict.” McHenry v. State, 820 N.E.2d 124, 126
       (Ind. 2005) (emphasis added). It is the fact-finder’s role, not that of appellate
       courts, to assess witness credibility and weigh the evidence to determine
       whether it is sufficient to support a conviction. Wright v. State, 828 N.E.2d
       904 (Ind. 2005). To preserve this structure, when appellate courts are
       confronted with conflicting evidence, they must consider it “most favorably to
       the trial court’s ruling.” Id. Appellate courts affirm the conviction unless “no
       reasonable fact-finder could find the elements of the crime proven beyond a
       reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)
       (emphasis added). It is therefore not necessary that the evidence “overcome

                                              4
       every reasonable hypothesis of innocence.” Moore v. State, 652 N.E.2d 53, 55
       (Ind. 1995). “[T]he evidence is sufficient if an inference may reasonably be
       drawn from it to support the verdict.” Pickens v. State, 751 N.E.2d 331, 334
       (Ind. Ct. App. 2001).

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).

       Ring testified that Roberts put his hands around her throat; he had his left hand around

the front and his right hand around the back and his fingers touched. Roberts then “squeezed

for a few seconds.” (Tr. 130.) Ring felt pressure in her head and felt that she could not

breathe. Ring explained that the squeezing “blocked off [her] airway for a minute.” (Tr.

130.) This is sufficient evidence from which the jury could conclude that Roberts committed

Strangulation.

                                   Admission of Evidence

       Over Roberts’ objection, the State was permitted to elicit testimony during cross-

examination of Roberts that he had previously been convicted of Battery and Sexual Battery.

He argues that the evidence was admitted in violation of Indiana Rule of Evidence 404(b),

which provides:

       Evidence of a crime, wrong, or other act is not admissible to prove a person’s
       character in order to show that on a particular occasion the person acted in
       accordance with the character.

       The rationale for the prohibition against bad act and character evidence is that the jury

is precluded from making the forbidden inference that the defendant had a criminal

propensity and therefore engaged in the charged conduct. Monegan v. State, 721 N.E.2d

243, 248 (Ind. 1999). In determining whether to admit evidence of specific acts under the

rule, the trial court is to: (1) determine whether the evidence of other crimes, wrongs, or acts

                                               5
is relevant to a matter at issue other than the defendant’s propensity to commit the charged

act; (2) determine that the proponent has sufficient proof that the person who allegedly

committed the act did, in fact, commit the act; and (3) balance the probative value of the

evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Camm v.

State, 908 N.E.2d 215, 22 (Ind. 2009).

       The decision to admit or exclude evidence is a matter within the sound discretion of

the trial court. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans. denied. We

afford the evidentiary decision great deference upon appeal and reverse only when a manifest

abuse of discretion denies the defendant a fair trial. Collins v. State, 826 N.E.2d 671, 677

(Ind. Ct. App. 2005), trans. denied. An abuse of discretion has occurred when the trial

court’s decision is clearly against the logic and effect of the facts and circumstances before it.

Id.

       Additionally, otherwise inadmissible evidence may become admissible where the

defendant “opens the door” to questioning on that evidence. Jackson v. State, 728 N.E.2d

147, 152 (Ind. 2000). The evidence relied upon to “open the door” must leave the trier of

fact with a false or misleading impression of the facts related. Id.

       Roberts elected to testify in his own defense. During his direct testimony, Roberts

conceded that he had placed his hands on Ring’s neck but claimed that Ring was angry with

him and he “didn’t want it to escalate.” (Tr. 232.) Roberts testified:

       I didn’t want it to escalate but I didn’t, I don’t want to hurt her. I don’t want to
       hit her. So I was trying to stop it at that point from going that far. To try to
       touch her in a way that wasn’t painful or hurt her but you know, let her know it


                                                6
           doesn’t, don’t let it go there. You know, I was trying to just break the
           violence.

(Tr. 232.) Additionally, Roberts testified that Ring had “smacked,” choked, and pushed him,

Landers had punched him, and Reyes had shoved him. (Tr. 235.) Roberts repeatedly insisted

that he would not hurt Ring.

           In short, Roberts created an impression for the jury that others had been aggressive

with him but he was a peaceful person who would act to diffuse a volatile situation. The trial

court did not abuse its discretion by finding that Roberts offered misleading testimony that

opened the door to testimony regarding his prior convictions for acts of violence.

                                                   Sentencing

           Upon conviction of a Class D felony, Roberts was subject to a sentence of between six

months and three years, with one and one-half years as the advisory term. I.C. § 35-50-2-7.4

Upon conviction of a Class A misdemeanor, Roberts was subject to a sentence of up to one

year. I.C. § 35-50-3-2. As such, Roberts received a maximum sentence for each of his

convictions, to be served concurrently. When imposing this sentence, the trial court found

Roberts’ criminal history and his violation of the conditions of pre-trial release to be

aggravators, and found Roberts’ remorse to be a mitigator.

           Abuse of Discretion.

           “So long as the sentence is within the statutory range, it is subject to review only for

abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other

grounds, 875 N.E.2d 218 (Ind. 2007) (Anglemyer II). This includes the finding of an

4
    This statutory provision was modified, effective July 1, 2014, to include the penalty for level 6 felonies.

                                                         7
aggravating circumstance and the omission to find a proffered mitigating circumstance. Id. at

490-91. When imposing a sentence for a felony, the trial court must enter “a sentencing

statement that includes a reasonably detailed recitation of its reasons for imposing a

particular sentence.” Id. at 491.

       The trial court’s reasons must be supported by the record and must not be improper as

a matter of law. Id. However, a trial court’s sentencing order may no longer be challenged

as reflecting an improper weighing of sentencing factors. Id. A trial court abuses its

discretion if its reasons and circumstances for imposing a particular sentence are 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. Hollin v. State, 877 N.E.2d 462, 464

(Ind. 2007).

       An allegation that the trial court failed to identify or find a mitigating factor requires

the defendant to establish that the mitigating evidence is not only supported by the record but

also that the mitigating evidence is significant. Anglemyer II, 875 N.E.2d at 220-21.

       Roberts asserts that the trial court abused its sentencing discretion in its finding of

aggravators and mitigators. However, he fails to develop a cogent argument to support the

bald assertion. To the extent that he argues “the court should have given more weight to the

defendant’s leading relatively a law-abiding life for a substantial period of time before

commission of the crime, his employment opportunities, and his remorse/acceptance of

responsibility,” Appellant’s Brief at 13, this argument of relative weight is unavailable to

him. See Anglemyer, 868 N.E.2d at 490.


                                               8
       Inappropriateness.

       The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

permitting appellate review and revision of criminal sentences is implemented through

Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.” In performing our review, we assess “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

given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of

such review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade

the appellate court that his or her sentence has met th[e] inappropriateness standard of

review.”’ Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006)).

       The nature of Roberts’ offenses is that he strangled and struck his live-in girlfriend.

He repeatedly struck his friend Reyes, and pushed him down as he tried to help Ring escape.

       Roberts has a significant criminal history, including six prior felony convictions. He

twice violated the terms of probation and he violated the terms of pre-trial release in the

instant case by contacting one of the victims.

       Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not warrant




                                              9
appellate revision. Accordingly, we decline to disturb the sentence imposed by the trial

court.

                                         Conclusion

         Roberts’ conviction for Strangulation is supported by sufficient evidence. He did not

demonstrate that the trial court abused its discretion in evidentiary rulings or sentencing.

Roberts’ three-year aggregate sentence is not inappropriate.

         Affirmed.

NAJAM, J., and PYLE, J., concur.




                                              10
