MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Aug 30 2018, 8:00 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Dale W. Arnett                                           Curtis T. Hill, Jr.
Winchester, Indiana                                      Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kori F. Rice,                                            August 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         68A01-1706-CR-1314
        v.                                               Appeal from the Randolph Circuit
                                                         Court
State of Indiana,                                        The Honorable Jay L. Toney,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         68C01-1611-F3-750



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018        Page 1 of 11
                                       Statement of the Case
[1]   Kori F. Rice (“Rice”) was convicted, following a jury trial, of Level 3 felony

      robbery1 and Class A misdemeanor theft2 and was found to be an habitual

      offender.3 He now appeals his sentence and contends that the trial court abused

      its discretion in its determination of aggravating and mitigating circumstances.

      Concluding that the trial court did not abuse its discretion when sentencing

      Rice, we affirm his sentence.


[2]   We affirm.


                                                     Issue
                 Whether the trial court abused its discretion when sentencing Rice.


                                                     Facts
[3]   On October 31, 2016, Rice spent the evening at his girlfriend’s apartment

      drinking and smoking marijuana with his friend, Morgan Thompson

      (“Thompson”); Morgan’s cousin, Joseph Ashbrook (“Ashbrook”); and a

      seventeen-year-old male neighbor named J.Q. (“J.Q.”). Rice and the others,

      who were all intoxicated, left the apartment around midnight. They got into

      Thompson’s car, and Rice drove.




      1
          IND. CODE § 35-42-5-1(1).
      2
          I.C. § 35-43-4-2(a).
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 2 of 11
[4]   As they were in driving, Ashbrook called his father (“Ashbrook’s father”) on his

      cell phone. Ashbrook’s father could tell that Ashbrook was “very upset” and

      appeared to have “been crying.” (Tr. Vol. 2 at 226). Ashbrook told his father

      that he was “scared” and that Rice and Thompson were “robbing him.” (Tr.

      Vol. 2 at 227). Ashbrook also asked his father to take his shotgun and be at

      Ashbrook’s house when he arrived home. The phone call then disconnected,

      and Ashbrook’s father was unable to reconnect with Ashbrook.


[5]   Thereafter, around 12:30 a.m., Ashbrook called his mother (“Ashbrook’s

      mother”). Ashbrook, who sounded “very shaken[] and frightened[,]” told his

      mother that he was on his way home and that she should call the sheriff

      because he was getting beaten up and robbed. (Tr. Vol. 2 at 235). The phone

      call then disconnected. About ten minutes later, Rice called his mother back.

      Ashbrook again said that he was getting beaten and robbed, told her to call the

      sheriff, and said he was getting close to home. The phone call again

      disconnected while he was talking.


[6]   Ashbrook’s mother watched from the front window and saw a car pull up and

      stop on the road across from her house. She saw that three of the car doors

      opened and saw that some people, including the driver, got out and went to the

      side of the road. Five to ten minutes later, the people got back into the car, and

      Ashbrook’s mother saw that the driver was the last person to get back into the

      car. After the car sped away, Ashbrook’s mother saw Ashbrook’s head pop up

      from the ditch on the side of the road. Ashbrook got out of the ditch, “weaved

      across the road[,]” and eventually went into his mother’s house. (Tr. Vol. 2 at

      Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 3 of 11
      239). Ashbrook, who was crying and limping from pain in his leg, had red

      marks on various parts of his body, including his face, neck, and ribs. He told

      his mother that, during the drive home, Rice, Thompson, and “some other kid”

      had “decided to rob him.” (Tr. Vol. 2 at 241). Ashbrook told her that after

      Rice, Thompson, and J.Q. had pulled Ashbrook out of the car, they threw him

      into the ditch and “took about fifteen blows each on him.” (Tr. Vol. 2 at 241).

      They then took Ashbrook’s phone and wallet.


[7]   Ashbrook’s mother called the Randolph County Sheriff’s Department.

      Ashbrook told the sheriff dispatcher that Rice and Thompson had taken his

      phone and money and beat him up, and he gave identifying information about

      Thompson’s car. When a sheriff deputy arrived at Ashbrook’s home, Ashbrook

      gave the deputy identifying information about Rice and Thompson. Ashbrook

      was later taken by ambulance to the hospital.4


[8]   Meanwhile, after leaving Ashbrook in the ditch, Rice drove to a convenience

      store and, using some of the money taken from Ashbrook, bought some

      marijuana from someone in the parking lot. At that same time, police officers,

      who had received the identifying information given by Ashbrook, spotted

      Thompson’s car in the convenience store parking lot and stopped to investigate.




      4
       Ashbrook was released from the hospital that same morning. He died later that day, but his death was not
      attributable to the injuries he sustained during the roadside beating. Due to Ashbrook’s death, the State was
      unable to call him as a witness during Rice’s jury trial.

      Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018            Page 4 of 11
       The officers found Morgan and J.Q. in Thompson’s car and arrested them.

       Rice, who went into the store when the police arrived, got away from the area.


[9]    Days later, Rice was interviewed by the police. Rice told the officer that he had

       not been involved with the crimes against Ashbrook. In fact, Rice denied that

       he had been with Ashbrook, Thompson, and J.Q. Rice claimed that he had

       been with his girlfriend when the offenses against Ashbrook had occurred, and

       he convinced his girlfriend to confirm that story to the police. Rice’s girlfriend

       initially lied to police and told them that Rice had been with her, but a few

       weeks later, she told the police the truth and stated that she could not be Rice’s

       alibi.


[10]   The State charged Rice with Level 3 felony robbery and Class A misdemeanor

       theft and alleged that he was an habitual offender. 5 In April 2017, the trial

       court held a two-day jury trial. During the trial, the State’s witnesses included

       Thompson, Ashbrook’s father, Ashbrook’s mother, Rice’s girlfriend, and some

       police officers, who provided testimony regarding the facts above.


[11]   Thompson, who had been granted use immunity for his testimony, testified that

       he had passed out in the car when Rice drove the group home and stated that

       he had woken up when he had heard a commotion, which was Rice and J.Q.

       kicking and punching Ashbrook by the side of the road. Thompson further

       testified that, after he had gotten out of the car, Rice told him to grab




       5
           Thompson and J.Q. were also charged with robbery and theft.


       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 5 of 11
       Ashbrook’s money. Thompson admitted that he took Ashbrook’s money out of

       Ashbrook’s pocket, and he testified that J.Q. took Ashbrook’s phone.


[12]   During Rice’s case-in-chief, he called J.Q. as a witness. J.Q., who had been

       offered a deal to have his case remain in juvenile court, pled guilty to robbery

       and was placed on probation. J.Q. corroborated Ashbrook’s father’s testimony

       that Ashbrook had used his cell phone in the car and had mentioned Rice’s and

       Thompson’s names. However, J.Q.’s testimony regarding the offenses against

       Ashbrook conflicted with Thompson’s testimony. J.Q. testified that the group

       pulled to the side of the road to urinate, and he stated, that while there, he saw

       Thompson and Ashbrook “look like they [we]re about to fight.” (Tr. Vol. 3 at

       135). J.Q. testified that he went over by them in case Thompson needed help

       and that they all then started fighting. J.Q. admitted that he struck Ashbrook

       and took his phone. J.Q. testified that he saw Thompson hit Ashbrook but that

       he did not see Rice strike him. Additionally, J.Q. testified that Rice did not ask

       anyone to take anything from Ashbrook’s pockets. When the State cross-

       examined J.Q., he admitted that he had previously told a police officer and had

       told the juvenile court, as part of his factual basis, that Rice, along with J.Q.

       and Thompson, had hit Ashbrook. J.Q. testified that he assumed Rice was

       hitting Ashbrook but that he did not specifically observe Rice hitting Ashbrook.


[13]   During closing argument, Rice’s defense theory was that the State could not

       prove its case because Rice did not personally take Ashbrook’s phone or wallet

       from him and because there was conflicting evidence of whether Rice had hit

       Ashbrook. The State argued that the jury should find Rice guilty based on

       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 6 of 11
       accomplice liability. The jury found Rice guilty as charged and determined that

       he was an habitual offender.


[14]   When sentencing Rice, the trial court determined that there were no mitigating

       circumstances. When discussing aggravating circumstances, the trial court

       focused on Rice’s criminal history, which the trial court categorized as “quite

       serious.” (Tr. Vol. 3 at 247). Rice’s criminal history was comprised of multiple

       alcohol-related offenses, including two operating a vehicle while intoxicated

       convictions and an habitual substance offender adjudication; two convictions

       for Class B felony conspiracy to commit robbery, for which he received a

       twenty-year sentence and later violated his probation; a battery conviction; and

       criminal mischief conviction. The trial court also stated that Rice’s lack of

       remorse “to this date” was an aggravating circumstance, but it did not elaborate

       any further on this aggravator. (Tr. Vol. 3 at 248). The trial court imposed a

       fourteen (14) year sentence, with twelve (12) years executed and two (2) years

       suspended to probation, for Rice’s Level 3 felony robbery conviction and

       enhanced this sentence by twelve (12) years for Rice’s habitual offender

       adjudication. The trial court also imposed a one (1) year sentence for Rice’s

       Class A misdemeanor theft conviction and ordered it to be served concurrently

       to his robbery conviction. Thus, the trial court ordered Rice to serve an

       aggregate sentence of twenty-six (26) years with twenty-four (24) years executed

       and two (2) years suspended to probation. Rice now appeals.




       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 7 of 11
                                                   Decision
[15]   Rice argues that the trial court abused its discretion in its determination of

       aggravating and mitigating circumstances. Sentencing decisions rest within the

       sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion will be found where the decision is 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. Id. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[16]   Rice contends that the trial court abused its discretion by failing to consider his

       family support as a mitigating circumstance. A trial court is not obligated to

       accept a defendant’s claim as to what constitutes a mitigating circumstance.

       Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A claim that the trial court

       failed to find a mitigating circumstance requires the defendant to establish that

       the mitigating evidence is both significant and clearly supported by the record.

       Anglemyer, 868 N.E.2d at 493.



       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 8 of 11
[17]   Here, however, Rice cannot show that the trial court abused its discretion

       regarding its consideration of mitigating circumstances because he did not

       proffer family support as a mitigating circumstance. A “trial court does not

       abuse its discretion in failing to consider a mitigating factor that was not raised

       at sentencing.” Anglemyer, 868 N.E.2d at 492. See also Creekmore v. State, 853

       N.E.2d 523, 530 (Ind. Ct. App. 2006) (explaining that where a “defendant fails

       to advance a mitigating circumstance at sentencing,” our appellate courts “will

       presume that the factor is not significant,” and the defendant will be “precluded

       from advancing it as a mitigating circumstance for the first time on appeal”).

       During the sentencing hearing, Rice’s counsel generally asked the trial court “to

       take everything in consideration” when sentencing Rice. (Tr. Vol. 3 at 246).

       His counsel did not, however, specifically advance family support as a

       mitigating circumstance for consideration by the trial court. Because Rice did

       not raise this mitigating circumstance and, moreover, because he has failed to

       show that it was both significant and clearly supported by the record, we

       conclude that the trial court did not abuse its discretion when it did not identify

       family support as a mitigating circumstance.


[18]   Rice also argues that the trial court abused its discretion by finding lack of

       remorse to be an aggravating circumstance. Specifically, he contends that trial

       court’s consideration of lack of remorse as an aggravating circumstance was

       improper because he “maintained his innocence[.]” (Rice’s Br. 8). Rice

       contends that he “did not actively participate in the robbery and beating” of the

       victim and that he “demonstrated empathy” to the victim’s family at sentencing


       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 9 of 11
       and expressed “regret that he had placed himself in the situation he was in.”

       (Rice’s Br. 8).


[19]   A trial court may consider a defendant’s lack of remorse as an aggravating

       circumstance. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000).

       Furthermore, “it is not error for a trial court to consider as an aggravating factor

       the lack of remorse by a defendant who insists upon his innocence.” Id. “A

       lack of remorse is displayed by a defendant when he displays disdain or

       recalcitrance, the equivalent of ‘I don’t care.’” Cox v. State, 780 N.E.2d 1150,

       1158 (Ind. Ct. App. 2002). “This is distinguished from the right to maintain

       one’s innocence, i.e., ‘I didn’t do it.’” Id. “We have suggested that a

       defendant's assertion of innocence may support a finding of lack of remorse if

       there is sufficient independent evidence of guilt.” Hollen v. State, 740 N.E.2d

       149, 159 (Ind. Ct. App. 2000) (citing Bluck v. State, 716 N.E.2d at 513 (Ind. Ct.

       App. 1999) and Dockery v. State, 504 N.E.2d 291, 297 (Ind. Ct. App. 1987)),

       opinion adopted, 761 N.E.2d 398 (Ind. 2002).


[20]   Assuming without deciding that the trial court improperly considered Rice’s

       lack of remorse to be an aggravating circumstance, any such impropriety would

       not require this Court to remand for resentencing given the trial court’s finding

       of another valid aggravating circumstance. If a trial court abuses its discretion

       by improperly considering an aggravating circumstance, we need to remand for

       resentencing only “if we cannot say with confidence that the trial court would

       have imposed the same sentence had it properly considered reasons that enjoy

       support in the record.” Anglemyer, 868 N.E.2d at 491. Here, our review of the

       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 10 of 11
       record shows that the trial court’s discussion of aggravating circumstances

       focused on Rice’s criminal history, which the trial court categorized as “quite

       serious[,]” and that the trial court’s imposition of slightly enhanced sentences

       was essentially based on this undisputed criminal history aggravating

       circumstance. (Tr. Vol. 3 at 247). Thus, we are confident that the trial court

       would have imposed the same sentence even without the lack of remorse

       aggravator. Accordingly, we conclude that the trial court did not abuse its

       discretion when sentencing Rice. See Georgopulos, 735 N.E.2d at 1146

       (explaining that “[o]nly one aggravator is necessary for the trial court to impose

       an enhanced sentence”).


[21]   Affirmed.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 68A01-1706-CR-1314 | August 30, 2018   Page 11 of 11
