MEMORANDUM DECISION
                                                                   Jun 03 2015, 6:02 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeremy K. Nix                                             Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P.                       Attorney General of Indiana
Huntington, Indiana
                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

David Cruz, Jr.,                                         June 3, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         90A05-1501-CR-13
        v.                                               Appeal from the Wells Circuit
                                                         Court.
                                                         The Honorable Kenton W. Kiracofe,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause Nos. 90C01-1406-FD-43,
                                                         90C01-1408-F4-1




Sullivan, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015         Page 1 of 10
[1]   David Cruz, Jr., appeals the sentence the trial court imposed for his conviction
                                                          1
      of domestic battery, a Class D felony, and two convictions of burglary, both
                              2
      Level 4 felonies. We affirm.


[2]   On June 21, 2014, Cruz and his wife were visiting friends. As they talked in

      their friends’ backyard, Cruz and his wife got into an argument. Cruz struck his

      wife in the face, resulting in pain and bodily injury. Their friends’ nine-year-old
                                               3
      child witnessed Cruz’s attack. On June 24, 2014, the State charged Cruz with

      domestic battery and criminal trespass under Cause Number 90C01-1406-FD-

      43 (FD-43). The State also filed a Notice of Intent to Seek Habitual Offender

      Status. On July 15, 2014, Cruz was released on bond pending trial.


[3]   Next, between August 4 and August 6, 2014, Cruz broke into the houses of Jodi

      Caylor and Kevin Gerber and stole items including a television set, numerous

      bottles of alcohol, and frozen food. In addition, Cruz stole jewelry from

      Caylor’s home and gave it to his wife.


[4]   Both of the burglary victims knew Cruz prior to the crimes. Gerber had given

      Cruz a ride home from his house in June 2014, immediately prior to Gerber

      being incarcerated in the county jail. Gerber was still in jail when the burglary



      1
          Ind. Code § 35-42-1-1.3 (2012).
      2
          Ind. Code § 35-43-2-1 (2014).
      3
       In his Appellant’s brief, Cruz describes the child as being six or seven years old at the time of the offense.
      The State describes the child as being eight years old. However, the charging information states, without
      contradiction elsewhere in the record, that the child was born on March 25, 2005, so the child was nine years
      old on June 21, 2014.

      Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015                  Page 2 of 10
      occurred. On July 19, 2014, Cruz stopped by Caylor’s house to ask if she was

      having a garage sale and if anyone was living in her house. Caylor was

      disturbed by the encounter and had emailed the Bluffton Police Department

      about it prior to the burglary.


[5]   An identification card bearing Cruz’s name was found in Gerber’s house after

      the burglary. After receiving the card, officers went to Cruz’s home and found

      property that had been taken from Caylor’s and Gerber’s houses. On August

      11, 2014, the State charged Cruz with two counts of burglary, both Level 4

      felonies, under Cause Number 90C01-1408-F4-1 (F4-1). On August 14, 2014,

      the State filed a Notice of Intent to Seek Habitual Offender Status.


[6]   Subsequently, Cruz and the State executed a plea agreement. Cruz agreed to

      plead guilty to domestic battery in FD-43 and two counts of burglary in F4-1.

      In exchange, the State agreed to dismiss the count of criminal trespass in FD-43

      and the habitual offender enhancements in both cases. Sentencing would be left

      to the discretion of the court, except that the parties agreed that Cruz would pay

      Gerber $1,000 in restitution.


[7]   The trial court accepted the plea agreement and took it under advisement.

      After a sentencing hearing, the court sentenced Cruz to serve three years for

      domestic battery and ten years for each burglary. The sentences were to be

      served consecutively, for an aggregate sentence of twenty-three years. The

      court also ordered Cruz to pay restitution to Gerber. This appeal followed.


[8]   Cruz raises two issues, which we restate as:

      Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 3 of 10
               I.       Whether the trial court abused its discretion in sentencing
                        Cruz.
               II.      Whether Cruz’s sentence is inappropriate in light of the
                        nature of the offense or the character of the offender.

                                      A. Sentencing Discretion
[9]    In general, a trial court may impose any sentence that is authorized by statute

       and complies with the Indiana Constitution. Ind. Code § 35-38-1-7.1 (2014).

       Before sentencing a person for a felony, the court must conduct a hearing and

       issue a statement of the court’s reasons for selecting the sentence it imposed.

       Ind. Code § 35-38-1-3 (1983).

                                                                                                           4
[10]   Sentencing decisions are reviewed on appeal only for an abuse of discretion.

       Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014). An abuse of discretion occurs if 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. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218 (2007).


[11]   A trial court may abuse its sentencing discretion by, among other

       circumstances: (1) failing to enter a sentencing statement at all; (2) entering a



       4
        In 2014, the Indiana General Assembly substantially revised Indiana’s criminal laws, including the
       classification of, and sentences for, criminal offenses. Cruz committed his burglaries after the revised
       criminal code took effect, so his sentences for those offenses are subject to the revised statutes. See
       Marley v. State, 17 N.E.3d 335, 340 (Ind. Ct. App. 2014) (“Generally speaking, the sentencing statutes in
       effect at the time the defendant committed the offense govern the defendant’s sentence”), trans. denied.
       Neither party claims that the new criminal code affects our standards of review for resolving sentencing
       claims. To the contrary, both parties cite the well-established standards of review set forth by the
       Indiana Supreme Court. We shall do the same.

       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015            Page 4 of 10
       statement that explains the reasons for imposing a sentence where the record

       does not support the reasons; (3) omitting reasons that are clearly supported by

       the record and advanced for consideration; or (4) citing reasons that are

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


[12]   Cruz argues that the trial court abused its discretion by citing as an aggravating

       factor that Cruz’s act of domestic battery was a “crime of violence” committed

       in the presence of an individual “who is less than 18 years of age and was not

       the victim of the offense.” Tr. p. 34. The State agrees that the trial court erred

       because domestic battery is not a “crime of violence” per the Indiana statute

       that defines that phrase for purposes of sentencing. Appellee’s Br. p. 8 (citing

       Ind. Code § 35-50-1-2).


[13]   The State argues that even though one of the aggravating factors cited by the

       trial court is invalid, the Court should still affirm Cruz’s sentence. If a trial

       court has cited an improper aggravating factor, we will remand for resentencing

       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. Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013).


[14]   The trial court identified two other statutory aggravating factors: (1) Cruz’s

       extensive criminal history; and (2) Cruz’s violation of conditions of probation

       or pretrial release. He was released on bond in FD-43 when he committed the

       two burglaries at issue in F4-1. In addition, the trial court accepted “all of the

       non-statutory aggravating factors” the State presented at sentencing. Tr. p. 35.


       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 5 of 10
       The State cited as non-statutory aggravating factors: (1) Cruz poses a high risk

       to reoffend; (2) Cruz is in arrears on child support; (3) Cruz continues to abuse

       alcohol and controlled substances; and (4) despite pleading guilty, Cruz

       attempted to dodge responsibility for his crimes. It appears that the trial court

       also found as an aggravating circumstance of the burglaries that Cruz “had

       contact with both of the victims before the crimes occurred.” Id. at 35. The

       court also noted that Cruz’s burglaries had multiple victims, stating: “I don’t

       know why you get a break because you commit two different burglaries in short

       proximity to each other. You shouldn’t. You committed two different

       burglaries, two different victims . . . .” Id. at 36. Cruz does not challenge any

       of these aggravating factors on appeal.


[15]   As for mitigating factors, the court determined that Cruz’s guilty plea was a

       mitigating factor but did not “place much weight on” it because the evidence

       against Cruz was strong and he received a significant benefit from the plea

       agreement. Id. at 35.


[16]   In addition, the record is clear that the trial court was initially inclined to give

       Cruz a more severe sentence than the twenty-three-year sentence that was

       ultimately imposed. The court stated, “I’m having a hard time not figuring out

       how I shouldn’t accept the State’s recommendation that you get 27 years for

       these offenses.” Id. Considering the numerous unchallenged aggravating

       circumstances and the trial court’s comments, we are confident that the court

       would have imposed the same sentence even without the invalid aggravating

       circumstance. See Barnhart v. State, 15 N.E.3d 138, 146 (Ind. Ct. App. 2014)

       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 6 of 10
       (remand for resentencing unnecessary because unchallenged aggravators would

       have caused the trial court to impose the same sentence).


[17]   Cruz also argues that the trial court abused its discretion in ordering him to

       serve his burglary sentences consecutively, claiming that the court failed to cite

       an aggravating factor to support that determination. We disagree. The court

       noted that Cruz’s crimes had multiple victims. This is a sufficient aggravating

       factor. See Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) (“Whether the

       counts involve one or multiple victims is highly relevant to the decision to

       impose consecutive sentences if for no other reason than to preserve potential

       deterrence of subsequent offenses”). The trial court did not abuse its discretion.


                                 B. Appropriateness of Sentence
[18]   Cruz argues that neither the nature of his crimes nor his character justifies a

       twenty-three-year aggregate sentence. He does not propose a specific sentence

       reduction.


[19]   A sentence may be revised on appeal, even where a trial court sentences a

       defendant within its discretion and in a manner authorized by statute, if the

       appellant demonstrates the sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Conley v. State, 972 N.E.2d 864, 876

       (Ind. 2012) (citing Ind. Appellate Rule 7(B)).


[20]   Sentence review under Appellate Rule 7(B) is “very deferential to the trial

       court.” Id. Our principal role is to “leaven the outliers” rather than necessarily

       achieve a perceived “correct” result. Id. In determining whether a sentence is
       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 7 of 10
       inappropriate, the court looks at the culpability of the defendant, the severity of

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

       given case. Moss v. State, 13 N.E.3d 440, 447 (Ind. Ct. App. 2014), trans. denied.


[21]   We first note Cruz’s sentence. At the time he committed domestic battery, the

       minimum sentence for a Class D felony was six months, the maximum

       sentence was three years, and the advisory sentence was one and one-half years.

       Ind. Code § 35-50-2-7 (2013). At the time he committed his burglaries, the

       minimum sentence for a Level 4 felony was two years, the maximum sentence

       was twelve years, and the advisory sentence was six years. Ind. Code § 35-50-2-

       5.5 (2014). Cruz received the maximum sentence for domestic battery and ten

       years for each burglary, all to be served consecutively, for an aggregate sentence

       of twenty-three years.


[22]   Turning to the nature of the offenses, Cruz struck his wife while they were

       visiting friends. The child that witnessed the battery was only nine years old,

       which is far younger than the maximum age of eighteen years allowed by

       statute. Cruz was intoxicated. In addition, although Cruz pleaded guilty, he

       claimed that he struck his wife only after she “came at [him]” and that he had

       previously warned her not to “get[ ] in his face.” Appellant’s App. p. 294.

       Such statements indicate that Cruz has not taken responsibility for his

       misconduct.


[23]   As for the burglaries, Cruz chose victims he knew. The victims were

       particularly vulnerable. Caylor was not living in her home at the time of the


       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 8 of 10
       burglary due to fire damage. Similarly, Gerber was incarcerated and was not at

       his home. Cruz was intoxicated when he committed the burglaries, and at that

       time he was free on bond in FD-43. Finally, although Cruz pleaded guilty to

       both burglaries, he insisted that he was only a lookout for others who broke into

       the homes. Cruz’s identification card was found in Gerber’s house, and the

       vast majority of the stolen goods were found in his possession. In light of this

       evidence, Cruz’s claim to have been a mere lookout further indicates that he has

       not taken responsibility for his actions.


[24]   Cruz argues that the overall value of the stolen items was minimal and that

       most of them were returned to their owners. While this is true, we find it

       troubling that Cruz stole a sizable quantity of alcohol from Caylor’s home

       because abuse of alcohol has played a major role in Cruz’s criminal history.


[25]   Turning to the character of the offender, Cruz was forty-three years old at

       sentencing. He has eight prior felony convictions, including two for burglary,

       unauthorized use of a vehicle, delivery of marijuana, two for operating a vehicle

       with an ACE of .08 or more, domestic battery, and operating a vehicle after

       being adjudged an habitual traffic offender. He also has misdemeanor

       convictions for possession of marijuana, assault, tampering with government

       records, operating while intoxicated with a previous conviction, resisting law

       enforcement, and operating a vehicle with an ACE of .15 or more. He steadily

       accrued his convictions over time, apparently unable to go longer than five

       years without committing new crimes. It is significant that Cruz has committed



       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 9 of 10
       burglary and domestic battery in previous cases, demonstrating that he is

       unwilling to reform.


[26]   Cruz violated the terms of probation in four different cases. His repeated

       failures to take advantage of probation demonstrate that leniency has not

       worked. In addition, Cruz has been in treatment for substance abuse on three

       separate occasions, but he continues to abuse alcohol, which played a role in his

       current crimes.


[27]   Cruz claims that he has a steady employment history and cooperated with

       authorities investigating the burglaries. His laudable work record did not deter

       him from committing the present, serious offenses. Furthermore, by the time

       Cruz spoke with the officers about the burglaries, they had already discovered

       the stolen property at his home. Thus, his “cooperation” amounted to little

       more than a confession in the face of substantial evidence. Cruz has failed to

       demonstrate that his twenty-three-year sentence is inappropriate in light of the

       nature of the offenses or his character.


[28]   For the reasons stated above, we affirm the judgment of the trial court.


[29]   Affirmed-Sullivan, Senior Judge


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 90A05-1501-CR-13 | June 3, 2015   Page 10 of 10
