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
                                                                  Apr 04 2013, 9:26 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.



ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

JAMES D. CRUM                                         GREGORY F. ZOELLER
Coots Henke & Wheeler, P.C.                           Attorney General of Indiana
Carmel, Indiana

                                                      JONATHAN R. SICHTERMANN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AARON LEE ANDERSON, III,                              )
                                                      )
        Appellant-Defendant,                          )
                                                      )
               vs.                                    )     No. 29A02-1208-CR-694
                                                      )
STATE OF INDIANA,                                     )
                                                      )
        Appellee-Plaintiff.                           )


                     APPEAL FROM THE HAMILTON CIRCUIT COURT
                             The Honorable Paul Felix, Judge
                             Cause No. 29C01-1201-FB-649


                                            April 4, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Aaron Anderson appeals his conviction and sentence for Class B felony unlawful

possession of a firearm by a serious violent felon. We affirm.

                                         Issues

       Anderson raises two issues, which we restate as:

            I.   whether the evidence is sufficient to sustain his conviction
                 for Class B felony unlawful possession of a firearm by a
                 serious violent felon; and

           II.   whether his sixteen-year sentence is inappropriate in light
                 of the nature of the offense and the character of the
                 offender.

                                          Facts

       On January 22, 2012, Sergeant Robert Dine of the Westfield Police Department

initiated a traffic stop of a vehicle that had a headlight out. As soon as the vehicle

stopped, the front seat passenger opened the door and ran. Sergeant Dine recognized the

passenger as Anderson and yelled for him to stop. Anderson continued to run, and

Sergeant Dine chased him. However, Sergeant Dine lost sight of Anderson at the corner

of Jersey Street and Poplar Street.

       Valerie Steffen lived on Poplar Street and was standing on her back deck while

she was taking her dog outside. Steffen heard shouts and saw Anderson running. A few

seconds later, she heard a “thump, thump, thump” near her. Tr. p. 103. Anderson was

found hiding in a nearby backyard shed, and Steffen reported the noise to officers.

Anderson smelled of marijuana and told the officers that he had thrown out a bag of

marijuana as he was running. The officers searched the area but were unable to locate the

                                            2
marijuana. Marijuana was, however, found on Anderson’s person when he was searched

at the jail. Approximately an hour later, Steffen went onto her back deck again and saw a

firearm in a pile of snow on her deck. She contacted the officers again, and they

retrieved the loaded weapon.

       The State charged Anderson with Class B felony unlawful possession of a firearm

by a serious violent felon, Class C felony carrying a handgun without a license, Class A

misdemeanor possession of marijuana, Class A misdemeanor carrying a handgun without

a license, and Class A misdemeanor resisting law enforcement. After a bifurcated jury

trial, the jury found Anderson guilty as charged.

       The trial court sentenced Anderson to concurrent sentences of sixteen years for the

Class B felony unlawful possession of a firearm by a serious violent felon conviction,

364 days for the Class A misdemeanor possession of marijuana conviction, and 364 days

for the Class A misdemeanor resisting law enforcement conviction. The trial court did

not enter judgments of conviction on the remaining guilty verdicts due to double jeopardy

concerns.

                                         Analysis

                               I. Sufficiency of the Evidence

       Anderson argues that the evidence is insufficient to sustain his conviction for

Class B felony unlawful possession of a firearm by a serious violent felon. When

reviewing the sufficiency of the evidence needed to support a criminal conviction, we

neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,

1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any

                                             3
reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there

is substantial evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt. Id. A conviction may be

based purely on circumstantial evidence. Hayes v. State, 876 N.E.2d 373, 375 (Ind. Ct.

App. 2007), trans. denied. “On appeal, the circumstantial evidence need not overcome

every reasonable hypothesis of innocence.” Id. It is enough if an inference reasonably

tending to support the conviction can be drawn from the circumstantial evidence. Id.

       The offense of unlawful possession by a serious violent felon is governed by

Indiana Code Section 35-47-4-5, which provides: “A serious violent felon who

knowingly or intentionally possesses a firearm commits unlawful possession of a firearm

by a serious violent felon, a Class B felony.” According to Anderson, there is no

substantial evidence that he was in possession of the firearm found on Steffen’s deck.

The State argues that the facts here are similar to those in Peters v. State, 959 N.E.2d 347,

355-56 (Ind. Ct. App. 2011), in which we found sufficient evidence to sustain the

defendant’s conviction for unlawful possession of a firearm by a serious violent felon.

       In Peters, the State presented evidence that the defendant ran with his hands in his

pockets during a foot pursuit with an officer. A gun was later found on the roof of a

church, in an area where the officer could not see the defendant during the foot pursuit

and where the markings in the snow suggested the defendant had fallen down. The

defendant had .9mm bullets in his pocket when he was arrested, and the gun was a .9mm

Glock. The gun had been reported stolen by a person who lived in Columbus, Ohio, and

the defendant lived in Columbus, Ohio. Based on this evidence, we concluded that the

                                             4
jury reasonably could have inferred the defendant had possessed the gun found on the

roof of the church.

       Here, the State demonstrated that Anderson was a passenger in a vehicle stopped

by Sergeant Dine. Anderson ran from the vehicle, and Sergeant Dine chased him.

Steffen was standing on her deck when Anderson ran past. A couple of seconds later,

Steffen heard a “thump, thump, thump” near her. Tr. p. 103. Anderson told officers that

he threw a bag of marijuana, but they were unable to locate the marijuana until they

searched Anderson at the jail. Approximately one hour later, Steffen noticed a gun in a

pile of snow on her deck.

       Anderson argues that Peters is distinguishable because the defendant there had

bullets in his pocket and the gun was stolen from his hometown. Despite some factual

differences between this case and Peters, we conclude that the evidence is sufficient to

show that Anderson was in possession of the weapon. A jury could have reasonably

inferred from the evidence that Anderson threw the loaded gun onto Steffen’s roof and

that it fell into the snow pile on her deck. Although Anderson was not seen with the gun,

the circumstantial evidence was sufficient to sustain his conviction.

                                II. Inappropriate Sentence

       Anderson argues that his sixteen-year sentence is inappropriate in light of the

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

provides that we may revise a sentence authorized by statute if, after due consideration of

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

of the offense and the character of the offender. When considering whether a sentence is

                                             5
inappropriate, we need not be “extremely” deferential to a trial court’s sentencing

decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must

give due consideration to that decision. Id. We also understand and recognize the unique

perspective a trial court brings to its sentencing decisions. Id. Under this rule, the burden

is on the defendant to persuade the appellate court that his or her sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

         The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of the offense is that Anderson ran from police officer through a

residential neighborhood. Steffen saw Anderson running and heard a noise near her.

When the officers found Anderson, he claimed to have thrown a bag of marijuana while

he was running. Instead, some marijuana was found in his boxer shorts during a search at

the jail. An hour later, Steffen found a loaded gun in a pile of snow on her deck.

Anderson argues that his discarding of the gun shows that he did not mean to harm

                                              6
anyone.    We disagree.     His act of throwing a loaded handgun in a residential

neighborhood endangered many people.

       As for Anderson’s character, although he is only twenty-eight years old, he has a

substantial criminal history. As a juvenile, Anderson was found delinquent for acts that

would be criminal mischief, possession of alcohol by a minor, and possession of a

controlled substance. He has adult convictions for Class B felony robbery, Class D

felony escape, and two convictions for Class A misdemeanor resisting law enforcement.

During his incarcerations, Anderson received numerous conduct reports, including some

for major offenses. After his release from incarceration, Anderson violated work release,

probation, or parole seven times during a six-year period.        During his current jail

incarceration, he had several write-ups for unauthorized communication, fighting, and

threatening jail staff. The trial court acknowledged that Anderson seemed remorseful and

determined to change his behavior.

       Based on Anderson’s criminal history, the trial court concluded that an aggravated

sentence was proper. Given Anderson’s criminal history, we cannot say that the sixteen-

year sentence imposed by the trial court was inappropriate in light of the nature of the

offense and the character of the offender.

                                       Conclusion

       The evidence is sufficient to sustain Anderson’s conviction for Class B felony

unlawful possession of a firearm by a serious violent felon. Further, we cannot say that

Anderson’s sixteen-year sentence is inappropriate in light of the nature of the offense and

the character of the offender. We affirm.

                                             7
      Affirmed.

BAKER, J., and RILEY, J., concur.




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