      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                                FILED
      regarded as precedent or cited before any                                       Jun 10 2020, 10:33 am

      court except for the purpose of establishing                                         CLERK
                                                                                       Indiana Supreme Court
      the defense of res judicata, collateral                                             Court of Appeals
                                                                                            and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Cara Schaefer Wieneke                                    Josiah Swinney
      Wieneke Law Office, LLC                                  Deputy Attorney General
      Brooklyn, Indiana                                        Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jesse Atwood,                                            June 10, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2977
              v.                                               Appeal from the Shelby Superior
                                                               Court
      State of Indiana,                                        The Honorable R. Kent Apsley,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               73D01-1808-F5-70



      Najam, Judge.


                                       Statement of the Case
[1]   Jesse Atwood appeals his sentence following his conviction for theft, as a Level

      6 felony. Atwood raises one issue for our review, namely, whether his sentence


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020                       Page 1 of 6
      is inappropriate in light of the nature of the offense and his character. We

      affirm.


                                 Facts and Procedural History
[2]   On August 4, 2018, Christopher Springman was sitting on his porch talking to

      his neighbor and “doing something on his phone.” Tr. Vol. II at 64. At some

      point, Springman walked into his house, but he left his phone outside. While

      Springman was inside, Atwood walked up to Springman’s door, turned around,

      and “forcefully kicked it.” Id. at 69. After he kicked the door open, Atwood

      took one step into the house and “smacked” Springman’s dog. Id. at 70.

      Atwood then left the house and took Springman’s cell phone, which was still on

      the porch. Springman’s daughter attempted to prevent Atwood from leaving,

      but Atwood was able to get away. Springman’s daughter then called 9-1-1 and

      reported that Atwood had stolen Springman’s phone.


[3]   Sergeant Keith England with the Shelbyville Police Department responded to

      the call. When he arrived, he saw Atwood walking away from Springman’s

      house. Sergeant England then spoke with Atwood, and he was able to observe

      that Atwood had a cell phone in his hands. Atwood then informed Sergeant

      England that he had taken the cell phone because it was “interfering with other

      cell phones in the area.” Id. at 83. Atwood also indicated that he believed that

      Springman had child pornography on the phone. During his conversation with

      Atwood, Sergeant England noticed that Atwood was “sweaty” and that he

      “displayed signs of . . . paranoia or irrational thinking,” which Sergeant


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020   Page 2 of 6
      England believed to be consistent with methamphetamine use. Id. at 84. With

      Springman’s consent, officers searched his phone and determined that

      Atwood’s claims regarding child pornography were “unfounded.” Id. at 87.

      Officers then returned the cell phone to Springman.


[4]   The State charged Atwood with one count of theft, as a Class A misdemeanor

      (Count I), and one count of theft, as a Level 6 felony (Count II). 1 Following a

      bifurcated jury trial, the jury found Atwood guilty as charged. At sentencing,

      the court found Count I to be a lesser included offense and entered judgment of

      conviction only on Count II. The court then identified as aggravating factors

      Atwood’s criminal history and the fact that Atwood was charged with new

      offenses while on bond for the instant offense, and the court did not identify

      any mitigators. Accordingly, the court imposed a two-year, fully executed

      sentence. This appeal ensued.


                                        Discussion and Decision
[5]   Atwood contends that his sentence is inappropriate in light of the nature of the

      offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he

      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.” This court




      1
        The State also charged Atwood with intimidation, as a Level 5 felony; residential entry, as a Level 6
      felony, and alleged that he is a habitual offender. However, the State dismissed those charges prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020                        Page 3 of 6
      has recently held that “[t]he advisory sentence is the starting point the

      legislature has selected as an appropriate sentence for the crime committed.”

      Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana

      Supreme Court has recently explained that:


              The principal role of appellate review should be to attempt to
              leaven the outliers . . . but not achieve a perceived “correct”
              result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
              2008). Defendant has the burden to persuade us that the
              sentence imposed by the trial court is inappropriate. Anglemyer v.
              State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
              decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


      Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[6]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented, and the trial court’s judgment “should

      receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

      regard a sentence as inappropriate at the end of the day turns on “our sense of

      the culpability of the defendant, the severity of the crime, the damage done to

      others, and myriad other facts that come to light in a given case.” Id. at 1224.

      The question is not whether another sentence is more appropriate, but rather

      whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

      268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

      overcome by compelling evidence portraying in a positive light the nature of the

      offense (such as accompanied by restraint, regard, and lack of brutality) and the




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020   Page 4 of 6
      defendant’s character (such as substantial virtuous traits or persistent examples

      of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[7]   The sentencing range for a Level 6 felony is six months to two and one-half

      years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b). Here,

      the court identified as aggravating factors Atwood’s criminal history and the

      fact that Atwood was charged with new offenses while on bond. The court did

      not identify any mitigating factors. Accordingly, the court imposed an

      enhanced sentence of two years.


[8]   On appeal, Atwood contends that his sentence is inappropriate in light of the

      nature of the offense because the offense was “very minor,” it “did not appear

      to be motivated by malicious intent,” and the phone was returned to

      Springman. Appellant’s Br. at 8. And Atwood contends that his sentence is

      inappropriate in light of his character because he suffers from depression and

      anxiety and because he experienced a “troubled childhood.” Id. at 9.


[9]   However, Atwood has not met his burden on appeal to demonstrate that his

      sentence is inappropriate. With respect to the nature of the offense, Atwood

      did not simply take Springman’s phone. Rather, during the commission of the

      offense, Atwood “forcefully” kicked in Springman’s door and then “smacked”

      Springman’s dog. Tr. Vol. II at 70. Further, Springman’s daughter “had a hold

      of” Atwood in an attempt to stop him from leaving, but Atwood was able to get

      away. Id. at 71. And, while Springman’s phone was ultimately returned, it was

      not because Atwood returned it; Springman only received his phone back after


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020   Page 5 of 6
       officers took the phone from Atwood. Atwood has not presented compelling

       evidence portraying the nature of the offense in a positive light. See Stephenson,

       29 N.E.2d at 122.


[10]   As to his character, Atwood has a lengthy criminal history that includes six

       prior felony convictions and eight prior misdemeanor convictions. Further,

       Atwood has been given several opportunities to avoid incarceration in the past

       through alternative sentences, but he continues to commit crimes. Indeed,

       while on bond for the instant offense, Atwood was charged with four new

       offenses, one of which resulted in a new conviction. We cannot say that

       Atwood’s sentence is inappropriate in light of his character. We therefore

       affirm Atwood’s sentence.


[11]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2977 | June 10, 2020   Page 6 of 6
