Pursuant to Ind. Appellate Rule 65(D),

                                                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                          Mar 29 2012, 9:17 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
case.                                                             of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MARCE GONZALEZ, JR.                              GREGORY F. ZOELLER
Dyer, Indiana                                    Attorney General of Indiana

                                                 ANDREW R. FALK
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JESSE MICHAEL VILLAREAL, JR.,                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 45A04-1107-CR-337
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                    The Honorable Susan M. Severtson, Judge Pro Tempore
                               Cause No. 45G02-0807-FC-97


                                      March 29, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Jesse Michael Villareal, Jr., appeals his convictions of battery, a Class C felony,

Ind. Code § 35-42-2-1 (2008), and invasion of privacy, a Class A misdemeanor, Ind.

Code § 35-46-1-15.1 (2008). Villareal also appeals his sentence for battery. We affirm.

                                         ISSUES

       Villareal raises two issues, which we restate as:

       I.     Whether the trial court abused its discretion by denying his motion for
              mistrial.

       II.    Whether his sentence for battery is inappropriate.

                        FACTS AND PROCEDURAL HISTORY

       In the early morning hours of July 10, 2008, Melinda Milton was sleeping at

Villareal’s house in Hammond, Indiana. Villareal was not home when Milton went to

sleep. In fact, Milton had obtained a protective order against Villareal. Two of Milton’s

children were also sleeping at the house. Villareal is the father of one of the children. In

addition, Milton’s cousin, Nicole Silva, was staying at the house that night with several

of her children.

       When Villareal entered the house early that morning, Silva texted a prearranged

message to a friend. The friend contacted the police. Meanwhile, Villareal went to

Milton’s bedroom and awakened her by dragging her off of the bed by her hair. Villareal

called Milton a “whore” and kicked her repeatedly in her face, the back of her head, and

her torso. Tr. p. 114. Next, Villareal left Milton’s bedroom and returned a short while

later. Villareal called Milton a whore again and spat in her face.


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       At that point, Milton and Villareal’s child woke in a bassinet in the living room.

Milton went to the kitchen to prepare a bottle, and Villareal followed her. Villareal

picked up a chair and hit Milton in the back, causing the chair to break. Next, Villareal

picked up a knife and threatened to kill Milton. Milton, believing that Villareal would

carry out his threat, crawled under the kitchen table.

       Next, Officer Shane Hric arrived at the house. As he approached, Hric heard

shouting and crying through the house’s open windows. Officer Gabriel Malave arrived

next, and Villareal noticed the officers’ presence. Milton came to a window and pleaded

for help. Hric saw that Milton’s face was covered in blood, she had swelling around her

mouth and nose, and she had “a large, probably golf ball size lump above her left eye.”

Id. at 176. Villareal also came to the window, and the officers drew their guns. Villareal

shouted at the officers, telling them to shoot him. Milton again asked the officers for

help, and Villareal said, “Bitch, I’ll kill you.” Id. at 177. The officers attempted to enter,

but the front door was blocked shut by a couch. The officers persuaded Villareal to move

the couch, and they entered the home and took him into custody. Hric saw blood on the

kitchen floor and on a refrigerator. He also saw a broken chair in the kitchen.

       Milton was taken to a hospital for treatment. At the hospital, staff noted that

Milton had abrasions and contusions on her head, face, abdomen, back, right leg, and left

arm. Milton complained of severe pain. She told hospital personnel that her boyfriend

attacked her and that “he should be in jail.” Tr. Vol. 5, Ex. 49A. In a report, a hospital

employee noted that Milton expressed a fear that “if he bonds out[,] he will kill her.” Id.



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       The State charged Villareal with two counts of battery, both Class C felonies, Ind.

Code § 35-42-2-1, for attacking Milton; domestic battery, a Class D felony, Ind. Code §

35-42-2-1.3 (2006), for attacking Milton where a child less than sixteen years of age was

present and might be able to hear or see the offense; invasion of privacy, a Class A

misdemeanor, Ind. Code § 35-46-1-15.1, for violating Milton’s protective order; and

other charges not at issue here.

       Villareal’s case was tried to a jury. Before the presentation of evidence began,

Villareal moved in limine to keep the State from submitting evidence of Villareal’s prior

or subsequent bad acts.     The trial court granted the motion.     During the trial, the

following discussion occurred during Hric’s testimony:

       STATE:        Did Melinda Milton provide you with any other information?

       HRIC:         She continued to say that he had entered the house through a
                     broken front door, which occurred at a previous incident to
                     her knowledge.

Tr. p. 193. Villareal moved for a mistrial, contending that Hric had violated the order in

limine. The trial court denied the motion, concluding that the testimony did not violate

the order.

       The jury found Villareal guilty of the first count of battery as a Class A

misdemeanor, guilty of the second count of battery as a Class C felony, guilty of

domestic battery, and guilty of invasion of privacy.      The court declined to enter a

judgment of conviction on the Class A misdemeanor battery and domestic battery

verdicts, citing double jeopardy concerns. Instead, the court entered a judgment of

conviction on the guilty verdicts for Class C felony battery and invasion of privacy. The

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court sentenced Villareal to an aggregate term of six years, with two years suspended to

probation. This appeal followed.

                             DISCUSSION AND DECISION

                              I. MOTION FOR MISTRIAL

       Villareal contends that Hric’s testimony that Milton had told him that the front

door had been broken during “a previous incident” was an impermissible reference to

other crimes, wrongs, or acts by Villareal in violation of Indiana Evidence Rule 404(b).

Tr. p. 193. Consequently, he concludes that the trial court should have granted his

request for a mistrial.

       We review the trial court’s decision to deny a mistrial for an abuse of discretion

because the trial court is in the best position to gauge the surrounding circumstances of an

event and its impact on the jury. Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008). A

mistrial is appropriate only when the questioned conduct is so prejudicial and

inflammatory that the defendant was placed in a position of grave peril to which he or she

should not have been subjected. Id. The gravity of the peril is measured by the conduct’s

probable persuasive effect on the jury. Id. The defendant bears the burden on appeal to

show that he or she was placed in grave peril by denial of the motion for mistrial. Myers

v. State, 887 N.E.2d 170, 189 (Ind. Ct. App. 2008), trans. denied.

       Here, Hric did not describe the previous incident that resulted in damage to the

front door. In addition, he did not accuse Villareal of breaking the door or suggest that

Villareal was in any way involved in the previous incident. Hric’s passing reference to

the front door already being broken at the time of the crimes at issue must be weighed

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against the substantial evidence establishing Villareal’s guilt. Milton’s statement to the

police, which described Villareal’s attack upon her as set forth above, was read into

evidence.1 In addition, the jury was provided with photographs showing Milton’s injuries

on the morning of the attack.         Hric and Malave described Villareal’s and Milton’s

appearances and actions. Furthermore, the jury was provided with Milton’s medical

records. The records indicate that Milton told hospital staff that her boyfriend had

assaulted her. In light of this substantial evidence, Hric’s general reference to a prior

incident would not have had a probable persuasive effect on the jury’s decision.

       Villareal cites to Underwood v. State, 644 N.E.2d 108 (Ind. 1994), and Palmer v.

State, 640 N.E.2d 415 (Ind. Ct. App. 1994), but those cases do not support his argument.

To the contrary, in both cases the appellate court determined that the trial court did not

err by denying the defendants’ motions for mistrial. In this case, Villareal has not

demonstrated that he was placed in grave peril, and the trial court did not abuse its

discretion by denying the motion for mistrial.

                          II. APPROPRIATENESS OF SENTENCE

       Villareal contends that he should have received the advisory sentence for his

battery conviction and asks this Court to reduce his sentence. His claim is governed by

Indiana Appellate Rule 7(B), which provides, in relevant part, “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

1
  At trial, Milton stated that she was unable to remember who had attacked her because she was
intoxicated on the morning in question. Consequently, the State produced a written, signed statement
Milton had given to the police on July 10, 2008, and read the statement into the record.
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character of the offender.” In making this determination, we may look to any factors

appearing in the record. Calvert v. State, 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). A

defendant must persuade the appellate court that the sentence meets the inappropriateness

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

       We first look to the statutory range established for the class of the offense. The

statutory range for a Class C felony is between two and eight years, with the advisory

sentence being four years. Ind. Code § 35-50-2-6 (2005). Villareal received a sentence

of five years for his battery conviction, to be served consecutively with a one-year

sentence for his conviction of invasion of privacy, for a total of six years, with two years

suspended to probation.

       We next look to the nature of the offense and the character of the offender. The

nature of the offense is found in the details and circumstances of the commission of the

offense and the defendant’s participation. See Treadway v. State, 924 N.E.2d 621, 642

(Ind. 2010) (noting that the defendant’s crimes were “horrific and brutal”). The character

of the offender is found in what we learn of the offender’s life and conduct. See Lindsey

v. State, 916 N.E.2d 230, 241-42 (Ind. Ct. App. 2009) (reviewing the defendant’s

criminal history, probation violations, and history of misconduct while incarcerated),

trans. denied.

       Our review here of the nature of the offense shows that Villareal brutally

ambushed Milton as she slept. He pulled her off of her bed by her hair and kicked her

repeatedly in the head and torso. Villareal also spat in her face several times. Next, as

Milton was preparing a bottle for their child, Villareal struck her with a chair with

                                             7
sufficient force to break the chair. Furthermore, he threatened Milton with a knife and

said that he would kill her, placing her in fear for her life. When the police arrived,

Milton’s face was covered in blood, she had obvious facial injuries, and she repeatedly

pleaded for help.    Milton experienced severe pain from Villareal’s assault, and her

injuries required medical treatment. It speaks poorly of Villareal that he had several

chances to end his attacks on Milton but chose not to do so until the police arrived.

Villareal’s extended, terrifying assault demonstrates a complete lack of regard for others.

       Our review here of the character of the offender shows that Villareal, who was

twenty-one years of age at sentencing, has a limited criminal history. He has two

juvenile adjudications, one for auto theft, fleeing law enforcement, and consumption of

alcohol, and the second for burglary. He has accrued no adult convictions. Nevertheless,

Villareal was placed on probation in one of his juvenile cases, and he violated the terms

of his probation. In addition, he had been released on bond in another case at the time of

his arrest in the current case. Finally, at the time of sentencing in this case, Villareal had

two protective orders filed against him. Villareal’s failure to comply with probation

requirements and to avoid further legal entanglements while out on bond demonstrates

that an enhanced sentence is not inappropriate.

       Villareal asserts that the trial court improperly considered his arrest record in the

course of sentencing him and that this Court should disregard those arrests. We disagree.

When we evaluate the character of an offender, it is proper to consider past arrests even if

some of them did not result in convictions. See Boggs v. State, 928 N.E.2d 855, 870-71

(Ind. Ct. App. 2010) (noting that a record of arrests may reveal that a defendant has not

                                              8
been deterred even after having been subject to the police authority of the State on

multiple occasions), trans. denied. In any event, Villareal’s failure to respond positively

to probation, commission of the current crimes while out on bond, and pending protective

orders at the time of the crimes at issue provide sufficient evidence of his refusal to

comply with the law.

       Given the nature of Villareal’s offenses and his character, he has failed to persuade

us that his enhanced sentence for battery is inappropriate.

                                     CONCLUSION

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

       Affirmed.

MAY, J., and BRADFORD, J., concur.




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