MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Aug 15 2017, 5:42 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zaccheus Ryan Ward,                                      August 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1702-CR-371
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Steven P. Meyer, Judge
                                                         Trial Court Cause No.
                                                         79D02-1611-F5-158



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017         Page 1 of 8
[1]   Zaccheus Ryan Ward (“Ward”) entered a plea of guilty to intimidation1 as a

      Level 5 felony and battery2 as a Class B misdemeanor and admitted to being a

      habitual offender.3 The trial court ordered an aggregate eight year sentence, of

      which one year was suspended to probation and seven years were ordered

      executed at the Department of Correction—with the last two years to be served

      with Tippecanoe County Community Corrections. On appeal, Ward contends

      that his sentence is inappropriate in light of the nature of the offense and the

      character of the offender. Concluding that his sentence is not inappropriate, we

      affirm.


                                       Facts and Procedural History
[2]   In November 2016, Ward entered a laundromat located in Lafayette, Indiana,

      and encountered Samantha Deck (“Deck”), Aryn Muller (“Muller”), and

      William Robinson (“Robinson”), who were doing their laundry. Ward went up

      to Deck, put his arm around her, touched her buttocks, put his hand between

      her legs, and touched her genital area. Deck told Ward to leave, which he did.

      Soon thereafter, Ward returned and stood very close to Deck, who again told

      him to leave. Ward left the laundromat just for a moment, and when he

      returned, he asked Deck to fold a sweater for him. To appease Ward, Deck

      folded the sweater. As Ward continued to get ever closer to Deck, she pointed




      1
          See Ind. Code § 35-45-2-1(a)(2).
      2
          See Ind. Code § 35-42-2-1(c)(l).
      3
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 2 of 8
      her finger at him and told him to get away from her. Ward slapped Deck in the

      face. This prompted Robinson to approach Ward, who pulled out a knife and

      began walking around the laundromat, holding the knife up. Directing his

      comments to Deck, Muller, and Robinson, Ward said “I’ll cut you.” Appellant’s

      App. Vol. II at 38.


[3]   After Ward left the laundromat, Deck went outside to smoke a cigarette.

      Ward, who was just down the street, saw Deck and walked over to where she

      was smoking, took the cigarette from her mouth, and squeezed her face. Ward

      then slapped Deck in the face and walked away. Officers of the Lafayette

      Police Department responded to the scene and, while searching the area around

      the laundromat, found Ward in the middle of the road. Ward was arrested for

      obstructing traffic, and during a search incident to his arrest, officers found on

      his person a pocket knife and a utility tool with a knife blade.


[4]   The State filed an information charging Ward with Level 5 felony intimidation,

      Level 6 felony criminal recklessness, Class B misdemeanor battery, and Class B

      misdemeanor obstruction of traffic. The State also alleged that Ward was a

      habitual offender. At the time of charging, Ward was on probation for battery

      of a public safety official and false informing, crimes for which he had been

      convicted and sentenced just the week before. In December 2016, pursuant to

      the terms of a written plea agreement, Ward agreed to plead guilty to

      intimidation and battery and to admit to being a habitual offender. The State

      also agreed to dismiss the remaining counts at sentencing.



      Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 3 of 8
[5]   During sentencing, the trial court found the following as mitigating factors,

      Ward’s guilty plea, his remorse, and his issues with drug and alcohol abuse. Tr.

      Vol. II at 50. However, the trial court tempered the mitigating weight of Ward’s

      substance abuse issues because he had numerous opportunities to get treatment

      while incarcerated as both a juvenile and an adult and had not been successful.

      Id. at 50-51. As to aggravating factors, the court found the following: Ward’s

      criminal history; Ward was on probation at the time of the commission of the

      offense; he committed this offense within a week of being sentenced on prior

      criminal charges; he has been unsuccessfully released from probation; the

      repetitive nature of this offense with prior acts of violence; and prior attempts at

      rehabilitation have failed. The trial court also noted a finding of the probation

      department—that Ward was a high risk to reoffend. Id. at 38, 52.


[6]   The trial court found the aggravating factors outweighed the mitigating factors

      and sentenced Ward to a term of six years for intimidation and 180 days for

      battery, and ordered those sentences to run concurrent with each other. Upon

      Ward’s admission to being a habitual offender, the trial court enhanced the

      intimidation sentence by two years, for an aggregate sentence of eight years, of

      which one year was suspended to probation and seven years were ordered

      executed at the Department of Correction—with the last two years to be served

      with Tippecanoe County Community Corrections. Appellant’s App. Vol. II at 15.

      Ward now appeals.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 4 of 8
                                     Discussion and Decision
[7]   Article VII, Sections 4 and 6 of the Indiana Constitution authorize independent

      appellate review and revision of criminal sentences. Trainor v. State, 950 N.E.2d

      352, 355 (Ind. Ct. App. 2011), trans. denied. This authority is implemented by

      Indiana Appellate Rule 7(B) which provides, “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 character of the offender.” The question under Appellate Rule 7(B) is

      not whether another sentence is more appropriate; rather, the question is

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

      268 (Ind. Ct. App. 2008). It is the defendant’s burden on appeal to persuade the

      reviewing court that the sentence imposed by the trial court is inappropriate.

      Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[8]   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 v. State, 895 N.E.2d 1219, 1222 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. 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.




      Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 5 of 8
[9]   Ward argues that his sentence was inappropriate in light of the nature of his

      offenses and his character. Review of a sentence for inappropriateness begins

      with a comparison between the advisory sentence and the defendant’s actual

      sentence. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g

      875 N.E.2d 218 (2007). A Level 5 felony’s sentencing range is between one and

      six years with a three-year advisory sentence. Ind. Code § 35-50-2-6. The

      habitual offender enhancement increases a Level 5 felony sentence by two to six

      years. I.C. § 35-50-2-8. A Class B misdemeanor battery sentence is limited to

      not more than 180 days. I.C. § 35-50-3-3. Thus, Ward faced a maximum

      sentence exposure of twelve and a half years, not taking into account the

      charges that were dismissed by agreement because he pleaded guilty pursuant to

      a plea agreement. The trial court sentenced Ward to an aggregate term of eight

      years, and suspended one of those years to probation. The remaining seven

      years were ordered executed at the Department of Correction—with the last

      two years to be served with Tippecanoe County Community Corrections.

      Thus, not only is Ward’s sentence well under the maximum sentencing range of

      twelve and a half years, it is also not fully executed and two years of it are to be

      served in Community Corrections.4 See Jenkins v. State, 909 N.E.2d 1080, 1084-



      4
        In 2009, this court “was not in full agreement regarding whether to review [a defendant’s] partially-
      suspended advisory sentence the same as if it were a fully-executed advisory sentence.” Davidson v. State, 926
      N.E.2d 1023, 1024 (Ind. 2010). Subsequently, our Supreme Court decided that, since a sentence can include
      probation, home detention, placement in community corrections, among other options, “[t]hese other penal
      tools form an integral part of the actual aggregate penalty faced by a defendant and are thus properly
      considered as part of the sentence subject to appellate review and revision.” Sharp v. State, 970 N.E.2d 647,
      650 (Ind. 2012).



      Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017              Page 6 of 8
       86 (Ind. Ct. App. 2009) (finding that a sentence including alternatives to prison

       is less harsh than a fully-executed sentence), trans. denied.


[10]   As to the nature of the offense, Ward contends that his conduct was no more

       than that needed to establish the essential elements of the crimes to which he

       pleaded guilty. Appellant’s Br. at 6. We disagree. Proof of intimidation requires

       that the defendant communicate a threat to another individual to place the

       individual in fear of retaliation for a prior lawful act, and the offense is

       enhanced to a Class 5 felony if the defendant draws or uses a deadly weapon

       while making the threat. See I.C. § 35-45-2-1. Ward threatened three people

       with a knife in retaliation for them asking to be left alone. He did not just draw

       the knife, but waved it around and, directing his conversation to Deck, Muller,

       and Robinson, said, “I’ll cut you.” Appellant’s App. Vol. II at 38. A Class B

       misdemeanor battery requires that Ward touch another person in a rude

       insolent, or angry manner. I.C. § 35-42-2-1. Here, Ward touched Deck’s

       buttocks and genital area when he first approached her and slapped her twice in

       the face, once inside the laundromat and once outside. Ward also walked up to

       Deck, removed a cigarette from her mouth, and grabbed her face. Appellant’s

       App. Vol. II at 38. Ward committed battery against Deck multiple times. Thus,

       the nature of Ward’s offenses was far more egregious than necessary to just

       prove the offenses. The nature of the offenses does not warrant a revision of

       Ward’s sentence.


[11]   “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history.” Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 7 of 8
       App. 2015), trans. denied. “The significance of criminal history varies based on

       the gravity, nature, and number of prior offenses in relation to the current

       offense.” Id. Ward, who was twenty-five years old at the time of sentencing,

       was on probation at the time he committed the instant offenses, having been

       convicted of and sentenced for two other offenses just one week prior. In all,

       Ward had at least six juvenile delinquency adjudications, four misdemeanor

       convictions, and three felony convictions, which were used to support his

       habitual offender enhancement. Ward’s adjudications as a delinquent child

       included fraud, escape, habitual disobedience of parent or guardian, theft,

       delinquency alcohol violation, and burglary. Ward’s misdemeanor convictions

       included conversion, public intoxication, disorderly conduct, and false

       informing. Finally, his felony convictions included burglary, residential entry,

       and battery against a public safety official. Furthermore, numerous petitions to

       revoke probation had been filed against Ward, five of which were found to be

       true and two of which were pending at the time of sentencing. Ward’s sentence

       was not inappropriate in light of his character. Ward has not met his burden of

       persuading us that his sentence is inappropriate in light of the nature of his

       offenses or his character.


[12]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1702-CR-371 | August 15, 2017   Page 8 of 8
