 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,               Oct 14 2014, 9:46 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
JAY RODIA                                            GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     JESSE R. DRUM
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BRANDON EARTHMAN,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 49A04-1404-CR-147
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPREME COURT
                          The Honorable Marc T. Rothenberg, Judge
                             Cause No. 49G02-1307-FB-44856


                                          October 14, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge
                                      Case Summary

       Brandon Earthman received a twelve-year sentence for his role in a robbery.

Earthman now appeals, arguing that the evidence is insufficient to support his conviction

and his sentence is inappropriate in light of the nature of the offense and his character.

Because we find the evidence is sufficient to support Earthman’s conviction and his

sentence is appropriate, we affirm the trial court.

                              Facts and Procedural History

       Curtis Rogers left his girlfriend’s house in the early morning hours of July 9, 2013,

and began to walk home. At a gas station on his path home, a man approached him and

asked for a cigarette. Tr. p. 13. When Curtis pulled out a package of cigarettes, two

other men also approached. Id. One of the men, Rodney Pence, grabbed the cigarettes.

Id.   Pence told the defendant, Earthman, and the third man to search Curtis.            Id.

Earthman patted Curtis down, took his backpack, and removed his cell phone and wallet

from his pockets. Id. at 13-14. The men told Curtis not to make any noise; Pence

produced a knife and warned Curtis that “he was going to cut [him].” Id. at 15. They

told Curtis to “walk straight and don’t stop and don’t turn around.” Id. at 18.

       Curtis began to walk away, but he then changed his mind because “he didn’t want

them to get away with taking [his] things,” including his identification card, bank card,

and social-security card. Id. at 18-19. He approached the men to ask for his belongings

back, but when he did, all three men produced knives. Id. at 19, 36, 43. Curtis was

scared and “didn’t say . . . anything much after that.” Id. at 19-20. Pence then told Curtis

to give him his ATM pin. Id. at 20. Curtis gave Pence his pin, and Pence walked across


                                              2
the street to a nearby ATM. Id. While Pence was gone, Earthman and the other man

began to threaten Curtis, saying that they would “burn[] [him] with a cigarette,” “knock[]

[him] out,” and “take[] [him] to an alley and torture[] [him].” Id. at 21. Pence was

unable to withdraw money from the ATM with Curtis’s bank card. Pence told Curtis to

accompany him to another nearby ATM, but Curtis could not withdraw any money

because his account balance was too low. Id. at 27. So the three men left, and Curtis

went back to the gas station to call police. Id. at 28.

       Indianapolis Metropolitan Police Department Officers responded to Curtis’s call

and located Pence walking on foot nearby. Pence had Curtis’s cell phone and cigarettes.

Officers brought Pence to the gas station, and Curtis identified him. Id. at 56. While this

was happening, two men approached Pence and began talking to him. Id. at 57. An

officer realized that one of the men matched Curtis’s description of Earthman, and Curtis

identified the man, Earthman, as one of the robbers. Id. at 59.

       The State charged Earthman with Class B felony robbery, and a jury found him

guilty. At his sentencing hearing, the trial court found twenty-four-year-old Earthman’s

“substantial criminal history”—including felony convictions for criminal confinement

and dealing in marijuana, misdemeanor convictions for domestic battery, invasion of

privacy, resisting law enforcement, theft, and dealing in marijuana, numerous juvenile

adjudications, and probation violations—and his failure to show remorse as aggravating

factors. The court found no mitigating factors. Id. at 114-15. The court sentenced

Earthman to eleven years in the Department of Correction, followed by one year in a

community-corrections program.


                                              3
       Earthman now appeals.

                                   Discussion and Decision

       Earthman contends that the evidence is insufficient to support his conviction and

his sentence is inappropriate in light of the nature of the offense and his character.

                                  I. Sufficiency of the Evidence

       Earthman argues that there is insufficient evidence to support his conviction for

Class B felony robbery. When reviewing the sufficiency of the evidence, we consider

only the probative evidence and reasonable inferences supporting the verdict. Meehan v.

State, 7 N.E.3d 255, 257 (Ind. 2014). It is the fact-finder’s role, not that of appellate

courts, to assess witness credibility and weigh the evidence to determine whether it is

sufficient to support a conviction. Id. Appellate courts will affirm a conviction unless no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id. It is therefore not necessary that the evidence overcome every reasonable

hypothesis of innocence; the evidence is sufficient if an inference may reasonably be

drawn from it to support the verdict. Id.

       To convict Earthman of Class B felony robbery as charged in this case, the State

was required to prove beyond a reasonable doubt that Earthman, while armed with a

deadly weapon, knowingly or intentionally took Curtis’s property by using or threatening

to use force against him or by putting him in fear.1 See Appellant’s App. p. 22-23

(charging information). The force exerted to commit a robbery must be used before the

defendant contemplates taking the property from the victim. Young v. State, 725 N.E.2d

       1
         See Ind. Code Ann. § 35-42-5-1 (West Supp. 2013). Earthman committed the offense before the
amendments to the criminal code took effect in July 2014. The changes to the criminal code do not
impact our analysis.
                                                 4
78 (Ind. 2000). However, our Courts have held that when the robbery and the violence

are so closely connected in point of time, place, and continuity of action, they constitute

one continuous scheme or transaction. Hoover v. State, 918 N.E.2d 724, 733 (Ind. Ct.

App. 2009) (citing Young, 725 N.E.2d at 81), trans. denied.

        Such continuity of action was present in this case. After Pence approached Curtis

and grabbed his package of cigarettes, Pence told Earthman and another man to search

Curtis. Earthman patted Curtis down, took his backpack, and removed his cell phone and

wallet from his pockets. The men told Curtis not to make any noise; Pence produced a

knife and warned Curtis that “he was going to cut [him].” Tr. p. 15. But this was not the

only force threatened: Curtis decided to confront the men and ask for his belongings

back, which presented a problem for the men. As a result, all three men produced knives,

and Pence told Curtis to give him his ATM pin. Curtis was scared and “didn’t say . . .

anything much after that.” Id. at 19-20. When Pence took Curtis’s bank card to a nearby

ATM, Earthman and another man threatened to burn Curtis with a cigarette, knock him

out, and torture him in a nearby alley. Id. at 21. From this, we conclude that the fact-

finder could reasonably find Earthman guilty of Class B felony robbery.

                                    II. Inappropriate Sentence

        Earthman also argues that his sentence is inappropriate.2 The Indiana Constitution

authorizes independent appellate review and revision of a trial court’s sentencing


        2
          In discussing the appropriateness of his sentence, Earthman argues that the trial court failed to
identify and properly weigh certain mitigating factors. Earthman has waived this claim by failing to
provide cogent argument for it. See King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008)
(inappropriate sentence and abuse-of-discretion claims are to be analyzed separately); Ind. Appellate Rule
46(A)(8) (“The argument must contain the contentions of the appellant on the issues presented, supported
by cogent reasoning.”). Waiver notwithstanding, we cannot say that the trial court erred. Even if the
                                                    5
decisions. Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority

through Appellate Rule 7(B), which provides that we may revise a sentence authorized by

statute     if,    after    due   consideration      of    the     trial   court’s   decision,   we    find

the sentence is inappropriate in light of the nature of the offense and the character of the

offender.         Id.      Earthman   bears    the        burden      on    appeal    of   proving     that

his 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. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

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

given case. Id. at 1224. In assessing whether a sentence is inappropriate, appellate courts

may take into account whether a portion of the sentence is ordered suspended or is

otherwise crafted using any of the variety of sentencing tools available to the trial judge.

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). These tools include probation,

home detention, placement in a community-corrections program, executed time in a


court found Earthman’s bipolar diagnosis—the only alleged mitigator argued at sentencing—to be a
mitigator, we can say with confidence that the court would have imposed the same sentence.
See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
The court made it clear in its sentencing statement that Earthman’s significant criminal history and lack of
remorse warranted an enhanced sentence. Moreover, we may not review the weight assigned to
aggravators and mitigators by the trial court. Id. Nonetheless, a court’s description of aggravators and
mitigators is useful to our analysis when reviewing the appropriateness of a defendant’s sentence.
                                                      6
Department of Correction facility, concurrent rather than consecutive sentences, and

restitution/fines. Id.

         At the time of the offense, the sentencing range for a Class B felony was between

six and twenty years, with an advisory sentence of ten years. Ind. Code Ann. § 35-50-2-5

(West Supp. 2013). The trial court sentenced Earthman to eleven years in the DOC and

one year in a community-corrections program. This sentence is within the statutory

range.

         Concerning the nature of the offense, Earthman robbed Curtis while armed with a

knife. Although the offense is not particularly egregious in that the crime was brief and

no one was injured, it is Earthman’s character that supports his sentence: at only twenty-

four years old, Earthman has a significant criminal history, including felony convictions

for criminal confinement and dealing in marijuana as well as misdemeanor convictions

for domestic battery, invasion of privacy, resisting law enforcement, theft, and dealing in

marijuana. Presentence Investigation Report p. 6-9. He has violated probation many

times, and he has juvenile adjudications for what would be robbery, theft, battery, and

disorderly conduct if committed by an adult. Id. at 4-6, 8-9. Even a minor criminal

history reflects negatively on a defendant’s character. Moss v. State, 13 N.E.3d 440, 448

(Ind. Ct. App. 2014) (citation omitted), trans. denied.      Here, despite his numerous

contacts with the criminal-justice system, Earthman has not been discouraged from

engaging     in   criminal   activity.   Earthman   has   failed   to   persuade   us   that

his sentence is inappropriate.

         Affirmed.


                                             7
FRIEDLANDER, J., and MAY, J., concur.




                                        8
