MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Apr 26 2017, 6:34 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
Ryan M. Gardner                                          Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse R. Miller,                                         April 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1610-CR-2482
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Wendy W. Davis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1603-F6-231



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2482 | April 26, 2017       Page 1 of 5
[1]   Jesse Miller appeals the sentence imposed by the trial court following Miller’s

      conviction for Level 6 felony pointing a firearm. Miller argues that the trial

      court erred by finding Miller’s juvenile history to be an aggravator and that the

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

      Finding no error and that the sentence is not inappropriate, we affirm.


                                                     Facts
[2]   On February 25, 2016, Miller and his sister-in-law stopped at a Marathon gas

      station in Fort Wayne. They entered the convenience store portion of the gas

      station, and Miller began to fill a fountain drink. After he poured out several

      fountain drinks, Miller was confronted by store employees and they began to

      argue. The store employee charged Miller for only one fountain drink, and

      Miller paid and began to leave the store. As he walked away, Miller argued

      with an employee through the store window. The employees and Miller

      exchanged crude hand gestures through the window.


[3]   Just after Miller exited the store, he threw one of the fountain drinks at the store

      window. Miller then drew the semi-automatic handgun he had been carrying

      on his hip and pointed it at the store employees. One of the employees grabbed

      a baseball bat and began to walk in Miller’s direction, but the employee

      remained inside the store. Miller pulled the slide back on his handgun to draw

      a round into the chamber. Miller continued pointing the gun at the employees

      as he backed towards his car. Miller and his sister-in-law then drove away, with




      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2482 | April 26, 2017   Page 2 of 5
      Miller keeping his gun aimed at employees the whole time. Neither of the

      employees exited the store during the encounter.


[4]   On March 2, 2016, the State charged Miller with Level 6 felony pointing a

      firearm, and on September 8, 2016, a jury found Miller guilty as charged.

      Following a sentencing hearing, on October 7, 2016, the trial court sentenced

      Miller to two years, with one year suspended to probation and one year served

      in community corrections on home detention. Miller now appeals.


                                   Discussion and Decision
                                      I. Aggravating Factor
[5]   First, Miller argues that the trial court erred by finding his juvenile history to be

      an aggravating factor. A trial court may err in the sentencing process if, among

      other things, it provides reasons that are improper as a matter of law. Blair v.

      State, 62 N.E.3d 424, 429 (Ind. Ct. App. 2016). Miller contends that, under

      certain circumstances, it is improper for a trial court to find a defendant’s

      juvenile history to be an aggravating factor. Here, however, while the trial

      court acknowledged the juvenile history, it did not find it to be an aggravator:

      “He does back in 2009 have a Disorderly Conduct, a Class B Misdemeanor

      which tells me . . . he’s probably got some anger management issues.” Sent. Tr.

      p. 10. That is the trial court’s only statement regarding Miller’s juvenile

      adjudication. The only aggravator explicitly found by the trial court was the

      nature and circumstances of the crime he was being sentenced for. Therefore,

      we find no error in this regard.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2482 | April 26, 2017   Page 3 of 5
                                        II. Appropriateness
[6]   Miller also argues that the sentence imposed by the trial court is inappropriate.

      Indiana Appellate Rule 7(B) provides that this Court may revise a sentence if it

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

      offender. We must “conduct [this] review with substantial deference and give

      ‘due consideration’ to the trial court’s decision—since the ‘principal role of

      [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

      ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

      (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

      citations omitted).


[7]   Miller was convicted of one Level 6 felony. For this conviction, he faced a

      sentence of six months to two and one-half years, with an advisory term of one

      year. Ind. Code § 35-50-2-7(b). Miller received a two-year sentence, but one

      year was suspended to probation and one year was to be served in community

      corrections on home detention.


[8]   As for the nature of Miller’s offense, he dramatically escalated a petty fight over

      fountain drinks. After the verbal conflict had ended and Miller was walking

      away, he threw a drink at the store window. He then pulled out a semi-

      automatic handgun and pointed it at store employees, going so far as to

      chamber a round. By doing so, he transformed a small argument into a

      potentially deadly encounter.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2482 | April 26, 2017   Page 4 of 5
[9]    As for Miller’s character, we acknowledge that he has no adult criminal history

       and only one juvenile adjudication for disorderly conduct. It is apparent,

       however, that he has long struggled with controlling his anger.


[10]   We agree with Miller that neither the nature of Miller’s offense nor his

       character are the worst of the worst. A reasonable trial court may have

       imposed only an advisory term on Miller. That does not mean, however, that it

       was unreasonable for the trial court here to impose a two-year term. We must

       consider not only the length of the sentence but also the manner in which it is to

       be served. E.g., Bratcher v. State, 999 N.E.2d 864, 870-71 (Ind. Ct. App. 2013).

       Here, while one year of the sentence is to be executed, it is to be executed in

       community corrections on home detention, allowing Miller to continue to be

       with and care for his family and to maintain employment. And the second year

       of the sentence was suspended to probation, with the trial court indicating its

       willingness to modify that second year to be fully suspended if Miller was

       successful in community corrections. Sent. Tr. p. 11. With the way in which

       the trial court structured this sentence, we do not find it to be an outlier.

       Therefore, we do not find that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offense and Miller’s character.


[11]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1610-CR-2482 | April 26, 2017   Page 5 of 5
