MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                           Aug 24 2015, 9:06 am
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, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alice B. Blevins                                         Gregory F. Zoeller
Bartanen Law Office, LLC                                 Attorney General of Indiana
Salem, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Hans Gunther Oberth,                                     August 24, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         59A01-1409-CR-422
        v.                                               Appeal from the
                                                         Orange Superior Court
State of Indiana,                                        The Honorable Larry R. Blanton,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         59D01-1311-CM-820



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 1 of 18
[1]   Following a bench trial, Hans Gunther Oberth was convicted of Class A

      misdemeanor criminal trespass.1 He appeals and raises four issues that we

      restate and consolidate as the following:


               I. Whether the State presented sufficient evidence of trespassing
               to sustain his conviction;

               II. Whether the trial court abused its discretion by ordering
               Oberth to pay $500 to the county’s pauper counsel fund; and

               III. Whether Oberth’s one-year suspended sentence is
               inappropriate in light of the nature of the offense and the
               character of the offender.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Oberth served as the president of the Paoli Senior Citizens Center (“the Senior

      Center”) for the 2012 term. The Senior Center is a 501(c)(3) organization, and

      it is located on property that is owned by the Town of Paoli. The general

      purpose is to foster fellowship, outings, and provide a location for activities.

      The membership dues are five dollars annually. In January 2013, the Senior

      Center elected Jerry Bird (“Bird”) as the organization’s new president. During

      Bird’s term, Rebecca Walton was the chairman of the board of directors, and

      Anita Piper (“Piper”) was the vice president.



      1
        See Ind. Code § 35-43-2-2(a). We note that, effective July 1, 2014, a new version of this statute became
      effective, but we will apply the statute in effect at the time that Oberth committed his offense in November
      2013.

      Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015              Page 2 of 18
[4]   On July 8, 2013, the Senior Center’s board of directors (“the Board”) held a

      regular business meeting, and Oberth, a member of the Senior Center, attended

      in the audience. According to the facts most favorable to the judgment,

      Oberth’s conduct was “very disruptive to the meeting.” Tr. at 34. He

      repeatedly voiced concerns about the newsletter, would not stop talking when

      asked, posed objections “to anything that was said,” and “he would interrupt

      and . . . voice his opinion and not quit.” Id. at 7, 34, 43-44. Eventually, Bird

      asked Oberth to leave the meeting, but Oberth replied that he “wasn’t leaving”

      and continued to talk, so Bird left the meeting and called the Paoli Police

      Department. Id. at 8.


[5]   Assistant Chief of the Paoli Police Department Scott Dillman responded, along

      with Chief Sanders. While sorting out the situation, and in order to confirm the

      Board’s intentions, Officer Dillman asked the Board members if they, in fact,

      desired to Oberth to leave, and the majority responded in the affirmative and

      further expressed that Oberth was not welcome at the Senior Center in the

      future. Officer Dillman advised the Board that they should seek a “No

      Trespassing Order.” Id. at 57-58. Thereafter, Officer Dillman escorted Oberth

      off the property and told Oberth that the Board did not want Oberth to return to

      the Senior Center and that it intended to obtain a “No Trespassing Order.” Id.

      at 58.


[6]   Bird reviewed restraining order paperwork, but found that it appeared to

      concern “abuse” and was not appropriate to the situation. Id. at 24. Instead,

      Bird wrote a letter to the Paoli Police Department, providing some history to

      Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 3 of 18
      the situation, in that “And now that [Oberth] is no longer president, he still

      wants to be in charge and try to monopolize the meetings,” which “creates

      havoc[.]” State’s Ex. 1. Bird thanked the police department for responding on

      July 8 and for the department’s assistance with the situation. Id. The letter

      confirmed that “everyone agreed that [Oberth] was no longer welcome at the

      Paoli Senior Center.” Id.


[7]   Oberth returned to the Senior Center on July 13, 2013, during a dance that was

      open to the public. Bird was not present at that time, but Board member Jerry

      McDonald saw Oberth arrive. He and vice president Piper met Oberth outside

      and asked him to leave, but Oberth entered the building. Piper telephoned Bird

      to get direction on how to handle the situation. The police were called, and

      upon the officer’s request, Oberth left the premises. Thereafter, Bird sent a

      second letter to the police department on behalf of the Board, recounting that

      Oberth had come to the Center on July 13, refused to leave, and was escorted

      off the property. The letter reported that Oberth was “not a Member in Good

      Standing” and “his membership dues will be refunded to him” such that his

      membership will be terminated. State’s Ex. 3.


[8]   On or about July 22, 2013, the Board sent by certified mail a check, which was

      written on the Senior Center’s bank account, to Oberth in the amount of five

      dollars to revoke Oberth’s membership. The memo line of the check read:

      “Refund of Membership Dues.” State’s Ex. 4. Oberth received the check, but

      wrote “I Refuse this Nonsense,” on the check and returned it to a Board



      Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 4 of 18
       member at a court hearing on another matter.2 At the August 12, 2013, Board

       meeting, the Board officially voted to revoke Oberth’s membership.


[9]    On or around July 30, 2013, Oberth sent a letter to the police department. In it,

       he referred to the contents of the second letter that Bird sent to the department

       “behind [his] back.” State’s Ex. 9. He maintained that the assertions that he

       was not a member in good standing and that the majority of members desired

       him to stay away from the Senior Center were “outright lie[s].” Id. He

       explained that he felt the need to “consistently complain” because the current

       Board chairman and president were disregarding the organization’s by-laws and

       duties. Id. He concluded that, considering that he had never received a formal

       restraining order from the Board, he assumed that any verbal police order to

       stay away “is also cancelled.” Id.


[10]   On November 20, 2013, the Board held a special meeting to nominate officers.

       Oberth arrived to attend the meeting. Before the meeting was called to order,

       Board secretary Carol Napier talked to Oberth and suggested, “Gunther please

       don’t come in,” but Oberth replied, “I’m going to go [in] and if you don’t like it

       call the Police.” Tr. at 46. Oberth entered the meeting room, at which time

       Bird called the police. Officer Dillman arrived, and he called the Board

       members out of the meeting room. To glean a consensus of what the majority




       2
         Oberth sued at least three Board members in small claims court for, among other things, “severe
       embarrassment.” Tr. at 20, 108. Oberth returned the five dollar check to a Board member during one of
       those hearings. Oberth noted that, although judgment was entered for the defendants in those cases, “I didn’t
       lose. I just didn’t win. There’s a difference.” Id. at 93.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015           Page 5 of 18
       of the Board desired, Officer Dillman asked them to indicate by hand vote

       whether they wanted Oberth off the premises. Ten of the twelve indicated that

       it was their intention that Oberth be removed from the Senior Center and not

       allowed to return. Police asked Oberth to leave, and when he refused, they

       arrested him. Oberth told Officer Dillman on the way to the police station that

       he had expected that he would be arrested that night, and, therefore, he had

       only brought with him his identification, rather than his entire wallet.


[11]   About a week later, the State charged Oberth with Class A misdemeanor

       criminal trespass, alleging that, on or about November 20, 2013, Oberth, “not

       having a contractual interest in the property, did knowingly or intentionally

       enter the real property of [the Senior Center], after having been denied entry by

       [the Senior Center] or their agent.” Appellant’s App. at 12. The trial court

       conducted a bench trial in August 2014. The State called a number of

       witnesses, including Bird, McDonald, Napier, and Officer Dillman. Oberth

       moved for a directed verdict, which was denied.


[12]   Thereafter, Oberth testified. He expressed that he takes “a great interest in the

       Center and care a lot about the Center and take an interest therefore in how it’s

       run.” Tr. at 75. He believed that Bird and the Board were not running the

       organization properly and failed to follow by-laws and other procedures. He

       maintained that, since he was a dues-paying member, and because he never

       received a No Trespassing Order, he had a right to be on the premises for

       meetings and other Senior Center activities. Upon cross examination, he

       acknowledged that, on July 8, 2013 he was told that he was no longer welcome

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 6 of 18
       at the Senior Center, but he testified that he “assumed their verbal order for me

       not to return was . . . temporary” because he did not receive any formal no

       trespassing order. Id. at 78. He conceded that he had a copy of, or at least

       knowledge of, the second letter that Bird thereafter had written to the police

       department indicating that he was no longer welcome at the Senior Center.

       However, he stated, “[Bird] telling me that I’m not welcome is meaningless to

       me.” Id. at 95. He acknowledged that on July 13 he went to the Senior Center,

       was escorted off the premises by police, and again was told that he was not

       welcome at the Senior Center. He further acknowledged that he received the

       check dated July 22, 2013 and recognized that it was intended to refund his

       membership dues to him, but explained that, although the Board had the intent

       to exclude him, “They had no authority. I didn’t care what they said.” Id. at 94-

       95. Oberth went to the November 20, 2013 special meeting because he

       intended to run for the office of president again.


[13]   At the conclusion of the evidence, the trial court found Oberth guilty as

       charged. At the sentencing hearing, the trial court imposed a sentence of one

       year, all suspended, and ordered non-reporting probation. The trial court also

       ordered Oberth to pay a $500 fine to Orange County’s pauper counsel fund.

       Oberth now appeals.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 7 of 18
                                        Discussion and Decision

                                   I. Sufficiency of the Evidence
[14]   When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Lyles v. State, 970 N.E.2d 140,

       142 (Ind. 2012); Taylor v. State, 836 N.E.2d 1024, 1026 (Ind. Ct. App. 2005),

       trans. denied. Rather, we look to the evidence and the reasonable inferences

       therefrom that support the conviction. Taylor, 836 N.E.2d at 1026. We will

       affirm the conviction if there exists evidence of probative value from which a

       reasonable trier of fact could find the defendant guilty beyond a reasonable

       doubt. Id. “The evidence is sufficient if an inference may reasonably be drawn

       from it to support the verdict.” Berry v. State, 4 N.E.3d 204, 206 (Ind. Ct. App.

       2014), trans. denied.


[15]   The State charged Oberth with having committed Class A misdemeanor

       criminal trespass under Indiana Code section 35-43-2-2(a)(1), alleging that

       Oberth, not having a contractual interest in the real property of the Senior

       Center, knowingly or intentionally entered the Senior Center after having been

       denied entry by the Senior Center or its agent.3 Appellant’s App. at 12. A

       “contractual interest,” as that phrase is used in the criminal trespass statute,

       refers to the right to be present on another’s property, arising out of an

       agreement between at least two parties that creates an obligation to do or not to



       3
        The statute was amended, effective July 1, 2014, such that the provisions of subsection (a)(1) now appear in
       subsection (b)(1) of Indiana Code 35-43-2-2.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015            Page 8 of 18
       do a particular thing. Taylor, 836 N.E.2d at 1026. A person “has been denied

       entry” under subdivision (a)(1) of this section when the person has been denied

       entry by means of:

                  (1) personal communication, oral or written;

                  (2) posting or exhibiting a notice at the main entrance in a
                  manner that is either prescribed by law or likely to come to the
                  attention of the public; or

                  (3) a hearing authority or court order [.]


       Ind. Code § 35-43-2-2(b).4 Oberth argues that the State did not present

       sufficient evidence that he lacked a contractual interest in the Senior Center.

       More specifically, Oberth maintains that he was (still) a dues-paying member

       and, therefore, had a contractual interest in the Senior Center and possessed an

       accompanying right to be on the premises.


[16]   Although the trial court expressed that Oberth did not have a contractual right

       because the Senior Center was a voluntary organization, membership in it was

       a privilege, and its Board possessed authority to administer discipline without

       court intervention or involvement, the trial court specifically declined to rule on

       Oberth’s membership status, finding that his membership status was not

       determinative of his guilt of the crime charged. Tr. at 117-18. The trial court

       instead focused on the fact that Oberth was told on several occasions, by the




       4
           The cited provisions of subsection (b) now appear in subsection (c) of the statute.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015     Page 9 of 18
       Board and the police, that he was not to return to the Senior Center, he fully

       knew that the Board or a majority of it had agreed that he was no longer

       welcome, and he received – although refused to keep – the check refunding his

       membership dues. Yet, Oberth returned to the Senior Center on November 20,

       in fact expecting to be arrested. The trial court observed, “You had other

       remedies, . . . you could [have] put it in writing. . . . You could [have] sent a

       letter in writing to the President or the Chairman . . . ask[ing] for a hearing of

       why you should be excluded, why you should be barred from coming on the

       property.” Id. at 119. Given the facts and circumstances before it, the trial

       court determined that that the State established a prima facie case of criminal

       trespass.


[17]   Assuming without deciding that Oberth at one time had a contractual interest

       in the real property of the Senior Center, this court has recognized that having a

       contractual interest in being on property does not entitle the person to be

       disruptive without consequence. In A.E.B. v. State, 756 N.E.2d 536, 540 (Ind.

       Ct. App. 2001), an assistant principal of a middle school informed A.E.B., a

       suspended student, to stay out of school until she heard from the school

       district’s administrative office regarding her expulsion. Id. at 538. Despite the

       assistant principal’s instruction, A.E.B. returned to school and was suspended

       once again. Id. After the second suspension, A.E.B. returned to school and

       went to several classrooms and verbally insulted the teachers. Id. at 539. A

       police officer told the defendant to leave the school or she would be arrested for

       trespassing and disorderly conduct, and the defendant refused to leave. Id. The


       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 10 of 18
       trial court found defendant to be a delinquent child for committing criminal

       trespass and disorderly conduct. Id. at 538-39. On appeal, she alleged that,

       because she was a student at the school, there was insufficient evidence that she

       did not have a contractual interest in the property. Id. at 540. We held, “[e]ven

       assuming that A.E.B.’s claim is correct, we find that A.E.B. violated whatever

       contract existed when she interfered with the educational activities at [the

       school].” Id. at 541. The court recognized, “The administration of [the middle

       school] had the power to request that A.E.B. leave the school property after she

       began to interfere with the educational activities to such an extent as to be

       guilty of the crime of disorderly conduct.” Id.


[18]   We find such reasoning applies here, where several witnesses testified that

       Oberth was “very disruptive” at the July 8 meeting, as he continued to talk,

       would not sit down, made objections to “anything that was said,” and

       interrupted Board members. Tr. at 34, 43. The Board asked Oberth to stop, but

       he would not do so, and thereafter, the police were called. Although Oberth

       was told on July 8 that he was not welcome anymore at the Center, he returned

       July 13, and he again was escorted off the premises. Oberth admitted that he

       was aware of Bird’s subsequent letter to police, expressing that the Board

       considered him to be not in good standing as a member and that they would be

       refunding his dues. He received, but rejected, the five dollar check, refunding

       his membership dues. Thereafter, Oberth came to the November 20, 2013

       special meeting of the Board, anticipating that he would be arrested. Based on

       the record before us, we find that Oberth extinguished whatever contractual


       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 11 of 18
       interest may have existed by knowingly or intentionally coming upon the

       premises, on repeated occasions, after he had been told, and thus possessed

       knowledge, that the Board considered his membership as revoked. See Lyles,

       970 N.E.2d at 143 (State met its burden to disprove contractual interest of bank

       account holder by presenting evidence showing account holder was “irate and

       disrespectful” and bank manager had authority to ask customers to leave the

       bank premises). Considering the evidence and the reasonable inferences

       therefrom that support the conviction, we find that there exists evidence of

       probative value from which a reasonable trier of fact could have found Oberth

       guilty of criminal trespass.


                                     II. Pauper Counsel Fund
[19]   Oberth contends the trial court erred when it ordered him to pay $500 to the

       pauper counsel fund. Sentencing decisions, including decisions to impose fines,

       costs, or fees are left to the trial court’s discretion. Wright v. State, 949 N.E.2d

       411, 413 (Ind. Ct. App. 2011). If the trial court imposes fees within statutory

       limits, there is not an abuse of discretion. Id.


[20]   Indiana Code section 35-38-1-18 provides in pertinent part:


               [W]henever the court imposes a fine, it shall conduct a hearing to
               determine whether the convicted person is indigent. If the person
               is not indigent, the court shall order:


               (1) that the person pay the entire amount at the time sentence is
               pronounced;


       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 12 of 18
                (2) that the person pay the entire amount at some later date;


                (3) that the person pay specified parts at designated intervals[.]


       See also Ind. Code § 33-37-2-3 (providing same with regard to when trial court

       imposes costs). Oberth argues that “a hearing was not held as to his pauper

       status,” as required by statute, and, therefore, the trial court committed

       sentencing error when it ordered him to pay the $500 fine to the county’s local

       pauper counsel fund.5 Appellant’s Br. at 13. Based on the facts and

       circumstances of this case, we disagree.


[21]   This court has recognized that “[i]t is not possible to set specific monetary

       guidelines for the determination of indigency.” Hall v. State, 826 N.E.2d 99,

       104 (Ind. Ct. App. 2005). However, here, at the sentencing hearing, before

       Oberth gave a statement in allocution prior to sentencing, the trial court asked

       Oberth about his age, any sources of income, whether he owned any real

       property, and that property’s worth. As far as property ownership, Oberth

       responded that he owned only “a run down shambles,” and he further stated

       that he had no source of income. Tr. at 133-34. After Oberth spoke, the trial

       court inquired, “You have five hundred dollars in bond money, correct?” and




       5
         We note that the State initially asserts that Oberth did not object or raise any argument that the trial court
       did not conduct an adequate indigency hearing, and therefore, his claim is waived. However, this court has
       recognized, “The indigency issue cannot be waived.” Everroad v. State, 730 N.E.2d 222, 225 n.5 (Ind. Ct.
       App. 2000) (citing Meeker v. State, 182 Ind. App. 292, 302, 395 N.E.2d 301, 307 n.6 (Ind. Ct. App. 1979)).



       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015               Page 13 of 18
       Oberth responded, “Yes.”6 Id. at 136. Thereafter, the trial court imposed a

       $500 fine, stating,

               [Y]ou’ll be assessed five hundred ($500.00) dollars for . . . the
               representation that was provided you by the citizens of Orange
               County.


[22]   Id. The trial court also ordered Oberth to pay a $50 initial probation fee, any

       other probation fees as set out by the probation department, 7 and costs in the

       amount of $168. Id. Before the hearing concluded, the trial court reiterated

       that Oberth, as part of his probation terms, would need to “pay Orange County

       five hundred ($500.00) dollars toward the . . . pauper counsel fund,” but it

       expressly allowed, “[Y]ou can stretch that out over your year of probation.” Id.

       at 137.


[23]   The purpose behind an indigency hearing is to assure that a defendant is not

       imprisoned for inability to pay fees and costs. Wooden v. State, 757 N.E.2d 212,

       217 (Ind. Ct. App. 2001), trans. denied. In this case, the trial court at the

       sentencing hearing questioned Oberth regarding his financial situation, and

       thus, Oberth had the opportunity to demonstrate to the trial court his ability (or

       inability) to pay a fine. The trial court also appointed both trial and appellate

       pauper counsel to represent Oberth. Given this record, where the trial court



       6
        According to the Chronological Case Summary (“CCS”), Oberth posted a $1,000 cash bond in November
       2013. Appellant’s App. at 5.
       7
         We note that the CCS indicates, by entry of October 27, 2014, that Oberth was required to pay “$210 PUF
       fees,” which presumably refers to probationary user fees. Appellant’s App. at 10.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015        Page 14 of 18
       was aware of Oberth’s financial status, we find that the purpose behind an

       indigency hearing was met and that the trial court did not abuse its discretion

       by not holding a separate or additional indigency hearing.8 See Clenna v. State,

       782 N.E.2d 1029, 1034 (Ind. Ct. App. 2003) (no abuse of discretion in

       imposition of fees and costs, even though trial court did not hold separate “full-

       blown hearing” on subject of indigency, where defendant testified at sentencing

       to his minimal income, rent, and children to support); Wooden, 757 N.E.2d at

       217-18 (although full-blown hearing at which evidence of defendant’s assets and

       debts was not held, purpose of indigency hearing requirement was met, where

       trial court’s statements and actions, including appointment of trial and later

       appellate pauper counsel, indicated court’s awareness of defendant’s continued

       indigency).


[24]   Oberth urges that “the [trial court] applied his bond to the payment of the fine,

       leaving him with no monies to apply towards his probation fees and costs.”

       Appellant’s Br. at 13. Contrary to the assertion that the trial court “applied the

       bond” to the fine, the record indicates that the trial court specifically told

       Oberth that he could make payments on the $500 fine over the course of a year.

       Further, to the extent that Oberth is arguing that the trial court should not have

       imposed the fine because he was indigent, our Supreme Court has held that a




       8
         We do not have in the record before us Oberth’s bail bond agreement, but this court has recognized that a
       trial court may order disbursement of bond money to reimburse the local drug task force, and an indigency
       hearing is not required, where the terms of the bail bond agreement provided that fines, fees, and costs of
       representation could be retained from the bond money held in escrow. Wright v. State, 949 N.E.2d 411, 416
       (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015          Page 15 of 18
       trial court may impose a fine or costs on an indigent defendant. Wheldon v.

       State, 765 N.E.2d 1276, 1279 (Ind. 2002); see also Kimbrough v. State, 911 N.E.2d

       621, 638 (Ind. Ct. App. 2009) (trial court may impose fine or costs on indigent

       defendant, but indigent person cannot be imprisoned for failing to pay fines or

       costs). The trial court here specifically confirmed that $500 in bond money was

       still available, and, further, it allowed Oberth to make payments toward the fine

       over the course of a year. We find no abuse of discretion in the trial court’s

       imposition of the fine.9


                                              III. Sentencing
[25]   At the sentencing hearing, the State argued for the imposition of a sentence

       consisting of one year in the Orange County Jail and a $5,000 fine, while

       Oberth’s counsel requested that the trial court impose a fully-suspended

       sentence with some period of probation. Oberth contends that the one-year

       suspended sentence with non-reporting probation imposed by the trial court is

       inappropriate. Article 7, Sections 4 and 6 of the Indiana Constitution authorize

       independent appellate review and revision of a sentence imposed by the trial

       court. Marley v. State, 17 N.E.3d 335, 338 (Ind. Ct. App. 2014), trans. denied.

       This appellate authority is implemented through Indiana Appellate Rule 7(B),

       which provides that the court on appeal “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, the Court finds




       9
        We note that the $1000 cash bond was released on September 12, 2014, by court order, following the
       September 3 sentencing hearing. Appellant’s App. at 5, 10.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015        Page 16 of 18
       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” We recognized the unique perspective that a trial

       court brings to sentencing decisions. Marley, 17 N.E.3d at 338. Thus, the trial

       court’s judgment “should receive considerable deference.” Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008). Our inquiry is not whether another sentence is

       more appropriate; rather, it is whether the sentence imposed is inappropriate.

       Marley, 17 N.E.3d at 339 (citing Fonner v. State, 876 N.E.2d 340, 344 (Ind. Ct.

       App. 2007)). The defendant bears the burden of persuading us that the sentence

       imposed was inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[26]   With respect to the nature of the offense, Oberth asserts that he merely attended

       meetings and events at the Senior Center, which he believed that he, as a

       member, had a legal right to do. The State maintains, however, that Oberth

       engaged in “continued criminal activity” over the course of several months, by

       appearing and disrupting meetings and by returning more than once to the

       Senior Center after being asked by both the Board and police to leave and not

       return. Appellee’s Br. at 15. While Oberth claims that “[n]o evidence was

       offered that [Oberth] acted out of . . . ill will,” we find that the record indicates

       otherwise. Appellant’s Br. at 10. Bird’s letter to the police department asserted

       that even though Oberth “is no longer President, he still wants to be in charge

       and try to monopolize the meetings. This just creates havoc and causes a lot of

       hard feelings among the members.” State’s Ex. 1. Oberth has not persuaded us




       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 17 of 18
       that the nature of his offense necessitates a reduction in his one-year suspended

       sentence.


[27]   With regard to his character, Oberth reminds us that he has no criminal history.

       He also maintains that, at all times relevant to the case, he was “acting based

       upon his ideals and belief in the structure and rules of our society” and intended

       only to express his concerns that the Board was disregarding the organization’s

       by-laws. Appellant’s Br. at 10-11. As the trial court observed, while Oberth

       “ha[d] a right to raise [his] objections,” he did not have a right to be an

       “obstructionist” and/or disrupt Board meetings, which affected other members’

       use and enjoyment of the Senior Center. Oberth has not demonstrated that the

       sentence imposed was inappropriate in light of his character. Under Indiana

       Appellate Rule 7(B), Oberth was required to prove that his sentence was

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

       offender. He has not met that burden.


[28]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1409-CR-422 | August 24, 2015   Page 18 of 18
