MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 17 2017, 8:18 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
Frederick Vaiana                                        Curtis T. Hill, Jr.
Voyles Zahn & Paul                                      Attorney General of Indiana
Indianapolis, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Garit Tuggle,                                           March 17, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A01-1608-CR-1884
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Kit C. Dean Crane,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        33C02-1509-F3-8




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017     Page 1 of 11
                                             Case Summary
[1]   Garit Tuggle appeals his twelve-year aggregate sentence for level 3 felony

      aggravated battery and level 6 felony criminal recklessness. He argues that the

      trial court abused its discretion in including one of the victim’s lost wages in its

      restitution order. He also contends that the trial court abused its discretion in

      sentencing him and that his sentence is inappropriate in light of the nature of

      his offenses and his character. We find no abuse of discretion in the restitution

      order or in sentencing. We also conclude that Tuggle has failed to carry his

      burden to show that his sentence is inappropriate. Therefore, we affirm


                                 Facts and Procedural History
[2]   One evening in September 2015, Tuggle had guests at his home, including

      his cousin Chandler Roberts, Vanessa Goebel, and Brittany Gosser. Tuggle

      was extremely intoxicated and got into a physical altercation with Roberts.

      Tuggle swung at Roberts and grabbed him by the throat. Roberts picked Tuggle

      up and “slammed him.” Tr. at 66. Roberts and Goebel decided to leave.

      While Roberts was sitting in Goebel’s car, Tuggle was rummaging around

      inside his own car. Goebel heard Tuggle say something about retrieving his

      gun and shooting it. She decided to walk away, but she heard shots. Roberts

      also heard a “pop, pop, pop.” Id. at 68. Tuggle fired at least six shots from his

      handgun. One of the bullets hit Gosser just below her right knee, shattering her

      fibula.




      Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 2 of 11
[3]   After firing a few shots, Tuggle walked over to Goebel’s car. Roberts got out of

      the car and looked Tuggle straight in the eye. Tuggle pointed his gun at

      Roberts’s head and then shot him in the left leg just inches from the femoral

      artery, breaking his femur. Roberts was in the hospital two days and required

      surgery to place a metal rod in his leg, but doctors were unable to remove all the

      bullet fragments. Gosser also spent two days in the hospital, where doctors

      removed some of the bullet fragments from her leg, but at least twenty bullet

      and bone fragments remain. Gosser had to be fitted with a custom leg brace

      that she cannot walk without. The bullet hit her peroneal nerve, causing

      extensive nerve damage and loss of the use of her right foot. Gosser may

      undergo additional surgery, although it will not provide full use of her foot. She

      was unable to work for five to six months.1 Id. at 48. At the time of sentencing,

      she was still experiencing pain.


[4]   The State charged Tuggle with one count of level 3 felony aggravated battery

      against Roberts, one count of level 3 felony aggravated battery against Gosser,

      and one count of level 6 felony criminal recklessness against Roberts.2

      Appellant’s App. at 4, 151-52. Pursuant to a plea agreement, Tuggle agreed to

      plead guilty to level 3 felony aggravated battery against Roberts and level 6

      felony criminal recklessness against Gosser. The State agreed to dismiss the




      1
          The State incorrectly claims that Gosser was unable to work for five to six weeks. Appellee’s Br. at 9.
      2
        Tuggle and the State both incorrectly maintain that Tuggle was charged with one count of aggravated
      battery and two counts of criminal recklessness. Appellant’s Br. at 4; Appellee’s Br. at 5.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017                Page 3 of 11
      third count. The plea agreement capped Tuggle’s sentence at twelve years but

      otherwise left sentencing open to the trial court’s discretion.


[5]   At the plea hearing, Gosser testified that she had moved to Indiana four days

      before the shooting. Prior to moving to Indiana, she had worked for Mentor

      Network for six years and expected to continue to work for them in Indiana,

      although she had not yet contacted them at the time of the shooting. Tr. at 54-

      55. Specifically, Gosser testified, “I transferred my job out of state. I was able

      to transfer back but I hadn’t technically started yet.” Id. at 52. During her

      testimony, the State introduced Exhibit 1, a spreadsheet supplementing

      Gosser’s testimony regarding her claim of restitution against Tuggle. Gosser

      claimed restitution of $16,748.52, including $8320.00 in lost wages. Id. at 50-

      54, 60-62; Ex. Vol. at 8. Gosser’s claim for lost wages was based on her hourly

      wage at Mentor Network and the average number of hours per week she had

      been working before moving to Indiana. When Gosser was asked about how

      her calculations would have differed if she was not offered a job with her former

      employer, she responded, “That’s just not a possibility.” Tr. at 55.


[6]   The trial court accepted Tuggle’s plea, and the parties presented argument

      regarding sentencing. Having read the presentence investigation report and the

      letters written on behalf of Tuggle, and having heard Tuggle’s testimony and

      the parties’ arguments, the trial court found that Tuggle’s remorse was a

      mitigating factor. However, the trial court noted that Tuggle’s criminal history

      reflected a pattern of abusing alcohol, marijuana, and other substances and

      found it to be an aggravating factor. The trial court also found that the nature

      Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 4 of 11
      and circumstances of the level 6 felony criminal recklessness count were more

      significant than the offense’s required elements and therefore constituted an

      aggravating factor as to that count. The trial court sentenced Tuggle to

      consecutive terms of ten years on the aggravated battery conviction, with three

      years suspended, and two years on the criminal recklessness conviction, with

      one year suspended for an aggregate sentence of twelve years with four years

      suspended. The trial court also ordered Tuggle to pay Gosser restitution of

      $16,748.52, including lost wages. The trial court dismissed the remaining

      charge. This appeal ensued.


                                       Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                 ordering restitution for Gosser’s lost wages.
[7]   Tuggle challenges the trial court’s decision to order restitution for Gosser’s lost

      wages.3 Pursuant to Indiana Code Section 35-50-5-3(a)(4), the trial court has

      the authority to order a person convicted of a felony or misdemeanor to make

      restitution to the victim of the crime based upon a consideration of “earnings

      lost by the victim (before the date of sentencing) as a result of the crime

      including earnings lost while the victim was hospitalized or participating in the

      investigation or trial of the crime[.]” An order of restitution lies within the trial

      court’s sound discretion and will be reversed only for an abuse of discretion.



      3
        The State asserts that Tuggle waived this claim, but we disagree. At the hearing, Tuggle’s counsel argued
      that Gosser’s claim for lost wages was speculative and would not be awardable under the restitution statute.
      Tr. at 118.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017             Page 5 of 11
      Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). In determining whether the trial

      court abused its discretion, we neither reweigh evidence nor judge witness

      credibility. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009). “A

      restitution order must be supported by sufficient evidence of actual loss

      sustained by the victim or victims of a crime.” Rich v. State, 890 N.E.2d 44, 49

      (Ind. Ct. App. 2008), trans. denied. “The amount of actual loss is a factual

      matter that can be determined only upon the presentation of evidence.” Bennett

      v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007). We will affirm the trial

      court’s restitution order if there is any evidence supporting it. Smith v. State, 990

      N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied.


[8]   Specifically, Tuggle asserts that Gosser’s request for $8320 in lost wages does

      not represent any actual loss she sustained because at the time of the shooting

      she was unemployed and did not have an actual offer of employment. The

      evidence shows that Gosser worked for Mentor Network for six years and

      transferred her employment to Indiana, and that she was unemployed because

      she had been in Indiana only four days and had not yet contacted Mentor

      Network. The evidence also shows that she had been working an average of

      thirty-two hours per week and earned $10.00 per hour and that she had been

      unable to work for twenty-six weeks due to the injury caused by Tuggle’s

      shooting.4 Tuggle’s argument is merely an invitation to reweigh the evidence,

      which we must decline. We conclude that the restitution order for lost wages is



      4
          $10 × 32 hours × 26 weeks = $8320.00.

      Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 6 of 11
       supported by sufficient evidence of actual loss. Accordingly, the trial court did

       not abuse its discretion in ordering restitution for Gosser’s lost wages.


            Section 2 – The trial court did not abuse its discretion in
                               sentencing Tuggle.
[9]    Tuggle argues that the trial court abused its discretion when it sentenced him.

       Sentencing decisions are within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. An abuse of discretion occurs when the trial court’s decision is contrary to

       “the logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom.” Williams v.

       State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its

       discretion by entering a sentencing statement that omits mitigating factors that

       are clearly supported by the record and advanced for consideration. Anglemyer,

       868 N.E.2d at 490-91. Although an appellate court may review the trial court’s

       reasons and omissions of reasons for imposing sentence, the relative weight

       assigned by the trial court to aggravating and mitigating factors is not subject to

       appellate review. Id. at 491.


[10]   Tuggle contends that the trial court abused its discretion by failing to find

       various mitigating factors. He notes that “[t]he trial court refused to consider

       [his] criminal history as a mitigator, instead finding it an aggravating

       circumstance.” Appellant’s Br. at 12. That is not an uncommon occurrence in

       most sentencing hearings. He also argues that the trial court ignored that he

       obtained a job earning $52,000 a year, was only three or four classes away from

       Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 7 of 11
       obtaining a degree at Ivy Tech, and did not violate the conditions of his pretrial

       home detention which included screens for the presence of alcohol. We

       observe that the trial court is not obligated to accept the defendant’s arguments

       as to what constitutes a mitigating factor and is not required to give the same

       weight to proffered mitigating factors as the defendant does. Healy v. State, 969

       N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied. A trial court does not abuse

       its discretion by failing to identify a mitigating factor unless the mitigating

       evidence is both significant and clearly supported by the record. Id.


[11]   At sentencing, Tuggle argued that his crimes were connected to his alcohol use

       and therefore were the result of circumstances unlikely to recur and that he was

       at low risk to reoffend because he had a limited criminal history, had obtained a

       job, was close to getting a degree from Ivy Tech, had participated in substance

       abuse treatment while on home detention, and had not committed any

       probation violations while on home detention during which he was tested for

       alcohol four times a day. Tuggle also argued that he had demonstrated remorse

       for his crimes.


[12]   The trial court was unpersuaded that Tuggle’s crime was the result of

       circumstances unlikely to recur and that Tuggle was unlikely to reoffend

       because the court believed that Tuggle’s criminal history and the presentence

       investigation report showed a pattern of substance abuse and offenses related to

       his substance abuse. Tr. at 138-39. Tuggle’s criminal history includes a 2012

       misdemeanor conviction for possession of marijuana and two 2013

       misdemeanor convictions for possession of marijuana and possession of

       Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 8 of 11
       paraphernalia. In April 2016, Tuggle violated the conditions of his pretrial

       release and was charged with operating a vehicle while intoxicated.5 Thus, the

       trial court considered Tuggle’s proffered mitigators and, other than his remorse,

       rejected them. We find no abuse of discretion.


           Section 3 – Tuggle has failed to carry his burden to show that
                          his sentence is inappropriate.
[13]   Tuggle argues that his aggregate sentence of twelve years with eight years

       executed is inappropriate pursuant to Indiana Appellate Rule 7(B), which

       states, “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.” In conducting our review, “[w]e do not look to determine if the

       sentence was appropriate; instead we look to make sure the sentence was not

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing

       is principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). “Such deference should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Tuggle has the burden to show that his



       5
           Tuggle was convicted and sentenced in that case contemporaneously with this one.

       Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 9 of 11
       sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007).


[14]   When considering the nature of the offenses, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for a level 3 felony is nine years, with a sentencing range of

       three to sixteen years. Ind. Code § 35-50-2-5(b). The advisory sentence for a

       level 6 felony is one year, with a sentencing range of six months to two and one-

       half years. Ind. Code § 35-50-2-7(b). Tuggle received an aggregate sentence of

       twelve years, with eight years executed and four years suspended.


[15]   Tuggle does not deny that he committed serious crimes and does not argue that

       the nature of the offenses renders his sentence inappropriate. Rather, he argues

       that his character warrants a revision of his executed sentence to home

       detention and/or probation. In so arguing, he again relies on his gainful

       employment, pursuit of a college degree, and substance abuse treatment to

       demonstrate his positive character. We recognize that these undertakings are

       reflective of Tuggle’s capacity to become a productive, law-abiding citizen.

       However, when considering the nature of Tuggle’s offenses as well as his

       character, we are unpersuaded that Tuggle’s sentence is inappropriate.


[16]   Tuggle became extremely intoxicated, grabbed his handgun, and shot it six

       times with multiple people in the area. All those people were put at risk by

       Tuggle’s conduct. One shot struck Gosser, who required significant medical


       Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 10 of 11
       care and was unable to work for five or six months. She suffered permanent

       nerve damage subjecting her to the possibility of lifelong pain and loss of the

       use of her foot. Tuggle pointed his gun at Roberts’s head, putting Roberts at

       great risk of death. Tuggle then shot Robert’s leg, breaking his femur. Robert

       required surgery to place a metal rod in his leg and still has bullet fragments in

       his leg. We conclude that Tuggle has failed to carry his burden to show that his

       sentence is inappropriate based on the nature of the offenses and his character.


[17]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017   Page 11 of 11
