Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
any court except for the purpose of                         Dec 26 2012, 9:42 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

JUSTIN R. WALL                                          GREGORY F. ZOELLER
Wall Legal Services                                     Attorney General of Indiana
Huntington, Indiana
                                                        JUSTIN F. ROEBEL
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT D. RATCLIFF,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 85A05-1205-CR-248
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE WABASH CIRCUIT COURT
                        The Honorable Robert R. McCallen, III, Judge
                              Cause No. 85C01-1202-FC-143


                                        December 26, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Robert D. Ratcliff (“Ratcliff”) was convicted after a jury trial of Burglary, as a Class

C felony,1 and Auto Theft, as a Class D felony,2 and was sentenced to an aggregate term of

imprisonment of seven years, with one year suspended to probation. He now appeals.

          We affirm.

                                               Issues

          Ratcliff raises several issues for our review, which we restate as:

             I.    Whether the trial court erred when it instructed the jury concerning
                   accessory liability;

            II.    Whether there was sufficient evidence to support Ratcliff’s conviction;
                   and

           III.    Whether Ratcliff’s sentence was inappropriate.


                                  Facts and Procedural History


          Sometime after dark on January 25, 2012, Ratcliff called his friend, Brandon Freeman

(“Freeman”), who previously worked at Drive Now Auto (“Drive Now”) in Wabash. Ratcliff

told Freeman that he had kicked in the back door to the Drive Now store, asked Freeman

where to find money and car keys inside the dealership, and offered to give Freeman any

money in the store in exchange for Freeman’s help.

          Ratcliff eventually took several sets of car keys from a lock box in the Drive Now

store, and drove a burgundy-colored 2002 Chrysler Sebring off the lot. Ratcliff drove to the

1
    Ind. Code § 35-43-2-1.
2
    I.C. § 35-43-4-2.5(b).

                                                  2
home of Dawn Shrock (“Shrock”), the mother of one of Ratcliff’s childhood friends with

whom he had lived at times, and showed Shrock the car. Upon learning that Ratcliff had

stolen the car, Shrock told Ratcliff that he needed to return it and that, with the lot’s sticker

and balloon still on the car, he would likely be pulled over by police. After the sticker and

balloon were removed, Ratcliff gave them to Shrock to throw away.

       Before leaving Shrock’s home, Ratcliff asked Shrock to inquire of her boyfriend,

Jamie Johnson (“Johnson”), who was then incarcerated, about whether Johnson would allow

Ratcliff to use the license plate from Johnson’s car on the nearly-identical vehicle Ratcliff

had taken from Drive Now. After making this request of Shrock, Ratcliff drove away, and

called once to ask Shrock whether she had spoken with Johnson.

       Shrock eventually did ask Johnson about the matter a few days later; Johnson

ultimately contacted the Wabash City Police Department. Captain George Ryan Short

(“Captain Short”) of the Wabash City Police Department spoke with Johnson. Based on this

conversation, Captain Short contacted Shrock, who had not yet disposed of the materials

from the vehicle Ratcliff had stolen. Shrock delivered the items to Captain Short on

February 1, 2012.

       In the meantime, Ratcliff had driven the car to Portsmouth, Ohio, where some of his

relatives lived. Eventually, an individual living in the house in Portsmouth where Ratcliff

had been staying contacted police officials in Portsmouth with information concerning

Ratcliff’s whereabouts and the VIN number for the stolen car. The Portsmouth police in turn

contacted the Wabash City Police Department, who confirmed that they were looking for


                                               3
both Ratcliff and the car. Ratcliff was then arrested by Portsmouth police on February 18,

2012.

        On February 20, 2012, Ratcliff was charged with Burglary and Auto Theft.

        A jury trial was conducted on April 10 and 11, 2012. During the trial, Shrock testified

that Ratcliff had implicated Freeman in the burglary, and evidence was introduced

concerning two different sets of footprints in the snow outside the Drive Auto dealership.

After the close of evidence, the State requested that the trial court instruct the jury concerning

accessory liability with respect to the charges against Ratcliff. Ratcliff objected, but the trial

court overruled the objection and issued the State’s proposed instruction.

        On April 11, 2012, the jury found Ratcliff guilty as charged. A sentencing hearing

was conducted on May 7, 2012, at the conclusion of which Ratcliff was sentenced to seven

years imprisonment for Burglary with one year suspended to probation, and three years

imprisonment for Auto Theft. The terms of imprisonment were run concurrently, yielding an

aggregate term of imprisonment of seven years, with one year suspended to probation. The

trial court also entered a restitution order in the amount of $4,748.35.

        This appeal ensued.

                                   Discussion and Decision

                                Accessory Liability Instruction

        We turn first to Ratcliff’s argument that the trial court abused its discretion when it

instructed the jury on accessory liability with respect to the charged offenses.

        When reviewing a trial court’s decision to give or refuse to give a party’s
        tendered instruction, we consider “(1) whether the tendered instruction

                                                4
       correctly states the law; (2) whether there was evidence presented at trial to
       support giving the instruction; and, (3) whether the substance of the instruction
       was covered by other instructions that were given.” Mayes v. State, 744
       N.E.2d 390, 394 (Ind. 2001). The trial court has broad discretion as to how to
       instruct the jury, and we generally review that discretion only for abuse. Id.

Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012).

       Here, the State proffered and the trial court accepted the following instruction:

       A person who knowingly or intentionally aids, induces, or causes another
       person to commit an offense commits that offense, even if the other person:

          1) Has not been prosecuted for that offense;


          2) Has not been convicted of the offense; or


          3) Has been acquitted of the offense.


(App. at 14.) The language of the instruction is identical to the language of Indiana Code

section 35-41-2-4, which sets forth the offense of Aiding, Inducing, or Causing an Offense,

and Ratcliff does not argue that the instruction was an incorrect statement of the law.

       We thus turn to Ratcliff’s argument that there was not sufficient evidence to support

the instruction. At trial, Shrock testified that when Ratcliff brought the stolen car to her

home, he told her that Freeman had helped him take the car from the Drive Now dealership.

Shrock also testified that Ratcliff told her that he and Freeman had entered the dealership and

that Freeman smoked marijuana in the dealership office while Ratcliff decided which of the

dealership’s cars he wanted to take.

       Further, when Captain Short investigated the scene at Drive Now, he identified and

photographed two different sets of footprints in the snow near the store. One of them, with

                                              5
prints shaped like those from work boots, went from the back of the dealership to a key box.

A second set of footprints was shaped “more like … a cowboy boot print,” and was smooth

and flat. (Tr. at 145-46.) Freeman testified that Ratcliff usually wore cowboy boots, and

Shrock confirmed that “whether it’s winter, summer, or fall … [m]ost of the time, [Ratcliff

is] in cowboy boots.” (Tr. at 133.)

       Based upon this, we cannot conclude that there was insufficient evidence upon which

the trial court could instruct the jury as to accessory liability.

                                  Sufficiency of the Evidence

       Ratcliff further argues that there was insufficient evidence to sustain his convictions

for Burglary and Auto Theft. Our standard of review in such cases is well settled. We

consider only the probative evidence and reasonable inferences supporting the verdict. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or

reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v. State, 751

N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       We address in turn each of the convictions from which Ratcliff now appeals.

                                            Burglary

       To convict Ratcliff of Burglary, as a Class C felony, as charged, the State was

required to prove beyond a reasonable doubt that on or between January 1, 2012, and January



                                                6
26, 2012, Ratcliff broke and entered into the building or structure of Drive Now, with intent

to commit a felony in it, namely, theft. I.C. § 35-43-2-1; App. at 35.

       At trial, Chris Volkers (“Volkers”), the manager of the Drive Now location in

Wabash, testified that he did not know Ratcliff and had never provided him with permission

to enter the Drive Now building after business hours. After returning to the Drive Now store

on January 26, 2012, Volkers noticed that car keys were missing from a lock box in the store,

contacted police, and eventually discovered that the back door of the store had been broken.

       Freeman testified that Ratcliff called Freeman’s cell phone on the evening of January

25, 2012, and said “he kicked in the back door and had been right in the little back room and

want[ed] me to go with him and show him where to go.” (Tr. at 111.) Freeman testified that

when he asked Ratcliff “where he was talking about,” Ratcliff said he was at Drive Now.

(Tr. at 111.) Freeman testified that Ratcliff knew he used to work there and that Ratcliff

offered Freeman any money found inside the store if Freeman would come to the dealership

to help.

       Shrock testified that Ratcliff told her that he and Freeman had broken into the store.

Shrock went on to testify that Ratcliff told her that he would not have broken into the store

except that Freeman had told him where the money and car keys could be found.

       To the extent Ratcliff now argues that there was little or no scientific or other forensic

evidence of his involvement in the burglary, we decline his invitations to reweigh the

evidence. The testimony offered by Freeman and Shrock is sufficient for a reasonable jury to




                                               7
conclude beyond a reasonable doubt that Ratcliff burglarized the Drive Now dealership, and

we therefore affirm his conviction on that count.

                                            Auto Theft

       Ratcliff was also convicted of Auto Theft, as a Class D felony. To convict Ratcliff of

Auto Theft, as charged, the State was required to prove beyond a reasonable doubt that on or

between January 1, 2012, and January 26, 2012, Ratcliff knowingly or intentionally exerted

unauthorized control over a motor vehicle owned by Drive Now, with intent to deprive Drive

Now of the vehicle’s use or value. I.C. § 35-43-4-2.5(b); App. at 35.

       At trial, Volkers testified that he did not know Ratcliff and had not authorized Ratcliff

to drive the Chrysler Sebring taken from the dealership’s lot. Freeman testified that Ratcliff

called him on the evening of January 25, 2012, to find out where money and car keys for

Drive Now’s car inventory were kept. Shrock testified that when Ratcliff arrived at her home

that night, he showed her the car, admitted that he had stolen the vehicle, and asked Shrock to

help him obtain license plates and registration information from the nearly identical car

belonging to Shrock’s boyfriend, Johnson. Shrock testified that at first she thought Ratcliff

was driving Johnson’s car, but when she confronted Ratcliff about the origins of the car, he

told her that, “This car is talking to me. It wants to be mine.” (Tr. at 126.) Shrock testified

that after the balloon and several stickers were removed from the car, she put them in the

trash on Ratcliff’s request, but still had the items when Captain Short sought to speak with

her. Shrock provided the stickers and balloon to Captain Short, and the items were entered

into evidence at trial without objection.


                                                8
       Officer Brett Ervin (“Officer Ervin”), a police officer in Portsmouth, Ohio, was

present at the time of Ratcliff’s arrest on February 18, 2012. He testified that he and other

officers were directed to the house in which Ratcliff was staying by a call placed to dispatch

by Fred Worthington, who met the police officers at the door of the residence. Ratcliff was

located and arrested in the home and was found hiding in an upstairs bedroom. The Chrysler

Sebring was found in the backyard of the house, and the VIN number of the car matched the

records provided by management of Drive Now. Officer Ervin noted that parts appeared to

have been removed from the car while it was in Ohio.

       All of this is sufficient evidence from which a reasonable jury could conclude beyond

a reasonable doubt that Ratcliff committed Auto Theft, as charged. We therefore affirm

Ratcliff’s conviction on this count.

                                         Sentencing

       We turn now to Ratcliff’s arguments concerning his sentencing. Ratliff contends that

the trial court abused its discretion when it found certain aggravating circumstances and

disregarded certain claimed mitigating circumstances. He also seeks to have us revise his

sentence downward or suspend more of his sentence to probation.

       The imposition of a sentence and its appellate review follows the scheme set forth in

Anglemyer:

       To summarize, the imposition of sentence and the review of sentences on
       appeal should proceed as follows:

       1. The trial court must enter a statement including reasonably detailed reasons
       or circumstances for imposing a particular sentence.



                                              9
       2. The reasons given, and the omission of reasons arguably supported by the
       record, are reviewable on appeal for abuse of discretion.

       3. The relative weight or value assignable to reasons properly found or those
       which should have been found is not subject to review for abuse.

       4. Appellate review of the merits of a sentence may be sought on the grounds
       outlined in Appellate Rule 7(B).

Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

       To the extent Ratcliff challenges his sentence on the basis of the trial court’s

determination of aggravating and mitigating circumstances, we review that decision for an

abuse of discretion.

       One way in which a trial court may abuse its discretion is failing to enter a
       sentencing statement at all. Other examples include entering a sentencing
       statement that explains reasons for imposing a sentence—including a finding
       of aggravating and mitigating factors if any—but the record does not support
       the reasons, or the sentencing statement omits reasons that are clearly
       supported by the record and advanced for consideration, or the reasons given
       are improper as a matter of law. Under those circumstances, remand for
       resentencing may be the appropriate remedy if we cannot say with confidence
       that the trial court would have imposed the same sentence had it properly
       considered reasons that enjoy support in the record.

Id. at 490-91.

       Here, Ratcliff attacks the trial court’s finding as aggravating circumstances that a

lower sentence would depreciate the seriousness of his offense and that he did not express

remorse. Only one valid aggravating circumstance need be found to impose an enhanced

sentence. Smith v. State, 908 N.E.2d 1251, 1253 (Ind. Ct. App. 2009). “Even if a trial court

improperly applies an aggravator, a sentence enhancement may be upheld when there is

another valid aggravating circumstance.” Edrington v. State, 909 N.E.2d 1093, 1097 (Ind.



                                            10
Ct. App. 2009), trans. denied. Ratcliff does not challenge the validity of the use of his

extensive prior criminal and juvenile history as an aggravating factor. Thus, even assuming

the trial court found improper aggravating circumstances as Ratcliff now claims, we decline

to conclude that the trial court abused its discretion in imposing an enhanced sentence.

        Nor do we agree with Ratcliff that the trial court did not take proper account of any

proffered mitigating circumstances. Ratcliff argues that his imprisonment would cause

undue hardship to his minor child, and contends that the trial court disregarded this

mitigating factor. The trial court did not disregard this matter; rather, the trial court

concluded that Ratcliff’s imprisonment would not constitute such a burden because Ratcliff

had no history of employment or otherwise providing support for the child. And, given

Ratcliff’s extensive prior adult criminal history, we cannot conclude that the trial court

improperly disregarded his young age as a mitigating circumstance upon sentencing. See

Bostick v. State, 804 N.E.2d 218, 225 (Ind. Ct. App. 2004) (holding no abuse of discretion

occurred where trial court did not find young age of defendant to be a mitigating

circumstance where defendant was twenty-four years old at time of the offense). The trial

court expressly found there to be no mitigating factors, and we cannot conclude that this was

an abuse of discretion.3




3
 To the extent Ratcliff complains that the trial court mentioned a guilty plea and observes that he did not
enter a guilty plea or plea agreement, we note that he makes no argument that he was prejudiced by this
error. We therefore do not address the matter in our opinion today.

                                                     11
       Finally, we turn to Ratcliff’s argument that his sentence is inappropriate. In Reid v.

State, the Indiana Supreme Court reiterated the standard by which our state appellate courts

independently review criminal sentences:

       Although a trial court may have acted within its lawful discretion in
       determining a sentence, Article VII, Sections 4 and 6 of the Indiana
       Constitution authorize independent appellate review and revision of a sentence
       through Indiana Appellate Rule 7(B), which provides that a 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 burden is on the
       defendant to persuade us that his sentence is inappropriate.

876 N.E.2d 1114, 1116 (Ind. 2007) (internal quotation and citations omitted).

       The Court more recently stated that “sentencing 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). Indiana’s flexible sentencing scheme allows trial

courts to tailor a sentence appropriate to the circumstances presented. See id. at 1224. One

purpose of appellate review is to attempt to “leaven the outliers.” Id. at 1225. “Whether we

regard a sentence as appropriate 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 factors

that come to light in a given case.” Id. at 1224.

       Ratcliff was convicted after a jury trial of Burglary, as a Class C felony, and Auto

Theft, as a Class D felony. The sentencing range for Burglary, as charged, runs from two to

eight years imprisonment, with a statutory advisory term of four years. I.C. § 35-50-2-6(a).

The sentencing range for Auto Theft, as charged, runs from six months to three years, with an

advisory sentence of eighteen months. I.C. § 35-50-2-7(a). Ratcliff was sentenced to seven

                                               12
years of imprisonment for Burglary and three years of imprisonment for Auto Theft, with the

terms run concurrently and one year of the sentence for Burglary suspended to probation.

       Turning first to the nature of Ratcliff’s offenses, Ratcliff kicked in the back door of

the Drive Now dealership, and sought assistance from Freeman, a former employee, in

locating items to steal. There is no evidence that Ratcliff obtained any money from the

business. However, Ratcliff stole the 2002 Chrysler Sebring and multiple sets of car keys

from the business. After obtaining the car, Ratcliff drove the vehicle to Portsmouth, Ohio,

where the vehicle remained for nearly one month. Parts were removed from the vehicle. The

owner of Drive Now, the Mike Anderson Auto Group (“Mike Anderson”), provided a

victim’s impact statement that indicated that it had purchased the vehicle as a trade-in for

$3,250.00 and spent $1,207.35 to prepare the car for sale. After the burglary, five car keys

were replaced at a cost of $10.00. After Ratcliff was arrested, the vehicle was towed from

Ohio to Indiana at a cost of $411.00. Mike Anderson ultimately sold the vehicle at auction

for $130.00, after which the car was destroyed. Thus, the nature of Ratcliff’s offenses

support sentences elevated from the statutory advisory terms.

       Turning now to Ratcliff’s character, we observe that he has a long history of adult

criminal and juvenile delinquent activity. Ratcliff’s criminal history in Indiana includes one

felony conviction for strangulation, two misdemeanor convictions for possession of

marijuana, and two misdemeanor convictions for battery. Ratcliff has also had probation

revoked once before. In Ohio, Ratcliff has been convicted of misdemeanor illegal possession

of alcohol, and has an extensive history of juvenile adjudications for numerous offenses that


                                             13
would constitute domestic violence, aggravated assault, disorderly conduct, petty theft, and

assault if committed by an adult.

       Ratcliff has a long history of substance abuse. He has used alcohol since age ten and

regularly consumed alcohol beginning at age thirteen. Ratcliff also began using marijuana

regularly at age thirteen, and admitted to smoking the drug around ten times monthly. Prior

to his arrest in this case, he remained sober for only two months since his release from

detention as a juvenile in Ohio. Though Ratcliff has received mental health and substance

abuse counseling, he admits to having manipulated prior counselors. Ratcliff has not held

solid employment in the past, and was terminated from his most recent job because “drugs

got in the way.” (Tr. at 268.)

       Taking together the nature of Ratcliff’s offenses and his character, Ratcliff has not

persuaded us that the trial court’s imposition of an aggregate seven-year term of

imprisonment, with one year suspended to probation, is inappropriate. We therefore decline

his request that we revise his sentence.

                                           Conclusion

       The trial court did not abuse its discretion when it issued a jury instruction concerning

accessory liability. There was sufficient evidence to sustain Ratcliff’s convictions for

Burglary and Auto Theft. Ratcliff’s sentence is not inappropriate under Appellate Rule 7(B).

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                              14
