                                                                          FILED
                                                                      Nov 14 2018, 5:25 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan Shipley                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana                                     James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Norris,                                           November 14, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-86
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Alicia Gooden,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Richard E.
                                                          Hagenmaier, Commissioner
                                                          Trial Court Cause No.
                                                          49G21-1702-F4-4925



Pyle, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018                           Page 1 of 20
                                        Statement of the Case

[1]   Michael Norris (“Norris”) appeals his convictions following a bifurcated jury

      trial for Level 4 felony possession of a firearm by a serious violent felon,1 Level

      6 felony resisting law enforcement,2 and Class A misdemeanor resisting law

      enforcement.3 Norris argues that: (1) the State committed prosecutorial

      misconduct during closing argument; (2) the two convictions for resisting law

      enforcement violate the continuous crime doctrine; and (3) the trial court

      improperly sentenced him.


[2]   We conclude that the State did not commit prosecutorial misconduct; Norris’

      misdemeanor conviction for resisting law enforcement violates the continuous

      crime doctrine; and the trial court did not improperly sentence Norris. The

      judgment of the trial court is affirmed in part, reversed in part, and remanded

      with instructions for the trial court to vacate the Class A misdemeanor resisting

      law enforcement conviction and enter a new sentencing order and abstract of

      judgment to reflect the vacated conviction.


[3]   We affirm in part, reverse in part, and remand with instructions.


                                                     Issues




      1
          IND. CODE § 35-47-4-5.
      2
          I.C. § 35-44.1-3-1.
      3
          I.C. § 35-44.1-3-1.


      Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 2 of 20
          1. Whether the prosecutor’s statement during closing argument constitute
             prosecutorial misconduct.

          2. Whether the two resisting law enforcement convictions violate the
             continuous crime doctrine.

          3. Whether the trial court improperly sentenced Norris.


                                                      Facts

[4]   At approximately 4:00 a.m. on February 4, 2017, officers from the Beech Grove

      Police Department responded to a report of a disturbance at a residence.

      Officer Lee Huffman (“Officer Huffman”) arrived on scene and was directed to

      a vehicle that was stopped in an alley behind the residence. Officer Huffman

      observed a silver van in the alley pull away and drive northbound. He followed

      the van and using his in-car radar unit, determined that the van was traveling

      forty-eight (48) miles per hour in an area with a speed limit of twenty-five (25)

      miles per hour. Officer Huffman initiated a traffic stop and activated the

      emergency lights on his marked police car. The van did not stop and

      accelerated to a higher speed. Officer Huffman then turned on his siren. The

      van continued driving at a high rate of speed and eventually crashed into a tree.


[5]   Norris, the driver and sole occupant, stumbled out of the van. Officer Huffman

      observed Norris “reaching into his waistband area or pockets.” (Tr. 118).

      Officer Huffman could not tell exactly what he was reaching for, but “he was

      reaching for something.” (Tr. 118). Norris then fled northbound toward a tree

      line and Officer Huffman, who was in a fully marked police uniform, “yell[ed]

      at him to stop, get on the ground, police.” (Tr. 117). As Norris fled, Officer
      Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 3 of 20
      Huffman observed Norris toss an object near a tree. Officer Huffman could not

      see what the object was. Norris ran to a ravine, where he jumped and rolled

      down it. Officer Huffman pursued Norris and was able to apprehend him.


[6]   Officer Huffman returned to the scene of the accident with Norris and informed

      an assisting officer of the “general area” where he had seen Norris throw an

      object to the ground. (Tr. 120, 135). The assisting officer located a Smith &

      Wesson nine-millimeter handgun next to a tree on top of some leaves “within

      seconds” of Officer Huffman advising of the area where the object was thrown.

      (Tr. 136).


[7]   On February 6, 2017, the State charged Norris with: Count I, unlawful

      possession of a firearm by a serious violent felon, a Level 4 felony; Count II,

      resisting law enforcement, a Level 6 felony; Count III, possession of a

      controlled substance, a Level 6 felony; and Count IV, resisting law

      enforcement, a Class A misdemeanor.4 A one-day bifurcated jury trial was held

      on November 30, 2017. The jury was instructed that in the first phase of the

      trial, it would determine whether Norris knowingly or intentionally possessed a

      firearm as charged in Count I and on the two resisting law enforcement counts.

      The jury was also instructed that it would determine whether the possession of

      a firearm was legal or illegal during the second phase of the trial.




      4
        The State dismissed Count III in the charging information on June 9, 2017. While the misdemeanor
      resisting law enforcement count was Count IV in the charging information, it was listed as Count III in the
      jury instructions and verdict forms. It was listed as Count IV in the sentencing order.

      Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018                              Page 4 of 20
[8]   The prosecutor argued the following during closing arguments for the first

      phase of the trial:

              Now we get to the possession of the firearm. Is Mr. Norris the
              unluckiest man in Beech Grove that on this day, he decides that
              he’s going to flee from police in [a] car, crashes that car, runs on
              foot, and then rolling down a ravine, and then, lo and behold,
              just where he happens to be after doing that, there’s a gun that
              he’s not allowed to possess – that it’s unlawful for him to have.

      (Tr. 160) (emphasis added). Counsel for Norris objected, stating, “[t]here’s no

      evidence that it’s unlawful. That’s the whole point of bifurcating the trial.” (Tr.

      160). He requested an admonishment and also moved for a mistrial “just for

      the purposes of making the record.” (Tr. 161). The trial court admonished the

      jury as follows:


              All right. Ladies and gentlemen of the jury, the only issue as far
              as the gun is whether he possessed it at this point. Whether it
              was unlawful or not has not yet been determined, and that will be
              covered in the instructions. Okay? All right.

      (Tr. 161). The prosecutor then argued to the jury, without objection, that the

      reason, “[Norris] fled after that accident knowing it was – he was injured –

      because he had to get rid of a gun, and that’s what he did.” (Tr. 162). Counsel

      for Norris then argued in closing:

              There’s a lot of reasons why a young black man might run, even
              before he knows that it’s a police officer. He’s sitting in an alley.
              He sees a car creeping up behind him. That doesn’t mean that
              he’s running because he’s got this gun. There’s all kinds of
              reasons that he could be running, none of them right, but still
              reasons.



      Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018            Page 5 of 20
       (Tr. 168). On rebuttal, the prosecutor argued, “he has a gun he is not supposed

       to have. He needed to get it – needed to get it away from his body.” (Tr. 171).

       Counsel for Norris again objected, and the trial court overruled the objection.


[9]    In the first phase of the trial, the jury returned guilty verdicts on the possession

       aspect of Count I and the two resisting law enforcement counts. Norris then

       waived his right to a jury trial for the second phase of the trial on his status as a

       serious violent felon. Norris admitted to the charged prior conviction alleged in

       support of the serious violent felon charge. The trial court conducted a

       sentencing hearing on December 18, 2017. For the Level 4 felony possession of

       a firearm by a serious violent felon conviction, the trial court sentenced Norris

       to twelve (12) years, with eight (8) years executed in the Department of

       Correction, two (2) years executed on Marion County Community Corrections,

       and two (2) years suspended to probation. For the Level 6 felony resisting law

       enforcement conviction, the court sentenced Norris to 636 days in the

       Department of Correction. For the Class A misdemeanor resisting law

       enforcement conviction, the court sentenced Norris to one (1) year in the

       Department of Correction and ordered all counts to run concurrently. Norris

       now appeals.


                                                    Decision

[10]   On appeal, Norris argues that: (1) the State committed prosecutorial

       misconduct; (2) his two convictions for resisting law enforcement violate the



       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018         Page 6 of 20
       continuous crime doctrine; and (3) the trial court improperly sentenced him.

       We will address each of these arguments in turn.


       1. Prosecutorial Misconduct

[11]   First, Norris asserts that two of the prosecutor’s closing statements constituted

       prosecutorial misconduct. When reviewing a claim of prosecutorial

       misconduct, we must first consider whether the prosecutor engaged in

       misconduct. Williams v. State, 724 N.E.2d 1070, 1080 (Ind. 2000), reh’g denied,

       cert. denied. “We then consider whether the alleged misconduct placed the

       defendant in a position of grave peril to which [he] should not have been

       subjected.” Id. “Whether a prosecutor’s argument constitutes misconduct is

       measured by reference to case law and the Rules of Professional Conduct.”

       Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “The gravity of the peril is

       measured by the probable persuasive effect of the misconduct on the jury’s

       decision rather than the degree of impropriety of the conduct.” Id. In addition

       to the persuasiveness of a comment, a court should also consider the strength of

       the State’s case. Oldham v. State, 779 N.E.2d 1162, 1175 (Ind. Ct. App. 2002),

       trans. denied. “To preserve a claim of prosecutorial misconduct, the defendant

       must—at the time the alleged misconduct occurs—request an admonishment to

       the jury, and if further relief is desired, move for a mistrial.” Jerden v. State, 37

       N.E.3d 494, 498 (Ind. Ct. App. 2015). Failure to do so results in waiver. Id.


[12]   Norris asserts that the prosecutor’s repeated statements to the jury that he was

       not legally allowed to have a gun, when the State had not presented any

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018          Page 7 of 20
       evidence to support this assertion, put him in “grave peril” and had a strong

       “probable persuasive effect” on the jury. (Norris’ Br. 15). Specifically, he cites

       the following statements:


               Now we get to the possession of the firearm. Is Mr. Norris the
               unluckiest man in Beech Grove that on this day, he decides that
               he’s going to flee from police in car, crashes that car, runs on
               foot, and then rolling down a ravine, and then, lo and behold,
               just where he happens to be after doing that, there’s a gun that
               he’s not allowed to possess – that it’s unlawful for him to have.

                                                       * * *

               What are you reaching for? You’re going to reach for what – a
               cell phone? – and risk getting shot by the police officer who’s
               chasing you? No, he has a gun he is not supposed to have. He
               needed to get it – needed to get it away from his body.

       (Tr. 160, 171).


[13]   A prosecutor must confine closing argument to comments based only upon the

       evidence in the record. Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001), reh’g

       denied, cert. denied. Further, Indiana Professional Conduct Rule 3.4(e) provides:

               A lawyer shall not … in trial, allude to any matter that the lawyer
               does not reasonably believe is relevant or that will not be
               supported by admissible evidence, assert personal knowledge of
               facts in issue except when testifying as a witness, or state a
               personal opinion as to the justness of a cause, the credibility of a
               witness, the culpability of a civil litigant or the guilt or innocence
               of an accused.


[14]   The prosecutor’s first statement was misconduct, but it did not put Norris in

       grave peril. This was a one-day trial. A substantial portion of the morning was

       devoted to jury voir dire, and the court’s fifteen preliminary instructions were

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018          Page 8 of 20
       read to the jurors following their lunch break. Among other things, these

       preliminary instructions advised the jury that the defendant is innocent and that

       the State has the burden to prove that the defendant is guilty beyond a

       reasonable doubt of every essential element of the charged offenses. The

       preliminary instructions also stated:

               The trial of Count I will be in two stages. In the first stage, there
               will be a trial on the issue of whether the Defendant knowingly or
               intentionally possessed the firearm as charged. If you find
               beyond a reasonable doubt, that the defendant knowingly or
               intentionally possessed the firearm as charged, there will be a
               second stage of the trial. In the second stage, there will be a trial
               on the issue of whether the possession of the firearm was legal or
               illegal.


       (Tr. 100). The final instructions referred the jury to the court’s preliminary

       instructions and again advised the jurors that the trial on Count I was in two

       stages. Thus, the jury was properly instructed on the procedures for the trial

       and the elements of the charged offenses.


[15]   Second, our review of the transcript reveals that the prosecutor did not

       introduce any evidence during the first phase of the trial to show that Norris

       was not legally allowed to possess a gun. While it was improper for the

       prosecutor to tell the jury that “there’s a gun that [Norris is] not allowed to

       possess – that is unlawful for him to have[,]” the trial court immediately issued

       the following admonishment to the jury:

               All right. Ladies and gentlemen of the jury, the only issue as far
               as the gun is whether he possessed it at this point. Whether it
               was unlawful or not has not yet been determined, and that will be
               covered in the instructions. Okay? All right.

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018        Page 9 of 20
       (Tr. 161). If the trial court gives an admonishment, it may be considered in

       determining whether the misconduct was harmless. Bonner v. State, 650 N.E.2d

       1139, 1142 (Ind. 1995). Accordingly, we find that, in this case, the misconduct

       committed by the prosecutor was adequately addressed by the trial court’s

       admonishment, and Norris has not shown that the prosecutor’s statements

       placed him in grave peril.


[16]   Concerning the prosecutor’s statement in rebuttal that Norris was “not

       supposed to have” a gun, we find that this statement was designed to counter

       Norris’ closing argument that “he had motives to flee other than the crime

       charged – that is, to avoid arrest on unrelated matters.” (Norris’ Br. 16). See

       Cooper, 854 N.E.2d at 836 (explaining that “[p]rosecutors are entitled to respond

       to allegations and inferences raised by the defense even if the prosecutor’s

       response would otherwise be objectionable”). That said, to the extent that

       Norris argues that the prosecutor’s statements constitute prosecutorial

       misconduct, he invited any such error. “‘A party may not invite error, then

       later argue that the error supports reversal, because error invited by the

       complaining party is not reversible error. ’” Booher v. State, 773 N.E.2d 814, 822

       (Ind. 2002) (citing Ellis v. State, 707 N.E.2d 797, 803 (Ind. 1999) (quoting

       Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995), reh’g denied)).


[17]   Lastly, any probable persuasive effect was further lessened by the overall

       strength of the State’s case. Where there is overwhelming independent

       evidence of a defendant’s guilt, error made by a prosecutor during the closing


       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 10 of 20
       argument may be harmless. Coleman v. State, 750 N.E.2d 370, 375 (Ind. 2001).

       Here, Norris fled from the police, crashed his vehicle, fled from the scene, an

       officer observed him throw an object, and a gun was recovered “within

       seconds” in the area where he was observed to have thrown an object. (Tr.

       136).


[18]   In light of the instructions, the trial court’s admonishment to the jury, and the

       overall strength of the State’s case, we conclude that Norris has failed to show

       that the statements subjected him to grave peril to which he would not have

       been subjected otherwise.5 See Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)

       (explaining that a claim of prosecutorial misconduct involves both a showing

       that the prosecutor engaged in misconduct and that the misconduct placed the

       defendant in a position of grave peril), reh’g denied.


       2. Continuous Crime Doctrine

[19]   Norris next argues that his two resisting law enforcement convictions violate

       the continuous crime doctrine. Specifically, he argues that the trial court erred

       when it entered judgment of convictions on the two counts because they were

       based on one continuous incident, violating the continuous crime doctrine. The

       continuous crime doctrine is a category of Indiana’s prohibition against double




       5
        Although the prosecutor’s statements did not rise to the level of prosecutorial misconduct, we do not
       condone the State’s failure to follow instructions. The State should never have sought to draw the jury’s
       attention to Norris’s inability to possess a firearm during phase one of the trial.

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018                              Page 11 of 20
       jeopardy. It provides that, under such circumstances, a defendant cannot be

       charged multiple times for the same offense. See Hines v. State, 30 N.E.3d 1216,

       1220 (Ind. 2015). The State agrees with Norris. Both Norris and the State ask

       that we reverse the conviction for Class A misdemeanor resisting law

       enforcement to resolve the continuous crime doctrine violation.


[20]   A person commits the offense of Class A misdemeanor resisting law

       enforcement by fleeing from a law enforcement officer after the officer has, by

       visible or audible means, identified himself and ordered the person to stop. I.C.

       § 35-44.1-3-1(a)(3). The offense is a Level 6 felony if the person “uses a vehicle

       to commit the offense.” I.C. § 35-44.1-3-1(b)(1)(A).


[21]   This Court has held in several cases that a defendant cannot be convicted of

       both misdemeanor and felony resisting law enforcement when he or she flees in

       a vehicle, gets out, and immediately flees on foot. See, e.g., Lewis v. State, 43

       N.E.3d 689, 691 (Ind. Ct. App. 2015); Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct.

       App. 2004). In both of these cases, the defendant fled from the police in a

       vehicle, got out of the vehicle, and continued to flee from the police on foot.

       He was charged and convicted of both misdemeanor and felony resisting law

       enforcement and this Court vacated the misdemeanor resisting convictions.

       Lewis, 43 N.E.2d at 691; Nevel, 818 N.E.2d at 5.


[22]   The instant case is in line with the above cited cases. Norris’ actions of fleeing

       by vehicle and then on foot constitute one continuous act of resisting law

       enforcement, and we hold that convictions on both counts cannot stand. Lewis,


       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018        Page 12 of 20
       43 N.E.2d at 691; Nevel, 818 N.E.2d at 5. Our holdings are also consistent with

       our supreme court’s decision in Hines, 30 N.E.3d at 1220, where the court

       clarified that the continuous crime doctrine applies “only where a defendant has

       been charged multiple times with the same ‘continuous’ offense.” Our supreme

       court further explained that “[t]he Legislature, not this Court, defines when a

       criminal offense is continuous, e.g. not terminated by a single act or fact but

       subsisting for a definite period and covering successive, similar occurrences.”

       Id. at 1219. We hereby remand this case to the trial court with instructions to

       vacate Norris’ conviction for Class A misdemeanor resisting law enforcement

       and to amend the abstract of judgment, chronological case summary, and any

       other relevant court documents to reflect the vacated Class A misdemeanor

       conviction.


       3. Sentencing

[23]   Norris argues that the trial court improperly sentenced him. Specifically, he

       argues that the trial court abused its discretion and his sentence is inappropriate

       in light of the nature of the offense and his character. We will address each

       argument in turn.


       A. Abuse of Discretion


[24]   Norris’ abuse of discretion argument has two components. First, he argues that

       the trial court failed to recognize a mitigating factor. Alternatively, he argues

       that the trial court relied on an improper aggravating factor. Sentencing

       decisions rest within the sound discretion of the trial court. Anglemyer v. State,
       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 13 of 20
       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       So long as the sentence is within the statutory range, it is subject to review only

       for an abuse of discretion. Id. An abuse of discretion will be found where the

       decision is clearly against the logic and effect of the facts and circumstances

       before the court or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. A trial court may abuse its discretion in a number of ways,

       including: (1) failing to enter a sentencing statement at all; (2) entering a

       sentencing statement that includes aggravating and mitigating factors that are

       unsupported by the record; (3) entering a sentencing statement that omits

       reasons that are clearly supported by the record; or (4) entering a sentencing

       statement that includes reasons that are improper as a matter of law. Id. at 490–

       91.


[25]   Turning to his first contention, Norris specifically argues that the trial court

       failed to recognize as a mitigating factor his admission that he had a prior

       conviction that made him a serious violent felon. In support of this argument,

       he contends that his decision to admit and waive phase two of his trial “saved

       the trial court, the jury, and the State significant time and resources.” (Norris’

       Br. 24). “‘The finding of mitigating factors is not mandatory and rests within

       the discretion of the trial court.’” Page v. State, 878 N.E.2d 404, 408 (Ind. Ct.

       App. 2007) (quoting O’Neil v. State, 719 N.E.2d 1243, 1244 (Ind. 1999)), trans.

       denied. In order to show that the trial court abused its discretion in failing to

       find a mitigating factor, the defendant must establish that the mitigating

       evidence is both significant and clearly supported by the record. Rogers v. State,


       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 14 of 20
       958 N.E.2d 4, 9 (Ind. Ct. App. 2011). “‘A guilty plea is not necessarily a

       mitigating factor where the defendant receives substantial benefit from the plea

       or where evidence against the defendant is so strong that the decision to plead

       guilty is merely pragmatic.’” Barker v. State, 994 N.E.2d 306, 312 (Ind. Ct. App.

       2013) (quoting Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied), reh’g denied, trans. denied.


[26]   Here, the State possessed documentation in the form of the charging

       information, sentencing order, and judgment of conviction for Norris’ prior

       felony conviction that made him a serious violent felon such that the decision to

       admit was merely pragmatic.6 Not only was the State ready with the necessary

       documents to prove its case, but the jury was already empaneled and prepared

       for phase two of the proceedings. Accordingly, we conclude that the trial court

       did not abuse its discretion.


[27]   Next, Norris argues that the trial court abused its discretion because it relied on

       his prior 2012 resisting law enforcement conviction as an aggravating factor

       when it was an element of the offense. Norris acknowledges that the trial court

       noted it “would not consider the prior conviction as an aggravator,” but argues

       that the trial court’s statement that “what weigh’s [sic] heavy on my mind is the

       resistings in these cases” was an improper aggravator as a matter of law.




       6
        While this was an admission to an element of the crime rather than a guilty plea to a count, the trial court
       and the parties recognized that the admission had a similar significance to a guilty plea.

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018                               Page 15 of 20
       (Norris’ Br. 26) (Tr. 206). However, Norris does not quote the trial court’s

       entire statement. In full, the trial court stated:

               I think what weighs heavy on my mind is the resistings in these
               cases. In one case, somebody was hurt. In this case, somebody
               very well could have been hurt and it just shows a desperation
               not to be caught and not to be a person that -- to avoid the
               consequences of your actions and your history.


       (Tr. 206).


[28]   Norris is correct that it is improper as a matter of law to find that a material

       element of a crime is an aggravating circumstance. Gleason v. State, 965 N.E.2d

       702, 711 (Ind. Ct. App. 2012). However, as our supreme court has recently

       explained, while a defendant’s convictions cannot be used to enhance his

       sentence, . . . “the particular facts — the ongoing nature and length of [his]

       criminal conduct — can properly be considered as aggravation.” Phipps v. State,

       90 N.E.3d 1190, 1198 (Ind. 2018).

[29]   Our review of the sentencing-hearing transcript reveals that the trial court did

       not use Norris’ 2012 conviction as an aggravating factor. During sentencing,

       the trial court stated:

               And resisting law enforcement as a Class C misdemeanor or as a
               Class C felony in 2011, which is the predicate. I do notice —
               note that, you know, there was injury in that case to a state
               trooper. But I do note and I will take into account, that his
               incrimination [probation] was revoked and he was ordered to do
               present time in that case. But the conviction, obviously, I will not
               consider as an aggravator above the presumptive.

       (Tr. 205-06) (emphasis added).


       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 16 of 20
[30]   It is clear that during sentencing, the trial court was referring to the particular

       facts of the offense, that his probation was revoked, and that it did not rely upon

       the conviction as an aggravator. The reference to the injury in the 2012 case

       was made in relation to the finding that the instant case evidenced a desperation

       to avoid capture that placed people at risk of injury. This is proper under

       Indiana law. See Gleason, 965 N.E.2d at 711 (holding that while a material

       element of a crime cannot be an aggravating circumstance, the nature and

       circumstances of the crime can be an aggravator and that if the nature of the

       offense is identified as an aggravating factor, the trial court must discuss facts

       that go beyond the statutory requirements of the crime). Accordingly, we

       conclude that the trial court did not abuse its discretion when sentencing

       Norris.


       B. Inappropriate Sentence


[31]   Next, Norris contends that his sentence is inappropriate. This Court may revise

       a sentence if it is inappropriate in light of the nature of the offense and the

       character of the offender. Ind. Appellate Rule 7(B). “The 7(B)

       ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s

       judgment, not unlike the trial court’s discretionary sentencing determination.”

       Knapp v. State, 9 N.E.3d 1274, 1291-92 (Ind. 2014), cert. denied. “On appeal,

       though, we conduct that 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.” Id. at 1292 (internal quotation marks, internal bracket, and citations

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018        Page 17 of 20
       omitted). “Appellate Rule 7(B) analysis is not to determine whether another

       sentence is more appropriate but rather whether the sentence imposed is

       inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012) (internal

       quotation marks and citation omitted), reh’g denied. The defendant has the

       burden of persuading the appellate court that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[32]   “‘[R]egarding the nature of the offense, the advisory sentence is the starting

       point the Legislature has selected as an appropriate sentence for the crime

       committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

       Anglemyer, 868 N.E.2d at 494). Here, Norris was convicted of one Level 4

       felony and one Level 6 felony.7 The sentencing range for a Level 4 felony is

       “for a fixed term of between two (2) and twelve (12) years, with the advisory

       sentence being six (6) years.” I.C. § 35-50-2-5.5. The sentencing range for a

       Level 6 felony is “for a fixed term of between six (6) months and two and one

       half (2 ½) years, with the advisory sentence being one (1) year.” I.C. § 35-50-2-

       7(b). For his Level 4 felony conviction, the trial court sentenced Norris to

       twelve (12) years, with eight years ordered to be executed in the Department of

       Correction, two years to be executed on Marion County Community

       Corrections, and two years suspended to probation, and 636 days for his Level

       6 felony conviction. Accordingly, Norris received the maximum sentence




       7
        Although he was also sentenced for his Class A misdemeanor resisting law enforcement conviction,
       discussion of this is omitted due to our finding that it violated the continuous crime doctrine.

       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018                         Page 18 of 20
       possible for his Level 4 felony and above the advisory sentence for his Level 6

       felony.


[33]   We disagree with Norris’ contention that “the nature of the offense is not so

       egregious that it merits a sentence six years above the advisory.” (Norris’ Br.

       29). Our review of the nature of Norris’ offenses reveals that he possessed a

       firearm as a serious violent felon, fled from the police in a vehicle at a high rate

       of speed in a residential neighborhood and crashed, and then fled from the

       police on foot. Taken together, these circumstances underscore the severity of

       the nature of Norris’ crimes.


[34]   When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

       prior criminal history will vary “based on the gravity, nature and number of

       prior offenses as they relate to the current offense.” Smith v. State, 889 N.E.2d

       261, 263 (Ind. 2008) (internal quotation marks and citation omitted).


[35]   Indeed, the most glaring aspect of Norris’ character is his extensive criminal

       history. He concedes that he has a lengthy criminal history but asks that we

       recognize that his criminal history is “either directly related to substance abuse

       or for crimes closely associated with drug addiction.” (Norris’ Br. 31). This

       argument is unpersuasive. Norris’ criminal history dates backs twenty years.

       Excluding the convictions from the instant case, his history includes five felony

       convictions: (1) a 1998 Class D felony conviction for theft; (2) a 2004 Class C


       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018       Page 19 of 20
       felony conviction for possession of cocaine; (3) a 2012 Class C felony

       conviction for resisting law enforcement; (4) a 2016 Level 6 felony conviction

       for possession of methamphetamine; and (5) a 2016 Level 6 felony conviction

       for residential entry. Norris also has four misdemeanor convictions: (1) a 1999

       Class C misdemeanor conviction for illegal possession of an alcoholic beverage;

       (2) a 2008 Class B misdemeanor conviction for possession of a device or

       substance used to interfere with drug or alcohol screening; (3) a 2014 Class A

       misdemeanor conviction for operating a vehicle while intoxicated; and (4) a

       2015 Class A misdemeanor conviction for theft. Norris was also placed on

       probation three times and had probation revoked all three times. He was also

       terminated from drug treatment court in 2007 and violated the terms of a

       community transition program leading to revocation in 2009. Norris’ current

       offenses are part of a pattern of disregarding the criminal laws of Indiana,

       which reflects negatively on his character. Accordingly, Norris has not

       persuaded us that his sentence is inappropriate.


[36]   Affirmed in part, reversed in part, and remanded with instructions.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-86 | November 14, 2018      Page 20 of 20
