MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                       May 24 2017, 9:42 am

precedent or cited before any court except for the                      CLERK
purpose of establishing the defense of res judicata,                Indiana Supreme Court
                                                                       Court of Appeals
collateral estoppel, or the law of the case.                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Curtis T. Hill, Jr.
Greenwood, Indiana                                       Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Timothy J. Miles,                                        May 24, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1609-CR-2145
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court.
                                                         The Honorable Sean M. Persin,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D05-1512-CM-1337




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017         Page 1 of 19
                                          Statement of the Case
[1]   Timothy J. Miles appeals regarding his conviction of one count of Class A
                                              1
      misdemeanor public indecency. We affirm.


                                                    Issues
[2]   Miles raises several issues for our review, which we reorder and restate as

      follows:

                 I.       Whether the trial court abused its discretion by permitting
                          the State to amend the charging information after the
                          presentation of evidence;
                 II.      Whether the trial court abused its discretion in admitting
                          the 911 tapes at trial;
                 III.     Whether there is sufficient evidence to support Miles’
                          conviction for Class A misdemeanor public indecency;
                 IV.      Whether trial counsel rendered ineffective assistance by
                          failing to object to and move to exclude evidence relating
                          to pre-trial and in-court identifications of Miles on the
                          basis that they were unduly suggestive; and
                 V.       Whether the trial court’s sentence is inappropriate in light
                          of the nature of the offense and the character of the
                          offender.

                                   Facts and Procedural History
[3]   On November 22, 2015, Erika Ford, who at the time of trial was nineteen years

      old, was off work from her job as a cashier at Walmart. She was shopping and




      1
          Ind. Code § 35-45-4-1 (2013).


      Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 2 of 19
      getting lunch with a friend at the Tippecanoe Mall. As they were leaving the

      mall around noon, they observed a person, later identified as Miles, meandering

      between the aisles of cars in the mall parking lot with his penis exposed and in

      his hand.


[4]   Startled by what they had seen, the two quickly proceeded to Ford’s car. When

      they arrived there, they observed Miles, standing in front of Ford’s car with his

      penis exposed and in his hand, while looking directly at Ford. As Ford

      testified, “I was shocked. Kind of just surprised, you don’t see that every day I

      guess.” Tr. p. 65. She called 911 to report the incident as she and her friend left

      the mall parking lot.


[5]   A short time later, Emma Nicoson, who at the time of trial was entering her

      junior year at Purdue University studying retail management, had arrived early

      as usual—around 12:30 p.m.—at the Tippecanoe Mall prior to her shift, which

      began at 1:00 p.m., at the clothing store, Charlotte Russe. She remained in her

      car, catching up on social media and eating a casserole her boyfriend had

      provided for her to eat for lunch before work. She was distracted, however,

      when she observed Miles urinating in the parking lot.


[6]   Although at that point Nicoson did not observe Miles’ genitals, she did observe

      the urine stream emanating from him, indicative of him urinating in public

      between cars in the mall parking lot. Because she was alarmed by this unusual

      behavior, she decided to remain in her car for as long as possible to avoid

      contact with him before she attempted to enter the mall to report for work.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 3 of 19
[7]    She kept vigilant while remaining in her car, hoping that he would move along.

       She noticed, however, that Miles abruptly came toward her parked vehicle. He

       then began smacking his exposed penis against the driver’s side window of her

       car for approximately thirty to forty-five seconds as she sat there. He then

       attempted to enter her car by grabbing the driver’s side door handle, but it was

       locked. According to her trial testimony, she was able to briefly look at his

       face, before dialing 911 for assistance.


[8]    Once Miles became aware that Nicoson was dialing 911, he walked toward a

       black Volkswagen hatchback and got into the car. Nicoson was close enough to

       Miles’ vehicle to read the license plate number—166TCO—to the 911 operator

       and provide a description of the vehicle. She was also able to provide a

       description of Miles, who she observed as he left to walk to his car. He was

       wearing a brown plaid jacket with a hood. Subsequent investigation revealed

       that the vehicle was registered to Miles.


[9]    Lafayette City Police Department Officer Jeffrey Davis was dispatched to the

       mall after Nicoson called 911. Although Ford had already left the scene,

       Officer Davis was able to meet with Nicoson, who, once again, provided a

       description of Miles and the vehicle.


[10]   While patrolling the area, Lafayette City Police Department Officer Jeff Rooze

       located the vehicle matching the description and license plate number given by

       Nicoson. Miles identified himself as the driver of the vehicle. Officer Rooze

       noted that Miles wore black leather boots, blue jeans, and “a plaid brown or


       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 4 of 19
       taupe colored hooded jacket.” Id. at 89. The officer took photographs of Miles’

       fully-clothed backside and Miles’ vehicle.


[11]   Later that same day, Nicoson identified Miles by the jacket he wore and the car

       he drove. Officers also showed her a series of photographs of the backside of

       Miles and of his car. When she testified, she identified Miles in court. Ford

       also testified, identifying Miles in court and recounting the events that she

       witnessed on the day in question.


[12]   The trial court admitted the tape recordings of the 911 calls made by both Ford

       and Nicoson, rejecting Miles’ objection based on lack of foundation. Miles

       later admitted at trial that he was the person in the photographs taken by

       Officer Rooze and that other photographs were of the Volkswagen Rabbit,

       which he was driving near the mall on November 22, 2015.


[13]   The State charged Miles with Class A misdemeanor public indecency. After a

       jury trial, he was found guilty as charged. At his sentencing hearing on August

       31, 2016, the trial court sentenced Miles to 365 days executed in the

       Tippecanoe County Jail. Miles now appeals.


                                    Discussion and Decision
                         I. Amendment of Charging Information
[14]   Miles argues that the trial court abused its discretion by permitting the State to

       amend the charging information, also arguing that fundamental error occurred.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 5 of 19
       The State disagrees, contending that the trial court did not abuse its discretion

       or commit fundamental error.


[15]   The State charged Miles under Indiana Code section 35-45-4-1(a), which

       provides that a person who knowingly or intentionally in a public place appears

       in a state of nudity with the intent to arouse the sexual desires of the person or

       another person or fondles the person’s genitals or the genitals of another person

       commits the Class A misdemeanor offense.


[16]   Prior to voir dire, the trial court stated the following:

               I’m going to start by reading the charging information that were
               [sic] filed in this case but I first must tell you that [] a filing of a
               charge is only a formal method by which the State of Indiana
               brings criminal charges against an individual. The filing of a
               charge is not evidence and should not be considered by you as
               any evidence of guilt. State of Indiana has charged the
               defendant, Timothy J. Miles as follows: Count one public
               indecency. That on or about August twenty-second, two
               thousand and fifteen in Tippecanoe County, State of Indiana,
               that Timothy J. Miles did knowingly or intentionally in a public
               place being the Tippecanoe Mall appear in a state of nudity or
               fondled himself or another person. That gives you a brief
               summary of what the case is about here today.
       Id. at 18-19. The State informed the trial court that the incorrect month was

       read.


[17]   Once the jury was selected, Preliminary Instruction Number 1.07 was given to

       the jury, and, including the correct month, read as follows:




       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 6 of 19
               The State of Indiana has charged the Defendant, Timothy J.
               Miles, as follows:
               Count I, Public Indecency, reads:
               On or about November 22, 2015, in Tippecanoe County, State of
               Indiana, Timothy J. Miles did knowingly or intentionally, in a
               public place, to wit: Tippecanoe Mall, appear in a state of nudity
               or fondled himself or another person.
       Appellant’s App. p. 12.


[18]   The trial court gave Preliminary Instruction Number 6.0400 regarding the

       offense of public indecency. The instruction, which was given by agreement of

       the parties, read as follows:


               The crime of public indecency is defined by law in part as
               follows:
               A person who knowingly or intentionally in a public place (a)
               appears in a state of nudity with the intent to arouse the sexual
               desires of the person or another person, or (b) fondles the
               person’s genitals or the genitals of another person commits public
               indecency, a Class A misdemeanor.
               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:
               1.      The Defendant, Timothy J. Miles,
               2.      knowingly or intentionally,
               3.      at the Tippecanoe Mall,
               4.      which was a public place,
               5.      appeared in a state of nudity with the intent to arouse the
                       sexual desires of the Defendant or another person, to wit:
                       Emma Nicoson;
                       or
                       fondled Timothy J. Miles[’] genitals[.]
       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 7 of 19
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               public indecency, a Class A misdemeanor charged in Count I.
       Id. at 12-13.


[19]   After both the State and defense rested, the parties discussed final instructions

       with the trial court. The trial court, on its own, observed that the final

       instruction on public indecency did not track the language of the charging

       information, which contained no reference to the element of intent, and

       expressed concern that the discrepancy might lead to confusion of the jury. The

       State argued that a scrivener’s error resulted in the inadvertent deletion from the

       charging information of the language regarding intent. The State further argued

       that the jury had been informed during the preliminary instructions that intent

       was an element of the offense.


[20]   First, Miles argued that the amendment was untimely, being one of substance,

       not form, and was prejudicial to his defense.


[21]   The charging information filed by the State originally read as follows:


               Information of Public Indecency
               I.C. 35-45-4-1(a) (class A Misdemeanor)
               I.C. 35-45-4-1(b) (Class D Felony)
               The Prosecuting Attorney for the Twenty-Third Judicial Circuit
               of the State of Indiana informs that:
               On or about NOVEMBER 22, 2015, in Tippecanoe County,
               State of Indiana, TIMOTHY J MILES did knowingly or
               intentionally, in a public place, to wit; TIPPECANOE MALL;
               appear in a state of nudity or fondled the genitals of himself or

       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 8 of 19
               another person with the intent to arouse the sexual desires of
               himself or another person in or on a public place where a child
               less that sixteen (16) years of age was present;
               All of which is contrary to the form of the statute in such cases
               made and provided and against the peace and dignity of the State
               of Indiana.
       Id. at 8 (with subsequent amendments handwritten).


[22]   Indiana Code section 35-34-1-5(b) (2013) provides that an information may be

       amended in matters of substance and the names of material witnesses may be

       added upon written notice to the defendant at any time up to thirty days if the

       defendant is charged with a felony or fifteen days if the defendant is charged

       with a misdemeanor before the omnibus date or the commencement of trial if

       the amendment does not prejudice the substantial rights of the defendant.

       Miles contends that allowing the State to amend the information to include the

       language involving the element of intent was an amendment of substance and

       was, therefore, untimely.


[23]   “A charging information may be amended at various stages of a prosecution,

       depending on whether the amendment is to the form or to the substance of the

       original information.” Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014) (quoting

       Fajardo v. State, 859 N.E.2d 1201, 1203 (Ind. 2007)). Whether an amendment

       to a charging information is a matter of substance or form is a question of law,

       which we review de novo. Id. (citing State v. Moss-Dwyer, 686 N.E.2d 109, 110

       (Ind. 1997)).




       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 9 of 19
[24]   In addition to the subsection of the statute cited above, Indiana Code section

       35-34-1-5(c) provides that “[u]pon motion of the prosecuting attorney, the court

       may, at any time before, during, or after the trial, permit an amendment to the

       indictment or information in respect to any defect, imperfection, or omission in

       form which does not prejudice the substantial rights of the defendant.” The

       State argues that the trial court’s decision was based on this subsection of the

       statute.


[25]   “A defendant’s substantial rights ‘include a right to sufficient notice and an

       opportunity to be heard regarding the charge; and, if the amendment does not

       affect any particular defense or change the positions of either of the parties, it

       does not violate these rights.’” Gibson v. State, 51 N.E.3d 204, 211 (Ind. 2016)

       (citing Erkins, 13 N.E.3d at 405 (quoting Gomez v. State, 907 N.E.2d 607, 611

       (Ind. Ct. App. 2009), trans. denied)).


[26]   Miles argues that the language in the original charging information is

       ambiguous and can lead to different interpretations. He argues one

       interpretation is that he could be convicted of public indecency if he appeared in

       a public place in a state of nudity. Appellant’s Br. p. 11. However, a

       conviction based on that evidence would be insufficient without proof of the

       element of his intent to do so to arouse his or Nicoson’s sexual desires.


[27]   He suggests that another interpretation is that he could be convicted if he

       appeared in a state of nudity or fondled the genitals of himself or another

       person with the intent to arouse the sexual desires of himself or another person


       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 10 of 19
       in a public place where a child less than sixteen years of age was present. Id.

       He claimed that there was no evidence that a child less than sixteen years of age

       was present at the time alleged.


[28]   He contends that he should not have been found guilty under either

       interpretation and was prejudiced by the untimely amendment because it

       deprived him of a valid defense under each interpretation.


[29]   At trial, Miles’ defense was that he drove near the mall and through the mall

       parking lot, but never parked his car or got out of the vehicle because of the

       large number of people at the mall. He testified that he did not like to be

       around large groups of people. He also testified about the number (14) of black

       Volkswagens that were registered in Tippecanoe County. Put differently, his

       defense was that he was not the person who did the acts testified about and

       described by Ford and Nicoson.


[30]   The trial court correctly observed that the inadvertent omission of the mens rea

       element from the charging information could hardly be described as a

       scrivener’s error. However, the defense agreed to the preliminary instruction

       which contained the mens rea. Further, the amendment to the charging

       information made the State’s case more tenuous in some respects regarding the

       element of intent because both women testified that Miles’ penis was flaccid.


[31]   Miles thoroughly cross-examined both Ford and Nicoson about what they had

       observed, challenging their identification of him. He was able to present his

       defense that he was not the person who committed the crime charged. Plus, the

       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 11 of 19
       defense agreed to the preliminary instruction which informed the jury of the

       mens rea for the offense, so Miles cannot complain he was surprised by the

       State’s theory of the case, including the level of mental culpability involved.

       The trial court did not abuse its discretion by allowing the amendment.


[32]   Miles additionally argues that the trial court committed fundamental error by

       including the mens rea in the preliminary instruction defining what the State

       was required to prove. Miles makes the fundamental error argument because

       he did not object, but instead agreed, to the preliminary instruction containing

       that language. He argues on appeal that the trial court erred by sua sponte

       amending the language of the preliminary instruction before the State moved

       for the amendment.


[33]   On rare occasions, appellate courts may resort to the fundamental error

       exception to address on direct appeal claims that are otherwise procedurally

       defaulted. Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017). Fundamental error is

       an extremely narrow exception to the general rule requiring a contemporaneous

       objection. Pattison v. State, 54 N.E.3d 361 (Ind. 2016). It is only available when

       the record reveals a clearly blatant violation of basic and elementary principles

       such that the harm or potential for harm cannot be denied and when the

       violation is so prejudicial to the rights of the defendant as to make a fair trial

       impossible. Shoun, 67 N.E.3d at 640.


[34]   Because Miles agreed to the language of the preliminary instruction, the error, if

       any, is invited error. The invited error doctrine prevents a party from taking


       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 12 of 19
       advantage of an error he commits, invites, or is the natural consequence of his

       own neglect or misconduct. Baugh v. State, 933 N.E.2d 1277, 1280 (Ind. 2010).


[35]   Additionally, we would be hard-pressed to hold that a trial court committed

       error, let alone fundamental error, by correctly instructing the jury on the law.

       The trial court did not deprive Miles of a fair trial.


                                   II. Admission of 911 Tapes
[36]   Miles argues that the trial court abused its discretion by admitting the 911 tapes

       in evidence. Trial courts have broad discretion in ruling on the admissibility

       of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review its

       rulings for abuse of that discretion and will reverse only when admission of the

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

       and the error affects a party’s substantial rights. Id.


[37]   The 911 calls were introduced at trial over Miles’ objection as State’s Exhibits 1

       through 6. He argued that neither Nicoson or Ford had personal knowledge of

       the chain of custody of the recordings before they were admitted.


[38]   “The requirement of authentication or identification as a condition precedent to

       admissibility is satisfied by evidence sufficient to support a finding that the

       matter in question is what its proponent claims.” Davenport v. State, 749 N.E.2d

       1144, 1148 (Ind. 2001). Although neither Ford nor Nicoson were familiar with

       the record-keeping procedures for the 911 calls, each reviewed the recordings

       pertinent to them prior to trial and confirmed that the recordings were an

       accurate reflection of the calls and identified their voices.
       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 13 of 19
[39]   Assuming without deciding that the trial court abused its discretion by

       admitting the recordings, the error, if any, was harmless. The 911 recordings

       contained information that was cumulative of Ford’s and Nicoson’s testimony.

       “Even the erroneous admission of evidence which is cumulative of other

       evidence admitted without objection does not constitute reversible error.”

       Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012).


                                   III. Sufficiency of Evidence
[40]   Miles asserts that there is insufficient evidence that he committed public

       indecency as a Class A misdemeanor. To establish beyond a reasonable doubt

       that Miles committed the offense as charged, the State was required to prove

       that Miles knowingly or intentionally appeared in a state of nudity or fondled

       his genitals or those of another person with the intent to arouse his sexual

       desires or those of Nicoson.


[41]   A claim that there is insufficient evidence to support a conviction faces a

       steep standard of review: we consider only the evidence and reasonable

       inferences most favorable to the convictions, neither reweighing evidence nor

       reassessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958 (Ind.

       2016). We affirm the judgment unless no reasonable factfinder could find the

       defendant guilty. Id.


[42]   Ford testified that she observed Miles in the Tippecanoe Mall parking lot, a

       public place, holding his exposed penis in his hand while meandering between

       rows of parked cars. The next time she saw him, she was in her car, and he was

       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 14 of 19
       standing in front of her car, staring directly at her, while holding his exposed

       penis in his hand. Nicoson testified that she first observed Miles urinating

       between cars in the Tippecanoe Mall parking lot. Next, he approached the

       driver’s side of her car and began to repeatedly smack his exposed penis against

       the driver’s side window. He then attempted to open the driver’s side car door.

       It is irrelevant for purposes of the conviction that he was flaccid, because the

       statute required the State to prove that Miles engaged in the conduct with the

       intent to arouse himself or another person, not that he or the other person must

       have already been aroused. The evidence is sufficient to support the conviction.


                          IV. Ineffective Assistance of Trial Counsel
[43]   On direct appeal, Miles raises a claim of ineffective assistance of trial counsel.

       More specifically, he claims that his counsel should have filed a motion to

       suppress Ford’s and Nicoson’s pre-trial identification of him on the basis that

       the photographic display was unduly suggestive, so much so that it tainted their

       in-court identification of him.


[44]   A showing that counsel’s performance was deficient requires proof “that

       counsel made errors so serious that counsel was not functioning as the ‘counsel’

       guaranteed the defendant by the Sixth Amendment” and that the deficient

       performance was “so serious as to deprive the defendant of a fair trial, a trial

       whose result is reliable.” Brewington v. State, 7 N.E.3d 946, 977 (Ind. 2014)

       (quoting Strickland v. Washington, 466 U.S. 558, 687, 104 S. Ct. 2052, 80 L. Ed.

       2d 674 (1984)). On review, that determination requires us to make “every effort

       . . . to eliminate the distorting effects of hindsight, to reconstruct the
       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 15 of 19
       circumstances of counsel’s challenged conduct, and to evaluate the conduct

       from counsel’s perspective at the time”—and thus, to “indulge a strong

       presumption . . . that, under the circumstances, the challenged action ‘might be

       considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91,

       101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). “There are countless ways to provide

       effective assistance in any given case. Even the best criminal defense attorneys

       would not defend a particular client in the same way.” Strickland, 466 U.S. at

       689.


[45]   Though a decision is hypothetically a reasonable strategic choice, it may

       constitute ineffective assistance if the purported choice is actually “made due to

       unacceptable ignorance of the law or some other egregious failure rising to the

       level of deficient attorney performance.” Woods v. State, 701 N.E.2d 1208, 1212

       (Ind. 1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 383-87, 106 S. Ct.

       2574, 91 L. Ed. 2d 305 (1986)). However, when the challenged tactic is

       hypothetically reasonable, overcoming the presumption of competent

       representation by showing an actual misstep is the defendant’s burden. Id.at

       1212 & n.5.


[46]   The defendant’s burden seems more daunting when he risks review of

       an ineffective-assistance claim on direct appeal—because counsel’s reasoning

       may not be “apparent from the trial record,” making it “necessary for an

       additional record to be developed to show the reason for an act or omission that

       appears in the trial record.” Id. at 1212-13. Raising ineffectiveness

       on direct appeal without the benefit of an additional post-conviction record is

       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 16 of 19
       permissible, but the issue becomes res judicata and therefore is unavailable for

       collateral review. Brewington, 7 N.E.3d at 978.


[47]   Miles challenges his counsel’s decision not to file a motion to suppress Ford’s

       and Nicoson’s pre-trial identification. The decision whether to file a particular

       motion is a matter of trial strategy, and, absent an express showing to the

       contrary, the failure to file a motion does not indicate ineffective assistance of

       counsel. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003).


[48]   Our review begins with the presumption that trial counsel provided competent

       representation. During trial, Miles testified that he was the individual depicted

       in the photograph taken after he was stopped by Officer Rooze and that other

       photographs depicted his car. These admissions were not inconsistent with the

       theory of the defense—that Miles was not the person who did the acts testified

       about and described by Ford and Nicoson. Miles’ counsel did not need to seek

       to suppress the witnesses’ testimony to advance his theory of the defense. In

       addition, counsel cross-examined Ford and Nicoson about their identifications

       of Miles, thus challenging their credibility in front of the jury. Without

       additional development of the record, Miles has not overcome the presumption

       of competent representation and reasonable trial strategy. Trial counsel was not

       ineffective and the issue is foreclosed from further appellate review.


                                    V. Inappropriate Sentence
[49]   Miles contends that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 17 of 19
[50]   Indiana Appellate Rule 7(B) provides, “[t]he 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.” On appellate review, our principal role

       should be to attempt to leaven the outliers without seeking to achieve a

       perceived correct result in each case. Shoun, 67 N.E.3d at 642. It is the

       defendant who bears the burden of persuasion that the sentence imposed by the

       trial court is inappropriate. Id.


[51]   When reviewing a sentence, we first look to our legislature’s determination of

       the sentencing range. The sentencing range for a class A misdemeanor is a term

       of imprisonment for a fixed term of not more than one year. Ind. Code § 35-50-

       3-2 (1977). Miles received a sentence of one year executed. Thus, his sentence

       is within the range prescribed by the legislature.


[52]   Looking at the nature of the offense, we observe that Miles exposed himself to

       two young women in the parking lot of a mall at a time during which it was

       heavily occupied. By the accounts of both women, they attempted to avoid

       contact with Miles’ due to his unusual and shocking behavior. However, Miles

       followed Ford and her friend after they hurried to her car, and Miles confronted

       Nicoson, who sat in her car, hoping to avoid any contact with him whatsoever.

       Both were subjected to Miles’ sexually aggressive behavior. Nicoson testified

       that after this event she experienced a great deal of stress, fear, and anxiety.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 18 of 19
[53]   As for the character of the offender, we note that as a juvenile, Miles was

       warned and released for an offense that would constitute battery if committed

       by an adult in 1999. In the same year, no action was taken on an offense that

       would constitute disorderly conduct. In late 1999, Miles was placed at an

       alternative high school due to truancy issues. The following year a truancy

       action was filed in which Miles was adjudicated a delinquent with supervised

       probation and counseling. In 2001, he was charged with intimidation, pointing

       a firearm, and dangerous possession of a firearm and was waived into adult

       court and convicted of intimidation as a Class D felony in 2002. Further, as an

       adult, Miles was convicted of battery resulting in bodily injury as a Class A

       misdemeanor (originally filed as a Class D felony) in 2007. During the

       pendency of this case, he faced charges for battery upon an eleven-year-old

       child.


[54]   Miles’s sentence is not inappropriate in light of the nature of the offense and the

       character of the offender.


                                                Conclusion
[55]   In light of the foregoing, we affirm the trial court’s decision.


[56]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1609-CR-2145 | May 24, 2017   Page 19 of 19
