MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                              Jul 08 2015, 7:54 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Johnson                                              Gregory F. Zoeller
Suzy St. John                                             Attorney General of Indiana
Marion County Public Defender Agency
                                                          Angela N. Sanchez
Appellate Division
                                                          Karl Scharnberg
Indianapolis, Indiana
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Cushingberry,                                    July 8, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1410-CR-724
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable Amy M. Jones,
                                                         Judge
Appellee-Plaintiff.
                                                         Cause No. 49G08-1407-CM-35506




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015               Page 1 of 5
[1]   Kenneth Cushingberry was convicted after a bench trial of theft1 as a Class A

      misdemeanor and possession of marijuana 2 as a Class B misdemeanor and was

      sentenced to a one-year aggregate, executed sentence. He appeals and raises

      the following restated issue for our review: whether his sentence is

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

      offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On July 14, 2014, Cushingberry was working at a Goodwill store in

      Indianapolis, Indiana. While at work that day, he went into his manager’s

      office and asked for his work schedule. When the manager turned away from

      Cushingberry to make a copy of the schedule, Cushingberry took the cell phone

      off of the manager’s desk and put it in his pocket. After noticing that his cell

      phone was missing, the manager looked at the video surveillance recording and

      observed that Cushingberry had taken the cell phone. The next day, the

      manager asked Cushingberry into his office to confront him about the cell

      phone. When the manager first asked, Cushingberry denied taking the cell

      phone. But after being told about the video surveillance of the office,

      Cushingberry admitted to taking the cell phone.




      1
          See Ind. Code § 35-43-4-2(a).
      2
          See Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015   Page 2 of 5
[4]   The police were called, and when they arrived, they viewed the video

      surveillance recording. The police then placed Cushingberry under arrest.

      While conducting a search incident to the arrest, the officer discovered in

      Cushingberry’s left front pants pocket a plastic cigar packaging that contained a

      baggie with what the officer believed was marijuana inside. Cushingberry told

      the officer that the substance was synthetic marijuana, but laboratory tests later

      showed that the substance was actual marijuana.


[5]   The State charged Cushingberry with theft as a Class A misdemeanor and

      possession of marijuana as a Class B misdemeanor. A bench trial was held, at

      the conclusion of which Cushingberry was found guilty as charged. At

      sentencing, the trial court took note of Cushingberry’s apology for his crime, as

      well as his criminal history and the fact that he was on probation at the time he

      committed the instant offense and had not taken advantage of that opportunity.

      The trial court sentenced him to an aggregate executed sentence of one year.

      Cushingberry now appeals.


                                     Discussion and Decision
[6]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

      statute if we deem it to be inappropriate in light of the nature of the offense and

      the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

      App. 2014). The question under Appellate Rule 7(B) is not whether another

      sentence is more appropriate; rather, the question is whether the sentence

      imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

      2008). It is the defendant’s burden on appeal to persuade the reviewing court
      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015   Page 3 of 5
      that the sentence imposed by the trial court is inappropriate. Chappell v. State,

      966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[7]   Cushingberry argues that his sentence is inappropriate in light of the nature of

      the offense and the character of the offender. He contends that, as to the nature

      of the offense, there was nothing particularly egregious about his crimes to

      justify the maximum sentence given. He also claims that, as to his character,

      his youth and his remorse for his actions demonstrate that the maximum

      executed sentence was not appropriate.


[8]   As to the nature of the offense, Cushingberry stole a cell phone from the desk of

      his manager when the manager turned away to copy Cushingberry’s work

      schedule and, when arrested, he was discovered to be in possession of

      marijuana. He committed these crimes while working at Goodwill, which is a

      second chance employer that provided him an opportunity for employment

      despite his prior felony conviction. The evidence also shows that, when

      confronted with the theft of the cell phone, Cushingberry initially lied about

      taking it, and only admitted to it after being told of the video surveillance of the

      office. Therefore, by stealing a cell phone from his manager and bringing

      marijuana into his workplace, he squandered this opportunity at a second

      chance that was given to him.


[9]   As to Cushingberry’s character, he was only nineteen at the time he committed

      the instant offenses. However, he had already accrued a criminal history that

      included a conviction for Class B felony carjacking and a juvenile adjudication


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015   Page 4 of 5
       for possession of marijuana. He was also on probation at the time he

       committed the present offenses. His commission of these crimes at his

       workplace where he was being given a second chance demonstrates that he

       failed to take advantage of the chances given to him to turn his life around.

       We, therefore, conclude that Cushingberry’s one-year executed sentence is not

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

       offender.


[10]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015   Page 5 of 5
