MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                     Jun 23 2017, 8:40 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Appellate Division                                       Attorney General of Indiana
Office of the Public Defender
                                                         Michael Gene Worden
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Olufeni Ani-Obot,                                June 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1701-CR-8
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Clarence D.
Appellee-Plaintiff.                                      Murray, Judge
                                                         Trial Court Cause Nos.
                                                         45G02-1501-F6-4
                                                         45G02-1603-F6-41



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017      Page 1 of 8
                                          Case Summary
[1]   On February 22, 2016, Appellant-Defendant Richard Olufeni Ani-Obot

      knowingly or intentionally spat in an officer’s face while the officer attempted

      to take him into custody. On March 1, 2016, Appellee-Plaintiff the State of

      Indiana charged Ani-Obot with battery by bodily waste, a Level 6 felony; public

      intoxication, a Class B misdemeanor; disorderly conduct, a Class B

      misdemeanor; resisting law enforcement, a Class A misdemeanor; and

      intimidation, a Level 6 felony. At the time of the offense, Ani-Obot was

      already participating in a pre-trial diversion program for multiple theft, fraud,

      and counterfeiting charges.


[2]   On October 28, 2016, the parties filed a stipulated plea agreement disposing of

      all pending charges. Pursuant to the terms of the agreement, Ani-Obot agreed

      to plead guilty to battery by bodily waste, a Level 6 felony, in exchange for the

      dismissal of all other pending charges. The parties also agreed there would be a

      maximum cap of two years of incarceration. The trial court held a sentencing

      hearing on December 2, 2016. Following the submission of evidence, the trial

      court found that the aggravating circumstances outweighed the mitigating

      circumstances and sentenced Ani-Obot to two years of incarceration.


[3]   On appeal, Ani-Obot raises the following restated issues: whether the trial court

      abused its discretion in its findings regarding the mitigating and aggravating

      circumstances and whether the sentence was inappropriate in light of the nature

      of the offense and Ani-Obot’s character. Because the trial court did not abuse


      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 2 of 8
      its discretion when it weighed the aggravating and mitigating circumstances and

      Ani-Obot’s sentence is not inappropriate in light of the nature of the offense and

      Ani-Obot’s character, we affirm.



                            Facts and Procedural History
[4]   On January 2, 2015, the State charged Ani-Obot in Cause No. 45G02-1501-F6-

      4 (“Cause No. F6-4”) with: Count 1, Level 6 Felony fraud; Count II, Level 6

      Felony attempted fraud; Count III, Level 6 Felony attempted fraud; Count IV,

      Level 6 Felony counterfeiting; Count V, Level 6 Felony forgery; Count VI,

      Level 6 Felony theft; and Count VII, Class A Misdemeanor attempted theft.

      Several days later, on January 8, 2016, the parties agreed to a stipulated pretrial

      diversion program for Ani-Obot. The trial court approved the agreement on

      January 13, 2016.


[5]   On February 22, 2016, Officer Ridgway of the Merrillville Police Department

      was dispatched to an address in Lake County, Indiana to help a female. When

      Officer Ridgway arrived at the scene, he approached Ani-Obot. Ani-Obot,

      however, ran away from the officer. During the ensuing chase, Ani-Obot threw

      the female’s telephone into a pond. Soon after, Officer Ridgway was able to

      catch Ani-Obot. However, Ani-Obot knowingly or intentionally spat in Officer

      Ridgway’s face while Officer Ridgway tried to take Ani-Obot into custody.


[6]   On March 1, 2016, the State charged Ani-Obot in Cause No. 45G02-1603-F6-

      41 (“Cause No. F6-41”) with: Count 1, Level 6 Felony intimidation; Count II,


      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 3 of 8
      Level 6 Felony battery by bodily waste; Count III, Class A Misdemeanor

      criminal mischief; Count IV, Class A Misdemeanor intimidation; and Count V,

      Class B Misdemeanor disorderly conduct.


[7]   On October 28, 2016, the parties entered into a plea agreement covering both

      Cause No. F6-4 and Cause No. F6-41. Ani-Obot pled guilty pursuant to the

      plea agreement to Level 6 Felony battery by bodily waste in Cause No. F6-41.

      On December 1, 2016, the trial court accepted the plea agreement. Prior to

      sentencing, the trial court found that Ani-Obot’s lengthy history of arrests and

      multiple drug related convictions to be aggravators. As for mitigators, the trial

      court found that Ani-Obot was likely to respond affirmatively to short term

      incarceration and that Ani-Obot admitted his guilt. The trial court

      subsequently sentenced Ani-Obot to two years of incarceration and the State

      dismissed the other charges in both causes.



                                 Discussion and Decision
                                        1. Abuse of Discretion
[8]   Ani-Obot challenges his sentence on appeal, claiming that the trial court abused

      its discretion in sentencing him to two years of incarceration as opposed to only

      one year. We begin by noting that sentencing decisions rest within the sound

      discretion of the trial court and are reviewed on appeal only for an abuse of

      discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other

      grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if

      the decision is clearly against the logic and effect of the facts and circumstances
      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 4 of 8
      before the court, or the reasonable, probable, and actual deductions to be drawn

      therefrom.” Id.


              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. In claiming that the trial court abused its discretion in sentencing

      him, Ani-Obot argues that the trial court improperly balanced the aggravating

      and mitigating circumstances. This is a request for us to reweigh the

      aggravators and mitigators which we will not do. See Anglemyer, 868 N.E.2d at

      491. Moreover, based upon a review of the record, there was ample evidence to

      support the trial court’s findings.


[9]   Ani-Obot points to his employment history as a mitigator. However, other than

      what Ani-Obot told the probation officer, there is no evidence supporting his

      claims of employment nor is there information regarding his performance.

      Nevertheless, the fact that Ani-Obot has been regularly employed is not

      necessarily a significant mitigating factor. See Newsome v. State, 797 N.E.2d 293,

      301 (Ind. Ct. App. 2003) (“Many people are gainfully employed such that this


      Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 5 of 8
       would not require the trial court to note it as a mitigating factor[.]”), trans.

       denied. The trial court did not abuse its discretion when it failed to find that

       Ani-Obot’s employment history was a significant mitigating circumstance.


[10]   Ani-Obot also argues that the trial court should have considered the fact that he

       has dependents and provides for them. However, according to the evidence,

       Ani-Obot admitted that he is not court-ordered to pay child support for his

       children. Ani-Obot has failed to produce any evidence that his incarceration

       would result in an undue hardship on his dependents. Moreover, even if there

       was evidence of undue hardship, a trial court is not required to consider it to be

       a mitigating circumstance. Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App.

       2011). “Many persons convicted of serious crimes have one or more children

       and, absent special circumstances, trial courts are not required to find that

       imprisonment will result in an undue hardship.” Dowdell v. State, 720 N.E.2d

       1146, 1154 (Ind. 1999). The trial court did not abuse its discretion when it

       failed to find this as a mitigating circumstance.


[11]   The trial court found two mitigating circumstances — that Ani-Obot would

       likely respond affirmatively to short term incarceration and he admitted his

       guilt by taking a plea deal. The collective weight of these mitigating factors

       does not outweigh the nature of the offense or the character of the offender.

       Moreover, the trial court imposed a sentence that was only one year above the

       advisory sentence. Given the aggravators mentioned above, such sentence was

       not an abuse of discretion.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 6 of 8
                                 2. Appropriateness of Sentence
[12]   Under Indiana Appellate Rule 7(B), “[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.” When reviewing such claims, we

       “concentrate less on comparing the facts of the [case at issue] to others, whether

       real or hypothetical, and more on focusing on the nature, extent, and depravity

       of the offense for which the defendant is being sentence, and what it reveals

       about the defendant’s character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct.

       App. 2008) (internal quotes and citations omitted). Ani-Obot, as the defendant,

       bears the burden of persuading us that his sentence is inappropriate. Sanchez v.

       State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[13]   With respect to the nature of the offense, Ani-Obot admitted in his plea

       agreement that he fled from a police officer and when arrested spit in the

       officer’s face. While not a particularly egregious example of this crime, the

       record shows that Ani-Obot committed this offense while he was participating

       in a pre-trial diversion program for committing several fraudulent credit card

       transactions. In light of this, the nature of the offense is more deplorable that it

       would have been under different circumstances.


[14]   As for his character, Ani-Obot has an extensive history of arrests and contacts

       with the criminal justice system including, approximately thirty different

       charges resulting in multiple convictions. While a record of arrest may not be


       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 7 of 8
       properly considered as evidence of criminal history, “[s]uch information may be

       relevant to the trial court’s assessment of the defendant’s character in terms of

       the risk that he will commit another crime.” Cotto v. State, 829 N.E.2d 520, 526

       (Ind. 2005). Consequently, it was appropriate for the trial court to consider

       both Ani-Obot’s previous convictions and his history of arrests as circumstances

       touching on his character. Based upon the above-mentioned evidence of Ani-

       Obot’s character and nature of his offense, he has failed to establish that his

       sentence was inappropriate.



                                               Conclusion
[15]   After reviewing the record, we conclude that the trial court did not abuse its

       discretion when it weighed the mitigating and aggravating factors. We also

       conclude that Ani-Obot failed to establish that his sentence is inappropriate in

       light of his character and the nature of his offense. Consequently, we affirm the

       trial court’s judgment.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1701-CR-8 | June 23, 2017   Page 8 of 8
