MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
                                                             Nov 17 2015, 8:36 am
65(D), this 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.


ATTORNEY FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Jeremy M. Noel                                     Gregory F. Zoeller
Monroe County Public Defender’s                    Attorney General of Indiana
Office
Bloomington, Indiana                               Michael Gene Worden
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew W. Carie,                                        November 17, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        53A05-1503-CR-93
        v.                                              Appeal from the Monroe Circuit
                                                        Court;
State of Indiana,                                       The Honorable Marc R. Kellams,
Appellee-Plaintiff.                                     Judge;
                                                        Trial Court Cause No.
                                                        53C02-1408-F3-805



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 1 of 11
[1]   Andrew W. Carie appeals his convictions of and sentences for Level 4 felony

      burglary and Level 6 felony criminal confinement, as well as a sentence

      enhancement for his adjudication as an habitual offender. He presents four

      issues for our review, which we restate as:

              1.      Whether the trial court abused its discretion when it
                      denied Carie’s motion to suppress evidence obtained from
                      a search of his pockets shortly following the crime;


              2.      Whether the State presented sufficient evidence Carie
                      committed Level 6 felony criminal confinement;


              3.      Whether the trial court abused its discretion in sentencing
                      Carie; and


              4.      Whether Carie’s sentence is inappropriate based on his
                      character and the nature of the offense.


      We affirm.


                                 Facts and Procedural History
[2]   Sometime in the early morning of August 21, 2014, J.L. was awakened by the

      weight of a man on top of her. The man was covering her mouth and nose with

      his hand. The man began pulling back the bedcovers, and J.L. was able to

      maneuver from underneath him. She ran out of her home and called 911.


[3]   Officers Ryan McClain and Jordan Hassler found Carie in an unlit alley behind

      J.L.’s house. Carie told them the person they were looking for ran north

      toward a nearby cemetery. Officer McClain asked Carie if he had any

      Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 2 of 11
      weapons, and Carie indicated he was carrying a large pocket knife. Carie gave

      Officer McClain permission to pat him down, and Officer McClain found the

      knife, a bandana, a flashlight, and two sets of gloves. The officers radioed to

      determine if any other person had been sighted in the area, as Carie indicated,

      and when no one was located, they placed Carie in the back of their patrol car.


[4]   Officer Hassler checked J.L.’s house and found nobody inside. Outside a

      bathroom window he found a camouflaged jacket with Carie’s identification in

      one of the pockets. The officers also found muddy shoeprints leading from the

      bathroom to J.L.’s bedroom.


[5]   The State charged Carie with Level 3 felony attempted rape, Level 4 felony

      burglary, and Level 6 felony criminal confinement. The State also alleged Carie

      was an habitual offender and a repeat sexual offender. Carie filed a motion to

      suppress the evidence found as a part of Officer McClain’s patdown search.

      The trial court denied the motion after a hearing.


[6]   A jury was unable to reach a verdict on the attempted rape charge, but found

      Carie guilty of Level 4 felony burglary and Level 6 felony criminal

      confinement. The jury also found Carie was an habitual offender. The trial

      court sentenced Carie to thirty-two years for burglary -- twelve years for Level 4

      felony burglary with a twenty year habitual offender enhancement. The court

      also imposed a two and one-half year sentence for Level 6 felony criminal

      confinement, which is to be served concurrent with the thirty-two year sentence

      for burglary.


      Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 3 of 11
                                     Discussion and Decision
                                          Admission of Evidence

[7]   Carie did not seek interlocutory review of the denial of his motion to suppress

      but instead appeals following trial. This issue is therefore “appropriately

      framed as whether the trial court abused its discretion by admitting the evidence

      at trial.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). Our

      review of rulings on the admissibility of evidence is essentially the same

      whether the challenge is made by a pre-trial motion to suppress or by trial

      objection. Id. We do not reweigh the evidence, and we consider conflicting

      evidence most favorable to the trial court’s ruling. Id. However, we must also

      consider the uncontested evidence favorable to the defendant. Id.


[8]   Carie claims Officer McClain’s investigatory stop violated his rights under the

      Fourth Amendment of the United States Constitution and Article 1, Section 11

      of the Indiana Constitution. “Under Terry [v. Ohio, 391 U.S. 1 (1968)], an

      officer is permitted to stop and briefly detain a person for investigative purposes

      if the officer has a reasonable suspicion supported by articulable facts that

      criminal activity may be afoot, even if the officer lacks probable cause.”

      Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009) (internal quotations omitted).


              The “reasonable suspicion” requirement of the Fourth
              Amendment is satisfied if the facts known to the officer at the
              moment of the stop are such that a person “of reasonable
              caution” would believe that the “action taken was appropriate.”
              In other words, the requirement is satisfied where the facts
              known to the officer, together with the reasonable inferences

      Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 4 of 11
               arising from such facts, would cause an ordinarily prudent person
               to believe that criminal activity has occurred or is about to occur.
               Reasonable suspicion entails something more than an inchoate
               and unparticularized suspicion or hunch, but considerably less
               than proof of wrongdoing by a preponderance of the evidence.


[9]    Crabtree v. State, 762 N.E.2d 241, 246 (Ind. Ct. App. 2002) (citations omitted).

       We review a determination of reasonable suspicion de novo rather than for abuse

       of discretion, but we give due weight to inferences drawn from the facts by the

       trial court. Bannister v. State, 904 N.E.2d 1254, 1255 (Ind. 2009). “The State

       has the burden to show that under the totality of the circumstances its intrusion

       was reasonable.” Id. at 1256.


[10]   The language of Article 1, Section 11 of the Indiana Constitution closely tracks

       the language of the Fourth Amendment. Starks v. State, 846 N.E2d 673, 680

       (Ind. Ct. App. 2006), reh’g denied, trans. denied. But “[r]ather than looking to

       Fourth Amendment jurisprudence to evaluate Article 1, Section 11 claims, we

       place the burden on the State to show that, under the totality of the

       circumstances, the police activity was reasonable.” Id.


[11]   The Officers had reasonable suspicion that Carie was involved in criminal

       activity. Officer McClain encountered Carie in a dark alley behind J.L.’s house

       a few minutes after she called 911. J.L. told the officers she believed the person

       who attacked her was a man and was larger than her. Carie admitted he had a

       knife and he consented to a patdown search. Officer McClain testified the

       items found on Carie - the knife, a bandana, gloves, and a flashlight - were

       consistent with burglary tools. After they were unable to confirm Carie’s claim
       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 5 of 11
       a person ran from the scene, the officers handcuffed Carie and placed him in the

       back of their patrol car.


[12]   Based on the totality of the circumstances, the investigative stop did not violate

       Carie’s rights under the Fourth Amendment of the United States Constitution

       or Article 1, Section 11 of the Indiana Constitution. See Bannister, 904 N.E.2d

       at 1255 (we consider whether search was reasonable under the Fourth

       Amendment based on the totality of the circumstances); and see Starks, 846

       N.E.2d at 680 (we consider whether search was reasonable under Article 1,

       Section 11 of the Indiana Constitution based on the totality of the

       circumstances). Carie’s argument is an invitation for us to reweigh the evidence

       and judge the credibility of witnesses, which we cannot do. See Lundquist, 834

       N.E.2d at 1067 (appellate court cannot reweigh evidence or judge the credibility

       of witnesses).


                                           Sufficiency of Evidence

[13]   When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the

       fact-finder’s role, and not ours, to assess witness credibility and weigh the

       evidence to determine whether it is sufficient to support a conviction. Id. To

       preserve this structure, when we are confronted with conflicting evidence, we

       consider it most favorably to the trial court’s ruling. Id.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 6 of 11
[14]   A conviction may be sustained on the uncorroborated testimony of a single

       witness. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We affirm a

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Drane, 867 N.E.2d at 146. It is therefore

       not necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence is sufficient if an inference reasonably may be

       drawn from it to support the trial court’s decision. Id. at 147.


[15]   To prove Carie committed Level 6 felony criminal confinement, 1 the State had

       to present sufficient evidence Carie “knowingly or intentionally” confined J.L.

       without her consent. Ind. Code § 35-42-3-3 (2014). “Confine” is defined as

       “substantially interfer[ing] with the liberty of a person.” Ind. Code § 35-42-3-1.

       Carie argues the evidence is insufficient to prove he confined J.L. because

       “there is no evidence that any interference with [J.L’s] liberty was substantial”

       and “she was able to get away without any evidence of a struggle.” (Br. of

       Appellant at 6-7.)


[16]   “Any amount of force can cause a confinement because force, however brief,

       equals confinement.” Hopkins v. State, 747 N.E.2d 598, 606 (Ind. Ct. App.

       2011), trans. denied. That J.L. was able to escape does not “negate the

       determining factor that a jury could find, beyond a reasonable doubt, that a

       nonconsensual confinement took place.” Spivey v. State, 436 N.E.2d 61, 63




       1
           Carie does not challenge his conviction for Level 4 felony burglary.


       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 7 of 11
       (Ind. 1982). We held in Sammons v. State, “[t]he fact that the time involved was

       brief is not the determinative factor of ‘substantial.’ While time may be a

       factor, it is the type or nature of interference that is most significant.” 397

       N.E.2d 289, 294 (Ind. Ct. App. 1979).


[17]   J.L. was asleep when Carie entered her house. She awoke to Carie, who was

       heavier than she, on top of her. He was covering her mouth and nose with his

       hand. J.L. broke free when Carie tried to pull down the bedcover. J.L. testified

       “there was a bruise on my face and my muscles were just thrashed, like I was so

       achy for a couple of days.” (Tr. at 110.) The State presented sufficient evidence

       Carie confined J.L. without her consent.


                                      Sentencing Abuse of Discretion

[18]   When the trial court imposes a sentence within the statutory range, we review

       for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We may reverse a decision that 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. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.

       1985)).


[19]   Our review of the trial court’s exercise of discretion in sentencing includes an

       examination of its reasons for imposing the sentence. Id. “This necessarily

       requires a statement of facts, in some detail, which are peculiar to the particular

       defendant and the crime . . . [and] such facts must have support in the record.”

       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 8 of 11
       Id. The trial court is not required to find mitigating factors or give them the

       same weight that the defendant does. Flickner v. State, 908 N.E.2d 270, 273

       (Ind. Ct. App. 2009). However, a court abuses its discretion if it does not

       consider significant mitigators advanced by the defendant and clearly supported

       by the record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators

       have been identified, the trial court has no obligation to weigh those factors. Id.

       at 491.


[20]   Carie argues the trial court abused its discretion when it sentenced him without

       finding mitigators. During Carie’s sentencing hearing, his counsel argued Carie

       had a difficult childhood. Our Indiana Supreme Court has held, “evidence of a

       difficult childhood warrants little, if any, mitigating weight.” Coleman v. State,

       741 N.E.2d 697, 700 (Ind. 2000), reh’g denied, cert. denied sub nom. Coleman v.

       Indiana, 534 U.S. 1057 (2001). The trial court focused on Carie’s lengthy

       criminal record as the reason for his sentence. As the trial court is not required

       to give Carie’s proposed mitigating circumstance the weight he would prefer,

       we conclude the trial court did not abuse its discretion when sentencing him.

       See Flickner, 908 N.E.2d at 273 (trial court not required to find mitigating factors

       or give them the same weight that the defendant does).


                                           Inappropriate Sentence

       We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E. 2d 621,

       633 (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not

       only the aggravators and mitigators found by the trial court, but also any other
       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 9 of 11
       factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

       App. 2007), trans. denied. The appellant bears the burden of demonstrating his

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

       The trial court sentenced Carie to an aggregate sentence of thirty-two years -

       twelve years for the Level 4 felony burglary and two and one-half years for

       Level 6 criminal confinement, to be served concurrently, with the burglary

       sentence enhanced by twenty years based on Carie’s adjudication as an habitual

       offender.


[21]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at

       494. The sentencing range for a Level 4 felony is two to twelve years, with an

       advisory sentence of six years. Ind. Code § 35-05-2-5.5. The sentencing range

       for a Level 6 felony is six months to two and one-half years, with an advisory

       sentence of one year. Ind. Code § 35-50-2-7(b).


[22]   One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense accounted for by the legislature when it set the advisory

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

       Carie entered J.L.’s house in the middle of the night and confined her in her

       bed by lying on top of her and putting his hand over her mouth and nose. J.L.

       sustained minor injuries from the attack. The sentence is appropriate based on

       the nature of the crime.

       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 10 of 11
[23]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. Carie’s criminal history spans thirty years.

       His adjudications as a juvenile include criminal trespass, conversion, and

       voyeurism. Carie’s adult criminal history shows a pattern of sexually-related

       crimes including two convictions of child molesting, two convictions of failure

       to register as a sex offender, and convictions of criminal confinement and public

       indecency. Based on Carie’s criminal history, his sentence is not inappropriate.


                                                Conclusion
[24]   The trial court did not abuse its discretion when it denied Carie’s motion to

       suppress because the investigative stop did not violate his rights under the

       Fourth Amendment of the United States Constitution or Article 1, Section 11 of

       the Indiana Constitution. There was sufficient evidence Carie committed Level

       6 felony criminal confinement. Finally, the trial court did not abuse its

       discretion when it sentenced Carie, and Carie’s sentence is appropriate based on

       the nature of the offense and his character. Accordingly, we affirm.


[25]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1503-CR-93 | November 17, 2015   Page 11 of 11
