Arthur Jerome Croom v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 19, 2018
• Docket: 49A05-1710-CR-2347
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 19 2018, 10:18 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 Andrew Bernlohr Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Arthur Jerome Croom, April 19, 2018 Appellant-Defendant, Court of Appeals Case No. 49A05-1710-CR-2347 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-1608-MR-32818

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 1 of 9 [1] Following a jury trial, Arthur Croom was convicted of reckless homicide, a

Level 5 felony, and battery resulting in serious bodily injury to a person less

than 14 years of age, a Level 3 felony. Croom was sentenced to an aggregate

term of twenty-two years, with two years suspended and one year of probation.

On appeal, Croom challenges his sentence in two respects: (1) Croom argues

that the trial court abused its sentencing discretion by relying on an improper

aggravating factor and (2) he claims his sentence is inappropriate.

[2] We affirm.

Facts & Procedural History

[3] On August 17, 2016, then eleven-year-old T.C. was at his grandmother’s house

with his thirteen-year-old sister, R.C., and a few others. Croom, T.C.’s uncle,

was also present. At some point, Croom became angry with T.C. for recording

him on his cell phone. When T.C. did not delete the video, Croom hit T.C.

with a broom across his arm and side. T.C. went outside to get away from

Croom, but Croom followed and hit him again with the broom, this time on his

leg. T.C. went back in the house and went into the bathroom. He then called

Henry Bennett to come and pick him up. Bennett was T.C.’s uncle, but T.C.

referred to him as “father.” Transcript at 27.

[4] Bennett picked T.C. up, and after they drove away, T.C. told Bennett that

Croom had hit him with a broom. T.C. then realized he left his phone at his

grandmother’s house, so Bennett took him back so he could retrieve it. Before

T.C. exited the car, Croom approached and shook T.C. by the shoulders.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 2 of 9 Bennett told Croom to keep his hands off of T.C. Bennett then got out of the

car and he and Croom began arguing near the front of Bennett’s car. The

altercation turned physical, with Bennett and Croom pushing each other and

exchanging a series of punches. During the altercation, Bennett stumbled

backwards and fell, hitting the back of his head on the concrete porch. T.C.

attempted to intervene by jumping on Croom’s back, but Croom pushed him

away.

[5] After Bennett fell to the ground, Croom picked up a brick and threw it at

Bennett’s feet before hitting Bennett in the head with other objects located

nearby, including a stove rack, a milk crate, and a grill cover. Croom also

kicked Bennett in the head multiple times. T.C. again tried to stop Croom from

hitting Bennett with the various items, but Croom “got angry” and started

hitting T.C. Id. at 42. T.C. suffered a “closed blow-out fracture” of the left

orbit, i.e., a broken eye socket. Id. at 55. T.C. tried to call 911, but Croom

grabbed his phone and threw it on the ground. He also took Bennett’s phone

and another one nearby. When the police were called by someone else, Croom

left. Croom returned briefly to see if Bennett was still alive, but then left again

before the ambulance arrived. R.C. was outside on the porch and witnessed the

entire altercation between Croom and Bennett. Bennett never regained

consciousness, and ultimately died from the injuries he sustained. Following an

autopsy, it was determined that Bennett’s cause of death was “[m]ultiple blunt

force injuries, primarily to the head and the neck.” Id. at 129.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 3 of 9 [6] On August 23, 2016, the State charged Croom with Count I, murder, a felony;

Count II, battery resulting in serious bodily injury to a person less than fourteen

years old, a Level 3 felony; and Count III, aggravated battery as a Level 3

felony. A two-day jury trial commenced on August 21, 2017. At the

conclusion of the evidence, the jury found Croom guilty on Count I of the lesser

included offense of reckless homicide, a Level 5 felony, and Count II, but

acquitted him of Count III. Following a sentencing hearing on September 20,

2017, the trial court sentenced Croom to consecutive terms of six years on

Count I and sixteen years with two years suspended and one year of probation

on Count II. Croom now appeals. Additional facts will be provided as

necessary.

Discussion & Decision

1. Abuse of Discretion

[7] Sentencing decisions rest within the sound discretion of the trial court.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

218. “An abuse of discretion occurs if 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. at 490 (quoting

K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its

sentencing 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)

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 4 of 9 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.

[8] A single aggravating factor can support enhanced sentences. See Willey v. State,

712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance

may be sufficient to support an enhanced sentence). Although material

elements of the crime may not be considered as aggravating factors at

sentencing, the particularized circumstances of the elements properly may be

considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.

2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006). If the trial court

has abused its discretion, we will remand for resentencing “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.” Anglemyer, 868

N.E.2d at 491.

[9] The trial court identified as aggravating factors Croom’s history of criminal and

delinquent behavior, that Croom recently violated a condition of probation and

pre-trial release, that his sentence in a prior case had been revoked, that T.C.

was eleven years old, that Croom committed the violent crime in the presence

of another child, and that the victims of the offenses were family members. The

sole mitigating factor identified by the court was that Croom’s absence would

be a hardship on his dependents.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 5 of 9 [10] Croom argues that the trial court improperly considered T.C.’s age as an

aggravating factor because his age is an element of the battery resulting in

serious bodily injury conviction. See Ind. Code § 35-42-2-1 (providing that the

offense of battery is a Level 3 felony “if it results in serious bodily injury to a

person less than fourteen (14) years of age”). Aside from this argument, Croom

does not challenge the other aggravating factors identified by the trial court.

While Croom’s history of criminal and delinquent behavior is not terribly

serious, it is indicative of a person that has an anger control problem. Croom

has been consistently involved with the criminal justice system since he has

been an adult, committing new crimes and violating terms of probation and pre-

trial release. The trial court emphasized the fact that Croom committed these

acts of violence against family members and in the presence of a child other

than T.C. Even if we assume that the trial court abused its discretion

considering T.C.’s age as an aggravating factor, we are confident the court

would have imposed the same sentence in any event. See Anglemyer, 868

2. Appropriateness

[11] Croom next argues that his sentence is inappropriate in light of his character

and the nature of his offense. Although a trial court may have acted within its

lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the

Indiana Constitution authorize independent appellate review and revision of a

sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.

App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 6 of 9 implemented through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868

N.E.2d at 491. Nevertheless, “we must and should exercise deference to a trial

court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

consideration’ to that decision and because we understand and recognize the

unique perspective a trial court brings to its sentencing decisions.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the

burden of persuading us that his sentence is inappropriate. Childress v. State, 848

N.E.2d 1073, 1080 (Ind. 2006).

[12] The determination of whether we regard a sentence as inappropriate “turns on

our sense of the culpability of the defendant, the severity of the crime, the

damage done to others, and myriad other factors that come to light in a given

case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is

to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259

(Ind. 2013). It is not our goal in this endeavor to achieve the perceived

“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.

2014). Accordingly, “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) (emphasis in original).

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 7 of 9 [13] To assess the appropriateness of a sentence, we look first to the statutory range

established for the classification of the relevant offense. A Level 5 felony has a

sentencing range of one to six years, with the advisory sentence being three

years. Ind. Code § 35-50-2-6. A Level 3 felony has a sentencing range of six to

twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5.

[14] With respect to the nature of the offense, we think the trial court properly

characterized the situation as a “vicious attack” that “went beyond anger and

into rage.” Id. at 221. After Bennett fell to the ground, Croom picked up a

brick and threw it toward Bennett’s feet. He continued his attack as Bennett

was lying unresponsive on the ground by hitting Bennett with various objects

that were in the area, including a stove rack, a milk crate, and a grill cover, as

well as by kicking Bennett in the head numerous times. When T.C. tried to

intervene, Croom hit him in the left eye, fracturing his eye socket. When police

were called, Croom walked away. Further, we note that the crime was

committed in front of two minor children to whom Croom was related. The

nature of the offenses does not lead us to conclude that the sentence imposed is

inappropriate.

[15] Turning to Croom’s character, we note Croom’s history of criminal and

delinquent behavior. As a juvenile, Croom accumulated seven referrals that

resulted in true findings for resisting law enforcement, criminal mischief, and

theft. As an adult, Croom has been arrested twelve times, resulting in

convictions for driving while suspended, conversion, and battery resulting in

bodily injury. Croom has pending charges for felony and misdemeanor

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 8 of 9 offenses, including battery with moderate bodily injury, domestic battery, and

possession of marijuana. He was on pre-trial release when he committed the

instant offenses. Croom’s criminal history indicates that he has anger

management issues and is unable to control his actions. He has been provided

several opportunities to turn his life around, but none have proved successful.

He has previously been afforded the leniency he now requests, but such did not

reform his behavior. To the contrary, Croom’s criminal behavior has escalated,

ultimately resulting in Bennett’s death. Croom’s history does not reflect

positively on his character.

[16] In light of the nature of the offense and the character of the offender, we cannot

say that the aggregate twenty-two-year sentence, with two years suspended and

one year of probation, is inappropriate. We, therefore, affirm the sentence

imposed.

[17] Judgment affirmed.

[18] Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2347 | April 19, 2018 Page 9 of 9