FILED Mar 29 2012, 9:23 am FOR PUBLICATION CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana
AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
BUCK GLEASON, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1106-CR-630 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-0905-FC-143
March 29, 2012
OPINION–FOR PUBLICATION
BAKER, Judge In this case, while we recognize that brass knuckles may be considered a deadly
weapon under our statutes, we revise the defendant‟s aggregate sentence from eleven
years to six years following his several convictions for battery, criminal recklessness, and
the failure to stop after an accident that resulted in injury.
Appellant-defendant Buck Gleason appeals his convictions for Battery with a
Deadly Weapon,1 a class C felony, Battery Resulting in Bodily Injury,2 a class A
misdemeanor, Criminal Recklessness while Armed with a Deadly Weapon,3 a class D
felony, and Failure to Stop After an Accident Resulting in Injury,4 a class A
misdemeanor, challenging the sufficiency of the evidence. Gleason maintains that the
State failed to prove that he possessed or used a deadly weapon, and that he failed to stop
after hitting a victim with his vehicle.
Gleason also challenges the propriety of the aggregate eleven-year sentence that
was imposed, claiming that the trial court abused its discretion because the sentencing
statement did not adequately identify any aggravating circumstances, that the trial court
improperly identified the nature of the offense as an aggravating factor, that consecutive
sentences should not have been imposed in light of the improper aggravator, and that the
sentence was inappropriate in light of the nature of the offenses and his character.
1 Ind. Code § 35-42-2-1(a)(3). 2 I.C. § 35-42-2-1(a)(1)(A). 3 I.C. § 35-42-2-2(c)(2). 4 Ind. Code § 9-26-1-1; I.C. § 9-26-1-8(a). 2 Although we conclude that the evidence was sufficient to support Gleason‟s
convictions, we remand this cause to the trial court with instructions that it revise
Gleason‟s sentence to an aggregate term of six years.
FACTS
On April 8, 2009, Amber-Ball Kilgore was in her home with her fiancé, Mark
Goodman, and four children. While the children were upstairs watching television,
Amber heard a knock on the door. When she opened the door, Gleason, whom she had
never met, was standing there. Goodman then walked up to the door and Gleason
informed him that he was there to pick up some money that was owed to him by
Goodman‟s former boss, Matt Wallace. Wallace apparently owed Gleason some money
for some repair work on a roof. However, Goodman had not seen Wallace for nearly
two weeks. Gleason then announced that he was there “for money or blood” and showed
Goodman something that “looked like brass knuckles.” Tr. p. 62, 63. Gleason then put
the item on his hand the way that “a person would wear brass knuckles.” Id. Goodman
and Amber both remembered that the weapon was metal and “looked like a knife.” Id. at
14, 54.
After Gleason put the weapon on his hand, Goodman turned around. Gleason
then struck Goodman in the back of the head with the hand that was holding the metal
weapon. Goodman fell to the floor, and Amber picked up a frying pan and began
swinging it at Gleason. In response, Gleason hit Amber in the left arm with the weapon.
3 Gleason‟s attack on Amber left her with bruising and pain in her arm, and Goodman had
laceration and bleeding from his head that required four stitches.
Goodman got up, grabbed a hammer, and Gleason began to walk outside.
However, when Gleason subsequently turned around as if he was going to reenter the
residence, Goodman threw the hammer at him but missed. Gleason was walking
toward his vehicle and Goodman‟s parents, who lived across the street, began to
approach Amber‟s house. Goodman‟s father, Donald, walked up to the scene and heard
Gleason yelling at his son. In response, Donald raised a cane above his head and told
Gleason to leave. Gleason got into his vehicle and drove it toward Donald. Gleason‟s
passenger side view mirror and door of his vehicle struck Donald, knocking him to the
ground. Immediately following this incident, Goodman threw four gallons of spoiled
chili onto Gleason‟s vehicle because he thought it “would be easier for the police to find
him with the chili all over it.” Tr. p. 66-67.
Gleason was arrested and the State charged him with:
Count I—Battery by means of a deadly weapon, a class C felony, for injuring Goodman “by means of a deadly weapon, to wit: knife encased in brass knuckles.”
Count II—Battery resulting in bodily injury, a class A misdemeanor, regarding the injuries that Amber sustained.
Count III—Battery by means of a deadly weapon, a class C felony, for the injuries that Donald Goodman sustained when Gleason struck him with his vehicle.
Count IV—Failure to stop after an accident resulting in injury, a class A misdemeanor, regarding the incident with Donald Goodman.
4 Appellant‟s App. p. 9-10.
Following a bench trial on April 29, 2011, Gleason was convicted of Counts I, II,
and IV, and guilty of the lesser-included offense of criminal recklessness while armed
with a deadly weapon, a class D felony, under Count III.
On June 1, 2011, the trial court sentenced Gleason to eight years on Count I, one
year on Count II, to run concurrently with the sentence on Count I, three years on Count
III, to run consecutively to the sentence for Count I, and six months on Count IV, to run
concurrently with the sentence for Count I. As a result, Gleason was sentenced to an
aggregate term of eleven years. Gleason now appeals.
I. Sufficiency of the Evidence
A. Standard of Review
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence
or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), trans. denied. We consider only the evidence most favorable to the verdict
and the reasonable inferences drawn therefrom and affirm if the evidence and those
inferences constitute substantial evidence of probative value to support the verdict. Id.
Reversal is appropriate only when a reasonable trier of fact would not be able to form
inferences as to each material element of the offense. Id.
B. Battery With a Deadly Weapon
5 Gleason claims that the State failed to prove that he used a deadly weapon when
he committed battery on Goodman. Specifically, Gleason argues that there is no
evidence establishing that Gleason displayed any brass knuckles or used a knife in the
attack.
To convict Gleason of the charged offense, the State must prove that Gleason (1)
knowingly or intentionally; (2) touched Goodman in a rude, insolent, or angry manner;
(3) by means of a deadly weapon. See I.C. § 35-42-2-1(a)(3).
Our General Assembly has defined a “deadly weapon” as a weapon “that in the
manner it is used; or could ordinarily be used, or is intended to be used, is readily capable
of causing serious bodily injury.” Ind. Code § 35-41-1-8(2). Serious bodily injury is
defined as an injury causing serious permanent disfigurement, unconsciousness, or
extreme pain. Ind. Code § 35-41-1-25.
The question of whether a weapon is “deadly” is determined from a description of
the weapon, the manner of its use, and the circumstances of the case. Merriweather v.
State, 778 N.E.2d 449, 457 (Ind. Ct. App. 2002). Whether an object is a deadly weapon
based on these factors is a question of fact. Miller v. State, 500 N.E.2d 193, 197 (Ind.
1986). The original purpose of the object is not considered. Rather, the manner in which
the defendant actually used the object is examined. Timm v. State, 644 N.E.2d 1235,
1238 (Ind. 1994). Also, it does not matter if actual injuries were sustained by the crime
victim, provided the defendant had the apparent ability to injure the victim seriously
through his use of the object during the crime. Miller, 500 N.E.2d at 196-97.
6 In this case, both Amber and Goodman described the item that was used to batter
them. More specifically, Amber testified that Gleason‟s weapon “looked like a knife—
like a brass knuckle thing.” Tr. p. 14. Goodman testified that the object Gleason used
“looked like some brass knuckles. It has a little, funky, little curl around this edge and
around that edge.” Id. at 63. Mark also testified that Gleason placed the object on his
hand the same way a person would wear brass knuckles. Id. Both Mark and Amber
testified that the object was made of metal. Id. at 14, 56, 63. Although Gleason claims
that it is only speculation as to whether Goodman and Amber actually saw brass
knuckles, such a contention amounts to an invitation for us to reweigh the evidence,
which we will not do. That said, the trial court, as the finder of fact, could reasonably
conclude from the circumstances, that Gleason used brass knuckles when battering
Amber and Goodman.
Finally, we note that the manner in which Gleason used the object and the
circumstances of this case also show that the object was a deadly weapon. As discussed
above, Gleason put the weapon on his hand after telling Goodman that “he was there for
money or blood.” Tr. p. 62. Gleason then hit Goodman in the back of the head with the
weapon, resulting in significant lacerations causing Goodman to fall to the floor. Id. at
15-16, 64. Defendant also used the weapon to strike Amber in the arm, causing pain and
bruising. Id. at 18, 30. Gleason inflicted serious injury on both Goodman and Amber
with the weapon. And the use of the weapon demonstrates that the object was a deadly
weapon within the meaning of the statute. In short, we conclude that the evidence was
7 sufficient to support Gleason‟s conviction for battery with a deadly weapon, a class C
felony.
C. Criminal Recklessness
Gleason next argues that the criminal recklessness conviction must be set aside
because the State failed to show that he acted recklessly. More specifically, Gleason
claims that there was no evidence demonstrating that he was driving the vehicle in a
reckless manner when he struck Donald with it.
To convict a person of criminal recklessness as a Class D felony, the State must
show that the defendant (1) recklessly, knowingly, or intentionally (2) performed an act
that created a substantial risk of bodily injury to another person (3) while armed with a
deadly weapon. I.C. § 35-42-2-2(c)(2)(A). A companion statute, Indiana Code section
35-41-2-2(c), provides that “A person engages in conduct „recklessly‟ if he engages in the
conduct in plain, conscious, and unjustifiable disregard of harm that might result and the
disregard involves a substantial deviation from acceptable standards of conduct.”
In this case, the record demonstrates that Donald stood by Gleason‟s SUV and
argued with him. Tr. p. 94. Gleason then entered his SUV, shut the door, backed up
slightly, and accelerated at a “frantic” pace. Id. at 27, 94. Gleason‟s rapid acceleration
resulted in his vehicle striking Donald with the side view mirror and passenger door. Id.
at 95. The impact knocked Donald to the ground, where he remained until he was taken
to the hospital. Id. at 28, 94. Moreover, while Gleason was driving away, he nearly
struck a neighbor who was walking his dog and almost collided with other traffic.
8 Because of the high rate of acceleration, Gleason left skid marks on Goodman‟s driveway
and on the street in front of their home. Id. at 27, 68, 112.
In light of this evidence, it is apparent that Gleason drove without any regard to
the potential harm that could result to Donald Goodman. Moreover, Gleason‟s
acceleration to the point of leaving tire marks on the driveway and the street amounts to a
substantial deviation from the acceptable standard of driving a vehicle.
As a result, the State proved that Gleason acted recklessly, and we decline to set the
conviction aside.
D. Failure to Stop After an Accident Resulting in Injury
Gleason next claims that the evidence was insufficient to show that he failed to
stop after the accident that resulted in injury. More particularly, Gleason maintains that
the State failed to show that he failed to stop his SUV knowing he had struck Donald.
Indiana Code section 9-26-1-1 requires drivers who are involved in an accident
resulting in the injury, death, or entrapment of a person must immediately stop their
vehicle at the scene and remain there until he or she provides identifying information.
Although the defendant must have knowledge of the injury or accident, the State is not
required to prove actual knowledge. Micinski v. State, 487 N.E.2d 150, 152-53 (Ind.
1986). The fact finder may infer that a defendant knew that an accident occurred or that
people were injured from an examination of the circumstances of the event. Id. at 153.
The duties that the statute imposes upon a driver are triggered regardless of whether the
9 driver‟s vehicle struck anyone or anything. Armstrong v. State, 848 N.E.2d 1088, 1092
(Ind. 2006).
In this case, while the State did not elicit testimony from Gleason that he knew he
struck Donald with the SUV, sufficient facts were presented from which the trial court
could find that Gleason knew that he had struck him. As stated above, Gleason
recklessly accelerated his SUV while Donald stood nearby. Tr. p. 94-95. Gleason struck
Donald with the side view mirror, causing the mirror to break. The force of the impact
knocked Donald to the ground, and he remained there as Gleason sped away. Id. at 28,
94-95. Donald remained on the ground while Gleason sped away from the home. From
this evidence, the trial court could reasonably infer that Gleason knew about the incident.
The record shows that Gleason fled from the scene and is guilty of failing to stop
following an accident resulting in an injury. Thus, we decline to set aside the conviction.
II. Sentencing
A. Sentencing Statement and Aggravating Factors
Gleason argues that the trial court erred in sentencing him to a total of eleven
years. More particularly, Gleason maintains that the trial court abused its discretion
because it did not articulate any aggravating circumstances when imposing the sentence,
but subsequently improperly identified the nature of the offense as an aggravating factor.
As a result, Gleason claims that consecutive sentences should not have been ordered.
Gleason also contends that his sentence is inappropriate in light of the nature of the
offenses and his character.
10 We initially observe 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). 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. The trial court
can abuse its discretion by (1) issuing an inadequate sentencing statement, (2) finding
aggravating or mitigating factors that are not supported by the record, (3) omitting factors
that are clearly supported by the record and advanced for consideration, (4) or by finding
factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187, 193 (Ind.
Ct. App. 2011).
Our trial courts are required to enter sentencing statements whenever imposing a
sentence for a felony offense. Anglemyer, 868 N.E.2d at 490. The statement must
include a reasonably detailed recitation of the trial court‟s reasons for imposing a
particular sentence. Id. If the trial court includes aggravating or mitigating
circumstances in its sentencing statement, it must identify all of the significant
circumstances and “explain why each circumstance has been determined to be
aggravating or mitigating.” Id. When reviewing the sufficiency of the sentencing
statement, we examine both the trial court‟s written and oral statements. McElroy v.
State, 865 N.E.2d 584, 589 (Ind. 2007).
11 In this case, while the trial court did not list the aggravating and mitigating factors
in its written sentencing statement, it set forth the following factors during the sentencing
hearing:
So it‟s crime that was committed by [Defendant] and the mitigating circumstances where it didn‟t—allegedly didn‟t cause serious harm. I was trying to write these down as [defense counsel] was articulating them. It did cause serious harm. I mean, when people‟s homes are invaded and [they are] beat up, that‟s serious. Not only is it physical but it‟s emotional. . . . And also the thing about prison would result—would be an undue hardship to the—[Defendant] and his family, especially his family and there was really no evidence of that other than argument. So that‟s not a very strong mitigating circumstance. The prior—the aggravating circumstances are the defendant‟s prior criminal history, which shows serious disdain in the law. . . . The nature of the offense. Basically a home invasion taking into his hands matters that should have been reduced. . . . So the aggravating circumstances outweigh the mitigating circumstances.
Tr. p. 243-44.
As set forth above, the trial court set forth the aggravating and mitigating factors
in its oral sentencing statement and discussed the facts that supported each factor. In our
view, the trial court‟s statement was sufficiently detailed to support the imposition of the
sentence. See Webb v. State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011) (finding the
sentencing statement sufficient when it was determined that at the conclusion of the
sentencing hearing, the trial court discussed the evidence concerning Webb‟s mental
health and rejected it as a mitigating factor. The court then identified four aggravating
factors and mentioned the evidence that supported each one), trans. denied.
Gleason also contends that the trial court abused its discretion in sentencing him
because it improperly identified the nature of the offense as an aggravating factor. While
12 we acknowledge that a material element of a crime cannot be an aggravating
circumstance, the nature and circumstances of the crime can be an aggravator. Caraway
v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011). If the nature of the offense is
identified as an aggravating factor, the trial court must discuss facts that go beyond the
statutory requirements of the crime. McElroy, 865 N.E.2d at 589-90.
The trial court described Gleason‟s actions as being “[b]asically a home invasion.”
Tr. p. 243-44. In fact, the trial court discussed how Gleason violated the sanctity of the
Goodman‟s home. Id. The statutory requirements for Gleason‟s four offenses do not
require any entrance into the victim‟s home or dwelling. In short, the trial court provided
facts demonstrating how Gleason‟s actions exceeded the statutory requirements for
conviction.
In our view, this is not a case where the trial court insufficiently explained how
Gleason‟s actions were worse than the requisite elements of the offense. To illustrate, in
Smith v. State, 872 N.E.2d 169 (Ind. Ct. App. 2007), the trial court found that “the
offense itself, it‟s a very aggravating offense what the defendant did in this case whether
he was the shooter or not.” Id. at 178. Unlike the circumstances in Smith, the trial
court‟s finding that a home invasion occurred went beyond the statutory requirements for
the offense.
And even assuming solely for the sake of argument that the trial court erred in
identifying the nature of the offense as an aggravating factor, we note that Gleason has
not challenged the remaining aggravating factors, including his lengthy criminal history.
13 Indeed, a single aggravating circumstance may support the imposition of consecutive
sentences. See Bennett v. State, 787 N.E.2d 938, 947 (Ind. Ct. App. 2003) (observing
that even if the trial court erred in considering either of the two challenged aggravating
circumstances, the trial court could still enhance the defendant‟s sentence through the
single aggravating circumstance of his criminal history).
To order a consecutive sentence, “the trial court must find at least one aggravating
circumstance.” Hoeppner v. State, 918 N.E.2d 695, 699 (Ind. Ct. App. 2009). One valid
aggravator alone is enough to enhance a sentence or to impose it consecutive to another.
Moreover, the same factor may be used both to enhance a presumptive sentence and to
justify consecutive sentences. Dixon v. State, 825 N.E.2d 1269, 1272 (Ind. Ct. App.
2005).
Here, the trial court found that two aggravating circumstances existed. As noted
above, Gleason does not challenge his criminal history as an aggravating factor. Tr. p.
243. The severity of this aggravator alone is sufficient to justify the imposition of
consecutive sentences. Thus, Gleason‟s claim fails with respect to this issue.
D. Inappropriate Sentence
Gleason next claims that the aggregate eleven-year sentence is inappropriate.
Specifically, Gleason argues that the nature of the offenses and his character warrant a
reduced sentence.
We may revise a sentence authorized by statute if the sentence is inappropriate in
light of the nature of the offense and the character of the offender. Ind. Appellate Rule
14 7(B). We 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).
In determining the appropriateness of a sentence, we examine the nature of the
offense and the character of the offender. Childress v. State, 848 N.E.2d 1073,1080 (Ind.
2006). Our review of the sentence should focus on the forest—the aggregate sentence—
rather than the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count. Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The
defendant bears the burden of proving that the sentence is inappropriate. Childress, 848
N.E.2d at 1080.
As for the nature of the offense, Gleason injured three members of the Goodman
family, two of whom required medical attention. Tr. p. 28, 76. The three victims had
never met Gleason, and he attacked Amber and Goodman without provocation while four
children were at the residence. Id. at 12-13. In fact, Goodman was turning away from
Gleason in an attempt to disengage from the altercation when Gleason struck Goodman
in the back of the head. Id. at 15-16. Gleason also used brass knuckles in the attack and
then drove his SUV into Donald.
As for Gleason‟s character, the record demonstrates that he has repeatedly violated
our laws since 1989. However, we note that Gleason‟s criminal activity is not
particularly egregious. And the significance of a criminal history varies based on the
15 gravity, nature and number of prior offenses as they relate to the current offense. Wooley
v. State, 716 N.E.2d 919, 929 (Ind. 1999).
Gleason has no prior felony convictions and four misdemeanor convictions. Tr. p.
54, 56. Most of the other charges were infractions, dismissed, or withheld. Appellant‟s
App. p. 52-58. Gleason never served any time in prison for any offense.
Although we agree that the aggravating weight of Gleason‟s criminal history
justifies the imposition of consecutive sentences, we do not find it sufficiently
aggravating to justify enhancing the class C felony to the maximum term of eight years.
In short, we believe that the total executed term is excessive and should be revised
pursuant to Indiana Appellate Rule 7(B). Thus, we revise Gleason‟s sentence on Count
I, battery by means of a deadly weapon, a class C felony, to the advisory term of four
years, pursuant to Indiana Code section 35-50-2-6, and the offense under Count III to a
term of one and one-half years that shall be ordered to run consecutively with the
sentence imposed in Count I. Additionally, the six month sentence imposed under Count
IV shall be ordered to run consecutively to the sentences imposed under Counts I and III.
Finally, we order the one-year sentence that the trial court imposed in Count II to run
concurrently to the sentence imposed in Count I. Thus, Gleason‟s sentence is revised to
an aggregate term of six years of incarceration.
CONCLUSION
In light of our discussion above, we conclude that the evidence was sufficient to
support Gleason‟s convictions with regard to the charged offenses. Although we find that
16 the trial court did not abuse its discretion in sentencing Gleason, we find that the eleven-
year aggregate sentence that was imposed is inappropriate when considering the nature of
the offenses and Gleason‟s character. Thus, we revise Gleason‟s aggregate sentence to a
term of six years of incarceration in accordance with the instructions set forth above.
The judgment of the trial court is affirmed in part, reversed in part, and remanded
to the trial court with instructions that it revise Gleason‟s sentence.
DARDEN, J., and BAILEY, J., concur.