MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 14 2016, 7:03 am 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 Ian O’Keefe Gregory F. Zoeller Chicago, Illinois Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles Darryl Jenkins, Jr., March 14, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1504-CR-279 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1408-F3-3
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 1 of 19 [1] Charles Darryl Jenkins, Jr., appeals his conviction and sentence for robbery as a
level 3 felony. Jenkins raises three issues which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction;
II. Whether the trial court abused its discretion in sentencing him; and
III. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] In August 2014, Jenkins, born on September 10, 1992, Andre Brown, and Tyler
Chandler stayed with Iesha Johnson in her apartment at 2314 Yeager Road.
The men seemed to stop talking or changed the subject whenever Johnson
entered the room, and she thought they probably did so because they were
talking about her. Johnson observed the men carrying a bag with a string that
they had with them everywhere.
[3] On August 5, 2014, Chandler and Brown went to a gun store and asked Robert
Allen Robbins, the owner, if he would be interested in buying a firearm.
Chandler and Brown left and returned with Jenkins. Chandler removed a
twenty-two caliber Ruger “single six” revolver with a twelve-inch barrel from a
bag. Transcript at 97. Robbins recognized the gun as being very unique, but
was not interested because there were several deep indentations on the serial
numbers.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 2 of 19 [4] On August 8, 2014, between 2:00 and 3:00 a.m., Chandler entered a Circle K in
West Lafayette and asked Ellen Campbell, a cashier, for a fifty dollar bill in
exchange for two twenty dollar bills and a ten dollar bill. Shortly after 3:00
a.m., Campbell was stacking cigarettes, turned around, and saw a short man
who was about “five seven, five eight” with large hands, a black face, “light
large cheekbones,” was wearing a mask, a hoodie with white and red lettering,
gray shoes, and a blue hat, and holding an old revolver with a long barrel. Id. at
24. A taller man wearing a mask, white Nike shoes with black trim, and gray
sweatpants was with him. The shorter man pointed the gun at Campbell and
asked her to open the safe. After Campbell said that she did not have the code
or the key, the shorter man asked her to open the register. The shorter man
grabbed a bag and told her to put the cash in the bag. The taller man “came
around and got cigarettes and swishers and then he went and got cigarettes.”
Id. at 26. Taken were Newport cigarettes and White Owl cigarillos. The
shorter man then grabbed Campbell’s phone, and the two men ran southbound
out of the building. Campbell called 911 and stated that the subjects were two
black males.
[5] When police arrived, Campbell was extremely upset, crying, shaking, and
terrified that the men were going to return. The police attempted to ping
Campbell’s phone and found that it had been turned off so they were unable to
locate it.
[6] Later that morning, Johnson observed that Brown had a white Samsung phone.
Brown told Johnson that he found it, that he thought it was dropped, and that
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 3 of 19 he wanted to sell it. Jenkins was present and “was like, yeah, we looked over
here, the phone, this and that, yeah.” Id. at 265. At some point that same day,
Brown and two others went to the home of Samuel Booker and sold a black
revolver to a man for about ninety dollars.1
[7] At about 11:00 a.m., Chandler and Brown entered the gun store. Brown was
wearing gray pants and white shoes with black trim. Chandler provided
Robbins with an address that did not match his identification, and Chandler
and Brown left the store and returned around 4:19 p.m., at which point
Chandler filled out an application to purchase a firearm. The address on
Chandler’s identification was 2314 Yeager Road.
[8] Slightly after 6:00 p.m. that day, West Lafayette Police Officer Stacon Wiete
ended his shift after viewing a photograph of an unmasked individual from the
surveillance video of the Circle K gas station, was driving home, and
recognized a person walking in front of his vehicle as the person in the
photograph. Officer Wiete observed the individual and two others enter a
building at 2314 Yeager Road, and contacted the duty shift commander.
[9] On August 9, 2014, Robbins, the owner of the gun store, contacted police after
seeing a newspaper article regarding the robbery at the Circle K, and noting that
1 During direct examination, Booker indicated that Brown and two others came over on August 8, 2014, and sold a gun. Following a question from the jury of what date the gun was sold, Booker answered: “I don’t even know the date to be truthful.” Transcript at 296. During redirect examination, the prosecutor asked Booker: “[D]o you know if it was during August of 2014?” Id. at 297. Booker answered: “It was like around August.” Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 4 of 19 a long-barreled revolver that he had previously seen was used in the robbery.
West Lafayette Police Sergeant Jonathan Eager met with Robbins and showed
him still images of the weapon used in the robbery. The police retrieved video
from Robbins’s surveillance cameras, as well as the firearms transaction report
with the address of 2314 Yeager Road completed by Chandler. Sergeant Eager
determined that the individual that entered the Circle K approximately an hour
prior to the robbery appeared to be the same person on the video at the gun
store. He also noticed that the individual with that person in the gun store was
wearing white shoes with black trim and later determined that person to be
Brown.
[10] That same day, Officer Wiete saw a BMV photograph of a subject, confirmed
that it was of the person he had observed the previous day, and identified him
as Chandler. At 10:45 p.m., West Lafayette Patrol Sergeant Kevin Flyn made a
traffic stop of a minivan that was under surveillance and identified the driver as
Johnson and the passengers as Chandler, Jenkins, and Brown. Officers
transported the three men to the county jail and determined that Chandler’s
shoe size was ten and that Jenkins’s shoe size was eleven. At the jail, West
Lafayette Police Officer Jonathan Morgan asked Brown what size shoes he
wore, and Brown said that he wore size eleven, but when Brown removed his
shoes, Officer Morgan noticed they were a size twelve.
[11] Meanwhile, the police took Johnson to the police station and then back to her
apartment and executed a search warrant. The police recovered a gray
sweatshirt, size twelve white and black Nike tennis shoes, size eleven gray and
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 5 of 19 white Nike shoes, a black “dream chasers” hoodie with white and red lettering,
gray sweatpants with a cargo pocket near the thigh, a twenty-two caliber shell
casing, Newport cigarettes, two cell phones, one of which was a white Samsung
phone later determined to belong to Campbell, a Circle K plastic bag containing
opened cigarillos or cigars, and Chandler’s wallet. Id. at 140. Sergeant Eager
determined that the gray Nike shoes were similar to the ones in the robbery and
that the white and black Nike shoes appeared to be the same shoes in both the
video at the gun store and the armed robbery. The hoodie discovered by police
appeared to be the same hoodie worn by one of the men in the armed robbery
video.
[12] On August 10, 2014, Sergeant Eager reviewed a statement of rights form with
Brown, Brown signed the form, and Sergeant Eager interviewed him. Brown
initially denied knowing about the robbery, but later admitted that he had
knowledge of it and that Marqueese Huckabee and an unknown male had
committed it. When asked about the white Samsung phone that belonged to
Campbell, Brown said that he found it in a field or in the grass outside of 2314
Yeager Road and that the screen was flashing. He admitted to wearing the gray
sweatpants and that the shoes belonged to him and stated that an unknown
individual requested his shoes and clothing. Sergeant Eager later interviewed
Huckabee and did not believe that he was involved in the robbery.
[13] On August 14, 2014, the State charged Jenkins, Brown, and Chandler with
Count I, conspiracy to commit robbery as a level 3 felony; Count II, robbery as
a level 3 felony; Count III, theft as a class A misdemeanor; and Count IV, theft
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 6 of 19 as a class A misdemeanor. In January 2015, the State filed a motion to try
Jenkins and Brown together, and the court granted the motion.
[14] In February 2015, the court held a jury trial. Campbell testified that she would
be unable to identify the men that robbed her because they wore masks.
Sergeant Eager testified that he interviewed Brown, that Brown initially denied
knowing anything about the robbery, and that after he relayed certain facts to
Brown, “that’s when the story came out that it was these other people oh, and
they were wearing my clothes.” Id. at 235. Johnson testified that Brown wore
the sweatpants recovered during the search and that she never saw anyone else
wear those sweatpants. She testified that Jenkins wore the gray Nike shoes and
sometimes wore a blue Indiana Pacers hat. She also testified that she did not
own a gun in August 2014 and that she had no reason to have bullets in her
apartment.
[15] The jury found Jenkins guilty as charged. The court found that Counts I, III,
and IV merged into Count II, robbery committed while armed with a deadly
weapon as a level 3 felony, and entered judgment of conviction on that count.
[16] On March 30, 2015, the court held a sentencing hearing. Jenkins stated in part:
I just want to let you know that I am sorry for the victims in this case. I don’t want to make it seem like I don’t feel no remorse for the victims or what happened in this case, but I still feel like I was found guilty, you know what I’m saying, only by association according to the evidence that I saw at trial.
Id. at 372.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 7 of 19 [17] The court found as a mitigator that Jenkins had taken advantage of
opportunities while incarcerated and noted that he had obtained his high school
equivalency diploma and other achievement awards. The court found his
criminal history, history of substance abuse, and revocations of probation to be
aggravators, found that the aggravators outweighed the mitigators, and
sentenced Jenkins to eleven years executed in the Department of Correction.
Discussion
[18] The first issue is whether the evidence is sufficient to sustain Jenkins’s
conviction. He argues that there was insufficient evidence that he was in fact
the one who committed the robbery due to the lack of physical evidence against
him at trial, and that there was insufficient evidence to show that he entered
into any agreement with either Brown or Chandler to commit a robbery.
[19] The State argues that the evidence is sufficient to establish that Jenkins was one
of the robbers of the Circle K and points to the discovery of property taken
during the robbery and clothing similar to that worn by both robbers in the
apartment where Jenkins had been living. The State also points to Johnson’s
testimony in which she identified the hat and shoes as belonging to and worn
by Jenkins.
[20] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 8 of 19 conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
[21] Elements of offenses and identity may be established entirely by circumstantial
evidence and the logical inferences drawn therefrom. Bustamante v. State, 557
N.E.2d 1313, 1317 (Ind. 1990). Identification testimony need not necessarily
be unequivocal to sustain a conviction. Heeter v. State, 661 N.E.2d 612, 616
(Ind. Ct. App. 1996). Inconsistencies in identification testimony impact only
the weight of that testimony, because it is the jury’s task to weigh the evidence
and determine the credibility of the witnesses. Gleaves v. State, 859 N.E.2d 766,
770 (Ind. Ct. App. 2007) (citing Badelle v. State, 754 N.E.2d 510 (Ind. Ct. App.
2001), trans. denied). As with other sufficiency matters, we will not weigh the
evidence or resolve questions of credibility when determining whether the
identification evidence is sufficient to sustain a conviction. Heeter, 661 N.E.2d
at 616. Rather, we examine the evidence and the reasonable inferences
therefrom that support the verdict. Id.
[22] To the extent that Jenkins’s arguments challenge the jury’s finding of guilt as to
Counts I, III, or IV, we observe that the trial court found that Counts I, III, and
IV merged into Count II, robbery committed while armed with a deadly
weapon as a level 3 felony, and entered judgment of conviction and sentenced
him on only that count. Accordingly, we focus on whether the evidence is
sufficient to sustain Jenkins’s conviction for Count II, robbery committed while
armed with a deadly weapon as a level 3 felony.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 9 of 19 [23] Ind. Code § 35-42-5-1 governs the offense of robbery as a level 3 felony and
provides that “[a] person who knowingly or intentionally takes property from
another person or from the presence of another person: (1) by using or
threatening the use of force on any person; or (2) by putting any person in fear;
commits robbery . . . .” “[T]he offense is a Level 3 felony if it is committed
while armed with a deadly weapon . . . .” Ind. Code § 35-42-5-1. The State
charged that Jenkins, Brown, and Chandler
did knowingly or intentionally take property, to wit: U.S. Currency, merchandise, a cell phone, or other property, from another person or the presence of another person, to wit: Ellen Campbell, by using or threatening the use of force or by putting the said Ellen Campbell in fear, committed while armed with a deadly weapon, to wit: a handgun . . . .
Appellant’s Appendix at 10.
[24] Regarding accomplice liability, Ind. Code § 35-41-2-4 provides that “[a] person
who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense . . . .” “‘[A]n accomplice is criminally
responsible for all acts committed by a confederate which are a probable and
natural consequence’ of their concerted action.” McGee v. State, 699 N.E.2d
264, 265 (Ind. 1998) (quoting Vance v. State, 620 N.E.2d 687, 690 (Ind. 1993)).
It is not necessary that a defendant participate in every element of a crime to be
convicted of that crime under a theory of accomplice liability. Bruno v. State,
774 N.E.2d 880, 882 (Ind. 2002), reh’g denied. In determining whether there
was sufficient evidence for purposes of accomplice liability, we consider such
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 10 of 19 factors as: (1) presence at the scene of the crime; (2) companionship with
another at the scene of the crime; (3) failure to oppose commission of the crime;
and (4) course of conduct before, during, and after occurrence of the crime. Id.
A defendant’s mere presence at the crime scene, or lack of opposition to a
crime, standing alone, is insufficient to establish accomplice liability. Tobar v.
State, 740 N.E.2d 109, 112 (Ind. 2000).
[25] The record reveals that on August 5, 2014, Jenkins went to the gun store with
Brown and Chandler where Chandler removed the revolver with the long
twelve inch barrel. Robbins described the gun as being “very unique.”
Transcript at 97. He also testified that, as a gun store owner, he saw a hundred
guns per week and had seen only two of the particular kind of gun in Brown’s
possession. A similar gun was later used to commit the robbery.
[26] Chandler, who was staying with Jenkins and Brown in Johnson’s apartment,
entered the Circle K in West Lafayette, on August 8, 2014, and asked
Campbell, the cashier, for a fifty dollar bill in exchange for two twenty dollar
bills and a ten dollar bill. Shortly after 3:00 a.m., two men entered the Circle K,
and the shorter man who was about “five seven, five eight,” with large hands, a
black face, “light large cheekbones,” wearing a mask, a hoodie with white and
red lettering, gray shoes, and a blue hat, pointed a gun at Campbell. Id. at 24.
Detective Greene described Brown as being “around six foot, six foot one” and
Jenkins as being “about five eight” and “a hundred fifty, hundred sixty pounds”
in August 2014. Id. at 272-273. The jury was able to compare the descriptions
of Jenkins, its view of Jenkins, and the persons on the surveillance video.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 11 of 19 [27] The police discovered Campbell’s phone, Newport cigarettes, cigarillos, and a
Circle K bag in the apartment where Jenkins had been staying. The police also
discovered twenty-two caliber rounds which were the same caliber as the
weapon used during the robbery.
[28] Additionally, the police recovered a black “dream chasers” hoodie with white
and red lettering and gray shoes. Id. at 140. The shorter suspect in the
surveillance video wore a black hoodie with white and red lettering and gray
shoes, and Sergeant Eager testified that the gray shoes and hoodie with the
white and red lettering recovered from the apartment were similar to the shoes
and hoodie seen in the Circle K surveillance video. Police recovered a blue hat
in the apartment, the shorter man in the surveillance video of the Circle K wore
a blue hat, and Johnson testified that Jenkins sometimes wore the blue hat that
was recovered. The sizes of the shoes recovered from Johnson’s apartment
matched the sizes of the shoes that Jenkins and Brown were wearing when they
were taken to the jail. We also note that the police recovered a pair of gray
sweatpants with a cargo pocket. Detective Greene testified he believed the
sweatpants were worn by the taller suspect at the robbery, and Johnson testified
that Brown wore the sweatpants recovered during the search and that she never
saw anyone else wear them. Again, the jury was able to compare the shoes and
clothing with the shoes and clothing worn in the surveillance videos, and, as
fact-finder, reasonably could have concluded that Jenkins was the shorter man
in the Circle K video.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 12 of 19 [29] Based upon the record, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could have found Jenkins
guilty beyond a reasonable doubt of robbery as a level 3 felony.
II.
[30] The next issue is whether the trial court abused its discretion in sentencing
Jenkins. We review the sentence 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).
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. A trial court
abuses its discretion if it: (1) fails “to enter a sentencing statement at all;” (2)
enters “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;” (3) enters a sentencing statement that “omits
reasons that are clearly supported by the record and advanced for
consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. at 490-491. 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.” Id. at 491. The relative weight or value assignable to
reasons properly found, or those which should have been found, is not subject
to review for abuse of discretion. Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 13 of 19 [31] Jenkins argues that the trial court abused its discretion by failing to consider his
remorse. He asserts that he expressed remorse for what happened and rightfully
maintained his innocence due to the highly speculative and circumstantial
nature of the evidence. He concedes that the hardship incarceration would
have on his children was not specifically argued as a mitigating factor, but
contends that the trial court abused its discretion by failing to find it as such.
[32] The determination of mitigating circumstances is within the discretion of the
trial court. Rogers v. State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans.
denied. The trial court is not obligated to accept the defendant’s argument as to
what constitutes a mitigating factor, and a trial court is not required to give the
same weight to proffered mitigating factors as does a defendant. Id. An
allegation that the trial court failed to identify or find a mitigating factor
requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Anglemyer, 868 N.E.2d at 493.
If the trial court does not find the existence of a mitigating factor after it has
been argued by counsel, it is not obligated to explain why it has found that the
factor does not exist. Id.
[33] With respect to Jenkins’s argument regarding his remorse, a trial court’s
determination of a defendant’s remorse is similar to a determination of
credibility. Pickens v. State, 767 N.E.2d 530, 534-535 (Ind. 2002). Without
evidence of some impermissible consideration by the court, we accept its
determination of credibility. Id. The trial court is in the best position to judge
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 14 of 19 the sincerity of a defendant’s remorseful statements. Stout v. State, 834 N.E.2d
707, 711 (Ind. Ct. App. 2005), trans. denied. At sentencing, Jenkins stated:
I just want to let you know that I am sorry for the victims in this case. I don’t want to make it seem like I don’t feel no remorse for the victims or what happened in this case, but I still feel like I was found guilty, you know what I’m saying, only by association according to the evidence that I saw at trial.
Transcript at 372. The court was able to consider Jenkins’s statements, and
based upon our review of the sentencing transcript and the record we cannot
say that the trial court abused its discretion by not finding Jenkins’s alleged
remorse to be a mitigating circumstance. See Stout, 834 N.E.2d at 711 (holding
that the court did not err in not finding the defendant’s alleged remorse to be a
mitigating factor).
[34] As for the burden on Jenkins’s children, “[i]f the defendant does not advance a
factor to be mitigating at sentencing, this Court will presume that the factor is
not significant and the defendant is precluded from advancing it as a mitigating
circumstance for the first time on appeal.” Henley v. State, 881 N.E.2d 639, 651
(Ind. 2008) (quoting Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g
denied). Waiver notwithstanding, “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); see also Benefield v. State, 904
N.E.2d 239, 247-248 (Ind. Ct. App. 2009) (recognizing that incarceration
“almost always” works a hardship on others and concluding that the defendant
failed to show “special circumstances” because there were other people who Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 15 of 19 could take care of the defendant’s mother while she was incarcerated), trans.
denied. The presentence investigation report (“PSI”) indicates that Jenkins has
three children by two different women, that he has contact with one child three
times per month and with the other two children on a daily basis, that he is not
ordered to pay child support, and that he lived with a friend. We cannot say
that Jenkins has demonstrated that the mitigating evidence as to a burden on
his children is both significant and clearly supported by the record or that the
trial court abused its discretion.
III.
[35] The next issue is whether Jenkins’s sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule
7(B) provides that we “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Under this rule, the burden is on the defendant to persuade the
appellate court that his or her sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[36] Jenkins argues that his sentence of eleven years, one year above the advisory, is
inappropriate because his adult criminal history consists of only one class D
felony, two misdemeanors, and a pending case in Iowa. He contends that his
sentence was disproportionately dissimilar to Brown’s sentence of ten years
with eight years executed and two years suspended to probation even though
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 16 of 19 Brown was convicted of the same acts and the court found similar aggravating
and mitigating circumstances when deciding Brown’s sentence.
[37] Our review of the nature of the offense reveals that Jenkins and another man
entered the Circle K wearing masks shortly after 3:00 a.m. and that Jenkins
pointed a gun at Campbell, asked her to open the safe and the register, grabbed
a bag, told her to put the cash in the bag, grabbed Campbell’s cell phone, and
then ran out of the building with the other man.
[38] Our review of the character of the offender reveals that as a juvenile, Jenkins
was alleged to have committed robbery resulting in bodily injury as a class B
felony, receiving stolen auto parts as a class D felony, and conversion as a class
A misdemeanor if committed by an adult, but these cases were dismissed. In
2010, Jenkins was adjudicated a delinquent child for carrying a handgun
without a license. As an adult, Jenkins was convicted of attempted residential
entry as a class D felony in 2011, and failure to stop after an accident resulting
in damage to an unattended vehicle as a class B misdemeanor and possession of
marijuana as a class A misdemeanor in 2013. He was also charged with first
degree robbery in Iowa, and the PSI lists an offense date of April 23, 2014.2
2 To the extent Jenkins asserts that the pending case for robbery in Iowa should not require an aggravated sentence, we observe that the Indiana Supreme Court has stated: This Court has held that “allegations of prior criminal activity need not be reduced to conviction in order to be considered a proper aggravating factor.” Beason v. State, 690 N.E.2d 277, 281 (Ind. 1998) (citing Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991) (noting that a sentencing court may properly consider as an aggravating factor prior arrests and pending charges not reduced to convictions because they reflect the defendant’s character and indicate a risk of future crime)).
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 17 of 19 Four petitions to revoke probation have been filed against him with two being
found true.
[39] Jenkins obtained a high school equivalency diploma in 2014, has three children
by two different women, has contact with one child three times per month and
with the other two children on a daily basis, is not ordered to pay child support,
and lived with a friend at the time of the offense.
[40] He reported first consuming alcohol at the age of fourteen and drugs at the age
of fifteen, and admitted to using marijuana and ecstasy. He also reported not
completing court ordered group therapy substance abuse treatment in Lake
County in 2011.
[41] The PSI indicates that his overall risk assessment score placed him in the high
risk to reoffend category. The probation officer completing the PSI
recommended a sentence of twelve years executed in the Department of
Correction.
[42] After due consideration of the trial court’s decision, we cannot say that the
sentence of eleven years is inappropriate in light of the nature of the offense and
the character of the offender. To the extent that Jenkins compares his eleven
year sentence to the sentence of ten years with two years suspended received by
Brown, we need not compare sentences of codefendants although we are not
Bacher v. State, 722 N.E.2d 799, 804 (Ind. 2000).
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 18 of 19 precluded from comparing sentences among those convicted of the same or
similar crimes. Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). In sentencing
Brown, the trial court found two mitigators that it did not find here, namely
that Brown’s incarceration would cause an undue hardship on his dependent
child and that Brown took responsibility for his actions. Further, we observe
that the evidence indicates that Jenkins was the man holding the gun during the
robbery and that he pointed it at Campbell. We cannot say that the
dissimilarity between the sentences requires revision of Jenkins’s sentence.
Conclusion
[43] For the foregoing reasons, we affirm Jenkins’s conviction and sentence.
[44] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 19 of 19