MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 30 2019, 8:24 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christian A. Stewart, July 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-411 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff. Judge The Honorable Jeffrey L. Sharp, Special Judge Trial Court Cause No. 69C01-1705-F2-6
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 1 of 18 [1] Following a jury trial, Christian Stewart was found guilty of Level 2 felony
conspiracy to commit burglary and Level 4 felony unlawful possession of a
firearm by a serious violent felon. He raises the following two restated issues
on appeal:
I. Did the State present sufficient evidence to support Stewart’s conspiracy to commit burglary conviction?
II. Is his sentence inappropriate in light of the offenses and the character of the offender?
[2] We affirm.
Facts & Procedural History [3] On the morning of May 16, 2017, homeowner David Wood, along with his
employees Roger Marquardt and Ed Robinson, were working in Wood’s tractor
and mower repair shop, which was located in Wood’s garage on his rural
property in Ripley County, Indiana. Around 10:30 a.m., a man, later
determined to be Stewart, approached from the woods, not the driveway, and
came in the door “out of breath . . . and [] just kind of acting funny.” Transcript
Vol. 3 at 79. Stewart was carrying his shirt, balled up and tucked under his arm.
Stewart said he did not know where he was, and he asked for a ride or to use a
phone. Wood gave Stewart a phone to use, and they could hear him yelling on
the call. Afterward, Stewart said that his girlfriend and brother were going to
pick him up near a farmhouse, and, in the course of that conversation, Stewart
mentioned that they would be driving a small red Chevy pick-up truck.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 2 of 18 [4] Stewart started walking down the lane, which Wood shared with adjoining
landowner, Don Baumgartner. Wood asked Robinson to use his all-terrain
four-wheeler (ATV) and give Stewart ride. Robinson did so, and when they
reached a bridge, Stewart directed Robinson to turn down a lane, telling
Robinson, “we was right back that road there[.]” Id. at 118. Robinson turned
on the lane, which served as a driveway to Baumgartner’s property, and he
noticed that Baumgartner’s usually-closed gate was bent and laying on the
ground. Wood, watching from his driveway, saw Robinson and Stewart turn
on Baumgartner’s driveway, which he knew was usually gated and locked.
Wood and Marquardt got on another ATV and drove to investigate what was
happening. When they reached the driveway, Wood saw that the gate was off
its hinges and knocked off to the side.
[5] Meanwhile, Robinson was driving Stewart around the property – through a
creek, fields, and woods – looking for what Stewart said was a red Chevy S10
pick-up truck. Eventually they returned to the driveway, where they met up
with Woods and Marquardt. The men turned off the loud ATV engines, but
heard the sound of another engine coming from the direction of the creek.
Stewart’s demeanor changed – he got “real nervous” – and, without any
investigation as to what the sound was, Stewart immediately said “[t]hat’s not
them” and “they are not over there,” referring to his girlfriend and brother in
the truck. Id. at 74, 88, 116. Wood, Robinson, and Marquardt walked to the
sound and discovered that the running engine was Baumgartner’s tractor,
tipped over on its side in the creek against a tree, with tires spinning and a bush
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 3 of 18 hog attached. The tractor had a piece of rope, later identified by Baumgartner
as having been taken from his barn, tied to the back of it. Robinson checked
Baumgartner’s hunting cabin and saw that it had been broken into and was “in
shambles.” Id. at 121.
[6] Wood drove home on an ATV to call the Ripley County Sheriff’s Department
(RCSD). Marquardt stood near the broken gate and Robinson stayed near the
tractor with Stewart, but then Stewart walked away toward Marquardt,
approaching him aggressively. The shirt that had been balled up under his arm
was now wrapped around his hand. Marquardt yelled at Stewart to stay back
but Stewart bumped his chest into Marquardt twice. The two yelled at each
other and, at some point, Marquardt pushed Stewart away and told him to sit
down, which he did, placing his shirt on the ground and exposing part of a
handgun. Marquardt kicked away the gun, which landed at Robinson’s feet as
he was approaching. Robinson picked it up and, after checking and finding that
it was loaded, he cleared the chamber and put it in a lock box on his ATV.
[7] Around this time, Wood returned and informed them that he had called the
authorities. Stewart remarked that he could not be there when the police
arrived and said, “I can’t get into trouble.” Id. at 100. Stewart also picked up a
rock, hit himself in the head with it, and said “I’m stupid.” Id. at 97. A few
minutes later, Stewart stood up and tried to walk by Marquardt, who held out
his arms to stop Stewart from passing. Stewart was angry and threatened, “I
can make one phone call and . . . can have the Arian Nation Brotherhood down
here, within just a little bit.” Id. at 100-01. Stewart calmed and sat down, and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 4 of 18 various other neighbors arrived, including Baumgartner. Shortly thereafter,
around 11:30 a.m., RCSD Lieutenant Randy Holt arrived at the scene.
[8] Stewart told Lieutenant Holt that he and his pregnant girlfriend, who he
identified as Chelsea Baxter, and his cousin had been traveling in his girlfriend’s
aunt’s red Ford Explorer, got lost, then stuck, and he walked for help.
Lieutenant Holt secured Stewart’s 9mm Glock handgun from Robinson and
called for back-up. Stewart was transported from the scene. Lieutenant Holt
then examined the tractor and Baumgartner’s cabin, where he observed that the
door was kicked in, the lock was broken, paneling was torn off the walls, a
mattress was flipped over, and a back window had been broken out. He also
noted that the bench seats of a nearby wooden picnic table had been removed,
and they were scattered around an area that appeared to have vehicle ruts in the
mud.
[9] As Lieutenant Holt and another deputy were examining the scene, Wood and
Marquardt returned to Wood’s home, and Wood spoke with Mrs. Monk, a
neighbor, who was trying to determine if one of the other individuals that police
were looking for was female because a woman named Kelsey Luellen, who was
later identified as Stewart’s girlfriend, had knocked on the Monks’ door and
asked for help. Luellen said that her aunt’s dog had jumped out of the back of
her truck as she was driving and that, while searching for the dog, she had
gotten her truck stuck in some mud. Mr. Monk initially agreed to help, but
after being notified of what was happening at Baumgartner’s property, he did
not pull the truck from the mud and, instead, waited for police to arrive.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 5 of 18 [10] Lieutenant Holt and another deputy arrived and spoke to Luellen, who
identified herself as Stewart’s girlfriend and said she was looking for a lost dog
and got stuck. Lieutenant Holt noticed that the red Chevy S10 pick-up had a
portion of rope tied to its back bumper, which Baumgartner identified as being
the other portion of the rope that someone had taken from his barn and tied to
the tractor. The pick-up truck was towed to the RCSD headquarters where
officers conducted a search pursuant to a warrant. In addition to the rope,
police found other items taken from Baumgartner’s property including a
machete, a toilet seat, and an axe. Officers also found in the truck Stewart’s
wallet and identification card, a handwritten letter to Stewart, Luellen’s wallet
and driver’s license, a Glock handgun case with a serial number that matched
the serial number of the gun that Stewart had been carrying, and items
considered by police to be “burglary tool[s],” including two sets of gloves, two
bandanas, a ski mask, and flashlights. Transcript Vol. 4 at 59, 64, 70. The
license plate on the truck was registered to Stacie and Kayla Luellen.
[11] Before Luellen was transported to jail, officers were called to a third scene,
which was within a mile of the other two locations. Ron Perry, who was taking
care of a farmhouse belonging to his brother-in-law, Martin Bruegge, contacted
police because there was a noise coming from inside the house and a few
windows had been broken out. Responding officers heard commotion inside
the house, “like somebody was throwing stuff around inside” and then saw a
male looking out an upstairs window. Transcript Vol. 3 at 236. Officers yelled
for the man, later determined to be Stewart’s younger brother, Cameron
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 6 of 18 Stewart, to come outside. Cameron remained in the house in a standoff with
officers for about forty-five minutes. Indiana State Police officers had arrived
and were sending in a K-9 when Cameron exited through a side window and
ran. The K-9 caught and detained him. While attempting to flee, Cameron
threw an object that was later identified as a loaded .45 caliber semi-automatic
handgun. Officers entered the Bruegge house and discovered that every room
had been “completely ransacked” and a safe had been moved to the middle of
the kitchen floor. Transcript Vol. 4 at 13.
[12] On May 22, 2017, the State charged Stewart with Count, Level 2 felony
conspiracy to commit armed burglary; Count II, Level 4 felony serious violent
felon in possession of a firearm; Count III, Level 5 felony burglary; Count IV,
Level 5 felony burglary; Count V, Class A misdemeanor theft; Count VI, Level
6 felony theft; and Count VII, Class A misdemeanor possession of a handgun
without a permit. The State later amended Counts I and II and dismissed the
remaining counts.
[13] While awaiting trial in the Ripley County Jail, Stewart wrote four emails to
Luellen, who was also in jail. 1 Stewart told Luellen: “I feel guilty about us
getting wrapped up in this bull sh*t”; “none of this sh*t would have happened if
I wouldn’t have dragged you in my life”; “I love you Kelsey Cheyenne
Stewart”; and “I’m sorry for everything. I feel like I put you through this shit
1 Because security policy prohibits offenders from directly contacting codefendants, Stewart sent the emails indirectly to Luellen by sending the emails to Stacey Luellen.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 7 of 18 and I regret it.” Id. at 89-90. He also told her “I hate seeing you in this position
because it’s not where you belong.” Id. at 90.
[14] At the three-day December 2018 jury trial, the State presented testimony from
Wood, Robinson, and Marquardt, as well as various law enforcement officers,
and the property owners, Baumgartner, Monk, and Bruegge. The defense
rested without presenting evidence. The jury found Stewart guilty of conspiracy
to commit armed burglary, and he thereafter pled guilty to unlawful possession
of a firearm by a serious violent felon. At the sentencing hearing, the trial court
identified several aggravators and found that Stewart’s guilty plea to Count II
was a mitigator factor, although it was “significantly diminished” by the fact
that he pled guilty after the jury found him guilty of possession of a firearm.
Appellant’s Appendix Vol. 3 at 52. The trial court sentenced Stewart, then age
twenty-three, to thirty years for his Level 2 felony conviction and to a
consecutive 12-year term for his Level 4 felony conviction, resulting in an
aggregate sentence of forty-two years. The sentencing order directed that
“[b]ased on the numerous violations of the rules at the Ripley County Jail and
repeated physical altercations with other inmates, the Court finds that the
Defendant poses a serious security risk while incarcerated” and recommended
that the Indiana Department of Correction “place [Stewart] in a maximum level
security facility.” Id. at 54. Stewart now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 8 of 18 Discussion & Decision I. Conspiracy to Commit Burglary
[15] Stewart claims that the evidence was insufficient to support his conviction for
conspiracy to commit burglary. Our standard of review for sufficiency claims
is well settled. Dickenson v. State, 835 N.E.2d 542, 551 (Ind. Ct. App. 2005),
trans. denied. We do not reweigh the evidence or assess the credibility of
witnesses. Id. We look to the evidence and the reasonable inferences to be
drawn therefrom that support the verdict. Id. We will affirm the convictions if
there is sufficient probative evidence from which a reasonable jury could have
found the defendant guilty beyond a reasonable doubt. Id. at 552. “A
judgment may be sustained based on circumstantial evidence alone if that
circumstantial evidence supports a reasonable inference of guilt.” Davis v. State,
791 N.E.2d 266, 270 (Ind. Ct. App. 2003) (citing Maul v. State, 731 N.E.2d 438,
439 (Ind. 2000)), trans. denied.
[16] To convict Stewart of conspiracy to commit burglary as charged, the State was
required to prove that (1) Stewart agreed with Cameron and/or Luellen to
commit armed burglary and (2) that one of them performed an overt act in
furtherance of the agreement, namely breaking and entering the building or
structure of Bruegge or Baumgartner with the intent to commit theft while
armed with a handgun. See Ind. Code § 35-41-5-2. The State is not required to
establish the existence of a formal express agreement to prove a conspiracy.
Dickenson, 835 N.E.2d at 552. It is sufficient if the minds of the parties meet
understandingly to bring about an intelligent and deliberate agreement to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 9 of 18 commit the offense. Weida v. State, 778 N.E.2d 843, 847 (Ind. Ct. App. 2002).
“‘The agreement as well as the requisite guilty knowledge and intent may be
inferred from circumstantial evidence alone, including overt acts of the parties
in pursuance of the criminal act.’” Erkins v. State, 13 N.E.3d 400, 407 (Ind.
2014) (quoting Survance v. State, 465 N.E.2d 1076, 1080 (Ind. 1984)).
[17] On appeal, Stewart asserts that “the record does not support an inference that
Stewart [] broke and entered any building or structure, or agreed with anyone
else to do the same[.]” Appellant’s Brief at 13-14. Noting a lack of direct
evidence – i.e., “No one saw Stewart enter the cabin, barn, or the Bruegge
property” – he claims that he was improperly convicted because of his
“proximity to [the] location of [the Baumgartner] burglary and his sibling
relationship to the criminal responsible for [the Bruegge] burglar[y].” Id. at 12,
17. We are unpersuaded, however, and find that the State presented sufficient
evidence for the jury to convict Stewart of conspiracy to commit burglary.
[18] Stewart, Luellen, and Cameron traveled together on May 16, 2017, to a
wooded area of Ripley County in Luellen’s pick-up truck, and they brought
with them burglary tools such as gloves, a ski mask, a screwdriver, and two
flashlights. They also had two loaded handguns. The exact order of events is
not entirely clear, but what is known is that Baumgartner’s gate to his driveway
was knocked down and his cabin and barn were broken into and property
taken. Stewart left Baumgartner’s property and walked to Wood’s garage,
hiding a gun in his shirt that was tucked under his arm, and he asked for a
phone or for a ride. After making a call, he said he was going to meet his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 10 of 18 girlfriend and brother in a pick-up truck. As Robinson was giving him a ride on
the ATV, Stewart directed Robinson down a lane that led to Baumgartner’s
property, telling Robinson, “[W]e was right back that road there[.]” Transcript
Vol. 3 at 118. When Wood and Marquardt met up with Robinson and Stewart
on Baumgartner’s driveway, they saw ruts in the mud where a vehicle appeared
to have been stuck and wooden planks from a picnic table had been used to get
it out of the mud. Stewart got very nervous when the men heard an engine
running, which they discovered was Baumgartner’s tractor tipped over against a
tree. Baumgartner testified that he did not put the rope on the tractor (or on the
pick-up truck). Stewart tried to walk away before police arrived and then hit
himself in the head with a rock saying he was stupid and could not be there
when police arrived. When Stewart sat down on the ground, Marquardt saw
the Glock handgun and kicked it to Robinson. The gun had a live round in the
chamber and a full magazine. Stewart was confrontational and aggressive with
Marquardt, who was physically preventing Stewart from leaving until police
arrived, and he made threatening remarks that he could call the Arian Nation
Brotherhood who would come quickly to his aid. Stewart gave Lieutenant Holt
a somewhat different story than he had told Wood and his friends, telling the
officer that he was trying to find his pregnant girlfriend named Chelsea Baxter
and his cousin – thus giving a false name for his girlfriend and not mentioning
his brother – and he said that they were in a Ford Explorer, not a pick-up truck.
[19] When police later found the pick-up truck (and Luellen) at the Monks’
property, Stewart’s wallet and ID were in the truck, as well as the gun case to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 11 of 18 the gun he had been carrying, thus linking Stewart to the truck. Also found in
the pick-up were various items that had been stolen from Baumgartner’s cabin
and barn. Around the time that Stewart was transported to jail, police
responded to the burglary at the Bruegge property. Stewart’s brother, Cameron,
eventually jumped out a window and fled on foot, tossing a loaded handgun.
Items were strewn about inside the house and a safe moved to the kitchen.
Stewart contacted Luellen while in jail and made statements indicating that he
regretted getting her involved. From the evidence presented, the jury could
have inferred that Stewart had an agreement with Luellen and/or Cameron to
come to the secluded, wooded area to burglarize homes.
[20] Stewart suggests that when he left Baumgartner’s property and went for
assistance, “the only rational inference” is that Luellen dislodged the truck and
left before he returned, arguing that, even if items found in the truck could
“properly [be] associated with Luellen,” he “could not be responsible for the
items collected by [her].” Appellant’s Brief at 14-15. Effectively, Stewart appears
to be arguing that Luellen took the property while he was walking to Wood’s
house and he had no connection to it. Even if she did take it then, that does not
preclude his conspiracy conviction. It is well-settled that the evidence need not
be sufficient to overcome every reasonable hypothesis of innocence. Craig v.
State, 730 N.E.2d 1262, 1266 (Ind. 2000).
[21] We also reject Stewart’s suggestion that Cameron burglarized the Bruegge
house several hours after Stewart was arrested and “the intervening three hours
completely attenuates [] Stewart’s potential involvement” in that burglary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 12 of 18 Appellant’s Brief at 16. First, there is no evidence as to when Cameron entered
the home, only evidence of when he was discovered in the home. Second, even
if Cameron broke in after Stewart had been arrested, that does not preclude a
jury inference that Stewart was part of the plan to burglarize the home. Indeed,
Stewart, Luellen, and Cameron were all arrested within a three-hour time
frame. Stewart was deceptive with Lieutenant Holt, saying that he was with his
girlfriend (who he said was named Chelsea Baxter) and cousin when they got
lost and stuck in a Ford Explorer, which statements indicate an attempt by
Stewart to disassociate himself from Luellen, his brother, and the red Chevy
S10 pick-up truck. Ultimately, Stewart’s arguments are improper requests to
reweigh the evidence. The State presented sufficient evidence from which the
jury could have inferred that Stewart agreed with Luellen and/or Cameron to
commit burglary.
II. Inappropriate Sentence
[22] Stewart argues that his sentence is inappropriate. We may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, we
find the sentence inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). Indiana’s flexible
sentencing scheme allows trial courts to tailor an appropriate sentence to the
circumstances presented and the trial court’s judgment “should receive
considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
The principal role of appellate review is to attempt to “leaven the outliers.” Id.
at 1225. Whether we regard a sentence as inappropriate at the end of the day
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 13 of 18 turns on “our sense of 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.” Id. at 1224. Deference to the trial court “prevail[s] unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The burden is
on the defendant to persuade us his sentence is inappropriate. Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006).
[23] When determining whether a sentence is inappropriate as to the nature of the
offense, the advisory sentence is the starting point the Legislature has selected
as an appropriate sentence for the crime committed. Id. at 1081. For his Level
2 felony conspiracy to commit burglary while armed with a deadly weapon
conviction, Stewart faced a sentencing range from ten years to thirty years, with
the advisory being seventeen and one-half years. Ind. Code § 35-50-2-4.5. For
his Level 4 felony possession of a firearm by a serious violent felon conviction,
Stewart faced a sentencing range from two to twelve years, with the advisory
sentence being six years. I.C. § 35-50-2-5.5. The trial court ordered the
maximum sentence on each conviction and ordered them to be served
consecutively for an aggregate sentence of forty-two years. 2 Stewart argues that
2 We note that the trial court issued a thirteen-page sentencing order that detailed the aggravating and mitigating circumstances that it considered, including those that it rejected and why. It also explained its reasoning for imposing consecutive sentences. The trial court’s thoroughness aided our appellate review.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 14 of 18 there was no evidence that he caused bodily harm or intended to do so, that the
financial harm was not excessive, and that, at most, he “was somehow
involved” in rummaging through unoccupied cabins. Appellant’s Brief at 20.
Therefore, he asserts that he was not the worst of the worst offenders and did
not deserve a maximum sentence
[24] As this court has recognized, “[t]he nature of the offense is found in the details
and circumstances of the commission of the offense and the defendant’s
participation.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Here,
Stewart, along with his girlfriend and brother, came to the remote area prepared
to burglarize cabins or residences, and one or more of them did so. Two of the
three, Stewart and his brother, each carried a loaded handgun with a bullet in
the chamber, ready to fire. Stewart entered Wood’s garage and then was riding
around with Robinson on the ATV all while holding the Glock wrapped up
under his shirt. When Wood left to call law enforcement, Stewart aggressively
approached Marquardt with the gun, now in his hand with the wrapped shirt
over it. Stewart chest-bumped Marquardt when Marquardt told Stewart that he
was not leaving before police arrived. Stewart also made what Marquardt
viewed as threatening remarks about being able to quickly summon the Arian
Nation Brotherhood for assistance. Although the financial value of the
machete, axe, toilet seat, and rope may have been minimal, both the Bruegge
farmhouse and the Baumgartner cabin were ransacked, with items pulled out of
drawers and cabinets and strewn about. The Baumgartner gate was knocked off
its hinges and the cabin door was kicked in. The tractor, with bush hog still
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 15 of 18 attached and dragging behind it, was left running against a tree in a creek and
was damaged in excess of $1000. At the Bruegge property, family heirlooms
were broken or destroyed. Stewart’s emails to his girlfriend indicate regret at
getting her involved, reflecting his integral role in the burglaries. We find that
the nature of the offense does not warrant revision of his sentence.
[25] “The character of the offender is found in what we learn of the offender’s life
and conduct.” Croy, 953 N.E.2d at 664. When considering the character of the
offender, “‘one relevant fact is the defendant’s criminal history,’ and ‘[t]he
significance of criminal history varies based on the gravity, nature, and number
of prior offenses in relation to the current offense.’” Sanders v. State, 71 N.E.3d
839, 844 (Ind. Ct. App. 2017) (quoting Garcia v. State, 47 N.E.3d 1249, 1251
(Ind. Ct. App. 2015), trans. denied), trans. denied. The trial court may consider
not only the defendant’s adult criminal history but also his juvenile delinquency
record in determining whether his criminal history is significant. Id. Stewart
urges on appeal that his prior history was for unrelated and relatively minor
offenses, he “is still very young,” he was exposed to alcohol and drugs as a
teenager, and he was “poorly raised by an alcoholic father and a drug addicted
mother.” Appellant’s Brief at 20-21.
[26] When he committed the offenses, Stewart was just shy of twenty-two years old,
which we disagree qualifies him as one who would be unable to understand
consequences of his actions. Stewart has a juvenile history and spent two years
at the Indiana Boy’s School. He has five misdemeanor convictions and a prior
Class B felony conviction for burglary and was on parole when he committed
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 16 of 18 the current offenses. With regard to Stewart’s difficult upbringing, we
recognize the uphill struggle he faced, but our courts have continuously held
that “evidence of a difficult childhood is entitled to little, if any, mitigating
weight.” Bethea v. State, 983 N.E.2d 1134, 1141 (Ind. 2013); Ritchie v. State, 875
N.E.2d 706, 725 (Ind. 2007); Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App.
2013), trans. denied. Furthermore, Stewart’s grandmother’s testimony at the
sentencing hearing reveals that, while Stewart had a difficult childhood, she was
always available to him and his siblings, offered them a place to stay and meals,
and provided support, yet Stewart ultimately made poor choices. Also, as the
trial court aptly observed, “Stewart has never worked a day in his life, never
had . . . a real job.” Transcript Vol. 4 at 183.
[27] Stewart admits that, while in jail awaiting trial and sentencing, he “had been
involved in two battery incidents involving other inmates, had been found in
possession of contraband and had been disruptive.” Appellant’s Brief at 21. We
find the details of Stewart’s conduct in jail are particularly troubling and reflect
poorly on his character. Jail Administrator Deputy Bob Curl testified at the
sentencing hearing and described a number of violent confrontations between
Stewart and other inmates. In at least one altercation in which Stewart struck
another inmate, Stewart’s brother Cameron was also involved by covering the
camera. The two were seen “high fiving” in a celebratory fashion on multiple
occasions after striking other inmates. Transcript Vol. 4 at 156. Stewart was also
video-recorded making gang signs and using his hand to appear to point a gun.
Stewart, Cameron, and another inmate were angry when contraband was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 17 of 18 removed from their cell block, cussing at jail officers and kicking a mop bucket,
which hit a jail officer. When Deputy Curl responded to the incident, Stewart
made lewd and threatening comments to officers. In another instance, Stewart
brutally beat another inmate to the point where the other inmate was sent to the
emergency room where he received twenty-two stitches and was found to have
a broken nose and broken orbital bone. Stewart was seen on video removing a
long piece of metal from his bunk and handing it to another inmate; Deputy
Curl explained that the metal piece was “a heavy piece of angle iron” removed
from the ceiling that “you could hit somebody and probably kill them with []
instantly . . . It is that heavy.” Id. at 167. In addition to the above, there were
other incidents, such that Stewart was “consistently” breaking the rules. Id. at
168. The trial court found, and we agree, that his behavior in jail was
“horrendous.” Id. at 183. We do not find anything about Stewart’s character
that makes his sentence inappropriate.
[28] We reiterate that our task on appeal is not to determine whether another
sentence might be more appropriate; rather, the inquiry is whether the imposed
sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.
2013), trans. denied. Stewart has failed to carry his burden of establishing that
his sentence is inappropriate in light of the nature of the offense and his
character.
[29] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-411 | July 30, 2019 Page 18 of 18