MEMORANDUM DECISION Jun 05 2015, 9:45 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Greggory Cataldo, June 5, 2015
Appellant-Defendant, Court of Appeals Case No. 79A02-1409-CR-683 v. Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, State of Indiana Judge Appellee-Plaintiff Cause No. 79D01-1406-FB-11
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 1 of 9 Case Summary [1] Greggory Cataldo (“Cataldo”) was convicted of Attempted Robbery, as a Class
B felony,1 and was sentenced to a term of imprisonment of fifteen years. He
now appeals.
[2] We affirm.
Issues [3] Cataldo presents two issues for our review. We restate these as:
I. Whether the trial court abused its discretion when it gave one of the State’s proffered jury instructions; and II. Whether Cataldo’s sentence was inappropriate.
Facts and Procedural History [4] Around 2:30 in the morning on May 28, 2014, Matthew Jackson (“Jackson”)
was walking to work in Lafayette. As he walked near a gas station, Cataldo
and a juvenile, M.D., pulled their car into the gas station’s parking lot.
[5] The car came to a stop, and Cataldo got out of the car, approached Jackson,
and pushed Jackson to the ground. Cataldo began to go through Jackson’s
pockets while punching Jackson in the head “a couple dozen” times, Tr. at 36,
1 Ind. Code §§ 35-41-5-1 & 35-42-5-1. The Indiana General Assembly revised numerous of our criminal statutes effective July 1, 2014. Throughout this opinion, we refer to and apply the statutes in effect at the time of Cataldo’s offense.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 2 of 9 and asked, “Whatcha got, whatcha got?” Tr. at 37. Cataldo’s blows caused
Jackson injuries to the back, right, and lower front of his head.
[6] Cataldo searched Jackson’s front and back left pockets. Jackson had a packet
of chewing gum and a box cutter. Cataldo took neither of these, and instead
got back into the car and drove away.
[7] Jackson called police. Police responded and stopped the vehicle in which
Cataldo and M.D. had been traveling. Police showed Jackson the occupants of
the vehicle, and Jackson identified Cataldo as his attacker. Cataldo and M.D.
were arrested.
[8] On June 2, 2014, the State charged Cataldo with Attempted Robbery, as a Class
B felony; Attempted Robbery, as a Class C felony;2 Attempted Theft, as a Class
D felony;3 and Battery, as a Class A misdemeanor.4
[9] A jury trial was conducted on August 5 and 6, 2014. During the trial, the State
proffered a proposed final instruction related to the Class B felony-level charge
of Attempted Robbery, the text of which read, “Infliction of injury while
engaged in the commission of an attempted robbery requires proof only of the
knowledge necessary to prove the crime of robbery.” App’x at 44. Cataldo
2 I.C. §§ 35-41-5-1 & 35-42-5-1. 3 I.C. §§ 35-41-5-1 & 35-43-4-2. 4 I.C. §§ 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 3 of 9 timely objected to the State’s proffered instruction, but the trial court overruled
the objection and issued the instruction to the jury.
[10] At the conclusion of the trial, the jury found Cataldo guilty of Attempted
Robbery, as a Class B felony;5 Attempted Theft, as a Class D felony; and
Battery, as a Class A misdemeanor.
[11] On September 5, 2014, a sentencing hearing was conducted. During the
hearing, the State moved to vacate the guilty verdicts for Attempted Theft and
Battery, which motion the trial court granted. The court entered a judgment of
conviction against Cataldo for Attempted Robbery, as a Class B felony, and
sentenced him to a term of imprisonment of fifteen years, with two years to be
served in a community corrections program if Cataldo were to be accepted into
a community corrections program.
[12] This appeal ensued.
Discussion and Decision Jury Instruction [13] Cataldo’s first contention on appeal is that the trial court erroneously gave the
State’s proffered jury instruction.
5 The verdict forms permitted the jury to find Cataldo not guilty of Attempted Robbery or to find him guilty of either Class B-felony Attempted Robbery or, in the alternative, Class C-felony Attempted Robbery.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 4 of 9 [14] Our standard of review in such cases is well settled:
When reviewing a trial court’s decision to give or refuse to give a party’s tendered instruction, we consider “(1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and, (3) whether the substance of the instruction was covered by other instructions that were given.” Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). The trial court has broad discretion as to how to instruct the jury, and we generally review that discretion only for abuse. Id. Where, however, as here, the appellant’s challenge to the instruction is based on the first of our three considerations—an argument that the instruction was an incorrect statement of the law—we review the trial court’s interpretation of that law de novo. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 523 (Ind. 2012). [15] Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012). Where an instruction is
erroneous, we presume the error affected the verdict, and must reverse “‘unless
the verdict would have been the same under a proper instruction,’” Id. at 1232,
that is, “only when the conviction is clearly sustained by the evidence and the
jury could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230,
1233 (Ind. 2001).
[16] Here, the trial court gave the following instruction: “Infliction of injury while
engaged in the commission of an attempted robbery requires proof only of the
knowledge necessary to prove the crime of robbery.” App’x at 44. This
instruction, proffered by the State, was based upon our supreme court’s
statement in Roberts v. State: “Infliction of injury while engaged in the
commission of a robbery or attempted robbery requires proof only of the intent
and knowledge necessary to prove the crime of robbery.” 266 Ind. 72, 77, 360
N.E.2d 825, 828 (1977). The Roberts Court made this statement in the context
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 5 of 9 of a challenge to the sufficiency of the evidence as to Roberts’s “intent to
deprive his victims of property and knowledge of what he was doing.” 266 Ind.
at 78, 360 N.E.2d at 828.
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MEMORANDUM DECISION Jun 05 2015, 9:45 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Greggory Cataldo, June 5, 2015
Appellant-Defendant, Court of Appeals Case No. 79A02-1409-CR-683 v. Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, State of Indiana Judge Appellee-Plaintiff Cause No. 79D01-1406-FB-11
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 1 of 9 Case Summary [1] Greggory Cataldo (“Cataldo”) was convicted of Attempted Robbery, as a Class
B felony,1 and was sentenced to a term of imprisonment of fifteen years. He
now appeals.
[2] We affirm.
Issues [3] Cataldo presents two issues for our review. We restate these as:
I. Whether the trial court abused its discretion when it gave one of the State’s proffered jury instructions; and II. Whether Cataldo’s sentence was inappropriate.
Facts and Procedural History [4] Around 2:30 in the morning on May 28, 2014, Matthew Jackson (“Jackson”)
was walking to work in Lafayette. As he walked near a gas station, Cataldo
and a juvenile, M.D., pulled their car into the gas station’s parking lot.
[5] The car came to a stop, and Cataldo got out of the car, approached Jackson,
and pushed Jackson to the ground. Cataldo began to go through Jackson’s
pockets while punching Jackson in the head “a couple dozen” times, Tr. at 36,
1 Ind. Code §§ 35-41-5-1 & 35-42-5-1. The Indiana General Assembly revised numerous of our criminal statutes effective July 1, 2014. Throughout this opinion, we refer to and apply the statutes in effect at the time of Cataldo’s offense.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 2 of 9 and asked, “Whatcha got, whatcha got?” Tr. at 37. Cataldo’s blows caused
Jackson injuries to the back, right, and lower front of his head.
[6] Cataldo searched Jackson’s front and back left pockets. Jackson had a packet
of chewing gum and a box cutter. Cataldo took neither of these, and instead
got back into the car and drove away.
[7] Jackson called police. Police responded and stopped the vehicle in which
Cataldo and M.D. had been traveling. Police showed Jackson the occupants of
the vehicle, and Jackson identified Cataldo as his attacker. Cataldo and M.D.
were arrested.
[8] On June 2, 2014, the State charged Cataldo with Attempted Robbery, as a Class
B felony; Attempted Robbery, as a Class C felony;2 Attempted Theft, as a Class
D felony;3 and Battery, as a Class A misdemeanor.4
[9] A jury trial was conducted on August 5 and 6, 2014. During the trial, the State
proffered a proposed final instruction related to the Class B felony-level charge
of Attempted Robbery, the text of which read, “Infliction of injury while
engaged in the commission of an attempted robbery requires proof only of the
knowledge necessary to prove the crime of robbery.” App’x at 44. Cataldo
2 I.C. §§ 35-41-5-1 & 35-42-5-1. 3 I.C. §§ 35-41-5-1 & 35-43-4-2. 4 I.C. §§ 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 3 of 9 timely objected to the State’s proffered instruction, but the trial court overruled
the objection and issued the instruction to the jury.
[10] At the conclusion of the trial, the jury found Cataldo guilty of Attempted
Robbery, as a Class B felony;5 Attempted Theft, as a Class D felony; and
Battery, as a Class A misdemeanor.
[11] On September 5, 2014, a sentencing hearing was conducted. During the
hearing, the State moved to vacate the guilty verdicts for Attempted Theft and
Battery, which motion the trial court granted. The court entered a judgment of
conviction against Cataldo for Attempted Robbery, as a Class B felony, and
sentenced him to a term of imprisonment of fifteen years, with two years to be
served in a community corrections program if Cataldo were to be accepted into
a community corrections program.
[12] This appeal ensued.
Discussion and Decision Jury Instruction [13] Cataldo’s first contention on appeal is that the trial court erroneously gave the
State’s proffered jury instruction.
5 The verdict forms permitted the jury to find Cataldo not guilty of Attempted Robbery or to find him guilty of either Class B-felony Attempted Robbery or, in the alternative, Class C-felony Attempted Robbery.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 4 of 9 [14] Our standard of review in such cases is well settled:
When reviewing a trial court’s decision to give or refuse to give a party’s tendered instruction, we consider “(1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and, (3) whether the substance of the instruction was covered by other instructions that were given.” Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). The trial court has broad discretion as to how to instruct the jury, and we generally review that discretion only for abuse. Id. Where, however, as here, the appellant’s challenge to the instruction is based on the first of our three considerations—an argument that the instruction was an incorrect statement of the law—we review the trial court’s interpretation of that law de novo. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 523 (Ind. 2012). [15] Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012). Where an instruction is
erroneous, we presume the error affected the verdict, and must reverse “‘unless
the verdict would have been the same under a proper instruction,’” Id. at 1232,
that is, “only when the conviction is clearly sustained by the evidence and the
jury could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230,
1233 (Ind. 2001).
[16] Here, the trial court gave the following instruction: “Infliction of injury while
engaged in the commission of an attempted robbery requires proof only of the
knowledge necessary to prove the crime of robbery.” App’x at 44. This
instruction, proffered by the State, was based upon our supreme court’s
statement in Roberts v. State: “Infliction of injury while engaged in the
commission of a robbery or attempted robbery requires proof only of the intent
and knowledge necessary to prove the crime of robbery.” 266 Ind. 72, 77, 360
N.E.2d 825, 828 (1977). The Roberts Court made this statement in the context
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 5 of 9 of a challenge to the sufficiency of the evidence as to Roberts’s “intent to
deprive his victims of property and knowledge of what he was doing.” 266 Ind.
at 78, 360 N.E.2d at 828.
[17] The partial quote of Roberts included in the State’s proffered instruction was, as
Cataldo observes, confusing. Though admittedly less than an ideal instruction,
it is not a misstatement of the law.
[18] Even if it were incorrect, we cannot conclude that the instruction prejudiced
Cataldo’s substantial rights. We note in particular that the jury found Cataldo
guilty of both Battery and of Attempted Theft—that is, the jury found that
Cataldo physically struck Jackson, causing injury, and found that Cataldo
intentionally attempted to take property from Jackson without Jackson’s
consent. Thus, the jury clearly did not accept Cataldo’s testimony that he
fought Jackson but did not attempt to take property from Jackson, and we see
no likelihood that the jury could have reached any verdict other than that
Cataldo had committed Attempted Robbery, as a Class B felony, as charged.
[19] We accordingly find no basis for reversal as a result of the State’s proffered
instruction.
Inappropriateness [20] We turn now to Cataldo’s other contention on appeal, that his sentence is
inappropriate in light of the nature of the offense and his character.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 6 of 9 [21] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The 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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225. We do not, upon
reviewing a sentencing order, assess “[t]he relative weight or value assignable to
reasons properly found or those which should have been found.” Anglemyer v.
State, 868 N.E.2d 482, 481 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.
[22] Cataldo was convicted of Attempted Robbery, as a Class B felony. A Class B
felony carries a sentencing range of between six and twenty years
imprisonment, with an advisory sentence of ten years. I.C. § 35-50-2-5.
Cataldo was sentenced to fifteen years imprisonment.
[23] Looking first at the nature of Cataldo’s offense, Cataldo got out of a car, pushed
Jackson down, struck him nearly two dozen times, and searched Jackson for
items of value. This resulted in multiple injuries to Jackson’s head. Jackson
reported being in pain, for which he was treated at a local hospital, and during
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 7 of 9 his 911 call to police had difficulty talking to the dispatcher because he was
spitting out blood as a result of Cataldo’s attack.
[24] We turn next to Cataldo’s character. At twenty years of age, Cataldo has a
history of juvenile delinquency and criminal adjudications. These include three
adjudications as a juvenile delinquent, and seven prior cases resulting in
criminal convictions as an adult. Several of these adjudications relate to driving
while never having obtained a license or to other drug offenses. Cataldo has
also been convicted of conversion, theft, and resisting law enforcement, and has
had his probation revoked or has been terminated from probation on a total of
seven occasions.
[25] Cataldo admitted to using drugs, including marijuana, cocaine,
methamphetamine, heroin, morphine, and Xanax at least once per month.
Cataldo was twice afforded opportunities for rehabilitation, but did not take
advantage of these. He admitted that his drug use interfered with employment,
and that he had attended work and school while intoxicated. Cataldo dropped
out of high school, having only completed the tenth grade, and obtained a
G.E.D. while in the Department of Correction’s Boys’ School as a juvenile. He
has a sporadic work history, with occasional stints of employment that have
lasted only a few months at a time.
[26] Together, then, Cataldo has a sustained history of criminal activity that, even at
the age of twenty, speaks poorly of his character and shows evidence of
escalation into property crimes and other offenses. In light of this, we cannot
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 8 of 9 conclude that the nature of his offense and his character make his fifteen-year
sentence inappropriate.
Conclusion [27] There is no reversible error in the trial court’s use of the State’s proffered jury
instruction. Cataldo’s sentence is not inappropriate.
[28] Affirmed.
Riley, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-683 | June 5, 2015 Page 9 of 9