Kenneth Cushingberry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 8, 2015
• Docket: 49A02-1410-CR-724
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 08 2015, 7:54 am 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Suzy St. John Attorney General of Indiana Marion County Public Defender Agency Angela N. Sanchez Appellate Division Karl Scharnberg Indianapolis, Indiana Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Cushingberry, July 8, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1410-CR-724 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Judge Appellee-Plaintiff. Cause No. 49G08-1407-CM-35506

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015 Page 1 of 5 [1] Kenneth Cushingberry was convicted after a bench trial of theft1 as a Class A

misdemeanor and possession of marijuana 2 as a Class B misdemeanor and was

sentenced to a one-year aggregate, executed sentence. He appeals and raises

the following restated issue for our review: whether his sentence is

inappropriate in light of the nature of the offense and the character of the

offender.

[2] We affirm.

Facts and Procedural History [3] On July 14, 2014, Cushingberry was working at a Goodwill store in

Indianapolis, Indiana. While at work that day, he went into his manager’s

office and asked for his work schedule. When the manager turned away from

Cushingberry to make a copy of the schedule, Cushingberry took the cell phone

off of the manager’s desk and put it in his pocket. After noticing that his cell

phone was missing, the manager looked at the video surveillance recording and

observed that Cushingberry had taken the cell phone. The next day, the

manager asked Cushingberry into his office to confront him about the cell

phone. When the manager first asked, Cushingberry denied taking the cell

phone. But after being told about the video surveillance of the office,

Cushingberry admitted to taking the cell phone.

1 See Ind. Code § 35-43-4-2(a). 2 See Ind. Code § 35-48-4-11(a)(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015 Page 2 of 5 [4] The police were called, and when they arrived, they viewed the video

surveillance recording. The police then placed Cushingberry under arrest.

While conducting a search incident to the arrest, the officer discovered in

Cushingberry’s left front pants pocket a plastic cigar packaging that contained a

baggie with what the officer believed was marijuana inside. Cushingberry told

the officer that the substance was synthetic marijuana, but laboratory tests later

showed that the substance was actual marijuana.

[5] The State charged Cushingberry with theft as a Class A misdemeanor and

possession of marijuana as a Class B misdemeanor. A bench trial was held, at

the conclusion of which Cushingberry was found guilty as charged. At

sentencing, the trial court took note of Cushingberry’s apology for his crime, as

well as his criminal history and the fact that he was on probation at the time he

committed the instant offense and had not taken advantage of that opportunity.

The trial court sentenced him to an aggregate executed sentence of one year.

Cushingberry now appeals.

Discussion and Decision [6] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

statute if we deem it to be inappropriate in light of the nature of the offense and

the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

App. 2014). The question under Appellate Rule 7(B) is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.

2008). It is the defendant’s burden on appeal to persuade the reviewing court Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015 Page 3 of 5 that the sentence imposed by the trial court is inappropriate. Chappell v. State,

966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.

[7] Cushingberry argues that his sentence is inappropriate in light of the nature of

the offense and the character of the offender. He contends that, as to the nature

of the offense, there was nothing particularly egregious about his crimes to

justify the maximum sentence given. He also claims that, as to his character,

his youth and his remorse for his actions demonstrate that the maximum

executed sentence was not appropriate.

[8] As to the nature of the offense, Cushingberry stole a cell phone from the desk of

his manager when the manager turned away to copy Cushingberry’s work

schedule and, when arrested, he was discovered to be in possession of

marijuana. He committed these crimes while working at Goodwill, which is a

second chance employer that provided him an opportunity for employment

despite his prior felony conviction. The evidence also shows that, when

confronted with the theft of the cell phone, Cushingberry initially lied about

taking it, and only admitted to it after being told of the video surveillance of the

office. Therefore, by stealing a cell phone from his manager and bringing

marijuana into his workplace, he squandered this opportunity at a second

chance that was given to him.

[9] As to Cushingberry’s character, he was only nineteen at the time he committed

the instant offenses. However, he had already accrued a criminal history that

included a conviction for Class B felony carjacking and a juvenile adjudication

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015 Page 4 of 5 for possession of marijuana. He was also on probation at the time he

committed the present offenses. His commission of these crimes at his

workplace where he was being given a second chance demonstrates that he

failed to take advantage of the chances given to him to turn his life around.

We, therefore, conclude that Cushingberry’s one-year executed sentence is not

inappropriate in light of the nature of the offense and the character of the

[10] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-724 |July 8, 2015 Page 5 of 5