MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 30 2018, 10:08 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert L. Kirby, July 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-342 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela G. Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-1612-CM-2466
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 1 of 6 Case Summary [1] Robert L. Kirby was sentenced to a 365-day term of incarceration after he was
found guilty of Class A misdemeanor domestic battery. In challenging his
sentence on appeal, Kirby contends both that the trial court abused its
discretion in sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History [2] At approximately 10:00 p.m. on April 25, 2016, Anderson Police Officer Shad
Grille responded to a reported domestic battery at the home of Gary Stanley.
Upon arriving at the home, Officer Grille found Amber Smith, Kirby’s on-
again-off-again girlfriend, lying on the floor with swelling and bruising on her
face. Smith complained of “pain to her face and head.” Tr. p. 79.
[3] Officer Grille observed that Smith appeared to be intoxicated. Smith admitted
that she and Kirby had been drinking together at their home. An argument
ensued after Smith “refused to have sex” with Kirby. Tr. p. 97. Smith took
Kirby’s bicycle and a few beers from the couple’s refrigerator and fled the
residence. She then made her way to Stanley’s home. Kirby followed Smith.
After arriving at Stanley’s home, Kirby walk up to Smith and grabbed and
pushed her before fleeing the scene.
[4] The State charged Kirby with Class A misdemeanor domestic battery.
Following trial, the jury found Kirby guilty as charged. On January 16, 2018,
the trial court sentenced Kirby to a term of 365 days.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 2 of 6 Discussion and Decision [5] Kirby raises two challenges to his sentence on appeal. First, he contends that
the trial court abused its discretion by finding his criminal history to be an
aggravating factor. Next, he contends that his 365-day sentence is
inappropriate. We disagree with both contentions.
I. Abuse of Discretion [6] 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), modified on other grounds 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.
(quotation omitted).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 3 of 6 Id. at 490-91. A single aggravating factor may support an enhanced sentence.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
[7] Indiana Code section 35-38-1-7.1(a)(2) provides that in determining what
sentence to impose, a trial court may consider the fact that the person “has a
history of criminal or delinquent behavior.” The trial court found Kirby’s
criminal history to be “lengthy.” Tr. p. 203. Kirby’s criminal history consists
of six misdemeanor convictions and three federal felony convictions. We
cannot say that the trial court abused its discretion by referring to a criminal
history consisting of nine convictions as lengthy. Further, to the extent that
Kirby asserts that the trial court placed too much weight on this factor, “a trial
court no longer has any obligation to ‘weigh’ aggravating and mitigating factors
against each other when imposing a sentence … [and] cannot now be said to
have abused its discretion in failing to ‘properly weigh’ such factors.”
Anglemyer, 868 N.E.2d at 491.
II. Appropriateness of Sentence [8] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 4 of 6 the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[9] In challenging the appropriateness of his sentence, Kirby argues that he should
not have received a maximum sentence because he “does not fall in the
category of worst offender.” Appellant’s Br. p. 12. While Kirby’s actions and
character may not represent the most egregious or depraved to ever come before
this court, we cannot say that his 365-day sentence was inappropriate. Kirby
and Smith argued after she rejected his sexual advances. The situation would
likely have ended without violence had Kirby not decided to follow her after
she attempted to remove herself from the contentious situation. Instead, Kirby
decided to follow her to Stanley’s home where he grabbed her by the arms and
hair and pushed her.
[10] Kirby’s criminal history also reflects poorly on his character. “Additionally,
although a record of arrests by itself is not evidence of a defendant’s criminal
history, it is appropriate to consider such a record as a poor reflection on the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 30 2018, 10:08 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert L. Kirby, July 30, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-342 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela G. Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-1612-CM-2466
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 1 of 6 Case Summary [1] Robert L. Kirby was sentenced to a 365-day term of incarceration after he was
found guilty of Class A misdemeanor domestic battery. In challenging his
sentence on appeal, Kirby contends both that the trial court abused its
discretion in sentencing him and that his sentence is inappropriate. We affirm.
Facts and Procedural History [2] At approximately 10:00 p.m. on April 25, 2016, Anderson Police Officer Shad
Grille responded to a reported domestic battery at the home of Gary Stanley.
Upon arriving at the home, Officer Grille found Amber Smith, Kirby’s on-
again-off-again girlfriend, lying on the floor with swelling and bruising on her
face. Smith complained of “pain to her face and head.” Tr. p. 79.
[3] Officer Grille observed that Smith appeared to be intoxicated. Smith admitted
that she and Kirby had been drinking together at their home. An argument
ensued after Smith “refused to have sex” with Kirby. Tr. p. 97. Smith took
Kirby’s bicycle and a few beers from the couple’s refrigerator and fled the
residence. She then made her way to Stanley’s home. Kirby followed Smith.
After arriving at Stanley’s home, Kirby walk up to Smith and grabbed and
pushed her before fleeing the scene.
[4] The State charged Kirby with Class A misdemeanor domestic battery.
Following trial, the jury found Kirby guilty as charged. On January 16, 2018,
the trial court sentenced Kirby to a term of 365 days.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 2 of 6 Discussion and Decision [5] Kirby raises two challenges to his sentence on appeal. First, he contends that
the trial court abused its discretion by finding his criminal history to be an
aggravating factor. Next, he contends that his 365-day sentence is
inappropriate. We disagree with both contentions.
I. Abuse of Discretion [6] 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), modified on other grounds 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.
(quotation omitted).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering 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, or the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or the reasons given are improper as a matter of law. Under those circumstances, remand for resentencing may be the appropriate remedy 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.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 3 of 6 Id. at 490-91. A single aggravating factor may support an enhanced sentence.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
[7] Indiana Code section 35-38-1-7.1(a)(2) provides that in determining what
sentence to impose, a trial court may consider the fact that the person “has a
history of criminal or delinquent behavior.” The trial court found Kirby’s
criminal history to be “lengthy.” Tr. p. 203. Kirby’s criminal history consists
of six misdemeanor convictions and three federal felony convictions. We
cannot say that the trial court abused its discretion by referring to a criminal
history consisting of nine convictions as lengthy. Further, to the extent that
Kirby asserts that the trial court placed too much weight on this factor, “a trial
court no longer has any obligation to ‘weigh’ aggravating and mitigating factors
against each other when imposing a sentence … [and] cannot now be said to
have abused its discretion in failing to ‘properly weigh’ such factors.”
Anglemyer, 868 N.E.2d at 491.
II. Appropriateness of Sentence [8] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 4 of 6 the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[9] In challenging the appropriateness of his sentence, Kirby argues that he should
not have received a maximum sentence because he “does not fall in the
category of worst offender.” Appellant’s Br. p. 12. While Kirby’s actions and
character may not represent the most egregious or depraved to ever come before
this court, we cannot say that his 365-day sentence was inappropriate. Kirby
and Smith argued after she rejected his sexual advances. The situation would
likely have ended without violence had Kirby not decided to follow her after
she attempted to remove herself from the contentious situation. Instead, Kirby
decided to follow her to Stanley’s home where he grabbed her by the arms and
hair and pushed her.
[10] Kirby’s criminal history also reflects poorly on his character. “Additionally,
although a record of arrests by itself is not evidence of a defendant’s criminal
history, it is appropriate to consider such a record as a poor reflection on the
defendant’s character, because it may reveal that he or she has not been
deterred even after having been subjected to the police authority of the State.”
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (citing Cotto v.
State, 829 N.E.2d 520, 526 (Ind. 2005)). The record reveals that Kirby engaged
in criminal activity over a span of more than three decades. In addition to his
nine convictions, Kirby has been arrested three times for invasion of privacy.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 5 of 6 He has been arrested twice each for criminal confinement, battery resulting in
bodily injury, and resisting law enforcement. Kirby has also been arrested for
battery, burglary, possession of a controlled substance for resale, disorderly
conduct, maintaining a common nuisance, and interference with the reporting
of a crime. Kirby’s continued participation in criminal activity demonstrates
that he has failed to reform his behavior despite numerous opportunities to do
so. Kirby has also long abused alcohol and such abuse appears to correspond
with his decision to engage in criminal behavior. Kirby has failed to convince
us that his 365-day sentence is inappropriate.
[11] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 6 of 6