MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 14 2020, 8:32 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral 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. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Travis M. Luedeman, December 14, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-769 v. Appeal from the Jackson Circuit Court State of Indiana, The Honorable Richard W. Appellee-Plaintiff. Poynter, Judge Trial Court Cause No. 36C01-1907-F2-9
Friedlander, Senior Judge.
[1] Travis M. Luedeman was convicted of numerous felonies and misdemeanors
after engaging in a multi-day crime spree in Jackson County. He appeals his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 1 of 21 1 convictions of two counts of burglary, both Level 2 felonies; two counts of 2 robbery, both Level 3 felonies; two counts of intimidation, both Level 5 3 4 felonies; impersonation of a public servant, a Level 6 felony; auto theft, a 5 6 Level 6 felony; theft with a prior conviction, a Level 6 felony; two counts of 7 pointing a firearm, both Class A misdemeanors; and a determination that he is
an habitual offender. Luedeman also appeals the forty-year sentence imposed
by the trial court. We affirm.
[2] Scott Caudell owns J & A Auto Electric, which is located in Jackson County
and repairs and sells vehicles. On June 19, 2019, a man entered the shop and
asked to test-drive a blue Cadillac sport utility vehicle owned by J & A. Caudell
refused because he was busy. Next, the man asked to look inside the vehicle,
and Caudell gave him the key. He got into the Cadillac and drove off. Caudell
reported the vehicle theft to the police.
[3] The Fox family, including brothers Jerry Fox (seventy years old) and Larry Fox
(seventy-one years old), owns several properties in rural Jackson County. Jerry
1 Ind. Code § 35-43-2-1 (2014). 2 Ind. Code § 35-42-5-1 (2017). 3 Ind. Code § 35-45-2-1 (2019). 4 Ind. Code § 35-44.1-2-6 (2016). 5 Ind. Code § 35-43-4-2 (2019). 6 Ind. Code § 35-43-4-2. 7 Ind. Code § 35-47-4-3 (2014).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 2 of 21 parked a semi-trailer on one of their properties, next to an old, unsecured shed.
He occasionally camped in the trailer and, when he was not using it, secured
the doors with a padlock. Jerry stopped by the property every day before or
after visiting his elderly parents, who lived down the road. A “No Trespassing”
sign was posted at the entrance to the property’s driveway.
[4] On the morning of July 1, 2019, Jerry discovered some items were missing from
the shed. Specifically, someone had taken his fishing poles, a tackle box, and a
propane torch. The tackle box contained over $500 worth of fishing gear.
Those items had been in the shed when Jerry had stopped by the previous day.
[5] Jerry’s son had set up a trail camera on the property, and Jerry asked him to check
it later in the day on July 1. The camera’s photographs showed a blue Cadillac
sport utility vehicle driving on the property in the early morning hours of July 1.
After Jerry and his son reviewed the photographs, Jerry’s son set up a second trail
camera at a different location on the property. Jerry did not contact the police
about the incident.
[6] Jerry returned to the property on July 4, before sunrise. He turned onto the
driveway, where he saw the headlights of a vehicle driving toward him from the
direction of the shed and semi-trailer. As the other vehicle approached, Jerry
recognized it as the Cadillac he had seen on the trail camera pictures.
[7] The two vehicles came to a stop about a foot apart, facing each other. Jerry got
out of his truck, and a man later identified as Luedeman got out of the Cadillac.
They stood twelve to fourteen feet apart, illuminated by the vehicles’ headlights.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 3 of 21 Luedeman wore a khaki uniform and a cowboy hat, with a badge on his chest
and a handgun hanging from his belt. Jerry thought Luedeman resembled a
sheriff’s deputy, except that he had large piercings in his earlobes.
[8] Luedeman claimed to be “[a]n officer of the law.” Tr. Vol. 2, p. 165. He also
said he had chased people onto the property. Jerry accused him of lying.
Luedeman denied Jerry’s accusation and repeated that he was a police officer
who had chased suspects onto the property. Jerry again called Luedeman a
liar, and Luedeman said the landowner had asked him to check out the
property. Jerry called Luedeman a liar a third time.
[9] At that point, Luedeman drew his handgun, pointed it at Jerry, and threatened
to shoot him while repeating his claim that he was a police officer. Jerry
stepped back, and Luedeman reentered the Cadillac. He drove around Jerry’s
truck, crushing several rows of cornstalks in the process, and left the property.
[10] Jerry called his brother Larry, who quickly drove to the scene. Larry saw a spot
along the driveway where several rows of corn had been driven over. Jerry told
Larry about the incident, as well as the incident on July 1. When Jerry and
Larry went to the semi-trailer, they saw that the lock had been cut off of the
doors. Jerry examined the interior of the trailer and determined over the course
of several subsequent visits that a propane torch, two coolers, a Sawzall, a hand
pump, bolt cutters, and a set of Tasco binoculars were missing.
[11] Meanwhile, Jerry’s son Jay arrived, and he downloaded photographs taken by
the trail cameras. The photos showed Luedeman’s Cadillac entering the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 4 of 21 property at 4:07 a.m. and leaving the property at 4:52 a.m., just as Jerry drove
up. Jerry and Larry reviewed the photos.
[12] Down the road from Jerry’s property was a house that had belonged to
Roseanne George (“the George property”). After her death, the house sat
vacant but still contained items that belonged to George. On the morning of
July 5, 2019, before sunrise, Larry drove by the George property. The Cadillac
that he had seen in the trail camera photographs was sitting in the driveway.
Larry attempted to call 911 but was not able to connect.
[13] Next, Larry drove onto the George property and parked five to six feet behind
the Cadillac. Larry got out of his car, intending to photograph the Cadillac’s
license plate. At that point, a man, later identified as Luedeman, walked
around the side of the Cadillac, approaching from the direction of George’s
house.
[14] Luedeman was shirtless and had numerous tattoos on his arms and chest, as
well as a “very large hole in his ear” on the right side. Id. at 247. He seemed to
be “all strung out,” with glassy eyes. Tr. Vol. 3, p. 4. His appearance matched
Jerry’s description of the person he had encountered on July 4. Luedeman was
carrying a large cardboard box.
[15] Larry asked Luedeman what he was doing, and he claimed George’s family
had authorized him to take some items from the home. Luedeman refused to
tell Larry his name. He put the box in the rear of the Cadillac, never entirely
turning his back on Larry.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 5 of 21 [16] Larry called Luedeman a liar, informed him that he had called 911, and stated
that Luedeman needed to stay until the police arrived. Next, Luedeman drew a
handgun and pointed it at Larry’s face. Larry backed away. Luedeman closed
the back hatch of the Cadillac, entered the vehicle, and drove around Larry’s
car and off the George property.
[17] Larry followed Luedeman in his car. He called 911 as he drove, and this time
he connected with a dispatcher. Soon thereafter, the Cadillac came to a stop
along the road. Larry also stopped his car and watched Luedeman get out of
the Cadillac, put on a shirt, and run away into nearby bushes. Larry continued
to drive down the road, looking for Luedeman, before returning to the Cadillac.
He parked there and waited for the police to arrive. As Larry waited, he saw a
white Jeep Cherokee drive by. He took note of the Cherokee because he did
not recognize it, and he knew most of the vehicles that were driven by people
who lived in the area.
[18] Police officers arrived, and Larry told them about his encounter with
Luedeman, as well as Jerry’s encounter with Luedeman on July 4. An officer
took an inventory of the contents of the Cadillac. He also shared the vehicle’s
identification number with dispatch and learned that it had been reported as
stolen. The officer then had the Cadillac towed to the sheriff’s department for a
more detailed search.
[19] Meanwhile, another officer contacted Jerry and took a report of the July 1 and
July 4 incidents on Jerry’s property. Other officers searched the area where
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 6 of 21 Luedeman had abandoned the Cadillac, but they did not find anyone.
Luedeman later stated that during this period of time, he was concealed in
bushes in the area, and he stayed there for several hours. He saw police cars
pass by during that time but did not approach them. An additional officer went
to the George property and discovered that the house’s back door was ajar, but
no one was there.
[20] Next, Larry went home, where he changed clothes and got a different vehicle.
He picked up his father, and they drove past the spot where Luedeman had
abandoned the Cadillac. They soon saw a teenage boy near the road, carrying
a bundle of firewood. When they stopped the car, the teenager asked to use
their phone, claiming he was gathering firewood for his grandmother. As Larry
spoke with the teenager, he concluded the teenager’s story was false and that
the teenager might be connected to Luedeman. Larry attempted to take the
teenager’s picture, but he initially turned away. The teenager eventually let
Larry take his picture and told him that his last name was George. At that
point, Larry and his dad drove off and returned to Larry’s father’s house, where
he called 911 again.
[21] While they waited, Larry saw the white Jeep Cherokee drive past. He got back
in his car and drove to the spot where he had last seen the teenager. Larry then
parked his car behind tall weeds. Next, Larry saw the Cherokee drive by again.
Luedeman was driving, and the teenager was in the front passenger seat. Larry
followed the Cherokee and called 911 for a third time. He reported the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 7 of 21 Cherokee’s license number to the dispatcher, as well as Luedeman’s
description.
[22] Several officers, including Jackson County Sheriff’s Deputy Clint Burcham,
were dispatched to locate Larry and the Cherokee. The dispatcher shared with
the deputies Larry’s description of the driver of the Cherokee. Deputy Burcham
thought the description resembled Luedeman, with whom he had met at
Luedeman’s residence within the past thirty days.
[23] Larry followed Luedeman for fifteen miles, entering the community of Leesville
in neighboring Lawrence County. Eventually, the Cherokee stopped and
Luedeman got out. He approached a mailbox, opened it, and appeared to read
the mail. Larry drove by, looking at Luedeman “very carefully.” Id. at 18.
[24] Larry then drove to a location north of Leesville, where he met with several
officers from Jackson and Lawrence Counties. The officers followed Larry to
the house where he believed he had last seen Luedeman, but Larry had
misidentified the house. Larry led the officers to a second house, but while they
were there another officer reported via radio that he had found the Cherokee at
a convenience store in Leesville. The officers gathered at the vehicle’s location
and spoke to the driver, Michael George (“Michael”). He was accompanied by
his son, a teenage boy. Michael stated that Luedeman had been in his
Cherokee earlier in the day.
[25] After that encounter, an officer sought a search warrant for Luedeman’s home.
Meanwhile, another officer prepared photographic lineups that included a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 8 of 21 photograph of Luedeman. Later that day, Larry and Jerry examined the
lineups, outside of each other’s presence. They each identified Luedeman as
the man who had pointed a gun at them.
[26] After obtaining a search warrant, a team of officers arrived at Luedeman’s
house later in the day on July 5. The officers entered the home, but no one was
present. During a search of the house, they discovered several tackle boxes, ten
fishing poles, and driver’s licenses for Roseanne George and her daughter,
Amber Mikels (who was also deceased). They also found a Sawzall and a set of
Tasco binoculars. The officers seized those materials and left.
[27] In the early morning hours of July 6, an officer returned to Luedeman’s house,
looked in a window, and saw him, apparently asleep on a couch. The officer
shouted at Luedeman to get his attention. Luedeman got up and, in defiance of
the officer’s order to come outside, ran into another room, out of sight.
Numerous officers, including members of the Indiana State Police’s SWAT
Team, arrived and surrounded Luedeman’s house. Luedeman eventually
surrendered without incident.
[28] Later in the day on July 6, an officer obtained another search warrant for
Luedeman’s house. This time, the officers seized a large white cooler.
[29] One of George’s grandchildren later identified the drivers’ licenses, as well as
curtains found in the back of the Cadillac, as having been taken from George’s
vacant house. None of George’s family members had given Luedeman
permission to enter the house and take property.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 9 of 21 [30] Meanwhile the police performed a detailed search of the Cadillac, which
revealed that someone had put tape on the exterior, in preparation for painting.
In addition, the wiring had been exposed and a new wire led from the ignition
to the battery, apparently in an attempt to hotwire the vehicle. Finally,
someone had connected a module to the Cadillac’s rear lights, apparently in an
attempt to modify the lights. The police subsequently returned the Cadillac to
Caudell. He determined that it had been partially repainted and the interior
was damaged. In addition, he noticed someone had exposed and altered the
vehicle’s wiring. The Cadillac would not start.
[31] On July 8, 2019, the State filed an array of charges against Luedeman related to
his encounters with Jerry and Larry and the theft of the Cadillac. On July 25,
the detectives asked Jerry to look at items they had seized from the Cadillac and
Luedeman’s house. Jerry recognized three fishing poles, a tackle box, a
Sawzall, a set of binoculars, a cooler, bolt cutters, and a hand pump as having
been stolen from his property.
[32] The State amended the charging information several times. When the jury trial
began on January 28, 2020, Luedeman faced the following charges:
Count Offense Key Charging Details
I Armed burglary, a Level 2 July 4, 2019 – Jerry Fox’s felony property II Armed burglary, a Level 2 July 5, 2019 – Roseanna felony George’s building
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 10 of 21 III Armed robbery, a Level 3 July 4, 2019 – Jerry Fox felony IV Armed robbery, a Level 3 July 5, 2019 – Larry Fox felony V Burglary, a Level 5 felony July 1, 2019 – Jerry Fox’s shed
VI Armed intimidation, a July 4, 2019 – Jerry Fox Level 5 felony VII Armed intimidation, a July 5, 2019 – Larry Fox Level 5 felony VIII Theft with a prior July 4, 2019 – Jerry Fox’s conviction, a Level 6 felony property IX Theft with a prior July 5, 2019 – Roseanna conviction, a Level 6 felony George’s property X Pointing a firearm, a Level July 4, 2019 – Jerry Fox 6 felony XI Pointing a firearm, a Level July 5, 2019 – Larry Fox 6 felony XII Impersonation of a public July 4, 2019 – told Jerry Fox servant, a Level 6 felony he was a police officer XIII Auto theft, a Level 6 felony Between July 1 and July 5, 2019 – theft of the Cadillac XIV Theft with a prior July 1, 2019 – Jerry Fox’s conviction, a Level 6 felony property
The State also filed an habitual offender sentencing enhancement. The trial
court established a bifurcated trial process, in which the habitual offender
enhancement, and the question of whether Luedeman had a prior theft
conviction that would elevate the three theft charges to Level 6 felonies, would
be decided in a second trial, if necessary. Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 11 of 21 [33] Luedeman testified at trial and, although he presented a different version of
events, he admitted he was the person Jerry encountered on his property in the
early morning hours of July 4, 2019. He further admitted he was the person
Larry had met on the George property in the early morning hours of July 5,
2019, although he also presented a different version of that encounter.
[34] The jury determined Luedeman was guilty as charged, except that he was not
guilty of Count V, Level 5 burglary; and for counts X and XI, he was guilty of
pointing a firearm as a Class A misdemeanor rather than a Level 6 felony.
Next, Luedeman waived his right to the second half of the bifurcated trial,
admitting he had a prior theft conviction that would enhance the three theft
charges to Level 6 felonies. He further admitted that he is an habitual offender.
[35] At the sentencing hearing, the court determined that Count VIII (theft) should
merge into Count III (armed robbery) and Count IX (theft) should merge into
Count IV (armed robbery). The court imposed an aggregate sentence of forty
years. This appeal followed.
[36] Luedeman challenges the sufficiency of the evidence supporting his convictions,
and he claims his sentence is inappropriate in light of the nature of the offenses
and his character.
1. Sufficiency of the Evidence [37] Larry argues the State failed to present sufficient admissible evidence to sustain
his convictions. Our standard of review is well established:
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 12 of 21 In reviewing a sufficiency of the evidence claim, the Court neither reweighs the evidence nor assesses the credibility of the witnesses. We look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).
[38] Luedeman first argues that Jerry Fox and Larry Fox’s testimony must be
disregarded as incredibly dubious, and that the convictions that are based on
their testimony (including the burglary and robbery charges) must be reversed.
[39] In general, it is the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether it is sufficient
to support a conviction. Drane v. State, 867 N.E.2d 144 (Ind. 2007). A limited
exception to this rule is known as the “incredible dubiosity” test. Moore v. State,
27 N.E.3d 749, 755 (Ind. 2015). Under this test, a court will impinge upon a
jury’s duty to judge witness credibility only “‘where a sole witness presents
inherently contradictory testimony which is equivocal or the result of coercion
and there is a complete lack of circumstantial evidence of the appellant’s guilt.’”
Id. (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994)). The test is a
difficult standard to meet, applying only to testimony “which ‘runs counter to
human experience’ and that reasonable persons could not believe.” Edwards v.
State, 753 N.E.2d 618, 622 (Ind. 2001) (quoting Campbell v. State, 732 N.E.2d
197, 207 (Ind. Ct. App. 2000)).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 13 of 21 [40] Regarding Luedeman’s July 4, 2019 encounter with Jerry Fox, Luedeman
argues Jerry’s version of events is not to be believed because Jerry admitted his
vision is impaired in one eye. But Jerry testified unequivocally, and without
any contradictions in his own testimony, that he saw Luedeman illuminated by
his truck’s headlights. He also described, without equivocation, Luedeman’s
fake police uniform and handgun. In addition, Jerry’s description of their
encounter is supported by circumstantial evidence, specifically that items stolen
from his shed and semi-trailer that were later discovered in Luedeman’s house.
Further, Larry saw crushed cornstalks by the driveway, in the spot where Jerry
said Luedeman had driven past his truck.
[41] Luedeman also points to his own trial testimony, in which he denied having a
gun, denied claiming to be a police officer, and denied wearing a police officer’s
uniform. Luedeman further testified that he entered the property to look at
some lumber, and Jerry was the person who drew a handgun during their
encounter. The incredible dubiosity test addresses only conflicts within a
witness’s testimony, not conflicts with another witness’s versions of events.
[42] Similarly, Luedeman argues Larry’s account of their encounter at the George
property in the pre-dawn hours of July 5, 2019, should be disregarded because:
(1) there is no corroborating evidence; and (2) Luedeman testified that he was
unarmed and Larry was the aggressor, ramming his car into the Cadillac. We
disagree. Larry’s testimony, like his brother’s testimony, was unequivocal and
not internally contradictory. Further, there is corroborating evidence of Larry’s
version of events. Although Luedeman claimed he was the victim of Larry’s
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 14 of 21 aggression and had done nothing wrong, he also admitted that after he drove
away and abandoned the Cadillac, he hid in some bushes for hours and chose
not to approach any police officers. In addition, items stolen from George’s
home were found in Luedeman’s house, undercutting Luedeman’s claim that
he entered George’s home only to access running water. Further, Luedeman’s
contradictory testimony about the encounter is irrelevant for purposes of the
incredible dubiosity test.
[43] In summary, neither Jerry nor Larry’s testimony was incredibly dubious.
Resolving the conflicts between their testimony and Luedeman’s testimony was
the jury’s job, and we decline to second-guess its work. See Whatley v. State, 908
N.E.2d 276 (Ind. Ct. App. 2009) (affirming conviction for murder despite
defendant’s claim of incredible dubiosity; defendant did not point to inherent
contradictions in any witness’s testimony, but instead pointed out conflicts
among the witnesses’ testimony), trans. denied.
[44] Next, Luedeman challenges his conviction of Level 6 felony theft of the
Cadillac. To obtain a conviction as charged, the State was required to prove
beyond a reasonable doubt that (1) Luedeman (2) knowingly or intentionally (3)
exerted unauthorized control (4) over a vehicle owned by J & A Auto (5) with
the intent to deprive J & A Auto of the vehicle’s value or use. Ind. Code § 35-
43-4-2(a)(1)(B)(ii).
[45] Luedeman does not dispute that the Cadillac had been stolen from J & A Auto,
and he concedes that he drove it on July 4 and July 5, 2019. He instead claims
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 15 of 21 he did not steal the Cadillac, did not know it was stolen, and that an ex-
girlfriend had allowed him to use it.
[46] The mere possession of stolen property may be sufficient to support a
conviction of theft, but only where the property was “recently stolen.” Thacker
v. State, 62 N.E.3d 1250, 1252 (Ind. Ct. App. 2016). In Luedeman’s case, Jerry
and Larry saw him driving the stolen Cadillac almost two weeks after it was
reported stolen, and Luedeman admits to having driven the Cadillac during that
time. That span of time does not qualify as “recently stolen.” See id. (mere
possession of vehicle six days after it was stolen, standing alone, is insufficient
proof of defendant’s knowledge that it was stolen).
[47] Our analysis does not end there. We must review the record to determine
whether there is additional evidence that establishes Luedeman knew the car
was stolen. “Possession of recently stolen property when joined with attempts
at concealment, evasive or false statements, or an unusual manner of
acquisition may be sufficient evidence of knowledge that the property was
stolen.” Purifoy v. State, 821 N.E.2d 409, 414 (Ind. Ct. App. 2005), trans. denied.
[48] Luedeman stated that his ex-girlfriend brought the Cadillac to his house shortly
after June 19, 2019. It remained at his house, except when he or others drove
it. The police officer who searched the vehicle determined that someone had
put masking tape on it, in preparation for painting. Luedeman admitted he had
applied the tape.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 16 of 21 [49] In addition, the officer who searched the Cadillac noticed that a small square
box with wires had been connected to the rear of the vehicle, near the license
plate, possibly to alter the lighting system. Also, the person who took the
Cadillac from J & A Auto had driven off with the key, but the officer who
searched the vehicle after Luedeman abandoned it determined that the wiring
on the car had been exposed and tampered with, perhaps to hotwire it, and the
key was not found.
[50] In addition to the obvious alterations to the Cadillac that were consistent with a
stolen vehicle, Luedeman’s behavior indicates that he knew the car was stolen.
He did not give his name to Jerry or Larry, even after Larry requested it.
Further, Luedeman drove away from the George property, after pointing a gun
at Larry, and abandoned the Cadillac on foot after it quit working. Finally,
Luedeman admitted he had hidden in bushes for several hours afterwards and
did not attempt to contact the police, even though he saw them driving by. A
jury could have determined from these circumstances beyond a reasonable
doubt that Luedeman knew the car was stolen. See Thacker, 62 N.E.3d 1250
(affirming conviction for auto theft; damage to the vehicle consistent with
breaking into it, and defendant’s flight when the police arrived, was sufficient
evidence that defendant knew the vehicle was stolen). We affirm Luedeman’s
auto theft conviction.
2. Inappropriateness of Sentence [51] Luedeman argues that his sentence of forty years is too long and asks the Court
to reduce it by an unspecified amount. Article 7, section 6 of the Indiana Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 17 of 21 Constitution authorizes the Court to review and revise sentences “to the extent
provided by rule.” This constitutional authority is implemented through
Appellate Rule 7(B), which provides that the Court may revise a sentence
otherwise 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.”
[52] “[W]e must and should exercise deference to a trial court’s sentencing decision,
both because Rule 7(B) requires us to give ‘due consideration’ to that decision
and because we understand and recognize the unique perspective a trial court
brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind.
Ct. App. 2007). Deference to the sentencing decision “should prevail 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).
[53] Whether a sentence should be deemed inappropriate turns on our sense of the
culpability of the defendant, the severity of the crime, the damage done to
others, and other factors. Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). A
defendant bears the burden of persuading the appellate court that the sentence
has met this inappropriateness standard of review. Childress v. State, 848 N.E.2d
1073 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 18 of 21 [54] To assess whether a sentence is inappropriate, we look first to the statutory
range established for the class of the offense. When Luedeman committed his
offenses, the sentencing statutes provided:
Offense Advisory Minimum Maximum Statute Sentence Sentence Sentence
Level 2 felony 17 and ½ 10 years 30 years Ind. Code § 35- years 50-2-4.5 (2014)
Level 3 felony 9 years 3 years 16 years Ind. Code § 35- 50-2-5 (2014)
Level 5 felony 3 years 1 year 6 years Ind. Code § 35- 50-2-6 (2014)
Level 6 felony 1 year six months 2 and one- Ind. Code § 35- half years 50-2-7 (2019)
Class A N/A N/A 1 year Ind. Code § 35- misdemeanor 50-3-2 (1977)
In addition, a person found to be an habitual offender for a Level 1 through
Level 4 felony may be sentenced to an additional fixed term of between six and
twenty years. Ind. Code § 35-50-2-8(i) (2017).
[55] On Count I, armed robbery involving Jerry Fox, the trial court sentenced
Luedeman to an aggravated sentence of twenty-five years, enhanced by fifteen
years for being an habitual offender. The court further sentenced Luedeman to
an aggravated sentence of twenty-five years on Count II, armed robbery
involving Larry Fox. The trial court also imposed aggravated sentences on the
remaining charges, but: (1) the court imposed sentences less than the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 19 of 21 maximum amount for all but two charges; and (2) the court ordered all
sentences to be served concurrently. As a result, Luedeman’s total sentence of
forty years is far short of his maximum possible sentence.
[56] Turning to the nature of the offenses, Luedeman’s course of criminal
misconduct is troubling. Jerry Fox and Larry Fox separately confronted
Luedeman on July 4, 2019, and July 5, 2019, respectively, on land Luedeman
did not have permission to enter and while Luedeman was in possession of
other people’s property. Instead of surrendering, in each confrontation
Luedeman chose to escalate the situation by pointing a handgun at a much
older man who posed no threat to him. It also reflects negatively on Luedeman
that, having fled from Jerry Fox’s property on July 4, he chose to continue his
criminal misconduct on July 5, at the George property. Finally, when a police
officer found Luedeman at home and ordered him to surrender, he refused to
do so, requiring numerous officers, including members of the State Police’s
SWAT team, to surround his house for several hours until he ultimately
[57] As for the character of the offender, Luedeman was forty-one years old at
sentencing, with no dependents. He has an extensive criminal record. The
habitual offender sentencing enhancement in this case is based on prior
convictions for theft and child molesting. Luedeman has accrued two other
felony convictions of theft, as well as felony convictions of unlawful possession
of a syringe, resisting law enforcement, and failure to register as a sex offender.
In addition, he has misdemeanor convictions of resisting law enforcement
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 20 of 21 (twice), driving while suspended (twice), operating a vehicle while intoxicated,
disorderly conduct, and criminal recklessness. Not only has Luedeman
continued to commit crimes involving other people’s property, he has also
escalated his wrongdoing to include armed robbery. In addition, he has been
placed on probation five times, and violated the terms of probation in four of
those cases, demonstrating that he is a poor candidate for alternatives to
incarceration.
[58] Luedeman has a GED, but there is limited evidence of his employment history.
At the time he committed the current offenses, he worked at a garage on a
temporary basis, paid only in cash. In summary, Luedeman has failed to
demonstrate his sentence is inappropriate in light of the nature of the offense or
his character.
Conclusion [59] For the reasons stated above, we affirm the judgment of the trial court.
[60] Affirmed.
Bradford, C. J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-769 | December 14, 2020 Page 21 of 21