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.
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[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).
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[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
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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
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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
offender.
[10] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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