MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 30 2019, 9:12 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
Donald R. Shuler Curtis T. Hill, Jr.
Barkes Kolbus Rife & Shuler, LLP Attorney General of Indiana
Goshen, Indiana Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vincent L. Thompson, January 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1733
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D04-1706-F6-893
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Vincent L. Thompson (Thompson), appeals his
conviction for intimidation, a Level 6 felony, Ind. Code § 35-45-2-1(a)(1); -
(b)(1)(A).
[2] We affirm.
ISSUES
[3] Thompson presents this court with two issues on appeal which we restate as:
(1) Whether a material variance existed between the charging Information and
the evidence presented at the bench trial which prejudiced Thompson in the
preparation of his defense; and
(2) Whether Thompson’s sentence is inappropriate considering the nature of his
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] When Rebecca Tramble (Rebecca) arrived home from work around noon on
June 19, 2017, she noticed an unfamiliar vehicle and driver parked in her
driveway. Upon entering the residence, Rebecca inquired with her eldest
daughter about the car. Rebecca noticed that her daughter acted strangely
when she informed Rebecca that the person in the driveway was looking for
Rebecca’s youngest daughter, fifteen-year-old K.T.
[5] Rebecca went outside to speak with the driver of the unfamiliar vehicle, who
was later identified as forty-five-year-old Thompson. Thompson told Rebecca
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that K.T. “owed him money or sex and he was there to get her.” (Transcript p.
22). He explained that K.T. “and some other of her friends were at his crib, []
meaning [his] house, were partying and he provided her with alcohol and weed
and [K.T.] told him that she would pay him for that.” (Tr. p. 27). Rebecca was
“shocked” and, in an attempt to de-escalate the situation, told Thompson that
he would have “to deal with [K.T.’s] father when he got home from work.”
(Tr. p. 23). Doing “what he has to do to get paid[,]” Thompson told Rebecca
that “he will bring his crew and shoot up [her] home.” (Tr. p. 54). After all,
“he was the big time person of the GD Gangster Disciples and he’s not scared
of anything or anybody and he has a crew he will bring with him.” (Tr. p. 25).
During this conversation, Rebecca glanced down and noticed a gun on
Thompson’s lap but Thompson never made any motion towards it. Following
the incident, Rebecca called her husband, Gary Tramble (Gary) to come home
from work.
[6] When Gary arrived at the residence, Gary’s daughters were at home but
Rebecca had left to pick up her brother. On her way, she saw Thompson’s car
with Thompson and others driving towards her house. Rebecca stopped and
called the police; meanwhile, she saw Thompson “strutting up to [her]
husband.” (Tr. p. 27). She explained to the police that she was afraid
Thompson would shoot her husband because Thompson had said earlier that
he would “shoot [her] house up” when he came back. (Appellant’s App. Vol.
II, p. 41).
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[7] When Thompson started walking up the driveway, Gary walked towards
Thompson. Thompson asked Gary whether he was “the man of the
household,” and explained to him that he had three choices: Gary could
“either give him $120, [or] [K.T.] come outside and [Thompson] take her with
him, or they shootin’ up [Gary’s] house.” (Tr. p. 60). When the police officers
arrived, Thompson took off running, and he was only apprehended after being
subdued with a taser by the responding officers.
[8] On June 21, 2017, the State filed an Information, charging Thompson with
Count I, intimidation, a Level 6 felony; and Count II, resisting law
enforcement, a Class A misdemeanor. On April 9, 2018, the case proceeded to
a bench trial. At the beginning of the bench trial, Thompson pled guilty to
resisting law enforcement, a Class A misdemeanor, and proceeded to trial on
the intimidation charge only. At the conclusion of the evidence, the trial court
took the matter under advisement. On May 24, 2018, the trial court issued an
Order finding Thompson guilty of intimidation, a Level 6 felony. On June 20,
2018, the trial court sentenced Thompson to concurrent terms of two-and-one-
half years executed on the intimidation offense and one year for resisting law
enforcement.
[9] Thompson now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Charging Information
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[10] Thompson contends that a material variance existed between the Information
and the evidence presented at trial. Specifically, he maintains that the trial
court relied on evidence other than the alleged threat to Rebecca to find
Thompson guilty of intimidation as a Level 6 felony. Because his defense
rested on the threat uttered to Rebecca, Thompson claims to have been
prejudiced by this material variance.
[11] Because the charging information advises a defendant of the accusations against
him, the allegations in the pleading and the evidence used at trial must be
consistent with one another. Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct.
App. 1992). A variance is an essential difference between the two. Mitchem v.
State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances, however, are fatal.
Id. Relief is required only if the variance (1) misled the defendant in preparing a
defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future
prosecution under the same evidence. Winn v. State, 748 N.E.2d 352, 356 (Ind.
2001).
[12] We resolve a claim of fatal variance under our sufficiency standard because the
defendant’s essential argument is that the evidence produced at trial so differed
from the charging information that it was insufficient to convict him as charged.
Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014). Accordingly, we do not reweigh
the evidence or judge the credibility of witnesses; rather, we consider and draw
reasonable inferences from the evidence that support the judgment. Id. We will
affirm a conviction unless no reasonable trier of fact could find every element
proven beyond a reasonable doubt. Id.
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[13] On June 22, 2017, the State filed Count I, intimidation, a Level 6 felony,
against Thompson, alleging that:
One [Thompson] did communicate a threat to commit a forcible
felony, to-wit: to shoot another person, to-wit: [Rebecca] with
the intent that [Rebecca] engage in conduct against her will, to-
wit: pay money[.]
(Appellant’s App. Vol. II, p. 16). Pointing to a fatal material variance,
Thompson maintains that the trial court erroneously relied on evidence of
Thompson’s threat to Gary to convict him of intimidation.
[14] Here, the evidence adduced at trial reflects that Thompson informed Rebecca
that K.T. owed him “money or sex and he was there to get her.” (Tr. p. 22).
When Rebecca told Thompson that he had to come back when Gary was
home, Thompson told her that he would come back with his crew and shoot up
her home. While the conversation took place, Thompson had a gun in his lap.
[15] Furthermore, in its written Order, the trial court addressed Thompson’s
contention of a material variance as follows:
In this case, the State alleged in the charging [I]nformation that
the forcible felony was “to shoot another person, to-wit:
[Rebecca].” The evidence presented was that [Thompson]
verbally threatened [Rebecca] to ‘shoot up the house.’ When he
made the threat, [Rebecca] was standing in front of her house
where [Thompson] knew she lived with [Gary] and her children.
The fact that [Thompson] did not vocalize, ‘I am going to shoot
you’ does not mean that [Thompson] did not threaten to shoot
[Rebecca] inside her house when he stated that he would ‘shoot
up the house.’ It is logical to infer that a threat to shoot up
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someone’s house means that the shots could, and very likely
would, hit the individuals inside the house. For these reasons,
the [c]ourt finds that there was no material variance.
(Appellant’s App. Vol. II, p. 43). Accordingly, as the trial court’s Order
clarifies, the court relied on evidence and reasonable inferences thereof to
support Thompson’s threat to Rebecca and to find him guilty of intimidation.
Therefore, we cannot say that a material variance existed between the evidence
and the charging Information.
II. Sentence
[16] Next, Thompson contends that the trial court imposed an inappropriate
sentence pursuant to Indiana Appellate Rule 7(B). “Appellate review of the
merits of a sentence may be sought on the grounds outlined in Appellate Rule
7(B).” Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008). Under Indiana
Appellate Rule 7(B), a reviewing court “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the [c]ourt finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). Although Indiana
Appellate Rule 7(B) leaves much to the discretion of appellate courts, it does
not detract from the long-recognized principle that “sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference.” Cardwell, 895 N.E.2d at 1222. In conducting review
under this standard, our supreme court has acknowledged that “reasonable
minds may differ” on the appropriateness of a sentence based on “our sense of
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the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Buchanan v.
State, 767 N.E.2d at 967, 970 (Ind. 2002). Thompson has the burden to
establish that his sentence is inappropriate in light of the nature of the offense
and his character. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[17] The “nature of the offense” portion of the 7(B) standard speaks to the statutory
presumptive sentence for the class of crimes to which the offense belongs.
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). In other words, the
presumptive sentence is intended to be the starting point for the court’s
consideration of the appropriate sentence for the particular crimes committed.
Id. Thompson was convicted of a Level 6 felony which carries with it a fixed
term of between six months and two-and-one-half-years, with the advisory
sentence being one year. See I.C. § 35-50-2-7(b). He pled guilty to a Class A
misdemeanor, which limits imprisonment to “a fixed term of not more than one
year.” I.C. § 35-50-3-2. The trial court sentenced Thompson to the maximum
statutory sentence.
[18] The specific circumstances of this offense should be appalling to any parent.
Thompson, a forty-five-year-old male, insisted that a mother hand over her
fifteen-year-old daughter for sex. Thompson believed he was owed payment for
supplying minors with alcohol and weed and while failing to see the depravity
of his action, he justified his demand by alleging that K.T. was “in the streets.”
(Appellant’s App. Vol. II, p. 56). To enforce the significance of his demand, he
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told Rebecca that “he was the big time person of the GD Gangster disciples[.]”
(Tr. p. 25).
[19] In turn, the “character of the offender” prong of Indiana Appellate Rule 7(B)
refers to the general sentencing considerations and the relevant aggravating and
mitigating circumstances. Douglas, 878 N.E.2d at 881. Although Thompson
has no extensive criminal history, the convictions he did accumulate are
significant and revealing of his character. In 1995, Thompson was convicted of
rape as a Class A felony and criminal confinement as a Class B felony. He was
released in 2010. While he was on parole for the rape charge, he committed the
instant offense. Thompson’s criminal history, combined with his lack of
remorse and seemingly permissive attitude toward forcing a fifteen-year-old girl
to have sex are suggestive of a questionable moral compass and an
unwillingness to abide by societal rules. We decline Thompson’s request to
revise his sentence.
CONCLUSION
[20] Based on the foregoing, we hold that there was no material variance between
the evidence presented at trial and the State’s Information. In addition, we
conclude that Thompson’s sentence is not inappropriate in light of the nature of
the offense and his character.
[21] Affirmed.
[22] Kirsch, J. and Robb, J. concur
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