MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 30 2020, 9:26 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
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher A. Smith, June 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-873
v. Appeal from the Adams Superior
Court
State of Indiana, The Honorable Patrick R. Miller,
Appellee-Plaintiff Judge
Trial Court Cause No.
01D01-1811-F6-219
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-873 | June 30, 2020 Page 1 of 7
[1] Christopher Smith appeals the sentence imposed by the trial court after Smith
pleaded guilty to Level 6 felony theft of a firearm. Smith argues that the trial
court neglected to find certain mitigators and found aggravators that are
improper and/or not supported by the evidence in the record. Finding no
reversible error, we affirm.
Facts
[2] On August 29, 2018, Smith contacted Adam Affolder about a rifle that Affolder
had listed for sale. Through a series of exchanged emails, Affolder agreed to
sell the rifle to Smith for $1,000, to be paid by money order at the insistence of
Smith and over the objections of Affolder. The exchange of the rifle and money
order occurred on August 31, 2018. On September 10, 2018, Affolder’s bank
informed him that the money order was forged or counterfeit; Affolder
contacted law enforcement the next day.
[3] On November 26, 2018, the State charged Smith with Level 6 felony theft of a
firearm. On October 28, 2019, the morning of his jury trial, Smith pleaded
guilty as charged, leaving sentencing open to the trial court’s discretion. The
trial court ordered Smith to report to the probation department for a pre-
sentence investigation (PSI) report and to community corrections to be pre-
screened for home detention eligibility. The trial court also scheduled a
sentencing hearing for November 13, 2019.
[4] Smith failed to report to the probation department or community corrections
and failed to appear at the sentencing hearing. The trial court issued a warrant
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for his arrest. On February 9, 2020, Smith was arrested pursuant to the
warrant. As a result of that encounter, Smith was charged with resisting law
enforcement.
[5] Smith’s sentencing hearing took place on March 9, 2020. At that hearing,
Smith stated that he had failed to report to the probation department or
community corrections because of an inability to contact them for scheduling.
He also claimed that he missed the original sentencing hearing because he was
in the hospital for seventy-two hours in relation to his bipolar disorder. Smith
has a son, C.S., who is almost eight years old and was a ward of the
Department of Child Services (DCS) as a result of a Child in Need of Services
(CHINS) case at the time Smith committed the instant offense. Smith and his
wife have custody of C.S. under the CHINS case. As a result of Smith’s
incarceration, it is possible that DCS will recommend that C.S. be moved to
foster care.
[6] The trial court found the following aggravating factors: Smith’s criminal
history; Smith’s previous violations of probation; Smith’s failure to report to
probation and community corrections and failure to appear at the original
sentencing hearing; Smith’s new charge of resisting law enforcement; the fact
that as a felon, Smith had no right to possess any firearm, let alone an “assault
style rifle weapon,” tr. vol. II p. 39; and Smith’s detailed and methodical plan to
steal the rifle. The trial court found the following mitigating factors: Smith’s
guilty plea (though the trial court noted that he had pleaded guilty only on the
morning of the jury trial when the jury had already been called); and the
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hardship to C.S. (though the trial court found that the hardship was not undue).
The trial court sentenced Smith to 820 days, with 410 days to be executed at the
county jail and the remaining to be served on home detention. Smith now
appeals.
Discussion and Decision
[7] Smith argues on appeal that the trial court erred in the sentencing process.1 A
trial court may err in the sentencing process by, in relevant part, giving reasons
for the sentence that are not supported by the record, omitting reasons that are
clearly supported by the record and advanced for consideration, or giving
reasons for a sentence that are improper as a matter of law. Anglemyer v. State,
868 N.E.2d 482, 492 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). If we
find a sentencing error, we will still affirm unless we “cannot say with
confidence that the trial court would have imposed the same sentence” absent
the error. Id. at 491.
Mental Health
[8] First, Smith argues that the trial court erred by declining to find his mental
health to be a mitigating circumstance. In making this argument, Smith bears
the burden of establishing that the mitigating circumstance is both significant
and clearly supported by the record. Wert v. State, 121 N.E.3d 1079, 1084 (Ind.
Ct. App. 2019), trans. denied. There are four factors that must be considered
1
He does not argue that his sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).
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when considering a defendant’s mental illness at sentencing: (1) the extent of
the defendant’s inability to control his or her behavior due to the disorder;
(2) overall limitations on functioning; (3) the duration of the mental illness; and
(4) the extent of any nexus between the disorder and the commission of the
crime. Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App. 2013).
[9] The only evidence in the record of Smith’s mental illness is his own brief
testimony. While he testified that he has been diagnosed with bipolar disorder
and takes medication to treat the condition, he offered no documentation or
other evidence to support that testimony. If the trial court found Smith to be of
questionable credibility and veracity, the lack of supporting documentation may
have been a significant omission with respect to the first three factors described
above. Additionally, Smith did not elaborate at all about the nature of his
mental illness, did not state that he was unable to control his behavior, and did
not state the duration of the mental illness. The extent of his testimony in this
regard was two brief sentences at the hearing and a brief statement to probation
during the PSI process. Tr. Vol. II p. 21 (“I have bipolar”), 25 (“I was being
seen for my bipolar. I was being seen for a serious panic episode.”); Appellant’s
App. Vol. II p. 94 (Smith “reported he has been diagnosed with bipolar disorder
and is currently taking [medication] to treat his symptoms”).
[10] Moreover, Smith must also show a nexus between his mental illness and the
crime for which he was being sentenced. He offered no evidence in this regard.
Under these circumstances, even if the trial court had found Smith’s mental
illness to be a mitigator, we are confident that it would have assigned the
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mitigator little weight and, as a result, would have imposed the same sentence.
Therefore, we find no reversible error in this regard.
Hardship to C.S.
[11] Next, Smith argues that the trial court erred by finding that, while C.S. would
experience hardship because of Smith’s incarceration, the hardship would not
be undue. The trial court found hardship to C.S. to be a mitigator, which
means that this argument amounts to a claim that the trial court did not assign
it sufficient weight—which we may not review. Anglemyer, 868 N.E.2d at 492.
Pending Criminal Charge
[12] Next, Smith argues that the trial court erred by considering his pending charge
for resisting law enforcement as an aggravator because he had not yet been
convicted of that crime. It is well established, however, that allegations of
criminal activity “need not be reduced to conviction before they may be
properly considered as aggravating circumstances by a sentencing court.”
Harlan v. State, 971 N.E.2d 163, 170 (Ind. Ct. App. 2012). Here, the trial court
acknowledged the pending criminal charge and found it to be an aggravator,
but also emphasized that “[Smith] is presumed innocent, he has not yet been
convicted, [it] is a pending charge. Probable cause was found by the court[]
therein and occurred while he was awaiting sentencing in this matter.” Tr. Vol.
II p. 39. We find no error in this regard.
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Nature of the Stolen Weapon
[13] Finally, Smith argues that there is no support in the record for the trial court’s
comment that the rifle that Smith stole was “an assault style rifle weapon[.]”
Id. Initially, we note that Smith’s wife described the weapon as an “assault
rifle[.]” Appellant’s App. Vol. II p. 20. Additionally, there was a photograph
of the rifle admitted into evidence, and the trial court could have considered
that photograph when contemplating the type of weapon and its bearing on the
sentence to be imposed. In other words, there was evidence in the record
supporting this statement.
[14] Even if the evidence in the record in this regard is questionable, however, it is
beside the point. The actual aggravator found by the trial court was that Smith,
a felon, illegally acquired a firearm. That is unquestionably a valid and proper
aggravator that is supported by the record. Therefore, we find no error in this
regard.
[15] The judgment of the trial court is affirmed.
Bradford, C.J., and Pyle, J., concur.
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