Arthur Jerome Croom v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 19 2018, 10:18 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
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arthur Jerome Croom, April 19, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1710-CR-2347
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G04-1608-MR-32818
Altice, Judge.
Case Summary
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[1] Following a jury trial, Arthur Croom was convicted of reckless homicide, a
Level 5 felony, and battery resulting in serious bodily injury to a person less
than 14 years of age, a Level 3 felony. Croom was sentenced to an aggregate
term of twenty-two years, with two years suspended and one year of probation.
On appeal, Croom challenges his sentence in two respects: (1) Croom argues
that the trial court abused its sentencing discretion by relying on an improper
aggravating factor and (2) he claims his sentence is inappropriate.
[2] We affirm.
Facts & Procedural History
[3] On August 17, 2016, then eleven-year-old T.C. was at his grandmother’s house
with his thirteen-year-old sister, R.C., and a few others. Croom, T.C.’s uncle,
was also present. At some point, Croom became angry with T.C. for recording
him on his cell phone. When T.C. did not delete the video, Croom hit T.C.
with a broom across his arm and side. T.C. went outside to get away from
Croom, but Croom followed and hit him again with the broom, this time on his
leg. T.C. went back in the house and went into the bathroom. He then called
Henry Bennett to come and pick him up. Bennett was T.C.’s uncle, but T.C.
referred to him as “father.” Transcript at 27.
[4] Bennett picked T.C. up, and after they drove away, T.C. told Bennett that
Croom had hit him with a broom. T.C. then realized he left his phone at his
grandmother’s house, so Bennett took him back so he could retrieve it. Before
T.C. exited the car, Croom approached and shook T.C. by the shoulders.
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Bennett told Croom to keep his hands off of T.C. Bennett then got out of the
car and he and Croom began arguing near the front of Bennett’s car. The
altercation turned physical, with Bennett and Croom pushing each other and
exchanging a series of punches. During the altercation, Bennett stumbled
backwards and fell, hitting the back of his head on the concrete porch. T.C.
attempted to intervene by jumping on Croom’s back, but Croom pushed him
away.
[5] After Bennett fell to the ground, Croom picked up a brick and threw it at
Bennett’s feet before hitting Bennett in the head with other objects located
nearby, including a stove rack, a milk crate, and a grill cover. Croom also
kicked Bennett in the head multiple times. T.C. again tried to stop Croom from
hitting Bennett with the various items, but Croom “got angry” and started
hitting T.C. Id. at 42. T.C. suffered a “closed blow-out fracture” of the left
orbit, i.e., a broken eye socket. Id. at 55. T.C. tried to call 911, but Croom
grabbed his phone and threw it on the ground. He also took Bennett’s phone
and another one nearby. When the police were called by someone else, Croom
left. Croom returned briefly to see if Bennett was still alive, but then left again
before the ambulance arrived. R.C. was outside on the porch and witnessed the
entire altercation between Croom and Bennett. Bennett never regained
consciousness, and ultimately died from the injuries he sustained. Following an
autopsy, it was determined that Bennett’s cause of death was “[m]ultiple blunt
force injuries, primarily to the head and the neck.” Id. at 129.
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[6] On August 23, 2016, the State charged Croom with Count I, murder, a felony;
Count II, battery resulting in serious bodily injury to a person less than fourteen
years old, a Level 3 felony; and Count III, aggravated battery as a Level 3
felony. A two-day jury trial commenced on August 21, 2017. At the
conclusion of the evidence, the jury found Croom guilty on Count I of the lesser
included offense of reckless homicide, a Level 5 felony, and Count II, but
acquitted him of Count III. Following a sentencing hearing on September 20,
2017, the trial court sentenced Croom to consecutive terms of six years on
Count I and sixteen years with two years suspended and one year of probation
on Count II. Croom now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
1. Abuse of Discretion
[7] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218. “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. at 490 (quoting
K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may abuse its
sentencing discretion in a number of ways, including: (1) failing to enter a
sentencing statement at all; (2) entering a sentencing statement that includes
aggravating and mitigating factors that are unsupported by the record; (3)
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entering a sentencing statement that omits reasons that are clearly supported by
the record; or (4) entering a sentencing statement that includes reasons that are
improper as a matter of law. Id. at 490-91.
[8] A single aggravating factor can support enhanced sentences. See Willey v. State,
712, N.E.2d 434, 446 (Ind. 1999) (stating that a single aggravating circumstance
may be sufficient to support an enhanced sentence). Although material
elements of the crime may not be considered as aggravating factors at
sentencing, the particularized circumstances of the elements properly may be
considered as such. See, e.g., McElroy v. State, 865 N.E.2d 584, 598-99 (Ind.
2007); Scott v. State, 840 N.E.2d 376, 382 (Ind. Ct. App. 2006). If the trial court
has abused its discretion, we will remand for resentencing “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.” Anglemyer, 868
N.E.2d at 491.
[9] The trial court identified as aggravating factors Croom’s history of criminal and
delinquent behavior, that Croom recently violated a condition of probation and
pre-trial release, that his sentence in a prior case had been revoked, that T.C.
was eleven years old, that Croom committed the violent crime in the presence
of another child, and that the victims of the offenses were family members. The
sole mitigating factor identified by the court was that Croom’s absence would
be a hardship on his dependents.
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[10] Croom argues that the trial court improperly considered T.C.’s age as an
aggravating factor because his age is an element of the battery resulting in
serious bodily injury conviction. See Ind. Code § 35-42-2-1 (providing that the
offense of battery is a Level 3 felony “if it results in serious bodily injury to a
person less than fourteen (14) years of age”). Aside from this argument, Croom
does not challenge the other aggravating factors identified by the trial court.
While Croom’s history of criminal and delinquent behavior is not terribly
serious, it is indicative of a person that has an anger control problem. Croom
has been consistently involved with the criminal justice system since he has
been an adult, committing new crimes and violating terms of probation and pre-
trial release. The trial court emphasized the fact that Croom committed these
acts of violence against family members and in the presence of a child other
than T.C. Even if we assume that the trial court abused its discretion
considering T.C.’s age as an aggravating factor, we are confident the court
would have imposed the same sentence in any event. See Anglemyer, 868
N.E.2d at 491.
2. Appropriateness
[11] Croom next argues that his sentence is inappropriate in light of his character
and the nature of his offense. Although a trial court may have acted within its
lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the
Indiana Constitution authorize independent appellate review and revision of a
sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.
App. 2009) (citing Anglemyer, 868 N.E.2d at 491). This appellate authority is
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implemented through Indiana Appellate Rule 7(B), which provides that a 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.” Anglemyer, 868
N.E.2d at 491. Nevertheless, “we 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). The appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[12] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is
to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259
(Ind. 2013). It is not our goal in this endeavor to achieve the perceived
“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014). Accordingly, “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) (emphasis in original).
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[13] To assess the appropriateness of a sentence, we look first to the statutory range
established for the classification of the relevant offense. A Level 5 felony has a
sentencing range of one to six years, with the advisory sentence being three
years. Ind. Code § 35-50-2-6. A Level 3 felony has a sentencing range of six to
twenty years, with the advisory sentence being ten years. I.C. § 35-50-2-5.
[14] With respect to the nature of the offense, we think the trial court properly
characterized the situation as a “vicious attack” that “went beyond anger and
into rage.” Id. at 221. After Bennett fell to the ground, Croom picked up a
brick and threw it toward Bennett’s feet. He continued his attack as Bennett
was lying unresponsive on the ground by hitting Bennett with various objects
that were in the area, including a stove rack, a milk crate, and a grill cover, as
well as by kicking Bennett in the head numerous times. When T.C. tried to
intervene, Croom hit him in the left eye, fracturing his eye socket. When police
were called, Croom walked away. Further, we note that the crime was
committed in front of two minor children to whom Croom was related. The
nature of the offenses does not lead us to conclude that the sentence imposed is
inappropriate.
[15] Turning to Croom’s character, we note Croom’s history of criminal and
delinquent behavior. As a juvenile, Croom accumulated seven referrals that
resulted in true findings for resisting law enforcement, criminal mischief, and
theft. As an adult, Croom has been arrested twelve times, resulting in
convictions for driving while suspended, conversion, and battery resulting in
bodily injury. Croom has pending charges for felony and misdemeanor
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offenses, including battery with moderate bodily injury, domestic battery, and
possession of marijuana. He was on pre-trial release when he committed the
instant offenses. Croom’s criminal history indicates that he has anger
management issues and is unable to control his actions. He has been provided
several opportunities to turn his life around, but none have proved successful.
He has previously been afforded the leniency he now requests, but such did not
reform his behavior. To the contrary, Croom’s criminal behavior has escalated,
ultimately resulting in Bennett’s death. Croom’s history does not reflect
positively on his character.
[16] In light of the nature of the offense and the character of the offender, we cannot
say that the aggregate twenty-two-year sentence, with two years suspended and
one year of probation, is inappropriate. We, therefore, affirm the sentence
imposed.
[17] Judgment affirmed.
[18] Najam, J. and Robb, J., concur.
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