Adam Bigger v. State of Indiana , 2014 Ind. App. LEXIS 123 ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
P. STEPHEN MILLER GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
Mar 26 2014, 9:33 am
IN THE
COURT OF APPEALS OF INDIANA
ADAM BIGGER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1308-CR-315
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D05-1301-FC-8
March 26, 2014
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge
STATEMENT OF THE CASE
Adam Bigger appeals his conviction and sentence for attempted robbery, a Class C
felony. Ind. Code §§ 35-42-5-1 (1984), 35-41-5-1 (1977). We affirm.
ISSUES
Bigger presents two issues for our review, which we restate as:
I. Whether the State presented sufficient evidence to disprove Bigger’s
defense of abandonment.
II. Whether Bigger’s sentence is inappropriate.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the verdict follow. On December 21, 2012, Bigger
walked into a Chase Bank branch in Fort Wayne, approached one of the tellers, and
handed her a note indicating he had a gun and demanding money. The teller told Bigger
that she did not have the key for her cash drawer but that it was in her purse, and Bigger
indicated that she could retrieve the key. Upon retrieving the key, the teller emerged with
her hands in the air. At that time, Bigger began walking away from the teller window
and out of the bank. The teller then pushed the alarm.
The State charged Bigger with attempted robbery, and, following a jury trial, he
was found guilty as charged. The trial court sentenced Bigger to eight years. It is from
this conviction and sentence that he now appeals.
DISCUSSION AND DECISION
I. SUFFICIENCY OF THE EVIDENCE
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Bigger contends that the State’s evidence was not sufficient to disprove his
defense of abandonment. However, the State claims that Bigger has waived this issue on
appeal because he did not raise the defense before or during his trial.
In response to the State’s assertion of waiver, Bigger argues in his reply brief that
the statute providing for the defense of abandonment does not require a formal pleading
or notice of the defense. See Ind. Code § 35-41-3-10 (1977). Although we find no
statutory or case law requirement that the defense of abandonment be formally pleaded,
our review of this case discloses that the jury was not even aware that they could consider
this defense. Bigger did nothing to reveal his intent to rely on the defense of
abandonment in this case. He did not file any pleading asserting the defense of
abandonment, he did not cross-examine the State’s witnesses regarding evidence of his
alleged abandonment, he did not mention his alleged abandonment in closing argument
or any other time at trial, and he did not tender any final instructions on the defense of
abandonment and the court gave none.
We deem necessary the assertion of the defense in some manner. Were it
otherwise, the trier of fact would not know to consider the defense in its deliberations of a
defendant’s guilt, as was the case at Bigger’s trial. See Norton v. State, 273 Ind. 635, 408
N.E.2d 514 (1980) (defendant tendered instruction on defense of abandonment); Barnes
v. State, 269 Ind. 76, 378 N.E.2d 839 (1978) (defendant tendered instruction on
abandonment); Gravens v. State, 836 N.E.2d 490 (Ind. Ct. App. 2005) (defendant filed
notice of affirmative defense of abandonment prior to trial and tendered instruction on
defense of abandonment at trial), trans. denied; cf. Fearrin v. State, 551 N.E.2d 472, 473
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(Ind. Ct. App. 1990) (recognizing that formal pleading of defense of entrapment is not
required but stating it is defendant’s duty to affirmatively raise defense and reliance on
defense may be revealed through cross-examination of State’s witnesses), trans. denied;
Townsend v. State, 418 N.E.2d 554, 558 (Ind. Ct. App. 1981) (holding that although
defendant need not raise entrapment defense before trial, he must indicate at some point
in proceedings his intention to rely upon defense).
Moreover, as a general rule, a party may not present an argument or issue to an
appellate court unless the party raised the same argument or issue before the trial court.
Crafton v. State, 821 N.E.2d 907, 912 (Ind. Ct. App. 2005). Here, we find no evidence
that Bigger raised the issue of the defense of abandonment or indicated his intent to rely
on the defense at the trial court level, and he points to none. Therefore, this issue is
waived.
II. SENTENCE
As his second allegation of error, Bigger claims that his eight-year sentence is
inappropriate. We may revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, we determine that the sentence is inappropriate in light of the
nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). A
defendant bears the burden of persuading the appellate court that his or her sentence has
met the inappropriateness standard of review. Anglemyer v. State, 868 N.E.2d 482, 494
(Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007).
To assess the appropriateness of the sentence, we look first to the statutory range
established for the class of the offense. Here, the offense is a Class C felony, for which
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the advisory sentence is four years, with a minimum sentence of two years and a
maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005).
Next, we look to the nature of the offense and the character of the offender. As to
the nature of the current offense, Bigger attempted to rob a bank by giving a teller a
threatening note stating he had a gun and “nothing to lose.” Tr. p. 94. The teller testified
that the first thing she noticed on the note was the word “gun” and that she was
“stunned,” “shocked,” and “scared” during the ordeal. Id. at 90-91.
With regard to the character of the offender, we observe that Bigger was only
twenty-eight years old at the time of sentencing and already had amassed a notable
criminal history. As a juvenile, he had three delinquency adjudications, all involving
alcohol. As an adult, Bigger has accumulated eleven misdemeanor convictions, at least
four of which involved drugs and/or alcohol. Moreover, three of the eleven
misdemeanors were committed after the instant offense. Bigger also has one previous
felony conviction involving drugs and has had his probation revoked at least once.
It is clear that numerous prior brushes with the law have proven ineffective to
rehabilitate Bigger, and this offense is further proof that a longer period of incarceration
is appropriate. Bigger has not carried his burden of persuading this Court that his
sentence has met the inappropriateness standard of review. See Anglemyer, 868 N.E.2d
at 494.
CONCLUSION
For the reasons stated, we conclude that Bigger waived the defense of
abandonment by failing to raise it in the trial court. In addition, we conclude that
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Bigger’s sentence is not inappropriate in light of the nature of the offense and his
character.
Affirmed.
MAY, J., and CRONE, J., concur.
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