Jose J. Reyes v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 15 2020, 8:03 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jose J. Reyes, April 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2541
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Samuel R. Keirns,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
02D06-1904-F6-499
Tavitas, Judge.
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Case Summary
[1] Jose J. Reyes appeals his convictions and sentence for battery on a public safety
official, a Level 6 felony, and resisting law enforcement, a Class A
misdemeanor. We affirm.
Issues
[2] Reyes raises two issues on appeal, which we restate as follows:
I. Whether the jury returned inconsistent verdicts; and
II. Whether Reyes’ sentence is inappropriate in light of the
nature of his offense and his character.
Facts
[3] Ava Maria Hospitality House (“AMHH”) is located in Fort Wayne. AMHH is
operated by St. Mary’s Catholic Church, which also operates a soup kitchen
across the street from AMHH. AMHH provides food as well as telephone,
computer, laundry, and shower amenities to homeless persons. Reyes was
homeless for the three-year period preceding the instant events. Reyes
“frequently” used AMHH’s facilities, which include a single shower stall. Tr.
Vol. II p. 22.
[4] On April 22, 2019, Reyes entered AMHH, intending to use the shower stall.
Volunteer Vickie Schneider was on duty at the time. Reyes was agitated upon
arrival and wanted to shower immediately; he became even more agitated on
learning that the shower was occupied. Reyes added his name to AMHH’s
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shower signup sheet and, when the shower became available, Reyes entered to
use it. Reyes immediately began to shout that the water was too cold.
[5] The disturbance was brought to Schneider’s attention. Schneider approached
the shower area and advised Reyes, who was still in the shower, that the water
temperature was beyond AMHH’s control. Schneider stated that Reyes should
exit the shower if the water was too cold. Reyes “became belligerent and
started hollering and calling [Schneider] names[.]” Id. at 23. Schneider
instructed a volunteer to notify Detective Larry Tague of the Fort Wayne Police
Department, who worked a private security detail at the soup kitchen.
[6] Reyes exited the shower stall, shouted that he would “kill everybody in the
house[,]” and stated that he was not afraid of the police and “would kill” any
police officer that responded to AMHH. Id. Schneider exited the shower area.
Reyes followed Schneider, screamed obscenities at her, and shouted that he
would kill her. The confrontation spilled outside to the porch of AMHH.
[7] Detective Tague heard Reyes shouting well before Detective Tague reached the
street. Detective Tague observed Reyes standing on the porch of AMHH and
screaming obscenities at Schneider and other volunteers. Detective Tague
approached and spoke to Schneider. Over Reyes’ shouting, Schneider stated
that she wanted Reyes to leave AMHH’s premises. “Three to five” times,
Detective Tague ordered Reyes to stop shouting; however, Reyes refused and
told Detective Tague “that he wasn’t afraid of Detective Tague and that [ ] he
would go after [ ] and kill [Detective Tague].” Id. at 24, 34.
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[8] Detective Tague stepped closer to Reyes and administered a “last warning.” Id.
at 34. Reyes “clenched his fists[ ] and yelled ‘f*** you’ at [Detective Tague]
and took a combat stance.” Id. Detective Tague told Reyes: “[F]ine, you’re
under arrest, turn around and put your hands behind your back[.]” Id. Reyes
refused. Detective Tague “moved in to take [Reyes] into custody to make the
arrest.” Id. at 35. As Detective Tague attempted to secure and handcuff Reyes’
right wrist, Reyes “jerked away” his right arm, grabbed Detective Tague’s shirt
collar, and “drew back to hit [Detective Tague].” Id. at 38.
[9] Detective Tague and Reyes “swung at about the same time” and exchanged
blows. Id. During the altercation, Reyes punched the left side of Detective
Tague’s head while still maintaining his grip on Detective Tague’s shirt. Reyes
continued to “swing[ ] at” Detective Tague, whose police radio and handcuffs
fell to the ground during the struggle. Id. at 24. A bystander returned the police
radio to Detective Tague, who called for backup. In the meantime, Detective
Tague extricated himself from Reyes’ grip, drew his service weapon, and held
Reyes at gunpoint until backup assistance arrived.
[10] On April 25, 2019, the State charged Reyes with battery on a public safety
official, a Level 6 felony; resisting law enforcement and criminal trespass, Class
A misdemeanors; and disorderly conduct, a Class B misdemeanor. The trial
court conducted a jury trial on September 4, 2019. The jury found Reyes guilty
of the battery and resisting law enforcement counts, and not guilty of the
criminal trespass and disorderly conduct counts.
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[11] The trial court conducted Reyes’ sentencing hearing on October 1, 2019. In
remarks to the trial court, Reyes stated: “I never hurt the police officer, never,
ever”; “I never touched the police officer. I never sa[id] such mean words and
terrible actions”; and that, “[in] thirty[-]five years in the United States[,] I never
ha[d] a problem with the police[.]” Sent. Tr. pp. 6, 7. In imposing its sentence,
the trial court identified Reyes’ prior criminal history and failed prior attempts
at rehabilitation as aggravating factors and found no mitigating factors. The
trial court imposed the following concurrent sentences: for battery, one and
one-half years in the Department of Correction (“DOC”); and for resisting law
enforcement, one year in the DOC. 1 Reyes now appeals.
Analysis
I. Inconsistent Jury Verdicts
[12] Reyes argues that the jury’s verdicts were inconsistent and irreconcilable. See
Reyes’ Br. p. 9 (“The convictions of battery and resisting law enforcement are
logically and rationally inconsistent with the acquittal on disorderly conduct.”).
This claim is not available for appellate review. See State v. O.E.W., 133 N.E.3d
144, 158 (Ind. Ct. App. 2019) (quoting Beattie v. State, 924 N.E.2d 643, 649
(Ind. 2010) (“Jury verdicts in criminal cases are not subject to appellate review
on grounds that they are inconsistent, contradictory, or irreconcilable.”)).
1
Since May 24, 2019, Reyes has been subject to a hold for the United States Citizenship and Immigration
Services. See Sent. Tr. p. 5 (advising the trial court “that there is an ICE hold on [Reyes], so as soon as this
case is completed, [Reyes] will be going to Chicago”).
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II. Inappropriateness of Sentence
[13] Reyes argues that his sentence is inappropriate in light of the nature of his
offense and his character. Indiana Appellate Rule 7(B) provides that this Court
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find that the sentence “is inappropriate in light of the
nature of the offense and the character of the offender.” The defendant bears
the burden to persuade this court that his or her sentence is inappropriate.
Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012) (citing Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.
[14] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; the trial court’s judgment receives “considerable deference.” Sanders
v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008)). In conducting our review, we do not look to see
whether the defendant’s sentence is appropriate or “if another sentence might
be more appropriate; rather, the question is whether the sentence imposed is
inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008)).
[15] When determining whether a sentence is inappropriate, the advisory sentence is
the starting point the legislature has selected as an appropriate sentence for the
crime committed. Childress, 848 N.E.2d at 1081. The sentencing range for a
Level 6 felony is six months to two and one-half years, with an advisory
sentence of one year. See Ind. Code § 35-50-2-7. Here, the trial court imposed a
one and one-half year sentence on Reyes’ conviction for battery on a public
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safety official, a Level 6 felony. The sentencing range for a Class A
misdemeanor is a fixed term of not more than one year. I.C. § 35-50-3-2. Here,
the trial court imposed a maximum, one-year sentence on Reyes’ conviction for
resisting law enforcement, a Class A misdemeanor. Although Reyes faced a
maximum aggregate sentence of three and one-half years, the trial court
imposed concurrent sentences, resulting in an aggregate one and one-half-year
sentence.
[16] Our analysis of the “nature of the offense” requires us to look at the extent and
depravity of the offense rather than comparing the instant facts to other cases.
Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002). The nature of the
instant offenses is as follows: At his jury trial, Reyes testified that he availed
himself of AMHH’s hospitality and resources approximately twenty times in
the year preceding the incident. See Jury Tr. p. 84. After Reyes shouted
obscenities, made threats, and refused to leave AMHH, Reyes refused Detective
Tague’s repeated orders to stop shouting and to leave. When Detective Tague
attempted to handcuff Reyes, Reyes jerked his arm away, grabbed Detective
Tague’s shirt collar, and struck Detective Tague’s head.
[17] Regarding Reyes’ character, our assessment of the character of an offender
requires us to consider the defendant’s background, criminal history, age, and
remorse. See James v. State, 868 N.E.2d 543, 548-49 (Ind. Ct. App. 2007). “The
significance of a criminal history in assessing a defendant’s character is based
on the gravity, nature, and number of prior offenses in relation to the current
offense.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013) (citing
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Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007)). Even a minor
criminal history is a poor reflection of a defendant’s character. Moss v. State, 13
N.E.3d 440, 448 (Ind. Ct. App. 2014).
[18] Reyes’ adult 2 criminal history consists of convictions for leaving the scene of an
accident (2004) and disorderly conduct (2005), Class B misdemeanors; and
driving while suspended, Class A misdemeanors (2012, twice). Reyes had a
previously-suspended sentence revoked and had a sentence modified. His prior
convictions have resulted in executed jail time, probation, and home detention;
however, his encounters with the justice system have not deterred him from
criminal activity. Also, Reyes has never been issued an Indiana driver’s license,
but has been convicted twice of driving without a license. These facts do not
reflect well on Reyes’ character.
[19] Reyes’ conduct at AMHH and attack on Detective Tague also reflect poorly on
his character, given Reyes’ testimony that he availed himself of AMHH’s
hospitality and resources approximately twenty times in the year preceding the
incident and Reyes’ testimony that he knows better than to hit a police officer.
See Jury Tr. p. 87 (Reyes’ testimony that “my father told me to don’t [sic] hit an
officer”). We cannot say that Reyes’ sentence is inappropriate in light of the
nature of his offenses and his character.
2
Reyes has no known juvenile criminal history.
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Conclusion
[20] Reyes’ claim of inconsistent jury verdicts is not available for appellate review.
Reyes’ sentence is not inappropriate in light of the nature of his offense and his
character. We affirm.
[21] Affirmed.
Riley, J., and Mathias, J., concur.
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