Javier Antonio Zavala v. State of Indiana

FILED
Dec 12 2019, 9:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brian Woodward Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Molly M. McCann
Certified Legal Intern
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Javier Antonio Zavala, December 12, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-558
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff. Boswell, Judge
Trial Court Cause No.
45G03-1407-FB-48
Darden, Senior Judge.
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Statement of the Case
[1] Javier Antonio Zavala appeals challenging his sentence after he pleaded guilty
1 2
to one count of battery causing serious bodily injury, a Class C Felony. We
affirm.
Issues
[2] Zavala raises two sentencing issues, which we restate as the following
questions:
I. Did the trial court abuse its discretion by failing to accept a
proffered mitigating circumstance?
II. Is Zavala’s sentence inappropriate in light of the nature of
the offense and the character of the offender?
Facts and Procedural History
[3] On July 1, 2014, Zavala was charged with one count of aggravated battery as a
Class B felony, one count of battery committed by means of a deadly weapon, a
Class C felony, and one count of battery resulting in serious bodily injury, a
Class C felony. He was arrested on July 23, 2014 and posted bond on July 24,
2014. Numerous continuances were requested and granted as follows: (1)
September 12, 2014 Zavala’s motion to continue the omnibus hearing was
1
Ind. Code § 35-42-2-1(a)(3) (2012).
2
Ind. Code § 35-50-2-6 (2005).
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granted; (2) October 2, 2014 Zavala’s motion to continue was granted; (3)
December 9, 2014 Zavala’s motion to continue was granted; (4) June 15, 2015
Zavala’s motion to continue the pre-trial conference was granted; (5) July 9,
2015 Zavala’s motion to vacate the jury trial date was granted; (6) August 27,
2015 Zavala’s request to reset the jury trial date was granted; (7) October 13,
2015 Zavala’s motion to continue was granted; (8) November 17, 2015 Zavala’s
motion to continue was granted; (9) January 7, 2016 Zavala’s request to reset
an omnibus hearing was granted; (10) March 9, 2016 Zavala’s request to reset
the omnibus hearing was granted; (11) April 13, 2016 Zavala’s motion to
continue was granted; (12) June 8, 2016 Zavala’s request to reset a hearing was
granted; (13) July 21, 2016 Zavala’s request to reset the omnibus hearing was
granted; (14) October 5, 2016 Zavala’s request to reset the omnibus hearing was
granted; (15) November 17, 2016 Zavala’s request to reset a status hearing was
granted; (16) December 21, 2016 Zavala’s request to reset a hearing was
granted; (17) February 15, 2017 Zavala’s motion to continue was granted; (18)
April 20, 2017 Zavala’s motion to continue was granted; (19) December 4, 2017
Zavala’s motion to continue was granted; (20) January 8, 2018 Zavala’s request
to reset the final pre-trial conference was granted; (21) January 25, 2018
Zavala’s request to reset the jury trial date was granted; (22) April 12, 2018
Zavala’s request to reset the final pre-trial conference was granted; (23) April
25, 2018 Zavala’s motion to reset the jury trial was granted; (24) August 9, 2018
Zavala’s motion to continue was granted; (25) September 6, 2018 Zavala’s
motion to set for a change of plea was granted; (26) November 14, 2018 due to
time constraints the trial court reset the date for acceptance of Zavala’s plea and
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completion of sentencing hearing; and (27) December 11, 2018 Zavala’s motion
to continue the sentencing hearing was granted.
[4] Zavala pleaded guilty to battery causing serious bodily injury as a Class C
felony on September 6, 2018. His sentencing hearing was held on November
14, 2018–to accommodate the victim who lived out of state and wished to
testify–and February 8, 2019–to complete the presentation of evidence and
arguments of counsel. We will refer to the facts set forth in Zavala’s stipulated
guilty plea agreement, the stipulated factual basis, and testimony at the
sentencing hearings.
[5] On June 15, 2014, Zavala was present at the 3900 block of Deodar Street in
East Chicago, Lake County, Indiana. On that date and at that location Zavala
used a handgun to shoot Shaun Tucker multiple times. Tucker suffered
gunshot wounds to his right lower flank, the left side of his umbilical area, the
right lower quadrant of his abdomen, the anterior/lateral part of his right thigh,
his posterior right thigh, the dorsal surface of his right forearm, the volar surface
of his right forearm and a graze wound to his left wrist.
[6] On November 14, 2018, Tucker testified that the gunshot striking his right
forearm “blew a hole through my arm, so I’m losing mobility now.” Tr. Vol.
II, p. 24. He further testified that he had two gunshot wounds striking his
stomach and that “there’s a bullet still in my - - by my spine that they left it in.”
Id. He had six surgeries to address his injuries from the gunshot wounds and
was eight months away from having a surgery on his forearm “where they open
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it up and they take the nerves and pull them out because the scar tissue keeps
growing over it.” Id.[7] As for the mental impact of being shot multiple times, he testified that he does
not go outside at night, preferring to stay at home with his children. He stated
that the fireworks on the Fourth of July “makes me weird” and that “a lot of
loud noises, they’re offensive.” Id. at 25.
[8] Tucker testified that he is right-handed and with the injuries to his right forearm
it is difficult to work. He stated, “I’m a laborer, union, so I can’t really do that
anymore because the nerves, they end up like - -feels like there’s a lot of tingling
in my hands so I lose my hammer, drop the sledge hammer or something like
that.” Id. at 26.
[9] When asked his opinion about what sentence Zavala should receive for his
crime, Tucker indicated, “I think he should go to prison. I mean, if it was me,
I’d be in prison, you know. I think he should go to prison really, sit and think
about what he did. At least he gets to come back out. I mean, I died three
times on the way to the hospital, so I might not have made it you know. I
mean, he’s still got a chance to come out.” Id.[10] On cross-examination, Tucker testified that he knew Zavala. When asked what
Zavala’s reputation was on the streets, he responded, “[h]e didn’t like to fight.
He would go run and get the pistol.” Id. at 29. He further testified that Zavala
told Tucker “he won’t fight nobody my size, he’ll go get the pistol.” Id. at 30.
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He further clarified that Zavala told him that Zavala was “little, he would not
fight, he would just go and get the pistol and shoot the person.” Id. at 31.
[11] On February 8, 2019, the second phase of the sentencing hearing was held.
Rosario Miranda, one of Zavala’s sisters, testified. She testified that her family
had immigrated to the United States from Mexico. There were six members in
her family: Zavala, Miranda, a sister and a brother and their mother and father.
Each of them had become citizens of the United States.
[12] Miranda testified that the language barrier was tough on each of the children
but was especially difficult for Zavala. She stated, “He had that language
barrier. He was overweight, so he was picked on and bullied in grade school,
and unfortunately due to that he turned to people that he [could] connect to,
gangs.” Id. at 43. “It was a gang . . . that also spoke Spanish that made him
feel comfortable, welcome, protected.” Id. at 44. He was around thirteen years
old when he joined “the Latin Kings.” Id. at 44, 54. Zavala, who was in the
eighth grade, was expelled from school for a fight.
[13] Zavala’s parents discovered that he was in a gang when he was in his 20’s “and
tried to do their best to lead him away from that lifestyle and to better himself.”
Id. at 44. Zavala’s parents’ first plan of action was to try to separate him from
the gang by sending him to Mexico to spend some months with grandparents
and other relatives. After returning from Mexico, he spent some time with
family who live in Waukegan, Illinois. “They were just trying to keep him
busy, occupied away from the negativity.” Id. at 45.
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[14] The State asked Miranda if she was aware of Zavala’s history of criminal
activity. She acknowledged knowing about only some of his criminal activity.
In particular, the State asked if she knew about his guilty plea in 2007 for
domestic battery as a misdemeanor instead of a felony. Miranda stated that she
vaguely remembered it and that it involved Tiara, the mother of Zavala’s
children who live out of state. Her description was that “He had a toxic
relationship”. Id. at 56. In November of 2010, he was involved in another case
in which he was charged with strangulation and domestic battery. He pled
guilty to the domestic battery charge as a misdemeanor instead of a felony. In
June of 2011, Zavala was charged with domestic battery and invasion of
privacy. He pled guilty to domestic battery as a misdemeanor. She was not
sure if she was aware of another matter in March of 2013, in which Zavala was
charged with escape for having jumped out of a moving ambulance after having
been arrested. In that case, he pleaded guilty to a charge of failure to return to
lawful detention. Miranda asked the trial court for leniency for her brother in
the present case.
[15] Zavala, who could have faced a minimum sentence of two years and a
maximum sentence of eight years, was facing a maximum sentencing cap of six
years under the terms of the plea agreement. Zavala’s counsel argued that
Zavala was remorseful for his crime, that the crime was the result of
circumstances that are unlikely to recur, that he acted “under strong
provocation”, id. at 61, that he was likely to respond affirmatively to probation
or short-term incarceration in community corrections, and that imprisonment
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would result in undue hardship to his children and family. Instead of asking for
a specific number of years on his sentence, Zavala’s counsel argued in favor of
placement in community corrections.
[16] The State argued that the harm, injury, loss, or damage suffered by Tucker was
significant and greater than the elements necessary to prove the commission of
the offense. The State also referenced Zavala’s criminal history of violent
crimes. Zavala was on probation at the time he committed the offense at issue.
The State asked for the imposition of the full, six years incarcerated in the
Department of Correction.
[17] The trial court’s oral sentencing statement follows:
And, you know, I had the thought when you guys were arguing
these things that certainly if everyone had the opportunity to
have four years pass after their crime, they could change their life
and we could empty the jails, we could empty the prisons. . . .and
many people can. I mean, give somebody four years and they’ve
got hanging over their head the possibility of being in prison for
eight, they could change their life, and while I can appreciate
what he’s done, and it sounds like he’s been very successful, this
violent crime can’t just be ignored and say, Well, it’s okay. You
shot the man four times, two times, six times, whatever, however
many times it was it doesn’t matter, and we’re just going to - -
we’re just going to say no problem with that now because you’re
a better person. You won’t shoot him again or you won’t shoot
anybody again and let it go. It’s unfortunate that we can’t do
that.
Mr. Zavala, you have to pay a penalty for what you did even
though you’re not that person today. You know, there has to be
some accountability. And to just walk away and say, Oh, my life
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is just a little bit changed because I’m in Community Corrections
and I’m in Work Release and I work every day and go home
and, you know, I’m - - my life is still pretty much the same as it
was at the time of this crime, it’s just not justice. It’s not justice.
So today I’m going to sentence you to your - - on the plea of
guilty to Count III, battery resulting in serious bodily injury as a
Level C felony, to five years in the Department of Corrections,
two and a half years to be served in DOC and two and a half
years to be served in Lake County Community Corrections.
The Court finds that you have two days in custody on this matter
plus two days. . . .Four days credit.
[A probation officer informed the trial court that] He has actually
spent almost four years additional time on probation, so at this
time we were willing to just discharge him unsatisfactorily from
probation.
[The trial court stated] Well, even more reason. Alright. On the
probation violation, probation recommends - - that’s in short
Cause 08, probation recommends that he be discharged
unsatisfactorily from probation and that he receive no further
sanction.
Id. at 74-77. Zavala now appeals.
Discussion and Decision
I. Abuse of Discretion in Sentencing
[18] In this appeal, Zavala contends that the trial court abused its discretion by
failing to accept a proffered mitigating circumstance. More specifically, Zavala
argues that the trial court should have identified his pre-sentencing
rehabilitation efforts as a significant mitigating circumstance.
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[19] “Indiana trial courts are required to enter sentencing statements whenever
imposing sentence for a felony offense.” Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). “[T]he statement must
include a reasonably detailed recitation of the trial court’s reasons for imposing
a particular sentence.” Id.[20] “[S]entencing decisions rest within the sound discretion of the trial court and
are reviewed on appeal only for an abuse of discretion.” Id. “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. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.
1985))).
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence–including a finding of aggravating and
mitigating factors if any–but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law. Under
those circumstances, remand for resentencing may be the
appropriate remedy 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.
Id. at 490-91.
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[21] “Because the trial court no longer has any obligation to ‘weigh’ aggravating and
mitigating factors against each other when imposing a sentence, unlike the pre-
Blakely statutory regime, a trial court can not now be said to have abused its
discretion in failing to ‘properly weigh’ such factors. Id. at 491.
[22] “A trial court’s consideration of factors may be evidenced in either the written
order or in an oral sentencing statement.” Anderson v. State, 989 N.E.2d 823,
826 (Ind. Ct. App. 2013), trans. denied. “In reviewing a sentencing decision in a
non-capital case, we are not limited to the written sentencing statement but may
consider the trial court’s comments in the transcript of the sentencing
proceedings.” Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002). “Where the
record indicates that the trial court did engage in the evaluative processes but
simply did not articulate sufficiently the reasons for sentence enhancement, and
the record indicates that the sentence was not manifestly unreasonable, then the
purposes underlying the specificity requirement are satisfied.” Berry v. State, 819
N.E.2d 443, 452 (Ind. Ct. App. 2004), trans. denied. “Accordingly, our supreme
court has held that under those circumstances, remand is unnecessary.” Id.[23] “Because reasonable minds may differ due to the subjectivity of the sentencing
process, it is generally inappropriate for us to merely substitute our opinions for
those of the trial judge.” Corbett, 764 N.E.2d at 630. “The trial court sits in the
best position to weigh any conflicting evidence and assess the credibility of the
witnesses.” Wilfong v. Cessna Corp., 838 N.E. 2d 403, 407 (Ind. 2005).
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[24] Indiana Code section 35-38-1-7.1 (2014) sets forth aggravating and mitigating
circumstances a trial court may consider in deciding whether to impose a
sentence other than the presumptive sentence or to impose consecutive
sentences. Echols v. State, 722 N.E.2d 805, 808 (Ind. 2000). “[T]he court is
obligated neither to credit mitigating circumstances in the same manner as
would the defendant, nor to explain why he or she has chosen not to find [a]
mitigating circumstance.” Bacher v. State, 722 N.E.2d 799, 804 (Ind. 2000).
[25] “Indiana law, however, mandates that the trial judge not ignore facts in the
record that would mitigate an offense, and a failure to find mitigating
circumstances that are clearly supported by the record may imply that the trial
court failed to properly consider them.” Sherwood v. State, 749 N.E.2d 36, 38
(Ind. 2001). “The trial court is not obligated to accept the defendant’s
contentions as to what constitutes a mitigating factor.” Gross v. State, 769
N.E.2d 1136, 1140 (Ind. 2002). “Nor is the court required to give the same
weight to proffered mitigating factors as the defendant does.” Id.[26] Here, although not obligated to do so, the trial court explained to Zavala that
she acknowledged the great strides he had made to improve himself in the time
between when he committed the crime and the time of sentencing. However, it
is clear in her oral statement that she gave it no weight. Implicitly recognizing
the lapse of time due to numerous continuances, most if not all at Zavala’s
request, the trial court noted that most people facing the possibility of a six-year
sentence executed in the Department of Correction (under the plea agreement;
8 years under the statute) could modify their behavior over the course of four
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years. She further indicated her opinion that though Zavala today was not the
man he was at the time of the commission of the offense, he must still be held
accountable for what he had done at the time of the crime.
[27] Considering pre-sentencing rehabilitation, as is permitted, cf. Livingston v. State,
113 N.E. 3d 611, 614 (Ind. 2018) (shortening the defendant’s sentence due to
pre-sentence rehabilitation), the trial court explained that a “violent crime
[involving shooting another person repeatedly] can’t just be ignored . . .because
[now] you’re a better person”. Tr. Vol. II, p. 75. The trial court evaluated the
aggravating and mitigating factors and found that the favorable plea agreement,
short sentence for repeatedly shooting Tucker resulting in lasting injuries, and
the benefit of being placed in community corrections for half of his sentence,
were more significant than the value of the accomplishment of significant
rehabilitation over the course of four years.
[28] While the trial court’s oral and written sentencing statements could be more
detailed, we conclude that the trial court did not abuse its discretion by
considering but rejecting Zavala’s efforts at pre-sentencing rehabilitation as a
significant mitigating factor in light of the very serious nature of his offense.
II. Inappropriate Sentence
[29] Next, Zavala argues that his sentence is inappropriate in light of the nature of
the crime and the character of the offender. More specifically, Zavala contends
that both his character during the pre-sentencing rehabilitative process and the
trial court’s error in assessing the nature of the offense merit a revision of his
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sentence to the advisory sentence of four years incarcerated in community
corrections.
[30] “Although a trial court may have acted within its lawful discretion in
determining a sentence, Article VII, Section 4 and 6 of the Indiana Constitution
‘authorize[] independent appellate review and revision of a sentence imposed
by the trial court.’” Anglemyer, 868 N.E.2d at 491. “This appellate authority is
implemented through Appellate Rule 7(B), which provides that the ‘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.’” Id. (internal citations
omitted). “Of course a defendant must persuade the appellate court that his or
her sentence has met this inappropriateness standard of review.” Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[31] Under Appellate Rule 7(B), the question is “not whether another sentence is
more appropriate” but rather “whether the sentence imposed is inappropriate.”
King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence
should be deemed inappropriate turns on the sense of culpability of the
defendant, the severity of the crime, the damage done to others, and other
factors. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). We may consider
whether a portion of the sentence is ordered suspended or is otherwise
fashioned to using any of the variety of sentencing tools available to the trial
judge. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).
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[32] The nature of the offense analyzes the defendant’s action in comparison with
the elements of the offense. Cardwell, 895 N.E.2d at 1224. Zavala was
convicted of battery resulting in serious bodily injury as a Level C felony.
Indiana Code section 35-50-2-6 carries a possible sentence of between two and
eight years with an advisory sentence of four years. Zavala’s plea agreement
capped his sentence at six years. Zavala was sentenced to a total of five years
with two and one-half years to be served in the Department of Correction
followed by two and one-half years to be served at community corrections.
[33] “The nature of the offense is found in the details and circumstances of the
commission of the offense and the defendant’s participation.” Perry v. State, 78
N.E.3d 1, 13 (Ind. Ct. App. 2017). The details and circumstances of Zavala’s
crime include that he was in a car when the altercation with Tucker started.
Instead of driving away, Zavala intentionally shot Tucker numerous times,
hitting him multiple times in the abdomen, thigh, forearm, and wrist. Those
shots resulted in serious bodily injury to Tucker. Tucker nearly died and was
revived three times during the trip to the hospital. He suffered eight different
gunshot wounds from the shots fired by Zavala. Tucker has undergone six
surgeries on his right forearm to repair the damage caused by the injuries
inflicted by Zavala’s gunshots.
[34] Zavala’s actions, specifically choosing to shoot Tucker numerous times instead
of driving away from the altercation and the serious bodily injury resulting from
those shots, support the trial court’s sentencing decision in the middle of the
sentencing range with half suspended to community corrections.
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[35] As for the character of the offender, we refer to “general sentencing
considerations and the relevant aggravating and mitigating circumstances.”
Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). A defendant’s
criminal history is relevant to review of his character. Sanders v. State, 71
N.E.3d 839, 844 (Ind. Ct. App. 2017), trans. denied.
[36] Zavala has a history of committing violent crimes. He has three misdemeanor
convictions for battery and domestic battery and a felony conviction for failure
to return to lawful detention. His felony conviction was based on his actions of
jumping from a moving ambulance after having been arrested. A record of
arrests reflects on the defendant’s character in part because such record reveals
that subsequent antisocial behavior by the defendant has not been deterred even
having been subject to police authority and having been made aware of its
oversight. Pickens v. State, 767 N.E.2d 530, 534 (Ind. 2002). Zavala has also
been charged with multiple other offenses including resisting law enforcement,
criminal mischief, interference with the reporting of a crime, disorderly
conduct, stalking, harassment, intimidation, strangulation, and invasion of
privacy. The bulk of those charges were dismissed as a result of plea
agreements and deferrals. Additionally, Zavala has violated probation and was
on probation at the time he committed the offense at issue here.
[37] Furthermore, Zavala was affiliated with the Latin Kings gang for at least seven
years beginning when he was thirteen years old and ending when he parents
intervened and sent him to live with other family members in Mexico and
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Illinois. Zavala’s street reputation was one of choosing to use his pistol to shoot
someone instead of engaging in physical fights.
[38] Zavala’s criminal history, gang affiliation, and reputation reflect poorly on his
character.
[39] Zavala argues that incarceration will result in an undue hardship on his family,
particularly his five children. We note that “[m]any persons convicted of
crimes have dependents, and absent special circumstances showing that the
hardship to them is ‘undue,’ a sentencing court does not abuse its discretion by
not finding this to be a mitigating factor.” Benefield v. State, 904 N.E.2d 230,
247 (Ind. Ct. App. 2009), trans. denied.
[40] Here, Zavala has sole custody of only one of his five children and the other four
children live with their mothers. Zavala admitted that he has not seen his two
oldest children in over a year and sees his other two children a couple of times
each year. Zavala is $7,000.00 in arrears on child support payments for his two
oldest children. Additionally, Zavala and his son live with his parents and
sister. Zavala’s son could continue to live in the same home with Zavala’s
family, with Zavala’s parents caring for him during Zavala’s short period of
incarceration in the Department of Correction. We conclude that these
circumstances do not rise to the level of undue hardship.
[41] Next, Zavala attempts to place his character in a positive light due to his pre-
sentencing rehabilitation. His positive reports, while admirable, do not support
an argument that his sentence is too harsh, and, therefore, inappropriate. In
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exchange for his plea, the State dismissed two counts against him, and the trial
court sentenced Zavala within the sentencing cap provided for in the plea
agreement. His lenient sentence for his serious and reckless criminal conduct is
not too harsh.
[42] “[M]any people are gainfully employed such that this would not require”
employment being noted as a mitigating factor. Newsome v. State, 797 N.E.2d
293, 301 (Ind. Ct. App. 2003). Zavala’s steady self-employment does not mean
that he should not be punished for the serious crime he committed against
Tucker.
[43] We disagree with Zavala’s argument that the trial court erred as a matter of law
by ordering a period of incarceration. He claims that the “trial court was
apparently under the impression that because an individual was shot, [] the trial
court was compelled to sentence Zavala to a period of incarceration.”
Appellant’s Br. p. 15. He supports his argument by lifting the trial court’s
comment “[i]t’s unfortunate that we can’t do that” from the oral sentencing
statement. Id. (citing Tr. Vol. II, p. 75). Placed in context, the trial court
commented that the trial court felt compelled to sentence Zavala to a period of
incarceration because it could not disregard the extremely serious nature of the
offense Zavala committed, even when factoring in his pre-sentencing efforts at
rehabilitation.
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[44] Based on the foregoing, we find that Zavala has not met his burden of
persuading us that his sentence is inappropriate in light of the nature of the
offense and the character of the offender.
Conclusion
[45] We conclude that the trial court did not abuse its discretion in sentencing
Zavala, nor is his sentence inappropriate in light of the nature of the offense and
the character of the offender.
[46] Affirmed.
Riley, J., and Bradford, J., concur.
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