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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: RANDY M. FISHER Deputy Public Defender Fort Wayne, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
AARON L. GOLDSBY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 02A05-0701-CR-17

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr., Judge Cause No.02D04-0606-FC-147

December 27, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Following a jury trial, Aaron Goldsby appeals his convictions and sentences for carrying a handgun without a license, a Class C felony; resisting law enforcement, a Class A misdemeanor; and public intoxication, a Class B misdemeanor. On appeal, Goldsby raises three issues, which we restate as 1) whether the trial properly admitted evidence over Goldsby's objections; 2) whether the trial court properly sentenced Goldsby; and 3) whether Goldsby's sentence is inappropriate in light of the nature of the offenses and his character. We affirm, concluding that although the trial court abused its discretion in admitting evidence, the errors were harmless; that the trial court properly sentenced Goldsby; and that Goldsby's sentence is not inappropriate. Facts and Procedural History In the early morning hours of June 18, 2006, Officer Scott Berning of the Fort Wayne Police Department was dispatched to investigate a report from a 911 caller. The caller reported that two black men wearing hooded sweatshirts and ski masks had knocked on her door. When Officer Berning approached the area, he observed two men matching the description the caller had given. Officer Berning approached the men and requested that they stop. One of the men, later identified as Eddie Wallace, complied with Officer Berning's request, but the other, later identified as Goldsby, continued walking. Officer Berning reiterated his request, but Goldsby did not comply. At that point, Officer Berning observed Goldsby place his hands in the pocket of his sweatshirt. Concerned that Goldsby might be

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armed, Officer Berning drew his gun and ordered Goldsby to stop and place his hands above his head. Goldsby removed his right hand from his pocket, but continued walking. While Officer Berning was ordering Goldsby to stop, Officer David Tinsley arrived on the scene and approached Goldsby. After initially walking away from Officer Tinsley, Goldsby stopped. Officer Tinsley grabbed Goldsby's right wrist, explained why he had stopped him, and told Goldsby he was going to conduct a pat-down search. Officer Tinsley observed that Goldsby "smelled very strongly of an alcoholic beverage" and "was unsteady on his feet." Transcript of Trial at 126. Before Officer Tinsley could conduct his search, Goldsby broke Officer Tinsley's grasp and ran past Officer Berning, who attempted to tackle Goldsby. As Officer Tinsley pursued, Goldsby again reached his hands into his sweatshirt pocket. Officer Tinsley caught up with Goldsby and pushed him against a parked vehicle. While the two struggled, Officer Tinsley heard a "metallic thunk" and "clatter" near his feet. Id. at 130. With Officer Berning's assistance, Officer Tinsley pinned Goldsby on the ground. Goldsby struggled, but relented when Officer Berning sprayed him several times with a chemical agent. Upon searching Goldsby, Officer Tinsley recovered a black ski mask. Officer Tinsley also recovered a handgun that was on the ground between the curb and the parked vehicle where he and Goldsby had struggled. The State charged Goldsby with carrying a handgun without a license, a Class C felony;1 resisting law enforcement, a Class A misdemeanor; and public intoxication, a Class B misdemeanor. At trial, Officers Berning and Tinsley testified to the events described

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above. Officer Berning also testified over three hearsay objections from Goldsby regarding the reason for his dispatch. The trial court instructed the jury twice that it should consider this testimony as proof of what Officer Berning did in response to receiving the dispatch and not for "the truth of it." Tr. of Trial at 92, 95. The trial court also admitted the ski mask over Goldsby's objection. The jury returned guilty verdicts on all counts and also found that Goldsby had a prior conviction of carrying a handgun without a license. Following the guilt phase of Goldsby's trial, the trial court conducted a sentencing hearing. At the sentencing hearing, Goldsby offered his youth as a mitigating factor and requested that the trial court sentence him to two years executed and two years suspended for all three convictions. After hearing arguments from counsel, the trial court made the following observations: I considered all the remarks of both counsel. Frankly, I did carefully consider [Goldsby's] young age and would note, in this particular case, I do not find it to be a mitigating circumstance. I have said in circumstances like this that I would almost consider it to be an aggravating circumstance, that a man of your age has been able to acquire the extraordinary criminal history that you have. If I am counting right, this is the fourth felony conviction at the young age of twenty years old. All of those were acquired after you were an adult it looks like, maybe not. But, what I'm looking at is, it says something about appears [sic] on back to a criminal orientation, but I don't see anything listed on the juvenile section here. Two carrying handguns. You have simply chosen to totally disregard. This isn't a piece of bad judgment. You've totally chosen to disregard society's rules about carrying guns and I just can't countenance that, as well as like I said, the lengthy record. Find that there are no aggravating circumstances

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