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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: LEANNA WEISSMANN Lawrenceburg, Indiana

FILED
Jan 23 2008, 8:48 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RANDOLPH AYERS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 69A01-0709-CR-424

APPEAL FROM THE RIPLEY CIRCUIT COURT The Honorable Carl Taul, Judge Cause No. 69C01-0605-FC-9

January 23, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Randolph Ayers appeals the sentence imposed following his plea of guilty to pointing a firearm at another person, as a class D felony.1 We affirm. ISSUE Whether Ayers' sentence is inappropriate pursuant to Indiana Appellate Rule 7(B). FACTS Ayers owned property in Ripley County. Ayers rented the property's residence to James and Mary Stout. On or about May 5, 2006, after a dispute with the Stouts regarding rent, Ayers went to the Stouts' residence and pointed a loaded rifle at them. The Stouts' children were at home during the incident. On May 5, 2006, the State charged Ayers with Count 1, intimidation, as a class C felony; and Count 2, pointing a firearm at another person, as a class D felony. On July 3, 2007, the State and Ayers entered into a plea agreement, whereby Ayers agreed to plead guilty to Count 2, with the trial court to determine the judgment of conviction. The State agreed to dismiss Count 1. The trial court ordered a presentence investigation report ("PSI"). According to the PSI, Ayers was convicted of class A misdemeanor operating while intoxicated in 1998. In 2001, Ayers was convicted of class D felony operating while intoxicated; the trial court converted this conviction to a class A misdemeanor. Approximately five

1

"A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded." Ind. Code

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