FOR PUBLICATION
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
MATTHEW JON McGOVERN
Evansville, Indiana
STEVE CARTER
Attorney General of Indiana
MAUREEN ANN BARTOLO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEREK SCOTT GEIGER,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 31A01-0610-CR-427
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger D. Davis, Judge
Cause No. 31D01-0508-FB-737
May 23, 2007
OPINION - FOR PUBLICATION
BAKER, Chief Judge
Appellant-defendant Derek Scott Geiger appeals his convictions and sentences for two
counts of Impersonating a Public Servant, 1 a class D felony, two counts of Criminal
Confinement, 2 a class B felony, two counts of Criminal Recklessness, 3 a class D felony, and
one count of Unlawfully Pointing a Firearm, 4 a Class A misdemeanor. Specifically, Geiger
argues that (1) the State violated the trial court’s pretrial discovery order, thereby denying
him a fair trial, (2) his two convictions for impersonating a public servant were improper, (3)
the trial court erred when it ordered his twelve-year sentence to run consecutively to a
sentence imposed by the Floyd County trial court, and (4) his sentence is inappropriate in
light of the nature of the offenses and his character. Concluding that Geiger can only be
convicted of one count of impersonating a public servant pursuant to Indiana Code section
35-44-2-3 but finding no other error, we direct the trial court to vacate Geiger’s conviction
for Count II and affirm the judgment of the trial court in all other respects.
FACTS 5
On July 22, 2005, James and Beth Skaggs left their home in Harrison County at
approximately 5:00 a.m. to drive to work. As they exited their driveway, Beth observed a
Land Rover in the distance, which she considered unusual because of the early hour and the
1
Ind. Code § 35-44-2-3.
2
Ind. Code § 35-42-3-3.
3
I.C. § 35-42-2-2.
4
Ind. Code § 35-47-4-3.
5
We held oral argument at the Switzerland County Courthouse in Vevay on May 2, 2007. We commend
counsel for their excellent written and oral presentations, and we thank the Switzerland Middle School staff
and students for their presence and hospitality. We also thank the Honorable John Mitchell of the Switzerland
Superior Court and his staff for the generous accommodations and for permitting us to utilize the court’s
facilities.
2
couple’s rural location. As the vehicle erratically approached the Skaggses, Beth said,
“Honey, pull over and let these idiots pass us.” Tr. p. 314. James and Beth immediately
noticed that the vehicle had flashing “small blue and red lights” in the front windshield, and
Beth told James, “I bet it’s police officers.” Id. James pulled over to the side of the road and
two men with firearms exited the Land Rover, quickly approached the Skaggses’ vehicle, and
yelled, “Get out of the f*cking car. Get out of the f*cking car now.” Id. at 315. Two other
men remained near the Land Rover.
As the Skaggses exited their vehicle, Geiger approached James, pointed a ninemillimeter Glock handgun at him, told him that the men were with the “narcotics drug force,”
and alerted him that he and his wife were under suspicion for “liv[ing] in a known meth
house.” Id. at 330. Geiger, who was wearing a shirt displaying a police logo, proceeded to
frisk James. Meanwhile, the man near Beth asked for her identification and bankcard, and
both men searched Beth’s bag and the vehicle’s glove box. Suddenly, a man near the Land
Rover who appeared to be on a police radio said, “Come on, let’s go. We got a call. Let’s
go, let’s go, let’s go.” Id. at 332. The four men immediately returned to the Land Rover and
drove away.
Although Beth and James were both distressed, they did not immediately call the
police because they believed that the four men had been police officers. However, when
Beth told her brother-in-law, Jim Sleucher, about the incident, Sleucher contacted the
Harrison County Police Department and learned that there had not been a police stop near the
3
Skaggses’ home that morning. Officer Michael Kurz spoke to the Skaggses, and on July 31,
2005, James selected Geiger’s photograph from a photographic array. James identified
Geiger as the man who pointed the gun at him and frisked him during the incident.
As the police began to investigate, they learned that police stops had also been feigned
in Floyd County and Clark County that same day. 6 Floyd County Police Department Officer
Thad Neafus obtained a search warrant for Geiger’s residence and his vehicle, a Land Rover.
A search of Geiger’s residence uncovered red and blue strobe lights and copies of two books
commonly read by law enforcement officers at the Indiana State Police Academy. A search
of Geiger’s vehicle uncovered a loaded nine-millimeter Glock handgun.
On July 31, 2005, Floyd County Police Department Officer Russell Wyatt conducted
an interview with Geiger. After receiving the Miranda 7 warnings and signing a waiver,
Geiger admitted that he had been present during the Harrison County incident and that he
was the owner of the Glock handgun that had been brandished during the encounter.
However, Geiger insisted that he had remained in the backseat of the Land Rover during the
incident. Geiger identified the three other men and told Officer Wyatt where he could find
the police gear that the men had worn.
On August 22, 2005, the State charged Geiger with Counts I and II—class D felony
impersonating a public servant—Counts III and IV—class B felony criminal confinement—
6
Geiger pleaded guilty to class B felony armed robbery in Floyd County on June 29, 2006, and the Floyd
County trial court sentenced him to ten years imprisonment with four years suspended to probation. Geiger
was charged with class B felony armed robbery and class D felony fraud in Clark County, and those charges
were still pending at the time of Geiger’s trial and sentencing in Harrison County.
7
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Counts V and VI—class A misdemeanor unlawfully pointing a firearm—and Counts VII and
VIII—class D felony criminal recklessness.
Geiger filed a motion for discovery and production of evidence on November 16,
2005, requesting, among other items, all recorded statements that Geiger had made to the
police. The trial court granted Geiger’s motion that same day. The State filed a notice of
compliance on December 1, 2005, which stated that if the State found “additional
information or facts which are subject to or covered by such order, the State will promptly
notify the court and Defense Attorney [of] its existence thereof.” Appellant’s App. p. 31.
On Friday, August 11, 2006—four days before the jury trial was scheduled to begin—
the prosecutor received a videotape of Geiger’s July 31, 2005, statement to the Floyd County
Police Department (the videotape). It was the first time that the prosecutor had seen the
videotape, and he immediately contacted Geiger’s defense counsel, Nicolas Haverstock, and
invited him to view the videotape that afternoon. Haverstock declined the invitation.
On August 11, 2006, Susan Schultz—who had represented Geiger in the Floyd
County litigation—entered an appearance as co-counsel for Geiger. On August 15, 2006, the
trial court held a hearing regarding pending motions in limine, including Geiger’s motion to
exclude the videotape because the State had not produced it earlier. After hearing evidence
from both parties, the trial court ruled that the portions of the videotape regarding the
Harrison County incident were admissible.
A jury trial was held on August 15, 2006, and the jury acquitted Geiger of the class A
misdemeanor unlawfully pointing a firearm at Beth charge but found him guilty of the seven
remaining charges. On September 5, 2006, the trial court merged Counts VI, VII, and VIII
5
with Counts I, II, and III, sentenced Geiger to an aggregate term of twelve years
imprisonment for the offenses, and ordered that the sentence run consecutively to the
sentence imposed by the Floyd County trial court. Geiger now appeals.
DISCUSSION AND DECISION
I. The Videotape
Geiger argues that the State violated a pretrial discovery order by not producing a
copy of the videotape containing his statement to the Floyd County Police Department.
Specifically, Geiger argues that the State’s discovery violation deprived him of the right to a
fair trial and that the violation was not harmless error.
The trial court has broad discretion in dealing with discovery violations and may be
reversed only for an abuse of discretion that involves clear error and resulting prejudice.
Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). In the context of discovery violations, a
continuance is the usual remedy, and “[e]xclusion of the evidence is an extreme remedy and
is to be used only if the State’s actions were deliberate and the conduct prevented a fair trial.”
Id. Where a continuance may be an appropriate remedy, failure to request a continuance
constitutes a waiver of any alleged error pertaining to noncompliance with the trial court’s
discovery order. Fleming v. State, 833 N.E.2d 84, 91 (Ind. Ct. App. 2005).
Regarding appellate review of discovery disputes, our Supreme Court has provided
that
[a] trial judge has the responsibility to direct the trial in a manner that
facilitates the ascertainment of truth, ensures fairness, and obtains economy of
time and effort commensurate with the rights of society and the criminal
defendant. Where there has been a failure to comply with discovery
procedures, the trial judge is usually in the best position to determine the
6
dictates of fundamental fairness and whether any resulting harm can be
eliminated or satisfactorily alleviated. . . . The trial court must be given wide
discretionary latitude in discovery matters since it has the duty to promote the
discovery of truth and to guide and control the proceedings, and will be
granted deference in assessing what constitutes substantial compliance with
discovery orders. Absent clear error and resulting prejudice, the trial court’s
determinations as to violations and sanctions should not be overturned.
Fosha v. State, 747 N.E.2d 549, 553-54 (Ind. 2001).
We first note that Geiger does not argue that the State intentionally withheld the
videotape during discovery. To the contrary, the evidence shows that as soon as the
videotape was discovered, the prosecutor contacted Geiger’s attorney and invited him to view
the videotape, but Haverstock declined the invitation. And while a continuance is the typical
remedy for an alleged discovery violation, Geiger did not request a continuance and, instead,
argued “[w]e don’t want to do that in this case, and we don’t believe we should have to do
that in this case.” Tr. p. 209. Because Geiger did not avail himself of the opportunity to
view the videotape and did not request a continuance, he is unable to show prejudice and has
waived his argument regarding the alleged discovery violation.
II. Multiple Convictions for Impersonating a Public Servant
Geiger argues that his two convictions for class D felony impersonating a public
servant violate the principle of double jeopardy as set forth by the common law and Article I,
section 14 of the Indiana Constitution. Specifically, Geiger argues that, under these
circumstances, Indiana Code section 35-44-2-3 permits Geiger to be convicted only once for
impersonating a public servant.
It is an issue of first impression whether the appropriate number of convictions for
impersonating a public servant turns on the number of victims to whom the defendant
7
misrepresents himself or, instead, on the number of occasions on which the defendant
engages in the unlawful conduct. Indiana Code section 35-44-2-3 provides:
A person who falsely represents that the person is a public servant, with intent
to mislead and induce another person to submit to false official authority or
otherwise to act to the other person’s detriment in reliance on the false
representation, commits impersonation of a public servant, a Class A
misdemeanor. However, a person who falsely represents that the person is:
(1) a law enforcement officer; or
(2) an agent or employee of the department of state revenue, and
collects any property from another person;
commits a Class D felony.
A question of statutory interpretation is a matter of law, and we are neither bound by
nor are we required to give deference to the trial court’s interpretation. Townsend v. State,
793 N.E.2d 1092, 1094 (Ind. Ct. App. 2003). When interpreting a statute, we look to the
express language of the statute and the rules of statutory construction. Id. However, we may
not interpret a statute that is clear and unambiguous on its face. Lampitok v. State, 817
N.E.2d 630, 643 (Ind. Ct. App. 2004). Rather, the words of the statute are to be given their
plain, ordinary, and usual meaning unless a contrary purpose is clearly shown by the statute
itself. Id. We consider the language employed in a statute to have been used intentionally.
Id.
As we held in Kelly v. State, there are two distinct types of criminal statutes: (1)
result-oriented statutes intended to criminalize activity where a “bad result” must occur for
the defendant to be convicted of the crime, and (2) conduct-oriented statutes intended to
criminalize “activity likely to produce bad results if not nipped in the bud,” which do not
require a victim to actually suffer a bad result for the defendant to be convicted. 527 N.E.2d
8
1148, 1154 (Ind. Ct. App. 1988), summarily aff’d by Kelly v. State, 539 N.E.2d 25 (Ind.
1989). Multiple convictions may be sustained pursuant to a result-oriented criminal statute if
the defendant’s conduct involved multiple victims. Scuro v. State, 849 N.E.2d 682, 686 (Ind.
Ct. App. 2006) (identifying the murder and manslaughter statutes as result-oriented because
causing the death or injury of another person is part of the definition of the crime), trans.
denied. However, a defendant may only be convicted once for a violation of a conductoriented statute even if his actions affect multiple victims because the harm to the victims is
not included in the statutory definition of the crime. Id. at 687.
In Scuro, we examined the dissemination of matter harmful to minors statute in light
of Kelly and determined that the statute was conduct-oriented because “it focuses solely on
the display of the harmful matter rather than any specific types of harm it may cause to the
minor—or minors—viewing the matter.” Id. Thus, even though Scuro had shown offensive
material to multiple children, he could only be convicted once pursuant to the statute because
there was only one occurrence of dissemination. Id.
After analyzing the impersonating a public servant statute, we conclude that, as
drafted, 8 Indiana Code section 35-44-2-3 is a conduct-oriented statute that focuses on the
defendant’s act of impersonating a public servant and his intent to mislead another person.
The statute does not require the victim to actually believe or be induced by the
8
We note that if the General Assembly wishes to redraft Indiana Code section 35-44-2-3 to provide for
multiple convictions for one occurrence of impersonating a public servant, it is within its prerogative to do so.
See, e.g., Scuro, 849 N.E.2d at 687 n.8 (noting that the legislature amended the driving while intoxicated
statute in light of our holding in Kelly). However, unless and until the legislature redrafts this statute, we
must conclude that a defendant may not be convicted of more than one count of impersonating a public
servant based on one occurrence, even if his conduct involved more than one victim.
9
misrepresentation to act to his detriment, and we have previously held that a defendant’s
conviction for impersonating a public servant can be sustained regardless of whether the
victim actually believed the misrepresentation. Poole v. State, 559 N.E.2d 1214, 1216 (Ind.
Ct. App. 1990). Therefore, we hold that a defendant may not be convicted of more than one
count of impersonating a public servant pursuant to Indiana Code section 35-44-2-3 based on
the same occurrence, even if there are multiple victims. Consequently, we direct the trial
court to vacate Geiger’s conviction on Count II.
III. Sentencing
Before Geiger’s trial in Harrison County, Geiger pleaded guilty to armed robbery in
Floyd County and that trial court sentenced him to an aggregate term of ten years
imprisonment. In the case before us, the Harrison County trial court sentenced Geiger to
twelve years imprisonment and ordered that the sentence run consecutively to the Floyd
County sentence. On appeal, Geiger raises three arguments: (1) that the trial court did not
have the authority to order his sentence to run consecutively to the Floyd County sentence,
(2) that the enhanced, consecutive sentence violates our holding in Robertson v. State, 860
N.E.2d 621 (Ind. Ct. App. 2007), trans. granted, and (2) that his sentence is inappropriate in
light of the nature of the offenses and his character.
Before addressing the merits of Geiger’s argument, we observe that on April 25, 2005,
the General Assembly amended Indiana’s felony sentencing statutes, which now provide that
the person convicted is to be sentenced to a term within a range of years, with an “advisory
sentence” somewhere between the minimum and maximum terms. See Ind. Code §§ 35-502-3 to -7. When determining the sentence to impose on a defendant, the trial court “may
10
consider” certain enumerated aggravating and mitigating circumstances in addition to other
matters not listed in the statute. Ind. Code §§ 35-38-1-7.1(a) to -7.1(c). Furthermore, the
legislature provided that a trial court “may impose any sentence that is . . . authorized by
statute . . . regardless of the presence or absence of aggravating circumstances or mitigating
circumstances.” I.C. § 35-38-1-7.1(d). Here, Geiger committed the crimes and was
sentenced after the April 2005 amendment of the sentencing statutes; thus, we will apply the
amended versions thereof.
A. Consecutive, Enhanced Sentences
1. Authority to Impose Consecutive Sentences
Geiger argues that the trial court did not have the authority to impose his twelve-year
sentence consecutively to the Floyd County sentence. Specifically, Geiger argues that it is
well settled that the trial court must identify an aggravating factor in order to impose
consecutive sentences, Gleaves v. State, 859 N.E.2d 766, 770-71 (Ind. Ct. App. 2007) (citing
Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000)), but that the only aggravating factor that
the trial court identified was Geiger’s prior criminal history, which consisted solely of the
Floyd County conviction. Geiger argues that the trial court erred because it “found the
[Floyd County conviction] as an aggravating circumstance in order to run the sentences in
this cause consecutive[ly] to the same [Floyd County conviction].” Appellant’s Br. p. 23
(emphasis added).
Sentencing determinations are within the discretion of the trial court. Fuller v. State,
852 N.E.2d 22, 26 (Ind. Ct. App. 2006), trans. denied. Indiana Code section 35-50-1-2(c),
provides, in relevant part, that
11
the court shall determine whether terms of imprisonment shall be served
concurrently or consecutively. The court may consider the:
(1) aggravating circumstances in IC 35-38-1-7.1(a); and
(2) mitigating circumstances in IC 35-38-1-7.1(b);
in making a determination under this subsection. The court may order terms of
imprisonment to be served consecutively even if the sentences are not imposed
at the same time. However, except for crimes of violence, the total of the
consecutive terms of imprisonment . . . to which the defendant is sentenced for
felony convictions arising out of an episode of criminal conduct shall not
exceed the advisory sentence for a felony which is one (1) class of felony
higher than the most serious of the felonies for which the person has been
convicted.
(Emphasis added).
By arguing that the trial court was required to find an aggravating factor, Geiger
implies that that the Harrison and Floyd County offenses were a single episode of criminal
conduct. Indiana Code section 35-50-1-2 defines “episode of criminal conduct” as “offenses
or a connected series of offenses that are closely related in time, place, and circumstance.”
We have previously held that “[w]here a complete account of a crime can be given without
referring to the other offense, the offenses are not a single episode of criminal conduct.”
Hope v. State, 834 N.E.2d 713, 716 (Ind. Ct. App. 2005). Because the Harrison County
offenses can be described without any reference to the events that transpired in the other
counties, the State argues that the trial court properly imposed its twelve-year sentence
consecutively to the Floyd County sentence. See Reynolds v. State, 657 N.E.2d 438, 441
(Ind. Ct. App. 1995) (holding that a trial court did not abuse its discretion by imposing
consecutive sentences on a defendant who committed burglaries at three separate homes on
the same day).
12
We find that the offenses Geiger committed in Harrison, Floyd, and Clark counties did
not constitute a single episode of criminal conduct because a complete account of each crime
can be given without referring to the other offenses. While the three criminal episodes did
occur on the same day, each offense took place at a different time and in a different location.
In fact, we are unable to extensively discuss the circumstances of the Floyd County or Clark
County offenses because the only information that we have regarding those crimes stems
from the presentence investigation report in this case. The independent nature of each of
these offenses leads us to conclude that they are not a single episode of criminal conduct.
It is apparent to us that Geiger had numerous opportunities throughout the day to stop
his behavior. In light of the independent natures of these offenses, we do not find that the
trial court abused its discretion by ordering Geiger’s sentence to run consecutively to the
Floyd County sentence because it was reasonable for the trial court to conclude that Geiger
should not benefit from the time served in the Floyd County offense as he served his sentence
in the Harrison County offense. Geiger’s argument to the contrary fails.
2. Propriety of Enhanced, Consecutive Sentence
Alternatively, Geiger argues that Indiana’s new sentencing scheme only empowers a
trial court to impose a consecutive sentence if it imposes the advisory sentence for that crime.
Here, the trial court imposed an enhanced twelve-year sentence for both of Geiger’s class B
felony criminal confinement convictions, and Geiger argues that the trial court only had the
authority to order consecutive terms if it imposed the advisory ten-year sentence for each
13
conviction. 9 Geiger directs us to Indiana Code section 35-50-2-1.3(c), which provides, in
relevant part:
In imposing consecutive sentences in accordance with I.C. 35-50-1-2 . . . a
court is required to use the appropriate advisory sentence in imposing a
consecutive sentence or an additional fixed term. However, the court is not
required to use the advisory sentence in imposing the sentence for the
underlying offense.
Geiger argues that the plain language of this statute requires the trial court to impose
“consecutive advisory sentences [and, in] this case, the trial court usurped its authority by
imposing consecutive enhanced sentences.” Appellant’s Br. p. 25 (emphases in original).
Geiger’s argument highlights a split of authority on our court. In light of the amended
sentencing statutes, our court has reached various conclusions regarding the interaction
between Indiana Code sections 35-50-1-2(c) and -1.3(c). In White v. State, we held:
Indiana Code § 35-50-2-1.3 instructs: “In imposing consecutive sentences in
accordance with IC 35-50-1-2[,] a court is required to use the appropriate
advisory sentence in imposing a consecutive sentence[.]” We conclude that
when the General Assembly wrote “appropriate advisory sentence,” it was
referring to the total penalty for “an episode of criminal conduct,” which,
except for crimes of violence, is not to exceed “the advisory sentence for a
felony which is one (1) class of felony higher than the most serious of the
felonies for which the person has been convicted.” See Ind. Code § 35-50-12(c). In other words, the advisory sentence for a felony which is one class of
felony higher than the most serious of the felonies for which the person has
been convicted is the “appropriate advisory sentence” for an episode of nonviolent criminal conduct. Indiana Code § 35-50-1-2 in no other way limits the
ability of a trial court to impose consecutive sentences. In turn, Indiana Code
§ 35-50-2-1.3, which references Indiana Code § 35-50-1-2, imposes no
additional restrictions on the ability of trial courts to impose consecutive
sentences.
9
The trial court also imposed an enhanced twenty-two month sentence for Geiger’s two impersonating a
public servant convictions, and the advisory sentence for a class D felony is eighteen months. I.C. § 35-50-27. Geiger does not specifically challenge the trial court’s imposition of this enhanced sentence.
14
849 N.E.2d 735, 743 (Ind. Ct. App. 2006), trans. denied.
In Robertson, a separate panel of our court rejected the White analysis and, instead,
held “that the advisory sentencing statute, IC 35-50-2-1.3, is clear and unambiguous and
imposes a separate and distinct limitation on a trial court’s ability to deviate from the
advisory sentence for any sentence running consecutively.” 860 N.E.2d at 625, trans.
granted. The Robertson court expressed its concern with the White analysis:
Our concern with the analysis in White is that (1) it renders the language in IC
35-50-2-1.3 surplusage since the consecutive sentencing statute, IC 35-50-1-2,
clearly limits the total of the consecutive sentences for non-violent offenses to
the advisory sentence for the next highest class of felony; and (2) nothing in
the advisory sentencing statute, IC 35-50-2-1.3, limits its application to nonviolent offenses. Although the White decision argues that the legislature could
not have intended the results the statute is capable of generating, the argument
is moot “[w]hen the language of the statute is clear and unambiguous.” 849
N.E.2d at 742-43.
Robertson, 860 N.E.2d at 624-25 (internal citation omitted). In light of its holding, the
Robertson court remanded the case to the trial court with instructions that it reduce
Robertson’s enhanced, consecutive sentence to the advisory sentence for his crime.
Another panel of our court recently denounced the Robertson panel’s interpretation
and, instead, followed the White panel’s interpretation. Barber v. State, 863 N.E.2d 1199,
1210 (Ind. Ct. App. 2007). Specifically, the Barber panel held that
Indiana Code § 35-50-2-1.3 serves another very important purpose.
In the wake of Blakely v. Washington, 542 U.S. 296 (2004), and Smylie v.
State, 823 N.E.2d 679 (Ind. 2005), our legislature transformed Indiana’s
sentencing scheme from a presumptive scheme to an advisory scheme. Under
the former presumptive scheme, a trial court was required to impose the
“presumptive” sentence for a felony conviction unless the court found
aggravating circumstances to enhance the sentence or mitigating circumstances
to reduce the sentence. Under the new advisory scheme, trial courts are
15
generally not required to use an advisory sentence. See I.C. § 35-50-2-1.3
(“Except as provided in subsection (c), a court is not required to use an
advisory sentence.”). Because an advisory sentence is in most cases exactly
that—advisory—the legislature included subsection (c) of Indiana Code § 3550-2-1.3 to remind Indiana’s trial courts of those statutory provisions that do
require the “use” of an advisory sentence[, in relevant part,] in imposing
consecutive sentences in accordance with Indiana Code § 35-50-1-2 . . . . We
acknowledge that nothing in Indiana Code § 35-50-2-1.3(c) limits its
application to any specific subsections of Indiana Code §§ 35-50-1-2, 35- 502-8, and 35-50-2-14, but each of those statutes only includes one subsection
that refers to advisory sentences.
Id. at 9-10 (emphases in original).
We are persuaded that the better analysis is that set forth in White and Barber. When
we read Indiana Code section 35-50-2-1.3 in conjunction with section 35-50-1-2, it is
apparent that the reference to the “appropriate advisory sentence” was meant to apply to
situations involving the single episode of criminal conduct limitation on consecutive
sentencing. This statute was not intended to place any other limits on a court’s ability to
impose consecutive sentences. Contrary to the conclusion of the Robertson court, we do not
believe that this interpretation renders the statutory language to be surplusage; rather, it
provides clarification regarding what advisory sentence is to be used when the single episode
of criminal conduct limitation is applicable. We also note that a troubling consequence of the
Robertson analysis would be that trial courts would be prohibited from imposing enhanced,
consecutive sentences on the worst offenders. That could not have been the intent of our
legislature. Consequently, we find that the trial court herein had the authority to impose
enhanced, consecutive sentences on Geiger, and it did not err by doing so.
B. Appropriateness
16
Geiger argues that his sentence is inappropriate in light of the nature of the offenses
and his character. Specifically, Geiger argues that he did not physically harm the Skaggses
and that his only other criminal history stems from the Floyd County conviction.
Our court has the constitutional authority to revise a sentence 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.” Ind. Appellate Rule 7(B).
However, sentence review under Appellate Rule 7(B) is very deferential to the trial court’s
decision, Martin v. State, 784 N.E.2d 997, 1013 (Ind. Ct. App. 2003), and we refrain from
merely substituting our judgment for that of the trial court, Foster v. State, 795 N.E.2d 1078,
1092 (Ind. Ct. App. 2003).
Regarding the nature of the offenses, Geiger accosted two innocent people outside of
their home as they were driving to work. Geiger’s vehicle had red and blue lights in the
windshield, and he wore a shirt displaying a police logo. Geiger forced the Skaggses to exit
their car, pointed a firearm at James throughout the encounter, and frisked James while
feigning the police stop. While it may be true that Geiger did not physically harm either Beth
or James, his unlawful actions still show a clear disregard for the Skaggses’ emotional wellbeing.
Therefore, we do not find the nature of the Geiger’s offenses to aid his
inappropriateness argument.
Turning to Geiger’s character, his actions on July 22, 2005, show a clear disregard for
the law as well as his penchant to terrorize innocent people for his own entertainment. The
ease with which Geiger tormented the Skaggses and then proceeded on a three -county crime
spree demonstrates his less-than-virtuous character. It is clear that Geiger did not consider
17
the impact that his criminal actions would have on his young daughter, which demonstrates
his immaturity and self-centered nature. Therefore, we cannot conclude that Geiger’s
sentence is inappropriate in light of the nature of the offenses and his character.
The trial court is directed to vacate Geiger’s conviction for Count II, and the judgment
of the trial court is affirmed in all other respects.
BAILEY, J., and MAY, J., concur.
18
