Court of Appeals of Indiana | Memorandum Decision 20A-CR-916 | November 19, 2020 Page 1 of 7

MEMORANDUM DECISION

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

Andrew B. Arnett

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Steven Hosler

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John D. Messmore,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 19, 2020

Court of Appeals Case No.

20A-CR-916

Appeal from the Johnson Superior 

Court

The Honorable Peter Nugent, 

Judge

Trial Court Cause No.

41D02-1901-F6-598

Baker, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-916 | November 19, 2020 Page 2 of 7

Statement of the Case

[1] John D. Messmore was convicted of one count of Level 6 felony theft1and now 

appeals his 730-day sentence pursuant to our review authorized under Indiana 

Appellate Rule 7(B). We affirm.

Facts and Procedural History

[2] On September 18, 2019, Robert Chastain, an asset protection associate for the 

J.C. Penney store at the Greenwood Mall, received a report of suspicious 

activity at the fine jewelry department. Chastain went to that part of the store 

and observed Messmore standing there and then putting two earring cases 

down on a table before exiting the store. Chastain caught up to Messmore in 

the mall parking lot and they returned to the store to search for possible missing 

merchandise. After returning to the store, Michael Payton, another loss 

prevention officer who was assisting, noticed Messmore remove items from his 

crotch area and place them on a nearby table at the entrance to the store.

[3] The earrings were retrieved and Messmore signed an acknowledgement that he 

took the earrings from J.C. Penney without permission. Messmore admitted 

that he took a Xanax pill before entering the store for the purpose of taking the 

earrings without paying. Officer Joseph Taylor of the Greenwood Police 

Department received a “rundown of [Messmore’s] testimony, what he said,” 

1

Ind. Code § 35-43-4-2(a)(1)(c) (2019).
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Tr. Vol. 2, p. 128, from Payton, and advised Messmore of his rights before 

questioning him. At that time, Messmore did not deny the version of events 

and statements as related by Payton. 

[4] On September 25, 2019, the State charged Messmore with Level 6 felony theft, 

alleging that he had a prior conviction for theft. At trial, Messmore admitted 

that he took a Xanax pill before entering the store for the purpose of taking the 

earrings without paying. However, he denied taking the earrings.

[5] On December 11, 2019, a jury found Messmore guilty of theft. He had 

previously stipulated to having a prior conviction, elevating his offense to a 

Level 6 felony. The trial court found Messmore’s criminal history was an 

aggravating circumstance. As for mitigating circumstances, the trial court 

found that Messmore was remorseful and was cooperative with police. After 

finding that the aggravating factors outweighed the mitigating factors, the trial 

court sentenced Messmore to 730 days executed. 

Discussion and Decision

[6] Messmore claims the trial court erred in sentencing by abusing its discretion, 

stating that “not enough weight [was] given to Messmore’s mitigating factors,”

and that the trial court “did not really look at the nature of the offense,” 

Appellant’s Br. p. 7, blending two different standards of review. We observe 

that since Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 

875 N.E.2d 218, was handed down, a sentencing court cannot abuse its 

discretion by failing to properly weigh aggravating and mitigating factors. 
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However, the essence of Messmore’s legal argument is that the sentence was 

inappropriate in light of the nature of the offense and the character of the 

offender. We discuss that argument now. 

[7] Article 7, sections 4 and 6 of the Indiana Constitution “authorize[] independent 

appellate review and revision of a sentence imposed by the trial court.” 

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006) (quoting Buchanan v. State, 

767 N.E.2d 967, 972 (Ind. 2002)). “Indeed even where the trial court has been 

meticulous in following the proper procedure in imposing a sentence, we may 

exercise our authority under Appellate Rule 7(B) to revise a sentence that we 

conclude is inappropriate.” Childress, 848 N.E.2d at 1079-80 (quoting Hope v. 

State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005)) (internal quotation marks 

omitted). A defendant bears the burden of persuading us that his sentence is 

inappropriate. Childress, 848 N.E.2d at 1080. 

[8] We independently examine the nature of Messmore’s offense and his character 

under Rule 7(B) with substantial deference to the trial court’s sentence. See

Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015). Such deference to the trial 

court’s judgment should prevail unless overcome by compelling evidence 

portraying in a positive light the nature of the offense (such as accompanied by 

restraint, regard, and lack of brutality) and the defendant’s character (such as 

substantial virtuous traits or persistent examples of good character). Stephenson 

v. State, 29 N.E.3d 111, 122 (Ind. 2015). “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 test is whether the sentence is 
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‘inappropriate.’” Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), 

trans. denied. The principal role of appellate review should be to attempt to 

leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). 

[9] Concerning the nature of the offense “the advisory sentence is the starting point 

the legislature has selected as an appropriate sentence for the crime 

committed.” Kunberger v. State, 46 N.E.2d 966, 973 (Ind. Ct. App. 2015). 

Messmore was charged with theft, a Class A misdemeanor enhanced to a Level 

6 felony because of his prior theft conviction. The sentencing range for a Level 

6 felony is a term of between six months and two and a half years, with an 

advisory sentence of one year. Ind. Code § 35-50-2-7(b) (2019). Messmore 

received a two-year sentence to be served consecutively to a sentence in a 

separate action.

[10] Generally, the nature of the offense is found in the details and circumstances of 

the commission of the offense and the defendant’s participation. Croy v. State,

953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Here, the nature of Messmore’s 

offense is that he took earrings from J.C. Penney at the Greenwood Mall 

without paying or permission. He took a Xanax, a controlled substance, prior 

to entering the store to do so and committed the present offense while he was 

on probation for a prior theft. Messmore’s sentence is not the maximum 

sentence, which was an option, but which typically is reserved for the worst of 

the worst, see Simmons v. State, 962 N.E.2d 86, 92-93 (Ind. Ct. App. 2011); 

rather, it was slightly enhanced. Although the trial court correctly found that 
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Messmore was remorseful and cooperated with police, Messmore has not cast 

the nature of the offense in a positive light such that a downward revision of his 

sentence would be appropriate. 

[11] When considering a defendant’s character for purposes of Appellate Rule 7(B) 

analysis, a defendant’s criminal history is one factor. Garcia v. State, 47 N.E.3d 

1249, 1251 (Ind. Ct. App. 2015), trans. denied. “A defendant’s life and conduct 

are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531, 539 

(Ind. Ct. App. 2018). The significance of a criminal history varies based on the 

gravity, nature, and number of prior offenses in relation to the current offense. 

Id. Yet, 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), trans. denied. 

[12] Here, Messmore and the State proceeded to sentencing without the benefit of a 

pre-sentence investigation report. However, it was established at the sentencing 

hearing that Messmore has a criminal history including: (1) a March 21, 2011 

conviction for Class B felony dealing in a schedule I controlled substance; (2) a 

July 20, 2012 conviction for conversion; (3) a November 7, 2018 conviction for 

Level 6 felony theft; and (4) a June 26, 2019 conviction for theft. Messmore 

was on probation for his conviction of theft at the time he committed this 

offense. 

[13] “A single aggravator is sufficient to support an enhanced sentence.” Williams v. 

State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Messmore’s criminal history 

is significant because the nature of his prior offenses is similar to his conduct 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-916 | November 19, 2020 Page 7 of 7

here. Messmore has failed to establish substantial virtuous traits or persistent 

examples of good character such that his sentence warrants a downward 

revision.

Conclusion

[14] For the reasons stated above, we affirm the trial court’s judgment.

[15] Affirmed.

Vaidik, J., and Mathias, J., concur.