Court of Appeals of Indiana | Memorandum Decision 33A01-1608-CR-1884| March 17, 2017 Page 1 of 11

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

Frederick Vaiana

Voyles Zahn & Paul

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Garit Tuggle,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 17, 2017

Court of Appeals Case No.

33A01-1608-CR-1884

Appeal from the Henry Circuit 

Court

The Honorable Kit C. Dean Crane, 

Judge

Trial Court Cause No.

33C02-1509-F3-8

Crone, Judge.
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Case Summary

[1] Garit Tuggle appeals his twelve-year aggregate sentence for level 3 felony 

aggravated battery and level 6 felony criminal recklessness. He argues that the 

trial court abused its discretion in including one of the victim’s lost wages in its 

restitution order. He also contends that the trial court abused its discretion in 

sentencing him and that his sentence is inappropriate in light of the nature of 

his offenses and his character. We find no abuse of discretion in the restitution 

order or in sentencing. We also conclude that Tuggle has failed to carry his 

burden to show that his sentence is inappropriate. Therefore, we affirm

Facts and Procedural History

[2] One evening in September 2015, Tuggle had guests at his home, including 

his cousin Chandler Roberts, Vanessa Goebel, and Brittany Gosser. Tuggle 

was extremely intoxicated and got into a physical altercation with Roberts. 

Tuggle swung at Roberts and grabbed him by the throat. Roberts picked Tuggle

up and “slammed him.” Tr. at 66. Roberts and Goebel decided to leave. 

While Roberts was sitting in Goebel’s car, Tuggle was rummaging around 

inside his own car. Goebel heard Tuggle say something about retrieving his 

gun and shooting it. She decided to walk away, but she heard shots. Roberts 

also heard a “pop, pop, pop.” Id. at 68. Tuggle fired at least six shots from his 

handgun. One of the bullets hit Gosser just below her right knee, shattering her 

fibula. 
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[3] After firing a few shots, Tuggle walked over to Goebel’s car. Roberts got out of 

the car and looked Tuggle straight in the eye. Tuggle pointed his gun at 

Roberts’s head and then shot him in the left leg just inches from the femoral 

artery, breaking his femur. Roberts was in the hospital two days and required 

surgery to place a metal rod in his leg, but doctors were unable to remove all the

bullet fragments. Gosser also spent two days in the hospital, where doctors 

removed some of the bullet fragments from her leg, but at least twenty bullet 

and bone fragments remain. Gosser had to be fitted with a custom leg brace

that she cannot walk without. The bullet hit her peroneal nerve, causing

extensive nerve damage and loss of the use of her right foot. Gosser may 

undergo additional surgery, although it will not provide full use of her foot. She

was unable to work for five to six months.1 Id. at 48. At the time of sentencing, 

she was still experiencing pain.

[4] The State charged Tuggle with one count of level 3 felony aggravated battery 

against Roberts, one count of level 3 felony aggravated battery against Gosser,

and one count of level 6 felony criminal recklessness against Roberts.

2

 

Appellant’s App. at 4, 151-52. Pursuant to a plea agreement, Tuggle agreed to 

plead guilty to level 3 felony aggravated battery against Roberts and level 6 

felony criminal recklessness against Gosser. The State agreed to dismiss the 

 

1

 The State incorrectly claims that Gosser was unable to work for five to six weeks. Appellee’s Br. at 9.

2

 Tuggle and the State both incorrectly maintain that Tuggle was charged with one count of aggravated 

battery and two counts of criminal recklessness. Appellant’s Br. at 4; Appellee’s Br. at 5.
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third count. The plea agreement capped Tuggle’s sentence at twelve years but 

otherwise left sentencing open to the trial court’s discretion. 

[5] At the plea hearing, Gosser testified that she had moved to Indiana four days 

before the shooting. Prior to moving to Indiana, she had worked for Mentor 

Network for six years and expected to continue to work for them in Indiana, 

although she had not yet contacted them at the time of the shooting. Tr. at 54-

55. Specifically, Gosser testified, “I transferred my job out of state. I was able 

to transfer back but I hadn’t technically started yet.” Id. at 52. During her 

testimony, the State introduced Exhibit 1, a spreadsheet supplementing 

Gosser’s testimony regarding her claim of restitution against Tuggle. Gosser 

claimed restitution of $16,748.52, including $8320.00 in lost wages. Id. at 50-

54, 60-62; Ex. Vol. at 8. Gosser’s claim for lost wages was based on her hourly 

wage at Mentor Network and the average number of hours per week she had 

been working before moving to Indiana. When Gosser was asked about how 

her calculations would have differed if she was not offered a job with her former 

employer, she responded, “That’s just not a possibility.” Tr. at 55.

[6] The trial court accepted Tuggle’s plea, and the parties presented argument 

regarding sentencing. Having read the presentence investigation report and the 

letters written on behalf of Tuggle, and having heard Tuggle’s testimony and 

the parties’ arguments, the trial court found that Tuggle’s remorse was a 

mitigating factor. However, the trial court noted that Tuggle’s criminal history 

reflected a pattern of abusing alcohol, marijuana, and other substances and 

found it to be an aggravating factor. The trial court also found that the nature 
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and circumstances of the level 6 felony criminal recklessness count were more 

significant than the offense’s required elements and therefore constituted an

aggravating factor as to that count. The trial court sentenced Tuggle to 

consecutive terms of ten years on the aggravated battery conviction, with three 

years suspended, and two years on the criminal recklessness conviction, with 

one year suspended for an aggregate sentence of twelve years with four years 

suspended. The trial court also ordered Tuggle to pay Gosser restitution of 

$16,748.52, including lost wages. The trial court dismissed the remaining 

charge. This appeal ensued.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in 

ordering restitution for Gosser’s lost wages.

[7] Tuggle challenges the trial court’s decision to order restitution for Gosser’s lost 

wages.3 Pursuant to Indiana Code Section 35-50-5-3(a)(4), the trial court has 

the authority to order a person convicted of a felony or misdemeanor to make 

restitution to the victim of the crime based upon a consideration of “earnings 

lost by the victim (before the date of sentencing) as a result of the crime 

including earnings lost while the victim was hospitalized or participating in the 

investigation or trial of the crime[.]” An order of restitution lies within the trial 

court’s sound discretion and will be reversed only for an abuse of discretion. 

 

3

 The State asserts that Tuggle waived this claim, but we disagree. At the hearing, Tuggle’s counsel argued 

that Gosser’s claim for lost wages was speculative and would not be awardable under the restitution statute. 

Tr. at 118.
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Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012). In determining whether the trial 

court abused its discretion, we neither reweigh evidence nor judge witness 

credibility. Mogg v. State, 918 N.E.2d 750, 755 (Ind. Ct. App. 2009). “A 

restitution order must be supported by sufficient evidence of actual loss 

sustained by the victim or victims of a crime.” Rich v. State, 890 N.E.2d 44, 49

(Ind. Ct. App. 2008), trans. denied. “The amount of actual loss is a factual 

matter that can be determined only upon the presentation of evidence.” Bennett 

v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007). We will affirm the trial 

court’s restitution order if there is any evidence supporting it. Smith v. State, 990 

N.E.2d 517, 520 (Ind. Ct. App. 2013), trans. denied.

[8] Specifically, Tuggle asserts that Gosser’s request for $8320 in lost wages does 

not represent any actual loss she sustained because at the time of the shooting 

she was unemployed and did not have an actual offer of employment. The 

evidence shows that Gosser worked for Mentor Network for six years and 

transferred her employment to Indiana, and that she was unemployed because 

she had been in Indiana only four days and had not yet contacted Mentor 

Network. The evidence also shows that she had been working an average of 

thirty-two hours per week and earned $10.00 per hour and that she had been 

unable to work for twenty-six weeks due to the injury caused by Tuggle’s 

shooting.

4 Tuggle’s argument is merely an invitation to reweigh the evidence,

which we must decline. We conclude that the restitution order for lost wages is 

 

4

 $10 × 32 hours × 26 weeks = $8320.00.
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supported by sufficient evidence of actual loss. Accordingly, the trial court did 

not abuse its discretion in ordering restitution for Gosser’s lost wages.

Section 2 – The trial court did not abuse its discretion in 

sentencing Tuggle.

[9] Tuggle argues that the trial court abused its discretion when it sentenced him. 

Sentencing decisions are within the sound discretion of the trial court. 

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 

218. An abuse of discretion occurs when the trial court’s decision is contrary to 

“the logic and effect of the facts and circumstances before the court or the 

reasonable, probable, and actual deductions to be drawn therefrom.” Williams v. 

State, 997 N.E.2d 1154, 1163 (Ind. Ct. App. 2013). A trial court abuses its 

discretion by entering a sentencing statement that omits mitigating factors that 

are clearly supported by the record and advanced for consideration. Anglemyer, 

868 N.E.2d at 490-91. Although an appellate court may review the trial court’s 

reasons and omissions of reasons for imposing sentence, the relative weight 

assigned by the trial court to aggravating and mitigating factors is not subject to 

appellate review. Id. at 491.

[10] Tuggle contends that the trial court abused its discretion by failing to find 

various mitigating factors. He notes that “[t]he trial court refused to consider 

[his] criminal history as a mitigator, instead finding it an aggravating 

circumstance.” Appellant’s Br. at 12. That is not an uncommon occurrence in 

most sentencing hearings. He also argues that the trial court ignored that he 

obtained a job earning $52,000 a year, was only three or four classes away from 
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obtaining a degree at Ivy Tech, and did not violate the conditions of his pretrial 

home detention which included screens for the presence of alcohol. We 

observe that the trial court is not obligated to accept the defendant’s arguments 

as to what constitutes a mitigating factor and is not required to give the same 

weight to proffered mitigating factors as the defendant does. Healy v. State, 969 

N.E.2d 607, 616 (Ind. Ct. App. 2012), trans. denied. A trial court does not abuse 

its discretion by failing to identify a mitigating factor unless the mitigating 

evidence is both significant and clearly supported by the record. Id. 

[11] At sentencing, Tuggle argued that his crimes were connected to his alcohol use 

and therefore were the result of circumstances unlikely to recur and that he was 

at low risk to reoffend because he had a limited criminal history, had obtained a 

job, was close to getting a degree from Ivy Tech, had participated in substance 

abuse treatment while on home detention, and had not committed any 

probation violations while on home detention during which he was tested for 

alcohol four times a day. Tuggle also argued that he had demonstrated remorse

for his crimes. 

[12] The trial court was unpersuaded that Tuggle’s crime was the result of 

circumstances unlikely to recur and that Tuggle was unlikely to reoffend

because the court believed that Tuggle’s criminal history and the presentence 

investigation report showed a pattern of substance abuse and offenses related to 

his substance abuse. Tr. at 138-39. Tuggle’s criminal history includes a 2012 

misdemeanor conviction for possession of marijuana and two 2013 

misdemeanor convictions for possession of marijuana and possession of 
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paraphernalia. In April 2016, Tuggle violated the conditions of his pretrial 

release and was charged with operating a vehicle while intoxicated.

5

 Thus, the 

trial court considered Tuggle’s proffered mitigators and, other than his remorse, 

rejected them. We find no abuse of discretion.

Section 3 – Tuggle has failed to carry his burden to show that 

his sentence is inappropriate.

[13] Tuggle argues that his aggregate sentence of twelve years with eight years 

executed is inappropriate pursuant to Indiana Appellate Rule 7(B), which 

states, “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.” In conducting our review, “[w]e do not look to determine if the 

sentence was appropriate; instead we look to make sure the sentence was not 

inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing 

is principally a discretionary function in which the trial court’s judgment should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 

2008). “Such deference 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). Tuggle has the burden to show that his 

 

5

 Tuggle was convicted and sentenced in that case contemporaneously with this one. 
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sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. 

App. 2007). 

[14] When considering the nature of the offenses, we observe that “the advisory 

sentence is the starting point the Legislature selected as appropriate for the 

crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The 

advisory sentence for a level 3 felony is nine years, with a sentencing range of 

three to sixteen years. Ind. Code § 35-50-2-5(b). The advisory sentence for a 

level 6 felony is one year, with a sentencing range of six months to two and onehalf years. Ind. Code § 35-50-2-7(b). Tuggle received an aggregate sentence of 

twelve years, with eight years executed and four years suspended. 

[15] Tuggle does not deny that he committed serious crimes and does not argue that 

the nature of the offenses renders his sentence inappropriate. Rather, he argues 

that his character warrants a revision of his executed sentence to home 

detention and/or probation. In so arguing, he again relies on his gainful 

employment, pursuit of a college degree, and substance abuse treatment to 

demonstrate his positive character. We recognize that these undertakings are 

reflective of Tuggle’s capacity to become a productive, law-abiding citizen. 

However, when considering the nature of Tuggle’s offenses as well as his

character, we are unpersuaded that Tuggle’s sentence is inappropriate. 

[16] Tuggle became extremely intoxicated, grabbed his handgun, and shot it six 

times with multiple people in the area. All those people were put at risk by 

Tuggle’s conduct. One shot struck Gosser, who required significant medical 
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care and was unable to work for five or six months. She suffered permanent 

nerve damage subjecting her to the possibility of lifelong pain and loss of the 

use of her foot. Tuggle pointed his gun at Roberts’s head, putting Roberts at 

great risk of death. Tuggle then shot Robert’s leg, breaking his femur. Robert 

required surgery to place a metal rod in his leg and still has bullet fragments in 

his leg. We conclude that Tuggle has failed to carry his burden to show that his 

sentence is inappropriate based on the nature of the offenses and his character.

[17] Affirmed.

Riley, J., and Altice, J., concur.