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: ATTORNEYS FOR APPELLEE:

ANN SUTTON GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

RYAN D. JOHANNINGSMEIER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

MICHAEL COLEMAN, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1401-CR-1

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Barbara Cook Crawford, Judge

Cause No. 49F09-1308-FD-53165

December 18, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

Michael Coleman appeals his convictions for two counts of intimidation, as Class 

D felonies, and disorderly conduct, as a Class B misdemeanor, following a jury trial. 

Coleman presents four issues for our review:

1. Whether the trial court abused its discretion when it permitted 

evidence of Coleman’s intoxication and instructed the jury on 

voluntary intoxication.

2. Whether the trial court abused its discretion when it permitted 

certain testimony in response to a jury question.

3. Whether the State presented sufficient evidence to support his 

disorderly conduct conviction.

4. Whether the trial court abused its discretion when it sentenced him.

We affirm.

FACTS AND PROCEDURAL HISTORY

On August 12, 2013, at approximately 11:15 p.m., Indianapolis Metropolitan 

Police Department Officers Aaron Schlesinger and Ronald Sayles were dispatched to 315 

North Chester Avenue “on a call [regarding] a disturbance involving loud subjects, a 

possible fight, subjects arguing, [and] possible narcotic usage as well.” Tr. at 113. When 

the officers arrived, they found a large house party going on, with approximately eleven 

to fifteen people standing in the front yard, sidewalk, and street in front of the house, and 

loud music was being played on the front porch. Officer Schlesinger asked the group 

“several times” to turn down the music, to no avail. Id. at 118. And Officer Schlesinger 

asked the partygoers for the name of the homeowner, with no response. Finally, Officer 
3

Schlesinger, in a raised voice, threatened to issue a ticket to the homeowner for violating 

a noise ordinance, and someone turned the music off.

The officers continued trying to find the homeowner when some of the partygoers 

became “upset” and began “voicing their opinions [and] wondering why” the officers 

were there. Id. at 120-21. One of the partygoers, Coleman, “became more agitated” and 

raised his voice so much that three neighbors came outside to see what was going on. Id.

at 121. Officer Schlesinger was “trying to calm people down and explain” why he was 

there, but Coleman remained agitated. Id. After some of the partygoers expressed to the 

officers that they thought the officers were just “messing with ‘em and harassing them for 

no reason,” the officers asked everyone for identification “to verify who they were.” Id.

at 123.

Officer Schlesinger approached Coleman and asked him for identification, but he 

responded that he did not have any identification on him. Officer Schlesinger then asked 

Coleman for his name, date of birth, and social security number. Officer Schlesinger 

smelled an odor of alcohol on Coleman’s breath and person, and Coleman’s speech was 

slightly slurred. Coleman was “slightly combative as if it was a waste of his time” and 

gave Officer Schlesinger false information two or three times before he gave his real 

name and birth date. Id. at 129. Coleman continued to yell at Officer Schlesinger and 

was perceived as the loudest of the partygoers. Because Coleman refused to quiet down 

after being asked to do so by Officer Schlesinger, the officer arrested Coleman for 

disorderly conduct.
4

After Coleman was placed in handcuffs and ordered to sit on the sidewalk, Officer 

Sayles monitored Coleman while Officer Schlesinger “conducted paperwork in [his] 

vehicle.” Id. at 131. Coleman started talking to Officer Sayles and said that “the arrest 

was bulls[***],” and Coleman was “calling Officer Schlesinger names[,]” including 

“racial slurs.” Id. at 159. Coleman then stated that he was going to “AK” the officers, 

which Officer Sayles interpreted to mean that he was going to “shoot us with an AK-47-

style rifle.” Id. Coleman stated that he was “going to be on top of [the residence] with 

his rifle . . . [and would shoot] a hundred rounds every time [the officers drove by] in 

[their] police vehicles on Chester Avenue.” Id. Coleman stated that he was going to kill 

the officers, their wives, and their children. Coleman stated that he was going to go to 

their funerals and laugh at them and “sodomize [their wives] on top of [their] grave[s].” 

Id. at 160. Coleman eventually communicated the threats directly to Officer Schlesinger, 

too. Coleman also stated to Officer Sayles that “he had shot somebody before and [had] 

gotten away with it . . . [because] he had gotten the witnesses silenced.” Id. at 171-72.

The State charged Coleman with two counts of intimidation, as Class D felonies, 

and disorderly conduct, as a Class B misdemeanor. The State also charged Coleman with 

being an habitual offender. At trial, after the jury began deliberating on the first phase of 

the trial, the State dismissed the habitual offender count. The jury found Coleman guilty 

of the remaining charges. The trial court entered judgment accordingly and sentenced 

Coleman to an aggregate sentence of 545 days in the Department of Correction and 185 

days on home detention. This appeal ensued.
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DISCUSSION AND DECISION

Issue One: Voluntary Intoxication

Coleman first contends that the trial court abused its discretion when it permitted 

evidence of his intoxication and instructed the jury on voluntary intoxication. In 

particular, Coleman maintains that “the State both raised the issue of intoxication[] and 

then sought to discredit it.” Appellant’s Br. at 7. And Coleman argues that it was 

“defense counsel’s decision whether to put forth an intoxication defense,” and he chose 

not to do so. Id. at 8. Coleman asserts that “[r]aising a defense that the actual defendant 

did not put forth in order to discredit him must be a due process violation of great 

magnitude[] and should not be permitted.”1 Id.

Our standard of review of a trial court’s admission of evidence is an abuse of 

discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court 

abuses its discretion if its decision is clearly against the logic and effect of the facts and 

circumstances before the court or if the court misapplies the law. See id. With respect to 

jury instructions, we have explained that

[t]he purpose of a jury instruction is to inform the jury of the law applicable 

to the facts without misleading the jury and to enable it to comprehend the 

case clearly and arrive at a just, fair, and correct verdict. Instruction of the 

jury is left to the sound judgment of the trial court and will not be disturbed 

absent an abuse of discretion. Jury instructions are not to be considered in 

isolation, but as a whole and in reference to each other. The instructions 

must be a complete, accurate statement of the law which will not confuse or 

mislead the jury.

 

1

 Coleman makes no cogent argument to support his bald assertion that he was denied his right to 

due process or his Sixth Amendment right “to present a defense.” Appellant’s Br. at 8. Those issues are 

waived. Ind. Appellate Rule 46(A)(8)(a).
6

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008) (citations and quotations 

omitted).

Here, at trial, the State presented evidence that Coleman was intoxicated, 

including the fact that he smelled of alcohol, his speech was slightly slurred, and his eyes 

were slightly glassy and red. Coleman did not object to any of the State’s evidence 

regarding his intoxication. Failure to object to the admission of evidence at trial normally 

results in waiver and precludes appellate review unless its admission constitutes 

fundamental error. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). But, in his brief 

on appeal, Coleman does not contend that the admission of that evidence was 

fundamental error. Coleman has waived the admission of evidence issue on appeal.

Next, the trial court gave the following jury instruction proffered by the State: 

“Voluntary intoxication is not a defense to the charges of intimidation and disorderly 

conduct. You may not take voluntary intoxication into consideration in determining 

whether the defendant acted intentionally, knowingly[,] or recklessly as alleged in the 

information.” Appellant’s App. at 161. Coleman objected to the instruction as follows:

[W]e do not object as to the first line, however, we would object as to the 

second [line]. With the fact that it’s going into the intentionally knowingly 

or recklessly [sic] as alleged in this information. So, therefore, we would 

argue that the second line of the jury instruction should be stricken.

Tr. at 193. Coleman did not object to the instruction on the grounds that the evidence did 

not support the instruction.

On appeal, Coleman’s sole contention is that the jury instruction was improper 

because he never raised an intoxication defense and “the facts brought by the defense did 

not support giving such an instruction.” Appellant’s Br. at 8. But it is well settled that a
7

defendant may not raise one ground for objection at trial and argue a different ground on 

appeal. Small v. State, 736 N.E.2d 742, 747 (Ind. 2000). And, again, Coleman makes no 

contention that the trial court committed fundamental error when it gave the challenged 

jury instruction. Coleman has waived this issue for our review.

Issue Two: Admission of Evidence

Coleman contends that the trial court abused its discretion when it permitted 

Officer Sayles to respond to the following jury question: “In what way was Mr. Coleman 

saying that he’d gotten away with it before? Did he describe anything?” Tr. at 171. The 

trial court permitted Officer Sayles to answer the question over Coleman’s objection. 

Officer Sayles testified as follows: “He said he had shot somebody before and gotten 

away with it. He said he had gotten the witnesses silenced.” Id. at 171-72.

On appeal, Coleman contends that the trial court should have excluded this 

evidence under Evidence Rules 403 and 404(b). But Coleman does not direct us to any 

part of the record to show that he objected to the evidence on those grounds to the trial 

court. Rather, the “court reporter was unable to hear [Coleman’s] objections and 

arguments” regarding the challenged jury question, and “they are described as ‘inaudible’ 

in the appellate record.” Ind. Appellate Rule 31(C) Verified Statement of Evidence at 4. 

Accordingly, Coleman prepared, and the trial court certified, a Verified Statement of the 

Evidence to clarify that, in response to the challenged jury question, he “reiterated the 

continuing objection stated earlier in Mr. Sayles’ testimony with respect to Mr. 

Coleman’s statements to the officers.” Id.
8

But, in support of his contention on appeal, Coleman does not direct us to any part 

of the record showing that his continuing objection to Coleman’s statements to the 

officers, “stated earlier in Mr. Sayles’ testimony,” was based on Trial Rule 403 or 404(b) 

grounds. Id. And our review of the record does not indicate on what grounds a 

continuing objection was made. As we explained in Showalter v. Town of Thorntown, 

902 N.E.2d 338, 342 (Ind. Ct. App. 2009), trans. denied:

A party generally waives appellate review of an issue or argument unless 

that party presented that issue or argument before the trial court. . . .

* * *

This rule exists because trial courts have the authority to hear and 

weigh the evidence, to judge the credibility of witnesses, to apply the law to 

the facts found, and to decide questions raised by the parties. Appellate 

courts, on the other hand, have the authority to review questions of law and 

to judge the sufficiency of the evidence supporting a decision. The rule of 

waiver in part protects the integrity of the trial court; it cannot be found to 

have erred as to an issue or argument that it never had an opportunity to 

consider. Conversely, an intermediate court of appeals, for the most part, is 

not the forum for the initial decisions in a case. . . .

(Emphasis in original; citations and quotations omitted). Because Coleman has not 

demonstrated that he made an objection to the challenged jury question on Trial Rule 403 

or 404(b) grounds to the trial court, Coleman has waived this issue for our review.

Issue Three: Sufficiency of the Evidence

Coleman next contends that the State presented insufficient evidence to support 

his disorderly conduct conviction. When reviewing a claim of sufficiency of the 

evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones 

v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence 

supporting the judgment and the reasonable inferences that may be drawn from that 
9

evidence to determine whether a reasonable trier of fact could conclude the defendant 

was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative 

value to support the conviction, it will not be set aside. Id.

To prove disorderly conduct, as a Class B misdemeanor, the State was required to 

show that Coleman recklessly, knowingly, or intentionally made unreasonable noise and 

continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2). Coleman 

maintains that the State “must prove the defendant produced decibels of sound that were 

too loud for the circumstances” and that the harm suffered as a result of the noise “rose 

above the level of a ‘fleeting annoyance.’” Appellant’s Br. at 12-13 (citing Whittington 

v. State, 669 N.E.2d 1363, 1367 (Ind. 1996), and Price v. State, 622 N.E.2d 954, 960 

(Ind. 1993)). This, Coleman contends, the State failed to do.

But the State presented evidence that Coleman was the “loudest” of the 

partygoers, and he was yelling so loudly that, on two separate occasions, several 

neighbors emerged from their houses to see what was going on. Tr. at 123. Officers told 

Coleman to stop yelling multiple times, but he continued to yell. Officer Schlesinger 

testified that he “lost count” of how many times he had told Coleman to stop yelling. Id.

at 139. Coleman’s argument on appeal amounts to a request that we reweigh the 

evidence, which we will not do. The State presented sufficient evidence to support his 

disorderly conduct conviction.

Issue Four: Sentencing

Finally, Coleman contends that the trial court abused its discretion when it 

sentenced him. Sentencing decisions rest within the sound discretion of the trial court 
10

and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 

2007). An abuse of discretion occurs if the decision is clearly against the logic and effect 

of the facts and circumstances before the court or the reasonable, probable, and actual 

deductions to be drawn therefrom. Id.

One way in which a trial court may abuse its discretion is failing to enter a 

sentencing statement at all. Other examples include entering a sentencing 

statement that explains reasons for imposing a sentence—including a 

finding of aggravating and mitigating factors if any—but the record does 

not support the reasons, or the sentencing statement omits reasons that are 

clearly supported by the record and advanced for consideration, or the 

reasons given are improper as a matter of law . . . .

[However, b]ecause the trial court no longer has any obligation to 

“weigh” aggravating and mitigating factors against each other when 

imposing a sentence, . . . a trial court cannot now be said to have abused its 

discretion in failing to “properly weigh” such factors.

Id. at 490-91.

Coleman contends that the trial court abused its discretion when it did not identify 

as mitigating: “the hardship [of his incarceration on] Mr. Coleman’s children, Mr. 

Coleman’s drinking as an untreated disease, the letter of apology [to the victims,] and the 

fact that there was no physical injury sustained in this case.” Appellant’s Br. at 9. The 

determination of mitigating circumstances is within the trial court’s discretion. Rogers v. 

State, 878 N.E.2d 269, 272 (Ind. Ct. App. 2007), trans. denied. The trial court is not 

obligated to accept the defendant’s argument as to what constitutes a mitigating factor,

and a trial court is not required to give the same weight to proffered mitigating factors as 

does a defendant. Id. A trial court does not err in failing to find a mitigating factor 

where that claim is highly disputable in nature, weight, or significance. Id. An allegation 
11

that a trial court abused its discretion by failing to identify or find a mitigating factor 

requires the defendant on appeal to establish that the mitigating evidence is significant 

and clearly supported by the record. Id.

On appeal, Coleman argues that the trial court should have identified his proffered 

mitigators based solely on his self-serving statements at the sentencing hearing. But 

Coleman has not demonstrated that the proffered mitigators are significant and clearly 

supported by the record. Indeed, as the State points out, “absent special circumstances, 

trial courts are not required to find that imprisonment will result in an undue hardship.” 

Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Coleman alleges no special 

circumstances here. Further, “a history of substance abuse is sometimes found by trial 

courts to be an aggravator, not a mitigator.” Iddings v. State, 772 N.E.2d 1006, 1018 

(Ind. Ct. App. 2002), trans. denied. And Coleman apologized to the victims as follows: 

“I would like to apologize to the officers if I said anything to ‘em about their families or 

kids or to ‘em while I was drunk. I would never say ‘em things if I had a sober mind.” 

Pre-Sentence Investigation Report at 15. That attempt at an apology does not clearly 

support mitigation of Coleman’s sentence. Finally, Coleman does not explain how the 

fact that no one was injured by his actions supports a finding of mitigation. We hold that 

the trial court did not abuse its discretion when it sentenced Coleman.

Affirmed.

MATHIAS, J., and BRADFORD, J., concur.