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 : MARCE GONZALEZ, JR. GREGORY F. ZOELLER Dyer, Indiana Attorney General of Indiana ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

JE SSE MICHAEL VILLAREAL, JR., ) ) Appellant

- Defendant, ) ) vs. ) No. 45A04

- 1107

- CR

- 337 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Susan M. Severtson, Judge Pro Tempore

Cause No. 45G02

- 0807

- FC

- 97

Marc h 29, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION BARTEAU, Senior Judge2 STATEMENT OF THE CASE Jesse Michael Villareal, Jr., appeals his convictions of battery, a Class C felony, Ind. Code § 35

- 42

- 2

- 1 (2008) , and invasion of privacy , a Class A misde meanor, Ind. Code § 35

- 46

- 1

- 15.1 (2008)

. Vill areal also appeals his sentence for battery

. We affirm

. ISSUE S Villareal raises two issue s , which we restate as:
I. Whether the trial court abused its discretion by denying his motion for mistrial.
II. W hether hi s sentence for battery is inappropriate

.

FACTS AND PROCEDURAL HISTORY In the early morning hours of July 10 , 2008, Melinda Milton was sleeping at Villareal’s house in Hammond, Indiana. Villareal was not home when Milton went to sleep. In fact, Milton had obtained a protective order against Villareal. Two of Milton ’s children were also sleeping at the house. Villareal is the father of one of the children. In addition, Milton’s cousin , Nicole Silva , was stay ing at the house that night with several
of her children

. When Villareal entered the house early that morning, Silva texted a prearranged
message to a friend. The friend contacted the police. Meanwhile, Villareal went to Milton’s bedroom and awakened her by dragging h er off of the bed by her hair. Villareal called Milton a “whore” and kicked her repeatedly in her face, the back of her head, and her torso. Tr. p. 114. Next, Villareal left Milton’s bedroom and returned a short while later. Villareal called Milton a whore again and spat in her face

.3

At that point, Milton and Villareal’s child woke in a bassinet in the living room

. Milton went to the kitchen to prepare a bottle, and Villareal followed her. Villareal picked up a chair and hit Milton in the back, causing the chair to break. Nex t, Villareal picked up a knife and threatened to kill Milton. Milton , believing that Villareal w ould carry out his threat , crawled under the kitchen table.
Next , Officer Shane Hric arrived at the house. As h e approached, Hric heard shouting and crying throu gh the ho use’s open windows. Officer Gabriel Malave arrived next, and Villareal noticed the officers’ presence. Milton came to a window and pleaded for help. Hric saw that Milton’s face was covered in blood, she had swelling around her mouth and nose, a nd she had “a large, probably golf ba ll size lump above her left eye. ” Id. at 176. Villareal also came to the window, and the officers drew their guns. Villareal shouted at the officers, telling them to shoot him. Milton again asked the officers for he lp, and Villareal said, “ Bitch , I’ll kill you.” Id. at 177. The officers attempted to enter, but t he front d oor was blocked shut by a couch. T he officers persuaded Villareal to move the couch , and they enter ed the home and took him into custody. Hric s aw blood on the kitchen floor and on a refrigerator. He also saw a broken cha ir in the kitchen

. Milton was taken to a hospital for treatment. At the hospital, staff noted that Milton had abrasions and contusions on her head, face, abdomen, back, right leg, and left

arm. Milton complained of severe pain

. She told hospital personnel that her boyfriend attacked her and that “he should be in j ail.” Tr. Vol. 5, Ex. 49A. In a report, a hospital employee noted that Milton expressed a fear that “if he bonds out [,] he will kill her.” Id.4

The State charged Villareal with two counts of battery, both Class C felonies , Ind. Cod e § 35

- 42

- 2

- 1 , for attacking Milton ; domestic battery, a Class D felony, Ind. Code §
35

- 42

- 2

- 1.3 (2006 ), for attacking Milton where a child less than sixteen years of age was present and might be able to hear or see the offense; invasion of privacy, a Class A
misdemeano r, Ind. Code § 35

- 46

- 1

- 15.1 , for violating Milton’s protective o rder ; and other charges not at issue her e. Villareal’s case was tried to a jury. B efore the presentation of evidence began, Villareal moved in limine to keep the State from submitting evidence of Villareal’s prior or subsequent bad acts. The tr ial court granted the motion. D uring the trial, the following discussion occurred during Hric’s testimony:
STATE: Did Melinda Milton provide you with any other information?
HRIC: She continued to say that he had entered the house through a

broken front door, which occurred at a previous incident to he r knowledge. Tr. p. 193. Villareal moved for a mistrial, contending t hat Hric had violated the order in limine. The trial court denied the motion, concluding that the testimony did not violate th e order

. The jury found Villareal guilty of the first co unt of battery as a Class A misdemeanor, guilty of the second count of b attery as a Class C felony, guilty of domestic battery, and guilty of invasion of privacy

. The court declined to enter a judgment of conviction on the Class A misdemeanor battery and domestic battery verdicts, citing double jeopardy concerns. Instead, the court ent ered a judgment of conviction on the guilty verdicts for Class C felony battery and invasion of privacy

. The5

court sentenced Villareal to an aggregate term of six years, wi th two years suspended to probation

. This appeal followed.
DISCUSSION AND DECISION
I. MOTION FOR MISTRIAL Villareal contends that Hric’s testimony that Milton had told him that the front door had been broken during “a previous incident” was a n imperm issible reference to other crimes, wrongs, or acts by Villareal in violation of Indiana Evidence Rule 404(b). Tr. p. 193. Consequently, he concludes that the trial court should have granted his request for a mistrial

. We review the trial court’s decis ion to deny a mistrial for an abuse of discretion because the trial court is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. Pittman v. State , 885 N.E.2d 1246, 1255 (Ind. 2008). A mistrial is appropriat e only when the questioned conduct is so prejudicial and inflammatory that the defendant was placed in a position of grave peril to which he or she should not have been subjected

. Id. The gravity of the p eril is measured by the conduct’ s probable persuas ive effect on the jury

. Id. The defendant bears the burden on appeal to show that he or she was placed in grave peril by denial of the motion for mistrial. Myers
v. State , 887 N.E.2d 170, 189 (Ind. Ct. App. 2008) , trans. denied

. Here, Hric did not desc ribe the previous incident that resulted in damage to the front door . In addition, h e did not accuse Villareal of breaking the door or suggest that Villareal was in any way involved in the previous incident

. Hric’s passing reference to
the front door alr eady being broken at the time of the crimes at issu e must be weighed6

against the substantial evidence establishing Villareal’s guilt. Milton’s statement to the police , which described Villareal’s attack upon her as set forth above, was read into evidence. 1 In addition, the jury was provided with photographs showing Milton’s injuries on the morning of the attack. Hric and Malave described Villareal ’s and Milton’s
appearance s and actions . Furthermore , the jury was provided with Milton’s medical
records. The records indicate that Milton told hospital staff that her boyfriend had assaulted her. In light of this substantial evidence, Hric’s general reference to a prior incident would not have had a probable persuasive effect on the jury’s decision.
Villa real cites to Underwood v. State , 644 N.E.2d 108 (Ind. 1994), and Palmer v.
State , 640 N.E.2d 415 (Ind. Ct. App. 1994), but those cases do not support his argument. To the contrary, in both cases the appellate court determined that the trial court did not err by denying the defendants’ motions for mistrial. In this case, Villareal has not demonstrated that he was placed in grave peril, and the trial court did not abuse its discretion by denying the motion for mistrial.

II. APPROPRIATENESS OF SENTENCE Vill areal contends that he should have received the advisory sentence for his battery convicti on and asks this Court to reduce his sentence . His claim is governed by Indiana Appellate Rule 7(B), which provides, in relevant part, “The Court may revise a

senten ce 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

1 At trial, Milton stated that she was unable to remember who had attacked her because sh e was intoxicated on the morning in question. Consequently, the State produced a written, signed statement Milton had given to the police on July 10, 2008, and read the statement into the record.7

character of the offender.” In making this determination, we may look to a ny factors appearing in the record. Calvert v. State , 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). A defendant must persuade the appellate court that the sentence meets the inappropriateness standard of review. Childress v. State , 848 N.E.2d 1073, 1080 (In d. 2006).
W e first look to the statutory range established for the class of the offense

. T he statutory range for a Class C felony is between two and eight years, with the advi sory sentence being four years. Ind. Code § 35

- 50

- 2

- 6 (2005 ). Villareal rece ived a sentence of five years for his battery conviction, to be served consecutively with a one

- year sentence for his conviction of invasion of privacy, for a total of six years, with two years suspended to probation

. W e next lo ok to the nature of the offense and the character of the offen der. The
nature of the offense is found in the details and circumstances o f the commission of the offense and the defendant’s participation. See Treadway v. State , 924 N.E.2d 621, 642 (Ind. 2010) (noting that the def endant’s crimes were “horrific and brutal”). The character of the offender is found in what we learn of the offender’s life and conduct. See Lindsey
v. State , 916 N.E.2d 230, 241

- 42 (Ind. Ct. App. 2009) (reviewing the defendant’s criminal history, probat ion violations, and history of misconduct while incarcerated) , trans. denied

. Our review here of the nature of the offense shows that Villareal brutally ambushed Milton as she slept. He pulled her off of her bed by her hair and kicked her repeatedly in the head and torso. Villareal also spat in her face several times. Next, as Milton was preparing a bottle for their child, Villareal struck her with a chair with8

sufficient force to break th e chair. Furthermore, he threatened Milton with a knife and sai d that he would kill her , placing her in fear for her life. When the police arrived, Milton ’s face was covered in blood , she had obvious facial injuries, and she repeatedly pleaded for help

. Milton experienced severe pain from Villareal’s assault, and he r injuries required medical treatment. It speaks poorly of Villareal that he had several chances to end his attacks on Milton but chose not to do so until the police arrived. Villareal’s extended, terrifying assault demonstrates a complete lack of regard for others. Our review here of the character of the offender shows that Villareal, who was twenty

- one years of age at sentencing, has a limited criminal history. He has two juvenile adjudications, one for auto theft, fleeing law enforcement, and con sump tion of alcohol, and the second for burglary. He has accrued no adult convictions. Nevertheless, Villareal was pla ced on probation in one of his juvenile cases , and he violated the terms of his probation. In addition, he had been released on bond in ano ther case at the time of his arrest in the current case . Finally, at the time of sentencing in this case, Villareal had two protective orders filed against him. Villareal’s failure to comply with probation requirements and to avoid further legal entangle m ents while out on bond demonstrates that an enhanced sentence is not inappropriate

. Villareal asserts that the trial court improperly considered his arrest record in the course of sentencing him and that this Court should disregard those arrests. W e disagree. When we evaluate the character of an offender, it is proper to consider past arrests even if some of them did not result in convictions. See Boggs v. State , 928 N.E.2d 855, 870

- 71 (Ind. Ct. App. 2010) (noting that a record of arrests may reve al that a defendant has not9

been deterred even after having been subject to the police authority of the State on multiple occasions), trans. denied . In any event, Villareal’s failure to respond positively to probation, commission of the current crimes whi le out on bond, and pending protective orders at the time of the crimes at issue provide sufficient evidence of his refusal to comply with the law. Given the nature of Villareal’s offenses and his character , he ha s failed to persuade us that his enhanced s entence for battery is inappropriate.
CONCLUSION For the reasons stated above, we affirm the judgment of the trial court

. Affirmed. MAY, J., and BRADFORD, J., concur.