Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 1 of 6

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

David W. Stone IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert L. Kirby,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 30, 2018

Court of Appeals Case No.

18A-CR-342

Appeal from the Madison Circuit 

Court

The Honorable Angela G. Warner 

Sims, Judge

Trial Court Cause No.

48C01-1612-CM-2466

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 2 of 6

Case Summary

[1] Robert L. Kirby was sentenced to a 365-day term of incarceration after he was 

found guilty of Class A misdemeanor domestic battery. In challenging his 

sentence on appeal, Kirby contends both that the trial court abused its 

discretion in sentencing him and that his sentence is inappropriate. We affirm.

Facts and Procedural History

[2] At approximately 10:00 p.m. on April 25, 2016, Anderson Police Officer Shad 

Grille responded to a reported domestic battery at the home of Gary Stanley. 

Upon arriving at the home, Officer Grille found Amber Smith, Kirby’s onagain-off-again girlfriend, lying on the floor with swelling and bruising on her 

face. Smith complained of “pain to her face and head.” Tr. p. 79. 

[3] Officer Grille observed that Smith appeared to be intoxicated. Smith admitted 

that she and Kirby had been drinking together at their home. An argument 

ensued after Smith “refused to have sex” with Kirby. Tr. p. 97. Smith took 

Kirby’s bicycle and a few beers from the couple’s refrigerator and fled the 

residence. She then made her way to Stanley’s home. Kirby followed Smith. 

After arriving at Stanley’s home, Kirby walk up to Smith and grabbed and 

pushed her before fleeing the scene. 

[4] The State charged Kirby with Class A misdemeanor domestic battery. 

Following trial, the jury found Kirby guilty as charged. On January 16, 2018, 

the trial court sentenced Kirby to a term of 365 days. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 3 of 6

Discussion and Decision

[5] Kirby raises two challenges to his sentence on appeal. First, he contends that 

the trial court abused its discretion by finding his criminal history to be an 

aggravating factor. Next, he contends that his 365-day sentence is 

inappropriate. We disagree with both contentions. 

I. Abuse of Discretion

[6] Sentencing decisions rest within the sound discretion of the trial court and are 

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

N.E.2d 482, 490 (Ind. 2007), modified 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. 

(quotation omitted). 

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. Under 

those circumstances, remand for resentencing may be the 

appropriate remedy if we cannot say with confidence that the 

trial court would have imposed the same sentence had it properly 

considered reasons that enjoy support in the record.
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Id. at 490-91. A single aggravating factor may support an enhanced sentence. 

Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).

[7] Indiana Code section 35-38-1-7.1(a)(2) provides that in determining what 

sentence to impose, a trial court may consider the fact that the person “has a 

history of criminal or delinquent behavior.” The trial court found Kirby’s 

criminal history to be “lengthy.” Tr. p. 203. Kirby’s criminal history consists 

of six misdemeanor convictions and three federal felony convictions. We 

cannot say that the trial court abused its discretion by referring to a criminal 

history consisting of nine convictions as lengthy. Further, to the extent that 

Kirby asserts that the trial court placed too much weight on this factor, “a trial 

court no longer has any obligation to ‘weigh’ aggravating and mitigating factors 

against each other when imposing a sentence ... [and] cannot now be said to 

have abused its discretion in failing to ‘properly weigh’ such factors.” 

Anglemyer, 868 N.E.2d at 491.

II. Appropriateness of Sentence

[8] Indiana Appellate Rule 7(B) provides that “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 analyzing such claims, we “‘concentrate 

less on comparing the facts of [the case at issue] to others, whether real or 

hypothetical, and more on focusing on the nature, extent, and depravity of the 

offense for which the defendant is being sentenced, and what it reveals about 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-342 | July 30, 2018 Page 5 of 6

the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App. 

2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans. 

denied). The defendant bears the burden of persuading us that his sentence is 

inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

[9] In challenging the appropriateness of his sentence, Kirby argues that he should 

not have received a maximum sentence because he “does not fall in the 

category of worst offender.” Appellant’s Br. p. 12. While Kirby’s actions and 

character may not represent the most egregious or depraved to ever come before 

this court, we cannot say that his 365-day sentence was inappropriate. Kirby 

and Smith argued after she rejected his sexual advances. The situation would 

likely have ended without violence had Kirby not decided to follow her after 

she attempted to remove herself from the contentious situation. Instead, Kirby 

decided to follow her to Stanley’s home where he grabbed her by the arms and 

hair and pushed her. 

[10] Kirby’s criminal history also reflects poorly on his character. “Additionally, 

although a record of arrests by itself is not evidence of a defendant’s criminal 

history, it is appropriate to consider such a record as a poor reflection on the 

defendant’s character, because it may reveal that he or she has not been 

deterred even after having been subjected to the police authority of the State.” 

Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (citing Cotto v. 

State, 829 N.E.2d 520, 526 (Ind. 2005)). The record reveals that Kirby engaged

in criminal activity over a span of more than three decades. In addition to his 

nine convictions, Kirby has been arrested three times for invasion of privacy. 
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He has been arrested twice each for criminal confinement, battery resulting in 

bodily injury, and resisting law enforcement. Kirby has also been arrested for 

battery, burglary, possession of a controlled substance for resale, disorderly 

conduct, maintaining a common nuisance, and interference with the reporting 

of a crime. Kirby’s continued participation in criminal activity demonstrates 

that he has failed to reform his behavior despite numerous opportunities to do 

so. Kirby has also long abused alcohol and such abuse appears to correspond 

with his decision to engage in criminal behavior. Kirby has failed to convince 

us that his 365-day sentence is inappropriate.

[11] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.