Austin Weir, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Austin Weir appeals his seven-year sentence for Level 5 felony battery with a deadly weapon,¹ Level 6 felony battery resulting in moderate bodily injury,² and two counts of Level 6 felony pointing a firearm at another person.³ Weir argues his sentence is inappropriate based on the nature of his offenses and his character. We affirm.

Facts and Procedural History

[2] On August 29, 2022, Cesar Rosales and Jaime Taxilaga Tepach were landscaping near the intersection of 196th Street and Grassy Branch Road in Westfield. Rosales began crossing Grassy Branch Road and saw Weir's truck speeding toward him. He signaled for Weir to stop. Weir ran the stop sign at the intersection and then pulled over to the side of the road. He exited his truck and walked across the street to confront Rosales. Weir used a racial slur to describe Rosales and Tepach and said to Rosales, “I'm going to kill you, you f*cker[.]” (Id. at 176.) Rosales asked Weir what the problem was, and Weir responded, “the problem is you.” (Id. at 128.) Weir then went back to his truck and retrieved a handgun. He pointed it at Rosales and Tepach as he walked toward them. He then hit Rosales “over the head with his gun” twice, causing Rosales's head to bleed and swell. (Id. at 130.) Weir pointed the handgun at Rosales's chest, said, “[y]ou're done[,]” and pulled the trigger. (Id. at 131.) The gun did not fire, however, because the magazine had fallen out. Weir retrieved the magazine and pointed the gun at Rosales and Tepach as he backed to his truck. He then drove away.

[3] Officers located Weir's truck based on the description Tepach gave to police. When they arrested Weir, he was carrying a handgun in the waist of his shorts. The next day, the State charged Weir with Level 1 felony attempted murder,⁴ Level 5 felony battery with a deadly weapon, Level 6 felony battery resulting in moderate bodily injury, and two counts of Level 6 felony pointing a firearm. After a three-day jury trial, the jury returned guilty verdicts for all counts except Level 1 felony attempted murder, for which they entered a verdict of not guilty. The trial court entered convictions accordingly.

[4] On January 13, 2025, the trial court held a sentencing hearing. In determining Weir's sentence, the trial court identified several aggravating factors supporting an enhanced sentence, including: Weir's criminal history; Weir's commission of a crime during pre-trial release; the fact that there were multiple victims and that the harm suffered by the victims surpassed that required to satisfy the elements of the crimes; and that “[t]here was some evidence that this was a biased crime ․ and the victims belonged to a protected class of citizens.” (Tr. Vol. III at 124.) The trial court found the undue hardship to Weir and his family as well as his steps towards positive change as mitigators. Based thereon, the trial court sentenced Weir to five years incarcerated for the Level 5 felony and two years incarcerated for each of the Level 6 felonies. The trial court ordered the two Level 6 felony pointing a firearm convictions to be served concurrent with each other but consecutive to the Level 5 felony sentence, for an aggregate sentence of seven years incarcerated.

Discussion and Decision

[5] Weir argues his sentence is inappropriate based on the nature of his offense and his character. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence “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.” Our determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Our review is deferential to the trial court's decision, and our goal is to determine whether the appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. We consider not only the aggravators and mitigators found by the trial court, but also any other factors appearing in the record.

George v. State, 141 N.E.3d 68, 73-74 (Ind. Ct. App. 2020) (internal citations omitted), trans. denied. “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). “The appellant bears the burden of demonstrating his sentence is inappropriate.” Wells v. State, 2 N.E.3d 123, 131 (Ind. Ct. App. 2014), trans. denied.

[6] A defendant need not prove a sentence is inappropriate given both the defendant's character and offense, but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief.” Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024). Our focus in evaluating an inappropriate sentence claim is on “the forest – the aggregate sentence – rather than the trees – consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at 1225. Thus, we examine whether Weir's seven-year aggregate sentence is inappropriate.

[7] “When considering the nature of the offense, we first look to the advisory sentence for the crime.” McHenry v. State, 152 N.E.3d 41, 46 (Ind. Ct. App. 2020).

When determining the inappropriateness of a defendant's sentence that deviates from the advisory sentence, we consider whether there is anything more or less egregious about the offense as committed by the defendant that distinguishes it from the typical offense accounted for by our legislature when it set the advisory sentence.

Madden v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). Here, Weir was sentenced to five years for the Level 5 felony and two years for the Level 6 felonies. The sentencing range for a Level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). The sentencing range for a Level 6 felony is six months to two and a half years, with an advisory sentence of one and a half years. Ind. Code § 35-50-2-7(b). Weir received an aggregate sentence of seven years, which was midway between the advisory and maximum sentence that the trial court could have imposed.

[8] Weir concedes, regarding the nature of his crime, that “there is no doubt that these battery offenses involved brutality[.]” (Br. of Appellant at 7.) We agree. Weir committed an unprovoked attack against Rosales, hitting him in the head two times with a handgun and pulling the trigger while pointing a gun at his chest. Rosales sustained injuries to his head. Weir again pointed his gun at Rosales and Tepach as he left the scene. In addition, Weir's use of racial slurs indicates his crimes were motivated at least in part by racial animus. The brutality and senselessness of Weir's crimes lead us to conclude his sentence is not inappropriate based on the nature of his offenses.

[9] Weir's argument primarily focuses on his character. He acknowledges his criminal history but asserts “none were crimes of violence or physical force ․ [and thus] he should be labeled in a better class of offenders than those with physical violence in the past.” (Br. of Appellant at 7.) He also asserts that the positive changes he made while incarcerated render his sentence inappropriate.

[10] “When considering the character of the offender, one relevant fact is the defendant's criminal history.” Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Prior to this case, Weir had been convicted of four misdemeanors, including driving while suspended, invasion of privacy, and interfering with the reporting of a crime. According to his presentence investigation report, two protective orders had been entered against Weir to protect past romantic partners. In addition, while trial was pending for the offenses before us, Weir was arrested and convicted of Class B misdemeanor possession of marijuana.⁵ While in jail awaiting trial for the marijuana offense, Weir was disciplined for tampering with a smoke detector. Finally, when discussing his present offenses for the presentence investigation report, Weir did not express any remorse for his crimes and instead asserted he was innocent and Rosales had been the aggressor.

[11] Weir ignores those negative aspects of his character and instead focuses on the programs he participated in while in jail and the positive impacts he asserts they had on him and his fellow inmates. At his sentencing hearing, Weir presented multiple letters from other inmates and jail employees praising the positive changes Weir had made in their lives through his participation in bible study and other religious activities. While these steps toward improvement are notable, they do not illustrate “substantial virtuous traits or persistent examples of good character” that would warrant a reduction in his sentence, especially considering his criminal history, discipline while incarcerated, and lack of remorse. Stephenson, 29 N.E.3d at 122. Based thereon, we conclude Weir's sentence is not inappropriate based on his character. See, e.g., Denham v. State, 142 N.E.3d 514, 518 (Ind. Ct. App. 2020) (sentence above the advisory not inappropriate based on defendant's criminal history and attempt to “minimize his culpability” for the commission of his crime), trans. denied.

Conclusion

[12] Weir has not demonstrated his seven-year aggregate sentence is inappropriate based on the nature of his offenses and his character. Accordingly, we affirm.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-1(g)(2).

2.   Ind. Code § 35-42-2-1(e)(1).

3.   Ind. Code § 35-47-4-3(b).

4.   Ind. Code § 35-42-1-1 (murder); 35-42-5-1 (attempt).

5.   Ind. Code § 35-48-4-11(a).

May, Judge.

Chief Judge Altice and Judge Foley concur. Altice, C.J., and Foley, J., concur.