Justin Curtis May, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Justin Curtis May (“May”) appeals, following a jury trial, his sentence for Level 5 felony burglary ¹ and Class A misdemeanor theft.² May argues that: (1) his sentence is inappropriate; (2) the trial court abused its discretion when it ordered him to pay restitution; and (3) the trial court erred when it calculated his credit time. Concluding that May has failed to show that his sentence is inappropriate, we affirm that portion of his sentence. However, the State concedes, and we agree, that, the trial court abused its discretion when it ordered May to pay restitution and erred when it calculated his credit time. On these two issues, we reverse the trial court's order and remand with instructions.

[2] We affirm in part, reverse in part, and remand with instructions.

Issues

1. Whether May's sentence is inappropriate.

2. Whether the trial court abused its discretion when it ordered May to pay restitution.

3. Whether the trial court erred when it calculated May's credit time.

Facts

[3] In July 2024, Gary (“Gary”) and Connie Thrasher (collectively, “the Thrashers”), who live in Tennessee, owned a property in Indiana. The property contained a farmhouse, a barn, and a large amount of farmland. Signs prohibiting trespassing were present on the property. Gary had boarded up the farmhouse's doors and windows using plywood and had installed a motion-detecting camera inside the farmhouse (“the farmhouse camera”). The Thrashers stored tote bags full of their possession inside the farmhouse. The property was “overgrown with brush[.]” (Tr. Vol. 3 at 33).

[4] Around midnight on July 7, 2024, forty-three-year-old May and Melody Sebastian (“Sebastian”) drove their truck (“the truck”) onto the Thrasher's property. May was wearing a dark colored cap, a black bandana, a black shirt, camo pants, and black gloves. Sebastian was similarly dressed. They both also had a duffel bag and a flashlight. May and Sebastian approached the front porch of the farmhouse, and May removed the screws securing the board to the front door. May and Sebastian collected tote bags full of the Thrashers’ possessions from just inside the farmhouse and brought them onto the front porch. Additionally, they entered the farmhouse with their duffel bags and looked around using their flashlights. May and Sebastian returned to the front porch and searched through the tote bags. May took a picture frame from the tote bags, and Sebastian took a basket and a jar of paint from the tote bags. May put the picture frame in his duffel bag.

[5] Gary, who was in Tennessee, was awake and reading on his iPad when he saw a notification from his farmhouse camera. Gary checked the farmhouse camera feed and saw May and Sebastian “walking around” inside the farmhouse. (Tr. Vol. 2 at 235). Thereafter, Gary called the Sullivan County Sheriff's Department and informed them that he had seen people inside his farmhouse.

[6] A Sullivan County Sheriff's Deputy (“the deputy”) and a Sullivan City Police Department Officer (“the officer”) (collectively, “the law enforcement officers”) were dispatched to the farmhouse. The law enforcement officers had some difficulty locating the farmhouse due to the overgrown brush on the property. After entering the property, the officer noticed Sebastian's truck. May and Sebastian saw the approaching lights of the police cars and hid in the brush near the front porch of the farmhouse. The deputy announced that he was a sheriff's deputy and ordered anyone there to show themselves. The law enforcement officers approached the front porch of the farmhouse and searched around that area with their flashlights. The officer noticed “two subjects in the brush kind of hiding[,]” and the law enforcement officers drew their firearms. (Tr. Vol. 3 at 34). The law enforcement officers ordered May and Sebastian to show their hands, and the deputy brought May and Sebastian out of the brush.

[7] The law enforcement officers handcuffed May and Sebastian. The officer searched May and found the screws used to secure the boards on the front door and a flashlight. The deputy searched Sebastian and found a jar of paint. The law enforcement officers found the picture frame and the basket in May and Sebastian's duffel bags.

[8] When the law enforcement officers asked May and Sebastian what they were doing on the property, Sebastian told them that she and May had been exploring. May told the law enforcement officers that they had been fishing in a nearby river. The law enforcement officers transported May and Sebastian to the police department.

[9] The next day, Gary returned to the farmhouse. On the front porch of the farmhouse, Gary found multiple tote bags full of his possessions. The tote bags had been left on the front porch and they, along with their contents, had been damaged by the rain. Gary gave the video footage from the farmhouse camera to the police officers.

[10] The State ultimately charged May with Level 5 felony burglary and Class A misdemeanor theft. In May 2025, the trial court held a jury trial.³ The police officers testified at trial, and May testified in his own defense. At the conclusion of the jury trial, the jury found May guilty of all charges.

[11] May's presentence investigation report (“the PSI”) revealed that May has a 2009 Class A felony conviction for attempted dealing in methamphetamine. Additionally, May has a 2002 misdemeanor conviction for the illegal storage or transport of ammonia and a 2019 Class A misdemeanor conviction for operating a vehicle while intoxicated and endangering a person. May also had multiple probation and community corrections violations.

[12] In his PSI interview, May stated that he had just wanted to “check out and look around the old house” and that he had not “taken anything from the house, just the front porch.” (App. Vol. 2 at 99). Additionally, the probation officer who prepared the PSI noted that May “believe[d] he ha[d] the right to go anywhere he want[ed] to go that look[ed] abandoned” and that May felt that “everything they took was trash.” (App. Vol. 2 at 101). May told the probation officer that he had “not do[ne] anything wrong.” (App. Vol. 2 at 101).

[13] At his June 2025 sentencing hearing,⁴ a victim's advocate (“the victim's advocate”) testified on the Thrashers’ behalf. The victim's advocate filed a letter with the trial court that provided that the Thrashers were requesting restitution in the amount of $3,039.97. Additionally, the victim's advocate testified that the $3,039.97 amount included $54 for plywood and $1,000 for a new door. May's counsel asked the victim's advocate how the Thrashers had reached the requested restitution amount, and the victim's advocate replied that Gary had sent her “an itemized list of things that were missing.” (Tr. Vol. 3 at 148). The victim's advocate also explained that the Thrashers were waiting on appraisals for the door and other unspecified items and that Gary had “just verbally g[iven]” her the costs for the door “over the phone” and she had documented them. (Tr. Vol. 3 at 149). The State did not submit any appraisals for the costs of the door or plywood but did submit a hand-written list of items that Gary alleged were missing.

[14] During May's sentencing statement, he apologized for his actions. Specifically, May told the trial court that if he had “known that [the property] was cared for like that, we would've never been there.” (Tr. Vol. 3 at 160).

[15] When discussing aggravators, the trial court noted that May had an “extensive criminal history[,]” which included a Class A felony conviction for attempted dealing in methamphetamine. (Tr. Vol. 3 at 173). Further, the trial court noted May's history of violating probation and community corrections. Also, the trial court found that May had shown “absolutely no remorse[.]” (Tr. Vol. 3 at 173). The trial court did not find any mitigating circumstances.

[16] For May's Level 5 felony burglary conviction, the trial court sentenced May to five (5) years, with four (4) years executed at the Indiana Department of Correction (“the DOC”) and one (1) year suspended to probation. The trial court sentenced May to one (1) year for his Class A misdemeanor theft conviction and ordered that sentence to be served consecutively to his Level 5 felony burglary conviction. The trial court noted that May had twenty-nine (29) days of time served and awarded May 9.6 days of good time credit. Further, the trial court ordered May to pay $527.00 in restitution for the door and the plywood.⁵

[17] May now appeals.

Decision

[18] May argues that: (1) his sentence is inappropriate; (2) the trial court abused its discretion when it ordered him to pay restitution; and (3) the trial court erred when it calculated his credit time. We address each of his contentions in turn.

1. Inappropriate Sentence

[19] May first argues that his sentence is inappropriate. He specifically requests us to “revise the burglary sentence to the advisory sentence of three years, with the theft sentence running concurrently.” (May's Br. 8).

[20] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on 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). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[21] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, a jury found May guilty of Level 5 felony burglary and Class A misdemeanor theft. The sentencing range for a Level 5 felony is between one (1) and six (6) years, and the advisory sentence is three (3) years. See I.C. § 35-50-2-6(b). Further, the maximum sentence for a Class A misdemeanor is one (1) year. See I.C. § 35-50-3-2.

[22] The trial court sentenced May to five (5) years, with four (4) year executed and one (1) year suspended to probation, for his Level 5 felony burglary conviction and one (1) year for his Class A misdemeanor theft conviction. The trial court ordered these sentences to run consecutively for an aggregate six (6) year sentence, with five (5) years executed and one (1) year suspended to probation.

[23] With regard to the nature of the offense, we note that May and Sebastian, who were wearing dark clothing and gloves and were carrying a duffel bag, drove onto the property around midnight. May unscrewed and removed a board blocking the front door, pulled tote bags out of the farmhouse to the front porch, and then entered the farmhouse. May took a picture frame from the Thrashers’ tote bags and placed it in his duffel bag. After the farmhouse camera had alerted Gary that someone had entered the farmhouse, he called the police, who found and arrested May.

[24] With regard to his character, we note that May has a criminal history that includes a 2009 felony conviction for attempting to deal methamphetamine. Additionally, May's criminal history also includes a misdemeanor conviction for operating a vehicle while intoxicated and endangering a person and a misdemeanor conviction for the illegal storage or transport of ammonia. Further, May has violated his probation multiple times. May attempts to minimize his criminal history by arguing that his criminal history was not violent or extensive. Even so, we note that May's former contacts with the law have not caused him to reform himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied. Further, during his PSI interview, May told the probation officer that he had not done anything wrong and that everything he had taken was trash. May's statements during his PSI interview reflect poorly on his character.⁶

[25] Based on the nature of the offenses and his character, May has failed to persuade this Court that his aggregate sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm May's sentence.

2. Restitution

[26] May also argues that the trial court abused its discretion when it ordered him to pay $527.00 in restitution. Specifically, May argues that the cost of replacing the door was “based entirely on a guess by the [Thrashers][.]” (May's Br. 12). The State concedes that the “evidence is insufficient to support the trial court's order[.]” (State's Br. 20).

[27] Indiana Code § 35-50-5-3(a)(1) provides that the “court shall base its restitution order upon a consideration of ․ property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[.]” “Evidence supporting a restitution order is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture.” J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (cleaned up).

[28] Here, the Thrashers did not testify at sentencing. Instead, the victim's advocate testified that the Thrashers told her that they wanted $54 for plywood and $1,000 for a new door. The victim's advocate also explained that the Thrashers were waiting on appraisals for the door and other unspecified items and that Gary “just verbally gave” her the costs for the door “over the phone” and that she had documented them. (Tr. Vol. 3 at 149). We conclude that Gary's verbal estimate made to the victim's advocate of the cost of repair for the door and plywood were mere speculation or conjecture. See J.H., 950 N.E.2d at 734 (holding that a restitution order was based on insufficient evidence where an estimate for a damaged door that did not include costs for labor or materials, with no other testimony supporting its legitimacy, amounted to mere speculation or conjecture). Therefore, we reverse the portion of the trial court's judgment that ordered May to pay $527.00 in restitution.

3. Credit Time

[29] Finally, May argues that the trial court erred when it calculated his credit time. Specifically, May argues that the trial court “erred in awarding 9.6 days of good time credit instead of 10 full days.” (May's Br. 13). The State “agrees that [May] is entitled to 10 days of credit, rather than the 9.6 days of credit[.]” (State's Br. 22).

[30] Credit time is a matter of statutory right and trial courts do not have discretion in awarding or denying such credit. See Harding v. State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). “[D]uring sentencing, a trial court must strive to reach the balance between granting too little or too much credit time, while keeping in mind that the grant of credit time, as remedial legislation, should be liberally construed in favor of those benefitted by the statute.” Niccum v. State, 181 N.E.3d 993, 995 (Ind. Ct. App. 2021) (cleaned up). A person who is not a credit restricted felon and is convicted of a Level 5 felony is assigned a credit time of Class B. See I.C. § 35-50-6-4(b). Additionally, Indiana Code § 35-50-6-3.1(c) provides that “[a] person assigned to Class B earns one (1) day of good time credit for every three (3) calendar days or partial calendar days the person is ․ confined awaiting trial or sentencing[.]”

[31] We have previously explained that a trial court had correctly calculated good time credit of eighty-two (82) days after a defendant assigned to Class B credit had spent 245 actual days in jail. See Moon v. State, 110 N.E.3d 1156, 1161 (Ind. Ct. App. 2018). We note that 245 divided by three (3), which as stated above is the statutory calculation required to determine good time credit for a defendant assigned to Class B, is 81.6. But, the trial court in Moon correctly calculated Moon's credit time as eighty-two (82) days. Here, there is no dispute that May had served twenty-nine (29) actual days, and the trial court awarded him 9.6 days of good time credit. However, like the trial court did in Moon, we agree with the parties that the trial court here should have rounded up the partial day and credited May ten (10) days of good time credit. Accordingly, we reverse and remand to the trial court with instructions to amend its sentencing order and award May with ten (10) days of good time credit.

[32] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Indiana Code § 35-43-2-1.

2.   I.C. § 35-43-4-2.

3.   May and Sebastian were co-defendants at trial. Sebastian also appealed to our Court, and we issued a memorandum decision in her case in cause number 25A-CR-1807. See Sebastian v. State, 277 N.E.3d 1247 (Ind. Ct. App. 2026) (mem).

4.   May and Sebastian were also sentenced by the trial court at the same hearing.

5.   The trial court ordered Sebastian to pay the other half of the restitution amount, for a total of $1,054.

6.   May also argues that the fact that he is a nonviolent offender justifies a downward revision of his sentence. In support of that position, he cites to Lane v. State, 232 N.E.3d 119, 125 (Ind. 2024) for the proposition that “limited jail and prison bed space should be reserved for violent offenders we're afraid of instead of nonviolent ones that we are merely mad at.” (May's Reply Br. 7-8) (quotation marks omitted). But, we note that in Lane, the Indiana Supreme Court also explained that “[o]ne of the most important tasks for a trial judge is to determine which low-level offenders are not good candidates for community corrections or problem-solving courts” and that the “standard of review offers deference to a trial court's considered decision on this score, as on all sentencing matters.” Lane, 232 N.E.3d at 126. Here, the trial court specifically noted that May had violated his probation and community corrections in the past, and we give deference to the trial court's sentencing decision.

Pyle, Judge.

Bradford, J., and Kenworthy, J., concur.