Brian Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2016
• Docket: 49A05-1601-CR-43
• Status: Published

Opinion

MEMORANDUM DECISION FILED Aug 16 2016, 9:18 am

Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court this Memorandum Decision shall not be Court of Appeals and Tax Court 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 Michael Fisher Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brian Davis, August 16, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1601-CR-43 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William J. Nelson, Appellee-Plaintiff. Judge The Honorable Shannon Logsdon, Commissioner Trial Court Cause No. 49G18-1507-F6-23520

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 1 of 10 Statement of the Case [1] Brian Davis (“Davis”) appeals his sentence, following a bench trial, for Level 6

felony strangulation,1 Level 6 felony criminal confinement,2 and Class A

misdemeanor battery resulting in bodily injury.3 Davis argues that his aggregate

two and one-half year sentence is inappropriate and requests this Court to

review the length of his sentence and his placement at the Indiana Department

of Correction. Concluding that Davis has failed to show that his sentence is

inappropriate, we affirm his sentence.

[2] We affirm.

Issue Whether Davis’s sentence is inappropriate.

Facts [3] Around 3:00 a.m. on July 5, 2015, Davis, who was on probation in two

separate causes,4 approached Carrie Grant (“Grant”) near the corner of 10th

Street and Emerson Avenue in Indianapolis. Davis knew Grant from a

1 IND. CODE § 35-42-2-9(b). 2 I.C. § 35-42-3-3(a). 3 I.C. § 35-42-2-1. 4 Davis was on probation in cause number 49G18-1004-FD-026770 from convictions for Class D felony theft and Class D felony check fraud and in cause number 49G18-1007-FC-054629 from a Class C felony forgery conviction. Based on Davis’s convictions in this case, the trial court revoked his probation in those two probation causes. Davis does not appeal the revocation of his probation in those two causes.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 2 of 10 previous encounter, and he asked her to go to a motel with him. The pair then

drove separately to a Knights Inn motel near 21st Street and Shadeland Avenue.

[4] Once in their motel room, Davis and Grant smoked some crack cocaine, which

Davis had brought with him. At some point, Grant went into the bathroom,

began talking on the phone, and returned naked from the waist down. After

Davis took “two hits” from the crack pipe, he made “a funny noise[,]” and then

“grabbed [Grant] and . . . slammed [her] on the bed[.]” (Tr. 9, 10). Davis

“scream[ed]” at Grant, “threw [her] back on the bed[,]” and “started beating . .

. [her] head on[]to the bed[.]” (Tr. 11). They then fell to the floor, and Davis

got on top of Grant, who was lying face down on her stomach. Davis grabbed

Grant’s neck with his arm and elbow and “kept doing it harder and harder” to

the point that Grant could not breathe. (Tr. 16).

[5] When Davis lessened his grip, Grant ran to the door. As she reached for the

door handle, Davis quickly ran over and grabbed Grant to stop her from exiting

the room. Grant clung onto the handle in an attempt to escape while Davis

tried to pull her away from the door. Grant then broke the window next to the

door and screamed for help. Despite Grant’s pleas for Davis to stop, he did not

let her go. Instead, he told her to put her pants on and then invited her to “go

do another hit[.]” (Tr. 18). Subsequently, the “door opened somehow[,]” and

Grant managed to get her arm into the opening of the doorway. (Tr. 19).

Davis then repeatedly slammed her arm in the door to prevent her from leaving.

Eventually, Grant broke free from Davis and ran to another motel room, and

the man in that room called the police. When the police officers arrived on the

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 3 of 10 scene, they found Grant bloody, bruised, and wrapped in a comforter. The

officers also spoke to Davis, who had blood on his shirt.

[6] Thereafter, the State charged Davis with: Count I, Level 6 felony strangulation;

Count II, Level 6 felony criminal confinement; Count III, Class A

misdemeanor battery resulting in bodily injury; and Count IV, Class A

misdemeanor battery. The trial court held a bench trial on December 3, 2015.

Davis testified in his own defense and denied beating or strangling Grant.

Davis admitted that he had tried to stop Grant from exiting the room, but he

testified that he did so because he thought Grant was setting him up to be

robbed and because he did not want her to leave the room without her pants.

The trial court found Davis guilty as charged.

[7] The trial court held a joint hearing for Davis’s sentencing and his two probation

violations. During the hearing, Davis argued that the trial court should

consider as a mitigator the fact that Grant “had a part in what happened”

because she “participated” in smoking the crack cocaine. (Tr. 96). In regard to

his sentence, Davis asked that the trial court sentence him to one year executed

in community corrections and one and one-half years suspended to probation if

it was going to sentence him to “a full sentence of two and a half years[.]” (Tr.

97). Davis also requested that he be placed on community corrections for his

two probation violation cases.

[8] The State, highlighting that Davis was on probation in two cases when he

committed the current offenses, argued that there was not “any reason for the

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 4 of 10 Court to impose anything other than the maximum sentence . . . [of] two and a

half years under this case or the full back up time” for his two probation causes.

(Tr. 100). In response to Davis’s request to be placed on community

corrections, the State argued that the trial court should not place Davis on

community corrections for his probation violation cases and that, for the

current offenses, it would “ask for at least one year executed in the Department

of Correction” with the remaining time on community corrections. (Tr. 103)

(emphasis added).

[9] When addressing Davis’s proffered mitigating circumstance regarding Grant’s

alleged participation by using drugs, the trial court stated that it found it to be

only “somewhat of a mitigator” and that it was “not going to put much weight

on” it. (Tr. 113). The trial court acknowledged the “the things that occurred in

this case, while they may have started based in the fact that you were both

engaged in illegal activity, certainly were not necessitated by those illegal

activities.” (Tr. 113).

[10] The trial court found Davis’s criminal history and the fact that he was on

probation to be aggravating circumstances. The trial court noted that Davis’s

criminal history, which included fourteen felony convictions, eight

misdemeanor convictions, and thirty arrests was the “most significant

aggravator.” (Tr. 114). It declined to place Davis on community corrections,

noting that his criminal history was “essentially overpowering.” (Tr. 120). The

trial court also noted that during Davis’s previous incarcerations, he had

accumulated twenty-six conduct reports.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 5 of 10 [11] Before imposing its sentence, the trial court vacated Davis’s Count IV

conviction and merged it with his Count III conviction. The trial court

imposed an aggregate executed sentence of two and one-half (2½) years to be

served in the Department of Correction. Specifically, the trial court imposed

concurrent sentences of two and one-half (2½) years for Davis’s Level 6 felony

strangulation and Level 6 felony criminal confinement convictions and one (1)

year for his Class A misdemeanor battery resulting in bodily injury conviction. 5

Decision [12] Davis argues that his aggregate two and one-half year sentence for his three

convictions is inappropriate. He challenges both the length of his sentence and

his placement at the Department of Correction.

[13] This Court may revise a sentence if it is inappropriate in light of the nature of

the offense and the character of the offender. Ind. Appellate Rule 7(B). The

defendant has the burden of persuading us that his sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principle role of a

Rule 7(B) review “should attempt to leaven the outliers, and identify some

guiding principle for trial courts and those charged with improvement of the

5 As for Davis’s two probation violation causes, the trial court ordered Davis to serve two years of his previously four-year suspended sentence in one cause and ordered him to serve three and one-half years of his previously suspended sentence in the other cause. The trial court also ordered that Davis’s aggregate two and one-half year sentence in this cause was to be served consecutively to the sentences in these two probation violation causes. See IND. CODE § 35-50-1-2(e)(1) (providing that “[i]f, after being arrested for one (1) crime, a person commits another crime . . . before the date the person is discharged from probation . . . the terms of imprisonment for the crimes shall be served consecutively”).

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 6 of 10 sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is

inappropriate ultimately turns on the “culpability of the defendant, the severity

of the crime, the damage done to others, and a myriad of other factors that

come to light in a given case.” Id. at 1224.

[14] 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, the trial court found Davis guilty of Level 6 felony strangulation, Level 6

felony criminal confinement, and Class A misdemeanor battery causing bodily

injury. The sentencing range for a Level 6 felony is between six (6) months and

two and one-half (2½) years, with an advisory sentence of one (1) year. I.C. §

35-50-2-7(b). A Class A misdemeanor carries a maximum sentence of one (1)

year. I.C. § 35-50-3-2.

[15] The nature of Davis’s offenses involved an attack on Grant after he took her to

a motel and smoked crack cocaine with her. The record reveals that Davis

slammed Grant’s head on the bed and squeezed her neck with his arm to the

point where she could not breathe. Additionally, when Grant tried to escape

from the motel room, Davis prevented her from leaving and repeatedly

slammed her arm in the door. Grant, who was half-naked at the time, was

eventually able to run out of the room.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 7 of 10 [16] Davis attempts to downplay the nature of his offenses by arguing that the

“incident was the product of crack cocaine usage in which the victim willingly

participated.” (Davis’s Br. 12). We disagree with Davis’s attempt to shift the

blame for his criminal offenses onto Grant. While Grant may have voluntarily

used crack cocaine along with Davis, she did not voluntarily participate in

Davis’s acts of strangulation, confinement, and battery. Furthermore, the trial

court addressed this argument at sentencing and stated that it did not find

Grant’s participation to be a significant mitigating circumstance. The trial court

acknowledged the “the things that occurred in this case, while they may have

started based in the fact that you were both engaged in illegal activity, certainly

were not necessitated by those illegal activities.” (Tr. 113).

[17] As to Davis’s character, the record reveals that Davis, who was fifty-five years

old at the time of his offenses, has an extensive criminal history, including

fourteen felony convictions, eight misdemeanor convictions, and thirty arrests.

Indeed, the trial court found that his criminal history was the “most significant

aggravator.” (Tr. 114). Additionally, Davis committed the current offenses

while on probation in two separate causes, and he has violated his probation in

the past. Furthermore, as the trial court noted during sentencing, Davis had

accumulated twenty-six conduct reports during his previous incarcerations.

Thus, Davis’s character reveals a disregard for the law and the authority of the

courts.

[18] Lastly, we address Davis’s challenge to his placement at the Department of

Correction. Davis contends that his aggregate two and one-half year sentence

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 8 of 10 was inappropriate because the trial court ordered that the entire sentence be

served at the Department of Correction. He asserts that his placement at the

Department of Correction was “unduly harsh[,]” especially where the

prosecutor did not recommend that the entire sentence be served there.

(Davis’s Br. 14). He suggests that the trial court should have considered other

sentencing options, such as community corrections.

[19] In regard to a defendant’s challenge to his placement, our Indiana Supreme

Court has explained that “[t]he place [where] a sentence is to be served is an

appropriate focus for application of our review and revise authority.” Biddinger

v. State, 868 N.E.2d 407, 414 (Ind. 2007). Nevertheless, “it will be quite

difficult for a defendant to prevail on a claim that the placement of his sentence

is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

“This is because the question under Appellate Rule 7(B) is not whether another

sentence is more appropriate; rather, the question is whether the sentence

imposed is inappropriate.” Id. at 268 (emphasis in original). “[A] defendant is

not entitled to serve his sentence in a community corrections program[.]”

Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995).

[20] Here, Davis relies on the prosecutor’s statement, made during the sentencing

hearing, that the State was “ask[ing] for at least one year executed in the

Department of Correction” with the remaining time on community corrections

for Davis’s current offenses. (Tr. 103) (emphasis added). The prosecutor’s

statement, however, was made in response to Davis’s argument that the trial

court sentence him to one year executed in community corrections and one and

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 9 of 10 one-half years suspended to probation for his current offenses and that he be

placed on community corrections for his two probation violation cases. During

sentencing, the trial court declined Davis’s request to be placed on community

corrections, noting that his criminal history was “essentially overpowering.”

(Tr. 120). Davis has not shown that his placement in the Department of

Correction, instead of on community corrections, is inappropriate. Davis has

an extensive criminal history and committed these offenses while on probation

in two other causes. Because Davis has not persuaded us that his aggregate two

and one-half year sentence for his three offenses is inappropriate, we affirm the

trial court’s sentence.

[21] Affirmed.

Kirsch, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016 Page 10 of 10