MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2020, 9:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana
Josiah Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christopher Keller, July 31, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-148 v. Appeal from the Jefferson Circuit Court State of Indiana, The Honorable Donald J. Mote, Appellee-Plaintiff Judge Trial Court Cause No. 39C01-1907-F3-929
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 1 of 18 Case Summary [1] Christopher Keller pled guilty to four counts of Level 3 felony aggravated
battery. The trial court sentenced Keller the maximum term of sixteen years for
each offense and ordered the sentences be served consecutively for a total
sentence of sixty-four years. Keller presents two issues for our review:
1. Did the trial court abuse its discretion in ordering the sentences be served consecutively?
2. Is the sentence imposed inappropriate?
[2] We affirm.
Facts & Procedural History [3] On May 25, 2019, Kyla Hammons (Mother) left her eighteen-month-old
(Child) and ten-month-old sons in the care of Keller, her fiancé, 1 while she went
to work. Mother returned home around 11:00 p.m. and both of her children
were asleep. The following morning Mother noted that Child was “clingy” and
“fussy” when she was out of his sight. Transcript Vol. II at 22, 23. Because
Child could not talk yet due to his age and no visible injuries had manifested,
Mother attributed Child’s behavior to the possibility that he might be getting
sick.
1 Mother and Keller were married on May 28, 2019.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 2 of 18 [4] On June 7, 2019, Mother again left Child and his infant brother in Keller’s care
while she went to work. When she arrived home around 11:45 p.m., she
looked in and saw Child sleeping in his crib and did not suspect anything out of
the ordinary. Around 6:00 a.m. the following morning, Mother went to Child
and noticed bruising on his face and a bite mark on his arm that were not
present when she left for work the day before. Child cried and winced in pain
whenever Mother touched him. As she undressed Child, she discovered that he
was “covered head to toe with bruises.” Id. at 26. She immediately took Child
to the local hospital, where he was examined and then referred to Riley
Hospital for Children. An examination of Child revealed that he had suffered
four compression fractures to his spine; two possible additional backbone
fractures; elevated liver enzymes indicating a liver injury; an injury under his
tongue; missing patches of hair on both sides of his head; bruising on his right
collar bone, back, left ear, thighs, knees, shins, calves, and feet; patterned
bruising (in the shape of a circle) to his upper left arm; “significant bruising” to
his forehead, left cheek, nose, and under both eyes as well as to his right
forearm; and scratches over his hands and feet. Exhibit Volume at 38.
[5] While at the hospital, Mother texted Keller about Child’s injuries and Keller
suggested that his two-year-old daughter inflicted the injuries on Child during
normal toddler play. When Mother sent him a picture of the bite mark on
Child’s arm, Keller explained that his daughter bit Child and that he “smacked”
her and “busted her mouth open” and “made her lip bleed.” Id. at 20, 18, 19.
Keller then texted Mother, “yeah ok bitch I didn’t touch your dumbass little
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 3 of 18 slow learning crying ass child” and “bitch once again I have video with me and
the kids so f*ck you go die or kill yourself I would love for you to do that one
more if you killed yourself nice and slowly.” Id. at 21. He also sent a message
to Mother that he “DIDN’T TOUCH HIT KICK SMACK PUNCH OR BITE
YOUR CHILD…..[CHILD] GOT HIS ASS HANDED TO HIM BY A 2
YEAR OLD GIRL.” Id. at 23 (capitalization in original). He continued in
another text that “if I lose my daughters or I go to jail because of you I swear on
everything I love in this world I will make every waking day of your life a living
hell I swear I didn’t touch [Child].” Id. at 25.
[6] On July 25, 2019, the State charged Keller with two Level 3 felonies for battery
on a child under fourteen years of age and neglect of a dependent. At some
point thereafter, police were notified about a memory card from a surveillance
system inside Keller’s home that was found under the mattress in his bedroom.
Police secured the memory card pursuant to a warrant and discovered that it
contained a video of Keller abusing Child. 2 The video was date stamped May
25, 2019.
[7] Based on the content of the video, on August 9, 2019, the State amended the
charging information to include a charge of attempted murder and sixty-eight
other counts of aggravated battery, battery, neglect, contributing to the
delinquency of a minor, and reckless supervision of a minor as Level 3, Level 5,
2 When police recovered the memory card, they learned that the surveillance system had been removed from Keller’s home.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 4 of 18 and Level 6 felonies. On December 18, 2019, Keller pled guilty to four counts
of aggravated battery as Level 3 felonies in exchange for dismissal of the
remaining charges. 3 Sentencing was left open to the court’s discretion. The
court held a sentencing hearing the same day.
[8] The presentence investigation report showed that Keller had three prior felony
convictions, seven prior misdemeanor convictions, and that Keller was on
probation at the time of the instant offenses. Of his prior convictions, in 2014,
Keller pled guilty to domestic battery in the presence of a child less than sixteen
years old as a Class D felony and strangulation as a Class D felony in a case
where he was also charged with battery resulting in bodily injury to a pregnant
woman. Regarding the current offenses, Keller reported that he was under the
influence of methamphetamine, heroin, Subutex, and “Flocka”. Appendix Vol.
Two at 144.
[9] During the sentencing hearing, the State played excerpts from the video of
Keller’s abuse of Child. The video begins with Keller repeatedly shoving Child
into the crease of a couch until he became quiet and then forcefully slapping
Child in the back of the head. Keller then directed his two-year-old daughter to
jump on Child and as she was jumping on Child’s legs, Keller picked her up
and threw her on Child’s head. Less than a minute later, Keller torments Child
3 The time stamp on the video showed that the offenses to which Keller pled guilty occurred at 10:53 a.m., 3:11 p.m., 5:46 p.m., and 7:10 p.m. Thus, the time periods that elapsed between the acts were 4 hours 18 minutes; 2 hours 35 minutes; and 1 hour 24 minutes.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 5 of 18 by muttering in his face and then striking him about the head numerous times
with his hand. Keller then placed Child in a smothering headlock for
approximately forty seconds. He allowed only Child’s squirming legs to escape
the weight of his body. As Keller walked away, he shoved Child’s face into the
couch cushion. About a minute passed and then Keller put Child in another
headlock for about thirty seconds, during which Child’s squirming legs were
visible. Keller again encouraged his young daughter to jump on Child as he lay
crying. Keller then resumed his smothering of Child as Child struggled to free
himself. Keller walked away from Child but returned about thirty seconds
later, picked up Child, and body slammed him into the couch, keeping his
weight on Child for about fifteen seconds as Child struggled beneath him.
[10] About an hour later, Keller repeatedly punched Child’s bottom with the palm of
his hand before transitioning to violent thrusts to Child’s lower back as Child
was lying face down on the couch. The thrusts were so forceful as to cause
Child to bounce about a foot in the air. Before walking away, Keller repeatedly
slapped Child’s feet. About three minutes later, Keller is seen holding Child but
as he does, he presses Child’s face into his body.
[11] About four hours later Keller held Child parallel to the ground and dropped
him about two feet onto a blanket. Five minutes later he slapped Child in the
mouth and then kicked him with enough force to cause Child to slide several
feet across the floor. Within the next hour, Keller carried Child by his ankles
before throwing him on the couch and repeatedly encouraged his daughter to
“[g]et him.” Exhibit 17. Keller also placed Child on top of a couch cushion that
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 6 of 18 was on the floor but standing on its side and forced Child to fall forward and hit
the floor headfirst. Keller then jumped on Child—knees first—as his daughter
smothered Child’s head with a pillow. About fifteen seconds after Keller
removed his weight from Child, Keller forcefully tackled Child.
[12] Keller placed Child on top of the inverted couch cushion again and pushed
Child to the floor. He did this numerous times and during one instance, Child’s
neck appears to snap backward. As Child was lying face up on the floor, Keller
smothered Child with a pillow and then jumped on the pillow with all his
weight, hitting Child’s feet as he squirmed under him. Keller got up and yelled
at Child to “get the f*ck up.” Id.
[13] While Keller changed Child’s diaper, he pinched Child’s penis and yelled at
him to “Quit!” Id. He then used the palm of his hand to apply pressure to
Child’s anus and placed the soiled side of the diaper on Child’s face and pushed
it down. After he placed a fresh diaper on Child, Keller used the back of his
hand to strike Child six times on his penis. Keller continued to hover over
Child and sat his laughing daughter on Child’s face. Keller placed his face next
to Child’s and repeatedly screamed, “She got you!” Id. Child responded by
lying silently on the floor. Keller then thrust his elbow into the side of Child’s
neck as his daughter hung on his other arm. Keller and his daughter then sat on
Child with all their weight for about thirty seconds. About a minute later,
Keller smacked Child in the face and threw him on the couch. Child then
endured thirteen strikes by a pillow and each time Keller wound up and hit
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 7 of 18 Child with all his might. Keller then drug Child to another part of the couch by
his hair.
[14] Over an hour later, Keller returned to body-slamming Child, and he smacked
Child five times. When Child continued to cry, Keller picked him up and
smacked his bottom twenty-six times. About thirty minutes later, Keller
allowed Child to fall from his knee face first into the floor, began texting, and
then smacked Child a few more times. Keller forced Child to stand up and as
he picked up Child, he growled at him, let him fall back to the floor, and then
growled at him again. Keller continued by bouncing Child on his knee while he
hopped around on his other leg, grimacing to show his increased effort. Keller
also placed a couch cushion on top of Child and then sat on the cushion.
[15] The State suggested that given the date stamp and the fact that some of Child’s
injuries were not explained by Keller’s conduct as depicted in the video, that
Keller abused Child on May 25 and again when Child was in his care on June
7. Because there was no video from June 7, Detective Yancy Denning of the
Jefferson County Sheriff’s Department testified that “[u]nfortunately” it was
impossible to know “what happened to cause” the injuries Child presented with
on June 8, 2019. Transcript Vol. II at 42.
[16] Dr. Lucinda Woodward also testified at the sentencing hearing. She informed
the court that Child now experiences post-traumatic stress disorder, nightmares,
fear of strangers, and fear of baths. Dr. Woodward also explained that Child
now exhibits “verbal delays” which suggests he is “on a path for
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 8 of 18 neurobiological damage, long-term consequences.” Id. at 47. The State also
submitted a letter from Dr. Cortney Demetris, a child abuse pediatrician at
Riley. Dr. Demetris reviewed the video and noted that “the video clips
revealed horrific repeated severe unprovoked physical abuse” of Child that was
“life threatening.” Exhibit Vol. at 39. She concluded, stating:
There are not words to express in full the pain and suffering experienced by [Child] during the many hours in which he was tortured and beaten by [Keller]. [Child] is witnessed to be crying at times, withdrawn at times, and even possibly unconscious briefly at various times. He was at substantial risk for death during many of the video clips including those of suffocation, repeated impact to his head, repeated forces applied about his neck resulting in dangerous neck positions, and other traumatic forces applied about his body including those that resulted in his compression fractures of the backbones. In the more than 15 years I have been evaluating children who are victims of child abuse, including hundreds of cases of severe physical abuse, this case stands out as one of the most severe.
Id. at 40.
[17] In its written sentencing order, the court noted that the video supported the
conclusion that Keller “made a series of decisions over an entire day, thinking
of novel ways to inflict harm to [Child].” Appendix Vol. Two at 241. The court
also set out the aggravating and mitigating circumstances it identified during the
sentencing hearing. In its oral sentencing statement, the court addressed each
proffered mitigator and aggravator as follows:
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 9 of 18 With respect to the undue hardship on the dependents, the Court rejects this argument. The Court credits the State’s argument that the undue hardship is not supported by the record. In fact, the Court demonstrates that [Keller] began using his daughter . . . as an instrument to batter [Child] at the beginning of the day, gradually encouraging the child – encouraging the child to harm [Child]. I have noted at 10:52 in the video he’s instructing her to step on [Child]. At 15:08 he’s instructing [his daughter] repeatedly to “Get him, . . . . Get him.” By the end of the evening, it appears from the video clearly that [Keller’s daughter] is assaulting [Child] without any prompting. At 19:20 she’s sitting on him casually watching cartoons. She body tackles [Child] at 19:23, and she shoves [Child] to the floor at 19:24. [Keller] chose not to intervene. I won’t go so far as to say that Mr. Keller’s children are better off . . . and the hardship will be significant, but I cannot conclude that it’s undue. The Court gives very little weight to remorse. The Court credits the State’s argument that the communications made to [M]other at the time that [Keller] was confronted with the injuries to [Child] were shockingly indifferent. In fact he . . . went on the offensive, encouraging suicide and even making threats to her that he would make her life miserable. The Court gives in terms of accepting responsibility with his plea of guilty – the Court affords [Keller] little weight. The offenses that he’s plead [sic] guilty to are on high definition video, and the Court sees his plea of guilty more of a pragmatic decision than an acceptance of responsibility. As to drug addiction, the Court . . . gives this factor zero weight. If you credit [Keller]’s version, he was caring for his daughter and [Mother]’s two boys under the influence of methamphetamine, Subutex, heroin and (inaudible) and this is exactly the reason why a trial court would restrict parenting time in a CHINS case for parents who are inactive [sic] addiction, and again that’s if the Court credits this version. But what the video supports is in fact a calculated series of decision[s] over an entire day. It appeared to me that . . . Keller was basically trying to think up new ways – he was looking up in the sky kind of pondering what new and novel ways he could use to harm
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 10 of 18 [Child]. The Court also finds that he was offered treatment at least one time in October 2014 . . . . Regarding the aggravators, the Court finds the harm, injury damage and loss – I’ll say loss because . . . we don’t know what necessarily the future holds for [Child], but that it was significant and greater than the elements necessary to prove the commission of the offense. Compelling to this Court was [Mother’s] testimony that she couldn’t even touch [Child] without him wincing. He has night terrors. He wouldn’t even sit for a bath which is a treasured time for any parent and a treasured time for any child. To be in a warm bath should be a place of safety with your . . . parent, and the Court finds that . . . it’s very troubling to the Court. And also the fact that [Child] won’t sleep on his back. The Court is very troubled by that. Sleeping on your back demonstrates submission. It demonstrates safety. It demonstrates your [sic] okay with your environment, so you’re willing to lay supine, prone on – on your bed and you’re not afraid of anything, and [Child] is the opposite of that. He’s – he’s always looking around the corner worried about what’s coming now. The trauma that was described by Dr. Woodward was also significant, the medical intervention, the brain scan and the harm that that caused on [Child] and then not only that but this sort of twisted irony that – that even Mr. Keller’s incarceration is going to cause pain to [Child]. It’s difficult for this Court to – to reconcile that to know that [Child] loves Mr. Keller and will now be in pain – further pain with the idea that he’s facing incarceration. The Court finds another – the other – an additional statutory aggravator, his criminal history. [Keller] has, by my count, ten prior convictions over the course of . . . 2003 to 2018, so fifteen years . . . . [T]he Court sees Mr. Keller as having been given ten chances to sort of figure things out, and the other thing that’s striking to the Court is that according to the Pre-Sentence Investigation Mr. Keller was afforded leniency time and time and time again. . . . I saw so many times where he was offered time-served sentences and received probation, and he chose to turn his back on all of those things . . . and this demonstrates to the Court that he is not a good candidate for community supervision. The statutory
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 11 of 18 aggravator that the victim was less than 12 is clearly in the record. [Child] was 17 months at the time. He was on this planet 537 days not including the time that he spent in his mother’s womb, and that is a horrible begin[ning to] your life. [Keller] committed these crimes in the physical presence of a child less than 18. His two-year old daughter was present, not only present but recruited by [Keller] to continue on with the assaults on [C]hild, and the Court also recognizes [Child]’s baby brother was present at the time of these assaults. [Keller] was on probation at the time of this offense. He admitted, and again if you credit that version in the Pre-Sentence Investigation, he admitted to using four different hard drugs at the time of this offense while he’s on probation. It doesn’t seem that anything really mattered. The probation terms before – it’s confusing to this Court and the message is clear – will be clear for Mr. Keller that probation is a privilege. We’re offering serves [sic] to you to remove barriers, to intervene, to help you, to figure out what the trouble is so that we as a community come together and try to fix the problems. That’s what probation is, and when you violation [sic] probation this Court sees that as . . . significant and will . . . hold you accountable. [Keller] had care and custody or control over [C]hild at the time of the offense. Mom leaves her baby boys in your care so she could go to work . . . . You think about all the single parents out there that don’t have that option, but she left the boys in your care so she could go to work, and she trusted you, and we all trusted you with those babies, and you violated that trust in what the Court sees as an unimaginable way. The non-statutory aggravator the Court finds is the nature and circumstances in this case are particularly troubling. Using a full – the full weight and strength that you had, your delivering blows to this 17-month old baby knocking him down, holding him above your head by the thighs causing him to arch his back which had to be extremely painful, balancing him . . . on your thigh, bouncing him violently. That had to strike his genitals on more than one occasion, and that had to be tremendously painful. I saw at 14:39 while you were changing his diaper that you pinched his penis in a way that harmed him and caused him
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 12 of 18 to cry out. That was not lost on this Court. I saw also that at a different time it appeared to this Court that you forced your finger into – inside [C]hild while you’re wiping his bottom because he cried out as you did that, using an arm bar on his neck, screaming at him nose-to-nose repeatedly, and what the Court struggled with today, not that any of it was really something to tolerate, but screaming the song “Itsy Bitsy Spider” at this baby . . . was just a lot. The Court finds that the aggravating circumstances by far outweigh any mitigation presented before the Court today. The Court will sentence [Keller] to 16 years [on each count]. The Court finds that these offenses are accepted [sic] from the episode of criminal conduct’s statute. For each bone that you broke in that baby’s body, you will serve four – four sixteen-year sentences consecutive for a term of 64 years executed at the Indiana Department of Correction with none suspended.
Transcript Vol. II at 60-63. Keller now appeals.
Discussion & Decision [18] Keller argues that the trial court abused its discretion in imposing consecutive
sentences without properly articulating why such was appropriate. Keller
further argues that “the imposition of consecutive sentences added to maximum
sentences on each offense resulted in a sentence so harsh it became
inappropriate.” Appellant’s Brief at 12. Keller asks this court to reduce his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 13 of 18 sentence by ordering that the maximum sentence on each offense 4 be served
concurrently for a total term of sixteen years.
1. Consecutive Sentences
[19] Sentencing decisions, including the decision to impose consecutive sentences,
are matters left to the sound discretion of the trial court. Anglemyer v. State, 868
N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); Gilliam v. State,
901 N.E.2d 72, 74 (Ind. Ct. App. 2009). On appeal, we review a trial court’s
sentencing order only for an abuse of discretion. Id. It is an abuse of discretion
if the trial court’s “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. (quoting K.S. v. State, 849 N.E.2d 538,
544 (Ind. 2006)).
[20] A single aggravating circumstance may support the imposition of consecutive
sentences. Lavoie v. State, 903 N.E.2d 135, 140 (Ind. Ct. App. 2009). Although
a trial court is required to state its reasons for imposing consecutive sentences, it
may rely on the same reasons to impose a maximum sentence and consecutive
sentences. Id.
[21] Keller argues that the trial court’s sentencing statement did not adequately
explain why consecutive sentences were warranted. We disagree. We begin by
4 “A person who commits a Level 3 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years.” Ind. Code § 35-50-2-5(b).
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 14 of 18 noting that the State argued that consecutive sentences were warranted because
the offenses to which Keller pled guilty were “separated” in time in that they
were “hours apart.” Transcript Vol. II at 59. In its oral sentencing statement, the
court recognized the prolonged timeframe in which Keller abused Child and
that his actions appeared “calculated” and that he was “basically trying to think
up new ways . . . he could use to harm [Child].” Id. at 61. In addition, the trial
court provided a very thorough and comprehensive sentencing statement,
describing in detail the appalling, unprovoked abuse Child suffered at the hands
of Keller that was depicted in the video. The court carefully addressed each
proffered mitigating and aggravating circumstance and found that the
aggravating circumstances “far outweigh[ed]” the mitigating circumstances.
Transcript Vol. II at 63. Additionally, the court found that the nature and
circumstances of this case were “particularly troubling” and then described
several heinous acts portrayed in the video. Id. Further, implicit in the court’s
sentencing statement is its recognition that the abuse underlying the offenses to
which Keller pled guilty occurred at separate times throughout the day. It is
clear from our review of the court’s sentencing statement that it justified
imposition of consecutive sentences not just as punishment “[f]or each bone
that [Keller] broke in that baby’s body” but for the horrific, senseless, and
repeated abuse that Keller inflicted on an innocent seventeen-month-old child.
Id. We cannot say that the trial court abused its discretion in ordering the
sentences be served consecutively.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 15 of 18 2. Inappropriate Sentence
[22] Keller argues that imposition of the maximum, consecutive sentences for an
aggregate term of sixty-four years renders his sentence inappropriate. He notes
that the sentence he received is one year less than the maximum sentence for
murder. 5 See Ind. Code § 35-50-2-3 (providing that the sentencing range for
murder is between forty-five and sixty-five years). Keller also compares his
aggregate sentence to others who received similar sentences for what he
describes as “worse” crimes involving fatal injuries as demonstrating that his
sentence is inappropriate. Appellant’s Brief at 20.
[23] Pursuant to Ind. Appellate Rule 7(B), we “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.” Our Supreme Court has explained that our principal
role should be to attempt to leaven the outliers, “not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). “‘[W]e must and should exercise deference to a trial court’s sentencing
decision, both because Rule 7(B) requires us to give ‘due consideration’ to that
decision and because we understand and recognize the unique perspective a
5 Keller also argues that had his offenses not been crimes of violence, his sentence could not have exceeded twenty years as they were part of a single episode of criminal conduct. See I.C. § 35-50-1-2(c), (d)(4) (providing that, except for crimes of violence, the total of consecutive terms of imprisonment for felony convictions arising out of an episode of criminal conduct may not exceed twenty years if the most serious crime for which the defendant is sentenced is a Level 3 felony). His crimes, however, are identified as crimes of violence. Thus, this argument has no merit.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 16 of 18 trial court brings to its sentencing decisions.’” Rogers v. State, 878 N.E.2d 269,
275 (Ind. Ct. App. 2007) (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct.
App. 2007)), 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). Whether we
regard a sentence as inappropriate “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, 895 N.E.2d at 1224.
[24] Regarding Keller’s character, we note that he has a criminal history that
includes convictions for battery and strangulation. Keller also admitted to
using four different drugs while he was charged with the care of his two-year-
old daughter and his fiancé’s two young children. As he abused Child, he
encouraged his two-year-old daughter to participate. After being confronted
with the injuries to Child, Keller encouraged Mother (his wife at the time) to
kill herself and threatened to make her life miserable. We find no compelling
evidence in the record that casts Keller’s character in a positive light.
[25] Regarding the nature of the offense, we find that Keller’s abuse of a seventeen-
month-old child was despicable and alarming. In the video excerpts submitted
during the sentencing hearing, Keller is seen repeatedly smothering, hitting,
kicking, pushing, and tackling Child with the full weight of his body and he
encourages his young daughter to participate in the abuse. Keller’s abuse of
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 17 of 18 Child began first thing in the morning and continued on and off over a period of
approximately ten hours. The abuse is not easy to watch, and it is shocking
that Child did not suffer more severe injuries. In addition to the physical
injuries, which included at least four fractures to his back, Dr. Woodward
testified that Child now experiences, among other things, post-traumatic stress
disorder, nightmares, and “verbal delays” that suggest he is “on a path for
neurobiological damage, long-term consequences” that could impact how he
matures and interacts with others as he grows older. Id. at 47. Although Keller
did not inflict fatal injuries on Child, the impact of Keller’s abuse will be life-
long. The nature of the offense is brutal, and Keller showed no restraint or
regard for Child.
[26] In short, we do not find Keller’s sentence to be inappropriate in light of his
character and the nature of the offense.
[27] Judgment affirmed.
Bailey, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-148 | July 31, 2020 Page 18 of 18