MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 15 2016, 9:51 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael G. Moore Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dolphus Ballinger, July 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1512-CR-2122 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff Trial Court Cause No. 49G04-1408-FB-38651
Bailey, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 1 of 7 [1] Dolphus Ballinger (“Ballinger”) was convicted of Rape, as a Class B felony.1
He now appeals, raising for our review whether his sixteen-year sentence is
inappropriate under Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History [3] Ballinger had, at the time of the instant offense, been stepfather to S.D. for
much of her childhood and into adulthood. On October 18, 2013, Ballinger
called S.D. and told her that a speeding ticket she had received might have
resulted in a warrant for her arrest. S.D. had paid the ticket, but nevertheless
was worried by the news.
[4] Later that day, Ballinger came to S.D.’s apartment in Indianapolis. S.D. let
Ballinger into the apartment, and the two talked for about forty-five minutes to
an hour about the ticket and possible warrant. Ballinger then left S.D.’s
apartment.
[5] About a minute later, Ballinger again knocked on S.D.’s door. When S.D.
opened the door, Ballinger told her, “I want to try something,” and pushed her
onto a spare bed in her apartment. (Tr. at 18.) Ballinger then removed S.D.’s
shorts and began “wiping his beard across [S.D.’s] vagina.” (Tr. at 18.)
1 Ind. Code § 35-42-4-1(a)(1). We refer throughout to the criminal offenses as defined at the time of Ballinger’s offense, which was committed prior to the effective date of recent revisions to Indiana’s criminal statutes.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 2 of 7 Ballinger then engaged in vaginal intercourse with S.D., who tried to push
Ballinger off of her and said “no.” (Tr. at 19.) Ballinger told S.D. that if she
continued to resist, he would ejaculate in her vagina and impregnate her; S.D.
then stopped resisting Ballinger.
[6] Ballinger eventually ceased this activity and sat down on the bed next to S.D.
After placing his hand on S.D.’s chest, Ballinger told her that she wasn’t
nervous or scared, and asked S.D. whether she was angry with him. She said
she was because he was her stepfather and was “not supposed to do that.” (Tr.
at 20.) Ballinger told S.D. that she should apologize to him for not loving him
the way he loved her. Ballinger then put a cell phone in S.D.’s hand and said
that if she wanted to hurt him, she should call the police. He then got a knife
from the kitchen, put it in S.D.’s hand, and said that if she wanted to hurt him,
she should cut his throat and stab him in the heart. Ballinger then told S.D.
that “after all the stuff he’s done for [her], he deserved this.” (Tr. at 21.)
Eventually, Ballinger left the apartment.
[7] S.D. delayed telling her mother or police about the incident because her mother
was happy and S.D. did not want to break up the family. Shortly before
traveling to start U.S. Navy boot camp, S.D. told her mother about the events
of October 18, 2013. S.D.’s mother confronted Ballinger about his conduct
several times, and S.D. and her mother together also confronted Ballinger
during a phone call. At first he denied the conduct, but eventually he
acknowledged it on several occasions, including once in the office of the pastor
of the family’s church, and once on a phone call that S.D.’s mother recorded.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 3 of 7 During a leave period that S.D. spent in Indianapolis in May and June 2014,
after learning that Ballinger had not admitted his conduct to other family
members, S.D. contacted police to report the October 18, 2013 incident.
[8] On August 11, 2014, the State charged Ballinger with one count of Rape, as a
Class B felony, and one count of Criminal Confinement, as a Class D felony. 2
A jury trial was conducted on October 13, 2015. At the trial’s conclusion, the
jury found Ballinger guilty as charged.
[9] On November 18, 2015, a sentencing hearing was conducted. During the
sentencing hearing, the trial court entered a judgment of conviction against
Ballinger for Rape, but vacated on double jeopardy grounds the jury’s guilty
finding as to the charge of Criminal Confinement. At the conclusion of the
hearing, the trial court sentenced Ballinger to sixteen years imprisonment, with
three years suspended to probation.
[10] This appeal ensued.
Discussion and Decision [11] Ballinger’s sole contention on appeal is that his sentence is inappropriate under
Appellate Rule 7(B).
2 I.C. § 35-42-3-3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 4 of 7 [12] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[13] Ballinger was convicted of Rape, as a Class B felony. As a result of his
conviction, he faced a sentencing range of between six and twenty years
imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5(a).
Ballinger was sentenced to a sixteen-year term of imprisonment, with three
years of that term suspended to probation. He requests that this court revise his
sentence downward to the advisory term of ten years. 3
3 Ballinger’s brief refers to the “presumptive sentence.” (Appellant’s Br. at 9.) We remind counsel that presumptive sentences were replaced by the advisory sentencing scheme in the wake of the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). See Gutermuth v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 15 2016, 9:51 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael G. Moore Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dolphus Ballinger, July 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1512-CR-2122 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff Trial Court Cause No. 49G04-1408-FB-38651
Bailey, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 1 of 7 [1] Dolphus Ballinger (“Ballinger”) was convicted of Rape, as a Class B felony.1
He now appeals, raising for our review whether his sixteen-year sentence is
inappropriate under Appellate Rule 7(B).
[2] We affirm.
Facts and Procedural History [3] Ballinger had, at the time of the instant offense, been stepfather to S.D. for
much of her childhood and into adulthood. On October 18, 2013, Ballinger
called S.D. and told her that a speeding ticket she had received might have
resulted in a warrant for her arrest. S.D. had paid the ticket, but nevertheless
was worried by the news.
[4] Later that day, Ballinger came to S.D.’s apartment in Indianapolis. S.D. let
Ballinger into the apartment, and the two talked for about forty-five minutes to
an hour about the ticket and possible warrant. Ballinger then left S.D.’s
apartment.
[5] About a minute later, Ballinger again knocked on S.D.’s door. When S.D.
opened the door, Ballinger told her, “I want to try something,” and pushed her
onto a spare bed in her apartment. (Tr. at 18.) Ballinger then removed S.D.’s
shorts and began “wiping his beard across [S.D.’s] vagina.” (Tr. at 18.)
1 Ind. Code § 35-42-4-1(a)(1). We refer throughout to the criminal offenses as defined at the time of Ballinger’s offense, which was committed prior to the effective date of recent revisions to Indiana’s criminal statutes.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 2 of 7 Ballinger then engaged in vaginal intercourse with S.D., who tried to push
Ballinger off of her and said “no.” (Tr. at 19.) Ballinger told S.D. that if she
continued to resist, he would ejaculate in her vagina and impregnate her; S.D.
then stopped resisting Ballinger.
[6] Ballinger eventually ceased this activity and sat down on the bed next to S.D.
After placing his hand on S.D.’s chest, Ballinger told her that she wasn’t
nervous or scared, and asked S.D. whether she was angry with him. She said
she was because he was her stepfather and was “not supposed to do that.” (Tr.
at 20.) Ballinger told S.D. that she should apologize to him for not loving him
the way he loved her. Ballinger then put a cell phone in S.D.’s hand and said
that if she wanted to hurt him, she should call the police. He then got a knife
from the kitchen, put it in S.D.’s hand, and said that if she wanted to hurt him,
she should cut his throat and stab him in the heart. Ballinger then told S.D.
that “after all the stuff he’s done for [her], he deserved this.” (Tr. at 21.)
Eventually, Ballinger left the apartment.
[7] S.D. delayed telling her mother or police about the incident because her mother
was happy and S.D. did not want to break up the family. Shortly before
traveling to start U.S. Navy boot camp, S.D. told her mother about the events
of October 18, 2013. S.D.’s mother confronted Ballinger about his conduct
several times, and S.D. and her mother together also confronted Ballinger
during a phone call. At first he denied the conduct, but eventually he
acknowledged it on several occasions, including once in the office of the pastor
of the family’s church, and once on a phone call that S.D.’s mother recorded.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 3 of 7 During a leave period that S.D. spent in Indianapolis in May and June 2014,
after learning that Ballinger had not admitted his conduct to other family
members, S.D. contacted police to report the October 18, 2013 incident.
[8] On August 11, 2014, the State charged Ballinger with one count of Rape, as a
Class B felony, and one count of Criminal Confinement, as a Class D felony. 2
A jury trial was conducted on October 13, 2015. At the trial’s conclusion, the
jury found Ballinger guilty as charged.
[9] On November 18, 2015, a sentencing hearing was conducted. During the
sentencing hearing, the trial court entered a judgment of conviction against
Ballinger for Rape, but vacated on double jeopardy grounds the jury’s guilty
finding as to the charge of Criminal Confinement. At the conclusion of the
hearing, the trial court sentenced Ballinger to sixteen years imprisonment, with
three years suspended to probation.
[10] This appeal ensued.
Discussion and Decision [11] Ballinger’s sole contention on appeal is that his sentence is inappropriate under
Appellate Rule 7(B).
2 I.C. § 35-42-3-3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 4 of 7 [12] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “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.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[13] Ballinger was convicted of Rape, as a Class B felony. As a result of his
conviction, he faced a sentencing range of between six and twenty years
imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5(a).
Ballinger was sentenced to a sixteen-year term of imprisonment, with three
years of that term suspended to probation. He requests that this court revise his
sentence downward to the advisory term of ten years. 3
3 Ballinger’s brief refers to the “presumptive sentence.” (Appellant’s Br. at 9.) We remind counsel that presumptive sentences were replaced by the advisory sentencing scheme in the wake of the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). See Gutermuth v. State, 868 N.E.2d 427, 430-31 (Ind. 2007) (recognizing the effect of Blakely in Indiana pursuant to Smylie v. State, 823 N.E.2d 679 (Ind. 2005)).
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 5 of 7 [14] With respect to the nature of the offense, Ballinger argues that we should revise
his sentence downward because his was not a notably violent rape. The
circumstances of this crime suggest that an above-advisory sentence is not
inappropriate. Ballinger had the opportunity to commit his offense only
because of the position of trust he held with S.D. as her stepfather, and he used
that access to commit the offense. Ballinger compelled S.D. to cease resisting
him by threatening S.D. with the prospect that he would impregnate her if she
did not stop her resistance. Ballinger then engaged in what the State
characterizes as “passive aggressive” behavior, providing opportunities for S.D.
to “hurt” him, saying that S.D. owed him sex because of all he had done for
her, and accusing S.D. of not loving him in the same way he loved her. All of
this supports an aggravated sentence.
[15] With respect to Ballinger’s character, his pre-sentencing investigation reveals
only a single misdemeanor conviction. However, Ballinger was arrested on
other occasions; several of these arrests involved some form of violent conduct.
Ballinger refused to express remorse after having admitted to his ex-wife, S.D.’s
mother, that he had raped S.D. He had a relatively stable employment history
prior to his arrest, served in the U.S. Navy, and attended church, and together
with S.D.’s mother helped raise a large family that included S.D. However,
when S.D. made her accusations, Ballinger engaged in conduct that drove the
family apart, causing S.D.’s mother financial and personal harm—even after
having admitted his conduct to S.D.’s mother on several occasions. Thus, in
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 6 of 7 total his character is at best unremarkable, affected notably by his refusal to
express remorse for his crime and his conduct in the wake of S.D.’s accusations.
[16] In light of the nature of the offense and his character, we cannot conclude that
Ballinger’s sentence is inappropriate.
[17] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016 Page 7 of 7