George Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 20, 2013
• Docket: 49A02-1207-CR-616
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of May 20 2013, 8:26 am establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

GEORGE JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1207-CR-616 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila A. Carlisle, Judge Cause No. 49G03-1111-FA-79069

May 20, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge George Johnson appeals the twenty-year sentence imposed following his convictions

of Class B felony criminal confinement1 and Class A misdemeanor battery.2 He asserts his

sentence is inappropriate in light of his character and offense. We affirm.

FACTS AND PROCEDURAL HISTORY

Johnson had known a female friend, J.B., for over twenty years. During some of those

years, the two had dated and had a sexual relationship. After their romantic relationship

ended, the two remained friends who would contact one another from time to time.

On November 4, 2011, Johnson and his girlfriend, V.J., invited J.B. to Johnson’s

house to “hang out.” (Tr. at 20.) J.B. accepted the invitation. While the parties were

drinking alcohol and listening to music, Johnson suggested three of them engage in sexual

activity. After J.B. declined, Johnson punched J.B. in the nose, causing her to lose

consciousness. Johnson then grabbed J.B. by the hair, tossed her on the bed, and held her

down against her will. J.B. claimed both V.J. and Johnson repeatedly hit her. J.B. suffered

injuries, including a broken nose and several bruises.

V.J. and J.B. left Johnson’s house and went to a gas station. While V.J. was at the

ATM, J.B. asked the store clerk for help, and the store clerk called the police. On the 911

recording, J.B. reported V.J. and Johnson were holding her captive and had threatened to kill

her kids if she alerted police. V.J. left the store. Police arrived and sent J.B. by ambulance to

a hospital, where she was treated for bruising, headaches, and a broken nose that required

1 Ind. Code § 35-42-3-3. 2 Ind. Code § 35-42-2-1.

2 surgery.

For these and other acts alleged to have occurred that same evening, the State charged

Johnson with five counts of Class A felony criminal deviate conduct,3 one count of Class B

felony robbery,4 one count of Class D felony strangulation,5 one count of Class B felony

criminal confinement, and two counts of Class C felony battery. A jury found Johnson guilty

of Class B felony criminal confinement and one count of Class C felony battery. The court

entered Johnson’s battery conviction as a lesser-included Class A misdemeanor battery to

avoid double jeopardy concerns created when both crimes are elevated based on the same

injury to the same victim. The court ordered maximum sentences -- one year for battery and

twenty years for confinement -- and ordered them served concurrently.

DISCUSSION AND DECISION

We may revise a sentence if it is inappropriate in light of the nature of the offense and

the character of the offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008)

(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found

by the court, but any other facts appearing in the record. Boling v. State, 982 N.E.2d 1055,

1060 (Ind. Ct. App. 2013). The appellant bears the burden of demonstrating his sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

When considering the nature of the offense, the advisory sentence is the starting point

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494

3 Ind. Code § 35-42-4-2. 4 Ind. Code § 35-42-5-1. 5 Ind. Code § 35-42-2-9. 3 (Ind. 2007), clarified on reh’g on other grounds 875 N.E.2d 218 (Ind. 2007). The sentencing

range for a Class B felony is six to twenty years, and the advisory sentence is ten years. Ind.

Code § 35-50-2-5. One factor we consider when determining the appropriateness of a

deviation from the advisory sentence is whether there is anything more or less egregious

about the offense committed by the defendant that makes it different from the “typical”

offense accounted for by the legislature when it set the advisory sentence. Rich v. State, 890

N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

Johnson asserts his sentence is inappropriate because “the court’s comments at

sentencing suggest that Johnson’s maximum sentence was based in part on conduct of which

he was acquitted.” (Br. of Appellant at 8.) We disagree with Johnson’s assessment of the

court’s statements. The court explicitly noted Johnson was “only to be sentenced on the

confinement and the battery.” (Tr. at 359.) The court explained it was “unfortunate,” (id.),

“puzzling,” (id. at 360), and “really troubling,” (id.), that Johnson participated in violence

against “someone that, by all accounts, should’ve been a good friend.” (Id.) We agree that

Johnson’s commission of these crimes against a woman who had been his friend for twenty

years justifies a sentence longer than the advisory sentence.

When considering the character of the offender, one relevant fact is the defendant’s

criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

significance of criminal history varies based on the gravity, nature, and number of prior

offenses in relation to the current offense. Id. Before the instant proceedings, Johnson eight

convictions: Class A misdemeanor patronizing a prostitute in 1992, Class D felony

4 possession of a controlled substance in 1998, Class A misdemeanor driving with a suspended

license in 2000, Class A misdemeanor criminal conversion in 2001 and in 2002, Class A

misdemeanor failure to stop at a traffic accident causing injury in 2002, Class B felony

burglary in 2006, and Class A misdemeanor carrying a handgun without a license. Johnson’s

criminal history demonstrates his propensity for violent behavior is escalating. Because

progressively more violent conduct is a valid aggravating circumstance, Rawson v. State, 865

N.E.2d 1049, 1056 (Ind. Ct. App. 2007), trans. denied, we see no reason why it ought not

also demonstrate the appropriateness of a sentence longer than the advisory.

Johnson also had been arrested on seven other occasions, and twice his probation was

revoked. While an arrest record is not “criminal history,” a record of arrest “may be relevant

to the trial court’s assessment of the defendant’s character,” and “may reveal that a defendant

has not been deterred” from criminal behavior. Cotto v. State, 829 N.E.2d 520, 526 (Ind.

2005). His failure to successfully complete probation, especially when failure was based on

positive screens for illegal drug use, also suggests a sentence longer than the advisory is not

inappropriate for Johnson’s character.

In light of Johnson’s character and offense, we cannot say his twenty-year sentence is

inappropriate. Accordingly, we affirm.

Affirmed.

BAKER, J., and MATHIAS, J., concur.