MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 10:07 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Benjamin J. Shoptaw Marion County Public Deputy Attorney General Defender Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Godfrey Osunwusi, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2461 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge The Honorable Peggy Hart, Magistrate Pro Tem Trial Court Cause No. 49G05-1901-F5-2718
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 1 of 9 Statement of the Case [1] Godfrey Osunwusi (“Osunwusi”) appeals the four-year and three-month
aggregate sentence imposed after a jury convicted him of Level 5 felony
intimidation;1 Level 6 felony residential entry;2 Level 6 felony criminal
recklessness;3 and Level 6 felony domestic battery.4 He argues that the trial
court abused its discretion in sentencing him and that his sentence is
inappropriate in light of the nature of his offenses and his character.
Concluding that the trial court did not abuse its discretion and that the sentence
is not inappropriate, we affirm Osunwusi’s sentence.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in sentencing Osunwusi.
2. Whether Osunwusi’s sentence is inappropriate in light of the nature of his offenses and his character.
Facts [3] In early 2019, forty-three-year-old Osunwusi and Ngozi Obenade Moses
(“Moses”), who are both from Nigeria, were involved in a romantic
1 IND. CODE § 35-45-2-1. 2 I.C. § 35-43-2-1.5. 3 I.C. § 35-42-2-2. 4 I.C. § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 2 of 9 relationship. At some point, Moses wanted to end the relationship, but
Osunwusi did not.
[4] In mid-January 2019, Moses and her roommate, Mary Onoja (“Onoja”), were
planning a shopping trip. While they were talking, Osunwusi “barge[d] into”
the women’s apartment and asked them what they were doing. (Tr. Vol. 2 at
178). Moses told Osunwusi that she and Onoja were going shopping. Later
that day, while Moses and Onoja were shopping, they noticed Osunwusi, who
appeared to be following them throughout the store. When the two women
were ready to leave the store, Osunwusi insisted on giving them a ride home.
[5] As Moses and Onoja approached their front door, they noticed that it was
open, and that snow had blown into their apartment. Osunwusi entered the
apartment with Moses and Onoja, and Moses asked him to leave. Osunwusi
began shouting at Moses but eventually left.
[6] The following evening, before Moses and Onoja went to bed, Moses locked the
front door and placed a chair against it. Moses took her one-year-old daughter
upstairs and placed her on the bed. After her daughter had fallen asleep, Moses
telephoned a friend’s uncle, who was a police officer in Maryland, to discuss
the situation involving Osunwusi.
[7] While she was talking on the telephone, Moses heard a noise downstairs. She
then heard Osunwusi coming up the stairs. He was shouting, “[Moses], you are
finished today. Today I will destroy you. You are finished.” (Tr. Vol 2 at
184). Unable to open Moses’ locked bedroom door, Osunwusi went back
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 3 of 9 downstairs. Moses heard him rummaging around in the kitchen drawers.
Osunwusi returned with a knife that he used to pry open Moses’ bedroom door.
[8] Osunwusi entered Moses’ bedroom and shut the door. He grabbed Moses from
behind and put his forearm across her neck, restricting her ability to breathe.
Osunwusi put the knife against Moses’ stomach and started laughing. He told
her again that he was going to “finish . . . [and] destroy [her.]” (Tr. Vol. 2 at
189).
[9] Moses’ screams woke up her daughter, who began crying. The Maryland
police officer, who was still on the telephone, began shouting. Osunwusi
picked up the telephone and asked the officer if he was Moses’ boyfriend.
While Osunwusi was distracted by the telephone, Onoja opened the bedroom
door, grabbed Moses’ daughter, ran into the bathroom, and locked the door.
[10] At the same time, Moses ran downstairs and out the front door. Osunwusi
dropped the telephone and pursued Moses but was unable to find her. Moses
ran to a nearby apartment and called the police, who found Osunwusi in his
vehicle and arrested him.
[11] The State charged Osunwusi with two counts of Level 5 felony intimidation;
Level 6 felony residential entry; Level 6 felony criminal recklessness; Level 6
felony domestic battery; and Level 6 felony strangulation.
[12] At the beginning of the September 2019 trial, Osunwusi told the trial court that
it did not have jurisdiction over him because he was an “illegal alien.” (Tr. Vol.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 4 of 9 2 at 53). Moses, Onoja, and two police officers testified at trial. After both
parties had presented their cases, the trial court granted Osunwusi’s motion for
a directed verdict on one of the Level 5 felony intimidation charges. The jury
convicted Osunwusi of the other Level 5 felony intimidation charge as well as
the Level 6 felony charges for residential entry, criminal recklessness, and
domestic battery. The jury acquitted Osunwusi of the Level 6 felony
strangulation charge.
[13] At the sentencing hearing, Osunwusi referred to the “expiring of [his] Visa” and
agreed with the trial court that “his Visa [had] expired and he [had] just stayed
a little longer[.]” (Tr. Vol. 3 at 82, 83). Osunwusi also agreed that there was an
“immigration hold” on him. (Tr. Vol. 3 at 83).
[14] The trial court found Osunwusi’s lack of criminal history to be a mitigating
factor. In addition, the trial court found the following two aggravating factors:
“[1] [Osunwusi’s] actions were greater than necessary to satisfy the statutory
requirements[;] and [2] he was in this country illegally at the time of the
offenses as evidenced by [Osunwusi] currently having a hold for immigration
purposes.” (Tr. Vol. 3 at 92).
[15] The trial court sentenced Osunwusi to four (4) years and three (3) months for
the Level 5 felony intimidation conviction and to two (2) years for each Level 6
felony conviction, all to be executed at the Department of Correction. The trial
court further ordered the sentences to run concurrently.
[16] Osunwusi now appeals his sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 5 of 9 Decision [17] Osunwusi argues that: (1) the trial court abused its discretion in determining
aggravating factors for sentencing him; and (2) his sentence is inappropriate in
light of his character and the nature of his offenses. We address each of his
arguments in turn.
1. Abuse of Discretion in Sentencing
[18] Osunwusi contends that the trial court abused its discretion in sentencing him.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 26 2020, 10:07 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Benjamin J. Shoptaw Marion County Public Deputy Attorney General Defender Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Godfrey Osunwusi, May 26, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2461 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant Hawkins, Appellee-Plaintiff. Judge The Honorable Peggy Hart, Magistrate Pro Tem Trial Court Cause No. 49G05-1901-F5-2718
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 1 of 9 Statement of the Case [1] Godfrey Osunwusi (“Osunwusi”) appeals the four-year and three-month
aggregate sentence imposed after a jury convicted him of Level 5 felony
intimidation;1 Level 6 felony residential entry;2 Level 6 felony criminal
recklessness;3 and Level 6 felony domestic battery.4 He argues that the trial
court abused its discretion in sentencing him and that his sentence is
inappropriate in light of the nature of his offenses and his character.
Concluding that the trial court did not abuse its discretion and that the sentence
is not inappropriate, we affirm Osunwusi’s sentence.
[2] We affirm.
Issues 1. Whether the trial court abused its discretion in sentencing Osunwusi.
2. Whether Osunwusi’s sentence is inappropriate in light of the nature of his offenses and his character.
Facts [3] In early 2019, forty-three-year-old Osunwusi and Ngozi Obenade Moses
(“Moses”), who are both from Nigeria, were involved in a romantic
1 IND. CODE § 35-45-2-1. 2 I.C. § 35-43-2-1.5. 3 I.C. § 35-42-2-2. 4 I.C. § 35-42-2-1.3.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 2 of 9 relationship. At some point, Moses wanted to end the relationship, but
Osunwusi did not.
[4] In mid-January 2019, Moses and her roommate, Mary Onoja (“Onoja”), were
planning a shopping trip. While they were talking, Osunwusi “barge[d] into”
the women’s apartment and asked them what they were doing. (Tr. Vol. 2 at
178). Moses told Osunwusi that she and Onoja were going shopping. Later
that day, while Moses and Onoja were shopping, they noticed Osunwusi, who
appeared to be following them throughout the store. When the two women
were ready to leave the store, Osunwusi insisted on giving them a ride home.
[5] As Moses and Onoja approached their front door, they noticed that it was
open, and that snow had blown into their apartment. Osunwusi entered the
apartment with Moses and Onoja, and Moses asked him to leave. Osunwusi
began shouting at Moses but eventually left.
[6] The following evening, before Moses and Onoja went to bed, Moses locked the
front door and placed a chair against it. Moses took her one-year-old daughter
upstairs and placed her on the bed. After her daughter had fallen asleep, Moses
telephoned a friend’s uncle, who was a police officer in Maryland, to discuss
the situation involving Osunwusi.
[7] While she was talking on the telephone, Moses heard a noise downstairs. She
then heard Osunwusi coming up the stairs. He was shouting, “[Moses], you are
finished today. Today I will destroy you. You are finished.” (Tr. Vol 2 at
184). Unable to open Moses’ locked bedroom door, Osunwusi went back
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 3 of 9 downstairs. Moses heard him rummaging around in the kitchen drawers.
Osunwusi returned with a knife that he used to pry open Moses’ bedroom door.
[8] Osunwusi entered Moses’ bedroom and shut the door. He grabbed Moses from
behind and put his forearm across her neck, restricting her ability to breathe.
Osunwusi put the knife against Moses’ stomach and started laughing. He told
her again that he was going to “finish . . . [and] destroy [her.]” (Tr. Vol. 2 at
189).
[9] Moses’ screams woke up her daughter, who began crying. The Maryland
police officer, who was still on the telephone, began shouting. Osunwusi
picked up the telephone and asked the officer if he was Moses’ boyfriend.
While Osunwusi was distracted by the telephone, Onoja opened the bedroom
door, grabbed Moses’ daughter, ran into the bathroom, and locked the door.
[10] At the same time, Moses ran downstairs and out the front door. Osunwusi
dropped the telephone and pursued Moses but was unable to find her. Moses
ran to a nearby apartment and called the police, who found Osunwusi in his
vehicle and arrested him.
[11] The State charged Osunwusi with two counts of Level 5 felony intimidation;
Level 6 felony residential entry; Level 6 felony criminal recklessness; Level 6
felony domestic battery; and Level 6 felony strangulation.
[12] At the beginning of the September 2019 trial, Osunwusi told the trial court that
it did not have jurisdiction over him because he was an “illegal alien.” (Tr. Vol.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 4 of 9 2 at 53). Moses, Onoja, and two police officers testified at trial. After both
parties had presented their cases, the trial court granted Osunwusi’s motion for
a directed verdict on one of the Level 5 felony intimidation charges. The jury
convicted Osunwusi of the other Level 5 felony intimidation charge as well as
the Level 6 felony charges for residential entry, criminal recklessness, and
domestic battery. The jury acquitted Osunwusi of the Level 6 felony
strangulation charge.
[13] At the sentencing hearing, Osunwusi referred to the “expiring of [his] Visa” and
agreed with the trial court that “his Visa [had] expired and he [had] just stayed
a little longer[.]” (Tr. Vol. 3 at 82, 83). Osunwusi also agreed that there was an
“immigration hold” on him. (Tr. Vol. 3 at 83).
[14] The trial court found Osunwusi’s lack of criminal history to be a mitigating
factor. In addition, the trial court found the following two aggravating factors:
“[1] [Osunwusi’s] actions were greater than necessary to satisfy the statutory
requirements[;] and [2] he was in this country illegally at the time of the
offenses as evidenced by [Osunwusi] currently having a hold for immigration
purposes.” (Tr. Vol. 3 at 92).
[15] The trial court sentenced Osunwusi to four (4) years and three (3) months for
the Level 5 felony intimidation conviction and to two (2) years for each Level 6
felony conviction, all to be executed at the Department of Correction. The trial
court further ordered the sentences to run concurrently.
[16] Osunwusi now appeals his sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 5 of 9 Decision [17] Osunwusi argues that: (1) the trial court abused its discretion in determining
aggravating factors for sentencing him; and (2) his sentence is inappropriate in
light of his character and the nature of his offenses. We address each of his
arguments in turn.
1. Abuse of Discretion in Sentencing
[18] Osunwusi contends that the trial court abused its discretion in sentencing him.
Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is
within the statutory range, it is subject to review only for an abuse of discretion.
Id. An abuse of discretion occurs if the 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. at 491. A trial
court may abuse its discretion in a number of ways, including: (1) failing to
enter a sentencing statement at all; (2) entering a sentencing statement that
includes aggravating and mitigating factors that are unsupported by the record;
(3) entering a sentencing statement that omits reasons that are clearly supported
by the record; or (4) entering a sentencing statement that includes reasons that
are improper as a matter of law. Id. at 490-91.
[19] Here, Osunwusi argues that the trial court abused its discretion by entering a
sentencing statement that includes an improper aggravating factor that is
unsupported by the record. Specifically, the gravamen of Osunwusi’s argument
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 6 of 9 is that the trial court abused its discretion when it found as an aggravating
factor that he was in the United States illegally at the time he committed the
offenses. According to Osunwusi, “there was no proof [he] was in the country
illegally.” (Osunwusi’s Br. 15).
[20] However, our review of the evidence reveals that Osunwusi admitted that he
was an “illegal alien” (Tr. Vol. 2 at 53) and agreed with the trial court that “his
Visa [had] expired and he [had] just stayed a little longer[.]” (Tr. Vol. 3 at 83).
This evidence supports the trial court’s finding that Osunwusi was in the United
States illegally at the time he committed the offenses.
[21] This Court has previously determined that an individual’s unlawful
immigration status is a valid aggravating factor because it demonstrates a
disregard for the law, including immigration laws. Sanchez v. State, 891 N.E.2d
174, 176 (Ind. Ct. App. 2008). The trial court did not abuse its discretion when
it found as an aggravating factor that Osunwusi was in the United States
illegally at the time he committed the offenses.
2. Inappropriate Sentence
[22] Osunwusi also argues that his sentence is inappropriate. 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).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 7 of 9 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).
[23] The Indiana Supreme Court has further explained that “[s]entencing is
principally a discretionary function in which the trial court’s judgment should
receive considerable deference.” Id. at 1222. “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).
[24] When determining whether a sentence is inappropriate, 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, Osunwusi was
convicted of one Level 5 felony and three Level 6 felonies. The sentencing
range for a Level 5 felony is one (1) to six (6) years, and the advisory sentence is
three (3) years. IND. CODE § 35-50-2-6. The sentencing range for a Level 6
felony is six (6) months and two and one-half (2½) years, and the advisory
sentence is one (1) year. IND. CODE § 35-50-2-7. Here, the trial court sentenced
Osunwusi to four years and three months for the Level 5 felony, and two years
for each Level 6 felony. The trial court further ordered the sentences to run
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 8 of 9 concurrently with each other, for an aggregate executed sentence of four years
and three months.
[25] Regarding the nature of the offense, Osunwusi entered Moses’ apartment
through a door that was both locked and blocked with a chair. As he walked up
the stairs to Moses’ bedroom, Osunwusi called out that he was going to “finish”
and “destroy” her. (Tr. Vol 2 at 184). Osunwusi used a knife to open Moses’
locked bedroom door and entered the room where Moses’ one-year-old
daughter was sleeping. He placed a knife against Moses’ stomach and again
threatened to “finish” and “destroy” her. (Tr. Vol. 2 at 189). When Osunwusi
became distracted by the telephone and Moses escaped from the bedroom,
Osunwusi pursued her but was unable to find her. Regarding Osunwusi’s
character, we note that Osunwusi was in the United States illegally at the time
that he committed the offenses against Moses. These facts do not support
finding Osunwusi’s sentence to be inappropriate.
[26] Based on this evidence, Osunwusi has failed to meet his burden to persuade this
Court that his aggregate four-year and three-month sentence is inappropriate.
[27] Affirmed.
Baker, J., and Bradford, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020 Page 9 of 9