MEMORANDUM DECISION FILED Mar 16 2017, 9:12 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE G. Allen Lidy Curtis T. Hill, Jr. Mooresville, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathan Harness, March 16, 2017
Appellant-Defendant, Court of Appeals Case No. 55A01-1512-CR-2231 v. Appeal from the Morgan Superior Court. The Honorable Jane Spencer State of Indiana, Craney, Judge. Appellee-Plaintiff. Cause No. 55D03-1402-FA-274
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 1 of 8 Statement of the Case [1] Jonathan Harness appeals from his guilty plea to two counts of Class C felony 1 battery with serious bodily injury, contending that his sentence is inappropriate
and the trial court abused its discretion in imposing certain conditions of
probation. We affirm.
Issues [2] Harness raises the following restated issues for our review:
I. Whether his sentence is inappropriate; and II. Whether the trial court abused its discretion when it required him to submit to polygraph examinations as a condition of his probation.
Facts and Procedural History [3] Harness had a tumultuous and abusive childhood. He married, and he and his
wife had one biological son. At some point in their marriage, the couple
decided to adopt additional children.
[4] J.H. and A.H. are sisters who were in foster care for approximately three years.
Harness and his wife adopted J.H. and A.H., as well as their siblings. Prior to
being adopted, both J.H. and A.H. had been abused sexually, physically, and
1 Ind. Code § 35-42-2-1(a)(3) (2012)
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 2 of 8 mentally. A.H. struggled with behavioral and mental problems that required
therapy sessions.
[5] The charging information filed against Harness listed nineteen criminal
offenses, allegedly perpetrated upon A.H. and J.H. On July 15, 2015, the
parties entered into a plea agreement, and Harness agreed to plead guilty to two
counts of Class C felony battery resulting in serious bodily injury involving
A.H. As part of the plea agreement, the State agreed to dismiss all other
counts, to not file additional counts involving Harness’s adopted daughters, and
to allow Harness’s wife to plead to an amended charge of Class B misdemeanor
failure to report child abuse.
[6] The facts surrounding the two counts of Class C felony battery are that on one
occasion, Harness struck A.H. in the forehead and pushed her into a wall,
causing her to lose consciousness. On another occasion, Harness threw A.H.
into a wall that contained a protruding nail. The incidents left A.H. with
permanent scars.
[7] Following a hearing, the trial court sentenced Harness to concurrent sentences
of six years’ imprisonment, with four years executed and two years suspended
to probation. Harness appeals.
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 3 of 8 Discussion and Decision I. Inappropriateness of Sentence
[8] Harness argues that his six-year sentence, with four years executed and two
years suspended to probation, is inappropriate in light of the nature of the
offense and his character. Harness argues his sentence is inappropriate because
of the mitigating factors found by the trial court, his low risk to reoffend, and
his eligibility to serve his sentence on home detention. He seeks resentencing to
a total of six years, with two years executed and four years suspended to
probation.
[9] We 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). Whether
the reviewing court regards a sentence as inappropriate turns on a “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 v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘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 trial court brings to its sentencing decisions.’” Gil v. State,
988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)). Harness bears the burden of persuading
us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.
2007).
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 4 of 8 [10] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. See Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Harness pleaded guilty to two counts of Class C felony battery. The sentencing
range for a Class C felony was “a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years.” Ind. Code § 35-50-2-
6(a) (2005). The trial court found as an aggravator that Harness was in a
position of care, custody, and control of his daughter, A.H. The court imposed
concurrent six-year sentences for both of Harness’s convictions, which is above
the advisory sentence but below the maximum advised by the General
Assembly.
[11] Details of the nature of Harness’s offenses are limited to the sparse facts
presented during his sentencing hearing, and the contents of his Appendix.
Nevertheless, his first offense involved striking his daughter and pushing her
into a wall, causing her to lose consciousness and resulting in a bump on the
back of her head and a permanent scar on her forehead. His second offense
involved throwing his daughter into a wall with a protruding nail, which caused
a laceration to her side and a permanent scar. A.H. was a minor and Harness
was aware that she had previously been subjected to physical abuse. Based on
the foregoing, we conclude that the nature of Harness’s offenses does not render
his sentence inappropriate.
[12] Our review of the character of the offender reveals that Harness had no criminal
history and stated at the sentencing hearing:
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 5 of 8 . . . I wholeheartedly apologize to [A.H. for the battery incidents.] I have apologized to [A.H.] multiple times, and she knows that. I was wrong. My use of force was inexcusable, and I am truly sorry.
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MEMORANDUM DECISION FILED Mar 16 2017, 9:12 am Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE G. Allen Lidy Curtis T. Hill, Jr. Mooresville, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jonathan Harness, March 16, 2017
Appellant-Defendant, Court of Appeals Case No. 55A01-1512-CR-2231 v. Appeal from the Morgan Superior Court. The Honorable Jane Spencer State of Indiana, Craney, Judge. Appellee-Plaintiff. Cause No. 55D03-1402-FA-274
Barteau, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 1 of 8 Statement of the Case [1] Jonathan Harness appeals from his guilty plea to two counts of Class C felony 1 battery with serious bodily injury, contending that his sentence is inappropriate
and the trial court abused its discretion in imposing certain conditions of
probation. We affirm.
Issues [2] Harness raises the following restated issues for our review:
I. Whether his sentence is inappropriate; and II. Whether the trial court abused its discretion when it required him to submit to polygraph examinations as a condition of his probation.
Facts and Procedural History [3] Harness had a tumultuous and abusive childhood. He married, and he and his
wife had one biological son. At some point in their marriage, the couple
decided to adopt additional children.
[4] J.H. and A.H. are sisters who were in foster care for approximately three years.
Harness and his wife adopted J.H. and A.H., as well as their siblings. Prior to
being adopted, both J.H. and A.H. had been abused sexually, physically, and
1 Ind. Code § 35-42-2-1(a)(3) (2012)
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 2 of 8 mentally. A.H. struggled with behavioral and mental problems that required
therapy sessions.
[5] The charging information filed against Harness listed nineteen criminal
offenses, allegedly perpetrated upon A.H. and J.H. On July 15, 2015, the
parties entered into a plea agreement, and Harness agreed to plead guilty to two
counts of Class C felony battery resulting in serious bodily injury involving
A.H. As part of the plea agreement, the State agreed to dismiss all other
counts, to not file additional counts involving Harness’s adopted daughters, and
to allow Harness’s wife to plead to an amended charge of Class B misdemeanor
failure to report child abuse.
[6] The facts surrounding the two counts of Class C felony battery are that on one
occasion, Harness struck A.H. in the forehead and pushed her into a wall,
causing her to lose consciousness. On another occasion, Harness threw A.H.
into a wall that contained a protruding nail. The incidents left A.H. with
permanent scars.
[7] Following a hearing, the trial court sentenced Harness to concurrent sentences
of six years’ imprisonment, with four years executed and two years suspended
to probation. Harness appeals.
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 3 of 8 Discussion and Decision I. Inappropriateness of Sentence
[8] Harness argues that his six-year sentence, with four years executed and two
years suspended to probation, is inappropriate in light of the nature of the
offense and his character. Harness argues his sentence is inappropriate because
of the mitigating factors found by the trial court, his low risk to reoffend, and
his eligibility to serve his sentence on home detention. He seeks resentencing to
a total of six years, with two years executed and four years suspended to
probation.
[9] We 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). Whether
the reviewing court regards a sentence as inappropriate turns on a “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 v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘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 trial court brings to its sentencing decisions.’” Gil v. State,
988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866
N.E.2d 858, 866 (Ind. Ct. App. 2007)). Harness bears the burden of persuading
us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.
2007).
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 4 of 8 [10] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. See Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).
Harness pleaded guilty to two counts of Class C felony battery. The sentencing
range for a Class C felony was “a fixed term of between two (2) and eight (8)
years, with the advisory sentence being four (4) years.” Ind. Code § 35-50-2-
6(a) (2005). The trial court found as an aggravator that Harness was in a
position of care, custody, and control of his daughter, A.H. The court imposed
concurrent six-year sentences for both of Harness’s convictions, which is above
the advisory sentence but below the maximum advised by the General
Assembly.
[11] Details of the nature of Harness’s offenses are limited to the sparse facts
presented during his sentencing hearing, and the contents of his Appendix.
Nevertheless, his first offense involved striking his daughter and pushing her
into a wall, causing her to lose consciousness and resulting in a bump on the
back of her head and a permanent scar on her forehead. His second offense
involved throwing his daughter into a wall with a protruding nail, which caused
a laceration to her side and a permanent scar. A.H. was a minor and Harness
was aware that she had previously been subjected to physical abuse. Based on
the foregoing, we conclude that the nature of Harness’s offenses does not render
his sentence inappropriate.
[12] Our review of the character of the offender reveals that Harness had no criminal
history and stated at the sentencing hearing:
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 5 of 8 . . . I wholeheartedly apologize to [A.H. for the battery incidents.] I have apologized to [A.H.] multiple times, and she knows that. I was wrong. My use of force was inexcusable, and I am truly sorry. And I do truly accept the full responsibility for the entire incident. I did not do a safe hold [on A.H.] that day. And I did lose my temper.
Tr. pp. 70-71. Harness pleaded guilty, and the State dismissed seventeen of
nineteen charges. The trial court identified as mitigating factors the sexual,
mental, and physical abuse Harness suffered as a child, his health problems,
that he had no criminal history, and that incarceration would cause a hardship
on his wife and J.H. However, the court found as aggravating factors that the
circumstances under which the offenses occurred could recur due to the abuse
that Harness suffered as a child, and that A.H. was in Harness’s trust, care,
custody, and control. The court ultimately determined that the aggravating
factors outweighed the mitigating factors.
[13] On two occasions, Harness pushed and threw his daughter into a wall, one time
with such force that she lost consciousness. After both batteries, A.H. sustained
injuries that resulted in permanent scars. One scar was caused by A.H.’s body
hitting a nail that was protruding from the wall. Given the extreme
consequences of Harness’s batteries on A.H. (i.e., the permanent scars), and
after due consideration and under the circumstances, we cannot say that
Harness’s six-year sentence, with four years executed and two years suspended
to probation, is inappropriate in light of the nature of the offenses and his
character.
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 6 of 8 II. Polygraph Examination as Condition of Probation
[14] Harness next argues that the trial court abused its discretion when it required as
a condition of probation that he submit to polygraph examinations. “A trial
court has broad discretion to impose conditions of probation which will
produce a law abiding citizen and protect the public.” Patton v. State, 580
N.E.2d 693, 698 (Ind. Ct. App. 1991), trans. denied. In Patton, this court
considered whether it was appropriate for a trial court to impose a condition of
probation that required the probationer to submit to polygraph examinations
and to stipulate to the admissibility of the results. We held that a probationer
could not be forced to stipulate to the admissibility of such evidence, but that it
was not improper to require the probationer to submit to polygraph
examinations upon request “when the condition bears a reasonable relationship
to the rehabilitative aspects of probation.” Id. at 698-99; see also Ind. Code § 35-
38-2-2.3(a)(15) (2012) (“As a condition of probation, the court may require a
person to . . . [s]atisfy other conditions reasonably related to the person’s
rehabilitation.”). Such a condition is appropriate when imposed “as a
deterrence from violating other terms of probation by instilling the fear of
detection or where the examination provides probation officials with an
indication of the probationer’s progress in rehabilitation.” Patton, 580 N.E.2d
at 698.
[15] During Harness’s sentencing, the trial court expressed great concern about the
abuse that Harness suffered as a child. The trial court imposed the polygraph
examination condition “because of the evidence [that was presented regarding]
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 7 of 8 . . . the horrific abuse and background [Harness] has.” Tr. p. 91. The court
further stated, “I seriously considered doing the sexual offender probation
terms, because of . . . the statistics of reoccurrence [sic] and repetition of the
cycle . . . I changed my mind and only made the polygraph part of it.” Id. at 91-
92. The trial court imposed the polygraph condition to serve a rehabilitative
function and to provide probation officials with an indication of Harness’s
progress in rehabilitation. The polygraph probation condition was not
improper.
Conclusion [16] For the reasons stated above, we affirm Harness’s sentence for two counts of
battery as Class C felonies, and the polygraph examination condition of his
[17] Affirmed.
Bradford, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017 Page 8 of 8