Kevin Axton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 9, 2015
• Docket: 27A04-1404-CR-184
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jun 09 2015, 9:02 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Tia R. Brewer Gregory F. Zoeller Grant County Public Defender Attorney General of Indiana Marion, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Axton, June 9, 2015

Appellant-Defendant, Court of Appeals Case No. 27A04-1404-CR-184 v. Appeal from the Grant Superior State of Indiana, Court The Honorable Dana J. Kenworthy, Appellee-Plaintiff, Judge Cause No. 27D02-1307-FB-58

Robb, Judge.

Case Summary and Issues [1] Following a jury trial, Kevin Axton was convicted of criminal confinement, a

Class C felony, for which he was sentenced to eight years; domestic battery, a

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 1 of 9 Class A misdemeanor, for which he was sentenced to one year; intimidation, a

Class D felony, for which he was sentenced to three years; and criminal deviate

conduct, a Class B felony, for which he was sentenced to twenty years. The

trial court ordered his sentences to be served concurrently, for a total sentence

of twenty years, all executed. Axton appeals his sentence, raising two issues for

our review: 1) whether the trial court abused its discretion in sentencing him,

and 2) whether his sentence is inappropriate in light of the nature of his offenses

and his character. Concluding the trial court did not abuse its discretion and

Axton’s sentence is not inappropriate, we affirm.

Facts and Procedural History [2] Axton and his wife, Tammy, returned to the home they sometimes shared early

in the evening of July 15, 2013, after smoking crack cocaine at a friend’s house.

Axton had also been drinking alcohol throughout the day and continued to do

so once they arrived home. Axton became angry when he dialed a contact

from Tammy’s cellphone, thinking he would be calling their friend so he could

ask him to bring more beer to the house. Instead, he reached a different man

with whom he then accused Tammy of having an affair. Axton spent the next

several hours slapping, hitting, and punching Tammy about the head, arms,

legs, and torso. He broke her nose and left bruises all over her body. He made

her remove her clothes so she could not run away, and he forced her to perform

oral sex on him. When that was ultimately unsuccessful because Tammy could

not breathe through her broken nose, he pushed her down onto the bed and

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 2 of 9 engaged in sexual intercourse with her. He repeatedly refused to allow her to

leave the house for fear she would call the police. When Axton passed out the

next morning, Tammy dressed and fled the house, seeking help at a nearby

credit union. Employees there noted her swollen and bloody face, bruises on

her body, and her panicked demeanor. Police were called, and Tammy was

taken to the hospital by ambulance.

[3] The State charged Axton with criminal confinement, domestic battery,

intimidation, and criminal deviate conduct. A jury found him guilty of all

charges. At the sentencing hearing, the trial court stated:

. . . I am going to find the following aggravating factors. First of all, the criminal history as set forth on pages four through eight of the Presentence Investigation Report, that includes O.W.I. from 1985, Possession of Marijuana from 1994, Operating with a BAC of .10 or More in 1996, Domestic Battery, 2006, Intimidation, 2006, Resisting Law Enforcement, 2006, Public Intox., 2007, Intimidation, 2007, Invasion of Privacy, 2008, Trespass and Criminal Mischief, 2008, Intimidation and Trespass, 2007, Battery, 2010, Invasion of Privacy, 2010, Trespass and Resisting Law Enforcement, 2011, Resisting Law Enforcement and Public Intox., 2011, Public Intox., 2012, followed by this case in 2013. I also note multiple probation violations throughout that time period. The criminal history is [sic] this case is an extremely strong aggravating factor. I also find as an aggravator that the harm or injury was greater than the elements necessary to prove the offense. Miss Axton did suffer a broken nose which is greater than the elements necessary to prove the Domestic Battery charge. That, I will find is a moderate aggravating factor. In this case I find no mitigating factors. The aggravators do outweigh the mitigators. I also note that the character of this defendant indicates that he is not a good candidate for probation based upon his disregard of the court’s No-Contact Order. His disregard for the rules of probation in the past, and his failure to follow through treatment programs which were offer[ed] to him in the past.

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 3 of 9 Transcript at 307-09. The trial court sentenced him to eight years executed for

criminal confinement, one year executed for domestic battery, three years

executed for intimidation, and twenty years executed for criminal deviate

conduct, all to be served concurrently for an aggregate sentence of twenty years.

Axton now appeals his sentence.

Discussion and Decision I. Abuse of Discretion [4] “[S]entencing decisions rest within the sound discretion of the trial court and

are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

abuse of discretion occurs if the decision is clearly against the logic and effect of

the facts and circumstances. Id. The trial court may abuse its discretion in

sentencing by:

(1) failing to enter a sentencing statement, (2) entering a sentencing statement that explains reasons for imposing the sentence but the record does not support the reasons, (3) the sentencing statement omits reasons that are clearly supported by the record and advanced for consideration, or (4) the reasons given in the sentencing statement are improper as a matter of law. Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868

N.E.2d at 490-91).

[5] Axton contends the trial court abused its discretion in sentencing him by

finding aggravating circumstances which were not supported by the record and

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 4 of 9 were improper as a matter of law. Specifically, the trial court found as an

aggravating circumstance the fact that the harm caused to Tammy was greater

than that necessary to prove the elements of domestic battery. Axton

challenges this as unsupported by the record. Further, the trial court stated that

“[b]ased upon his character, attitudes, and history . . . [Axton] is not a good

candidate for probation.” Appendix of Appellant’s Brief at 12;1 see also Tr. at

308-09. Axton claims the trial court was using this as an aggravating

circumstance, which would be improper as a matter of law because the fact that

a person is likely to respond affirmatively to probation is a statutory mitigating

circumstance. See Ind. Code § 35-38-1-7.1(b)(7). He also claims this is

improper because it is a reflection of his criminal history, which was separately

identified as an aggravating circumstance.

[6] Our supreme court has held that the nature and circumstances of a crime can be

a valid aggravating factor. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001).

However, a trial court must give more than a generalized reference to the

nature and circumstances of the crime. See Smith v. State, 872 N.E.2d 169, 178-

79 (Ind. Ct. App. 2007), trans. denied. The trial court may assign aggravating

weight to the harm, injury, loss, or damage suffered by the victim if such harm

was significant and greater than the elements necessary to prove the

commission of the offense. Filice v. State, 886 N.E.2d 24, 39 (Ind. Ct. App.

1 Appellant’s Appendix includes several pages from the transcript. For several years now, Indiana Appellate Rule 50(F) has provided that no portion of the transcript should be reproduced in the appendix because the transcript is transmitted to the court on appeal by the trial court clerk.

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 5 of 9 2008), trans. denied. The trial court here specifically referenced the harm caused

to Tammy during the domestic battery, which requires “bodily injury.” Ind.

Code § 35-42-2-1.3(a). “‘Bodily injury’ means any impairment of physical

condition, including physical pain.” Ind. Code § 35-31.5-2-29. Here, Tammy

testified that she experienced not just physical pain, but also a broken nose,

sprained ankle, and bruising all over her body. And not only did Axton inflict

bodily injury in excess of pain, but he did so over a prolonged period. Tammy

testified that they arrived home at approximately four o’clock in the evening,

and she was not able to leave the house until seven o’clock the next morning,

with Axton slapping and hitting her much of that time. We hold this

aggravating circumstance is clearly supported by the record.

[7] As for the trial court’s statement that Axton was not a good candidate for

probation, we do not believe the trial court improperly “misused” a statutory

mitigating circumstance as an aggravating circumstance, as Axton asserts. See

Brief of Appellant at 7. The trial court had already announced the aggravating

and mitigating circumstances and its weighing of them before it made this

statement. The trial court’s reference to whether probation was a viable option

was merely an explanation as to why the trial court was ordering the sentence

to be executed in its entirety. The trial court did not use this as an aggravating

circumstance at all, let alone improperly.

[8] In sum, the trial court did not abuse its discretion in its identification of

aggravating circumstances when sentencing Axton.

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 6 of 9 II. Inappropriate Sentence [9] Axton also contends his sentence is inappropriate in light of the nature of his

offenses and his character. Indiana Appellate Rule 7(B) gives appellate courts

the authority to revise a defendant’s sentence 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.” The principal

role of Appellate Rule 7(B) review is to attempt to leaven the outliers. Chambers

v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). “[T]he question . . . is not whether

another sentence is more appropriate; rather, the question is whether the

sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

App. 2008) (emphasis in original). “[W]hether we regard a sentence as

appropriate at the end of the day 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 v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). The appellant has the burden of persuading us that his

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

[10] With regard to the “nature of the offense” portion of our review, the advisory

sentence is the starting point that the legislature has selected as an appropriate

sentence for the crime committed. Gervasio v. State, 874 N.E.2d 1003, 1005

(Ind. Ct. App. 2007). Because Axton’s sentences were ordered to be served

concurrently and because we consider the aggregate sentence, see Gleason v.

State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012), we focus on the sentence for

criminal deviate conduct, the lengthiest sentence imposed. The statutory

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 7 of 9 sentencing range for a Class B felony is six to twenty years with an advisory

sentence of ten years. Ind. Code § 35-50-2-5(a). The trial court imposed the

maximum sentence of twenty years. As noted above, Axton continuously

abused his victim over a period exceeding twelve hours, committing multiple

offenses against her and causing serious injury. We cannot say his twenty-year

sentence is inappropriate in light of the nature of his offenses.

[11] The “character of the offender” analysis involves evaluation of the relevant

aggravating and mitigating circumstances and other general sentencing

considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009).

Although this is Axton’s first felony conviction, he has a lengthy criminal

record, including former domestic battery and intimidation convictions. Many

of his offenses are related to his use and abuse of alcohol, which also played a

role in these offenses, yet Axton has never completed substance abuse treatment

and reported to the probation department that he did not think he had a

problem with alcohol. He has also never been committed to the Department of

Correction, instead being placed in county jails or on probation. But he has

violated probation on numerous occasions and failed to follow through on

rehabilitation programs offered to him. In light of Axton’s criminal history—

both the number of his offenses and his response to sentencing leniency—and

his alcohol abuse, we cannot say his twenty-year executed sentence is

inappropriate in light of the nature of his character.

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 8 of 9 Conclusion [12] The trial court did not abuse its discretion in sentencing Axton, and he has not

persuaded us that his twenty-year sentence is inappropriate in light of the nature

of his offenses or his character. We therefore affirm Axton’s sentence.

[13] Affirmed.

May, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015 Page 9 of 9