Kourtney Cohen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 1, 2020
• Docket: 19A-CR-2875
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 01 2020, 10:33 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Batesville, Indiana Attorney General of Indiana

Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kourtney Cohen, October 1, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2875 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1810-F2-37700

Barteau, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 1 of 8 Statement of the Case [1] Kourtney Cohen appeals the sentence he received for his conviction of 1 operating a vehicle while intoxicated, endangering a person, a Level 5 felony.

Issue [2] Cohen presents one issue for our review: whether his sentence is inappropriate.

Facts and Procedural History [3] In October 2018, Indianapolis Metropolitan Police Department Officer Michael

McWhorter was responding to a call when he encountered a driver, later

identified as Cohen, driving his vehicle the wrong way down a one-way street.

Officer McWhorter drove toward Cohen’s vehicle in such a manner as to force

him to pull over to the curb. The officer then pulled alongside Cohen’s vehicle,

rolled down his passenger side window, and attempted to talk to Cohen.

Cohen looked at Officer McWhorter with a blank stare, so the officer exited his

car and went around to the driver side of Cohen’s car. Officer McWhorter

asked Cohen what was going on, and Cohen told the officer he lived there and

pointed to the house on his left. Officer McWhorter asked him his address, and

Cohen responded he was just kidding and he did not live there.

[4] At that point, Officer McWhorter asked Cohen to step out of his vehicle.

Cohen had difficulty getting his seatbelt off and could not find the door handle.

1 Ind. Code §§ 9-30-5-2 (2001); 9-30-5-3(b) (2014).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 2 of 8 As Cohen exited the vehicle and attempted to step onto the sidewalk, he tripped

and fell into the officer. For his and Cohen’s safety, the officer placed Cohen in

handcuffs and had him sit down. The officer then had the control operators run

the plates of the vehicle Cohen was driving and discovered the vehicle had been

reported stolen. This information led to an inventory search of the vehicle

which revealed a handgun under the driver’s seat and a bag of a substance

believed to be drugs in the center console. Officer McWhorter determined that

Cohen did not have a handgun permit, and later testing revealed the substance

from the center console to be approximately 75 grams of heroin.

[5] In the meantime, Officer Shem Ragsdale arrived to conduct a DUI

investigation of Cohen. He observed that Cohen had poor balance, slurred

speech, glassy and bloodshot eyes, and smelled of the odor of alcoholic

beverages. The officer administered three field sobriety tests to Cohen, all of

which he failed. Cohen refused a chemical test, and Officer Ragsdale obtained

a search warrant to draw Cohen’s blood. The results of the testing revealed that

the ethyl alcohol concentration in Cohen’s blood was 0.124%.

[6] Based upon this incident, the State charged Cohen with dealing in a narcotic 2 3 drug, a Level 2 felony; possession of a narcotic drug, a Level 3 felony; carrying

2 Ind. Code § 35-48-4-1 (2017). 3 Ind. Code § 35-48-4-6 (2014).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 3 of 8 4 a handgun without a license, a Class A misdemeanor; and two counts of

operating a vehicle while intoxicated, endangering a person, as Class A

misdemeanors. The State also charged Cohen with enhanced offenses of the

handgun charge and one of the operating while intoxicated counts based upon

his prior felony conviction of operating a vehicle while intoxicated, causing

death. A jury found Cohen guilty of both counts of operating a vehicle while

intoxicated, and the two counts merged. Cohen then waived his right to a jury

for the second phase of his trial, and the court found that he had a prior

conviction, thereby enhancing the offense of operating a vehicle while

intoxicated to a Level 5 felony.

[7] The court sentenced Cohen to six years with three years executed and two years

suspended, and the court recommended that Cohen receive alcohol counseling

while in the Department of Correction. The court further ordered Cohen to

serve one year on home detention and one year on probation. Cohen appeals

this sentence.

Discussion and Decision [8] 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 determine

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App.

4 Ind. Code § 35-47-2-1 (2017).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 4 of 8 2014). However, “we must and should exercise 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.” Stewart v.

State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

court’s judgment 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). Absent such a sufficiently compelling

evidentiary basis, we will not override the decision of the trial court. Sorenson v.

State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019), trans. denied (2020). The

defendant bears the burden of persuading the appellate court that his or her

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

[9] To assess whether a sentence is inappropriate, we look first to the statutory

range established for the class of the offense. Here, Cohen was convicted of a

Level 5 felony, for which the advisory sentence is three years, with a minimum

of one year and a maximum of six years. Ind. Code § 35-50-2-6(b) (2014). The

court sentenced Cohen to the maximum sentence of six years but ordered that

only three years be executed.

[10] Next, we look to the nature of the offense. “The nature of the offense is found

in the details and circumstances surrounding the offense and the defendant’s

participation therein.” Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 5 of 8 2018), trans. denied (2019). Cohen was driving while intoxicated, and, to add to

the inherent danger of that offense, he was driving the wrong way down a one-

way street. In addition, Cohen was driving a stolen vehicle, and he lied to the

officer about living on the street on which he was stopped.

[11] Finally, we turn to the character of the offender. The character of the offender

is found in what we learn of the defendant’s life and conduct. Id. The

significance of a criminal history in assessing a defendant’s character and an

appropriate sentence varies based on the gravity, nature, and proximity of prior

offenses in relation to the current offense, as well as the number of prior

offenses. Sandleben v. State, 29 N.E.3d 126, 137 (Ind. Ct. App. 2015), trans.

denied. Even a minor criminal history is a poor reflection of a defendant’s

character. Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App. 2014), trans. denied.

[12] Cohen’s criminal history is comprised of a true finding of disorderly conduct

when he was a juvenile, for which he completed a substance abuse program.

As an adult, Cohen has been convicted of felony operating a vehicle while

intoxicated, resulting in death and was sentenced to an aggregate, executed

sentence of thirteen years and ordered to successfully complete substance abuse

treatment while incarcerated. Cohen had at least twenty-five prison conduct

incidents while he was incarcerated for refusing to obey orders; being in an

unauthorized area; refusing an assignment; disruptive, unruly, or rowdy

conduct; threatening or communicating with another; general violation of

facility rules; being an habitual conduct rule violator; tampering with or

possessing tools to alter locks/device; impairment of surveillance; lying or

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 6 of 8 providing false statement; and committing battery without weapon or injury.

Cohen’s criminal history also reveals that he has been charged with such crimes

as strangulation, domestic battery committed in the presence of a child less than

sixteen years old, battery resulting in bodily injury, and invasion of privacy,

though none of these charges were reduced to conviction.

[13] Cohen points to the age of his prior conviction as a factor warranting revision of

his sentence; however, we note that, for six of the intervening years, Cohen was

in prison. More significant than the intervening time period is the nature of

Cohen’s prior conviction. The nature of his prior conviction is the same as the

current offense—operating a vehicle while intoxicated, and the gravity of his

prior offense is considerable—causing a death. Apparently undeterred by the

impact of causing another’s death and serving a prison sentence therefor, Cohen

again drove while intoxicated. Moreover, Cohen’s overall history reflects an

inability to abide by the rules and laws of society, both in and out of prison.

[14] In an attempt to portray his character in a positive light, Cohen points out his

expression of remorse, his willingness to attend a treatment program, his

concern for his children, his family support, and his desire to open a tire shop

for employment. Other than merely listing these factors that he presented to the

trial court, Cohen presents no argument as to their compelling nature that

would cause this Court to override the decision of the trial court. Moreover,

the court took Cohen’s willingness to attend a treatment program into

consideration and stated in the sentencing order that it “strongly recommends

alcohol counseling while in IDOC.” Appellant’s App. Vol. II, p. 17. Despite

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 7 of 8 the fact that Cohen had previously completed two treatment programs, the

court generously recommended substance abuse treatment in prison to give him

yet another chance to overcome his substance abuse issues. We additionally

note that Cohen has two children who live with their mother and for whom he

is not ordered to pay support. He does not assert that his children will suffer

any undue hardship as a result of his incarceration or that they will not be

provided for during his period of incarceration.

Conclusion [15] Cohen has not met his burden of presenting compelling evidence portraying in

a positive light the nature of his offense or his character in order to overcome

the trial court’s sentencing decision.

[16] Affirmed.

Bailey, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2875 | October 1, 2020 Page 8 of 8