Marvin J. Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 13, 2020
• Docket: 19A-CR-2505
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 13 2020, 7:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Frew Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marvin J. Davis, May 13, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2505 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1809-F3-57

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 1 of 5 Case Summary [1] Marvin Davis (“Davis”) was convicted of Level 3 felony rape 1 and Level 6

felony sexual battery2 following a jury trial. He appeals his fifteen-year sentence

asserting that his sentence is inappropriate in light of the nature of the offenses

and his character. We affirm.

Facts and Procedural History [2] On July 17, 2018, Davis’s friend Camille was with her daughter, P.H., when

they made a stop at Davis’s home. When Davis met Camille’s daughter he

said, “Wow, how old are you?” She replied, “Sixteen.” Davis asked if she had

any hobbies and then quickly followed with an offer to help her get a coaching

position on the cheerleading team at the middle school.

[3] Because P.H. was interested, the next day Davis decided to drive her to Metro

field to meet with the woman involved in the cheerleading program. On their

way to Metro field, Davis told P.H. that he had to stop at his house to get some

papers he had forgotten. When they arrived at Davis’s home he invited P.H.

inside for a glass of water. As they entered, Davis asked P.H. if she had ever

been with an older man, telling her that he could show her how. Davis then

closed the door and pushed P.H. against it. Davis used his right arm to hold

1 Ind. Code § 35-42-4-1. 2 I.C. § 35-42-4-8.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 2 of 5 her neck against the door and his other hand to pull down P.H.’s pants and

proceeded to rape her. P.H. continuously asked Davis to stop and attempted to

fight him off, but Davis told her to shut up and put his hand over her mouth.

When Davis finished raping P.H., he dropped her off at her friend’s house.

Later it was also determined that the cheerleading program that Davis offered

P.H. did not exist.

[4] On August 29, 2019, a judgment of conviction was entered after a jury found

Davis guilty on Count I Level 3 felony rape and Count II Level 6 felony sexual

battery. At the sentencing hearing, Davis was sentenced to fifteen years on

Count I and two years on Count II with both sentences running concurrently.

Davis now appeals.

Discussion and Decision [5] Davis contends that his sentence is inappropriate. Article 7, Sections 4 and 6 of

the Indiana Constitution authorize independent appellate review and revision

of a sentence imposed by a trial court. See, e.g., Sanders v. State, 71 N.E.3d 839,

843 (Ind. Ct. App. 2017), trans. denied. This appellate authority is embodied in

Indiana Appellate Rule 7(B). Id. Under 7(B), the appellant must demonstrate

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

character. Id. (citing Ind. Appellate Rule 7(B)). In these instances, deference to

the trial courts “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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 3 of 5 substantial virtuous traits or persistent examples of good character).” Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[6] The Indiana Supreme Court has explained that the principal role of appellate

review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

question is not whether another sentence is more appropriate, but whether the

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

App. 2008).

[7] A defendant convicted of a Level 3 felony is subject to a sentencing range of

three to sixteen years. I.C. § 35-50-2-5(b). Davis received a fifteen-year

sentence for his crimes. He contends that the nature of the offense and his

character do not support his fifteen-year sentence for rape. An analysis under

the auspices of Rule 7(B) suggests otherwise.

[8] First, we look to the nature of the offense. Under the guise of being friends with

the victim’s mother and assisting the victim with securing a position as a

cheerleading coach, Davis lured this young girl into his car and drove her to his

house. There Davis used brute force to rape her.

[9] Next, we consider the defendant’s character. Davis has an extensive criminal

history consisting of eight prior convictions as an adult. Furthermore, Davis

used deception to perpetrate his well-thought-out plan which connotes an

absence of any “restraint.” Stephenson, 29 N.E.3d at 122.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 4 of 5 [10] In the final analysis, Davis has wholly failed to present any evidence, let alone

compelling evidence, that portrays in a positive light the nature of the offense

and his character. Absent such evidence, we are unpersuaded that his sentence

is inappropriate.

[11] Affirmed.

Crone, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020 Page 5 of 5