MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 19 2017, 5:51 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Laura A. Raiman Curtis T. Hill, Jr. R. Patrick Magrath Attorney General of Indiana Alcorn Sage Schwartz & Magrath, LLC Madison, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Myles C. Crenshaw, July 19, 2017 Appellant-Defendant, Court of Appeals Case No. 03A01-1612-CR-2803 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause Nos. 03D01-1509-F3-4662 03D01-1601-CM-535
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 1 of 6 Statement of the Case [1] Myles Crenshaw appeals his sentence after he pleaded guilty to intimidation, as
a Level 5 felony, and two counts of invasion of privacy, as Class A
misdemeanors. Crenshaw raises a single issue for our review, namely, whether
his aggregate sentence of seven years and ten months is inappropriate in light of
the nature of the offenses and his character. We affirm.
Facts and Procedural History [2] In September of 2015, Crenshaw attacked his girlfriend, Jessica Berry, at her
home while her children were asleep. Crenshaw threatened to murder Berry
and her children and forced Berry to engage with him in sexual acts. During
the episode, Crenshaw hit Berry multiple times; he put a cigarette out on
Berry’s body; he urinated in Berry’s mouth and made her swallow it; he choked
her; he stabbed her in the back with scissors; and he held a knife against her
chest.
[3] The State charged Crenshaw in cause number 03D01-1509-F3-4662 (“Cause
F3-4662”) with criminal confinement, as a Level 3 felony; intimidation, as a
Level 5 felony; and two counts of domestic battery, as Level 6 felonies. The
State also sought and obtained a no-contact order that prohibited Crenshaw
from contacting Berry.
[4] While in jail awaiting trial in Cause F3-4662, Crenshaw called Berry more than
200 times and wrote numerous letters to her over the course of several months.
Among other things, in those communications Crenshaw instructed Berry to
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 2 of 6 “drop the charges and retract your statement.” Tr. Vol. II at 42. Thereafter,
Berry retracted her statements to police. In light of those communications in
violation of the no-contact order, in cause number 03D01-1601-CM-535
(“Cause CM-535”) the State charged Crenshaw with six counts of invasion of
privacy, each as a Class A misdemeanor.
[5] Thirteen months after the initial charges, Crenshaw pleaded guilty to
intimidation, as a Level 5 felony, in Cause F3-4662 and, simultaneously, to two
counts of invasion of privacy, as Class A misdemeanors, in Cause CM-535. In
exchange for his guilty plea in both causes, the State agreed to drop the
remaining counts as well as a pending petition to revoke Crenshaw’s probation
in a third cause. The State had filed that petition to revoke probation in a cause
of action in which Crenshaw had been convicted of a prior domestic battery
against Berry.
[6] The trial court accepted Crenshaw’s guilty plea. At the conclusion of the
ensuing sentencing hearing, the trial court found the following aggravating
factors: (1) Crenshaw’s criminal history; (2) Crenshaw’s prior failures to abide
by the conditions of probation; (3) Crenshaw’s violation of a term of probation
that had been entered in a conviction of domestic battery involving the same
victim, which the court expressly found to be a “significant aggravator”; (4) the
September 2015 incident occurred in the presence of children; (5) with respect
to his conviction in Cause F3-4662, Crenshaw violated the protective orders
entered against him; (6) Crenshaw directed Berry to change her story with
police; and (7) Crenshaw’s lack of remorse and, instead, “plac[ing] a significant
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 3 of 6 amount of the blame towards the victim.” Id. at 130-31. The court found as a
“slight mitigator” that Crenshaw had sought and obtained “family wellness
treatment.” Id. at 131. The court found that Crenshaw’s guilty plea was not
entitled to mitigating weight in light of the “substantial deal” he had received in
exchange for his plea. Id. The court then found that the aggravators
outweighed the mitigators, and it ordered Crenshaw to serve an aggregate term
of seven years and ten months executed. This appeal ensued.
Discussion and Decision [7] Crenshaw argues that his sentence is inappropriate. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence authorized by statute 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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[8] According to Crenshaw, his sentence is inappropriate for the following reasons:
(1) he was employed at the time of his arrest; (2) he had employment and
housing prospects in place pending his release; (3) he sought and obtained the
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 4 of 6 assistance of community resources; (4) he had the support of numerous family
members; (5) he completed a course on parenting skills while in prison; (6)
while he has three prior misdemeanor convictions, he has no prior felonies; (7)
his prior battery of Berry was “attenuated in both time and manner”; and (8) he
has no history of substance abuse. Appellant’s Br. at 11. Crenshaw then
continues as follows:
Berry . . . admitted that she and Crenshaw role[-]played a dominant-submissive relationship involving rough sex. . . .
. . . The nature of [their] sexual relationship was not and is not offered as an excuse . . . . However, the fact that Crenshaw’s threat was made close in time to the couple’s shocking sexual practices affected the trial court in consideration of the nature of the offense. The scandalous nature of [their] relationship did not warrant the imposition of a nearly maximum sentence.
Id. at 12. And Crenshaw further alleges that “Berry’s consensual participation
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 19 2017, 5:51 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Laura A. Raiman Curtis T. Hill, Jr. R. Patrick Magrath Attorney General of Indiana Alcorn Sage Schwartz & Magrath, LLC Madison, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Myles C. Crenshaw, July 19, 2017 Appellant-Defendant, Court of Appeals Case No. 03A01-1612-CR-2803 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable James D. Worton, Appellee-Plaintiff. Judge Trial Court Cause Nos. 03D01-1509-F3-4662 03D01-1601-CM-535
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 1 of 6 Statement of the Case [1] Myles Crenshaw appeals his sentence after he pleaded guilty to intimidation, as
a Level 5 felony, and two counts of invasion of privacy, as Class A
misdemeanors. Crenshaw raises a single issue for our review, namely, whether
his aggregate sentence of seven years and ten months is inappropriate in light of
the nature of the offenses and his character. We affirm.
Facts and Procedural History [2] In September of 2015, Crenshaw attacked his girlfriend, Jessica Berry, at her
home while her children were asleep. Crenshaw threatened to murder Berry
and her children and forced Berry to engage with him in sexual acts. During
the episode, Crenshaw hit Berry multiple times; he put a cigarette out on
Berry’s body; he urinated in Berry’s mouth and made her swallow it; he choked
her; he stabbed her in the back with scissors; and he held a knife against her
chest.
[3] The State charged Crenshaw in cause number 03D01-1509-F3-4662 (“Cause
F3-4662”) with criminal confinement, as a Level 3 felony; intimidation, as a
Level 5 felony; and two counts of domestic battery, as Level 6 felonies. The
State also sought and obtained a no-contact order that prohibited Crenshaw
from contacting Berry.
[4] While in jail awaiting trial in Cause F3-4662, Crenshaw called Berry more than
200 times and wrote numerous letters to her over the course of several months.
Among other things, in those communications Crenshaw instructed Berry to
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 2 of 6 “drop the charges and retract your statement.” Tr. Vol. II at 42. Thereafter,
Berry retracted her statements to police. In light of those communications in
violation of the no-contact order, in cause number 03D01-1601-CM-535
(“Cause CM-535”) the State charged Crenshaw with six counts of invasion of
privacy, each as a Class A misdemeanor.
[5] Thirteen months after the initial charges, Crenshaw pleaded guilty to
intimidation, as a Level 5 felony, in Cause F3-4662 and, simultaneously, to two
counts of invasion of privacy, as Class A misdemeanors, in Cause CM-535. In
exchange for his guilty plea in both causes, the State agreed to drop the
remaining counts as well as a pending petition to revoke Crenshaw’s probation
in a third cause. The State had filed that petition to revoke probation in a cause
of action in which Crenshaw had been convicted of a prior domestic battery
against Berry.
[6] The trial court accepted Crenshaw’s guilty plea. At the conclusion of the
ensuing sentencing hearing, the trial court found the following aggravating
factors: (1) Crenshaw’s criminal history; (2) Crenshaw’s prior failures to abide
by the conditions of probation; (3) Crenshaw’s violation of a term of probation
that had been entered in a conviction of domestic battery involving the same
victim, which the court expressly found to be a “significant aggravator”; (4) the
September 2015 incident occurred in the presence of children; (5) with respect
to his conviction in Cause F3-4662, Crenshaw violated the protective orders
entered against him; (6) Crenshaw directed Berry to change her story with
police; and (7) Crenshaw’s lack of remorse and, instead, “plac[ing] a significant
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 3 of 6 amount of the blame towards the victim.” Id. at 130-31. The court found as a
“slight mitigator” that Crenshaw had sought and obtained “family wellness
treatment.” Id. at 131. The court found that Crenshaw’s guilty plea was not
entitled to mitigating weight in light of the “substantial deal” he had received in
exchange for his plea. Id. The court then found that the aggravators
outweighed the mitigators, and it ordered Crenshaw to serve an aggregate term
of seven years and ten months executed. This appeal ensued.
Discussion and Decision [7] Crenshaw argues that his sentence is inappropriate. As we have explained:
Indiana Appellate Rule 7(B) permits an Indiana appellate court to “revise a sentence authorized by statute 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.” We assess the trial court’s recognition or nonrecognition of aggravators and mitigators as an initial guide to determining whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006). The principal role of appellate review is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant must persuade the appellate court that his or her sentence has met the inappropriateness standard of review. Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).
Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).
[8] According to Crenshaw, his sentence is inappropriate for the following reasons:
(1) he was employed at the time of his arrest; (2) he had employment and
housing prospects in place pending his release; (3) he sought and obtained the
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 4 of 6 assistance of community resources; (4) he had the support of numerous family
members; (5) he completed a course on parenting skills while in prison; (6)
while he has three prior misdemeanor convictions, he has no prior felonies; (7)
his prior battery of Berry was “attenuated in both time and manner”; and (8) he
has no history of substance abuse. Appellant’s Br. at 11. Crenshaw then
continues as follows:
Berry . . . admitted that she and Crenshaw role[-]played a dominant-submissive relationship involving rough sex. . . .
. . . The nature of [their] sexual relationship was not and is not offered as an excuse . . . . However, the fact that Crenshaw’s threat was made close in time to the couple’s shocking sexual practices affected the trial court in consideration of the nature of the offense. The scandalous nature of [their] relationship did not warrant the imposition of a nearly maximum sentence.
Id. at 12. And Crenshaw further alleges that “Berry’s consensual participation
in the invasion of privacy crimes was significantly more pronounced.” Id.
[9] We reject Crenshaw’s arguments, which largely ignore the heinousness of his
offenses or blame Berry for them. Whatever their prior relationship, Berry did
not consent to the events that occurred during the September 2015 incident, and
Berry’s participation in any of the more-than-200 times Crenshaw violated the
no-contact order is neither here nor there to the fact that Crenshaw
continuously and knowingly violated that order. Moreover, we are not
persuaded that any of the eight facts numbered above bear in any significant
way on the nature of the offenses or Crenshaw’s character.
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 5 of 6 [10] In sum, the nature of the offenses was extreme. In Cause F3-4662, Crenshaw
repeatedly physically assaulted Berry and threatened her and her children while
the children were nearby. In Cause CM-535, Crenshaw violated the protective
order more than 200 times. And the nature of Crenshaw’s character is no
better. He had a prior conviction for domestic battery against Berry and
committed the instant offenses while on probation for that conviction. Further,
the facts underlying the instant convictions also demonstrate Crenshaw’s poor
character. Thus, in light of the nature of the offenses and his character, we
cannot say that Crenshaw’s sentence of seven years and ten months is
inappropriate. We affirm.
[11] Affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A01-1612-CR-2803 | July 19, 2017 Page 6 of 6