Thomas Lee Campbell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2018
• Docket: 18A-CR-598
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 16 2018, 9:19 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 Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Lee Campbell, August 16, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-598 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1705-F5-67

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 1 of 10 STATEMENT OF THE CASE [1] Appellant-Defendant, Thomas Lee Campbell (Campbell), appeals his

conviction for domestic battery by means of a deadly weapon, a Level 5 felony,

Ind. Code § 35-42-2-1.3

[2] We affirm.

ISSUES [3] Campbell presents three issues on appeal, which we restate as:

(1) Whether the trial court’s merger of the charges Campbell was found

guilty of with his battery conviction was adequate to cure any potential

double jeopardy concerns;

(2) Whether the State presented sufficient evidence beyond a reasonable

doubt to support Campbell’s conviction; and

(3) Whether Campbell’s sentence is inappropriate in light of the nature of the

offense and his character.

FACTS AND PROCEDURAL HISTORY [4] On May 20, 2017, after going to the grocery store and the laundromat, Jill

Vestal (Vestal) returned to the home that she shared with her then-boyfriend of

two years, Campbell. They had been living together for six months in

Lafayette, Indiana. When Vestal arrived, Campbell was drunk, and a few

hours later, he “passed out.” (Transcript p. 8). While Campbell was passed

out, Vestal changed the channel on the television. Campbell woke up and

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 2 of 10 began “screaming” about changing the TV channel. (Tr. p. 9). Vestal

eventually walked to the kitchen, and was followed by Campbell, who grabbed

a knife with a wooden handle and jagged edge. As Campbell swung the knife

at Vestal, she managed to jump back, only sustaining a small puncture wound

and a scratch on her chest. “[H]e [was] yelling and swearing when he was

chasing [Vestal] around the residence with the knife.” (Tr. p. 27). Vestal took

her car keys and cell phone and ran out of the house. Once inside her car, she

called 911.

[5] Lafayette Police Officer Blake Barker-Switzer (Officer Barker-Switzer)

responded to the 911 call. After arresting Campbell, Officer Barker-Switzer

conducted a protective sweep of the house and “[a]s [he] was walking through

the kitchen [he] [saw] a wooden handled serrated kitchen knife sitting on the

stove.” (Tr. p. 32). “When [he] examined the knife closer, [he] found it

covered in grease with the exception of the very, very, very, very tip of the

blade.” (Tr. p. 36). After close examination of Vestal’s injury, Officer Barker-

Switzer determined it was the result of a puncture wound.

[6] On May 25, 2017, the State charged Campbell with Count I, domestic battery

by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1.3; Count II,

battery by means of a deadly weapon, a Level 5 felony, I.C. § 35-42-2-1(c);

Count III, intimidation, a Level 5 felony, I.C. § 35-45-2-1(a); Count IV,

criminal recklessness, a Level 6 felony, I.C. § 35-42-2-2; and Count V, domestic

battery, a Level 6 felony, I.C. § 35-42-2-1.3(a). On January 10, 2018, the trial

court conducted a bench trial. During the trial, Campbell testified that he did

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 3 of 10 not touch Vestal but that she had scratched herself repeatedly on the chest while

she sat in her truck. At the close of the evidence, the trial court found Campbell

guilty on all Counts.

[7] On February 8, 2018, the trial court conducted a sentencing hearing during

which the trial court entered judgment and conviction as to the Level 5

domestic battery by means of a deadly weapon and merged the other guilty

Counts into that conviction. The trial court sentenced Campbell to five years at

the Department of Correction with one year executed, two years suspended to

community corrections, and one year suspended to probation.

[8] Campbell now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Merger of Counts

[9] Campbell first contends that the trial court should have vacated Campbell’s

convictions for Counts II through V to remedy any potential double jeopardy

concerns. A double jeopardy violation occurs when judgments of conviction

are entered and cannot be remedied by the practical effect of concurrent

sentences or by merger after a conviction has been entered. Gregory v. State, 885

N.E.2d 697, 703 (Ind. Ct. App. 2008), trans. denied. Thus, “[a] trial; court’s act

of merging, without also vacating the conviction is not sufficient to cure the

double jeopardy violation.” Id. However, “a merged offense for which a

defendant is found guilty, but on which there is neither a judgment nor a

sentence, is unproblematic as far as double jeopardy is concerned. Green v. Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 4 of 10 State, 856 N.E.2d 703, 704 (Ind. 2006); See also Kovats v. State, 982 N.E.2d 409,

414, 415 (Ind. Ct. App. 2013) (If a trial court does not formally enter a

judgment of conviction on a jury verdict of guilty, then there is no requirement

that the trial court vacate the conviction, and merger is appropriate to cure any

double jeopardy issues).

[10] At the close of the bench trial, the trial court found Campbell guilty as charged.

During the sentencing hearing and in its sentencing order, the trial court

sentenced Campbell for Count I only, with all other Counts merging into Count

I. 1 There is no evidence before us that the trial court entered judgment of

conviction for Counts II through V. Accordingly, merger was adequate to

remedy any potential double jeopardy concerns. See Green, 856 N.E.2d at 704.

II. Sufficiency of the Evidence

[11] Next, Campbell contends that the State failed to present sufficient evidence

beyond a reasonable doubt to support his conviction for domestic battery by

means of a deadly weapon. When reviewing the sufficiency of the evidence to

support a conviction, appellate courts must consider only the probative

evidence and reasonable inferences supporting the judgment. Drane v. State, 867

N.E.2d 144, 146-47 (Ind. 2007). It is the fact-finder’s role, not that of appellate

courts, to assess witness credibility and weigh the evidence to determine

1 During the sentencing hearing, the trial court explicitly noted “so we will show Judgment of Conviction entered then as to Count 1 Domestic Battery with a Deadly Weapon, a Level 5 Felony, as the parties agree that all of the remaining Counts merge into that Count.” (Tr. p. 71).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 5 of 10 whether it is sufficient to support a conviction. Id. To preserve this structure,

when appellate courts are confronted with conflicting evidence, they must

consider it most favorably to the trial court’s ruling. Id. Appellate courts affirm

the conviction unless no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt. Id. It is therefore not necessary that

the evidence overcome every reasonable hypothesis of innocence. Id. The

evidence is sufficient if an inference may reasonably be drawn from it to support

the judgment. See id. Upon review, appellate courts do not reweigh the

evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

[12] To convict Campbell of a Level 5 felony domestic battery by means of a deadly

weapon, the State was required to establish beyond a reasonable doubt that

Campbell knowingly or intentionally touched a family or household member

with a deadly weapon in a rude, angry or insolent manner. See I.C. § 35-42-2-

1.3(a)(1) & (c)(2). Not contesting any specific element of the charge, Campbell

focuses on the discrepancies between the witnesses’ testimonies. Specifically,

he asserts that Vestal, Officer Barker-Switzer, and Campbell all presented

different statements about the nature of the injury. Vestal claimed that she was

cut in a bottom to top motion, whereas Officer Barker-Switzer believed it was a

top to bottom angle, and Campbell testified that he had observed Vestal

scratching herself with her fingernails. In other words, Campbell’s argument

amounts to a request to reweigh the evidence and judge the credibility of the

witnesses. “It is for the trier of fact to resolve conflicts in the evidence and to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 6 of 10 decide which witnesses to believe or disbelieve.” Kilpatrick v. State, 746

N.E.2d 52, 61 (Ind. 2001).

[13] Moreover, considering the evidence most favorable to the judgment, the

evidence is sufficient to sustain Campbell’s conviction. Vestal testified that after

changing the TV channel, Campbell started screaming at her. After the

followed her into the kitchen, he picked up a knife, “swung it at [her] and [she]

jumped back.” (Tr. p. 24). By moving out of the way, Vestal only sustained a

small puncture wound on her chest. Officer Barker-Switzer affirmed the

presence of the knife in the kitchen and Vestal’s puncture wound. Accordingly,

we affirm Campbell’s conviction for battery by means of a deadly weapon.

III. Appropriateness of Sentence

[14] Next, Campbell complains that the sentence imposed is inappropriate. This

court has the authority 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.” See Ind. Appellate Rule 7(B). “The 7(B) appropriateness inquiry is a

discretionary exercise of the appellate court’s judgment, not unlike the trial

court’s discretionary sentencing determination.” Knapp v. State, 9 N.E.3d 1274,

1291-92 (Ind. 2014), cert. denied, 135 S.Ct. 978 (2015). “On appeal, though, we

conduct that review with substantial deference and give due consideration to

the trial court’s decision—since the principal role of our review is to attempt to

leaven the outliers, and not to achieve a perceived correct sentence.” Id. at

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 7 of 10 1292 (internal quotation marks omitted). Accordingly, the question under

Appellate Rule 7(B) is not whether another sentence is more appropriate;

rather, the question is whether the sentence imposed is inappropriate. Conley v.

State, 972 N.E.2d 864, 876 (Ind. 2012) (internal quotation marks omitted). The

defendant has the burden of persuading us that his sentence is inappropriate.

King, 894 N.E.2d at 267.

[15] “‘[R]egarding the nature of the offense, the advisory sentence is the starting

point the Legislature has selected as an appropriate sentence for the crime

committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting

Anglemyer, 868 N.E.2d at 494). The advisory sentence of a Level 5 felony is

imprisonment “for a fixed term of between one (1) months and six (6) years,

with the advisory sentence being three (3) years.” I.C. § 35-50-2-6(b). The trial

court sentenced Campbell to five years in the Department of Correction with

one year executed, two years suspended to community corrections, and one

years suspended to probation.

[16] In the heat of a trivial domestic argument about a TV channel, Campbell

escalated the discussion by picking up a weapon and using it. Although

Campbell asserts that “Vestal’s injury did not require hospitalization and/or

treatment,” the only reason the injuries were rather minimal was because Vestal

was able to jump back when Campbell thrust the knife at her. (Appellant’s Br.

p. 13). Accordingly, the extent of Vestal’s injury was not a result of Campbell

showing “restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d

111, 122 (Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 8 of 10 [17] When considering the character of the offender prong of our inquiry, one

relevant consideration is the defendant’s criminal history. Rutherford v. State,

866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of a defendant’s

prior criminal history will vary “based on the gravity, nature and number of

prior offense as they relate to the current offense.” Smith v. State, 889 N.E.2d

261, 263 (Ind. 2008). Campbell’ criminal history spans more than forty years.

During this time, Campbell has collected twenty misdemeanor convictions, and

fourteen felony convictions. He was convicted of domestic battery in 2000.

Even though there is a fourteen-year gap between the instant offense and the

commission of Campbell’s last offense, Campbell was not leading a law abiding

life as he admitted to smoking marijuana twice per week between the ages of

sixteen and fifty-eight. As pointed out by the trial court during sentencing,

“when you are using and possessing illegal drugs during this entire period of

time, [] it negates the position that it is a good and lawful behavior for a good

period of time.” In order to support his addiction habit, he started writing bad

checks; however, it should be noted that he has paid restitution on every bad

check since then. Campbell had six petitions to revoke his bond filed against

him and, while on bond in the current case, he committed another crime.

Despite a guilty finding after a bench trial, Campbell continued to blame Vestal

and thinks “she is all about herself.” (Appellant’s App. Vol. III, p. 18).

[18] In light on the evidence before us, Campbell has not met his burden of

persuading this court that the nature of the offense and his character make his

sentence inappropriate. We affirm the trial court’s sentence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 9 of 10 CONCLUSION [19] Based on the foregoing, we hold that (1) merger of the charges Campbell was

found guilty of with his battery conviction was adequate to cure any potential

double jeopardy concerns; (2) the State presented sufficient evidence beyond a

reasonable doubt to support Campbell’s conviction; and (3) Campbell’s

sentence is not inappropriate in light of the nature of the offense and his

character

Affirmed.

Vaidik, C. J. and Kirsch, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-598 | August 16, 2018 Page 10 of 10