MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                               May 08 2020, 9:13 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jared Michel Thomas                                    Curtis T. Hill, Jr.
JMT Law, LLC                                           Attorney General of Indiana
Evansville, Indiana
                                                       Caroline G. Templeton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Johnson, Jr.,                               May 8, 2020
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       19A-CR-2239
        v.                                             Appeal from the Vanderburgh
                                                       Circuit Court
State of Indiana,                                      The Honorable David D. Kiely,
Appellee-Plaintiff,                                    Judge
                                                       The Honorable Kelli E. Fink,
                                                       Magistrate
                                                       Trial Court Cause No.
                                                       82C01-1712-F6-7645



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020                      Page 1 of 13
                              Case Summary and Issues
[1]   Following a jury trial, Charles Johnson, Jr. was convicted of residential entry, a

      Level 6 felony. The trial court sentenced Johnson to serve twenty-six months in

      the Indiana Department of Correction (“DOC”). Johnson appeals and raises

      two issues for our review, which we reorder as: (1) whether the evidence is

      sufficient to support his conviction; and (2) whether Johnson’s sentence is

      inappropriate in light of the nature of the offense and his character. Concluding

      the evidence is sufficient to support his conviction and his sentence is not

      inappropriate, we affirm.



                           Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. In December 2017,

      Jamie Followell was renting a house on East Gum Street in Evansville where

      she and her five children lived. Jamie’s sister, Angela, is married to Johnson

      and has six children. Johnson is the father of three of Angela’s children. At the

      time, Angela and her six children had been temporarily living with Jamie for

      the past three months.


[3]   On December 10, Jamie woke up to several text messages from Johnson that he

      had sent early that morning. Johnson “said that he was fed up with [Jamie]

      interfering with his marriage with [Angela].” Transcript of Evidence, Volume

      II at 7. Jamie testified that she and Johnson began arguing via text:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 2 of 13
              He said that he was fed up and that he was going to be taking his
              family back. I told him that that was my sister’s choice, whether
              she wanted to or not, and I told him that I didn’t appreciate some
              of the past things get [sic] mentioned, and he said that he was
              taking control of the situation. That I needed to step down, or
              else.


      Id. Toward the end of their argument, Johnson told Jamie he planned to be at

      the house in five minutes and Jamie responded, “[D]o not come to my home.”

      Id.


[4]   Jamie slid her shoes on and called 911 for help as she walked through the house

      to the front door. Less than five minutes later, Johnson arrived at the house

      and began banging on the front door. Jamie saw her mother, Loretta, who had

      stayed at the house the night before. Jamie told Loretta that Johnson was

      coming and they both heard him banging on the door. Jamie walked toward

      the door, pulled the curtain back, and told Johnson to leave. At the same time,

      Loretta was walking toward the door. Johnson punched the glass window to

      the side of the door and reached in to unlock the door. Because Jamie was

      pregnant at the time, Loretta pushed her out of the way as Johnson pushed

      against the door. The door flung open and hit Loretta in the head causing her

      to bleed.


[5]   Johnson stepped inside the house. Jamie told Johnson to “get out” but he

      replied “no.” Id. at 10. Instead, Johnson stood in front of the door and

      demanded that several of his children “get up and get out[.]” Id. His fourteen-

      year-old daughter got up, walked barefoot across the glass, and left the house.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 3 of 13
      Johnson observed Jamie on the phone with 911 and told her “call the police,

      that’s fine, I’m waiting here for them.” Id. at 11. Johnson waited outside and

      police arrived shortly thereafter.


[6]   On December 13, the State charged Johnson with residential entry, a Level 6

      felony. At Johnson’s jury trial, Loretta testified that, in December 2017,

      Johnson was not welcome in the house. He was, however, allowed to come

      pick his children up for parenting time. Loretta stated that “[h]e was welcome

      to pull up in his vehicle and [the children] could walk out there, but he could

      not or he shouldn’t come up. . . . Jamie didn’t want him there.” Id. at 27. At

      trial, Johnson testified that he “believed at the time [that he] was the landowner

      by contract” because Jamie’s lease had ended in October and he and Angela

      planned to take over the property. Id. at 30. However, Johnson never made

      any payments toward the property and did not have any documentation to

      show he had any possessory interest in the property.


[7]   The jury found Johnson guilty as charged and the trial court entered judgment

      of conviction. On June 24, 2019, the trial court held a sentencing hearing. In

      sentencing Johnson, the trial court found the fact that Johnson’s sentence will

      impose hardship on his children a mitigating factor. The trial court found the

      following aggravating factors: (1) the offense resulted in injury to one of the

      victims; (2) the fact that the crime was committed in the presence of or nearby

      children and the children witnessed the events that occurred; (3) the fact that

      Johnson was on bond when he committed the offense; and (4) Johnson’s

      criminal history. See id. at 47-48. The trial court sentenced Johnson to serve

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 4 of 13
      twenty-six months in the DOC and recommended that he receive drug

      treatment. Johnson now appeals.1 Additional facts will be supplied as

      necessary.



                                  Discussion and Decision
                               I. Sufficiency of the Evidence
[8]   Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

      N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. We do not reweigh the

      evidence or assess the credibility of the witnesses. Purvis v. State, 87 N.E.3d

      1119, 1124 (Ind. Ct. App. 2017). Instead, we consider only the evidence most

      favorable to the verdict and the reasonable inferences supporting it. Id.

      Therefore, it is not necessary that the evidence overcome every reasonable

      hypothesis of innocence. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). “[W]e

      will affirm the conviction unless no reasonable trier of fact could have found the

      elements of the crime beyond a reasonable doubt.” Id.


[9]   To convict Johnson of residential entry, the State had to prove that he

      knowingly or intentionally broke into and entered the dwelling of another

      person. Ind. Code § 35-43-2-1.5. A dwelling is defined as a “building,




      1
       On June 24, Johnson requested indigent counsel and was appointed a public defender to perfect the appeal;
      however, Johnson did not file a timely notice of appeal through no fault of his own. On July 29, 2019,
      Johnson, by counsel, filed a Petition for Permission to File a Belated Notice of Appeal Pursuant to Indiana
      Rule PC 2. See Belated Appellant’s Appendix, Volume II at 41-42, 53. The trial court granted the petition
      and Johnson filed his notice of appeal with court on September 23, 2019.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020                    Page 5 of 13
       structure, or other enclosed space, permanent or temporary, movable or fixed,

       that is a person’s home or place of lodging.” Ind. Code § 35-31.5-2-107.


[10]   Johnson argues the evidence was insufficient to support his residential entry

       conviction. The crux of his argument is he had the consent of the property

       owner to enter the house because he honestly believed he had the right as a

       lawful tenant to be there because he thought he had made payments on the

       house. See Belated Appellant’s Brief at 13-15. As such, he contends his

       conviction cannot stand. We disagree.


[11]   Lack of consent is not an element of the crime of residential entry. Townsend v.

       State, 33 N.E.3d 367, 373 (Ind. Ct. App. 2015) (internal quotation omitted),

       trans. denied. “Rather, it is the defendant who must claim and prove the defense

       of consent.” Id. (internal quotation omitted). “A defendant’s belief that he has

       permission to enter must be reasonable in order for the defendant to avail himself

       of the defense of consent.” Id. (emphasis added).


[12]   Both parties focus on who rightfully possessed the property at the time of the

       offense and point to conflicting testimony in support of their own position. At

       trial, Johnson testified that he believed he the right to enter because he believed

       he was the “landowner by contract.” Tr., Vol. II at 30. He further testified that

       “Jamie’s lease was up . . . at the end of October, and she was supposed to be

       out. Where me and my wife was going [sic] to take over the property.” Id.

       However, when asked whether he had ever made any payments toward the

       property, Johnson responded only, “I thought I had.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 6 of 13
[13]   However, the rightful possessor of the property is irrelevant because the

       residential entry statute requires that one knowingly or intentionally break into

       the “dwelling of another,” which only requires that the building be another

       person’s “home or place of lodging,” not that he or she rightfully possessed it.

       Ind. Code §§ 35-43-2-1.5, 35-31.5-2-107. Here, although Johnson claims he had

       a possessory interest in the house, there is no evidence that it was his home or

       place of lodging. Instead, the evidence clearly demonstrates that Jamie,

       Angela, and the eleven children were living in the house – either permanently

       or temporarily – at the time Johnson broke in. At trial, Jamie testified that she

       had a written lease agreement to rent the house, which expired in November

       2018, but she continued to live there with her children, and Angela had been

       living in the house with her for the last three months. Loretta testified that

       Johnson was neither living in nor welcome in the house.


[14]   With respect to the conflicting testimony, the State explained to the jury in its

       closing argument,


               Mr. Johnson believed, according to him, that he was the
               homeowner. The testimony that you heard from Loretta and
               Jamie . . ., was that not only was he not the homeowner, that
               Jamie . . . was the leaser of that property and that Mr. Johnson
               was not even welcome on the porch, let alone inside the home.
               So, we’ve got a conflict of facts. Now, it’s up to each and
               everyone [sic] of you to decide how to resolve that conflict.


       Id. at 37. The jury resolved this conflict in favor of Jamie’s testimony by finding

       Johnson guilty of residential entry. And we conclude there is ample evidence in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 7 of 13
       the record from which the jury could reasonably infer that not only did Johnson

       not have consent to enter the house, his belief that he did was not reasonable.


[15]   Johnson and Jamie argued via text and Johnson was “fed up” with Jamie’s

       alleged involvement or interference in Johnson’s marriage. Id. at 7. Johnson

       told Jamie he was “taking control of the situation” and she “needed to step

       down, or else.” Id. Johnson then stated he was going to come over to the

       house and Jamie responded, “do not come to my house.” Id. Minutes later,

       Johnson arrived at the house and began banging on the front door. Jamie told

       Johnson to leave but he broke the glass window next to the door, reached in,

       unlocked the door, and forced his way inside the home. Once Johnson was

       inside, Jamie told him to “get out” but he refused. Id. at 10. After instructing

       his children to leave, Johnson then walked out of the house and waited for

       police. At trial, Loretta testified that Johnson was permitted to drive up to the

       house to pick up his children for parenting time, but he was not welcome inside

       the house.


[16]   Even though Johnson believed he had a right to be in the house at the time, and

       even though it was well past the expiration of Jamie’s lease, Jamie continued to

       live in the house with her children; Johnson’s wife and children were living

       there; and he only “thought” he had begun to make payments to take over the

       lease. Id. at 30. Based on this evidence, plus the fact that he had to break a

       window to gain entry, we conclude Johnson’s belief that he was the

       “landowner” was unreasonable because he had not yet taken possession of the

       premises and he clearly did not have consent to enter the house. Therefore,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 8 of 13
       there is sufficient evidence to support Johnson’s conviction and his argument to

       the contrary is merely a request for this court to reweigh the evidence in his

       favor, which we will not do. Purvis, 87 N.E.3d at 1124.


                                  II. Inappropriate Sentence
[17]   Johnson also contends his twenty-six-month sentence is inappropriate in light

       of the nature of the offense and his character.


[18]   Article 7, sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of sentences through Indiana Appellate Rule 7(B).

       King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,

       “The Court may 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.” Sentencing decisions rest within the discretion of the trial court and,

       as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). “Such deference 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).


[19]   The defendant bears the burden of demonstrating his sentence is inappropriate

       under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and

       we may look to any factors in the record in making such a determination, Reis v.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 9 of 13
       State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we

       regard a sentence as [in]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,

       895 N.E.2d at 1224. And the principal role of this court in reviewing of a

       defendant’s sentence is “not to achieve a perceived ‘correct’ result in each

       case[,]” but to attempt to leaven the outliers. Id. at 1225. Thus, the question is

       not whether the defendant’s sentence is appropriate or another sentence is more

       appropriate; rather, the test is whether the sentence is inappropriate. Perry v.

       State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).


                                    A. Nature of the Offense
[20]   We begin our analysis of the “nature of the offense” prong with the advisory

       sentence. Reis, 88 N.E.3d at 1104. The advisory sentence is the starting point

       the Indiana legislature has selected as an appropriate sentence for the

       committed crime. Childress, 848 N.E.2d at 1081. The sentencing range for a

       Level 6 felony is a fixed term of six months to two and one-half years, with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b). Johnson’s twenty-six-

       month sentence was only four months less than the maximum allowable

       sentence for a Level 6 felony.


[21]   The nature of the offense is found in the details and circumstances of the

       offenses and the defendant’s participation therein. Lindhorst v. State, 90 N.E.3d

       695, 703 (Ind. Ct. App. 2017). Here, despite being told he was not welcome in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 10 of 13
       Jamie’s house, Johnson showed up and violently forced his way into the house.

       He banged on the front door, broke the side window, reached in and unlocked

       the door, and forced his way inside. And as a result, the door swung open and

       hit Loretta in the face, causing injury. Further, Johnson committed this crime

       in the presence of as many as ten children and once inside, he demanded that

       his fourteen-year-old daughter leave, causing her to walk across broken glass to

       exit the house. In essence, Johnson escalated a disagreement with his wife’s

       sister to include his own children, as well as Jamie’s children, and as a

       consequence of his actions, his mother-in-law was injured. Ultimately, we are

       unpersuaded that the nature of Johnson’s offense renders his sentence

       inappropriate.


                                 B. Character of the Offender
[22]   The “character of the offender” portion of the Rule 7(B) standard refers to the

       general sentencing considerations and relevant aggravating and mitigating

       factors. Williams v. State, 782 N.E.2d 1039, 1051 (Ind. Ct. App. 2003), trans.

       denied. A defendant’s life and conduct are illustrative of his or her character.

       Morris v. State, 114 N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied. And a

       defendant’s criminal history is one relevant factor in analyzing his or her

       character. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The

       significance of a criminal history varies based on the “gravity, nature, and

       number of prior offenses in relation to the current offense.” Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 11 of 13
[23]   In sentencing Johnson to twenty-six months, the trial court found Johnson’s

       criminal history an aggravating factor. Johnson’s pre-sentence investigation

       report reveals that he has an extensive criminal history dating back to 1997. His

       criminal history is comprised of multiple felony and misdemeanor convictions

       in multiple states, including non-support, resisting law enforcement, vehicle

       theft, possession of a controlled substance, disorderly conduct, obstructing

       traffic, false informing, a firearm offense, and an alcohol related offense. See

       Belated Appellant’s App., Vol. II at 66-68. In addition, Johnson has one

       weapons related conviction in the federal system. See id. at 67. Moreover, the

       record also establishes that even after Johnson committed the instant offense, he

       committed additional offenses for which he was convicted before this case went

       to trial. And finally, Johnson committed the instant offense while on bond for

       another offense.


[24]   This court has held that “[e]ven a minor criminal record reflects poorly on a

       defendant’s character[.]” Reis, 88 N.E.3d at 1105. Johnson’s extensive

       criminal history reflects poorly on his character and despite his frequent contact

       with our criminal justice system, he was not deterred from committing the

       present offense. See Rutherford, 866 N.E.2d at 874. Given Johnson’s inability or

       unwillingness to change his behavior and his extensive criminal history, we

       cannot conclude his twenty-six-month sentence is inappropriate in light of his

       character. As such, we decline to revise his sentence.



                                              Conclusion
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 12 of 13
[25]   For the reasons set forth above, we conclude the evidence is sufficient to

       support Johnson’s residential entry conviction and his twenty-six-month

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

       character. Accordingly, we affirm.


[26]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2239 | May 8, 2020   Page 13 of 13
