MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                              Jul 18 2018, 10:29 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Travis Hall,                                       July 18, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-54
        v.                                                Appeal from the Sullivan Superior
                                                          Court
State of Indiana,                                         The Honorable Hugh R. Hunt,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          77D01-1608-F2-551



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018                     Page 1 of 13
                                        Statement of the Case
[1]   Joshua Travis Hall appeals his sentence for aggravated battery, as a Level 3

      felony, and involuntary manslaughter, as a Level 5 felony, following a guilty

      plea. He raises two issues for our review, which we restate as follows:


              1.       Whether the trial court abused its discretion when it
                       sentenced him.

              2.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In 2016, Hall and his girlfriend, Rustim Rehmel, resided together. On August

      15, Hall and Rehmel were involved in a physical altercation outside of a bar.1

      During the fight, Hall punched and kicked Rehmel in her head and face. A

      bystander called 9-1-1, and Farmersburg Town Marshall George McAdams

      responded. Marshall McAdams interviewed Rehmel, who informed him that

      Hall had punched and kicked her in the head and face. Marshall McAdams

      observed some contusions on Rehmel. Rehmel declined medical treatment,

      and she returned to the bar. Following the altercation, Rehmel had several




      1
        Hall has filed a motion to strike portions of the State’s brief that rely on information contained in the
      Affidavit for Probable Cause. We have separately denied Hall’s motion. But, in any event, our decision here
      does not rely on any of the facts that Hall disputes in his motion.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018                    Page 2 of 13
      injuries, including “bleeding from a scalp wound.” Ex. at 5.2 Rehmel also

      “demonstrated symptoms of a concussion, with confusion, and had become

      incontinent of urine.” Id.


[4]   Sometime later, Rehmel was escorted home by another individual. Hall was

      waiting at the house when Rehmel arrived. Rehmel then went to sleep and was

      snoring. Approximately twenty minutes later, Hall noticed that Rehmel was

      not breathing, and he began to administer CPR. Hall then ran to a neighbor’s

      house to call the paramedics. Sullivan County Sheriff Clark Cottom, who was

      already on his way to Rehmel’s house in order to conduct a welfare check,

      arrived on the scene and observed Rehmel unresponsive on the living room

      floor. Rehmel had died from her injuries.


[5]   A pathologist at the Terre Haute Regional Hospital conducted an autopsy on

      Rehmel. During the autopsy, the pathologist identified “several blunt force

      injuries” on Rehmel. Ex. at 6. Those injuries included swelling of the head and

      nose, contusions on her face, an abrasion on her scalp, a subdural hemorrhage,

      and contusions over both of her upper arms and her right hand. Based on those

      findings, the pathologist concluded that Rehmel’s cause of death was blunt-

      force trauma to the head.


[6]   The State charged Hall with voluntary manslaughter, as a Level 2 felony

      (“Count I”); battery resulting in serious bodily injury, as a Level 5 felony



      2
          Our pagination of the Exhibits Volume refers to the .pdf pagination.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 3 of 13
      (“Count II”); involuntary manslaughter, as a Level 5 felony (“Count III”);

      reckless homicide, as a Level 5 felony (“Count IV”); and criminal confinement,

      as a Level 6 felony (“Count V”). The State later added one count of aggravated

      battery, as a Level 3 felony (“Count VI”). On September 14, 2017, the State

      and Hall entered into a plea agreement. Hall agreed to plead guilty to Counts

      III and VI and, in exchange, the State agreed to dismiss the remaining counts.

      The plea agreement also left sentencing to the discretion of the trial court except

      that any sentence imposed on the two counts would run concurrently.


[7]   The trial court held a hearing on Hall’s guilty plea on December 8, 2017. Hall

      admitted that he had intentionally punched or kicked Rehmel in the head or

      face area and that, as a result, Rehmel sustained serious bodily injury, including

      a contusion to her face and bleeding from her head. He also admitted that he

      caused a substantial risk of death when he punched or kicked Rehmel in the

      head or face and that Rehmel died as a result of his actions. During the

      hearing, Hall moved to admit as evidence the pathologist’s autopsy report,

      which the trial court admitted. The trial court also admitted as evidence a

      statement by the pathologist that “it was possible, not likely or certain, but a

      slight possibility existed” that Rehmel might not have died had she received

      appropriate medical attention after the altercation. Appellant’s App. Vol. II at

      120.


[8]   The trial court accepted Hall’s guilty plea and held a sentencing hearing.

      During the sentencing hearing, Hall proffered several mitigating circumstances.

      At the conclusion of the hearing, the trial court found as an aggravating

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 4 of 13
      circumstance in regard to the offense of aggravated battery that the “ultimate”

      harm suffered was greater than the elements necessary to prove the commission

      of the crime. Tr. Vol. II at 72. The trial court also found as aggravating

      circumstances for both offenses the “brutality” of the crimes and that Hall has a

      criminal history, although the trial court did not give his criminal history

      “considerable weight” in light of the nature of his prior offenses and “the

      passage of time.” Id. at 73. And the trial court identified Hall’s guilty plea and

      willingness to pay restitution as mitigating circumstances. The trial court found

      that the mitigators did not “even come close to outweighing or equaling the

      aggravators” and sentenced Hall to sixteen years for Count VI and five years for

      Count III. Id. The trial court ordered those sentences to run concurrently in

      accordance with the plea agreement for an aggregate term of sixteen years in

      the Department of Correction. This appeal ensued.


                                     Discussion and Decision
                                     Issue One: Abuse of Discretion

[9]   Hall first contends that the trial court abused its discretion “by sentencing Hall

      based on improper factors.” Appellant’s Br. at 13. Sentencing decisions lie

      within the sound discretion of the trial court. Cardwell v. State, 895 N.E.2d

      1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is “clearly

      against the logic and effect of the facts and circumstances before the court, or

      the reasonable, probable, and actual deductions to be drawn therefrom.” Gross

      v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation omitted), trans. denied.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 5 of 13
[10]   A trial court abuses its discretion in sentencing if it does any of the following:


               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491, clarified on other grounds

       reh’g, 875 N.E.2d 218 (Ind. 2007)). However, the relative weight or value

       assignable to reasons properly found, or those that should have been found, is

       not subject to review for abuse of discretion. Id. And a trial court is under no

       obligation to explain why a proposed mitigator does not exist or why the court

       gave it insignificant weight. Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct.

       App. 2014), trans. denied. Here, Hall contends that the trial court abused its

       discretion when it found certain aggravating factors and when it failed to find

       certain mitigating circumstances.


                                                   Aggravators

                                            Brutality of the Offense

[11]   Hall first contends that the trial court abused its discretion when it found as an

       aggravating factor the brutality of the offenses because, he contends, while the

       crimes were “admittedly violent,” they were not brutal. Appellant’s Br. at 14.

       Hall specifically asserts that the crimes were not brutal because “[h]e made no

       admission that he hit or kicked [Rehmel] when she was on the ground.”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 6 of 13
       Appellant’s App. at 14. He also asserts that the crimes were not brutal when

       compared with other aggravated battery cases.


[12]   However, we must disagree. Whether Rehmel was or was not on the ground

       when Hall hit and kicked her is irrelevant. And whether there are cases that

       exist in which the crime was worse than Hall’s offenses does not detract from

       the brutality of his actions. The undisputed facts demonstrate that Hall hit and

       kicked Rehmel in the head and face to the point that she suffered a concussion,

       urinated on herself, and ultimately died from the blunt-force injuries he had

       inflicted on her. We agree with the trial court that the crimes were “brutal” in

       nature. Appellant’s App. Vol. II at 6.


[13]   Hall also asserts that the trial court abused its discretion when it identified the

       brutality of the offenses as an aggravator because it “found an element of the

       offense to be an aggravating circumstance.” Id. at 15. “[A] material element of

       a crime may not be used as an aggravating factor to support an enhanced

       sentence.” McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). But “when

       evaluating the nature of the offense, ‘the trial court may properly consider the

       particularized circumstances of the factual elements as aggravating factors.’”

       Id. (quoting McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001)).


[14]   Here, Hall, while intoxicated, hit and kicked his girlfriend enough times to

       leave several injuries on her head and face, which caused her to exhibit

       symptoms of a concussion, to urinate on herself, and, ultimately, caused her

       death. Those particular factual elements clearly go beyond the material


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 7 of 13
       elements needed to establish that Hall committed aggravated battery and

       involuntary manslaughter. Put another way, Hall’s conduct could have

       satisfied the statutory elements of the crimes without the offenses having been

       as brutal as they were. As such, we agree with the State that the trial court did

       not rely on the elements of the offenses but, rather, on the particularized facts of

       the crimes when it found that the crimes were brutal. The trial court did not

       abuse its discretion when it identified the brutality of the offenses as an

       aggravating circumstance.


                                                Criminal History

[15]   Hall also maintains that the trial court abused its discretion when it found his

       criminal history—which consists of one conviction for illegal consumption of

       an alcoholic beverage, as a Class C misdemeanor, from 2003 and one

       conviction for operating a vehicle while intoxicated, as a Class A misdemeanor,

       from 2009—as an aggravating factor. Hall specifically asserts that his record is

       relatively minor and remote in time and, therefore, not worthy of being

       considered as an aggravating factor. But it is well settled that “[a] person’s

       criminal history is a valid aggravating circumstance[.]” Newsome v. State, 797

       N.E.2d 293, 300 (Ind. Ct. App. 2003). And “‘we will not say that remoteness

       in time, to whatever degree, renders a prior conviction irrelevant.’” Buchanan v.

       State, 767 N.E.2d 967, 972 (Ind. 2002) (quoting Harris v. State, 275 Ind. 210, 396

       N.E.2d 674, 677 (1979)). “The remoteness of prior criminal history does not

       preclude the trial court from considering it as an aggravating circumstance.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 8 of 13
       Thus, the trial court properly considered Hall’s criminal history as an

       aggravating factor. See id.


[16]   Still, Hall asserts that “the gravity, timing, and nature of Hall’s prior offenses

       left them insignificant in the context of this prosecution.” Appellant’s Br. at 17.

       “The significance of a defendant’s criminal history varies based on the gravity,

       nature, and number of prior offenses as they relate to the current offense.” Field

       v. State, 843 N.E.2d 1008, 1011 (Ind. Ct. App. 2006). However, the relative

       weight that the trial court assigned to Hall’s criminal history is not subject to

       review for abuse of discretion. Gross, 22 N.E.3d at 869. In any event, the trial

       court gave Hall’s criminal history less weight than it gave the other aggravating

       factors based on the nature of the crimes and the remoteness in time of their

       commission. The trial court did not abuse its discretion when it identified

       Hall’s criminal history as an aggravating circumstance.


                                                    Mitigators

[17]   Hall also contends that the trial court abused its discretion when it failed to find

       several mitigating circumstances.


               [A] finding of mitigating circumstances also lies within the trial
               court’s discretion. The court need not state in the record those
               mitigating circumstances that it considers insignificant. And the
               trial court is not obligated to explain why it did not find a factor
               to be significantly mitigating. Nor is the sentencing court
               required to place the same value on a mitigating circumstance as
               does the defendant.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018    Page 9 of 13
       Sandleben, 22 N.E.3d at 796-97 (internal citations omitted). Further, “‘[i]f the

       trial court does not find the existence of a mitigating factor after it has been

       argued by counsel, the trial court is not obligated to explain why it has found

       that the factor does not exist.’” Anglemeyer, 868 N.E.2d at 493 (quoting Fugate

       v. State, 608 N.E.2d 1370, 1374 (Ind. 1993)).


[18]   Hall asserts that the trial court failed to consider five of his proffered mitigating

       circumstances: (1) that the crime is unlikely to recur; (2) that Hall is unlikely to

       commit another crime; (3) that Hall would respond affirmatively to probation

       or short-term imprisonment; (4) that his incarceration would place an undue

       hardship on his children; and (5) that Hall has expressed remorse for his

       offenses. However, the record reflects that the trial court considered those

       mitigators but wholly rejected them. The court stated in its judgment of

       conviction and sentencing order that Hall “proffers several mitigating factors,

       but the only ones that the Court finds to have any merit are that [Hall] saved

       the family and the taxpayers the grief and expense of a trial and that he desires

       to pay for the victim’s funeral expenses.” Appellant’s App. Vol. II at 7.


[19]   That was not an abuse of discretion. The trial court considered Hall’s proffered

       mitigators but found them to be of insignificant weight. The court was not

       required to explain why it did not find those factors to be significantly

       mitigating, nor was the trial court required to place the same weight on the

       mitigating circumstances that Hall assigns to them. Sandleben, 22 N.E.3d at

       796-97. The trial court did not abuse its discretion when it declined to find

       Hall’s proffered mitigating circumstances to be significant.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 10 of 13
                               Issue Two: Inappropriateness of Sentence

[20]   Hall next contends that his sentence for aggravated battery, as a Level 3 felony,

       and involuntary manslaughter, as a Level 5 felony, is inappropriate in light of

       the nature of the offenses and his character. Indiana Appellate Rule 7(B)

       provides that “[t]he 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.” This court has recently held that “[t]he advisory sentence is the

       starting point the legislature has selected as an appropriate sentence for the

       crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).

       And the Indiana Supreme Court has recently explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[21]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate 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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 11 of 13
       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] 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).


[22]   Here, Hall pleaded guilty to one count of aggravated battery, as a Level 3

       felony, and one count of involuntary manslaughter, as a Level 5 felony. The

       sentencing range for a Level 3 felony is three years to sixteen years, with an

       advisory sentence of nine years. Ind. Code § 35-50-2-5(b) (2018). And the

       sentencing range for a Level 5 felony is one year to six years, with an advisory

       sentence of three years. I.C. § 35-50-2-6(b). The trial court sentenced Hall to an

       aggregate term of sixteen years in the Department of Correction.


[23]   Hall contends that his sentence in inappropriate in light of the nature of the

       offenses because, “while the altercation was entirely unjustified, no one,

       including Rehmel, apparently believed she was injured enough to require earlier

       medical intervention.” Appellant’s Br. at 24. But, here, the undisputed facts

       demonstrate that Hall punched or kicked Rehmel multiple times in her face and

       head such that she died from her injuries. The autopsy report showed that

       Rehmel had “several blunt force injuries” to her body. Ex. at 6. The autopsy

       report further indicated that, “following the initial altercation at the tavern,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 12 of 13
       [Rehmel] had demonstrated symptoms of a concussion, with confusion, and

       had become incontinent of urine.” Id. We agree with the trial court that these

       were especially “brutal” crimes. Hall has not met his burden on appeal to

       demonstrate that his sentence in inappropriate in light of the nature of the

       offenses.


[24]   Hall also asserts that his sentence is inappropriate in light of his character

       because his criminal history is minor and remote in time, he voluntarily

       cooperated with police, and he accepted responsibility when he pleaded guilty.

       He further contends that he was “an active, loving, hands-on, and supportive

       parent to his two young children” and that his incarceration “will limit, if not

       prevent, his financial support of them.” Appellant’s Br. at 26. But Hall has not

       provided compelling evidence portraying his character in a positive light.

       While Hall’s criminal history is relatively minor and remote in time, both of his

       prior convictions involved the use of alcohol. And Hall was intoxicated during

       the instant offenses. Further, the fact that he punched and kicked his girlfriend

       to the point that she suffered a concussion and ultimately died reflects poorly on

       his character. As such, we cannot say that Hall’s sixteen-year sentence for

       aggravated battery and involuntary manslaughter is inappropriate in light of his

       character. We affirm Hall’s sentence.


[25]   Affirmed.


       Robb, J., and Altice, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-54 | July 18, 2018   Page 13 of 13
