                                                                                 FILED
                                                                             Dec 20 2019, 6:12 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Michael R. Fisher                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Courtney Staton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Jonathan Belcher,                                         December 20, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-830
                 v.                                             Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Lisa F. Borges,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                49G04-1710-F3-41224



      May, Judge.

[1]   Jonathan Belcher appeals his convictions of and aggregate sentence for two

      counts of Level 3 felony aggravated battery, 1 one count each of Class B




      1
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019                           Page 1 of 19
      misdemeanor battery 2 and Class A misdemeanor resisting law enforcement, 3

      and the finding that he is an habitual offender. 4 He raises two issues on appeal,

      which we expand and restate as the following three issues:


                 (1) whether there is sufficient evidence to support the trial court’s
                 finding that Belcher understood and appreciated the
                 wrongfulness of his conduct;


                 (2) whether the trial court abused its discretion in its
                 consideration of Belcher’s mental health at sentencing; and


                 (3) whether a 53-year-and-180-day sentence is inappropriate in
                 light of the nature of the offenses and Belcher’s character.


      We affirm.



                                   Facts and Procedural History
[2]   On October 19, 2017, David Smith, a regional sales manager for a chemical

      coating company, flew from North Carolina to Indianapolis to assist in

      interviewing applicants for a position in the company’s Indianapolis office.

      Amjad Farah, Smith’s friend and colleague, traveled from the company’s

      Michigan office to Indianapolis to also assist with the interviews. After Smith

      and Farah finished conducting the interviews, they went to a downtown



      2
          Ind. Code § 35-42-2-1.
      3
          Ind. Code § 35-44.1-3-1.
      4
          Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019           Page 2 of 19
      Indianapolis steakhouse for dinner. They finished dinner around 6:30 pm and

      walked to Monument Circle.


[3]   Around this same time, Jennifer Crouch, her husband, and her children were

      visiting Monument Circle. They were on vacation in Indianapolis to see family

      and visit local attractions. Crouch’s husband and children walked up the steps

      of the Indiana State Soldiers and Sailors Monument, and Crouch stayed toward

      the base of the memorial to take a picture of her family. Belcher approached

      Crouch and asked her what she was doing. She said that she was at the

      monument with her children, and Belcher said, “you don’t have any kids.” (Tr.

      Vol. II at 109.) Belcher was aggressive and his tone of voice was mean.

      Belcher walked away for a brief period and then returned. Belcher pushed

      Crouch and she fell flat on the ground. Belcher then backed up to get a running

      start and kicked the front of Crouch’s head “like a football kickoff for a field

      goal kicker.” (Id. at 92.) A bystander ran to Crouch, and Belcher walked

      around the monument towards Smith and Farah.


[4]   Smith and Farah were admiring the Soldiers and Sailors Monument when they

      heard Belcher angrily yell out “mother f[*****].” (Id. at 29.) As Smith turned

      his head toward the noise, Belcher punched him in the side of the head. Smith

      went stiff and fell to the ground. Belcher started swinging at Farah, and one of

      Belcher’s punches grazed Farah. When other bystanders started to yell, Belcher

      walked away.




      Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 3 of 19
[5]   Officers responded to the scene, encountered Belcher, and commanded him to

      get on the ground. Belcher shouted at the officers, “this is my ship” or “get off

      my ship.” (Id. at 146.) When officers continued to command Belcher to get on

      the ground, he responded “F[***] you. You get on the ground.” (Id. at 132.)

      Belcher turned and briskly walked away from the officers. Belcher ignored

      further repeated directions to stop and warnings that officers were going to

      deploy their tasers. Eventually, an officer used a taser on Belcher. Belcher fell

      to the ground and resisted officers trying to cuff him, but officers were able to

      secure him and take him into custody. Belcher made a comment to a State

      Police Trooper on the scene that the Indiana State Police did not have

      jurisdiction over Monument Circle. Rather, Belcher asserted the Indianapolis

      Metropolitan Police Department (“IMPD”) had jurisdiction.


[6]   Ambulances rushed Smith and Crouch to local hospitals. Smith underwent

      brain surgery in Indianapolis, and doctors placed him in a medically induced

      coma. He stayed in an Indianapolis hospital for three weeks before being

      transferred to a brain and spinal rehabilitation facility in Atlanta, Georgia. He

      was incapacitated and required around-the-clock care. He was fed through a

      feeding tube and received drugs intravenously. After seven months at the

      Atlanta facility, his family decided to cease the life-sustaining measures and

      Smith died on May 28, 2018.


[7]   Crouch was released from the hospital approximately seven hours after the

      incident. Crouch briefly lost consciousness after Belcher kicked her. At the

      hospital, she had vertigo and struggled to sit in a chair. She also sustained an

      Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 4 of 19
      eye injury. Crouch’s husband had to take six weeks off work to care for her.

      She had balance issues that required her to use a wheelchair for a period and

      then a walker, and she needed to attend physical therapy. Crouch also saw a

      neurologist, who diagnosed her with a spinal fluid leak. Crouch thought she

      would need surgery to correct that leak, but it resolved itself without surgery.


[8]   The court referred Belcher to psychologist Dr. Don Olive to perform a

      competence and sanity evaluation, and he met with Belcher at the Marion

      County Jail on November 17, 2017. Dr. Olive reviewed records from the

      Marion County Jail prior to visiting with Belcher. Those records indicated

      Belcher’s previous diagnoses included Schizophrenia, Bipolar Disorder, and

      Depression. Belcher had received both inpatient and outpatient mental health

      treatment in the past and was released from Community Hospital North on

      October 11, 2017. During Belcher’s interview with Dr. Olive, Belcher

      mentioned that he had been found not responsible by reason of insanity in a

      previous case. He also talked about being stuck in a computer game and being

      hunted by zombies. Dr. Olive concluded with reasonable psychological

      certainty that Belcher was both not competent to stand trial and not criminally

      responsible at the time of the alleged offenses.


[9]   Dr. George Parker, a medical doctor and professor of clinical psychology at the

      Indiana University School of Medicine, also performed a competency

      evaluation. He met with Belcher at the Marion County Jail on November 30,

      2017. Belcher began the interview by asking Dr. Parker, “[A]re you from a

      water border or a land border?” (App. Vol. II at 83.) During the interview,

      Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 5 of 19
Belcher repeatedly punched a code into an imaginary keypad on the interview

room partition. Dr. Parker found this behavior odd because, based on his

experience in conducting many competency and sanity evaluations, defendants

typically do not advertise their symptoms at the beginning of an interview.

Belcher claimed to be living in a video game and described the court

proceedings as part of the game. He mentioned that he had been found not

responsible by reason of insanity in a previous case. He also claimed to see

holograms of great white sharks. Dr. Parker learned Belcher lived in a general

population unit at the jail and did not cause any problems in the unit. Dr.

Parker also reviewed Belcher’s medical records, including a competence and

sanity report he himself had prepared in 2015 concerning a criminal case

involving Belcher. In 2015, Belcher told Dr. Parker that he became paranoid

when he smoked marijuana without also drinking alcohol. Dr. Parker

concluded with reasonable medical certainty that Belcher “may meet criteria for

diagnoses of malingering, schizophrenia and/or bipolar disorder” and opined

that Belcher was not competent to stand trial. 5 (Id. at 89.) Dr. Parker thought

there was a possibility Belcher was malingering because of the difference in

Belcher’s behavior between when he was in the general population unit and

when Dr. Parker interviewed him. Also, Belcher’s description of the holograms

he claimed to see was not typical of someone with schizophrenia, and Belcher’s




5
 “Malinger” is defined as “to pretend or exaggerate incapacity or illness (as to avoid duty or work).”
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/malinger (last visited
December 4, 2019).

Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019                        Page 6 of 19
       mental health records from the jail showed he campaigned to have his

       medication dosage increased.


[10]   On December 12, 2017, the trial court found Belcher not competent to stand

       trial and committed him to the Indiana Family and Social Services

       Administration (“FSSA”). On June 12, 2018, FSSA notified the trial court that

       Belcher had regained competency to stand trial, and the sheriff returned Belcher

       to the Marion County Jail.


[11]   Dr. Parker met with Belcher again at the Marion County Jail on August 8,

       2018, to perform a sanity evaluation. Belcher asked Dr. Parker, “are you the

       one [sic] said I was lying?” (Id. at 142.) Belcher claimed he was hallucinating

       at the time of the offenses and explained he had been found not responsible by

       reason of insanity in a previous case. Belcher claimed the victims were

       zombies. He described them as “in [his] face.” (Id. at 148.) He also said “[i]t

       looked like they was [sic] about to run in on me.” (Id.) Dr. Parker examined

       Belcher’s jail mental health records and found Belcher reported to the jail

       mental health staff that he last used marijuana on the day of his arrest. Jail staff

       also told Dr. Parker that Belcher did not act agitated while confined in his

       dorm. Ultimately, Dr. Parker concluded with a reasonable degree of medical

       certainty that Belcher was under the influence of voluntary intoxication at the

       time of the offenses and, although he had a mental illness at the time, he had

       been able to appreciate the wrongfulness of his actions.




       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 7 of 19
[12]   The court also referred Belcher to psychologist Dr. Stephanie Callaway for

       competency and sanity evaluations. She met with Belcher at the Marion

       County Jail on October 1, 2018. During the interview, Belcher denied ever

       using illicit substances, which was inconsistent with his history. Belcher said he

       thought he was on a spaceship at the time of the offenses. He also described

       being surrounded by zombies and feeling like he was going to be attacked. He

       told Dr. Callaway that a voice in his head gave him commands and that he

       needed to follow the commands in order to avoid being attacked. He said he

       hit Couch because he “thought she was trying to profile me to an assassination

       agency to get me killed.” (Id. at 177.) He said the voice in his head told him to

       go around the monument and hit Smith, so he did. Belcher also told Dr.

       Callaway that he did not see the police officers until one of the officers

       deployed his taser. Dr. Callaway noted the security footage of Monument

       Circle in the hours before the offenses showed Belcher talking to himself and

       acting agitated. Dr. Callaway concluded with a reasonable degree of

       psychological certainty that Belcher was competent to stand trial. She also

       opined Belcher suffered from a mental disease and lacked the ability to perceive

       the wrongfulness of his actions at the time of the offenses because of the mental

       disease’s symptoms.


[13]   The State charged Belcher with two counts of Level 3 felony aggravated battery

       and one count each of Level 5 felony battery resulting in serious bodily injury, 6



       6
           Ind. Code § 35-42-2-1.


       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019         Page 8 of 19
       Level 6 felony battery resulting in moderate bodily injury, 7 Class B

       misdemeanor battery, and Class A misdemeanor resisting law enforcement.

       The State also filed an information alleging Belcher was a habitual offender.

       The court conducted a bench trial on February 7, 8, and 19, 2019. At trial,

       Belcher did not contest the facts of the offenses, but rather he contended that he

       was not responsible by reason of insanity. Dr. Olive, Dr. Parker, and Dr.

       Callaway each testified regarding their evaluations of Belcher. At the

       conclusion of trial, the court rendered a verdict of guilty but mentally ill and

       entered a judgment of conviction on all counts. The court also determined

       Belcher to be an habitual offender.


[14]   At a sentencing hearing on March 20, 2019, the court vacated the Level 6

       felony battery conviction and the Level 5 felony battery conviction. The State

       advocated for an aggravated sentence, noting the harm Smith endured was

       greater than the harm needed to meet the elements of aggravated battery,

       Belcher was on pre-trial release for a criminal trespass charge when he

       committed the crimes, and Belcher had a significant criminal history, including

       four felony convictions and eleven misdemeanor convictions. The State also

       pointed out that Belcher failed to successfully complete probation multiple

       times and refused mental health treatment on previous occasions. Further,

       there were multiple victims in this case and a break in time between Belcher’s

       attacks. Belcher argued his severe mental illness should be considered a



       7
           Ind. Code § 35-42-2-1.


       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 9 of 19
       mitigator and noted his previous commitments to the Indiana Department of

       Correction have not addressed his mental health problems.


[15]   The court found the following aggravating factors: the offenses occurred within

       the presence and hearing of minors, Belcher was on pre-trial release at the time

       of the offenses, and Belcher appeared to lack remorse. The court also stated:

       “The only mitigator that I could possibly find is his history of mental illness.

       And I do believe he does have a mental illness.” (Tr. Vol. III at 84.)

       Ultimately, the court imposed a sentence of sixteen years for the first count of

       Level 3 felony aggravated battery, enhanced by twenty years due to the finding

       that Belcher was an habitual offender; sixteen years for the second count of

       Level 3 felony aggravated battery; 365 days for Class A misdemeanor resisting

       law enforcement; and 180 days for Class B misdemeanor battery. The court

       ordered all the sentences served consecutively, for an aggregate executed

       sentence of 53 years and 180 days.



                                  Discussion and Decision
                                        1. Sufficiency of the Evidence

[16]   Belcher argues there was insufficient evidence to support the trial court’s finding

       that he understood and appreciated the wrongfulness of his conduct. In order

       to obtain a conviction, the State must prove beyond a reasonable doubt the

       defendant committed the charged offense. Ind. Code § 35-41-4-1. However,

       when the defendant raises the defense of insanity, as in Belcher’s case, the



       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019     Page 10 of 19
       burden of proof shifts to the defendant to prove the defense by a preponderance

       of the evidence. Id. Indiana Code section 35-41-3-6 provides:


                 (a) A person is not responsible for having engaged in prohibited
                     conduct if, as a result of mental disease or defect, he was
                     unable to appreciate the wrongfulness of the conduct at the
                     time of the offense.


                 (b) As used in this section, ‘mental disease or defect’ means a
                     severely abnormal mental condition that grossly and
                     demonstrably impairs a person’s perception, but the term does
                     not include an abnormality manifested by repeated unlawful
                     or antisocial conduct.


       A mentally ill defendant who fails to establish that he was unable to appreciate

       the wrongfulness of his actions may be found guilty but mentally ill. 8 Galloway

       v. State, 938 N.E.2d 699, 708 (Ind. 2010), reh’g denied.


[17]   Belcher “faces a heavy burden” because he is appealing from a negative

       judgment. Patterson v. State, 110 N.E.3d 429, 432 (Ind. Ct. App. 2018). As our



       8
           As our Indiana Supreme Court has explained:

                 A verdict of guilty but mentally ill requires an evaluation and treatment of the defendant’s
                 mental illness during his or her incarceration ‘in such a manner as is psychiatrically
                 indicated,’ but otherwise imposes the same criminal sentence as a standard conviction of
                 guilt. Ind. Code § 35-36-2-5(a), (c). By contrast, a verdict of nonresponsibility by reason
                 of insanity may result in the defendant’s civil commitment if the trial court finds by clear
                 and convincing evidence that the defendant is mentally ill and either dangerous or
                 gravely disabled. I.C. § 35-36-2-4.


       Barcroft v. State, 111 N.E.3d 997, 1002 n.2 (Ind. 2018).



       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019                               Page 11 of 19
       Indiana Supreme Court has explained, “[w]hether or not a defendant can

       appreciate the wrongfulness of his conduct is a question for the trier of fact.”

       Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). Consequently, “we will

       reverse only when the evidence is without conflict and leads only to the

       conclusion that the defendant was insane when the crime was committed.” Id.

       We will not reweigh the evidence or judge the credibility of the witnesses, and

       we will consider the evidence and make all reasonable and logical inferences in

       the light most favorable to the verdict. Id. We note that “[o]pinion testimony

       from psychiatrists, psychologists, and other mental-health experts is central to a

       determination of insanity.” Barcroft v. State, 111 N.E.3d 997, 1003 (Ind. 2018).

       Their specialized knowledge and training allow them to provide insight and

       assist the factfinder in making a sensible and educated determination regarding

       the defendant’s mental condition. Id. However, “[e]ven when experts are

       unanimous in their opinion, the factfinder may discredit their testimony—or

       disregard it altogether—and rely instead on other probative evidence from

       which to infer the defendant’s sanity.” Id.


[18]   There was not unanimous credible, expert testimony that Belcher did not

       appreciate the wrongfulness of his actions at the time of these offenses. While

       two of the doctors who evaluated Belcher opined that Belcher did not

       appreciate the wrongfulness of his actions, Dr. Parker determined to a

       reasonable degree of medical certainty that Belcher did appreciate the

       wrongfulness of his actions. Dr. Parker noted Belcher’s self-report of marijuana

       use. Also, Belcher’s behavior during his interviews with Dr. Parker differed


       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019     Page 12 of 19
       from Belcher’s behavior while in the jail. Belcher became angry with Dr.

       Parker during both interviews, accused Dr. Parker of thinking he was lying in

       his second interview, and insisted he was hallucinating at the time of the

       offenses.


[19]   Belcher discounts Dr. Parker’s conclusion and the trial court’s finding that

       Belcher was under the influence of marijuana at the time of the offenses because

       the only indication of marijuana use on the day of the offenses is Belcher’s self-

       report to jail mental health staff when he was returned to the jail from

       Logansport State Hospital. Belcher notes that no toxicology test occurred upon

       Belcher’s admission to the jail. However, Belcher’s self-report is evidence in the

       record from which the trial court could have determined Belcher was under the

       influence of marijuana at the time of the offense, and we will not reweigh the

       evidence or substitute our judgment for that of the trial court. See Barcroft, 111

       N.E.3d at 1008 (holding evidence of defendant’s demeanor as well as flaws in

       expert opinion testimony and absence of history of mental illness was sufficient

       to support inference of sanity).


[20]   Belcher told Dr. Callaway that a voice inside his head commanded him to

       attack Couch and Smith. However, he did not mention receiving auditory

       commands at the time of the offenses to either of the previous two doctors who

       evaluated him. Belcher also told each doctor that he had previously been found

       not responsible by reason of insanity in another criminal case and suggested the

       same result should be reached in the case at bar. On examination by the court,

       Dr. Olive acknowledged that some people with schizophrenia will sometimes

       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019       Page 13 of 19
       use their knowledge of the illness to exaggerate their symptoms for their own

       perceived benefit. Consequently, the trial court’s decision to discount the

       conclusions of Dr. Olive and Dr. Callaway was not unreasonable. See

       Thompson, 804 N.E.2d at 1150 (holding evidence supported trial court’s finding

       that defendant was guilty but mentally ill despite expert witness opinions that

       defendant did not appreciate the wrongfulness of her actions at the time of the

       offenses).


[21]   Additionally, other evidence in the record suggests Belcher appreciated the

       wrongfulness of his actions. He attempted to evade arrest. He walked away

       from the responding police officers and had the presence of mind to claim the

       IMPD, rather than the State Police, had jurisdiction over Monument Circle.

       Belcher also was sufficiently aware of his surroundings to pick vulnerable

       victims. He initiated contact with and attacked both Smith and Couch, but

       Belcher walked away when other people intervened and confronted him.

       Therefore, sufficient evidence supports the trial court’s rejection of Belcher’s

       insanity defense. See Fernbach v. State, 954 N.E.2d 1080, 1088 (Ind. Ct. App.

       2011) (holding evidence was sufficient to support jury verdict that defendant

       was not insane at time of offenses), trans. denied.


                                             2. Abuse of Discretion

[22]   Sentencing decisions rest within the sound discretion of the trial court, and we

       review such decisions only for an abuse of discretion. Morrell v. State, 118

       N.E.3d 793, 796 (Ind. Ct. App. 2019), clarified on reh’g on other grounds, 121

       N.E.3d 577 (Ind. Ct. App. 2019), trans. denied. “An abuse of discretion occurs if
       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019     Page 14 of 19
       the decision is clearly against the logic and effect of the facts and

       circumstances.” Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App. 2007).

       When a trial court imposes a felony sentence, it is required to issue a sentencing

       statement “that includes a reasonably detailed recitation of the trial court’s

       reasons for the sentence imposed.” Anglemyer v. State, 868 N.E.2d 482, 484-85

       (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007). If the

       court finds aggravating or mitigating circumstances, “the statement must

       identify all significant mitigating and aggravating circumstances and explain

       why each circumstance has been determined to be mitigating or aggravating.”

       Id. at 490. A trial court may abuse its discretion in imposing a sentence by

       failing to enter a sentencing statement, identifying aggravating and mitigating

       factors the record does not support, omitting reasons clearly supported in the

       record and advanced for consideration, or stating reasons for sentence that are

       improper as a matter of law. Id. at 490-91.


[23]   Belcher argues the trial court’s sentencing statement does not demonstrate

       consideration of the mitigating weight attributable to his mental illness. He

       argues he lacks the ability to control his behavior because of his mental illness.

       He also claims his ability to function is limited as a result of his longstanding

       mental illness and argues his illness led him to commit these offenses.


[24]   “The trial court is not obligated to accept the defendant’s arguments as to what

       constitutes a mitigating factor. Nor is the court required to give the same

       weight to proffered mitigating factors as the defendant does.” Comer v. State,

       839 N.E.2d 721, 728 (Ind. Ct. App. 2005) (internal citation and quotation

       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 15 of 19
       marks omitted), trans. denied. However, when sentencing a guilty but mentally

       ill defendant, the trial court “should at a minimum carefully consider on the

       record what mitigating weight, if any, to accord to any evidence of mental

       illness[.]” Weeks v. State, 697 N.E.2d 28, 30 (Ind. 1998).


[25]   The trial court’s sentencing statement indicates it considered Belcher’s mental

       health. In fact, the trial court identified Belcher’s mental illness as the “only

       mitigator that I could possibly find[.]” (Tr. Vol. III at 84.) It noted that Belcher

       failed to take advantage of help that had been offered in the past and explained

       “that each and every time [Belcher] is given the opportunity by some court for

       rehabilitation through anger control classes, domestic violence classes, any kind

       of alternative to simply being locked up that he’s failed. And he’s generally

       failed by committing a new offense.” (Id. at 81.) The court also observed that

       Belcher’s behavior during trial shows his illness can be managed by medication.

       Therefore, the trial court considered Belcher’s mental illness and its implicit

       decision not to give his mental illness much mitigating weight was not an abuse

       of discretion. See Prowell v. State, 787 N.E.2d 997, 1005 (Ind. Ct. App. 2003)

       (holding trial court did not abuse its discretion when it considered but assigned

       minimal mitigating weight to defendant’s mental illness), trans. denied.


                                       3. Appropriateness of Sentence

[26]   We “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Ind. App. R. 7(B).

       Our role in reviewing a sentence pursuant to Appellate Rule 7(B) “should be to
       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019       Page 16 of 19
       attempt to leaven the outliers, and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

       N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden of persuading

       this court that his or her sentence is inappropriate.” Kunberger v. State, 46

       N.E.3d 966, 972 (Ind. Ct. App. 2015). “Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014).


[27]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A

       Level 3 felony is punishable by imprisonment for a fixed term between three

       years and sixteen years, with an advisory sentence of nine years. Ind. Code §

       35-50-2-5. A finding that a defendant is an habitual offender allows the court to

       enhance the defendant’s sentence by an additional six to twenty years, Ind.

       Code § 35-50-2-8, and the trial court added twenty years to the first of Belcher’s

       Level 3 felony sentences. A person convicted of a Class A misdemeanor may

       be sentenced to a fixed term of not more than one year. Ind. Code § 35-50-3-2.

       Also, the maximum sentence for a Class B misdemeanor is 180 days. Ind.

       Code § 35-50-3-3. Fifty-three years and 180 days is the maximum sentence

       Belcher could have received. In fact, the trial court observed that Belcher’s

       sentence represents “the most time that I can give him.” (Tr. Vol. III at 86.)


       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019      Page 17 of 19
[28]   The nature of Belcher’s offenses is particularly troubling. Belcher’s assaults on

       Smith and Crouch were unprovoked, violent, and senseless. Belcher attacked

       the victims in public and in front of children. The victims were strangers to

       Belcher, out-of-town visitors admiring one of Indianapolis’ signature

       attractions. The victims sustained severe injuries, with Smith’s injuries

       ultimately proving fatal. Crouch temporarily lost consciousness and required

       extensive medical care to recover from her injuries. Further, Farah testified to

       the emotional impact he suffered as a result of watching Belcher attack Smith,

       and Smith’s family and friends highlighted for the court the pain Smith’s loss

       caused them. The nature of Belcher’s offenses merits a sentence above the

       advisory. See Reis v. State, 88 N.E.3d 1099, 1104 (Ind. Ct. App. 2017) (holding

       egregious nature of defendant’s offense supported near-maximum sentence).


[29]   “When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. The significance of criminal history varies based

       on the gravity, nature, and number of prior offenses in relation to the current

       offense.” Maffett v. State, 113 N.E.3d 278, 286 (Ind. Ct. App. 2018) (internal

       citation omitted). We note Belcher’s significant criminal history. Prior to the

       case at bar, Belcher accumulated four felony and eleven misdemeanor

       convictions, some of which were violent crimes. For example, Belcher has

       multiple convictions of Class A misdemeanor battery resulting in bodily injury

       and a conviction of Class C felony battery resulting in serious bodily injury.

       Thus, we cannot say Belcher’s sentence is inappropriate given his character. See

       Shinkle v. State, 129 N.E.3d 212, 217-18 (Ind. Ct. App. 2019) (holding sentence


       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019    Page 18 of 19
       was not inappropriate and observing that the defendant’s “extensive criminal

       history . . . reflects poorly on his character”), trans. denied.



                                                Conclusion
[30]   Sufficient evidence supports the trial court’s verdict of guilty but mentally ill. It

       is undisputed that Belcher suffers from a mental illness. However, there is

       sufficient evidence that he appreciated the wrongfulness of his actions. Further,

       the trial court did not abuse its discretion at sentencing by considering but

       giving little weight to Belcher’s history of mental illness, and we cannot say that

       Belcher’s sentence is inappropriate given the nature of his offenses and his

       character. Consequently, we affirm the trial court.


[31]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-830 | December 20, 2019       Page 19 of 19
