MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jul 15 2016, 9:51 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael G. Moore                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dolphus Ballinger,                                       July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1512-CR-2122
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G04-1408-FB-38651



Bailey, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016        Page 1 of 7
[1]   Dolphus Ballinger (“Ballinger”) was convicted of Rape, as a Class B felony.1

      He now appeals, raising for our review whether his sixteen-year sentence is

      inappropriate under Appellate Rule 7(B).


[2]   We affirm.



                              Facts and Procedural History
[3]   Ballinger had, at the time of the instant offense, been stepfather to S.D. for

      much of her childhood and into adulthood. On October 18, 2013, Ballinger

      called S.D. and told her that a speeding ticket she had received might have

      resulted in a warrant for her arrest. S.D. had paid the ticket, but nevertheless

      was worried by the news.


[4]   Later that day, Ballinger came to S.D.’s apartment in Indianapolis. S.D. let

      Ballinger into the apartment, and the two talked for about forty-five minutes to

      an hour about the ticket and possible warrant. Ballinger then left S.D.’s

      apartment.


[5]   About a minute later, Ballinger again knocked on S.D.’s door. When S.D.

      opened the door, Ballinger told her, “I want to try something,” and pushed her

      onto a spare bed in her apartment. (Tr. at 18.) Ballinger then removed S.D.’s

      shorts and began “wiping his beard across [S.D.’s] vagina.” (Tr. at 18.)




      1
       Ind. Code § 35-42-4-1(a)(1). We refer throughout to the criminal offenses as defined at the time of Ballinger’s
      offense, which was committed prior to the effective date of recent revisions to Indiana’s criminal statutes.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016                  Page 2 of 7
      Ballinger then engaged in vaginal intercourse with S.D., who tried to push

      Ballinger off of her and said “no.” (Tr. at 19.) Ballinger told S.D. that if she

      continued to resist, he would ejaculate in her vagina and impregnate her; S.D.

      then stopped resisting Ballinger.


[6]   Ballinger eventually ceased this activity and sat down on the bed next to S.D.

      After placing his hand on S.D.’s chest, Ballinger told her that she wasn’t

      nervous or scared, and asked S.D. whether she was angry with him. She said

      she was because he was her stepfather and was “not supposed to do that.” (Tr.

      at 20.) Ballinger told S.D. that she should apologize to him for not loving him

      the way he loved her. Ballinger then put a cell phone in S.D.’s hand and said

      that if she wanted to hurt him, she should call the police. He then got a knife

      from the kitchen, put it in S.D.’s hand, and said that if she wanted to hurt him,

      she should cut his throat and stab him in the heart. Ballinger then told S.D.

      that “after all the stuff he’s done for [her], he deserved this.” (Tr. at 21.)

      Eventually, Ballinger left the apartment.


[7]   S.D. delayed telling her mother or police about the incident because her mother

      was happy and S.D. did not want to break up the family. Shortly before

      traveling to start U.S. Navy boot camp, S.D. told her mother about the events

      of October 18, 2013. S.D.’s mother confronted Ballinger about his conduct

      several times, and S.D. and her mother together also confronted Ballinger

      during a phone call. At first he denied the conduct, but eventually he

      acknowledged it on several occasions, including once in the office of the pastor

      of the family’s church, and once on a phone call that S.D.’s mother recorded.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016   Page 3 of 7
       During a leave period that S.D. spent in Indianapolis in May and June 2014,

       after learning that Ballinger had not admitted his conduct to other family

       members, S.D. contacted police to report the October 18, 2013 incident.


[8]    On August 11, 2014, the State charged Ballinger with one count of Rape, as a

       Class B felony, and one count of Criminal Confinement, as a Class D felony. 2

       A jury trial was conducted on October 13, 2015. At the trial’s conclusion, the

       jury found Ballinger guilty as charged.


[9]    On November 18, 2015, a sentencing hearing was conducted. During the

       sentencing hearing, the trial court entered a judgment of conviction against

       Ballinger for Rape, but vacated on double jeopardy grounds the jury’s guilty

       finding as to the charge of Criminal Confinement. At the conclusion of the

       hearing, the trial court sentenced Ballinger to sixteen years imprisonment, with

       three years suspended to probation.


[10]   This appeal ensued.



                                     Discussion and Decision
[11]   Ballinger’s sole contention on appeal is that his sentence is inappropriate under

       Appellate Rule 7(B).




       2
           I.C. § 35-42-3-3(a)(1).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016   Page 4 of 7
[12]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which 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.” Under this rule, and as

       interpreted by case law, appellate courts may revise sentences after due

       consideration of the trial court’s decision, if the sentence is found to be

       inappropriate in light of the nature of the offense and the character of the

       offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

       798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to

       attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[13]   Ballinger was convicted of Rape, as a Class B felony. As a result of his

       conviction, he faced a sentencing range of between six and twenty years

       imprisonment, with an advisory term of ten years. I.C. § 35-50-2-5(a).

       Ballinger was sentenced to a sixteen-year term of imprisonment, with three

       years of that term suspended to probation. He requests that this court revise his

       sentence downward to the advisory term of ten years. 3




       3
         Ballinger’s brief refers to the “presumptive sentence.” (Appellant’s Br. at 9.) We remind counsel that
       presumptive sentences were replaced by the advisory sentencing scheme in the wake of the U.S. Supreme
       Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). See Gutermuth v. State, 868 N.E.2d 427, 430-31
       (Ind. 2007) (recognizing the effect of Blakely in Indiana pursuant to Smylie v. State, 823 N.E.2d 679 (Ind.
       2005)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016               Page 5 of 7
[14]   With respect to the nature of the offense, Ballinger argues that we should revise

       his sentence downward because his was not a notably violent rape. The

       circumstances of this crime suggest that an above-advisory sentence is not

       inappropriate. Ballinger had the opportunity to commit his offense only

       because of the position of trust he held with S.D. as her stepfather, and he used

       that access to commit the offense. Ballinger compelled S.D. to cease resisting

       him by threatening S.D. with the prospect that he would impregnate her if she

       did not stop her resistance. Ballinger then engaged in what the State

       characterizes as “passive aggressive” behavior, providing opportunities for S.D.

       to “hurt” him, saying that S.D. owed him sex because of all he had done for

       her, and accusing S.D. of not loving him in the same way he loved her. All of

       this supports an aggravated sentence.


[15]   With respect to Ballinger’s character, his pre-sentencing investigation reveals

       only a single misdemeanor conviction. However, Ballinger was arrested on

       other occasions; several of these arrests involved some form of violent conduct.

       Ballinger refused to express remorse after having admitted to his ex-wife, S.D.’s

       mother, that he had raped S.D. He had a relatively stable employment history

       prior to his arrest, served in the U.S. Navy, and attended church, and together

       with S.D.’s mother helped raise a large family that included S.D. However,

       when S.D. made her accusations, Ballinger engaged in conduct that drove the

       family apart, causing S.D.’s mother financial and personal harm—even after

       having admitted his conduct to S.D.’s mother on several occasions. Thus, in




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016   Page 6 of 7
       total his character is at best unremarkable, affected notably by his refusal to

       express remorse for his crime and his conduct in the wake of S.D.’s accusations.


[16]   In light of the nature of the offense and his character, we cannot conclude that

       Ballinger’s sentence is inappropriate.


[17]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2122 | July 15, 2016   Page 7 of 7
