MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
                                                                        May 26 2020, 10:07 am
court except for the purpose of establishing
the defense of res judicata, collateral                                        CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                   Benjamin J. Shoptaw
Marion County Public                                    Deputy Attorney General
Defender Indianapolis, Indiana                          Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Godfrey Osunwusi,                                       May 26, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2461
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant Hawkins,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Peggy Hart,
                                                        Magistrate Pro Tem
                                                        Trial Court Cause No.
                                                        49G05-1901-F5-2718



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020                     Page 1 of 9
                                           Statement of the Case
[1]   Godfrey Osunwusi (“Osunwusi”) appeals the four-year and three-month

      aggregate sentence imposed after a jury convicted him of Level 5 felony

      intimidation;1 Level 6 felony residential entry;2 Level 6 felony criminal

      recklessness;3 and Level 6 felony domestic battery.4 He argues that the trial

      court abused its discretion in sentencing him and that his sentence is

      inappropriate in light of the nature of his offenses and his character.

      Concluding that the trial court did not abuse its discretion and that the sentence

      is not inappropriate, we affirm Osunwusi’s sentence.


[2]   We affirm.


                                                     Issues
                 1.           Whether the trial court abused its discretion in sentencing
                              Osunwusi.

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

                                                      Facts
[3]   In early 2019, forty-three-year-old Osunwusi and Ngozi Obenade Moses

      (“Moses”), who are both from Nigeria, were involved in a romantic



      1
          IND. CODE § 35-45-2-1.
      2
          I.C. § 35-43-2-1.5.
      3
          I.C. § 35-42-2-2.
      4
          I.C. § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020          Page 2 of 9
      relationship. At some point, Moses wanted to end the relationship, but

      Osunwusi did not.


[4]   In mid-January 2019, Moses and her roommate, Mary Onoja (“Onoja”), were

      planning a shopping trip. While they were talking, Osunwusi “barge[d] into”

      the women’s apartment and asked them what they were doing. (Tr. Vol. 2 at

      178). Moses told Osunwusi that she and Onoja were going shopping. Later

      that day, while Moses and Onoja were shopping, they noticed Osunwusi, who

      appeared to be following them throughout the store. When the two women

      were ready to leave the store, Osunwusi insisted on giving them a ride home.


[5]   As Moses and Onoja approached their front door, they noticed that it was

      open, and that snow had blown into their apartment. Osunwusi entered the

      apartment with Moses and Onoja, and Moses asked him to leave. Osunwusi

      began shouting at Moses but eventually left.


[6]   The following evening, before Moses and Onoja went to bed, Moses locked the

      front door and placed a chair against it. Moses took her one-year-old daughter

      upstairs and placed her on the bed. After her daughter had fallen asleep, Moses

      telephoned a friend’s uncle, who was a police officer in Maryland, to discuss

      the situation involving Osunwusi.


[7]   While she was talking on the telephone, Moses heard a noise downstairs. She

      then heard Osunwusi coming up the stairs. He was shouting, “[Moses], you are

      finished today. Today I will destroy you. You are finished.” (Tr. Vol 2 at

      184). Unable to open Moses’ locked bedroom door, Osunwusi went back

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 3 of 9
       downstairs. Moses heard him rummaging around in the kitchen drawers.

       Osunwusi returned with a knife that he used to pry open Moses’ bedroom door.


[8]    Osunwusi entered Moses’ bedroom and shut the door. He grabbed Moses from

       behind and put his forearm across her neck, restricting her ability to breathe.

       Osunwusi put the knife against Moses’ stomach and started laughing. He told

       her again that he was going to “finish . . . [and] destroy [her.]” (Tr. Vol. 2 at

       189).


[9]    Moses’ screams woke up her daughter, who began crying. The Maryland

       police officer, who was still on the telephone, began shouting. Osunwusi

       picked up the telephone and asked the officer if he was Moses’ boyfriend.

       While Osunwusi was distracted by the telephone, Onoja opened the bedroom

       door, grabbed Moses’ daughter, ran into the bathroom, and locked the door.


[10]   At the same time, Moses ran downstairs and out the front door. Osunwusi

       dropped the telephone and pursued Moses but was unable to find her. Moses

       ran to a nearby apartment and called the police, who found Osunwusi in his

       vehicle and arrested him.


[11]   The State charged Osunwusi with two counts of Level 5 felony intimidation;

       Level 6 felony residential entry; Level 6 felony criminal recklessness; Level 6

       felony domestic battery; and Level 6 felony strangulation.


[12]   At the beginning of the September 2019 trial, Osunwusi told the trial court that

       it did not have jurisdiction over him because he was an “illegal alien.” (Tr. Vol.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 4 of 9
       2 at 53). Moses, Onoja, and two police officers testified at trial. After both

       parties had presented their cases, the trial court granted Osunwusi’s motion for

       a directed verdict on one of the Level 5 felony intimidation charges. The jury

       convicted Osunwusi of the other Level 5 felony intimidation charge as well as

       the Level 6 felony charges for residential entry, criminal recklessness, and

       domestic battery. The jury acquitted Osunwusi of the Level 6 felony

       strangulation charge.


[13]   At the sentencing hearing, Osunwusi referred to the “expiring of [his] Visa” and

       agreed with the trial court that “his Visa [had] expired and he [had] just stayed

       a little longer[.]” (Tr. Vol. 3 at 82, 83). Osunwusi also agreed that there was an

       “immigration hold” on him. (Tr. Vol. 3 at 83).


[14]   The trial court found Osunwusi’s lack of criminal history to be a mitigating

       factor. In addition, the trial court found the following two aggravating factors:

       “[1] [Osunwusi’s] actions were greater than necessary to satisfy the statutory

       requirements[;] and [2] he was in this country illegally at the time of the

       offenses as evidenced by [Osunwusi] currently having a hold for immigration

       purposes.” (Tr. Vol. 3 at 92).


[15]   The trial court sentenced Osunwusi to four (4) years and three (3) months for

       the Level 5 felony intimidation conviction and to two (2) years for each Level 6

       felony conviction, all to be executed at the Department of Correction. The trial

       court further ordered the sentences to run concurrently.


[16]   Osunwusi now appeals his sentence.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 5 of 9
                                                   Decision
[17]   Osunwusi argues that: (1) the trial court abused its discretion in determining

       aggravating factors for sentencing him; and (2) his sentence is inappropriate in

       light of his character and the nature of his offenses. We address each of his

       arguments in turn.


       1. Abuse of Discretion in Sentencing


[18]   Osunwusi contends that the trial court abused its discretion in sentencing him.

       Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. 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. Id. at 491. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

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


[19]   Here, Osunwusi argues that the trial court abused its discretion by entering a

       sentencing statement that includes an improper aggravating factor that is

       unsupported by the record. Specifically, the gravamen of Osunwusi’s argument

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 6 of 9
       is that the trial court abused its discretion when it found as an aggravating

       factor that he was in the United States illegally at the time he committed the

       offenses. According to Osunwusi, “there was no proof [he] was in the country

       illegally.” (Osunwusi’s Br. 15).


[20]   However, our review of the evidence reveals that Osunwusi admitted that he

       was an “illegal alien” (Tr. Vol. 2 at 53) and agreed with the trial court that “his

       Visa [had] expired and he [had] just stayed a little longer[.]” (Tr. Vol. 3 at 83).

       This evidence supports the trial court’s finding that Osunwusi was in the United

       States illegally at the time he committed the offenses.


[21]   This Court has previously determined that an individual’s unlawful

       immigration status is a valid aggravating factor because it demonstrates a

       disregard for the law, including immigration laws. Sanchez v. State, 891 N.E.2d

       174, 176 (Ind. Ct. App. 2008). The trial court did not abuse its discretion when

       it found as an aggravating factor that Osunwusi was in the United States

       illegally at the time he committed the offenses.


       2. Inappropriate Sentence


[22]   Osunwusi also argues that his sentence is inappropriate. Indiana Appellate

       Rule 7(B) provides that we may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, we find that the sentence is

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

       offender. The defendant bears the burden of persuading this Court that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 7 of 9
       Whether we regard a sentence as inappropriate turns on 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 v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008).


[23]   The Indiana Supreme Court has further explained that “[s]entencing is

       principally a discretionary function in which the trial court’s judgment should

       receive considerable deference.” Id. at 1222. “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).


[24]   When determining whether a sentence is inappropriate, the advisory sentence is

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

       crime committed. Childress, 848 N.E.2d at 1081. Here, Osunwusi was

       convicted of one Level 5 felony and three Level 6 felonies. The sentencing

       range for a Level 5 felony is one (1) to six (6) years, and the advisory sentence is

       three (3) years. IND. CODE § 35-50-2-6. The sentencing range for a Level 6

       felony is six (6) months and two and one-half (2½) years, and the advisory

       sentence is one (1) year. IND. CODE § 35-50-2-7. Here, the trial court sentenced

       Osunwusi to four years and three months for the Level 5 felony, and two years

       for each Level 6 felony. The trial court further ordered the sentences to run



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 8 of 9
       concurrently with each other, for an aggregate executed sentence of four years

       and three months.


[25]   Regarding the nature of the offense, Osunwusi entered Moses’ apartment

       through a door that was both locked and blocked with a chair. As he walked up

       the stairs to Moses’ bedroom, Osunwusi called out that he was going to “finish”

       and “destroy” her. (Tr. Vol 2 at 184). Osunwusi used a knife to open Moses’

       locked bedroom door and entered the room where Moses’ one-year-old

       daughter was sleeping. He placed a knife against Moses’ stomach and again

       threatened to “finish” and “destroy” her. (Tr. Vol. 2 at 189). When Osunwusi

       became distracted by the telephone and Moses escaped from the bedroom,

       Osunwusi pursued her but was unable to find her. Regarding Osunwusi’s

       character, we note that Osunwusi was in the United States illegally at the time

       that he committed the offenses against Moses. These facts do not support

       finding Osunwusi’s sentence to be inappropriate.


[26]   Based on this evidence, Osunwusi has failed to meet his burden to persuade this

       Court that his aggregate four-year and three-month sentence is inappropriate.


[27]   Affirmed.


       Baker, J., and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2461 | May 26, 2020   Page 9 of 9
