MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Jun 29 2017, 10:07 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
William T. Myers                                         Curtis T. Hill, Jr.
Grant County Public Defender                             Attorney General of Indiana
Marion, Indiana                                          Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nytarian Ray Callahan,                                   June 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1606-CR-1504
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         27C01-1408-F1-2



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017        Page 1 of 7
[1]   Nytarian Ray Callahan (“Callahan”) argues that his aggregate forty-year

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

      of the offender.


[2]   We affirm.


                                 Facts and Procedural History

[3]   In the early morning hours of July 14, 2015, seventeen-year-old Callahan and

      two fifteen-year-old companions burglarized a home in Marion, Indiana, by

      entering the home through a kitchen window. R.H. was present in the home

      with her four young children, who were sleeping. Callahan and his two co-

      defendants raped R.H. numerous times both vaginally and anally. R.H. was

      also forced to perform multiple acts of fellatio on all three assailants, often

      while one of the other men raped her. R.H. was told that her children would be

      harmed or killed if she called the police.

[4]   Callahan and his co-defendants eventually left R.H.’s home and stole her cell

      phone, laptops, and an iPod. R.H. called the police later that morning and was

      examined by a sexual assault nurse. R.H. was bruised and had lacerations on

      her genitals.

[5]   On January 4, 2016, Callahan pleaded guilty to twelve counts of Level 1 felony

      rape, one count of Level 1 felony conspiracy to commit rape, Level 4 felony

      burglary, and Level 5 felony robbery. Specifically, the Level 1 felony conspiracy

      to commit rape charge alleged that Callahan and his co-defendants agreed,



      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 2 of 7
              with the intent to commit the felony of rape by threatening the
              use of deadly force . . . did perform one of more of the following
              overt acts,
              Broke and entered the home of [R.H.] and [S.H.];
              Demanded that [R.H.] tell them where her husband was;
              Produced condoms, opened a condom package and put on a
              condom;
              Ordered [R.H.] to remove her clothes;
              Ordered [R.H.] to perform sexual intercourse;
              Ordered [R.H.] to perform other sexual acts;
              Threatened to kill [R.H.] and her four children;
              Ordered [R.H.] to bathe and watched her bathe.


      Appellant’s App. p. 19.

[6]   At the sentencing hearing, the trial court considered the following aggravating

      circumstances: 1) “The nature of the crime. The offenses herein included

      burglary of a home where a young family was present and children were

      sleeping, robbery of the children’s mother, and serial rape of her multiple times

      by multiple perpetrators, sometimes by two at one time,” 2) Callahan’s

      “character and attitudes as demonstrated by his statements in the presentence

      investigation report,” and 3) his prior juvenile record.

[7]   Callahan argued that he was entitled to a lesser sentence based on his claim that

      his co-defendant told him that R.H. had agreed to have sex with them, and the

      clinical psychologist’s report that Callahan might have difficulty understanding

      social cues due to a genetic disorder. In response to Callahan’s argument that

      he was unable to grasp that the sex offenses were not consensual sex acts, the

      trial court stated,


      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 3 of 7
              I think an aggravating circumstance is the Defendant’s character
              and attitudes as demonstrated by his statements in the
              presentence investigation report and also, in . . .the psychosexual
              evaluation. Perhaps if the facts were as Mr. Callahan indicated to
              his counseling [sic], then a different result might be appropriate,
              but Mr. Callahan’s statements are inconsistent with the physical
              evidence in the case and inconsistent with the testimony of the
              victim, inconsistent with the testimony of his co-defendants . . .
              at trial and at sentencing. . . . I find it impossible to see how the
              Defendant could have been misled about the nature of the
              offenses that he was undertaking based upon the evidence, both
              the physical evidence and the testimonial evidence.


      Tr. p. 61.

[8]   The court considered Callahan’s age and guilty plea as mitigating

      circumstances. The court then ordered Callahan to serve a forty-year sentence

      with four years suspended for each Level 1 felony conviction, but because of

      Callahan’s age, ordered those sentences to be served concurrent to each other.

      The trial court also imposed concurrent terms of ten years for the Level 4

      burglary conviction and 6 years for the Level 5 robbery conviction. Callahan

      now appeals.


                                     Discussion and Decision

[9]   Callahan argues that his aggregate forty-year sentence, with four years

      suspended, is inappropriate in light of the nature of the offense and the

      character of the offender. 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

      Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 4 of 7
       light of the nature of the offense and the character of the offender.” In

       conducting our review, “[w]e do not look to determine if the sentence was

       appropriate; instead we look to make sure the sentence was not inappropriate.”

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[S]entencing is principally a

       discretionary function in which the trial court’s judgment 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).


[10]   Ultimately, our principal role is to “leaven the outliers” rather than necessarily

       achieve what is perceived as the correct result. Cardwell v. State, 895 N.E.2d

       1219, 1225 (Ind. 2008). Callahan bears the burden to establish that his sentence

       is inappropriate. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).


[11]   When considering the nature of the offense, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The

       advisory sentence for a Level 1 felony is thirty years and the maximum sentence

       is forty years. Ind. Code § 35-50-2-4(b). For each Level 1 felony conviction, the

       trial court ordered Callahan to serve concurrent forty-year terms, with four

       years suspended to probation.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 5 of 7
[12]   The nature of Callahan’s horrendous offenses more than supports his aggregate

       forty-year sentence with four years suspended to probation. Callahan and his

       co-defendants broke into R.H.’s home and stole several items. Horrendously,

       during the extended home invasion, R.H. was terrorized in her home with her

       four young children sleeping nearby. Her children’s lives were threatened by

       three men who raped her both vaginally and anally causing bruising and

       lacerations. R.H. was also forced to perform fellatio on Callahan and his co-

       defendants multiple times.


[13]   Yet, Callahan argues that his forty-year sentence is inappropriate because he

       suffers from a chromosomal deletion known to cause autism-like symptoms,

       mental retardation, ADHD, and difficulties understanding social cues.

       Seventeen-year-old Callahan was also born with Fetal Alcohol Spectrum

       Disorder and Fetal Cocaine Exposure. Callahan was examined by a clinical

       psychologist who concluded that because he suffers from the chromosomal

       deletion, Callahan could not understand how his behaviors affected the victim.

       Callahan argues that while “the evidence is not clear that there was any nexus

       between [his] mental illness and the crime, there is evidence that his mental

       illness contributed to his inability to fully assess the wrongfulness of his

       actions.” Appellant’s Br. at 10.

[14]   In reaching his conclusion, the clinical psychologist accepted Callahan’s claim

       that his co-defendant told Callahan that R.H. had agreed to have sex with the

       three men. The psychologist concluded that Callahan lacked the skills “to read

       the situation for what it truly was” and he “likely assumed it was another orgy.”

       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 6 of 7
       Appellant’s App. Vol. II, pp. 64-65. The trial court did not credit the

       psychologist’s opinion because Callahan’s self-reporting was inconsistent with

       the victim’s testimony, his co-defendant’s testimony, and physical evidence in

       the case.

[15]   Moreover, even though he pleaded guilty, Callahan continued to attempt to

       excuse his criminal behavior by blaming his co-defendant and arguing that he

       did not realize that R.H. had not consented to the sex and fellatio that was

       repeatedly forced upon her.


[16]   For these reasons, we conclude that Callahan’s aggregate forty-year sentence

       with four years suspended to probation was not inappropriate in light of the

       nature of the offense and the character of the offender.


[17]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1606-CR-1504 | June 29, 2017   Page 7 of 7
