MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Feb 19 2018, 9:36 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Chad A. George,                                          February 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1709-CR-2131
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Darrell M. Auxier,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         39C01-1512-F4-1235



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018           Page 1 of 10
[1]   Chad A. George appeals his sentence for burglary as a level 3 felony, criminal

      confinement as a level 6 felony, and domestic battery as a class B misdemeanor.

      George raises one issue which is whether his sentence is inappropriate in light

      of the nature of the offense and his character. We affirm.


                                      Facts and Procedural History

[2]   In a prior memorandum decision, we summarized the facts of this case as

      follows:


              [T.C.] and George had been in an “on and off relationship” for
              several years. (Tr. at 45.) In November 2015, an incident
              occurred in which George became physically aggressive toward
              [T.C.], including choking her, throwing her, hitting her in the
              face, and attempting to force her to swallow medication. [T.C.]
              sustained some bruising to her face from this altercation.

              On December 23, 2015, [T.C.] heard a knock on her apartment
              door, and opened it expecting to see one of her neighbors.
              Instead, George was at the door and said, “Bitch, I bet you didn’t
              think you was [sic] going to see me again.” (Id. at 50.) George
              pushed his way into [T.C.’s] apartment despite her attempts to
              close the door. George said he just wanted to talk to [T.C.].
              [T.C.] told George to leave her apartment, but he refused. [T.C.]
              could smell alcohol on his breath. George was upset with [T.C.]
              because she was “talking to these other people” and damaging a
              case pending against him. (Id. at 51.)

              When [T.C.] attempted to exit the apartment, George shoved
              her, pulled her back by her hair, and caused them both to fall
              back into a table knocking over a candle and breaking a chair.
              George then placed his hands around [T.C.’s] neck. Once
              released, [T.C.] made a run for her door and placed her right
              knee into a gap between the door and the door frame to keep

      Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 2 of 10
         George from shutting it. [T.C.] shouted, “No, Chad. No, no,
         no.” (Id. at 52.)

         The pair agreed to walk out of the apartment. Once outside,
         [T.C.] attempted to “make a beeline [sic]” for her door, (id.), to
         get back inside her apartment, but George grabbed her with one
         hand on her throat and the other hand pulling her tank top. (Id.)
         A neighbor called 911 after witnessing the altercation and
         hearing [T.C.] screaming.

         [T.C.] began walking toward a gas station because “there’s [sic]
         cameras if anything happens.” (Id. at 53.) George was walking
         after [T.C.] until law enforcement arrived and ordered the pair to
         stop. The pair was instructed to approach Officer Decker. [T.C.]
         approached first, and Officer Decker saw her lip was bloody and
         her shirt was ripped open, exposing her breasts. According to
         Officer Decker, [T.C.] was behaving “excited, scared to death,
         [and] unintelligible.” (Id. at 89.) While [T.C.] waited by the
         patrol car, Officer Decker placed George in handcuffs until other
         officers arrived. Officer Decker detected the smell of alcohol on
         George and observed George was unsteady on his feet, so he
         secured George in the back of the patrol car.

         Officer Decker took [T.C.] back to her apartment and spoke with
         her there. He noticed a broken chair, an upturned end table, and
         candle wax on the carpet. Officer Decker took photographs of
         [T.C.’s] appearance and injuries including: “a defensive wound
         on the forearm,” (id. at 93), blood on her lip, and bruising and
         redness on her face. [T.C.] indicated at trial that the bruising to
         her face “was still healing up from the November incident,” and
         was not from December 23. (Id. at 60.) Officer Decker also
         collected [T.C.’s] torn tank top for evidence.


George v. State, No. 39A01-1612-CR-2740, slip op. at 1-2 (Ind. Ct. App. June 29,

2017).



Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 3 of 10
[3]   The State charged George, as amended, with Count I, burglary as a level 3

      felony; Count II, criminal confinement as a level 5 felony; Count III, attempted

      strangulation as a level 6 felony; and Count IV, domestic battery as a class A

      misdemeanor. A jury found George guilty on Counts I, II, and IV and not

      guilty on Count III.


[4]   On October 5, 2016, the court held a sentencing hearing. On November 3,

      2016, the court issued its sentencing order. The court found the following

      aggravating factors: George “has a 2014 conviction for Criminal Confinement

      as a class C felony” with respect to which he “confined the same victim herein,

      [T.C.]. without her consent, which resulted in bodily injury” and for which he

      “was sentenced to and served a four-year sentence,” demonstrating that his

      incarceration “did not rehabilitate him and that a short period of incarceration

      is not likely to rehabilitate him”; that he “has a prior firearm conviction,”

      demonstrating that he “poses a greater threat to others”; and that he “was out

      on bond on charges of Battery Resulting in Serious Bodily Injury and

      Strangulation in Jennings County,” demonstrating that “he has a strong

      proclivity for domestic abuse and is a danger to others.” Appellant’s Appendix

      Volume 2 at 185-186. The court did not find any mitigating factors. The court

      sentenced George to twelve years for his burglary conviction, four years for his

      criminal confinement conviction, and one year for his domestic battery

      conviction, ordered that his sentences for burglary and criminal confinement be

      served consecutive to each other, and ordered that his sentence for domestic




      Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 4 of 10
      battery be served concurrently with the other sentences, for an aggregate

      sentence of sixteen years.


[5]   On appeal, we found the evidence was sufficient to support George’s burglary

      conviction. George, No. 39A01-1612-CR-2740, slip op. at 3. We further found

      that George’s convictions of burglary resulting in bodily injury, criminal

      confinement resulting in bodily injury, and domestic battery were all proven

      using the same bodily injury and that the State conceded this subjected him to

      double jeopardy. Id. We accordingly reduced George’s conviction for criminal

      confinement from a level 5 felony to a level 6 felony and his conviction for

      domestic battery from a class A misdemeanor to a class B misdemeanor and

      remanded for the trial court to resentence him. Id. George also argued that his

      aggregate sentence was inappropriate, but we did not consider the issue as we

      remanded for resentencing. Id. at 3 n.4.


[6]   On remand, the trial court adopted the findings regarding mitigating and

      aggravating circumstances as set forth in its November 3, 2016 sentencing

      order, entered George’s conviction for criminal confinement as a level 6 felony

      and sentenced him to two years for that conviction, entered his conviction for

      domestic battery as a class B misdemeanor and sentenced him to six months for

      that conviction, and ordered these sentences to be served concurrently with

      each other and consecutive to his twelve-year sentence for burglary as a level 3

      felony for an aggregate sentence of fourteen years.




      Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 5 of 10
                                                  Discussion

[7]   The issue is whether George’s aggregate sentence is inappropriate in light of the

      nature of the offense and his character. Ind. 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.” Under this rule, the

      burden is on the defendant to persuade the appellate court that his or her

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


[8]   George argues that he was thirty-one years old at sentencing, that his conviction

      for dealing in a sawed-off shotgun was five years old, that his prior offenses

      were caused in whole or in part by his ongoing alcohol abuse issues, and that

      while incarcerated awaiting trial he engaged in substance abuse / mental health

      counseling. He argues that he served in the military, was steadily employed

      until a few weeks prior to his arrest, maintained good conduct in jail while

      awaiting trial and held a trustee position, and was the sole caregiver for his

      ailing mother. He also argues that T.C.’s injuries and fear, while upsetting and

      regrettable, do not exceed the scope of the impact anticipated by the crime and

      nothing in the commission of the crime exceeded the elements of the offense as

      to warrant an enhanced penalty.


[9]   The State maintains that nothing about the nature of the offenses warrants a

      revision of George’s sentence, that T.C. was terrified and knew if she stayed in

      her house that she would be dead, and that T.C. suffered flashbacks and

      emotional trauma and would not answer her door unless she was armed with a
      Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 6 of 10
       weapon. The State further maintains George’s convictions and charges reflect

       poorly on his character, arguing that he had a prior felony conviction for the

       criminal confinement of the same victim, had two misdemeanor convictions,

       and had pending charges in Jennings County. The State also argues, despite

       knowing he had a substance abuse addiction, George never sought treatment on

       his own.


[10]   A person who commits a level 3 felony shall be imprisoned for a term between

       three and sixteen years with the advisory sentence being nine years, Ind. Code §

       35-50-2-5, a person who commits a level 6 felony shall be imprisoned for a term

       between six months and two and one-half years with the advisory sentence

       being one year, Ind. Code § 35-50-2-7, and a person who commits a class B

       misdemeanor shall be imprisoned for a term of not more than 180 days. Ind.

       Code § 35-50-3-3.


[11]   Our review of the nature of the offenses reveals that, a month after George and

       T.C. were in a physical altercation, George showed up at T.C.’s residence

       smelling of alcohol and said, “[b]itch, I bet you didn’t think you was going to

       see me again,” pushed his way into T.C.’s residence despite her attempts to stop

       him, refused to leave, stated that T.C. was hurting his case by talking to other

       people, shoved her, pulled her back by her hair and caused them to fall and

       break a chair, and placed his hands around her neck. Transcript at 50. After

       they exited the residence and T.C. attempted to reenter the home, George

       grabbed her throat and pulled her tank top, ripping it down to nearly her

       stomach. Officer Decker testified that he “immediately [saw] the blood on

       Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 7 of 10
       [T.C.’s] lip and her . . . shirt ripped to expose her breast” and that T.C. was

       “[e]xcited, scared to death, [and] unintelligible when she spoke.” Id. at 89.

       T.C. sustained injuries including a defensive wound on her forearm and blood

       on her lip. When asked her reason for agreeing to go outside, T.C. replied

       “[b]ecause I knew if I stayed in that apartment and that door shut again I

       wouldn’t live to tell anything.” Id. at 78. At sentencing, T.C. testified that “to

       this day I can’t handle anybody knocking on my door without coming without

       a weapon because I think it’s him.” Id. at 176. One of T.C.’s neighbors

       testified that he heard a loud scream, looked across the street, and observed a

       woman struggling and that it appeared she was being dragged in and was being

       choked. He testified that he yelled across the street to ask if she needed help,

       she answered yes, the situation seemed very serious, and he feared for her life.


[12]   Our review of the character of the offender reveals that, according to the

       presentence investigation report (the “PSI”), George’s criminal history includes

       dealing in a sawed-off shotgun in 2010 for which he received one year of

       incarceration with 345 days suspended; public intoxication in 2012 for which he

       received four days of incarceration; and criminal confinement resulting in

       bodily injury to anyone other than the defendant as a class C felony in 2014 for

       which he was sentenced to four years of incarceration. The PSI further

       indicates that George was charged with battery resulting in serious bodily injury

       as a level 5 felony, strangulation as a level 6 felony, and criminal mischief as a

       class B misdemeanor in Jennings County in 2015.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 8 of 10
[13]   The PSI provides that, at the time of his arrest, George had been unemployed

       for about two weeks and that he enlisted in the Army in 2008 and received an

       Other than Honorable Discharge. The PSI provides, with respect to substance

       abuse, that George reported that he first drank alcohol at age thirteen but did

       not start to drink regularly until after his discharge from the military; he has

       previously reported he was a “functioning alcoholic” and his alcohol use had

       never caused him any problems with employment; he reported he first used

       marijuana at age sixteen but denies being a regular user; he has completed

       ADEPT, a substance abuse education program; he stated he was drinking on

       the night he was arrested; and he has not sought or received any other

       treatment. Appellant’s Appendix Volume 4 at 7.


[14]   T.C. indicated that she was the victim of George’s previous criminal

       confinement offense. George indicated that he was an excessive drinker, that

       he attended classes in jail and received a certificate, and that he would benefit

       from additional substance abuse treatment. George indicated he was a trustee

       for about two months while in jail and introduced notes from a captain and a

       sergeant at the jail regarding his good behavior while in jail. George also

       indicated that his mother was in poor health and that, if the court were to

       release him, he would be able to help her travel to her appointments. On cross-

       examination, George indicated he did not seek any substance abuse treatment

       on his own. He indicated he was released from being a trustee because he

       allegedly drank hand sanitizer. He acknowledged telling his mother “[y]ou

       leave me out to dry, mom. I swear to God I’ll never f------ speak to you again”


       Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 9 of 10
       because he wanted paid counsel. Transcript at 157. When asked the reason he

       received an other than honorable discharge from the military, George testified

       “[f]ailure to adjust” and “[f]ailure to adjust to the military way of life I guess

       would be the best description.” Id. at 162. He indicated that he was in the

       Army for about three years, he was charged with being AWOL during that

       time, and he was AWOL for months.


[15]   After due consideration, we conclude that George has not sustained his burden

       of establishing that his aggregate sentence is inappropriate in light of the nature

       of the offense and his character.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm George’s aggregate sentence.


[17]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1709-CR-2131 |February 19, 2018   Page 10 of 10
