MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                May 13 2020, 7:06 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
Donald J. Frew                                          Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marvin J. Davis,                                        May 13, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2505
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1809-F3-57



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020                  Page 1 of 5
                                          Case Summary
[1]   Marvin Davis (“Davis”) was convicted of Level 3 felony rape 1 and Level 6

      felony sexual battery2 following a jury trial. He appeals his fifteen-year sentence

      asserting that his sentence is inappropriate in light of the nature of the offenses

      and his character. We affirm.



                                   Facts and Procedural History
[2]   On July 17, 2018, Davis’s friend Camille was with her daughter, P.H., when

      they made a stop at Davis’s home. When Davis met Camille’s daughter he

      said, “Wow, how old are you?” She replied, “Sixteen.” Davis asked if she had

      any hobbies and then quickly followed with an offer to help her get a coaching

      position on the cheerleading team at the middle school.


[3]   Because P.H. was interested, the next day Davis decided to drive her to Metro

      field to meet with the woman involved in the cheerleading program. On their

      way to Metro field, Davis told P.H. that he had to stop at his house to get some

      papers he had forgotten. When they arrived at Davis’s home he invited P.H.

      inside for a glass of water. As they entered, Davis asked P.H. if she had ever

      been with an older man, telling her that he could show her how. Davis then

      closed the door and pushed P.H. against it. Davis used his right arm to hold




      1
          Ind. Code § 35-42-4-1.
      2
          I.C. § 35-42-4-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020   Page 2 of 5
      her neck against the door and his other hand to pull down P.H.’s pants and

      proceeded to rape her. P.H. continuously asked Davis to stop and attempted to

      fight him off, but Davis told her to shut up and put his hand over her mouth.

      When Davis finished raping P.H., he dropped her off at her friend’s house.

      Later it was also determined that the cheerleading program that Davis offered

      P.H. did not exist.


[4]   On August 29, 2019, a judgment of conviction was entered after a jury found

      Davis guilty on Count I Level 3 felony rape and Count II Level 6 felony sexual

      battery. At the sentencing hearing, Davis was sentenced to fifteen years on

      Count I and two years on Count II with both sentences running concurrently.

      Davis now appeals.



                                Discussion and Decision
[5]   Davis contends that his sentence is inappropriate. Article 7, Sections 4 and 6 of

      the Indiana Constitution authorize independent appellate review and revision

      of a sentence imposed by a trial court. See, e.g., Sanders v. State, 71 N.E.3d 839,

      843 (Ind. Ct. App. 2017), trans. denied. This appellate authority is embodied in

      Indiana Appellate Rule 7(B). Id. Under 7(B), the appellant must demonstrate

      that his sentence is inappropriate in light of the nature of his offense and his

      character. Id. (citing Ind. Appellate Rule 7(B)). In these instances, deference to

      the trial courts “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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020   Page 3 of 5
      substantial virtuous traits or persistent examples of good character).” Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[6]   The Indiana Supreme Court has explained that the principal role of appellate

      review is an attempt to leaven the outliers, “not to achieve a perceived ‘correct’

      result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The

      question is not whether another sentence is more appropriate, but whether the

      sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

      App. 2008).


[7]   A defendant convicted of a Level 3 felony is subject to a sentencing range of

      three to sixteen years. I.C. § 35-50-2-5(b). Davis received a fifteen-year

      sentence for his crimes. He contends that the nature of the offense and his

      character do not support his fifteen-year sentence for rape. An analysis under

      the auspices of Rule 7(B) suggests otherwise.


[8]   First, we look to the nature of the offense. Under the guise of being friends with

      the victim’s mother and assisting the victim with securing a position as a

      cheerleading coach, Davis lured this young girl into his car and drove her to his

      house. There Davis used brute force to rape her.


[9]   Next, we consider the defendant’s character. Davis has an extensive criminal

      history consisting of eight prior convictions as an adult. Furthermore, Davis

      used deception to perpetrate his well-thought-out plan which connotes an

      absence of any “restraint.” Stephenson, 29 N.E.3d at 122.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020   Page 4 of 5
[10]   In the final analysis, Davis has wholly failed to present any evidence, let alone

       compelling evidence, that portrays in a positive light the nature of the offense

       and his character. Absent such evidence, we are unpersuaded that his sentence

       is inappropriate.


[11]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2505 | May 13, 2020   Page 5 of 5
