MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 11 2018, 9:59 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
Mark A. Thoma                                           Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Fort Wayne, Indiana
                                                        Caroline G. Templeton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Willie M. Honer,                                        December 11, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1270
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D06-1711-F3-67



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018                   Page 1 of 11
                                       Statement of the Case
[1]   Willie Honer (“Honer’) appeals his conviction following a jury trial for Level 5

      felony domestic battery1 as well as the imposition of a two (2) year sentence.

      Specifically, Honer argues that: (1) there is insufficient evidence to support his

      conviction; (2) the trial court abused its discretion in sentencing him; and (3) his

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

      Concluding that there is sufficient evidence to support his conviction, the trial

      court did not abuse its discretion in sentencing Honer, and Honer’s sentence is

      not inappropriate, we affirm the conviction and sentence.


[2]   We affirm.


                                                    Issues
                 1.      Whether there is sufficient evidence to support Honer’s
                         conviction for Level 5 felony domestic battery.

                 2.      Whether the trial court abused its discretion in sentencing
                         Honer.

                 3.      Whether Honer’s sentence is inappropriate in light of the
                         nature of his offense and his character.




      1
          IND. CODE § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 2 of 11
                                                     Facts
[3]   Honer and his Wife (“Wife”) were married in 1997 but have been separated for

      sixteen years. They are the parents of two children, ages twenty-nine and

      sixteen. Despite the separation, Honer and Wife spend time together two to

      three times a week. In November 2017, Wife visited Honer at his brother’s

      house. Honer and Wife shared one-half of a fifth of brandy. When Wife

      started to leave, she and Honer began arguing. A neighbor heard the argument

      and called the police. Two officers arrived at the scene and arrested Honer.

      The State charged him with Level 3 felony criminal confinement, Level 5

      felony domestic battery with a previous battery conviction, Level 5 felony

      intimidation, Level 6 felony criminal recklessness, and Level 6 felony pointing a

      firearm.


[4]   At trial, the neighbor testified that she had called the police because she had

      “heard the obvious sounds of someone being hit.” (Tr. 137). Two police

      officers testified that when they arrived at the scene, Wife had told them that

      Honer had pushed her into a chair and pointed a gun in her face. Wife testified

      that when she was getting ready to leave Honer’s brother’s house, Honer

      pushed her down into a wooden chair, choked her, and refused to let her leave.

      She further testified that she had lied to the officers and that Honer had not

      pointed a gun at her. Photographs admitted into evidence showed Wife with

      bruises on her cheek and neck. The jury convicted Honer of Level 5 felony

      domestic battery. Following the jury’s verdict, Honer stipulated that he had

      been convicted of another battery involving Wife in 1997.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 3 of 11
[5]   Evidence presented at the sentencing hearing revealed that Honer’s criminal

      history includes four misdemeanor convictions for a minor consuming alcohol,

      resisting law enforcement, battery, and operating while intoxicated. For those

      convictions, Honer had been placed on probation and referred to treatment

      programs and community service. He had been unsatisfactorily discharged

      from probation following his most recent conviction in 2010.


[6]   Honer asked the trial court to consider his health and his criminal history to be

      mitigating factors. Specifically, Honer explained that although he was only

      taking one medication, he had been taking up to sixteen different medications

      for a variety of unnamed illnesses before he was incarcerated. Honer further

      argued that his prior convictions were remote in time. Specifically, he pointed

      out that his most recent conviction occurred in 2010 and that his prior battery

      conviction occurred in 1997. Also at the sentencing hearing, Honer apologized

      “for the altercation [h]e and [his] Wife had.” (Tr. 220).


[7]   When sentencing Honer, the trial court found that the sole mitigating factor

      was Honer’s remorse. The trial court further explained as follows:


              The Court does find . . . as an aggravating circumstance your
              prior criminal record with failed efforts at rehabilitation covering
              a period of time from 1986 to 201[0]. You have a juvenile
              involvement with an informal adjustment, four misdemeanor
              convictions. You’ve been given the benefit of probation,
              treatment, community service, short jail sentences and longer jail
              sentences, the Treatment Alternative to Street Crime Program,
              the Center for Non Violence Program, and the alcohol and drug
              program in another county.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 4 of 11
       (Tr. 221). Thereafter, the trial court sentenced Honer to two years in the

       Department of Correction. Honer appeals his conviction and sentence.


                                                   Decision
[8]    Honer argues that: (1) there is insufficient evidence to support his conviction;

       (2) the trial court abused its discretion in sentencing him; and (3) his sentence is

       inappropriate. We address each of his arguments in turn.


       1. Sufficiency of the Evidence


[9]    Honer first argues that there is insufficient evidence to support his Level 5

       felony domestic battery conviction. Our standard of review for sufficiency of

       the evidence claims is well-settled. We consider only the probative evidence

       and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d

       144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness

       credibility. Id. We will affirm the conviction unless no reasonable fact finder

       could find the elements of the crime proven beyond a reasonable doubt. Id.

       The evidence is sufficient if an inference may be reasonably drawn from it to

       support the verdict. Id. at 147.


[10]   Here, Honer specifically argues that there is insufficient evidence to support his

       conviction because Wife was “simply not reliable and her testimony and

       statements [were] incredibly dubious.” (Honer’s Br. 20). The incredible

       dubiosity rule provides that a court may impinge on the jury’s responsibility to

       judge witness credibility only when confronted with inherently improbable

       testimony. Moore v. State, 27 N.E.3d 749, 754 (Ind. 2015). This rule is applied
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 5 of 11
       in limited circumstances, namely where there is “1) a sole testifying witness; 2)

       testimony that is inherently contradictory, equivocal, or the result of coercion;

       and 3) a complete absence of circumstantial evidence.” Id. at 756.


[11]   Our review of the evidence makes it clear that the incredible dubiosity rule

       simply does not apply in this case for three reasons. First, there were multiple

       testifying witnesses in this case. See Moore, 27 N.E.3d at 756. Second, Wife’s

       testimony was not internally inconsistent. See Smith v. State, 34 N.E.3d 1211,

       1221 (Ind. 2015) (explaining that the second prong of the test is satisfied “only

       when the witness’s trial testimony was inconsistent within itself, not that it was

       inconsistent with other evidence or prior testimony”). Third, the testimony

       from the other witnesses and the photographs admitted into evidence at trial

       provided circumstantial evidence of the crime. As a result, the State presented

       sufficient evidence to convict Honer of Level 5 felony domestic battery.


       2. Abuse of Discretion in Sentencing


[12]   Honer next argues 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

       in 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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 6 of 11
       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.


[13]   Here, Honer argues that the trial court abused its discretion because it failed to

       find his health and criminal history to be mitigating factors.2 However, a trial

       court is not obligated to accept a defendant’s claim as to what constitutes a

       mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A

       trial court has discretion to determine whether the factors are mitigating, and it

       is not required to explain why it does not find the defendant’s proffered factors

       to be mitigating. Haddock v. State, 800 N.E.2d 242, 245 (Ind. Ct. App. 2003). A

       claim that the trial court failed to find a mitigating circumstance requires the

       defendant to establish that the mitigating evidence is both significant and clearly

       supported by the record. Anglemyer, 868 N.E.2d at 493.


[14]   Honer first contends that the trial court abused its discretion because it failed to

       find that his health was a mitigating factor. Henderson v. State, 848 N.E.2d 341




       2
         Honer also argues that the trial court abused its discretion when it failed to find as mitigating factors his
       dependent child and the fact that he was working and contributing to society. Honer has waived appellate
       review of these factors because he failed to advance them for consideration in the trial court. See Simms v.
       State, 791 N.E.2d 225, 233 (Ind. Ct. App. 2003) (explaining that “[i]f the defendant fails to advance a
       mitigating circumstance at sentencing, this court will presume that the circumstance is not significant and the
       defendant is precluded from advancing it as a mitigating circumstance for the first time on appeal.”) Waiver
       notwithstanding, Honer has failed to show that these mitigating factors were significant and clearly supported
       by the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018                 Page 7 of 11
       (Ind. Ct. App. 2006) is instructive. Henderson, who suffered from depression,

       anxiety, diabetes, acid reflux, bladder prolapse, hyperthyroidism, hypertension,

       and arthritis in her left shoulder, argued on appeal that the trial court had erred

       in failing to find that her health was a mitigating factor. Id. at 344. However,

       this Court concluded that Henderson had not presented any evidence

       demonstrating that her medical conditions would be untreatable during

       incarceration or would render incarceration a hardship. Id. Accordingly, we

       concluded that the trial court did not err in failing to consider Henderson’s

       health to be a mitigating factor. Id. Here, Honer argues that, before he was

       incarcerated, he had been taking up to sixteen medications for a variety of

       unnamed illnesses. However, as in Henderson, Honer has presented no evidence

       demonstrating that his medical conditions for which he was taking these

       medications would be untreatable during incarceration or would render

       incarceration a hardship. The trial court did not abuse its discretion in failing to

       consider Honer’s health to be a mitigating factor.


[15]   Honer also argues that the trial court abused its discretion because it failed to

       consider his criminal history as a mitigating rather than an aggravating

       circumstance. Honer specifically contends that the remoteness in time of his

       prior convictions should constitute a mitigating factor. However, the Indiana

       Supreme Court has previously explained that it would “not say that remoteness

       of time, to whatever degree, render[ed] a prior conviction irrelevant.” Bowling

       v. State, 493 N.E.2d 783, 787 (Ind. 1986) (citing Perry v. State, 447 N.E.2d 599,

       600 (Ind. 1983)). Rather, the Court explained that it is within the trial court’s


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 8 of 11
       discretion to determine whether to consider the remoteness of a defendant’s

       criminal history as a mitigating factor or to find that the remoteness does not

       affect the consideration of the defendant’s criminal history as an aggravating

       factor. Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). Here, the trial court

       found that the remoteness of Honer’s prior convictions did not affect the

       consideration of his criminal history as an aggravating factor. In addition, the

       trial court specifically found that Honer had a twenty-four-year history of failed

       efforts at rehabilitation, including probation, community service, and treatment

       alternatives. The trial court did not abuse its discretion in failing to consider

       the remoteness of Honer’s criminal history as a mitigating factor.


       3. Inappropriate Sentence


[16]   Lastly, Honer 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).

       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).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 9 of 11
[17]   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).


[18]   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. The sentencing range for

       Level 5 felony is one to six years. IND. CODE § 35-50-2-6. The advisory

       sentence is three years. Id. Here, Honer was sentenced to two years, which is

       less than the advisory sentence.


[19]   Regarding the nature of the offense, we note that Honer drank one-half of a

       fifth of brandy with his estranged wife and then refused to allow her to leave his

       brother’s house. Specifically, when Wife attempted to go home, Honer pushed

       her down into a chair, choked her, and refused to let her leave. Turning to

       Honer’s character, we note that this was not Honer’s first contact with the

       criminal justice system nor his first conviction for battery against C.H. Honer

       also has prior misdemeanor convictions for a minor consuming alcohol,

       resisting law enforcement, battery, and operating while intoxicated. These

       multiple convictions, including a battery conviction involving the same victim,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 10 of 11
       reflect poorly on Honer’s character. See Moss, 13 N.E.3d at 448 (holding that

       “even a minor criminal history is a poor reflection of a defendant’s character”).

       Honer has failed to meet his burden to persuade this Court that his two-year

       sentence for his Level 5 felony domestic battery conviction is inappropriate.


[20]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1270 | December 11, 2018   Page 11 of 11
