MEMORANDUM DECISION                                             May 13 2015, 10:14 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chris Palmer Frazier                                     Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

William P. Guffey,                                       May 13, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         70A01-1409-CR-410
        v.                                               Appeal from the Rush Circuit Court.
                                                         The Honorable David E. Northam,
State of Indiana,                                        Judge.
                                                         Cause No. 70C01-1311-FB-757
Appellee-Plaintiff




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015    Page 1 of 15
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, William P. Guffey (Guffey), appeals his sentence

      following his conviction for aggravated battery, a Class B felony, Ind. Code §

      35-42-2-1.5 (2013); battery resulting in bodily injury to a law enforcement

      officer, a Class D felony, I.C. § 35-42-2-1(a)(2)(A) (2013); and disorderly

      conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a) (2013).


[2]   We affirm.


                                                   ISSUES

[3]   Guffey raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its sentencing discretion; and

      (2) Whether Guffey’s sentence is inappropriate in light of the nature of the

      offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   On the early morning of November 10, 2013, emergency personnel were

      dispatched to 7139 W. North Street in Arlington, Rush County, Indiana, on a

      report of a possible overdose. Rushville Police Deputy Douglas Keith (Deputy

      Keith) arrived as the medics were preparing to load Guffey, who was

      unresponsive, into the ambulance. Deputy Keith spoke with Guffey’s wife,

      Deborah Guffey (Deborah), who stated that Guffey had consumed a large

      quantity of Adderall pills and alcohol. She also warned that when Guffey woke

      up, he would likely be combative.



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[5]   Deputy Keith accompanied the ambulance to Rush Memorial Hospital, and

      Guffey began regaining consciousness en route. As Deborah predicted, Guffey

      was uncooperative and aggressive. Upon arrival at the emergency room at

      approximately 4:00 a.m., Guffey threatened and verbally abused the medical

      providers, and he grabbed the hand of a nurse and twisted it as he yelled at her

      not to touch him again. Deputy Keith warned Guffey that if he continued to

      harass and harm the hospital staff, he would be arrested. Guffey was hooked

      up to an IV, and he drifted in and out of sleep for most of the morning. When

      he woke up, he was belligerent. He tried to pull his IV out, and he was loud,

      obnoxious, and profane. Guffey’s continuous yelling disrupted the entire

      emergency department, so police officers were summoned two different times to

      help get Guffey under control. The officers warned Guffey that if they had to

      come back a third time, he would be arrested for disorderly conduct.


[6]   In order to counteract the effects of the Adderall, a nurse administered multiple

      doses of Ativan. Whereas Adderall is a stimulant, Ativan is a downer that will

      reduce the heart rate and blood pressure and will help decrease the

      impulsiveness and agitation brought on by Adderall. As the day progressed,

      Guffey began to sober up, and with the help of the Ativan, he generally became

      more cooperative. However, he continued to have periodic outbursts, which

      were countered with additional doses of Ativan.


[7]   Guffey made it clear that he wanted to leave the hospital, but his doctor was

      concerned that lethal doses of Adderall could still be in his system. In addition,

      there was a concern that Guffey might be suicidal and could harm himself if

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      released. The doctor thus gave Guffey the option of either remaining in the

      hospital voluntarily for twenty-four hours for observation or to be committed to

      a seventy-two hour lockdown at a psychiatric facility. Guffey agreed that he

      would stay at the hospital, so at approximately 2:00 p.m., he was moved from

      the emergency room to a private room where his vitals could be constantly

      monitored. However, just two hours later, Guffey decided that he was going to

      leave. He unhooked himself from the monitors and headed toward the exit.


[8]   After discovering that Guffey had disappeared from his room, a nurse found

      him in the parking lot and tried to convince him to return to his room because

      he had not yet been discharged. When Guffey indicated that he was going

      home, the nurse asked him to let her remove his IV first. Instead, Guffey

      shouted obscenities and ripped the IV out of his arm and threw it on the

      ground. By this time, Sergeant Brent Campbell (Sergeant Campbell) had

      responded to the hospital’s third call for help with Guffey.


[9]   Sergeant Campbell was discussing the situation with the nurses and Deborah

      when Police Chief Craig Tucker (Chief Tucker) arrived. Chief Tucker—who

      had responded to the hospital’s prior calls for Guffey—asked Guffey to quiet

      down, but Guffey just screamed that he wanted to leave and to smoke a

      cigarette. Deborah explained to Sergeant Campbell that if Guffey could just

      smoke a cigarette, he would readmit himself. Rush Memorial Hospital is a

      smoke-free campus, so in order to diffuse the situation, Sergeant Campbell

      suggested that Guffey could walk to a nearby restaurant’s parking lot to smoke.

      Deborah conveyed the information to Guffey, and as Guffey crossed the

      Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 4 of 15
       parking lot, he shouted “[s]omething to the effect of corn fed mother f***ing

       pussies” among other profanities. (Tr. p. 234).


[10]   Based on the fact that Guffey continued to be excessively loud and disruptive,

       Chief Tucker approached Guffey and informed him that he was under arrest

       and asked him to put his hands behind his back. Chief Tucker took out his

       handcuffs and reached for one of Guffey’s arms, but Guffey “pulled away and

       then turned his body into a bladed position which . . . would be like a fighting

       position.” (Tr. p. 235). Guffey then shoved him in the chest, so Chief Tucker

       grabbed Guffey’s shoulders and used a leg sweep maneuver to subdue him, but

       Guffey pulled Chief Tucker down with him. As the men fell to the ground,

       Chief Tucker’s elbow shattered on impact. The “excruciating” pain prevented

       Chief Tucker from moving his arm, and Guffey was able to roll over on top of

       him and secure Chief Tucker in a headlock. (Tr. p. 273). While maintaining

       the chokehold, Guffey gouged Chief Tucker’s eyes and scratched his face.


[11]   Sergeant Campbell rushed to assist Chief Tucker, but he was unable to pull

       Guffey off of him. As Sergeant Campbell searched for a taser in Chief Tucker’s

       belt, a nearby paramedic and EMT student came to Chief Tucker’s aid,

       grabbing onto Guffey’s arms to break the chokehold enough for Chief Tucker to

       slip his head out. Sergeant Campbell attempted to secure Guffey in handcuffs

       but noticed that blood was running down Chief Tucker’s face. Realizing that

       Guffey was still jamming his fingers into Chief Tucker’s eye sockets and

       appeared to be biting his face, Sergeant Campbell—with the help of a nurse

       bystander—grabbed Guffey by the hair and pinned his head down to the

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 5 of 15
       pavement while they handcuffed Guffey. All the while, Guffey continued to

       scream profanities and fight—kicking Sergeant Campbell repeatedly in the back

       until he was placed in leg shackles. As the officers were arranging for Guffey’s

       transport to jail, Guffey asked Chief Tucker, “[H]ow’s your eye now bitch,

       how’s that you pussy[?]” (Tr. p. 277). Chief Tucker required reconstructive

       surgery to repair his elbow; however, he no longer has full range of motion and

       continues to experience pain. Chief Tucker was also treated for a scratched

       cornea and the abrasions on his face.


[12]   On November 12, 2013, the State filed an Information, charging Guffey with

       Count I, aggravated battery, a Class B felony, I.C. § 35-42-2-1.5 (2013); Count

       II, battery resulting in bodily injury to a law enforcement officer, a Class D

       felony, I.C. § 35-42-2-1(a)(2)(A) (2013); Count III, battery resulting in bodily

       injury to a law enforcement officer, a Class D felony, I.C. § 35-42-2-1(a)(2)(A)

       (2013); Count IV, disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-

       3(a) (2013); and Count V, resisting law enforcement, a Class D felony, I.C. §

       35-44.1-3-1(a),(b)(1)(B) (2013).


[13]   On August 4, 2014, the State filed a motion to dismiss Count III, battery

       resulting in bodily injury to a law enforcement officer as a Class D felony,

       which the trial court granted on August 11, 2014. On August 12-14, 2014, a

       jury trial was held. At the close of the evidence, the jury found Guffey guilty as

       charged, and the trial court entered a judgment of conviction on the same. On

       August 29, 2014, the trial court held a sentencing hearing. The trial court

       vacated Count V, resisting law enforcement as a Class D felony, based on

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 6 of 15
       double jeopardy concerns. The trial court imposed a term of fifteen years on

       Count I; eighteen months on Count II; and 180 days on Count IV. The trial

       court further ordered that the sentences should all be served concurrently, for an

       aggregate sentence of fifteen years, with ten years executed in the Indiana

       Department of Correction (DOC) and five years suspended to probation.


[14]   Guffey now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                            I. Sentencing Discretion

[15]   Guffey claims that the trial court abused its sentencing discretion. Sentencing

       decisions are matters left to the sound discretion of the trial court. Anglemyer v.

       State, 868 N.E.2d 482, 490, clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). On

       appeal, we review a trial court’s sentencing order only for an abuse of

       discretion. Id. It is an abuse of discretion if the trial court’s “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.

       (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). Our supreme court has

       determined that in matters of sentencing, a trial court may abuse its discretion

       by failing to enter a sentencing statement, entering a finding of aggravating and

       mitigating factors that are unsupported by the record, omitting reasons that are

       clearly supported by the record and are advanced for consideration, or by

       including reasons that are improper as a matter of law. Id. at 490-91. If we find

       that the trial court has abused its discretion, we will remand for resentencing

       “‘if we cannot say with confidence that the trial court would have imposed the
       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 7 of 15
       same sentence had it properly considered reasons that enjoy support in the

       record.’” Sandleben v. State, 22 N.E.3d 782, 796 (Ind. Ct. App. 2014) (quoting

       Anglemyer, 868 N.E.2d at 491), trans. denied.


[16]   In determining an appropriate sentence, the trial court identified Guffey’s

       criminal record as a slight aggravator and the fact that the victim was a law

       enforcement officer engaged in his official duties (only for the aggravated

       battery charge) as a strong aggravating circumstance. The court considered the

       fact that Guffey led a law-abiding life for intermittent periods of time; that

       incarceration would be a hardship for his family; and Guffey’s expression of

       remorse as slight mitigators. The trial court “note[d] that for the most part [the

       aggravating and mitigating factors] balance each other out and offset each

       other.” (Tr. p. 414). However, with respect to Count I, Class B felony

       aggravated battery, the trial court found that because Guffey’s victim was a law

       enforcement officer, the aggravating circumstances “substantially outweigh” the

       mitigators. (Tr. p. 415). Accordingly, the trial court imposed an enhanced

       sentence of fifteen years on Count I, of which five years was suspended to

       probation. See I.C. § 35-50-2-5 (2013) (requiring a fixed term of between six and

       twenty years for a Class B felony, with the advisory term being ten years). On

       Counts II and IV, respectively, the trial court imposed the advisory sentence for

       a Class D felony of eighteen months and the maximum sentence for a Class B

       misdemeanor of 180 days. See I.C. §§ 35-50-2-7(a); -3-3 (2013).


[17]   Guffey now claims that the trial court abused its discretion by failing to

       consider his mental illness as a mitigating circumstance “despite evidence in the

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 8 of 15
       record supporting such a finding.” (Appellant’s Br. p. 11). We first note that

       Guffey did not cite his mental illness as a mitigating factor at the sentencing

       hearing. It is well established that a trial court is not required to “comb through

       [the presentence investigation report] and present mitigating arguments on

       behalf of the defendant when the defendant fails to act.” Bryant v. State, 984

       N.E.2d 240, 252 (Ind. Ct. App. 2013), trans. denied. Thus, Guffey’s failure to

       proffer his mental health as “a mitigating circumstance to the trial court waives

       consideration of the circumstance on appeal.” Id.


[18]   Waiver notwithstanding, in order to establish that the trial court abused its

       discretion, Guffey must demonstrate “that the mitigating evidence is both

       significant and clearly supported by the record.” Weedman v. State, 21 N.E.3d

       873, 893 (Ind. Ct. App. 2014). However, the trial court is under no obligation

       “to accept a defendant’s claim as to what constitutes a mitigating

       circumstance.” Id. Nor is the trial court required to justify “why it did not find

       a factor to be significantly mitigating.” Sandleben, 22 N.E.3d at 796. Our

       supreme court has identified “four factors that bear on the weight to be given to

       mental illness at sentencing”:

               (1) the extent of the defendant’s inability to control his or her behavior
               due to the disorder or impairment;
               (2) overall limitations on functioning;
               (3) the duration of the mental illness; and
               (4) the extent of any nexus between the disorder or impairment and the
               commission of the crime.
       Bryant, 984 N.E.2d at 252 (quoting Weeks v. State, 697 N.E.2d 28, 30 (Ind.

       1998)). Guffey asserts that the evidence establishes that he “suffered from an

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 9 of 15
       ‘inability to control his . . . behavior due to [his] disorder or impairment’”—i.e.,

       that he had overdosed on Adderall and was on suicide watch for twenty-four

       hours. (Appellant’s Br. p. 12).


[19]   Even though Guffey did not raise his mental health as a mitigating factor for

       the trial court’s consideration, during the sentencing hearing, he made a general

       request for the trial court to order a mental health evaluation and for the DOC

       to “follow through with that” as part of his sentence. (Tr. p. 376). As a result,

       the trial court’s sentencing order provided:

               [Guffey] raised the issue of his mental health due to the events leading
               up to the incident in question. The evidence of the action of the
               medical providers was consistent with the protocol for a temporary
               [seventy-two] hour commitment that is used on a regular basis for
               short term drug induced issues. The [c]ourt does not find the issues
               supported by the evidence related to mental health or substance abuse
               issues constitutes a mitigating factor.
       (Appellant’s App. p. 17). In addition, at the sentencing hearing, the trial court

       stated that it had considered

               the fact that [Guffey] was . . . suffering from an overdose of [A]dderall
               and had exhibited suicidal ideations sufficient to cause medical
               professionals . . . to decide his condition required at least twenty-four
               hours of observation. . . . [T]he factors that the [c]ourt is supposed to
               consider in this . . . is the extent of these, of [Guffey’s] inability to
               control his behavior. . . . I believe there was ample evidence to
               establish that or at least to argue . . . that through [the] time release . . .
               characteristics of the drug, he was affected more and sometimes less
               during the course of his time at the hospital. . . . [W]hether or not that
               was . . . during the period of . . . the confrontation . . . I don’t . . .
               believe was conclusively shown. . . . [T]he overall limitation of
               [Guffey’s] functioning again . . . went up and down . . . . [E]specially
               in cases when the . . . mental issues are drug induced. . . . I would not

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 10 of 15
               . . . feel that . . . this would be considered a mental . . . issue . . . of long
               duration, and I suppose I would add if, if in fact he did have mental
               health issues above the alcohol induced ones . . . over a long, long
               period of time, . . . again he seems to have been able to control it . . .
               enough that he only had two prior misdemeanor . . . convictions.
               Again I just did not . . . consider the, . . . well I considered it but . . . I
               did not find that . . . there was adequate proof to establish that there
               were mental health issues to be considered a mitigating circumstance.
       (Tr. pp. 410-11).


[20]   It is clear that the trial court considered and specifically rejected Guffey’s

       mental health as a mitigating factor. As such, Guffey is essentially requesting

       our court to reweigh the evidence, which we will not do. As stated above, the

       trial court was not obligated to accept Guffey’s argument as to what constitutes

       a mitigating factor. Weedman, 21 N.E.3d at 893. Therefore, we find that the

       trial court did not abuse its discretion in deciding that Guffey’s mental health

       was not a mitigating factor.


                                        II. Appropriateness of Sentence

[21]   Next, Guffey claims that his sentence is inappropriate. Notwithstanding the

       fact that the trial court acted within its sentencing discretion, our court “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.” Ind. Appellate Rule

       7(B). Although Appellate Rule 7(B) “leaves much to the discretion of appellate

       courts,” we are ever mindful of “the long-recognized principle that ‘sentencing

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

       receive considerable deference.’” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 11 of 15
       (quoting Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)). Thus, the

       purpose of appellate sentence review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Whether we will

       find a sentence to be inappropriate “turns on our sense of 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.” Id. at 1224. Ultimately, we

       focus on “the length of the aggregate sentence and how it is to be served.” Id.


[22]   With respect to the nature of the offense, the record reveals that Guffey

       consumed large quantities of Adderall pills—for which he did not have a

       prescription—and alcohol. While being treated for the overdose at the hospital,

       Guffey was belligerent and disrupted the entire emergency department to the

       point that the police had to be called for assistance on three different occasions.

       After Guffey ripped out his IV and left the hospital, Chief Tucker and Sergeant

       Campbell attempted to diffuse the situation by allowing Guffey to go smoke,

       but Guffey continued to shout obscenities and interrupted the officers’

       investigation. Upon learning that he was being arrested, Guffey became

       violent. He shoved Chief Tucker in the chest, and when Chief Tucker

       attempted to subdue him, Guffey grabbed onto him and pulled him down to the

       ground, causing Chief Tucker’s elbow to shatter. Thereafter, Guffey viciously

       attacked Chief Tucker, who was defenseless due to his level of pain. Guffey

       gouged Chief Tucker’s eye sockets and scratched and bit his face. Guffey also


       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 12 of 15
       put Chief Tucker in a chokehold, and as he strangled him, the EMT student

       overhead Guffey tell him to “just die.” (Tr. p. 222).


[23]   When Guffey was eventually handcuffed, he bragged about the number of

       people it took to restrain him and about the injuries that he inflicted upon Chief

       Tucker. Chief Tucker’s medical bills exceeded $32,000, and he required

       intensive therapy to rehabilitate his elbow. Despite the therapy, Chief Tucker

       will never regain full mobility in his elbow. He will experience pain for the rest

       of his life, which is expected to increase in severity as he ages, and, most likely,

       Chief Tucker will require additional surgery in the future.


[24]   Guffey now asserts that he “did not enter into that situation deliberately

       attempting to attack the Chief and hurt him badly.” (Appellant’s Br. p. 13).

       We are not persuaded by Guffey’s contention that this was “an instantaneous

       reaction to being touched and restrained in a moment when his entire

       physiological system was highly aroused as a result of an amphetamine

       overdose.” (Appellant’s Br. p. 14). Based on Deborah’s warning to Deputy

       Keith that Guffey would probably be combative when he woke up, it is evident

       that Guffey is a hostile individual—perhaps more so when intoxicated.

       Although Guffey’s emergency room physician, Dr. Russell Daugherty (Dr.

       Daugherty), testified that impulsiveness may be an effect of the Adderall, Dr.

       Daugherty also stated that “Guffey “presented more as . . . drunk than . . . the

       effects of being [on] Adderall.” (Tr. p. 151). Moreover, Guffey’s vitals actually

       indicated that he had been coming down off the effects of the Adderall during

       the twelve hours that he was hospitalized, and Dr. Daugherty testified that

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 13 of 15
       Guffey was able to understand and retain what he was being told. Even though

       Adderall might contribute to impulsive behavior, Dr. Daugherty explained that

       it did not cause Guffey to be unaware of his conduct. If Guffey’s belligerent

       behavior was solely the result of the Adderall overdose, Dr. Daugherty stated

       that he would have expected to see Guffey acting irrationally while his family

       was visiting shortly before the altercation, but he did not.


[25]   As to the character of the offender, we recognize that Guffey has a relatively

       mild criminal record. In 1993, he was convicted of battery resulting in bodily

       injury as a Class A misdemeanor, and then in 2010, he was charged with a

       Class D felony for intimidation but ultimately pled guilty a Class B

       misdemeanor for disorderly conduct. Although his record consists only of two

       misdemeanor convictions, it is significant that the offenses are similar to those

       in the instant case because it demonstrates that Guffey did not learn from the

       consequences of his prior mistakes. Furthermore, even though there have been

       significant gaps of time between Guffey’s convictions, based on the fact that he

       acquired and consumed Adderall—a controlled substance—without a

       prescription, Guffey was not necessarily leading a law-abiding life during that

       time.


[26]   We further find that Guffey’s conduct subsequent to the altercation is indicative

       of a poor character. Guffey callously asked Chief Tucker, “[H]ow’s your eye

       now bitch, how’s that you pussy[?]” and boasted about the fact that it took

       multiple people to restrain him. (Tr. p. 277). As Chief Tucker testified during

       the sentencing, “an individual who viciously attacks a police officer exhibits a

       Court of Appeals of Indiana | Memorandum Decision | 70A01-1409-CR-410 | May 13, 2015   Page 14 of 15
       direct intent to attack peace and tranquility and his actions degrade the order

       valued by our greater society.” (Tr. p. 393). Accordingly, we find that Guffey’s

       sentence is appropriate based on the nature of the offense and his character.


                                               CONCLUSION

[27]   Based on the foregoing, we conclude that the trial court acted within its

       discretion in declining to find Guffey’s mental health to be a mitigating

       circumstance. We further conclude that Guffey’s sentence is not inappropriate

       in light of the nature of the offense and his character.


[28]   Affirmed.


[29]   Bailey, J. and Barnes, J. concur




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