MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Sep 05 2019, 10:13 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
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Percy Scott,                                             September 5, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-196
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David Kiely, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         82C01-1712-F3-7696



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-196 | September 5, 2019                 Page 1 of 5
[1]   Percy Scott appeals the sentence imposed by the trial court after he was

      convicted of Level 3 Felony Rape,1 arguing that the sentence is inappropriate in

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


                                                         Facts
[2]   On December 12, 2017, at 3:12 AM, police were dispatched to an Evansville

      residence in response to a call about a “sensitive incident.” Appellant’s App.

      Vol. II p. 30.2 Upon arrival at the residence, police found T.H., an adult

      female, sitting on a couch inside the home. T.H. wore a shirt but no pants or

      underwear, and her face was swollen and covered in fresh bruises and scratches.

      T.H. did not know anyone who lived at the residence, and told police she was

      there because she had fled Scott’s home seeking help.


[3]   T.H. reported to police that earlier that evening, she had gone to see Scott at his

      nearby apartment and that he had raped her and held her against her will for

      three hours. T.H. showed the officers the house from which she had fled.

      Officers approached the home and were met at the back door by Scott, who had

      blood on his clothes and a swollen bottom lip. Scott was arrested and T.H. was

      transported to the hospital for treatment of her injuries and for a sexual assault




      1
          Ind. Code § 35-42-4-1(a)(1).
      2
       Because no facts regarding the underlying crime were recounted at the sentencing hearing and the transcript
      of the factual basis established at the guilty plea hearing is not included in the record on appeal, we join both
      parties by relying on the facts provided in the probable cause affidavit.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-196 | September 5, 2019                     Page 2 of 5
      examination. The hospital revealed bruising on her cervix in addition to the

      visible external bruises and scratches.


[4]   At the hospital, T.H. told officers that Scott had invited T.H. over to his

      apartment. They both drank several alcoholic beverages, after which Scott

      began to make sexual advances on T.H. When T.H. resisted his advances,

      Scott became extremely angry and aggressive and hit her with his fists, causing

      T.H. to lose consciousness. When she awoke, she was lying on her back in

      Scott’s living room, unclothed from the waist down, and Scott was performing

      oral sex on her. She once again tried to resist Scott, who held her down while

      hitting her in the face and head with his fists. T.H. stated that she believed

      Scott was going to kill her, so she bit his lower lip in the hope of leaving some

      evidence of his attack. As soon as she could, T.H. escaped by telling Scott she

      needed to use the restroom and running out the back door, leaving her clothing

      and belongings behind. She knocked on doors of nearby houses until someone

      let her in and let her call the police.


[5]   On December 14, 2017, the State charged Scott with Level 3 felony rape, Level

      3 felony criminal confinement, and Level 5 felony battery. On January 7, 2019,

      Scott pleaded guilty to rape, and the State dismissed the other charges. The

      trial court sentenced Scott to nine years imprisonment. Scott now appeals.


                                   Discussion and Decision
[6]   Scott’s sole argument on appeal is that the sentence is inappropriate in light of

      the nature of the offense and his character.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-196 | September 5, 2019   Page 3 of 5
[7]    Indiana Appellate Rule 7(B) provides that this Court may revise a statutorily

       authorized sentence “if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In conducting this review, “substantial

       deference” must be given to the trial court’s decision, “since the ‘principal role

       of [our] review is to attempt to leaven the outliers,’ and not to achieve a

       perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[8]    For Level 3 felony rape, Scott faced a term of three to sixteen years, with an

       advisory sentence of nine years. Ind. Code § 35-50-2-5. The trial court imposed

       the advisory nine-year sentence.


[9]    Scott provides no argument for revision based on the nature of the offense and

       relies entirely on his character to support his claim that his sentence is

       inappropriate. According to the probable cause affidavit, the offense was brutal

       and violent, to the point of T.H. fearing for her life. Scott also left T.H. covered

       in visible, external injuries as well as bruises to her cervix.


[10]   With respect to Scott’s character, we note that he has an extensive criminal

       history, including charges of domestic battery and possession of illicit

       substances and convictions for larceny, operating a vehicle without a license,

       and intimidation. See Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-196 | September 5, 2019   Page 4 of 5
       2007) (holding that we may consider a defendant’s history of arrests as a

       reflection of his character).


[11]   Scott argues that his lack of prior felony convictions or convictions for similar,

       related offenses demonstrates his good character. However, the trial court

       noted that his history primarily involved controlled substances and driving

       offenses when it imposed the advisory term. Further, at his sentencing hearing,

       Scott showed a complete lack of remorse and respect for authority. He told the

       judge that he was “not going to take no f*cking nine years” and to “[k]iss my

       ass on that.” Tr. p. 10. While Scott’s character may not be the worst of the

       worst, nothing in the record persuades us that the advisory term was

       inappropriate.


[12]   We do not find the sentence imposed by the trial court to be inappropriate in

       light of the nature of the offense and Scott’s character.


[13]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-196 | September 5, 2019   Page 5 of 5
