MEMORANDUM DECISION                                          FILED
                                                        Aug 16 2016, 9:18 am

Pursuant to Ind. Appellate Rule 65(D),                       CLERK
                                                         Indiana Supreme Court
this Memorandum Decision shall not be                       Court of Appeals
                                                              and Tax Court
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
Michael Fisher                                           Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Davis,                                             August 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1601-CR-43
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable William J. Nelson,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Shannon Logsdon,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G18-1507-F6-23520



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016    Page 1 of 10
                                        Statement of the Case
[1]   Brian Davis (“Davis”) appeals his sentence, following a bench trial, for Level 6

      felony strangulation,1 Level 6 felony criminal confinement,2 and Class A

      misdemeanor battery resulting in bodily injury.3 Davis argues that his aggregate

      two and one-half year sentence is inappropriate and requests this Court to

      review the length of his sentence and his placement at the Indiana Department

      of Correction. Concluding that Davis has failed to show that his sentence is

      inappropriate, we affirm his sentence.


[2]   We affirm.


                                                      Issue
                                 Whether Davis’s sentence is inappropriate.


                                                      Facts
[3]   Around 3:00 a.m. on July 5, 2015, Davis, who was on probation in two

      separate causes,4 approached Carrie Grant (“Grant”) near the corner of 10th

      Street and Emerson Avenue in Indianapolis. Davis knew Grant from a




      1
          IND. CODE § 35-42-2-9(b).
      2
          I.C. § 35-42-3-3(a).
      3
          I.C. § 35-42-2-1.
      4
       Davis was on probation in cause number 49G18-1004-FD-026770 from convictions for Class D felony theft
      and Class D felony check fraud and in cause number 49G18-1007-FC-054629 from a Class C felony forgery
      conviction. Based on Davis’s convictions in this case, the trial court revoked his probation in those two
      probation causes. Davis does not appeal the revocation of his probation in those two causes.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016          Page 2 of 10
      previous encounter, and he asked her to go to a motel with him. The pair then

      drove separately to a Knights Inn motel near 21st Street and Shadeland Avenue.


[4]   Once in their motel room, Davis and Grant smoked some crack cocaine, which

      Davis had brought with him. At some point, Grant went into the bathroom,

      began talking on the phone, and returned naked from the waist down. After

      Davis took “two hits” from the crack pipe, he made “a funny noise[,]” and then

      “grabbed [Grant] and . . . slammed [her] on the bed[.]” (Tr. 9, 10). Davis

      “scream[ed]” at Grant, “threw [her] back on the bed[,]” and “started beating . .

      . [her] head on[]to the bed[.]” (Tr. 11). They then fell to the floor, and Davis

      got on top of Grant, who was lying face down on her stomach. Davis grabbed

      Grant’s neck with his arm and elbow and “kept doing it harder and harder” to

      the point that Grant could not breathe. (Tr. 16).


[5]   When Davis lessened his grip, Grant ran to the door. As she reached for the

      door handle, Davis quickly ran over and grabbed Grant to stop her from exiting

      the room. Grant clung onto the handle in an attempt to escape while Davis

      tried to pull her away from the door. Grant then broke the window next to the

      door and screamed for help. Despite Grant’s pleas for Davis to stop, he did not

      let her go. Instead, he told her to put her pants on and then invited her to “go

      do another hit[.]” (Tr. 18). Subsequently, the “door opened somehow[,]” and

      Grant managed to get her arm into the opening of the doorway. (Tr. 19).

      Davis then repeatedly slammed her arm in the door to prevent her from leaving.

      Eventually, Grant broke free from Davis and ran to another motel room, and

      the man in that room called the police. When the police officers arrived on the

      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 3 of 10
      scene, they found Grant bloody, bruised, and wrapped in a comforter. The

      officers also spoke to Davis, who had blood on his shirt.


[6]   Thereafter, the State charged Davis with: Count I, Level 6 felony strangulation;

      Count II, Level 6 felony criminal confinement; Count III, Class A

      misdemeanor battery resulting in bodily injury; and Count IV, Class A

      misdemeanor battery. The trial court held a bench trial on December 3, 2015.

      Davis testified in his own defense and denied beating or strangling Grant.

      Davis admitted that he had tried to stop Grant from exiting the room, but he

      testified that he did so because he thought Grant was setting him up to be

      robbed and because he did not want her to leave the room without her pants.

      The trial court found Davis guilty as charged.


[7]   The trial court held a joint hearing for Davis’s sentencing and his two probation

      violations. During the hearing, Davis argued that the trial court should

      consider as a mitigator the fact that Grant “had a part in what happened”

      because she “participated” in smoking the crack cocaine. (Tr. 96). In regard to

      his sentence, Davis asked that the trial court sentence him to one year executed

      in community corrections and one and one-half years suspended to probation if

      it was going to sentence him to “a full sentence of two and a half years[.]” (Tr.

      97). Davis also requested that he be placed on community corrections for his

      two probation violation cases.


[8]   The State, highlighting that Davis was on probation in two cases when he

      committed the current offenses, argued that there was not “any reason for the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 4 of 10
       Court to impose anything other than the maximum sentence . . . [of] two and a

       half years under this case or the full back up time” for his two probation causes.

       (Tr. 100). In response to Davis’s request to be placed on community

       corrections, the State argued that the trial court should not place Davis on

       community corrections for his probation violation cases and that, for the

       current offenses, it would “ask for at least one year executed in the Department

       of Correction” with the remaining time on community corrections. (Tr. 103)

       (emphasis added).


[9]    When addressing Davis’s proffered mitigating circumstance regarding Grant’s

       alleged participation by using drugs, the trial court stated that it found it to be

       only “somewhat of a mitigator” and that it was “not going to put much weight

       on” it. (Tr. 113). The trial court acknowledged the “the things that occurred in

       this case, while they may have started based in the fact that you were both

       engaged in illegal activity, certainly were not necessitated by those illegal

       activities.” (Tr. 113).


[10]   The trial court found Davis’s criminal history and the fact that he was on

       probation to be aggravating circumstances. The trial court noted that Davis’s

       criminal history, which included fourteen felony convictions, eight

       misdemeanor convictions, and thirty arrests was the “most significant

       aggravator.” (Tr. 114). It declined to place Davis on community corrections,

       noting that his criminal history was “essentially overpowering.” (Tr. 120). The

       trial court also noted that during Davis’s previous incarcerations, he had

       accumulated twenty-six conduct reports.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 5 of 10
[11]   Before imposing its sentence, the trial court vacated Davis’s Count IV

       conviction and merged it with his Count III conviction. The trial court

       imposed an aggregate executed sentence of two and one-half (2½) years to be

       served in the Department of Correction. Specifically, the trial court imposed

       concurrent sentences of two and one-half (2½) years for Davis’s Level 6 felony

       strangulation and Level 6 felony criminal confinement convictions and one (1)

       year for his Class A misdemeanor battery resulting in bodily injury conviction. 5


                                                       Decision
[12]   Davis argues that his aggregate two and one-half year sentence for his three

       convictions is inappropriate. He challenges both the length of his sentence and

       his placement at the Department of Correction.


[13]   This Court may revise a sentence if it is inappropriate in light of the nature of

       the offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principle role of a

       Rule 7(B) review “should attempt to leaven the outliers, and identify some

       guiding principle for trial courts and those charged with improvement of the




       5
         As for Davis’s two probation violation causes, the trial court ordered Davis to serve two years of his
       previously four-year suspended sentence in one cause and ordered him to serve three and one-half years of
       his previously suspended sentence in the other cause. The trial court also ordered that Davis’s aggregate two
       and one-half year sentence in this cause was to be served consecutively to the sentences in these two
       probation violation causes. See IND. CODE § 35-50-1-2(e)(1) (providing that “[i]f, after being arrested for one
       (1) crime, a person commits another crime . . . before the date the person is discharged from probation . . . the
       terms of imprisonment for the crimes shall be served consecutively”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016                 Page 6 of 10
       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is

       inappropriate ultimately turns on the “culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case.” Id. at 1224.


[14]   When determining whether a sentence is inappropriate, we acknowledge that

       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.

       Here, the trial court found Davis guilty of Level 6 felony strangulation, Level 6

       felony criminal confinement, and Class A misdemeanor battery causing bodily

       injury. The sentencing range for a Level 6 felony is between six (6) months and

       two and one-half (2½) years, with an advisory sentence of one (1) year. I.C. §

       35-50-2-7(b). A Class A misdemeanor carries a maximum sentence of one (1)

       year. I.C. § 35-50-3-2.


[15]   The nature of Davis’s offenses involved an attack on Grant after he took her to

       a motel and smoked crack cocaine with her. The record reveals that Davis

       slammed Grant’s head on the bed and squeezed her neck with his arm to the

       point where she could not breathe. Additionally, when Grant tried to escape

       from the motel room, Davis prevented her from leaving and repeatedly

       slammed her arm in the door. Grant, who was half-naked at the time, was

       eventually able to run out of the room.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 7 of 10
[16]   Davis attempts to downplay the nature of his offenses by arguing that the

       “incident was the product of crack cocaine usage in which the victim willingly

       participated.” (Davis’s Br. 12). We disagree with Davis’s attempt to shift the

       blame for his criminal offenses onto Grant. While Grant may have voluntarily

       used crack cocaine along with Davis, she did not voluntarily participate in

       Davis’s acts of strangulation, confinement, and battery. Furthermore, the trial

       court addressed this argument at sentencing and stated that it did not find

       Grant’s participation to be a significant mitigating circumstance. The trial court

       acknowledged the “the things that occurred in this case, while they may have

       started based in the fact that you were both engaged in illegal activity, certainly

       were not necessitated by those illegal activities.” (Tr. 113).


[17]   As to Davis’s character, the record reveals that Davis, who was fifty-five years

       old at the time of his offenses, has an extensive criminal history, including

       fourteen felony convictions, eight misdemeanor convictions, and thirty arrests.

       Indeed, the trial court found that his criminal history was the “most significant

       aggravator.” (Tr. 114). Additionally, Davis committed the current offenses

       while on probation in two separate causes, and he has violated his probation in

       the past. Furthermore, as the trial court noted during sentencing, Davis had

       accumulated twenty-six conduct reports during his previous incarcerations.

       Thus, Davis’s character reveals a disregard for the law and the authority of the

       courts.


[18]   Lastly, we address Davis’s challenge to his placement at the Department of

       Correction. Davis contends that his aggregate two and one-half year sentence

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 8 of 10
       was inappropriate because the trial court ordered that the entire sentence be

       served at the Department of Correction. He asserts that his placement at the

       Department of Correction was “unduly harsh[,]” especially where the

       prosecutor did not recommend that the entire sentence be served there.

       (Davis’s Br. 14). He suggests that the trial court should have considered other

       sentencing options, such as community corrections.


[19]   In regard to a defendant’s challenge to his placement, our Indiana Supreme

       Court has explained that “[t]he place [where] a sentence is to be served is an

       appropriate focus for application of our review and revise authority.” Biddinger

       v. State, 868 N.E.2d 407, 414 (Ind. 2007). Nevertheless, “it will be quite

       difficult for a defendant to prevail on a claim that the placement of his sentence

       is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).

       “This is because the question under Appellate Rule 7(B) is not whether another

       sentence is more appropriate; rather, the question is whether the sentence

       imposed is inappropriate.” Id. at 268 (emphasis in original). “[A] defendant is

       not entitled to serve his sentence in a community corrections program[.]”

       Million v. State, 646 N.E.2d 998, 1001-02 (Ind. Ct. App. 1995).


[20]   Here, Davis relies on the prosecutor’s statement, made during the sentencing

       hearing, that the State was “ask[ing] for at least one year executed in the

       Department of Correction” with the remaining time on community corrections

       for Davis’s current offenses. (Tr. 103) (emphasis added). The prosecutor’s

       statement, however, was made in response to Davis’s argument that the trial

       court sentence him to one year executed in community corrections and one and

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 9 of 10
       one-half years suspended to probation for his current offenses and that he be

       placed on community corrections for his two probation violation cases. During

       sentencing, the trial court declined Davis’s request to be placed on community

       corrections, noting that his criminal history was “essentially overpowering.”

       (Tr. 120). Davis has not shown that his placement in the Department of

       Correction, instead of on community corrections, is inappropriate. Davis has

       an extensive criminal history and committed these offenses while on probation

       in two other causes. Because Davis has not persuaded us that his aggregate two

       and one-half year sentence for his three offenses is inappropriate, we affirm the

       trial court’s sentence.


[21]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-43| August 16, 2016   Page 10 of 10
