MEMORANDUM DECISION                                                         FILED
                                                                       Mar 16 2017, 9:12 am
Pursuant to Ind. Appellate Rule 65(D), this
                                                                            CLERK
Memorandum Decision shall not be regarded as                            Indiana Supreme Court
                                                                           Court of Appeals
precedent or cited before any court except for the                           and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
G. Allen Lidy                                            Curtis T. Hill, Jr.
Mooresville, Indiana                                     Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Harness,                                        March 16, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A01-1512-CR-2231
        v.                                               Appeal from the Morgan Superior
                                                         Court.
                                                         The Honorable Jane Spencer
State of Indiana,                                        Craney, Judge.
Appellee-Plaintiff.                                      Cause No. 55D03-1402-FA-274




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017           Page 1 of 8
                                          Statement of the Case
[1]   Jonathan Harness appeals from his guilty plea to two counts of Class C felony
                                                 1
      battery with serious bodily injury, contending that his sentence is inappropriate

      and the trial court abused its discretion in imposing certain conditions of

      probation. We affirm.


                                                     Issues
[2]   Harness raises the following restated issues for our review:

                 I. Whether his sentence is inappropriate; and
                 II. Whether the trial court abused its discretion when it required
                 him to submit to polygraph examinations as a condition of his
                 probation.


                                   Facts and Procedural History
[3]   Harness had a tumultuous and abusive childhood. He married, and he and his

      wife had one biological son. At some point in their marriage, the couple

      decided to adopt additional children.


[4]   J.H. and A.H. are sisters who were in foster care for approximately three years.

      Harness and his wife adopted J.H. and A.H., as well as their siblings. Prior to

      being adopted, both J.H. and A.H. had been abused sexually, physically, and




      1
          Ind. Code § 35-42-2-1(a)(3) (2012)


      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 2 of 8
      mentally. A.H. struggled with behavioral and mental problems that required

      therapy sessions.


[5]   The charging information filed against Harness listed nineteen criminal

      offenses, allegedly perpetrated upon A.H. and J.H. On July 15, 2015, the

      parties entered into a plea agreement, and Harness agreed to plead guilty to two

      counts of Class C felony battery resulting in serious bodily injury involving

      A.H. As part of the plea agreement, the State agreed to dismiss all other

      counts, to not file additional counts involving Harness’s adopted daughters, and

      to allow Harness’s wife to plead to an amended charge of Class B misdemeanor

      failure to report child abuse.


[6]   The facts surrounding the two counts of Class C felony battery are that on one

      occasion, Harness struck A.H. in the forehead and pushed her into a wall,

      causing her to lose consciousness. On another occasion, Harness threw A.H.

      into a wall that contained a protruding nail. The incidents left A.H. with

      permanent scars.


[7]   Following a hearing, the trial court sentenced Harness to concurrent sentences

      of six years’ imprisonment, with four years executed and two years suspended

      to probation. Harness appeals.




      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 3 of 8
                                   Discussion and Decision
                                    I. Inappropriateness of Sentence

[8]   Harness argues that his six-year sentence, with four years executed and two

      years suspended to probation, is inappropriate in light of the nature of the

      offense and his character. Harness argues his sentence is inappropriate because

      of the mitigating factors found by the trial court, his low risk to reoffend, and

      his eligibility to serve his sentence on home detention. He seeks resentencing to

      a total of six years, with two years executed and four years suspended to

      probation.


[9]   We 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). Whether

      the reviewing court regards a sentence as inappropriate turns on a “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.” Cardwell v.

      State, 895 N.E.2d 1219, 1224 (Ind. 2008). This Court “must give ‘deference to a

      trial court’s sentencing decision, both because Rule 7(B) requires us to give due

      consideration to that decision and because we understand and recognize the

      unique perspective a trial court brings to its sentencing decisions.’” Gil v. State,

      988 N.E.2d 1231, 1237 (Ind. Ct. App. 2013) (quoting Stewart v. State, 866

      N.E.2d 858, 866 (Ind. Ct. App. 2007)). Harness bears the burden of persuading

      us that his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.

      2007).



      Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 4 of 8
[10]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. See Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Harness pleaded guilty to two counts of Class C felony battery. The sentencing

       range for a Class C felony was “a fixed term of between two (2) and eight (8)

       years, with the advisory sentence being four (4) years.” Ind. Code § 35-50-2-

       6(a) (2005). The trial court found as an aggravator that Harness was in a

       position of care, custody, and control of his daughter, A.H. The court imposed

       concurrent six-year sentences for both of Harness’s convictions, which is above

       the advisory sentence but below the maximum advised by the General

       Assembly.


[11]   Details of the nature of Harness’s offenses are limited to the sparse facts

       presented during his sentencing hearing, and the contents of his Appendix.

       Nevertheless, his first offense involved striking his daughter and pushing her

       into a wall, causing her to lose consciousness and resulting in a bump on the

       back of her head and a permanent scar on her forehead. His second offense

       involved throwing his daughter into a wall with a protruding nail, which caused

       a laceration to her side and a permanent scar. A.H. was a minor and Harness

       was aware that she had previously been subjected to physical abuse. Based on

       the foregoing, we conclude that the nature of Harness’s offenses does not render

       his sentence inappropriate.


[12]   Our review of the character of the offender reveals that Harness had no criminal

       history and stated at the sentencing hearing:

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 5 of 8
               . . . I wholeheartedly apologize to [A.H. for the battery
               incidents.] I have apologized to [A.H.] multiple times, and she
               knows that. I was wrong. My use of force was inexcusable, and
               I am truly sorry. And I do truly accept the full responsibility for
               the entire incident. I did not do a safe hold [on A.H.] that day.
               And I did lose my temper.


       Tr. pp. 70-71. Harness pleaded guilty, and the State dismissed seventeen of

       nineteen charges. The trial court identified as mitigating factors the sexual,

       mental, and physical abuse Harness suffered as a child, his health problems,

       that he had no criminal history, and that incarceration would cause a hardship

       on his wife and J.H. However, the court found as aggravating factors that the

       circumstances under which the offenses occurred could recur due to the abuse

       that Harness suffered as a child, and that A.H. was in Harness’s trust, care,

       custody, and control. The court ultimately determined that the aggravating

       factors outweighed the mitigating factors.


[13]   On two occasions, Harness pushed and threw his daughter into a wall, one time

       with such force that she lost consciousness. After both batteries, A.H. sustained

       injuries that resulted in permanent scars. One scar was caused by A.H.’s body

       hitting a nail that was protruding from the wall. Given the extreme

       consequences of Harness’s batteries on A.H. (i.e., the permanent scars), and

       after due consideration and under the circumstances, we cannot say that

       Harness’s six-year sentence, with four years executed and two years suspended

       to probation, is inappropriate in light of the nature of the offenses and his

       character.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 6 of 8
                       II. Polygraph Examination as Condition of Probation

[14]   Harness next argues that the trial court abused its discretion when it required as

       a condition of probation that he submit to polygraph examinations. “A trial

       court has broad discretion to impose conditions of probation which will

       produce a law abiding citizen and protect the public.” Patton v. State, 580

       N.E.2d 693, 698 (Ind. Ct. App. 1991), trans. denied. In Patton, this court

       considered whether it was appropriate for a trial court to impose a condition of

       probation that required the probationer to submit to polygraph examinations

       and to stipulate to the admissibility of the results. We held that a probationer

       could not be forced to stipulate to the admissibility of such evidence, but that it

       was not improper to require the probationer to submit to polygraph

       examinations upon request “when the condition bears a reasonable relationship

       to the rehabilitative aspects of probation.” Id. at 698-99; see also Ind. Code § 35-

       38-2-2.3(a)(15) (2012) (“As a condition of probation, the court may require a

       person to . . . [s]atisfy other conditions reasonably related to the person’s

       rehabilitation.”). Such a condition is appropriate when imposed “as a

       deterrence from violating other terms of probation by instilling the fear of

       detection or where the examination provides probation officials with an

       indication of the probationer’s progress in rehabilitation.” Patton, 580 N.E.2d

       at 698.


[15]   During Harness’s sentencing, the trial court expressed great concern about the

       abuse that Harness suffered as a child. The trial court imposed the polygraph

       examination condition “because of the evidence [that was presented regarding]

       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 7 of 8
       . . . the horrific abuse and background [Harness] has.” Tr. p. 91. The court

       further stated, “I seriously considered doing the sexual offender probation

       terms, because of . . . the statistics of reoccurrence [sic] and repetition of the

       cycle . . . I changed my mind and only made the polygraph part of it.” Id. at 91-

       92. The trial court imposed the polygraph condition to serve a rehabilitative

       function and to provide probation officials with an indication of Harness’s

       progress in rehabilitation. The polygraph probation condition was not

       improper.


                                                Conclusion
[16]   For the reasons stated above, we affirm Harness’s sentence for two counts of

       battery as Class C felonies, and the polygraph examination condition of his

       probation.


[17]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1512-CR-2231 | March 16, 2017   Page 8 of 8
