                                                                             Nov 05 2015, 8:20 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Donald C. Swanson, Jr.                                    Gregory F. Zoeller
      Deputy Public Defender                                    Attorney General of Indiana
      Fort Wayne, Indiana                                       Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tommy Orlando Townsend, Sr.,                              November 5, 2015
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1503-CR-90
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable Frances C. Gull,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                02D06-1404-FA-23



      Crone, Judge.




                                              Case Summary
[1]   Tommy Orlando Townsend, Sr., appeals his convictions and fifty-five-year

      aggregate sentence for class A felony burglary and class B felony criminal

      Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015                Page 1 of 19
      confinement. He contends that his convictions require reversal because the

      jury’s rejection of his insanity defense is contrary to law. He also contends that

      the trial court erred in giving the State’s tendered instruction on demeanor

      evidence and refusing his own instruction on that issue. In addition, he argues

      that the trial court abused its discretion in sentencing him by failing to find that

      temporary mental illness was a mitigating circumstance. He also asserts that

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

      character.


[2]   We conclude that the jury properly rejected Townsend’s insanity defense

      because there was evidence that his mental state at the time of the offenses was

      due to voluntary intoxication rather than a result of mental disease or defect.

      We also conclude that any error in instructing the jury was harmless. With

      regard to sentencing, we conclude that the trial court did not abuse its discretion

      by declining to find that temporary mental illness was a mitigating factor.

      Finally, we conclude that Townsend has failed to carry his burden to show that

      his sentence is inappropriate. Therefore, we affirm.


                                  Facts and Procedural History
[3]   The facts most favorable to the verdicts show that in January 2014, Townsend

      and Zaida Ortiz separated after nineteen years of marriage. The following

      month, Ortiz filed for divorce. Townsend remained living at their family home,

      while Ortiz moved into an apartment, both in Fort Wayne. Townsend and

      Ortiz have two sons, who were eight and twenty-three years old at the time.


      Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 2 of 19
      Due to the couple’s estrangement, Townsend became depressed and drank

      regularly.


[4]   In April 2014, on the Friday before Easter, the children went to stay with

      Townsend. That weekend Townsend was “ill.” Tr. at 45-46. On Saturday

      night, he took 50 milligrams of Flexeril, a prescription muscle relaxant that he

      received from Ortiz, and one or two capsules of Dimetapp, an over-the-counter

      cold medicine. He also took another pill, which was unidentified.


[5]   At approximately 9:30 a.m. on Easter, Ortiz finished work and returned to her

      apartment. She became alarmed because some of her things were strewn all

      over her bed, which was not how she had left it. She found Townsend hiding in

      her bathroom. She was not expecting him to be in her apartment. She had not

      given him a key to the apartment or permission for him to be there. Ortiz asked

      Townsend what he was doing there. He told her that they needed to talk. She

      told him to leave. He said that he wanted to talk about the divorce. He wanted

      Ortiz to call her attorney and call off the divorce. Ortiz persuaded Townsend to

      exit the apartment by telling him that she would be willing to talk to him

      outside, but after he went out she remained inside. They argued at the front

      door. She told him, “You’re obviously not sick.” Id. at 48. She did not think

      that Townsend appeared to have a cold or the flu. She started to close the door.

      Townsend blocked it with his foot, but she managed to close it.


[6]   Ortiz called her elder son to see whether he had given Townsend a key to her

      apartment and left a voicemail message. Then she heard noises at the front


      Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 3 of 19
      door and was afraid that Townsend was trying to get back in. She went to the

      front door. Townsend flung the door open and punched her in the head. Her

      phone flew across the room. Townsend came at her with a knife, and she

      started screaming. Townsend told her that she should have called the attorney

      and stopped the divorce as he had told her to do. He grabbed Ortiz and

      slammed her to the ground. She felt him hit her three times in the back, and “it

      hurt so bad [she] could barely breathe.” Id. at 50. Townsend flipped her over.

      He got on top of her, held her down, and stabbed her in the chest. At that point

      she realized that he had stabbed her in the back. Townsend put his hand over

      her mouth and nose and said, “[D]ie bitch die.” Id. Ortiz could not breathe.


[7]   Townsend got up and said, “[O]h my God. What did I do? What did I do?

      [… ] you need to help me. You need to help me.” Id. at 51. Ortiz was still

      lying on the floor. She told Townsend to call 911. He pretended to call the

      EMS. He went into the kitchen. Ortiz tried to stand up and walk to the front

      door, but she fell down. Townsend picked her up and put her back where she

      had been. She saw blood on the carpet and watched as Townsend tried to clean

      it with bleach. She wondered why it was taking so long for the EMS to arrive.

      She asked Townsend if he had really called the EMS. He had not, but he told

      her that he had. Id. at 52.


[8]   Townsend offered to take Ortiz to the hospital, and she agreed. He took her

      outside and put her in the front passenger seat of his Yukon. She looked for

      someone to help her, but saw no one. Townsend drove away. He told Ortiz

      that he did not have enough gas. She gave him her debit card, and he stopped

      Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 4 of 19
       for gas. Townsend then drove Ortiz to their family home and parked the

       Yukon in the garage so that the passenger door was so close to the wall that

       Ortiz could not open it. Townsend went inside the house. Ortiz was afraid that

       he was going to kiss their younger son goodbye and then kill her and kill

       himself. She saw her cell phone, grabbed it, and called 911. She told the

       operator that she had been stabbed, needed help, and was in a tan Yukon. That

       was all she was able to say before Townsend came back and grabbed the phone.


[9]    Townsend drove away. Ortiz began to go in and out of consciousness. She

       thought that Townsend appeared to be driving toward Decatur, Indiana. At

       one point, Townsend stopped the car so that she could urinate. Townsend then

       dressed the knife wounds in her back with bandages that were in a first-aid kit.

       He did not have enough bandages for the chest wound, so Ortiz held a towel

       over it.


[10]   They drove on. Ortiz started to suspect that Townsend was driving to Piqua,

       Ohio, about a two hours away, because he had family there. Townsend made

       at least four more stops: when he asked for directions; when Ortiz lost control

       of her bowel; when Townsend got her a drink; and when she woke up

       vomiting. Ortiz, a registered nurse, believed that she was going into shock. She

       kept asking Townsend to take her to the hospital, but he did not.


[11]   Ortiz asked Townsend to take her to his uncle, Richard King, who lived in

       Piqua. Townsend drove by King’s house several times. At around 5:00 p.m.,

       King had arrived home, and he saw Townsend pull up. King asked Townsend


       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 5 of 19
       what he was doing there, but Townsend drove away. Townsend immediately

       returned, and King asked what was going on. King realized that Ortiz was in

       the Yukon with Townsend. King went over to the passenger side to talk to

       Ortiz and saw a little bit of blood. King asked Townsend what was going on,

       but Townsend was unresponsive. Townsend drove away again but returned.

       King again asked Townsend what was going on, and Townsend still did not

       respond. King looked at Ortiz, who shook her head. King told Townsend to

       let Ortiz out of the car so that King could take her to the hospital. Townsend

       eventually agreed, and King rushed her to the hospital. Ortiz had to be

       transferred to a hospital with a trauma center due to her critical condition.

       Ortiz had three stab wounds to her back and one to her chest. She also had a

       cut on her hand from trying to defend herself.


[12]   Townsend did not follow King to the hospital. Police found Townsend around

       5:47 p.m. He had crashed his Yukon and was unresponsive. The Yukon was

       still running, so the officer opened the passenger door to turn the vehicle off and

       a box of Sleepinal pills fell out. Id. at 131.


[13]   The State charged Townsend with class A felony burglary, class B felony

       aggravated battery, class B felony criminal confinement, and class C felony

       intimidation. Townsend filed a notice of intent to offer an insanity defense.

       The trial court appointed Drs. Rebecca Mueller and Stephen Ross to provide

       expert testimony on whether Townsend was legally insane when he committed

       the offenses. Both interviewed Townsend in July 2014.



       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 6 of 19
[14]   A two-day jury trial was held. Dr. Mueller testified that when she interviewed

       Townsend he was experiencing some short-term memory loss. Townsend told

       her that the night before he committed the offenses he took a Flexeril pill that

       he got from Ortiz, one or two Dimetapp capsules, and “another pill that he

       described as not being Flexeril.” Id. at 225. Dr. Mueller testified that she “later

       found out that he had taken more Flexeril than he realized. He had taken

       probably 50 mg. of Flexeril the night before.” Id. The therapeutic dose of

       Flexeril is 15 to 30 milligrams in a 24-hour period. Id. at 227. Dr. Mueller

       concluded that Townsend was legally insane at the time of the offenses. Id. at

       216. Specifically, she concluded that he suffered anticholinergic intoxication

       with secondary psychosis as a result of “[v]arying kinds of medications.” Id. at

       216, 233-34. Dr. Mueller explained that psychosis generally means “a break

       from reality” where a person does not “perceive things as they are truly

       happening.” Id. at 220. She testified that any psychosis that Townsend had

       was a result of the medication and that all the information available to her

       showed that he took the medicines voluntarily. Id. at 234-35. She further

       testified that Townsend’s depression from his divorce probably contributed to

       “some poor judgment about taking too much medication.” Id. at 274. She also

       testified that Townsend did not have a history of psychosis and that he had no

       memory of the events after he took the medication until he woke up two days

       later chained to a hospital bed.


[15]   Dr. Ross testified that Townsend was psychotic at the time of the offense,

       related to the “voluntary consumption of medications.” Id. at 282. He also

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 7 of 19
       testified that Townsend was unable to appreciate the wrongfulness of his

       conduct at the time of the offense. Id. at 303.


[16]   The State requested a jury instruction informing the jury that it could consider

       Townsend’s demeanor before, during, and after the crime to determine whether

       he was legally insane because his demeanor might be more indicative of his

       mental health than mental exams conducted weeks or months later (“the State’s

       Demeanor Instruction”). Appellant’s App. at 71 (State’s Proposed Instruction

       No. 8); Tr. at 195-96. Townsend objected that the State’s Demeanor

       Instruction was already covered by other instructions, invaded the province of

       the jury, was unsupported by the evidence, and was confusing. The trial court

       gave the State’s Demeanor Instruction over Townsend’s objection.


[17]   Townsend also requested a jury instruction on demeanor evidence

       (“Townsend’s Demeanor Instruction”), which stated that demeanor evidence

       before and after the crime was of more limited probative value than demeanor

       evidence during the crime. Appellant’s App. at 84 (Defendant’s Proposed

       Instruction No. 6). The State conceded that it was an accurate statement of the

       law and did not object to it, but the trial court refused it on the grounds that it

       was already covered by other instructions. Tr. at 201-02.


[18]   The trial court also instructed the jury that temporary mental incapacity

       produced by voluntary intoxication is not an excuse for a crime, and that such

       temporary mental incapacity is not considered a mental disease or defect under

       Indiana’s insanity statute. Appellant’s App. at 47. During deliberations, the


       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 8 of 19
       jury sent the foreman out with a note asking whether voluntary intoxication

       was the same as voluntary consumption. Tr. at 367. The trial court directed

       the jury to rely on the evidence and the court’s instructions.


[19]   The jury found Townsend guilty as charged. The trial court entered judgment

       of conviction for class A felony burglary and class B felony criminal

       confinement and vacated the remaining counts to avoid double jeopardy. 1 The

       trial court sentenced Townsend to consecutive terms of forty years for burglary

       and fifteen years for criminal confinement, for an aggregate term of fifty-five

       years. Townsend appeals.


                                         Discussion and Decision

           Section 1 - The jury’s decision to reject Townsend’s insanity
                         defense was not contrary to law.
[20]   The insanity defense is an affirmative defense for which the defendant carries

       the burden of proof by a preponderance of the evidence. Ind. Code § 35-41-4-

       1(b). A defendant may be found not responsible by reason of insanity if the

       defendant establishes both that (1) he suffers from a mental disease or defect and

       (2) the mental disease or defect rendered the defendant unable to appreciate the

       wrongfulness of his conduct at the time of the offense. Ind. Code § 35-41-3-




       1
         When judgment of conviction is not entered on the jury’s verdict, it is unnecessary to vacate the verdict.
       “[A] claim of multiple punishment for the same offense requires multiple judgments of conviction, entered by
       the trial court.” Carter v. State, 750 N.E.2d 778, 781 n.8 (Ind. 2001). In fact, “more harm than good may
       result if a trial court ‘vacates’ a jury verdict not reduced to judgment. If a conviction for a greater offense is
       reversed … a conviction for the lesser offense may remain valid.” Id. at 781 n.9.

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015                            Page 9 of 19
       6(a); Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010). “‘[M]ental disease or

       defect’ means a severely abnormal mental condition that grossly and

       demonstrably impairs a person’s perception, but the term does not include an

       abnormality manifested only by repeated unlawful or antisocial conduct.” Ind.

       Code § 35-41-3-6(b).


[21]   “‘A determination of insanity is a question for the trier of fact.’” Berry v. State,

       969 N.E.2d 35, 38 (Ind. 2012) (quoting Gambill v. State, 675 N.E.2d 668, 672

       (Ind. 1996)). A defendant who claims that his insanity defense should have

       prevailed at trial appeals from a negative judgment, and “we will reverse only

       when the evidence is without conflict and leads only to the conclusion that the

       defendant was insane when the crime was committed.” Thompson v. State, 804

       N.E.2d 1146, 1149 (Ind. 2004) (emphasis added). We will neither reweigh the

       evidence nor assess witness credibility but will consider “only the evidence most

       favorable to the judgment and the reasonable and logical inferences drawn

       therefrom.” Id.


[22]   As noted above, Townsend had the burden of proving both that he had a

       mental disease or defect and that as a result he did not appreciate the

       wrongfulness of his conduct at the time of the offenses. As for mental disease

       or defect, the State argues that the jury properly rejected Townsend’s insanity

       defense because “any mental defect was caused by his voluntary intoxication.”

       Appellee’s Br. at 23. “‘Temporary mental incapacity, when induced by

       voluntary intoxication, normally furnishes no legal excuse for, or defense to, a

       crime.’” Berry, 969 N.E.2d at 38 (quoting Jackson v. State, 273 Ind. 49, 52, 402

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 10 of 19
       N.E.2d 947, 949 (1980)). Indiana Code Section 35-41-2-5 provides,

       “Intoxication is not a defense in a prosecution for an offense and may not be

       taken into consideration in determining the existence of a mental state that is an

       element of the offense unless the defendant meets the requirements of IC 35-41-

       3-5.” Indiana Code Section 35-41-3-5 provides, to establish involuntary

       intoxication, a defendant must establish that “the intoxication resulted from the

       introduction of a substance into his body: (1) without his consent; or (2) when

       he did not know that the substance might cause intoxication.” “Involuntary

       intoxication is a defense to the crime charged if, as a result of the intoxication,

       the defendant was unable to appreciate the wrongfulness of the conduct at the

       time of the offense.” Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000).

       Involuntary intoxication is a defense that negates culpability for the committed

       offenses. Id.


[23]   Townsend counters that he never claimed that he was involuntarily intoxicated

       but that he was legally insane. Nevertheless, he bore the burden of proving that

       he was legally insane and therefore bore the burden of proving that he had a

       mental disease or defect. Mental disease or defect, for purposes of the insanity

       statute, does not include temporary mental incapacity that results from

       voluntary intoxication. 2 Berry, 969 N.E.2d at 42. We observe that the jury was




       2
         However, “Indiana recognizes situations where ‘the ingestion of intoxicants, though voluntary, has been
       abused to the point that it has produced mental disease.’” Berry, 969 N.E.2d at 42 (quoting Jackson, 273 Ind.
       at 52, 402 N.E.2d at 949). For example, “settled” or “fixed” insanity resulting from chronic and severe
       alcohol abuse is a type of mental disease as defined by Indiana Code Section 35-41-3-6(b). Id.

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015                       Page 11 of 19
       instructed on voluntary intoxication as follows: “Temporary mental incapacity

       produced by voluntary intoxication is not an excuse for a crime. In other

       words, that sort of temporary mental incapacity is not considered a mental

       disease or defect under Indiana’s insanity statute.” Appellant’s App. at 47.

       “The intersection of voluntary intoxication and insanity is murky at best.”

       Berry, 969 N.E.2d at 42. “Ultimately, it is for the trier of fact ‘to determine

       whether the accused’s conduct was the result of a diseased mind–regardless of

       the source of the disease–or was the result of voluntary intoxication.’” Id. at 43

       (quoting Jackson, 273 Ind. at 52, 402 N.E.2d at 949). To succeed on appeal,

       Townsend must show that the evidence is without conflict and leads only to the

       conclusion that his mental state at the time he committed the offenses was not

       the result of voluntary intoxication.


[24]   Here, Dr. Mueller concluded that Townsend was legally insane at the time that

       he committed the offenses. Tr. at 216. Specifically, she concluded that he

       suffered anticholinergic intoxication with secondary psychosis as a result of

       medications, which he voluntarily took. Id. at 216, 234-35. Dr. Ross

       concluded that Townsend was psychotic at the time of his crimes related to

       voluntary consumption of medications. Id. at 282. Thus, while both experts

       agreed that Townsend was suffering from psychosis at the time he committed

       the offenses, they also both agreed that his psychosis was caused by his

       voluntary consumption of medications. There is no question that Townsend

       knowingly and voluntarily took at least two different medications, Flexeril and

       Dimetapp. Significantly, the Flexeril was a prescription drug for which he did


       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 12 of 19
       not have a prescription, and he mixed it with at least one other drug. Although

       Ortiz testified that she learned that Townsend was “ill” on Friday night when

       the children went to go stay with him, id. at 45-46, there is no evidence as to

       why Townsend was taking a muscle relaxant. Presumably, he took the

       Dimetapp for cold and/or flu symptoms, but a trier of fact could reasonably

       question why he would take a muscle relaxant for a cold. From the evidence

       presented, the jury reasonably could have concluded that Townsend’s mental

       state at the time of the offenses was a result of his voluntary intoxication.

       Accordingly, we conclude that the evidence as to Townsend’s insanity was not

       without conflict, and we find no grounds for reversal on this basis.


           Section 2 - Any error in instructing the jury was harmless.
[25]   Townsend also argues that the trial court erred in giving the State’s Demeanor

       Instruction without also giving Townsend’s Demeanor Instruction. Our

       standard of review is well settled.

               When reviewing a trial court’s decision to give or refuse to give a
               party’s tendered instruction, we consider (1) whether the
               tendered instruction correctly states the law; (2) whether there
               was evidence presented at trial to support giving the instruction;
               and, (3) whether the substance of the instruction was covered by
               other instructions that were given. The trial court has broad
               discretion as to how to instruct the jury, and we generally review
               that discretion only for abuse. Where, however, … the
               appellant’s challenge to the instruction is based on the first of our
               three considerations–an argument that the instruction was an
               incorrect statement of the law–we review the trial court’s
               interpretation of that law de novo.


       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 13 of 19
       Kane v. State, 976 N.E.2d 1228, 1230-31 (Ind. 2012) (citations and quotation

       marks omitted).


[26]   “A defendant is entitled to a reversal if he affirmatively demonstrates that the

       instructional error prejudiced his substantial rights.” Vaughn v. State, 13 N.E.3d

       873, 884 (Ind. Ct. App. 2014), trans. denied. “Instructional error is harmless

       ‘where a conviction is clearly sustained by the evidence and the jury could not

       properly have found otherwise’ but ‘will result in reversal when the reviewing

       court cannot say with complete confidence that a reasonable jury would have

       rendered a guilty verdict had the instruction not been given.’” Inman v. State, 4

       N.E.3d 190, 200 (Ind. 2014) (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind.

       2001)).


[27]   The State’s Demeanor Instruction read,

               A finding that a defendant was sane at the time of the crime may
               be sustained by probative demeanor evidence from which a
               conflicting inference of sanity may be drawn. Demeanor is
               useful because a defendant’s behavior before, during, and after a
               crime may be more indicative of actual mental health at the time
               of the crime than mental exams conducted weeks or months
               later.


       Appellant’s App. at 48. Townsend’s Demeanor Instruction read, “Demeanor

       evidence before and after a crime is of more limited value than the accused[’s]

       demeanor during the crime. The insanity defense concerns the accused’s

       mental state at the time of the crime. Id. at 84.



       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 14 of 19
[28]   Both the State’s and Townsend’s Demeanor Instructions are taken from

       Galloway, 938 N.E.2d at 712, 174, and address evidence pertaining to whether

       Townsend appreciated the wrongfulness of his actions at the time of the

       offenses. We have already concluded that there was sufficient evidence upon

       which the jury could reasonably find that, as a result of Townsend’s voluntary

       intoxication, he was not suffering from a mental disease or defect. Given the

       substantial evidence of Townsend’s voluntary intoxication, we can say with

       complete confidence that a reasonable jury would have rendered a guilty verdict

       had the trial court agreed to give both instructions or refused to give either

       instruction. Therefore, assuming, without deciding, that the trial court erred in

       giving the State’s Demeanor Instruction and refusing Townsend’s Demeanor

       Instruction, that error did not prejudice Townsend’s substantial rights.

       Accordingly, we conclude that any possible error was harmless and does not

       require reversal.


         Section 3 – The trial court did not abuse its discretion by not
               finding that temporary insanity was a mitigating
                                 circumstance.
[29]   At sentencing, the trial court found that Townsend’s criminal history, failed

       efforts at rehabilitation, and the nature and circumstances of the crimes were

       aggravating circumstances and that his clinical depression, long-term

       employment, and remorse were mitigating factors. The trial court found that

       the aggravators outweighed the mitigators and sentenced Townsend to




       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 15 of 19
       consecutive terms of forty years for burglary and fifteen years for criminal

       confinement, for an aggregate term of fifty-five years.


[30]   Townsend asserts that the trial court should have found that his temporary

       insanity was a mitigating factor. We observe that

               the determination of mitigating circumstances is within the
               discretion of the trial court. The trial court is not obligated to
               accept the defendant’s argument as to what constitutes a
               mitigating factor, and a trial court is not required to give the
               same weight to proffered mitigating factors as does a defendant.
               A trial court does not err in failing to find a mitigating factor
               where that claim is highly disputable in nature, weight, or
               significance. An allegation that a trial court abused its discretion
               by failing to identify or find a mitigating factor requires the
               defendant on appeal to establish that the mitigating evidence is
               significant and clearly supported by the record.


       Healey v. State, 969 N.E.2d 607, 616 (Ind. Ct. App. 2012) (citations omitted),

       trans. denied.


[31]   Mental illness is not necessarily a significant mitigating factor; “rather, [it] is a

       mitigating factor to be used in certain circumstances, such as when the evidence

       demonstrates longstanding mental health issues or when the jury finds that a

       defendant is mentally ill.” Ousley v. State, 807 N.E.2d 758, 762 (Ind. Ct. App.

       2004) (referring to Crawford v. State, 770 N.E.2d 775, 782-83 (Ind. 2002);

       Gambill, 675 N.E.2d at 668; Biehl v. State, 738 N.E.2d 337, 340 (Ind. Ct. App.

       2000), trans. denied). Here, the trial court found that Townsend’s depression

       was a mitigating factor, but Townsend challenges its refusal to give mitigating


       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 16 of 19
       weight to the temporary psychosis caused by the medications he took. We note

       that the jury rejected his insanity defense, and it also declined to find him guilty

       but mentally ill. Further, there is no evidence that Townsend’s psychosis was a

       symptom of a longstanding mental illness. We conclude that the trial court did

       not abuse its discretion by declining to find that temporary insanity was a

       mitigating factor.


         Section 4 – Townsend has failed to carry his burden to show
                      that his sentence is inappropriate.
[32]   Finally, Townsend contends that his fifty-five-year sentence is inappropriate

       under Indiana Appellate Rule 7(B), which provides, “The Court may revise a

       sentence authorized by statute 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.” The nature of the offense is

       found in the details and circumstances of the commission of the offense. Croy v.

       State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). The character of the offender

       shown by the offender’s life and conduct. Id. When reviewing a sentence, our

       principal role is to leaven the outliers rather than necessarily achieve what is

       perceived as the correct result. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). “We do not look to determine if the sentence was appropriate; instead

       we look to make sure the sentence was not inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012). Townsend bears the burden to show that his

       sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007),

       clarified on reh’g, 875 N.E.2d 218.

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 17 of 19
[33]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Townsend was

       convicted of class A felony burglary and class B felony criminal confinement.

       The sentencing range for a class A felony is between twenty and fifty years,

       with an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The

       sentencing range for a class B felony is between six and twenty years, with an

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

       sentenced Townsend to consecutive terms of forty years for the class A felony

       and fifteen years for the class B felony.


[34]   Here, Townsend entered Ortiz’s apartment without her permission, and was

       lying in wait for her. Then, he refused to leave when she asked him to. When

       she refused to do as he asked, he stabbed her four times. He also put his hand

       over her mouth and told her, “[D]ie bitch die.” Tr. at 50. He pretended to call

       for help and claimed that he had called for help even though he had not. He

       did not take her to get medical attention. Instead, he kept her in his car for

       some seven hours, letting her suffer and preventing her from receiving medical

       care. These circumstances are more egregious than what is necessary to

       commit class A felony burglary and class B felony criminal confinement. 3




       3
         Class A felony burglary is defined as breaking and entering the building or structure of another person with
       intent to commit a felony in it and it results in bodily injury or serious bodily injury. Ind. Code § 35-43-2-1.
       Class B felony criminal confinement is defined as knowingly or intentionally confining another person
       without the person’s consent while armed with a deadly weapon. Ind. Code § 35-42-3-3.

       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015                         Page 18 of 19
[35]   As for Townsend’s character, his long-term employment and financial support

       of his family are favorable. He was convicted of battery, criminal recklessness,

       and criminal mischief over twenty years ago. Nevertheless, that battery

       conviction, like this one, involved an incident of domestic violence. We

       conclude that Townsend has failed to carry his burden to show that his fifty-

       five-year sentence is inappropriate based on the nature of the offenses and his

       character.


[36]   Based on the foregoing, we affirm Townsend’s convictions and sentence.


[37]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1503-CR-90 | November 5, 2015   Page 19 of 19
