MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Mar 06 2020, 9:59 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jared Michel Thomas                                      Curtis T. Hill, Jr.
JMT Law, LLC d/b/a Thomas Law                            Attorney General of Indiana
Evansville, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles E. Johnson, Jr.,                                 March 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1120
        v.                                               Appeal from the
                                                         Vanderburgh Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      David D. Kiely, Judge
                                                         Trial Court Cause No.
                                                         82C01-1804-F3-2506



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020                     Page 1 of 10
[1]   Following his convictions for sexual battery1 as a Level 6 felony and battery

      resulting in injury2 as a Level 5 felony, Charles E. Johnson, Jr. (“Johnson”) was

      sentenced to concurrent sentences of two-and-a-half years and six years,

      resulting in an aggregate sentence of six years. Contending his sentence is

      inappropriate, he now appeals.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Since 2012, Johnson and T.Z. had been in an on-and-off romantic relationship.

      On April 5, 2018, T.Z. and Johnson made plans for Johnson to pick her up and

      take her to his home. They had been in an “off” stage of their relationship, but

      T.Z. believed that she and Johnson would be discussing whether they should

      resume their relationship.


[4]   Johnson picked up T.Z. and drove her to his home. There, both went to the

      bedroom, and Johnson sat down and turned on pornography. T.Z. sat on the

      bed and attempted to fall asleep.


[5]   T.Z. fell asleep for a moment, but Johnson woke her up by tapping her on the

      shoulder and stating, “Come over here and get me hard.” Tr. Vol. 2 at 34-35.

      T.Z. told Johnson “no” and attempted to get up and grab her bag so she could




      1
          See Ind. Code § 35-42-4-8.
      2
          See Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 2 of 10
      leave. Id. at 35. Johnson struck T.Z. in the eye with his fist, fracturing her eye

      socket. Id. at 14, 35. He told T.Z. “that [she] wasn’t gonna leave. That [she]

      was gonna do what he said.” Id. at 35.


[6]   T.Z. stopped fighting back and began to remove her clothes because Johnson

      told her to do so. Johnson attempted to have intercourse with T.Z., but his

      penis was not erect, and he could not insert it. He ordered T.Z. to perform oral

      sex on him, but T.Z. could not comply because her face was too swollen from

      Johnson’s punches. Johnson then dragged T.Z. by her neck into the center of

      the room, wrapped a rag around the vacuum cleaner hose, secured the rag with

      a condom and repeatedly shoved the vacuum cleaner hose into T.Z.’s vagina.


[7]   T.Z. then attempted to leave, but Johnson grabbed her and began hitting the back of

      her head against the steps. He then took T.Z. back to the bedroom and again tried to

      have intercourse with her. He again punched her in the face and attempted to force

      a pipe into her mouth, breaking her teeth in the process. T.Z.’s face was bleeding

      profusely, and Johnson handed her a rag and told her to clean her face off with it.

      After she wiped off the blood, Johnson again attempted to force T.Z. to perform

      oral sex on him.


[8]   Several hours passed, and in the early morning hours, T.Z. told Johnson that he had

      to let her go because she had a probation appointment that morning. T.Z. drove

      herself home, and her mother and grandfather drove her to the hospital to receive

      treatment for her injuries.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 3 of 10
[9]    After T.Z. reported her assault at the hospital, Johnson gave a statement to

       Detective Stacy Spalding (“Detective Spalding”). He reported that he and T.Z. had

       a romantic and sexual relationship and that he “treat her like scum, dog shit.” Tr.

       Vol. 2 at 90. He also reported that he has told T.Z. that he will “kill [her]” and that

       “anything [he] ask[s] for [she] better always be there[.]” Id. He told Detective

       Spalding that T.Z. was “supposed to come through th[e] hallway takin’ her clothes

       off,” and “[t]here’s no such thing as she doesn’t want it.” Id. at 92. Johnson also

       told Detective Spalding that any time T.Z. came to his home, she was expected to

       have intercourse and could not change her mind because “supply and demand, cash

       and carry.” Id. at 114.


[10]   On April 9, 2018, the State charged Johnson with Level 3 felony rape, Level 3

       felony criminal confinement, Level 5 felony battery resulting in serious bodily

       injury, and Level 6 felony strangulation. Appellant’s App. Vol. II at 45-46. After a

       jury trial, Johnson was found guilty of Level 6 felony sexual battery, as a lesser

       included offense of rape, and Level 5 felony battery resulting in serious bodily

       injury. At sentencing, Johnson did not offer any mitigating circumstances for the

       trial court’s consideration, asking only that the trial court make “a minute [entry]

       regarding any DOC sentence [requesting] . . . some form of substance abuse

       treatment or evaluation as soon as he arrives.” Tr. Vol. 2 at 168. In addition to the

       executed sentence, the State requested restitution for T.Z.’s medical bills including

       $7,214 to cover the out-of-pocket portion of her medical bills for her fractured eye

       socket and the laceration in her eyebrow that Johnson had caused. Id. at 169. In

       addition, the State requested additional restitution of $5,786 to cover the expense of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 4 of 10
       fixing T.Z.’s broken teeth which T.Z. had not been able to get fixed at the time of

       sentencing because she could not afford it. Id. at 169-70.


[11]   The trial court did not address the restitution request in its sentencing order. The

       trial court stated that it found Johnson’s criminal history, which crossed state lines

       and included a federal weapons offense, to be an aggravating circumstance. Id. at

       170-71. The court sentenced Johnson to six years for his Level 5 felony conviction

       and two-and-a-half years for his Level 6 felony conviction and ordered the

       sentences to run concurrently to each other for an aggregate sentence of six years

       executed. Id. at 171. Johnson now appeals.


                                      Discussion and Decision
[12]   An appellate court may revise a statutorily authorized sentence if “after due

       consideration of the trial court’s decision,” the court finds the sentence imposed

       to be inappropriate in light of the nature of the offense and the character of the

       offender. Ind. Appellate Rule 7(B). The principal role of appellate review is to

       “leaven the outliers” and not to achieve a perceived “correct” result. Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008); Howell v. State, 97 N.E.3d 253, 271

       (Ind. Ct. App. 2018). The question on appeal is “whether the sentence imposed

       is inappropriate,” not whether a different sentence would be a better result.

       King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).


[13]   The trial court’s sentencing decision will stand “unless overcome by compelling

       evidence portraying in a positive light the nature of the offense (such as

       accompanied by restraint, regard, and lack of brutality) and the defendant’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 5 of 10
       character (such as substantial virtuous traits or persistent examples of good

       character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The burden is

       on Johnson to persuade the court that his sentence is inappropriate as to both

       the nature of his offense and his character. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006); Wheeler v. State, 95 N.E.3d 149, 160 (Ind. Ct. App. 2018).


[14]   Johnson argues that his six-year aggregate sentence is inappropriate in light of

       the nature of the offense and the character of the offender. He first asserts that

       the trial court erred in failing to find any mitigating factors, claiming that the

       trial court did not consider any mitigating factors like his prior drug habits and

       addictions. He also contends that although he had a prior criminal history, he

       should not have been sentenced to the maximum because he is not the “worst

       of the worst offenders,” especially when his criminal history shows that he has

       severe issues with narcotics. Appellant’s Br. at 11. Johnson further claims that,

       as to the nature of the offense, the injuries sustained are ones that, as shown in

       the restitution requested, can be remedied.


[15]   In determining whether a sentence is appropriate as to the nature of the offense,

       the starting point is the advisory sentence. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). Generally, the maximum sentence is given to the “worst of

       the worst” offenses. Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). For his

       Level 5 felony conviction, Johnson faced a sentencing range of one to six years

       with an advisory sentence of three years. See Ind. Code § 35-50-2-6(b). For his

       Level 6 felony conviction, Johnson faced a sentencing range of six months to

       two-and-a-half years with an advisory sentence of one year. See Ind. Code § 35-

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 6 of 10
       50-2-7(b). For his two offenses, Johnson faced a maximum aggregate sentence

       of eight-and-a-half years. The trial court gave Johnson the maximum sentence

       for each individual offense but ran the sentences concurrently for a below-the-

       maximum aggregate sentence of only six years. He was, therefore, not

       sentenced to the maximum.


[16]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). “When

       determining the appropriateness of a sentence that deviates from an advisory

       sentence, we consider whether there is anything more or less egregious about

       the offense as committed by the defendant that ‘makes it different from the

       typical offense accounted for by the legislature when it set the advisory

       sentence.’” Moyer v. State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting

       Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied. In

       the present case, the nature of Johnson’s offense was egregious. He fractured

       T.Z.’s eye socket, caused a laceration to her eyebrow, cracked four of her teeth

       in half, and repeatedly shoved a vacuum cleaner inside of her vagina. Johnson

       had carried on his relationship with T.Z. for several years during which he

       treated her like “scum, dog shit.” Tr. Vol. 2 at 90. From his perspective, once

       he has begun a sexual relationship with a woman such as T.Z., the concept of

       consent no longer existed. Johnson repeatedly attempted to force a woman to

       perform oral sex on and have intercourse with him. When she would not

       comply, he punched her in the face resulting in a fracture and permanent


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 7 of 10
       damage to her eye socket. He then penetrated T.Z.’s vagina repeatedly with a

       vacuum cleaner hose and forced a pipe between T.Z.’s teeth breaking four of

       them in half. Johnson was convicted of one count of battery resulting in serious

       bodily injury, but he caused two serious injuries: one to T.Z.’s eye socket and

       the other to her teeth. Because of these injuries, T.Z. will incur thousands in

       medical bills to get her teeth fixed. He also put T.Z. through the emotional

       trauma of having someone she loves repeatedly violate her with a foreign

       object. His sentence is not inappropriate in light of the nature of his offenses.


[17]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). Initially, Johnson argues that the

       trial court refused to consider any mitigating factors like his prior drug habits

       and addictions. However, Johnson did not argue for any mitigating

       circumstances at sentencing, and, on appeal, he has failed to provide a cogent

       argument on this issue. Lee v. State, 91 N.E.3d 978, 990-91 (Ind. Ct. App. 2017)

       (citing Ind. Appellate Rule 46(A)(8)(a)). He does not cite to any portion of the

       record, does not include the standard of review, and does not cite to any legal

       authority except for the statute listing possible mitigating circumstances.


[18]   As to his character, Johnson has a lengthy criminal history which includes

       offenses in Illinois, Kentucky, Indiana, and a federal weapons offense. He was

       on pretrial release for another felony charge in Daviess County when he

       committed the present offenses. Any criminal record reflects poorly on a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 8 of 10
       defendant’s character because it demonstrates that a defendant has not been

       deterred “even after having been subject to the police authority of the State.”

       Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005); Rutherford v. State, 866 N.E.2d

       867, 874 (Ind. Ct. App. 2007). Additionally, the record contains no expression

       of remorse from Johnson toward a woman with whom he carried on a six-year

       romantic relationship. This does not reflect positively on his character.


[19]   Johnson argues that “a review of the criminal history and information

       contained within the PSI indicates” that he is an “individual that has a severe

       issue with narcotics, has a history of abusing alcohol and drugs, and would

       benefit from treatment.” Appellant’s Br. at 11. However, at least some of these

       claims are not true. Johnson stated during his presentence investigation

       interview that he had not consumed alcohol since 2009 and had not used

       marijuana since 2001. Appellant’s Conf. App. Vol. II at 210. He also stated that

       he had not used any other drug for at least a month prior to his arrest, with his

       last use of methamphetamine occurring about one month prior, and his last use

       of synthetic cannabinoids being at least six months prior to his arrest. Id.

       Based on the evidence, Johnson’s sentence is not inappropriate in light of his

       character.


[20]   Johnson has the burden of establishing that his sentence in inappropriate in

       light of both the nature of the offenses and his character. See Childress, 848

       N.E.2d at 1080. We conclude that Johnson has not met his burden.


[21]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 9 of 10
Bailey, J., and Mathias, J., concur




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1120 | March 6, 2020   Page 10 of 10
