MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any
                                                                 Jan 15 2020, 10:04 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyrone Williams,                                         January 15, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2047
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant Hawkins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G05-1706-F3-22918



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020          Page 1 of 10
[1]   Tyrone Williams appeals his sentence for three counts of rape as level 3 felonies

      and asserts his sentence is inappropriate. We affirm.


                                      Facts and Procedural History

[2]   On June 13, 2017, K.H., who had just graduated from high school, woke up, let

      her dog out, brought her dog back in, and then went back outside again and the

      door locked behind her. K.H. did not have her phone with her, remembered

      seeing someone sitting in the driveway at a house across the street, and knocked

      on the door of that house. Williams, who was born in 1976, answered the door,

      and K.H. asked if she could borrow a phone. He said that she could but that it

      had a cord and she needed to come inside.


[3]   K.H. entered the house, and Williams gave her a phone without a cord. K.H.’s

      mind went blank, and she could not remember any of her family’s phone

      numbers. She told Williams who was standing behind her that she could not

      remember anybody’s numbers and heard the door close and lock. She then felt

      something sharp and cold against her back, and Williams said it was a knife.

      Williams told her to go down the hallway to a bedroom, and K.H. complied.


[4]   Williams then told her to remove her clothes, and she told him no. He became

      angry and yelled at her to remove her clothes, and she did so. He then told her

      to lay on her stomach on the bed, and she told him no and that she just wanted

      to go home. He told her again to get on the bed, and she could still feel the

      knife on her back. She got on the bed, and he climbed on top of her. He told

      her to face the television which was playing pornography and told her to watch.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 2 of 10
      He told her to spread her legs, and she complied while still feeling the knife on

      her back. His knees were on the backs of her legs which caused her pain. He

      inserted his penis into her vagina, and she cried, told him no multiple times,

      and told him to stop.


[5]   Williams told K.H. to perform oral sex on him, and she told him no and

      continued to cry. He became loud and aggressive and still had the knife. He

      removed a picture from a shelf, told K.H. it was a picture of his daughter, and

      told her that he wanted her to look at it while she put her mouth on his penis,

      and K.H. complied.


[6]   At some point, Williams entered the living room and told her to do so as well.

      He sat on the couch and told her to get on her knees in front of him and

      continue oral sex. K.H. told him no and that she just wanted to go home and

      continued crying. He repeated himself, and she complied. She vomited on his

      lap and the couch, and he laughed and used his penis to rub the vomit on her

      face. He then placed his penis in her vagina.


[7]   At some point, Williams made K.H. enter the kitchen where he made grilled

      cheese sandwiches. He made K.H. return to the living room and told her to

      eat. After he ate, he made K.H. perform oral sex and inserted his penis into her

      vagina. When he inserted his finger in her anus, K.H. told him “no, that it

      hurt,” and he said, “but you’ll like it.” Transcript Volume II at 38. Williams

      then tried to insert his penis into her anus. Williams had the knife the entire

      time. He told K.H. to dress, and she put on her pants and shirt but forgot her


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 3 of 10
      bra and underwear. He handed her his phone number and opened the door,

      and K.H. left.


[8]   K.H. went home and tried a sliding glass door to her mother’s room which they

      did not usually use, realized it was unlocked, entered her home, and called the

      police. Lawrence Police Sergeant Gabriel Slaybaugh responded to the call and

      found K.H. was “kind of, hysterical, crying, scared.” Id. at 65. She was

      transported by ambulance to the hospital where she underwent a sexual assault

      examination. Nakia Bowens, a sexual assault nurse examiner, examined K.H.

      and determined that she had redness at her scalp line, a bruise on her left arm,

      injuries to the backs and sides of her legs, redness on her knees, petechiae and

      redness in her mouth and back of her throat, and genital and anal injuries.


[9]   On June 20, 2017, the State charged Williams with three counts of rape as level

      3 felonies. On October 2, 2017, Williams’s counsel filed a motion for

      appointment of medical experts to report on Williams’s competence to stand

      trial and sanity at the time of the offense. On October 3, 2017, the court

      appointed Drs. Don Olive and George Parker to examine Williams. On

      November 9, 2017, Dr. Olive filed a report indicating that Williams denied any

      history of mental disease, defect, or treatment. He concluded that Williams

      possessed sufficient present ability to consult with his attorney and was

      competent to stand trial. He also concluded that, with regard to Williams’s

      mental state at the time of the offense he saw no evidence of mental disease or

      defect that militated against his capacity to appreciate the wrongfulness of his

      conduct. In December 2017, Dr. Parker submitted a report indicating that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 4 of 10
       Williams likely met criteria for a diagnosis of schizophrenia and concluding

       that he was capable of understanding the legal proceedings against him, capable

       of assisting counsel, and “did not have a mental disease, as defined in Indiana

       statute, and did appreciate the wrongfulness of his actions, at the time of the

       alleged offenses.” Appellant’s Appendix Volume II at 76.


[10]   On May 9, 2018, the court entered an order appointing Dr. Olive to examine

       Williams. On June 12, 2018, Dr. Olive filed a report indicating that he

       attempted to re-evaluate Williams at the jail and chose to terminate the

       interview after Williams became highly agitated and hostile. He stated that a

       review of the jail record indicated that Williams had his most recent

       antipsychotic injection on August 31, 2017, and had consistently refused his

       antipsychotic injection based upon his ongoing denial of his schizophrenia. He

       concluded that Williams was incompetent to consult with his attorney. On July

       27, 2018, the court entered a Commitment Order to the Indiana Department of

       Health which found that Williams did not have sufficient mental

       comprehension to aid his attorney in his defense and that he should undergo

       evaluation and treatment. In a letter dated December 28, 2018, Interim

       Superintendent Greg Grosteron informed the trial court that a report filed by

       Dr. Douglas Morris indicated that Williams had attained the ability to

       understand the proceedings and assist in the preparation of his defense.


[11]   On July 25, 2019, the court held a bench trial. The State presented the

       testimony of K.H., Sergeant Slaybaugh, and Nurse Bowens. After the State

       rested, Williams testified that he was forty-two years old, unemployed, lived

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 5 of 10
       with his mother, and supported himself with social security. He stated that he

       let K.H. in to use the phone, he closed the door but did not lock it, they sat on

       the couch, he asked her if she wanted to have sex, and she said no. He testified

       that he asked K.H. if she wanted to go to his room and she went with him and

       sat on his bed. He testified that K.H. went home and then returned fifteen

       minutes later and told him she wanted him to “put some bruises on her.”

       Transcript Volume II at 119. He stated: “And I said that I don’t do nothing like

       – she said her mother does it – does it any old way. And I said I don’t do

       nothing like that, but we was going to have – I guess she wanted to have sex; so

       that was cool with me.” Id.            He indicated that they engaged in consensual sex

       and denied pulling a knife. He testified that K.H. made herself throw up in the

       living room. He stated that he spoke with the police when they arrived and

       gave them his clothing and some knives. On cross-examination, he indicated

       that she threw up on him and, when asked if he “made her keep going,” he

       answered: “I just didn’t care. I didn’t care.” Id. at 127. The court found

       Williams guilty as charged.


[12]   On August 1, 2019, Williams’s defense filed a sentencing memorandum

       asserting that Williams had been diagnosed with schizophrenia, schizoaffective

       disorder, and substance abuse disorders. 1 It also alleged that Williams was

       severely mentally ill at the time of the offense, that the crime was the result of



       1
        The sentencing memorandum was submitted by “Aftan Archer-Cox MSW, LCSW” and “Brandon
       Hartsock, MSW Intern” of the Marion County Public Defender Agency. Appellant’s Appendix Volume II at
       122.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020        Page 6 of 10
       circumstances unlikely to recur, and that he would likely respond affirmatively

       to short-term imprisonment. At the sentencing hearing, neither party presented

       testimony. Williams stated: “I’d just like to say that I’m innocent and that you

       give me the best possible sentence and the lenient sentence, for someone.” Id.

       at 142. The prosecutor asked for consecutive sentences of nine years on each

       count for an aggregate sentence of twenty-seven years. Williams’s counsel

       asked for an advisory sentence of nine years with credit for time served and the

       remainder to be served on community corrections and home detention and then

       suspended time with probation. He asserted: “We believe that continued

       mental health treatment, compliance with medication, and any counseling that

       the court believes is appropriate . . . .” Id. at 148-149. The presentence

       investigation report (“PSI”) stated that Williams rated his mental health as

       excellent, but it also observed that he stated he was diagnosed with

       schizophrenia at the age of eighteen and was receiving medication at the time of

       his arrest.


[13]   The court found “the statement that he had a knife, which made the victim

       more compliant, the victim’s young age and the injuries she suffered,” as

       aggravating factors. Id. at 149. The court found the fact that he had no recent

       criminal history and his mental illness as mitigating factors but stated that “[t]he

       fact that he denies the mental illness and sometimes refused treatment for it

       kind of cut into the mental illness.” Id. The court sentenced him to concurrent

       terms of fifteen years on each count with nine years executed in the Department

       of Correction and six years in community corrections.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 7 of 10
                                                    Discussion

[14]   Williams states that no words can depreciate the gravity of this offense or the

       physical and emotional suffering endured by the victim, but asserts that it was

       less than the worst of the worst. He argues his sentence is inappropriate based

       upon his long history of mental illness and his bizarre behavior during the

       commission of the offense, which was indicative of his illness. The State argues

       that Williams’s sentence is not inappropriate. It asserts that he took advantage

       of K.H. in her time of need, raped her multiple times, held her against her will

       for hours, has a criminal history, and failed to acknowledge any mental illness

       in the court proceedings.


[15]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006). Ind. Code § 35-50-2-5 provides that a

       person who commits a level 3 felony shall be imprisoned for a fixed term of

       between three and sixteen years with the advisory sentence being nine years.


[16]   Our review of the nature of the offense reveals that K.H. thought she had been

       locked out of her residence and went to Williams’s home to use the phone, and

       Williams told her she needed to go inside because his phone had a cord. After

       K.H. entered Williams’s home and realized the phone did not have a cord,

       Williams locked the door, held something sharp and cold against her back, told
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 8 of 10
       her it was a knife, and inserted his penis into her vagina multiple times despite

       K.H. crying and repeatedly requesting that he stop. He also forced her to

       engage in oral sex multiple times and inserted his finger into her anus.


[17]   Our review of the character of the offender reveals that Williams had juvenile

       adjudications for theft as a class D felony and robbery as a class C felony if

       committed by an adult. As an adult, Williams has convictions for criminal

       recklessness as a class D felony in 1996 and criminal trespass as a class A

       misdemeanor in 1995. The PSI indicates that Williams’s probation was

       revoked in 1997.


[18]   The PSI indicates that Williams dropped out of high school due to “getting

       tired of school,” was never enrolled in special education classes, and was an

       “above average” student prior to leaving. Appellant’s Appendix Volume II at

       111. It indicates that he was unemployed, had never held formal employment,

       and was supported by his mother and social security benefits. Under the

       heading “Mental Health,” it states:


               Tyrone Williams rated his mental health as excellent. However,
               he stated he was diagnosed with Schizophrenia at the age of 18.
               When asked the reason for the diagnosis, the defendant related
               the “Adult Courts” had him evaluated in October of 1997 after
               he got into a fight with his mother. He reported he was sent to
               Logansport State Hospital where doctors eventually placed him
               on Zyprexa. Mr. Williams advised he was later released, but
               continued to take the medication daily until his 30s.

               Mr. Williams reported that following his release from
               Logansport, he continued with treatment through Aspire. He
               related doctors at the agency took him off the Zyprexa in his 30s
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 9 of 10
               and replaced it with shots of Haldol every five weeks. The
               defendant informed he was still receiving the medication at the
               time of his arrest for the instant offense.

               Finally, the defendant reported he was recently diagnosed with
               having Bi-Polar Disorder while at the Marion County Jail. He
               stated the doctor placed him on “Avega” (“Lithium”), which he
               takes on a daily basis.

               Regarding his mental health, Mr. Williams related he did not feel
               that he suffered from Schizophrenia or Bi-Polar Disorder. He
               denied suffering from hallucinations or delusions and reported
               having no homicidal and/or suicidal ideations. Mr. Williams
               added there is no family history of mental illness and indicated
               he has never participated in anger control, domestic violence or
               parenting classes.


       Id. at 112. The PSI indicates that Williams reported he first smoked marijuana

       at the age of fifteen, it became a daily habit by the age of sixteen that included

       two to three “blunts a day,” he last smoked marijuana two to three years

       earlier, and it was never a problem. Id. The PSI also states that his overall risk

       assessment score using the Indiana risk assessment system places him in the

       moderate risk category to reoffend.


[19]   After due consideration, we conclude that Williams has not sustained his

       burden of establishing that his sentence is inappropriate.


[20]   For the foregoing reasons, we affirm.


[21]   Affirmed.


       Baker, J., and Riley, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2047 | January 15, 2020   Page 10 of 10
