      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                  Jun 09 2015, 9:02 am
      Memorandum Decision shall not be 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
      Tia R. Brewer                                            Gregory F. Zoeller
      Grant County Public Defender                             Attorney General of Indiana
      Marion, Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kevin Axton,                                             June 9, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               27A04-1404-CR-184
              v.
                                                               Appeal from the Grant Superior
      State of Indiana,                                        Court
                                                               The Honorable Dana J. Kenworthy,
      Appellee-Plaintiff,                                      Judge
                                                               Cause No. 27D02-1307-FB-58




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Kevin Axton was convicted of criminal confinement, a

      Class C felony, for which he was sentenced to eight years; domestic battery, a

      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015      Page 1 of 9
      Class A misdemeanor, for which he was sentenced to one year; intimidation, a

      Class D felony, for which he was sentenced to three years; and criminal deviate

      conduct, a Class B felony, for which he was sentenced to twenty years. The

      trial court ordered his sentences to be served concurrently, for a total sentence

      of twenty years, all executed. Axton appeals his sentence, raising two issues for

      our review: 1) whether the trial court abused its discretion in sentencing him,

      and 2) whether his sentence is inappropriate in light of the nature of his offenses

      and his character. Concluding the trial court did not abuse its discretion and

      Axton’s sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   Axton and his wife, Tammy, returned to the home they sometimes shared early

      in the evening of July 15, 2013, after smoking crack cocaine at a friend’s house.

      Axton had also been drinking alcohol throughout the day and continued to do

      so once they arrived home. Axton became angry when he dialed a contact

      from Tammy’s cellphone, thinking he would be calling their friend so he could

      ask him to bring more beer to the house. Instead, he reached a different man

      with whom he then accused Tammy of having an affair. Axton spent the next

      several hours slapping, hitting, and punching Tammy about the head, arms,

      legs, and torso. He broke her nose and left bruises all over her body. He made

      her remove her clothes so she could not run away, and he forced her to perform

      oral sex on him. When that was ultimately unsuccessful because Tammy could

      not breathe through her broken nose, he pushed her down onto the bed and


      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 2 of 9
      engaged in sexual intercourse with her. He repeatedly refused to allow her to

      leave the house for fear she would call the police. When Axton passed out the

      next morning, Tammy dressed and fled the house, seeking help at a nearby

      credit union. Employees there noted her swollen and bloody face, bruises on

      her body, and her panicked demeanor. Police were called, and Tammy was

      taken to the hospital by ambulance.


[3]   The State charged Axton with criminal confinement, domestic battery,

      intimidation, and criminal deviate conduct. A jury found him guilty of all

      charges. At the sentencing hearing, the trial court stated:

              . . . I am going to find the following aggravating factors. First of all,
              the criminal history as set forth on pages four through eight of the
              Presentence Investigation Report, that includes O.W.I. from 1985,
              Possession of Marijuana from 1994, Operating with a BAC of .10 or
              More in 1996, Domestic Battery, 2006, Intimidation, 2006, Resisting
              Law Enforcement, 2006, Public Intox., 2007, Intimidation, 2007,
              Invasion of Privacy, 2008, Trespass and Criminal Mischief, 2008,
              Intimidation and Trespass, 2007, Battery, 2010, Invasion of Privacy,
              2010, Trespass and Resisting Law Enforcement, 2011, Resisting Law
              Enforcement and Public Intox., 2011, Public Intox., 2012, followed by
              this case in 2013. I also note multiple probation violations throughout
              that time period. The criminal history is [sic] this case is an extremely
              strong aggravating factor. I also find as an aggravator that the harm or
              injury was greater than the elements necessary to prove the offense.
              Miss Axton did suffer a broken nose which is greater than the elements
              necessary to prove the Domestic Battery charge. That, I will find is a
              moderate aggravating factor. In this case I find no mitigating factors.
              The aggravators do outweigh the mitigators. I also note that the
              character of this defendant indicates that he is not a good candidate for
              probation based upon his disregard of the court’s No-Contact Order.
              His disregard for the rules of probation in the past, and his failure to
              follow through treatment programs which were offer[ed] to him in the
              past.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 3 of 9
      Transcript at 307-09. The trial court sentenced him to eight years executed for

      criminal confinement, one year executed for domestic battery, three years

      executed for intimidation, and twenty years executed for criminal deviate

      conduct, all to be served concurrently for an aggregate sentence of twenty years.

      Axton now appeals his sentence.



                                 Discussion and Decision
                                     I. Abuse of Discretion
[4]   “[S]entencing decisions rest within the sound discretion of the trial court and

      are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

      abuse of discretion occurs if the decision is clearly against the logic and effect of

      the facts and circumstances. Id. The trial court may abuse its discretion in

      sentencing by:

              (1) failing to enter a sentencing statement, (2) entering a sentencing
              statement that explains reasons for imposing the sentence but the
              record does not support the reasons, (3) the sentencing statement omits
              reasons that are clearly supported by the record and advanced for
              consideration, or (4) the reasons given in the sentencing statement are
              improper as a matter of law.
      Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868

      N.E.2d at 490-91).


[5]   Axton contends the trial court abused its discretion in sentencing him by

      finding aggravating circumstances which were not supported by the record and


      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 4 of 9
      were improper as a matter of law. Specifically, the trial court found as an

      aggravating circumstance the fact that the harm caused to Tammy was greater

      than that necessary to prove the elements of domestic battery. Axton

      challenges this as unsupported by the record. Further, the trial court stated that

      “[b]ased upon his character, attitudes, and history . . . [Axton] is not a good

      candidate for probation.” Appendix of Appellant’s Brief at 12;1 see also Tr. at

      308-09. Axton claims the trial court was using this as an aggravating

      circumstance, which would be improper as a matter of law because the fact that

      a person is likely to respond affirmatively to probation is a statutory mitigating

      circumstance. See Ind. Code § 35-38-1-7.1(b)(7). He also claims this is

      improper because it is a reflection of his criminal history, which was separately

      identified as an aggravating circumstance.


[6]   Our supreme court has held that the nature and circumstances of a crime can be

      a valid aggravating factor. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001).

      However, a trial court must give more than a generalized reference to the

      nature and circumstances of the crime. See Smith v. State, 872 N.E.2d 169, 178-

      79 (Ind. Ct. App. 2007), trans. denied. The trial court may assign aggravating

      weight to the harm, injury, loss, or damage suffered by the victim if such harm

      was significant and greater than the elements necessary to prove the

      commission of the offense. Filice v. State, 886 N.E.2d 24, 39 (Ind. Ct. App.



      1
        Appellant’s Appendix includes several pages from the transcript. For several years now, Indiana Appellate
      Rule 50(F) has provided that no portion of the transcript should be reproduced in the appendix because the
      transcript is transmitted to the court on appeal by the trial court clerk.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015                Page 5 of 9
      2008), trans. denied. The trial court here specifically referenced the harm caused

      to Tammy during the domestic battery, which requires “bodily injury.” Ind.

      Code § 35-42-2-1.3(a). “‘Bodily injury’ means any impairment of physical

      condition, including physical pain.” Ind. Code § 35-31.5-2-29. Here, Tammy

      testified that she experienced not just physical pain, but also a broken nose,

      sprained ankle, and bruising all over her body. And not only did Axton inflict

      bodily injury in excess of pain, but he did so over a prolonged period. Tammy

      testified that they arrived home at approximately four o’clock in the evening,

      and she was not able to leave the house until seven o’clock the next morning,

      with Axton slapping and hitting her much of that time. We hold this

      aggravating circumstance is clearly supported by the record.


[7]   As for the trial court’s statement that Axton was not a good candidate for

      probation, we do not believe the trial court improperly “misused” a statutory

      mitigating circumstance as an aggravating circumstance, as Axton asserts. See

      Brief of Appellant at 7. The trial court had already announced the aggravating

      and mitigating circumstances and its weighing of them before it made this

      statement. The trial court’s reference to whether probation was a viable option

      was merely an explanation as to why the trial court was ordering the sentence

      to be executed in its entirety. The trial court did not use this as an aggravating

      circumstance at all, let alone improperly.


[8]   In sum, the trial court did not abuse its discretion in its identification of

      aggravating circumstances when sentencing Axton.



      Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 6 of 9
                                  II. Inappropriate Sentence
[9]    Axton also contends his sentence is inappropriate in light of the nature of his

       offenses and his character. Indiana Appellate Rule 7(B) gives appellate courts

       the authority to revise a defendant’s sentence 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 principal

       role of Appellate Rule 7(B) review is to attempt to leaven the outliers. Chambers

       v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). “[T]he question . . . is not whether

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

       sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

       App. 2008) (emphasis in original). “[W]hether we regard a sentence as

       appropriate at the end of the day turns on our 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). The appellant has the burden of persuading us that his

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[10]   With regard to the “nature of the offense” portion of our review, the advisory

       sentence is the starting point that the legislature has selected as an appropriate

       sentence for the crime committed. Gervasio v. State, 874 N.E.2d 1003, 1005

       (Ind. Ct. App. 2007). Because Axton’s sentences were ordered to be served

       concurrently and because we consider the aggregate sentence, see Gleason v.

       State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012), we focus on the sentence for

       criminal deviate conduct, the lengthiest sentence imposed. The statutory

       Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 7 of 9
       sentencing range for a Class B felony is six to twenty years with an advisory

       sentence of ten years. Ind. Code § 35-50-2-5(a). The trial court imposed the

       maximum sentence of twenty years. As noted above, Axton continuously

       abused his victim over a period exceeding twelve hours, committing multiple

       offenses against her and causing serious injury. We cannot say his twenty-year

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


[11]   The “character of the offender” analysis involves evaluation of the relevant

       aggravating and mitigating circumstances and other general sentencing

       considerations. Clara v. State, 899 N.E.2d 733, 736 (Ind. Ct. App. 2009).

       Although this is Axton’s first felony conviction, he has a lengthy criminal

       record, including former domestic battery and intimidation convictions. Many

       of his offenses are related to his use and abuse of alcohol, which also played a

       role in these offenses, yet Axton has never completed substance abuse treatment

       and reported to the probation department that he did not think he had a

       problem with alcohol. He has also never been committed to the Department of

       Correction, instead being placed in county jails or on probation. But he has

       violated probation on numerous occasions and failed to follow through on

       rehabilitation programs offered to him. In light of Axton’s criminal history—

       both the number of his offenses and his response to sentencing leniency—and

       his alcohol abuse, we cannot say his twenty-year executed sentence is

       inappropriate in light of the nature of his character.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 8 of 9
                                               Conclusion
[12]   The trial court did not abuse its discretion in sentencing Axton, and he has not

       persuaded us that his twenty-year sentence is inappropriate in light of the nature

       of his offenses or his character. We therefore affirm Axton’s sentence.


[13]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1404-CR-184| June 9, 2015   Page 9 of 9
