MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                  Mar 12 2020, 10:49 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffery Haupt                                           Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                             Attorney General of Indiana
South Bend, Indiana
                                                        Samuel J. Dayton
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Lionel Wilburn, Jr.,                                    March 12, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-43
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John M.
Appellee-Plaintiff,                                     Marnocha, Judge
                                                        Trial Court Cause No.
                                                        71D02-1801-F5-6



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020                       Page 1 of 12
                               Case Summary and Issues
[1]   Following a jury trial, Lionel Wilburn, Jr. was convicted of battery resulting in

      moderate bodily injury, a Level 6 felony. Wilburn was sentenced to thirty

      months, with six months to be served in the St. Joseph County Jail, twelve

      months to be served in St. Joseph County Community Corrections, and the

      remainder suspended to probation. Wilburn raises two issues on appeal

      concerning his sentence: 1) whether the trial court abused its discretion in

      sentencing him and 2) whether his thirty-month sentence is inappropriate in

      light of the nature of his offenses and his character. Concluding the trial court

      did not abuse its discretion and the sentence is not inappropriate, we affirm.



                            Facts and Procedural History
[2]   Wilburn and Shawna Nicodemus were involved in an on-again/off-again

      relationship for about two years but were “off again” as of the beginning of

      2018. Christopher Gerber met Nicodemus at a New Year’s Day party, and

      they began dating. Gerber spent the night at Nicodemus’ house on January 6,

      2018, and stayed throughout the next day. During the day on January 7,

      Wilburn sent a number of text messages to Nicodemus’ phone, indicating his

      awareness of and unhappiness about Gerber’s presence at her house. 1 Around




      1
       For instance, at 4:40:26 p.m. on January 7, 2018, Wilburn texted Nicodemus and asked, “Who is he[?]”
      The Exhibits, Volume 3 at 93. At 4:40:55 p.m., he texted, “Yea I’m f***ing his sh*t up[.]” Id. And at
      4:50:44 p.m., he texted, “Ok as soon as I see him I’m f***ing him [u]p[.]” Id. at 98.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020                 Page 2 of 12
      5:00 p.m. that evening, Gerber was sitting on the side of the bed in Nicodemus’

      bedroom and Nicodemus was in the attached bathroom when Wilburn came

      into the room. Wilburn began yelling at Gerber to get out and both Gerber and

      Nicodemus saw that Wilburn had a knife in his hand. Wilburn held the knife

      near Gerber’s face to scare him and then grabbed him around the neck and

      struck him multiple times with his fist until Nicodemus intervened and Gerber

      was able to get free. Gerber left the house without stopping to grab his phone

      or wallet and ran to a neighbor’s house. On the way, he noticed that three of

      the tires on his truck were slashed. Wilburn eventually admitted that he had

      slashed the tires. Gerber asked the neighbor to call the police, in part because

      he had been beaten and in part because Nicodemus was still in the house and

      he was afraid for her.


[3]   Gerber was taken by ambulance to the hospital. He suffered cuts, bruises, and

      scratches to his face, neck, arms, and chest; bruised ribs; and two lacerations to

      his left leg. The lacerations were approximately ten centimeters in length, total,

      and although they were not deep wounds, they required sutures. Gerber did

      not realize until he got to the neighbor’s house that he had been cut. Wilburn

      admitted to officers who responded to the scene that he had a knife, but stated

      that he threw the knife down on the bed when he grabbed Gerber and started

      hitting him and “the victim must have fallen on the knife and cut himself.”

      Transcript at 82. The emergency room doctor who treated Gerber opined that

      “most wounds are usually caused by something happening directly. And, you

      know, the likelihood that wound would happen because someone is rolling


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 3 of 12
      around on a mattress would be not so likely.” Supplemental Volume of

      Exhibit, Volume 1 at 17. “[I]n this particular situation [the] wounds were not

      life-threatening, but I think they were probably produced by a sharp object with

      the intent to produce a wound.” Id. at 18-19. Gerber testified that he suffered

      pain as a result of his injuries and photographs showed that he had a scar on his

      leg from the lacerations. He missed seven days of work following the attack.


[4]   The State charged Wilburn with battery resulting in moderate bodily injury, a

      Level 6 felony, and battery by means of a deadly weapon (specifically, a knife),

      a Level 5 felony. A jury found him guilty of battery resulting in moderate

      injury but was unable to reach a verdict as to the second count. 2 At sentencing,

      the trial court noted Wilburn’s criminal history and then stated,


              In this situation, you and your girlfriend had broken up. She was
              with someone else. That upset you. You came over and
              damaged his property and you cut him. You know, it seems to
              me at some point in time when you start cutting people with a
              knife that there has to be a line that’s going to be drawn. So on –


              [Defense Counsel]: Judge, I think the jury didn’t find him guilty
              of the knife –


              [Court]: The cut were [sic] on the legs, [counsel]. Come on.
              The facts are the facts. I looked at the evidence again[] last night.




      2
        The trial court declared a mistrial on the battery by means of a deadly weapon charge and the State
      ultimately dismissed this count.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020                     Page 4 of 12
              I don’t know how you get that many stitches in your legs without
              being cut by a knife.


              So, based upon the seven misdemeanor convictions and also one
              juvenile adjudication [on your criminal record], the overall
              sentence – judgment is entered as a Level 6 Felony. The overall
              sentence is 30 months.


      Tr. at 189-90.



                                Discussion and Decision
                          I. Abuse of Sentencing Discretion
[5]   Subject to the appellate courts’ review and revise power, sentencing decisions

      are within the sound discretion of the trial court and are reviewed only for an

      abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision

      is “clearly against the logic and effect of the facts and circumstances before the

      court, or the reasonable, probable, and actual deductions to be drawn

      therefrom.” Id.


[6]   Our supreme court explained in Anglemyer:


              One way in which a trial court may abuse its discretion is failing
              to enter a sentencing statement at all. Other examples include
              entering a sentencing statement that explains reasons for
              imposing a sentence—including a finding of aggravating and
              mitigating factors if any—but the record does not support the
              reasons, or the sentencing statement omits reasons that are


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 5 of 12
              clearly supported by the record and advanced for consideration,
              or the reasons given are improper as a matter of law.


      Id. at 490-91.


[7]   Wilburn contends that “[b]y stating its disagreement with the trial outcome as it

      related to its own view of the evidence, the trial court abused its discretion in

      sentencing Wilburn to [the maximum sentence].” Brief of Appellant at 12.

      Essentially, Wilburn contends the trial court relied on an improper reason for

      imposing his maximum sentence.


[8]   In Phelps v. State, 24 N.E.3d 525 (Ind. Ct. App. 2015), the defendant was

      charged with Class A felony dealing in cocaine and Class C felony possession

      of cocaine. A jury found him guilty of possession but not dealing. At

      sentencing, the trial court stated, “I don’t know why the jury didn’t find you

      guilty of that offense. . . . [H]ad this been tried to the Court instead of to a jury

      . . . I would have clearly found you guilty of dealing. Because I think the

      evidence showed that.” Id. at 527. The trial court then laid out a number of

      other aggravating circumstances and sentenced the defendant to a maximum

      sentence. On the defendant’s appeal of his sentence, we held that the “trial

      court’s blatant disagreement with the jury verdict” was an abuse of discretion

      even though the trial court identified other proper aggravating circumstances

      because of the “suspect” nature of the sentencing enhancement. Id. at 528-29.

      We reversed the maximum sentence of eight years and remanded for

      imposition of a six-year-sentence rather than the advisory sentence the

      defendant requested in recognition of the independent aggravating
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 6 of 12
      circumstances. Id. at 529; see Hammons v. State, 493 N.E.2d 1250, 1253 (Ind.

      1986) (remanding with instructions to re-sentence defendant to the presumptive

      term for voluntary manslaughter where, “[o]n three different occasions, the trial

      judge stated for the record that he disagreed with the jury verdict for voluntary

      manslaughter because there was sufficient evidence for a murder verdict”: the

      judge did not “merely entertain[] mild skepticism of the jury verdict” but likely

      compensated for what it considered a wrong decision by the jury in imposing a

      maximum sentence); Gambill v. State, 436 N.E.2d 301, 305 (Ind. 1982)

      (remanding for re-sentencing and noting that “[i]t is clear that the trial court

      enhanced the sentence to compensate for what he believed to be an erroneous

      verdict”); see also McCain v. State, No. 19A-CR-1113 at *4-5 (Ind. Ct. App. Jan.

      6, 2020) (reducing voluntary manslaughter sentence because of trial court’s

      “outspoken disagreement” with the jury’s verdict; jury found the existence of

      sudden heat but trial court stated, “I didn’t see any sudden heat. It was the

      clearest case of, I’d say, cold-blooded murder I’ve seen[; t]he voluntary

      manslaughter verdict was a gift” and sentenced defendant to the minimum

      sentence available for murder).


[9]   Wilburn likens the trial court’s statement and actions in his case to that of the

      trial courts’ statements in Phelps, Hammons, and Gambill. We disagree. Here,

      the trial court’s sentencing statement focused on Wilburn’s numerous prior

      convictions and the circumstances under which he came into contact with

      Gerber and unlike the statements in Phelps, Hammons, and Gambill, was not

      “openly hostile” to the jury’s decision. See Tiller v. State, 541 N.E.2d 885, 893


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 7 of 12
(Ind. 1989) (characterizing the trial court’s statement in Gambill as “openly

hostile to the jury’s verdict” whereas in Tiller, the trial court merely made a

statement regarding the seriousness of the crime in explaining the sentence); see

also Wilson v. State, 458 N.E.2d 654, 656 (Ind. 1984) (holding that although the

trial court expressed a “degree of skepticism” regarding the evidence of sudden

heat supporting a manslaughter verdict over a murder verdict, the trial court

was not “so resolutely opposed to the jury verdict” as in Gambill).3 The trial

court’s reference to Wilburn cutting Gerber was an “evaluative statement of the

circumstances surrounding the crime[.]” Wilson, 458 N.E.2d at 656. There was

clear evidence—including from Wilburn himself—that Wilburn wielded a knife

during the encounter and that because of the presence of the knife, Gerber

suffered an injury that he otherwise would not have suffered, regardless of how

the injury occurred. That the trial court noted that Wilburn brought a knife to

the fight does not rise to the level of the statements in Phelps, Hammons, or

Gambill disparaging the jury’s decision and does not render the enhanced

sentence in this case “suspect.” “Generally, the nature and circumstances of a

crime is a proper aggravating circumstance[,]” Gomillia v. State, 13 N.E.3d 846,

853 (Ind. 2014), as is a criminal history, Ind. Code § 35-38-1-7.1(a)(2).

Accordingly, we hold that the trial court did not abuse its discretion in

sentencing Wilburn to the maximum term.




3
  Moreover, the jury here did not acquit Wilburn of battery by means of a deadly weapon; it was unable to
reach a verdict on that count. The trial court’s “skepticism” therefore did not invade the province of the jury
to decide whether a defendant was guilty or not guilty.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020                       Page 8 of 12
                                  II. Inappropriate Sentence
[10]   Wilburn also contends his sentence is inappropriate because neither the nature

       of his offense nor his character warrants the maximum penalty. Article 7,

       sections 4 and 6 of the Indiana Constitution authorize independent appellate

       review and revision of sentences through Indiana Appellate Rule 7(B). King v.

       State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) 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.” Sentencing

       decisions rest within the discretion of the trial court and, as such, should receive

       considerable deference. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       “Such deference should prevail 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 character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[11]   The defendant bears the burden of demonstrating his sentence is inappropriate

       under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and

       we may look to any factors in the record for such a determination, Reis v. State,

       88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we regard a

       sentence as [in]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



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 9 of 12
       others, and myriad other factors that come to light in a given case.” Cardwell,

       895 N.E.2d at 1224.


[12]   The advisory sentence is the starting point our legislature has selected as an

       appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.

       The sentencing range for a Level 6 felony is between six months and two and

       one-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7(b).

       Here, the trial court sentenced Wilburn to thirty months, the maximum

       sentence, for his battery conviction.


[13]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation in it. Washington v.

       State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. When

       evaluating a defendant’s sentence that deviates from the advisory sentence, we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that distinguishes it from the typical offense

       accounted for by our legislature when it set the advisory sentence. Moyer v.

       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017), trans. denied.


[14]   Wilburn believes the trial court “stated it best” when it said that “[e]verybody

       got kind of manipulated in this matter but you went beyond what you should

       have done.” Tr. at 189. He characterizes his actions as “reacting because his

       on again, off again girlfriend had begun to date someone else.” Br. of

       Appellant at 13. However, this was not an impulsive action caused when

       Wilburn unexpectedly encountered his ex-girlfriend with someone else. The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 10 of 12
       text messages introduced into evidence indicate that Wilburn knew Nicodemus

       was with someone else and, while making multiple threats against that person

       and his property, went to Nicodemus’ house, damaged Gerber’s vehicle, let

       himself into the house, and violently confronted Gerber. This was a deliberate

       and unnecessary action and nothing about the nature of Wilburn’s offense

       warrants a reduction in his sentence.


[15]   The “character of the offender” portion of the Rule 7(B) standard permits a

       broader consideration of the defendant’s character. Anderson v. State, 989

       N.E.2d 823, 827 (Ind. Ct. App. 2013), trans. denied. “A defendant’s life and

       conduct are illustrative of his or her character.” Morris v. State, 114 N.E.3d 531,

       539 (Ind. Ct. App. 2018), trans. denied. And the trial court’s recognition or non-

       recognition of aggravators and mitigators serves as an initial guide in

       determining whether the sentence imposed was inappropriate. Stephenson v.

       State, 53 N.E.3d 557, 561 (Ind. Ct. App. 2016).


[16]   When considering the character-of-the-offender prong of our inquiry, one

       relevant consideration is the defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). “The significance of a criminal

       history . . . varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense.” Id. And this court has held that “[e]ven a

       minor criminal record reflects poorly on a defendant’s character.” Reis, 88

       N.E.3d at 1105.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 11 of 12
[17]   Wilburn notes that although he has a criminal history, it does not denote him as

       among the “worst of the worst” offenders. Br. of Appellant at 12. As the trial

       court pointed out, Wilburn has seven misdemeanor convictions and a juvenile

       adjudication. This is his first felony conviction. Nonetheless, two of his prior

       convictions were for battery, same as the present offense, and he had a pending

       battery charge at the time of sentencing. In addition, one of his convictions was

       for criminal recklessness and one for invasion of privacy. He was first arrested

       at the age of fifteen. Given the nature and number of prior offenses in relation

       to this offense and given that Wilburn’s criminal history shows a consistent

       pattern of criminal offenses over the past fifteen years, Wilburn has not

       persuaded us that his character makes his thirty-month sentence inappropriate.



                                              Conclusion
[18]   The trial court did not abuse its discretion in sentencing Wilburn and after

       giving due consideration to the nature of his offense and his character, we

       conclude his thirty-month sentence is not inappropriate. The judgment of the

       trial court is affirmed.


[19]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-43 | March 12, 2020   Page 12 of 12
